Christopher B. Franks a/k/a Christopher Franks v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-CP-00041-COA

CHRISTOPHER B. FRANKS A/K/A APPELLANT
CHRISTOPHER FRANKS

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/25/2019
TRIAL JUDGE: HON. RICHARD A. SMITH
COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: CHRISTOPHER B. FRANKS (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BRITTNEY SHARAE EAKINS
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 06/22/2021
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE BARNES, C.J., WESTBROOKS AND SMITH, JJ.

BARNES, C.J., FOR THE COURT:

¶1. In September 2016, a Washington County grand jury indicted Christopher Franks and

two co-defendants for capital murder after Thomas McIntosh died from an overdose of a

lethal substance administered by injection. The indictment also charged Franks as a habitual

offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015).

¶2. According to Franks, after one of his co-defendants Trudy Ponder gave a statement

to law enforcement implicating him in McIntosh’s death, he entered an Alford1 plea to

second-degree murder as a non-habitual offender on January 24, 2018. The Washington

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North Carolina v. Alford, 400 U.S. 25 (1970).
County Circuit Court sentenced Franks to twenty-five years, with twenty years to be served

in the custody of the Mississippi Department of Corrections and five years suspended

conditioned upon the successful completion of post-release supervision.2

¶3. Approximately nine months after Franks entered his guilty plea, Ponder sent a letter

to Franks’s attorney, claiming that she had been “coerced . . . to change [her] story and go

along with the false statement [she] made.” The reason she gave for implicating Franks was

that the detective and district attorney’s office had promised to help her and her “oldest son

. . . get out of trouble.” Franks filed a motion for post-conviction relief (PCR) on September

18, 2019, claiming his plea was involuntary, there was no factual basis to the support the

charge against him, and he had newly discovered evidence that one of his co-defendants

(Ponder) lied to police. Ponder’s letter was attached to the motion. Franks did not obtain a

sworn affidavit from Ponder, however, because he was concerned that if he “initiate[d] any

contact with Ponder[,] . . . it may jeopardize this proceeding.”

¶4. The circuit court found no merit to Franks’s claims of error and denied the motion.

On appeal, Franks reasserts his arguments.3 We conclude that the court’s ruling was not

clearly erroneous and affirm.

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The court also ordered Franks to pay a $1,000 fine, all court costs and state
assessments, $500 to the Crime Victims’ Compensation Fund, $250 to the district attorney’s
office, and $300 in crime lab fees.
3
Because Franks’s notice of appeal was filed more than thirty days after the court’s
order, the clerk’s office for the Mississippi Supreme Court issued a “Show Cause Notice.”
Franks responded that his untimely appeal was attributable to lapses in prison services due
to the holiday season and prison lock downs; so this Court concluded “that Franks ha[d]
shown good cause to suspend the rules and allow[ed] the appeal to proceed as timely.”
M.R.A.P. 2(c).

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STANDARD OF REVIEW

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

disturb the circuit court’s decision if it is clearly erroneous[.]” Williams v. State, 228 So. 3d

844, 846 (¶5) (Miss. Ct. App. 2017). Questions of law are reviewed de novo. Id.

DISCUSSION

I. Whether Franks’s plea was intelligently and voluntarily entered.

¶6. Although Franks claims that his plea was involuntary, the circuit court determined that

Franks’s “best-interest plea . . . was knowingly, intelligently, and voluntarily given.” Much

of Franks’s argument on this issue contains only vague accusations of systemic unfairness

and injustice in the legal system. The only specific argument with regard to the actual plea

proceedings is that he had attempted to express disagreement with the prosecution’s

statement of the facts. What Franks fails to acknowledge is that after making that statement,

he then immediately conferred with counsel and told the court he did not “have any

disagreement.”

¶7. Franks entered an Alford plea, which allowed him “to maintain his innocence but

concede the State had sufficient evidence to convict him.” Borden v. State, 122 So. 3d 818,

824 (¶23) (Miss. Ct. App. 2013) (citing Alford, 400 U.S. at 37-38). “Under Alford, an

individual accused of a crime may voluntarily, knowingly, and understandably consent to a

prison sentence even if he is unwilling or unable to admit his participation in the alleged

acts.” Smith v. State, 196 So. 3d 986, 997 (¶38) (Miss. Ct. App. 2015). The circuit court

advised Franks of the charge against him, his constitutional rights, and the consequences of

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entering a guilty plea. Franks responded that he understood his rights, and nothing in the

record suggests that he was misinformed or coerced into pleading guilty. Based on Franks’s

statements to the court made under oath, we find that the court did not manifestly err in

determining that his plea “was knowingly, intelligently, and voluntarily given.”

II. Whether there was a factual basis for the plea.

¶8. Franks claims no factual basis existed to support his plea, as there was no “physical

evidence” proving McIntosh died of “foul play” or linking Franks to his death. He also

contends that the “State’s case was mighty thin,” as the only evidence that implicated him

was provided by a co-defendant.

¶9. This Court has held that “[a] factual basis is an essential part of the constitutionally

valid and enforceable decision to plead guilty.” Jenkins v. State, 202 So. 3d 220, 222 (¶8)

(Miss. Ct. App. 2016) (citing Walton v. State, 165 So. 3d 516, 528 (¶46) (Miss. Ct. App.

2015)). “There are many ways to establish a factual basis, including ‘a statement of the

prosecutor, the testimony of live witnesses, and prior proceedings, as well as an actual

admission by the defendant.’” Id. (quoting Williams v. State, 110 So. 3d 840, 843 (¶17)

(Miss. Ct. App. 2013)). “An indictment can also ‘be used as the sole source of the factual

basis for a guilty plea’ if sufficiently specific.” Zales v. State, 194 So. 3d 182, 186 (¶11)

(Miss. Ct. App. 2015) (quoting Borden, 122 So. 3d at 823 (¶18)).

¶10. In the context of an Alford plea, this Court has further recognized, “Though an

admission of guilt is not essential for a valid guilty plea, there must be a factual basis for the

plea.” Britton v. State, 130 So. 3d 90, 93 (¶6) (Miss. Ct. App. 2013) (citing Reynolds v.

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State, 521 So. 2d 914, 916 (Miss. 1988)). We find that the following statement by the

prosecutor at the plea hearing established an adequate factual basis for the plea in this

instance:

[T]he State would prove beyond a reasonable doubt that Christopher Franks
and others, each acting in concert one with the other, on or about or between
December 24th and December 26th in Washington County, Mississippi, did
unlawfully, willfully, and feloniously and without authority of law and when
the act was done and commission of the act imminently dangerous to others
and evincing a depraved heart regardless of human life, although without any
premeditation, designed to affect the death, kill one Thomas McIntosh, a
human being, by knowingly and willfully injecting the said Thomas McIntosh
with a lethal substance that resulted in his death against the peace and dignity
of the State of Mississippi.

As the State notes, this statement “mirrors the charge against [Franks] as set forth in the

indictment, the only omission being the specific facts surrounding the robbery[.]” And

although Franks initially commented that he had a disagreement with the State’s recitation

of facts, as noted above he immediately recanted that comment, stating, “No, sir, I don’t have

any disagreement.” Therefore, we find no merit to Franks’s claim the State failed to establish

a factual basis for his guilty plea.

III. Whether the circuit court erred in finding that Franks failed to
provide any newly discovered evidence warranting an evidentiary
hearing.

¶11. Mississippi Code Annotated section 99-39-5(1)(e) (Rev. 2015) provides that a

petitioner may seek relief through a PCR motion when “there exists evidence of material

facts, not previously presented and heard, that requires vacation of the conviction or sentence

in the interest of justice[.]” In his PCR motion, Franks argued that Ponder’s letter should

constitute newly discovered evidence entitling him to an evidentiary hearing. The court

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rejected Franks’s claim, finding that the letter did “not meet the requirements of newly

discovered evidence,” as it could “have been discovered before the trial by the exercise of

due diligence . . . [, and Franks] clearly knew about it prior to the time he pled guilty.”4

¶12. This Court has generally held that recanted testimony “is an ‘adequate ground’ for

granting an evidentiary hearing[, . . . as s]uch a hearing allows the judge to ‘better evaluate

the testimony of the recanting witness’ and resolve credibility issues.” Graves v. State, 187

So. 3d 173, 176 (¶13) (Miss. Ct. App. 2015) (quoting Sharp v. State, 152 So. 3d 1212, 1214

(¶10) (Miss. Ct. App. 2014)). Here, except for a nonspecific claim that she had given a

“false statement,” we find it questionable whether Ponder’s letter constitutes recanted

testimony warranting an evidentiary hearing.5 Franks entered a guilty plea; so the record

contains no former testimony by Ponder, either at her plea hearing or his. Nor does the

record contain her alleged “false statement” to law enforcement. Franks also admitted in his

PCR motion that he did not know “specifically what promises were made to Ms. Trudy

4
We find it unclear from the record whether Franks “clearly knew” about the
allegations of false statements and coercion in Ponder’s letter before pleading guilty.
Franks’s attorney filed a motion for continuance on January 18, 2018, noting “that one of
the Co-Defendants unexpectedly ple[d] guilty and changed her testimony on the events
related to trial” and requesting time “to evaluate . . . how same impacts his defenses in this
matter.” Nevertheless, based on our findings, to the extent that the court’s ruling in this
regard is error, we find it harmless.
5
Ponder’s letter also challenged the sufficiency of the evidence against her and
Franks, asserting that video footage that night “was never pulled, . . . lie detectors were not
done, and DNA tests weren’t done on [the victim’s] clothing. And I’m sure there’s a lot
more that wasn’t done.” These comments go to Ponder’s credibility and motive for reaching
out to Franks’s attorney after entering her guilty plea. See Esco v. State, 102 So. 3d 1209,
1214 (¶13) (Miss. Ct. App. 2012) (noting that generally, “recanted testimony is ‘exceedingly
unreliable, and is regarded with suspicion’”) (quoting Bradley v. State, 214 So. 2d 815, 817
(Miss. 1968)).

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Ponder.” Therefore, because Ponder’s letter did not contain “material facts . . . requir[ing]

vacation of the conviction or sentence in the interest of justice,” we find no error in the

circuit court’s determination that the letter did not warrant an evidentiary hearing.

¶13. The circuit court also determined that Franks did not “include any affidavit with his

PCR motion, and he has failed to show any good cause why an affidavit could not be

obtained.” Mississippi Code Annotated section 99-39-9(1)(e) (Rev. 2015) states that a PCR

motion shall contain the following:

A specific statement of the facts which are not within the petitioner’s personal
knowledge. The motion shall state how or by whom said facts will be proven.
Affidavits of the witnesses who will testify and copies of documents or records
that will be offered shall be attached to the motion. The affidavits of other
persons and the copies of documents and records may be excused upon a
showing, which shall be specifically detailed in the motion, of good cause why
they cannot be obtained. This showing shall state what the petitioner has done
to attempt to obtain the affidavits, records and documents, the production of
which he requests the court to excuse.

Thus, “[t]he movant must prove, through affidavits or otherwise, the potential existence of

such facts that, if proven at the hearing, would entitle him to relief.” Magee v. State, 270 So.

3d 225, 229 (¶14) (Miss. Ct. App. 2018) (quoting Whatley v. State, 123 So. 3d 461, 471 (¶33)

(Miss. Ct. App. 2013)).

¶14. Franks’s PCR motion contained only Ponder’s unsworn, handwritten letter.6 See

Jefferson v. State, 302 So. 3d 694, 699 (¶15) (Miss. Ct. App. 2020) (recognizing the

Mississippi Supreme Court’s holding “that ‘unsworn statements[,]’ which have not been

‘notarized as made before any official[,]’ failed to provide sufficient evidence to support a

6
Franks’s brief before this Court includes a purported “affidavit” from Ponder, which
is neither signed nor notarized.

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movant’s allegations in his PCR motion”) (quoting Wilcher v. State, 863 So. 2d 719, 744

(¶¶78, 80) (Miss. 2003)). We do not agree, however, with the court’s determination that

Franks “failed to show any good cause why an affidavit could not be obtained.” Franks

expressly stated in his motion that he was worried about jeopardizing the “pro-se proceeding”

if he contacted Ponder directly, which could be a valid reason, as such an action might have

been construed as intimidating a witness/co-defendant. Our disagreement with the court’s

finding on this particular issue notwithstanding, for the reasons stated above and Franks’s

failure to set forth any facts entitling him to relief, we find no clear error in the circuit court’s

denial of Franks’s PCR motion and affirm.

¶15. AFFIRMED.

CARLTON, P.J., GREENLEE, WESTBROOKS, LAWRENCE AND SMITH,
JJ., CONCUR. WILSON, P.J., McDONALD, McCARTY AND EMFINGER, JJ.,
CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION.

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