John F. Ware v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2017-KA-00853-COA

JOHN F. WARE A/K/A JOHN FITZGERALD APPELLANT
WARE A/K/A JOHN WARE

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 06/16/2017
TRIAL JUDGE: HON. CHRISTOPHER A. COLLINS
COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: MOLLIE MARIE MCMILLIN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: KATY TAYLOR GERBER
DISTRICT ATTORNEY: STEVEN SIMEON KILGORE
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 09/18/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE LEE, C.J., FAIR AND WILSON, JJ.

LEE, C.J., FOR THE COURT:

¶1. A jury in the Scott County Circuit Court convicted John Ware of possession of a

deadly weapon by a convicted felon.1 The trial court sentenced Ware as a habitual offender

under Mississippi Code Annotated section 99-19-81 (Rev. 2015) to ten years in the custody

of the Mississippi Department of Corrections, with two years suspended and two years of

postrelease supervision. Ware’s trial counsel filed a posttrial motion, which the trial court

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Ware had four prior felony convictions—two for business burglary and two for
possession of methamphetamine.
denied.

¶2. Through his appointed appellate counsel, Ware appeals arguing that the evidence was

insufficient to support the guilty verdict. Ware also filed a pro se brief asserting ineffective

assistance of counsel and an illegal sentence.

FACTS

¶3. On June 25, 2016, around 11:00 pm, Sergeant Timothy Lloyd with the Scott County

Sheriff’s Department responded to a 911 call about a domestic disturbance between Ware

and his wife, Francis, at their house. When Sergeant Lloyd arrived, Ware was washing a car

in the driveway, and Francis was inside the house. Sergeant Lloyd testified that he spoke

with Francis, who informed him that Ware did not live at the house and that she wanted Ware

to leave the premises. While speaking with Ware, Sergeant Lloyd looked into Ware’s car and

noticed a large knife with gray duct tape wrapped around the handle. Sergeant Lloyd stated

that Ware said the knife was for his protection. Sergeant Lloyd confiscated the knife, later

turning it over to Investigator Bill Patrick, who also was with the Scott County Sheriff’s

Department.

¶4. Investigator Patrick testified that he believed the knife was a butcher knife based on

the length of the blade (approximately eight inches) and the curved tip. Aware that Ware had

at least one prior felony conviction, Investigator Patrick brought Ware in for questioning.

After waiving his Miranda2 rights, Ware told Investigator Patrick that he kept the knife in

his car for protection.

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Miranda v. Arizona, 384 U.S. 436 (1966).

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¶5. During trial, Ware stated that he used the knife as a household tool.

DISCUSSION

I. Insufficient Evidence

¶6. Ware first argues that the evidence was insufficient to support the guilty verdict.

Specifically, Ware contends the State failed to produce sufficient evidence that the knife was

a butcher knife.

¶7. In reviewing the sufficiency of the evidence, “the critical inquiry is whether the

evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and

that he did so under such circumstances that every element of the offense existed. . . .” Bush

v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (internal quotation mark omitted), overruled

on other grounds by Little v. State, 233 So. 3d 288 (Miss. 2017). If, viewing the evidence

in the light most favorable to the State, any rational trier of fact could have found, beyond

a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the

conviction. Id. Furthermore, it is well-settled law that the jury determines the credibility of

the witnesses and resolves conflicts in the evidence. Davis v. State, 866 So. 2d 1107, 1112

(¶17) (Miss. Ct. App. 2003).

¶8. Mississippi Code Annotated section 97-37-5(1) (Rev. 2014) states: “It shall be

unlawful for any person who has been convicted of a felony under the laws of this state, any

other state, or of the United States to possess any firearm or any bowie knife, dirk knife, [or]

butcher knife . . . .” The indictment charged Ware with possession of a butcher knife as a

convicted felon.

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¶9. We first note that Ware failed to preserve for appeal any objection or assignment of

error relating to the lack of a specific definition for a butcher knife. And Ware never

requested a jury instruction to define butcher knife, nor did he define it for the jury.

Regardless of any procedural bar, we will address the merits.

¶10. Ware cites to Harris v. State, 172 So. 3d 191 (Miss. Ct. App. 2014), for support. In

Harris, the defendant argued that the State did not prove he possessed a butcher knife. Id.

at 194 (¶7). We noted more than one definition of a butcher knife, including “a heavy-duty

knife, usually six to eight inches long having a broad rigid blade that curves slightly at the

tip” and “a large, very sharp knife for cutting or trimming meat.” Id. at 194-95 (¶10).

Finding that the knife Harris possessed did not fit either description, we reversed his

conviction. Id. at 195 (¶10). As noted, the knife possessed by Harris was “not large or heavy

duty and [did] not have a broad blade that curve[d] slightly at the tip.” Id.

¶11. Here, Investigator Patrick testified that the blade of the knife was approximately eight

inches with a curved tip and a sharp edge. The jury viewed the knife after it was admitted

into evidence during Sergeant Lloyd’s testimony. From the evidence presented, we find that

the evidence was sufficient for the jury to conclude that Ware possessed a butcher knife.

II. Ineffective Assistance of Counsel

¶12. In his pro se brief, Ware argues that his trial counsel, Shawn Harris, was ineffective

for two reasons. The first concerned his attorney’s pretrial actions, and the second concerned

his attorney’s posttrial actions. But ineffective-assistance-of-counsel claims are more

appropriately brought in postconviction relief proceedings. See Williams v. State, 228 So.

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3d 949, 952 (¶12) (Miss. Ct. App. 2017). A claim for ineffective assistance of counsel

should only be addressed on direct appeal where “(1) the record affirmatively shows

ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is

adequate to allow the appellate court to make the finding without consideration of the

findings of fact of the trial judge.” Reed v. State, 204 So. 3d 785, 789 (¶16) (Miss. Ct. App.

2016) (quoting Johnson v. State, 196 So. 3d 973, 975 (¶7) (Miss. Ct. App. 2015)). Here, the

State stipulates that the record is adequate for this Court to make such a finding only

regarding Ware’s posttrial ineffective-assistance-of-counsel claim. We will address each

claim separately.

¶13. In an ineffective-assistance-of-counsel claim,

a defendant must show that: (1) his counsel’s performance was deficient, and
(2) this deficiency prejudiced his defense. The burden of proof rests with the
defendant to prove both prongs. Under Strickland,[3] there is a strong
presumption that counsel’s performance falls within the range of reasonable
professional assistance. To overcome this presumption, the defendant must
show that there is a reasonable probability that, but for the counsel’s
unprofessional errors, the result of the proceeding would have been different.

Renfrow v. State, 202 So. 3d 633, 636 (¶7) (Miss. Ct. App. 2016) (quoting Maggitt v. State,

26 So. 3d 363, 365 (¶12) (Miss. Ct. App. 2009)). There is also a presumption that decisions

made by defense counsel are strategic, and this Court “will not second-guess counsel’s

decisions that fairly may be characterized as strategic.” Shinn v. State, 174 So. 3d 961, 966

(¶12) (Miss. Ct. App. 2015). Finally, we look “at the totality of circumstances to determine

whether counsel’s efforts were both deficient and prejudicial.” Howell v. State, 163 So. 3d

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Strickland v. Washington, 466 U.S. 668 (1984).

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240, 259 (¶49) (Miss. 2014) (quoting Williams v. State, 73 So. 3d 1125, 1129 (¶12) (Miss.

2011)).

A. Pretrial Claim

¶14. Because the State argues that there is insufficient evidence in the record to address

Ware’s claim of pre-trial ineffective assistance of counsel, we must determine whether the

record affirmatively shows that Ware was denied effective assistance of counsel. Ware

claims Harris had a conflict of interest since he was representing Ware in a workers’

compensation case prior to the criminal charges in this case. Ware claims he wanted to plead

guilty but that Harris wanted him to wait until the workers’ compensation case was settled.

According to Ware, Harris led him to believe the criminal charges would be dismissed or that

his sentence would be less than the one he received. But Ware’s claims are based solely on

the allegations in his brief, and “[b]are allegations are insufficient to prove ineffective

assistance of counsel.” McCray v. State, 107 So. 3d 1042, 1045 (¶12) (Miss. Ct. App. 2012).

Additionally, Ware has not submitted affidavits to support his claim, either from himself or

other potential witnesses. As a result, Ware’s pretrial ineffective-assistance-of-counsel

claims are more appropriately brought during postconviction proceedings. Therefore, we

deny relief without prejudice as to Ware’s right to pursue this claim during postconviction

proceedings.

B. Posttrial Claim

¶15. The State stipulates that the record is sufficient to address Ware’s posttrial ineffective-

assistance-of-counsel claims. As such, we will consider the merits.

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¶16. Ware argues that he was prejudiced when another attorney, Mitchell Thomas, stood

in for Harris during the sentencing hearing. Ware claims the trial court should have

postponed the sentencing hearing until Harris could attend. He also suggests that Thomas

should have objected. But Ware has failed to show how this prejudiced his case, nor did he

submit any affidavits to support this assertion. During the sentencing hearing, the trial judge

recessed the hearing to give Thomas time to review the State’s presentence-investigation

report from the Mississippi Department of Corrections with Ware. When the hearing

reconvened, the State then introduced the report into evidence with no objection by Thomas.

The report contained certified copies of Ware’s prior felony convictions. We find no merit

to this issue.

¶17. We note that although Ware claims that Harris failed to file a posttrial motion, the

record indicates Harris did file a motion for a new trial.

III. Illegal Sentence

¶18. Ware also argues that his sentence was illegal because the State failed to prove he was

a habitual offender. However, the State admitted the report into evidence during the

sentencing hearing. And the report contained certified copies of Ware’s three prior felony

convictions. Ware also claims he never saw the presentence investigation report. As

previously stated, the trial judge recessed the sentencing hearing in order for Thomas and

Ware to review the report. This issue is without merit.

¶19. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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