Jaime Albert a/k/a Jamie Albert v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-CA-00374-COA

JAIME ALBERT A/K/A JAMIE ALBERT APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/15/2022
TRIAL JUDGE: HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: NICK CRAWFORD
VICKI L. GILLIAM
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 10/03/2023
MOTION FOR REHEARING FILED:

EN BANC.

SMITH, J., FOR THE COURT:

¶1. Jamie Albert pled guilty to a four-count indictment charging him with three counts of

sexual battery and one count of fondling. The circuit court imposed the sentences agreed

upon by the State and Albert: concurrent terms that totaled twenty years, with a portion of

each sentence suspended, leaving him with six years to serve in custody. Albert subsequently

filed a motion for post-conviction collateral relief (PCR), requesting that the circuit court

vacate all four of his convictions and sentences and set aside his guilty plea to the indictment

as a whole. The court granted his PCR motion in part, vacating his convictions and sentences

for the three counts of sexual battery, and the court denied his motion in part, affirming his

conviction and sentence for the one count of fondling. The State did not appeal from the
order. Albert appeals the circuit court’s denial of his PCR motion on the fondling charge.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. A Washington County grand jury indicted Albert on three counts of sexual battery and

one count of fondling. Albert appeared before the Washington County Circuit Court on April

6, 2021, and initially began the process for a jury trial. However, right after the jury was

brought into the courtroom, he decided to accept a plea bargain previously offered by the

State. Albert presented his plea petition to the circuit court and entered a guilty plea to each

of the charges in the indictment. Consistent with the agreement between the State and Albert,

the court sentenced him to twenty years in custody for each sexual battery conviction, set to

run concurrently, with six years to serve in the custody of the Mississippi Department of

Corrections (MDOC) and fourteen years suspended, conditioned upon five years of

supervised probation. For the one count of fondling, the court imposed a sentence of fifteen

years, with six years to serve in the MDOC’s custody and nine years suspended, conditioned

upon five years of supervised probation; a $1,000 fine; and other customary costs. All four

sentences were ordered to run concurrently with one another.

¶3. Albert filed a PCR motion on September 22, 2021, and a supplemental PCR motion

on November 5, 2021. He claimed that his guilty pleas to the sexual battery charges were not

voluntarily or intelligently made. Specifically, he argued he was improperly advised of the

minimum and maximum sentences for the sexual battery convictions and never received the

2
correct information that they carried a maximum sentence of thirty years without a statutory

minimum. Albert also alleged that he was not given the correct minimum and maximum

punishments for the fondling conviction, and was not advised that the circuit court had the

discretion to impose a sentence of imprisonment or a fine or both.

¶4. Additionally, Albert raised a claim of ineffective assistance of counsel on similar

grounds: that his defense counsel incorrectly advised him of the minimum and maximum

sentences. As a result, he felt pressured into pleading guilty and would not have pled guilty

if he had been correctly advised of the sentences for each crime charged. Albert’s PCR

motion also asserted the State committed a Brady violation by failing to disclose an

investigative report involving allegations in a different case and different time frame against

another person for the statutory rape of the same victim.1 He claimed that his convictions and

sentences should be set aside due to this newly discovered evidence.

¶5. After reviewing the PCR motion and supplement, the circuit court entered its order

on March 15, 2022, granting in part and denying in part the requested relief in Albert’s PCR

motion. The court held that the evidence supported vacating Albert’s three convictions for

sexual battery, but did not support vacating his fondling conviction and sentence.2 The circuit

1
Brady v. Maryland, 373 U.S. 83 (1963).
2
The court determined that his indictment failed to state which subsection of the
sexual battery statute he was charged under, and found this omission critical because the
applicable sentences were determined based upon the subsection of the statute. The State
and Albert agreed that his charges implicated a subsection which provided a maximum
sentence of thirty years and no minimum sentence. Thus, the court concluded that he was
not properly informed of the minimum and maximum sentences and had not entered

3
court found that although the plea petition incorrectly advised Albert of the minimum and

maximum sentences for fondling, the judge and prosecutor corrected the sentences for

fondling and advised Albert on the record during the plea proceedings that the proper

minimum sentence was two years, and the maximum sentence was fifteen years. The court,

however, found that the record demonstrated that Albert was not informed that a fine could

be imposed or that a fine could be implemented as an alternate penalty to a prison sentence.

Nevertheless, there was no evidence that the misinformation induced him to plead guilty nor

was there evidence that he believed he would receive only a fine or a sentence other than

what was agreed upon between the State and Albert. Failure to inform Albert of the

possibility of a fine was deemed a harmless error based upon his knowledge that the

minimum sentence for fondling was two years and the fact that he ultimately received the

same sentence that he agreed upon with the State.

¶6. As to the claim of ineffective assistance of counsel, although his attorney failed to

initially provide the correct penalty for fondling, the court stated it was unable to find

evidence that his counsel’s errors proximately caused Albert to enter his guilty plea or that

but for counsel’s error, Albert would not have entered the plea. In sum, the court held that

his guilty plea to the charge of fondling was voluntary and should not be vacated. Aggrieved,

Albert appeals from the circuit court’s order denying his PCR motion to vacate his fondling

conviction.

voluntary guilty pleas to the three counts of sexual battery.

4
STANDARD OF REVIEW

¶7. “When reviewing a trial court’s denial or dismissal of a PCR motion, we will only

disturb the trial court’s decision if the trial court[’s] . . . decision is clearly erroneous[.]”

Green v. State, 242 So. 3d 176, 178 (¶5) (Miss. Ct. App. 2017). Courts specifically

“reviewing the voluntariness of guilty pleas” on appeal “will not set aside findings of a trial

court sitting without a jury unless such findings are clearly erroneous.” Vaughn v. State, 85

So. 3d 907, 910 (¶8) (Miss. Ct. App. 2012) (quoting Walton v. State, 16 So. 3d 66, 70 (¶8)

(Miss. Ct. App. 2009)).

DISCUSSION

¶8. On appeal, Albert asks this Court to vacate his fondling conviction and sentence and

set aside his guilty plea. He asserts that his plea was involuntary on the grounds that he did

not understand the correct penalties for a fondling charge, he received ineffective assistance

of counsel which caused him to enter a guilty plea, and undisclosed evidence of investigative

reports and charges against another person contain exculpatory information in his case.

¶9. “A guilty plea is valid if it is entered into ‘voluntarily, knowingly, and intelligently.’”

Yates v. State, 226 So. 3d 614, 619 (¶16) (Miss. Ct. App. 2017) (quoting Williams v. State,

31 So. 3d 69, 74 (¶13) (Miss. Ct. App. 2010)). “The question of whether a plea was

voluntarily and knowingly made is a question of fact.” King v. State, 788 So. 2d 868, 870

(¶3) (Miss. Ct. App. 2001). The defendant “has the burden of proving that his plea was not

knowing, intelligent, or voluntary.” Willis v. State, 321 So. 3d 584, 588 (¶7) (Miss. Ct. App.

5
2021) (quoting Morris v. State, 29 So. 3d 98, 102-03 (¶13) (Miss. Ct. App. 2010)). This

burden “must be prove[d] [by] a preponderance of the evidence.” Yates, 226 So. 3d at 619

(¶16) (quoting Goul v. State, 223 So. 3d 813, 816 (¶7) (Miss. Ct. App. 2017)).

I. Whether Albert sufficiently understood the consequences of his
guilty plea to render the plea voluntary.

¶10. Albert claims that his guilty plea to the charge of fondling must be set aside as

involuntary because he did not understand the correct minimum and maximum sentences for

a fondling conviction. He stated in his appeal brief that “[he] does not take issue with the

State and Trial Court correctly stating the maximum and minimum penalties for the charge

of fondling.” He presents the issue on appeal instead as, “Albert did not understand this

correction.”

¶11. Mississippi Rule of Criminal Procedure 15.3(c) governs the voluntariness of a guilty

plea and states:

Before the trial court may accept a plea of guilty, the court must determine that
the plea is voluntarily and intelligently made . . . . A plea is not voluntary if
induced by fear, violence, deception, or improper inducements. A showing that
the plea of guilty was voluntarily and intelligently made must appear in the
record.

MRCrP 15.3(c). Also, “[subs]ection (d) [of Rule 15.3] prescribes the advice that the court

must give to the defendant as a prerequisite to the acceptance of a guilty plea and requires

the court to determine that the defendant understands the sentencing implications of that

plea.” MRCrP 15.3 cmt. Applying the laws governing guilty pleas, we have explained,

When determining whether a plea is freely and voluntarily entered, this Court

6
considers if ‘the defendant knows what the elements are of the charge against
him[,] including an understanding of the charge and its relation to him, what
effect the plea will have, and what the possible sentence might be because of
his plea.’

Byers v. State, 107 So. 3d 1071, 1074-75 (¶9) (Miss. Ct. App. 2013) (quoting Kelley v. State,

913 So. 2d 379, 382 (¶5) (Miss. Ct. App. 2005)). “For a plea to be voluntary, a defendant

must know the possible sentences he might receive as a result of pleading guilty[.]” Lowell

v. State, 229 So. 3d 1054, 1059 (¶18) (Miss. Ct. App. 2017). The defendant “must also

understand the maximum and minimum penalties provided by law.” Britton v. State, 130 So.

3d 90, 94 (¶10) (Miss. Ct. App. 2013) (internal quotation marks omitted). In sum, if “the

defendant is advised regarding the nature of the charge and the consequences of the plea, it

is considered ‘voluntary and intelligent.’” Law v. State, 822 So. 2d 1006, 1009 (¶10) (Miss.

Ct. App. 2002) (quoting Richardson v. State, 769 So. 2d 230, 233 (¶6) (Miss. Ct. App.

2000)).

¶12. The Mississippi Supreme Court has held that when assessing the voluntariness of a

guilty plea,

[t]he thoroughness with which [the defendant] was interrogated by the lower
court at the time his plea was tendered is the most significant evidence of all.
For, without regard to the advice or instructions [the defendant] may have been
given by his attorney, the lower court’s questioning and explanations to [him]
of his rights and of the consequences of his plea were sufficient to render the
plea voluntary.

Chambliss v. State, 188 So. 3d 1262, 1265 (¶11) (Miss. Ct. App. 2016) (quotation marks

omitted) (citing Gardner v. State, 531 So. 2d 805, 809 (Miss. 1988)). Simply, “the plea is

7
rendered voluntary when the defendant hears from the trial court what the effects and

consequences of his guilty plea will be, despite the advice given to the defendant by his

attorney.” Law, 822 So. 2d at 1010 (¶10) (citing Roland v. State, 666 So. 2d 747, 750 (Miss.

1995)).

¶13. Albert had to understand the consequences of entering his plea for his guilty plea to

be deemed voluntary. In evaluating the voluntariness, we consider whether the evidence

shows that the circuit court advised Albert of the minimum and maximum penalties for

fondling, and whether the evidence demonstrates that he understood the possible sentence

he might receive because of his guilty plea. After a review of the record, we find that the

transcripts showing the discussion between the parties at the plea hearing, as well as the

circuit court’s interrogation of Albert during the plea colloquy, render his guilty plea

voluntary.

¶14. At the beginning of the hearing, the State presented the agreed recommendation to the

circuit court, as stated supra ¶2. Further, the transcripts from the hearing contain the

following colloquy during a review of the plea petition specifically as it pertained to the

crime of fondling:

[Court:] [W]hat is the penalty for fondling?

[Defense:] I believe it’s a minimum of 5 with no maximum. Is that right, a
minimum of 5?

[State:] Not less than 2 years nor more than 15 years, your Honor.

[Court:] [W]hat was the minimum?

8
[State:] 2 years.

[Court:] The minimum is 2 and the maximum is 15. Do you understand
the maximum and minimum on those fines?

[Albert:] Yes, sir.

....

[Court:] And I see that the state has this recommended sentence of 20
years, 6 years to serve, 14 years suspended, 5 years supervised
probation, pay a $1,000 fine and customary costs and
assessments. Other than that recommendation from the State,
has anyone offered you anything of value as an inducement to
plead guilty?

[Albert:] No, sir.

[Court:] Has anyone threatened you to coerce you to plead
guilty?

[Albert:] No, sir.

(Emphasis added). The circuit court also confirmed that defense counsel was not aware of

anything in her representation of Albert that he was “unable to make a knowing and

intelligent understanding and waiver of his rights.” Despite the dissent’s contention that the

guilty plea was somehow indivisible, the actual record demonstrates that the circuit court

reviewed each count individually and imposed separate sentences for each crime. The

transcripts from his plea hearing show that the circuit court advised Albert of the penalty for

the sexual batteries first. Then the court further clarified and separately advised Albert of the

penalty for fondling a child to which he was pleading guilty. The court stated specifically that

the minimum sentence was two years and the maximum sentence was fifteen years, thereby

9
satisfying the court’s responsibility to advise Albert of the minimum and maximum sentences

he could receive for the fondling charge. Taking the process a step further, after listing the

minimum and maximum sentences for fondling, the court pointedly questioned Albert as to

whether he understood. He responded affirmatively, “Yes, sir,” indicating he understood that

a fondling conviction carried a minimum sentence of two years in custody and a maximum

sentence of fifteen years in custody. Taken as a whole, we find that the evidence supports a

finding that Albert understood the consequences of his plea and the penalties for the crime

of fondling.

II. Whether Albert received ineffective assistance of counsel resulting
in an involuntary guilty plea.

¶15. Albert claims that his plea was involuntary due to his counsel’s ineffective assistance.

He alleges his defense counsel was deficient by advising him of the wrong penalties for his

charges, pressuring him into pleading guilty, and failing to discuss the correct sentences

provided by the court. According to Albert, the court erred when it found his counsel’s

ineffective assistance to be mere “unprofessional errors.” He contends that the court should

have held that he was prejudiced by the errors because he took the plea offer to avoid going

to trial and potentially receiving a life sentence. He also takes issue with the fact that his

attorney remained silent after the court informed him of the correct minimum and maximum

sentences and that counsel failed to discuss the actual penalties with him or to otherwise

protect his interests before he entered his guilty pleas.

¶16. “To successfully prove ineffective assistance of counsel, [the defendant] bears the

10
burden of demonstrating that (1) his lawyer’s performance was deficient, and (2) he suffered

prejudice as a result of his lawyer’s deficient performance.” Palmer v. State, 140 So. 3d 448,

452 (¶8) (Miss. Ct. App. 2014) (quoting Strickland v. Washington, 466 U.S. 668, 687

(1984)). In the context of “the plea process, the focus of the first prong remains the same,

while the second prong focuses on whether counsel’s unprofessional performance affected

the outcome.” Hannah v. State, 943 So. 2d 20, 24 (¶7) (Miss. 2006). Mississippi law states,

“The defendant must show that, were it not for counsel’s errors, he would not have pled

guilty and would have insisted on going to trial.” Palmer, 140 So. 3d at 452 (¶8) (quoting

Burrough v. State, 9 So. 3d 368, 375 (¶22) (Miss. 2009)). “[M]ere proof that a defendant has

been misinformed as to some aspect of his prospective sentence does not automatically

permit him to have that plea set aside. Rather, the defendant must show that he legitimately

relied on the misinformation in the decision process that led to his guilty plea.” Hall v. State,

800 So. 2d 1202, 1206 (¶13) (Miss. Ct. App. 2001). Where the defendant seeks to vacate his

plea on the ground that “he was not advised of the minimum sentence for his crime, and that

if he had been aware, he would not have pleaded guilty. . . . [The defendant] must show that

he was misled, that the case was misrepresented to him, or that he expected to receive a lesser

sentence.” Williams v. State, 107 So. 3d 1016, 1020 (¶11) (Miss. Ct. App. 2012) (quoting

Garner v. State, 928 So. 2d 911, 913-14 (¶6) (Miss. Ct. App. 2006)).

¶17. We find that the record supports the circuit court’s conclusion that Albert’s defense

counsel did erroneously advise him of the wrong minimum and maximum sentence for

11
fondling. Contrary to Albert’s assertions, however, there is not sufficient evidence to

establish that he was prejudiced by his counsel’s deficiencies. The record shows that both the

State and the court corrected his counsel’s error and provided him with the correct minimum

and maximum sentences for fondling before he actually pled guilty and before the court

accepted his plea. Albert was made aware of the error and provided the correct information

for the fondling charge in time to opt out of the guilty plea and proceed with his trial. Thus,

based on the evidence presented, Albert cannot establish that he legitimately relied on the

misinformation of his counsel in his ultimate decision to plead guilty because the error was

timely corrected.

¶18. Albert also alleges that his plea was involuntary because he was pressured into

accepting the State’s plea bargain and recommended sentence due to his counsel’s advice that

a jury conviction at trial could warrant a life sentence on all four counts charged against him.

It is worth noting here that the correct maximum sentences could have still resulted in a 105-

year sentence for the original four charges. Given Albert was nearly twenty-five years old at

the time of his plea, it is certainly likely that imposition of the maximum sentences would

have equaled what is tantamount to a life sentence in his case. This Court has explained that

a plea is not rendered involuntary because the defendant “felt some pressure to plead guilty

after discussing the offer with [his attorney]” or “because he feared a harsher sentence

otherwise.” Watkins v. State, 170 So. 3d 582, 586 (¶15) (Miss. Ct. App. 2014) (quoting

Mayhan v. State, 26 So. 3d 1072, 1076 (¶13) (Miss. Ct. App. 2009)). Further, the transcript

12
for the hearing clearly confirms that before accepting his plea, the circuit court specifically

asked Albert whether he was threatened or coerced into pleading guilty. As such, there is no

foundation for Albert’s claim that his guilty plea was made involuntary by the pressure or

fear arising out of his attorney’s advice. We find that the circuit court was not in error when

it held there was insufficient evidence to show that the mistaken information initially given

by Albert’s counsel proximately caused him to enter his guilty plea or that but for his

counsel’s errors, he would not have pled guilty.

III. Whether a Brady violation and newly discovered evidence require
setting aside Albert’s guilty plea.

¶19. Lastly, Albert claims that his plea was rendered involuntary by the discovery of

evidence of a newly pending indictment charging another individual with the statutory rape

of the same victim in an allegedly unrelated case and unrelated timeframe as in Albert’s case.

Alternatively, he argues that the plea was made involuntary by the State’s failure to disclose,

prior to his plea hearing, the investigative report involving these allegations against the other

person. Albert indicates that the materials, if disclosed, would have resulted in a reasonable

probability that the proceedings would have been different and that he would not have pled

guilty.

¶20. Albert fails to cite any relevant authority for this claim. Rather, he lists general

references to the United States and Mississippi Constitutions and does not provide any

further explanation of their application. “[A]ppellate courts in Mississippi will not review

any issues on appeal if the party fails to cite relevant authority in support of his or her

13
arguments.” Lambert v. Lambert, 872 So. 2d 679, 683 (¶14) (Miss. Ct. App. 2003). Even so,

we do not find sufficient evidence beyond speculation and conjecture that an alleged

indictment in an unrelated new case of a second victimization of the same minor child could

be exculpatory for the crimes to which Albert pled guilty. Without any evidence beyond

speculation that this new charge falls within an exception, “[t]he attempt to offer evidence

about a different, unrelated inciden[t] of sexual abuse by the defense was improper and

irrelevant following Mississippi Rules of Evidence Rule 412.” Parker v. State, 825 So. 2d

59, 63 (¶9) (Miss. Ct. App. 2002). This issue is without merit.

CONCLUSION

¶21. The record establishes that Albert received correct information on the minimum and

maximum sentences for a fondling conviction and for the possible sentence he might receive

by pleading guilty. Evidence from the plea hearing also shows that Albert represented to the

circuit court that he understood the minimum and maximum sentences for the fondling

charge against him. Although Albert proved that his counsel gave him incorrect information,

he did not offer sufficient evidence to prove that he was prejudiced in entering a guilty plea

as a result of his attorney’s performance. Therefore, we find that Albert’s guilty plea to the

charge of fondling was knowing, intelligent, and voluntary, and the circuit court did not

abuse its discretion by declining to vacate his guilty plea, conviction, or sentence for

fondling. For the foregoing reasons, the judgment of the circuit court is affirmed.

¶22. AFFIRMED.

14
CARLTON, P.J., GREENLEE, LAWRENCE, McCARTY AND EMFINGER,
JJ., CONCUR. WESTBROOKS, J., DISSENTS WITHOUT SEPARATE WRITTEN
OPINION. WILSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION,
JOINED BY BARNES, C.J., WESTBROOKS AND McDONALD, JJ.

WILSON, P.J., DISSENTING:

¶23. The circuit court vacated Albert’s three convictions for sexual battery after finding

that his guilty pleas to those charges were involuntary because he was misinformed regarding

the minimum sentence and maximum sentence for sexual battery. Nonetheless, the circuit

court refused to vacate Albert’s guilty plea to one count of fondling, which Albert entered

the same day as part of the same plea bargain. The circuit court erred because Albert’s pleas

to all four counts of his indictment were part of an indivisible, package plea bargain. If his

pleas to three counts of sexual battery were involuntary, then his plea to fondling was equally

involuntary, and his conviction for fondling must be vacated as well. By affirming, the

majority effectively imposes a new “plea bargain” that the State never offered and Albert

never agreed to. Indeed, although the circuit court ostensibly granted Albert post-conviction

“relief,” this new court-imposed “bargain” leaves Albert in a much worse position than his

original plea deal. I respectfully dissent.

¶24. In March 2020, Albert was charged in a single indictment with three counts of sexual

battery and one count of fondling. All three sexual battery counts were identical, each

alleging:

JAIME ALBERT, . . . on or about or between January l, 2015 and December
31, 2016, did willfully, unlawfully and feloniously engage in sexual
penetration, penile to oral, with [L.T.] without her consent . . . .

15
The fondling count used the same date range, alleging:

JAIME ALBERT, . . . on or about or between January 1, 2015 and December
31, 2016, did willfully, unlawfully and feloniously, being a person above the
age of eighteen (18) years,[3] for the purpose of gratifying his lust or indulging
his depraved, licentious sexual desires, handle, touch and/or rub with his penis
and hands [L.T.], a child under sixteen (16) years of age . . . .

¶25. The State made Albert a plea offer: if he pled guilty to all four counts, the State would

recommend four concurrent sentences of twenty years with fourteen years suspended and six

years to serve. In April 2021, Albert accepted the State’s offer. Before Albert pled guilty,

his lawyer and the circuit judge both misinformed him that the minimum sentence for sexual

battery was twenty years and that the maximum sentence was life imprisonment. Albert’s

plea petition included the same misinformation. In fact, as charged in the indictment, there

was no minimum sentence, and the maximum sentence was thirty years in prison. Miss.

Code Ann. §§ 97-3-95(1)(a) & 97-3-101(1) (Rev. 2020).4 Albert’s lawyer also misinformed

him regarding the minimum sentence and maximum sentence for fondling. During Albert’s

plea hearing, counsel stated that the minimum sentence was five years and that there was no

maximum sentence.5 An assistant district attorney and the judge then correctly stated that

3
Albert did not turn eighteen until May 2015. Thus, for part of the period covered
by the indictment, Albert was not “a person above the age of eighteen.”
4
Albert’s attorney and the circuit judge erroneously advised him based on the
minimum and maximum sentences under different subsections of the sexual battery statutes
that are inapplicable to the crime as charged in Albert’s indictment. See Miss. Code Ann.
§§ 97-3-95(1)(d) & 97-3-101(3).
5
Albert’s plea petition failed to address separately the different sentencing ranges for
sexual battery and fondling. Rather, without specifying an offense, his plea petition

16
the maximum sentence was fifteen years but still incorrectly stated that the minimum

sentence was two years. In fact, the minimum sentence for fondling is two years in custody

or a fine. Miss. Code Ann. § 97-5-23(1) (Rev. 2020). The judge then accepted Albert’s plea

and sentenced him to twenty years with fourteen years suspended and six years to serve for

each sexual battery count and fifteen years with nine years suspended and six years to serve

for fondling, with all sentences set to run concurrently.

¶26. About five months later, Albert filed a motion for post-conviction relief (PCR),

alleging that his guilty plea was involuntary because his lawyer and the judge misinformed

him regarding the applicable minimum and maximum sentences. The circuit court agreed

that Albert’s guilty pleas to three counts of sexual battery were involuntary because Albert

had been misinformed regarding the minimum and maximum sentences for sexual battery.

Therefore, the court vacated Albert’s convictions on those three counts. The State did not

appeal or cross-appeal the circuit court’s ruling vacating Albert’s convictions on those

counts.

¶27. However, the circuit court refused to vacate Albert’s conviction for fondling, finding

that the misinformation Albert received regarding the sentencing range for fondling was

“harmless error” because there was “no evidence that the misinformation induced Albert to

enter his guilty plea to the crime of [f]ondling.”

erroneously stated that the minimum sentence was twenty years and that the maximum
sentence was life imprisonment.

17
¶28. By focusing on whether the misinformation Albert received regarding the sentencing

range for fondling induced Albert to plead guilty to fondling, the circuit court ignored the

substance of Albert’s plea bargain. The State did not offer, and Albert did not accept,

separate plea bargains for each count of the indictment. Rather, Albert and the State

negotiated one indivisible, package resolution covering all counts. The offer was to allow

Albert to plead guilty to all four counts of the indictment in exchange for a recommendation

of concurrent sentences on all four counts.6 Furthermore, Albert certainly did not agree to

plead guilty based on the sentencing range for the least serious of the four charges to which

he was pleading guilty and would be sentenced. Rather, he weighed his total exposure on

all four counts in deciding whether to plead guilty to all four counts. If, as the circuit court

found, Albert’s guilty pleas to three counts of sexual battery were involuntary because Albert

was misinformed regarding the potential sentence he was facing,7 it necessarily follows that

Albert’s plea to the remaining count of the indictment was involuntary too.

6
“A plea agreement is basically a binding contract between the prosecution and the
defendant that, if the defendant does a, b, and c, the prosecution will do d, e, and f.” Presley
v. State, 792 So. 2d 950, 955 (¶21) (Miss. 2001).
7
The State cannot challenge the circuit court’s ruling vacating Albert’s convictions
for sexual battery because the State did not file a cross-appeal. See Bishop v. Jones, 207
Miss. 423, 446, 42 So. 2d 421, 426 (1949) (holding that because the respondents-appellees
in a habeas corpus proceeding did not file a cross-appeal, they could not challenge a ruling
by trial judge in favor of the petitioner and “were not entitled to be heard in [the Supreme
Court] except in support of the decree of the trial court”); see also Watkins Dev. LLC v.
Hosemann, 214 So. 3d 1050, 1052-53 (¶¶11-14) (Miss. 2017) (holding that because the
Secretary of State did not cross-appeal, the Court of Appeals erred by reversing the part of
the judgment that granted relief to the appellee).

18
¶29. The problem with the circuit court’s ruling that Albert’s plea was only partially

involuntary is evident from its practical effect. While ostensibly granting Albert partial

“relief,” the ruling actually leaves Albert in a much worse position than under his original

plea bargain. Now, Albert still must serve six years day-for-day—the same amount of time

he was required to serve under his original plea bargain. However, Albert is now facing

three unresolved counts of sexual battery, which could result in additional sentences totaling

ninety years if he is convicted. In other words, Albert remains subject to the same time to

serve, but he has lost the benefit of a full and complete resolution of all the charges against

him. In effect, the circuit court and the majority have ruled that Albert “voluntarily” pled

guilty and agreed to a significant prison sentence for a single count of fondling without doing

anything to resolve the three more serious charges against him. In reality, the State never

made such an offer, and Albert never would have accepted it had it been presented as such.

But the courts have now imposed that unfavorable bargain on Albert in the name of granting

him post-conviction “relief.”

¶30. If, as the circuit court found, Albert’s guilty pleas to three counts of sexual battery

were involuntary, his plea to one count of fondling was equally involuntary. There is simply

no logical basis for this Court to unbundle this package plea bargain and declare part of it

involuntary and part of it voluntary. We should follow the normal rule that when a

defendant’s guilty pleas are found to be involuntary, the resulting convictions must be

vacated. Catchings v. State, 111 So. 3d 1238, 1241 (¶10) (Miss. Ct. App. 2013). This places

19
both parties “back in the positions which they occupied prior to entering into the plea

agreement.” Id. (brackets omitted) (quoting Stevenson v. State, 674 So. 2d 501, 505 (Miss.

1996)). “[T]he circuit court cannot simply resentence a defendant using his original plea

agreement when a guilty plea is found to be involuntary. The defendant can choose either

to enter a new guilty plea or go forward with trial.” Id. Accordingly, Albert’s conviction for

fondling should be vacated. I respectfully dissent.

BARNES, C.J., WESTBROOKS AND McDONALD, JJ., JOIN THIS OPINION.

20