Colenberg v. State

361 So.3d 692

Ikeheem R. COLENBERG a/k/a Ikeheem Ralpheal Colenberg a/k/a Ikeheem Colenberg, Appellant v. STATE of Mississippi, Appellee

NO. 2021-CA-00673-COA

Court of Appeals of Mississippi.

December 13, 2022

Rehearing Denied May 23, 2023

ATTORNEYS FOR APPELLANT: NOAH M. DRAKE, Vicksburg, OTTOWA E. CARTER JR.

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE

EN BANC.

WESTBROOKS, J., FOR THE COURT:

¶1. Ikeheem Colenberg appeals the circuit court's denial of his motion for post-conviction collateral relief (PCR). The circuit court ruled that Colenberg did not establish by a preponderance of the evidence that there was not a sufficient factual basis for his guilty plea or that his guilty plea was involuntary. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On February 12, 2019, Colenberg was indicted on four counts: (1) first-degree murder of Latasha Collins; (2) attempted murder of Rasheen Carter; (3) shooting into an automobile; and (4) drive-by shooting.

¶3. Colenberg was arraigned in March 2019 and initially pled not guilty. On September 18, 2019, Colenberg changed his plea and pled guilty to second-degree murder and drive-by shooting. The circuit court held a hearing to ensure that Colenberg pled guilty knowingly, intelligently, and voluntarily. The circuit judge asked Colenberg a series of questions to which Colenberg answered in the affirmative, including if he had read and understood his plea petition and if his attorney had explained everything to him. The circuit judge also asked about his attorney's representation. Colenberg confirmed that he had been properly advised and that his attorney had not promised him anything or threatened him. Then, the circuit judge asked the State what facts it would use to prove the charges against Colenberg. For the charge of second-degree murder, the State merely recited the elements of second-degree murder. For the charge of drive-by shooting, the State again recited the elements of the crime and stated that it would prove that Colenberg was in a vehicle when he engaged in the shooting. Colenberg also stated he understood that because he pled guilty, "the State [was] not required to prove anything."

¶4. Afterward, Colenberg admitted that he had committed the offenses pled. The State recommended that Colenberg be sentenced to thirty years in custody for second-degree murder, with twenty years to serve and ten years suspended and on post-release supervision, and thirty years in custody for drive-by shooting, with twenty years to serve and ten years on post-release supervision, with both sentences set to run concurrently. Colenberg asserted that he understood the sentencing recommendation. The circuit judge repeatedly asked Colenberg if he had committed the charged crimes and understood that he was pleading guilty, and each time, Colenberg stated that he understood and was guilty. Finding that the guilty plea was entered knowingly, intelligently, and voluntarily, the circuit court sentenced Colenberg as the State had recommended. The same day, Colenberg signed, initialed, and entered his guilty plea.

¶5. On December 11, 2020, Colenberg filed his PCR motion alleging that he received ineffective assistance of counsel, that his plea was involuntary based on this ineffective assistance, and that there was no factual basis to support his plea. Colenberg attached to his PCR motion affidavits from himself, his father, and his sister, all attesting that Attorney Edward Blackmon misinformed him about his eligibility to receive earned time and trusty time.

¶6. On February 8, 2021, the circuit court held an evidentiary hearing on the PCR motion. At the hearing, Colenberg's father and sister testified, but Colenberg did not. Like their affidavits, Colenberg's family testified that Colenberg had received incorrect advice. In contrast, Blackmon testified that as a matter of "good practice" he does not talk to clients about eligibility for earned time or trusty time because the Mississippi Legislature may change those laws at any given time. Blackmon's co-counsel, Bradford Blackmon (Bradford), also denied giving Colenberg erroneous advice on the same matter. After review, the circuit court denied Colenberg's PCR motion. Colenberg moved for reconsideration, but the circuit court denied his motion, as well. Colenberg appeals.

DISCUSSION

¶7. Colenberg argues on appeal that the circuit court's denial of his PCR motion was clearly erroneous because (1) the State provided no factual basis to support his guilty plea, and (2) Blackmon misinformed him regarding his eligibility to receive earned time and trusty time, constituting ineffective assistance of counsel and making his plea involuntary.

¶8. "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; however, we review the circuit court's legal conclusions under a de novo standard of review." Magee v. State , 340 So. 3d 297, 300 (¶11) (Miss. 2022). "The burden of proof ... is on the petitioner to show ‘by a preponderance of the evidence’ that he is entitled to relief." Doss v. State , 19 So. 3d 690, 694 (¶5) (Miss. 2009) (quoting Miss. Code Ann. § 99-39-23(7) (Rev. 2007)); accord Miss. Code Ann. § 99-39-23 (Rev. 2015).

I. Factual Basis for Plea

¶9. "Before the trial court may accept a plea of guilty, the court must determine ... that there is a factual basis for the plea." MRCrP 15.3(c). This means that before a trial court may accept a plea, it must "have before it ... substantial evidence that the accused did commit the legally defined offense to which he is offering the plea. What facts must be shown are a function of the definition of the crime and its assorted elements." Corley v. State , 585 So. 2d 765, 767 (Miss. 1991). However, the requisite factual showing need "not flesh out the details which might be brought forth at trial. Rules of evidence may be relaxed at plea hearings. Fair inference favorable to guilt may facilitate the finding." Id. "In the end there must be enough that the court may say with confidence the prosecution could prove the accused guilty of the crime charged, that the defendant's conduct was within the ambit of that defined as criminal." Id. (internal quotation marks omitted).

¶10. "Just as there is more than one way to skin the proverbial cat, there are numerous ways to establish a factual basis for a guilty plea." Williams v. State , 110 So. 3d 840, 843 (¶17) (Miss. Ct. App. 2013). "A factual basis for a plea may be established by the admission of the defendant, but the admission must contain factual statements constituting a crime or be accompanied by independent evidence of guilt. ... [A] factual basis is not established by the mere fact that a defendant enters a plea of guilty." Hannah v. State , 943 So. 2d 20, 26-27 (¶16) (Miss. 2006) (citation omitted). A factual basis may also be established "by a statement of the prosecutor, the testimony of live witnesses, and prior proceedings." Williams , 110 So. 3d at 843 (¶17) (quoting Turner v. State , 864 So. 2d 288, 292 (¶17) (Miss. Ct. App. 2003) ). "And if sufficiently specific, an indictment or information can be used as the sole source of the factual basis for a guilty plea." Id. (internal quotation marks omitted). However, this Court has held that "the indictment must be read into the record at the plea hearing" before it can be used to establish the factual basis for a plea. Venezia v. State , 203 So. 3d 1, 3 (¶7) (Miss. Ct. App. 2016) ; accord Barton v. State , 341 So. 3d 109, 114 (¶8) (Miss. Ct. App. 2020), cert. denied , 299 So. 3d 796 (Miss. 2020). "When determining whether a sufficient factual basis existed at the trial-court level, we review the entire record." Crawford v. State , 287 So. 3d 314, 317 (¶6) (Miss. Ct. App. 2019).

¶11. In the present case, Counts 1 and 4 of the indictment alleged that on or about February 10, 2018, Colenberg

did wilfully, unlawfully, feloniously, with deliberate design to effect the death of a human being other than the deceased Latasha Collins and without the authority of law did kill and murder one Latasha Collins, a human being, by shooting her with a gun, contrary to and in violation of Section 97-3-19(1)(a) of the Mississippi Code ...;

....

and ... did wilfully, unlawfully, feloniously, purposely and knowingly attempt to cause serious bodily injury to others and caused such injury by discharging ... a gun at the ... vehicle occupied by Latasha Collins and Michael Washington at a time when ... Colenberg was in [another] vehicle ... contrary to and in violation of Section 97-3-109 of the Mississippi Code ....

As noted above, under Count 1, Colenberg subsequently pled guilty to the lesser-included offense of second-degree murder rather than the indicted offense of first-degree murder. The indictment was not read or even mentioned during Colenberg's plea hearing. Accordingly, the indictment cannot provide a factual basis for his plea. Venezia , 203 So. 3d at 3 (¶7) ; Barton , 341 So. 3d at 114 (¶8). ¹

¶12. Seven months after he was indicted, Colenberg entered into a plea agreement and filed a petition to plead guilty. It is clear that there was some confusion in completing Colenberg's plea petition. On the first page of the petition, one of Colenberg's attorneys, Bradford, wrote that Colenberg was pleading guilty to second-degree murder (Count 1) and "shooting into a motor vehicle" (Count 3). However, someone later struck through "shooting into a motor vehicle" and wrote in "Drive by" (Count 4), ² and Colenberg initialed the change to the petition. During Colenberg's plea hearing, Colenberg and Blackmon confirmed that he was pleading guilty to Counts 1 and 4 of the indictment, not Count 3.

¶13. Although the error was corrected on the first page of the plea petition, related errors were not corrected in subsequent sections of the petition. On page 5, the petition...