Love v. State

391 So.3d 1197

Soweto Ronnell LOVE a/k/a Soweto Love, Appellant

v.STATE of Mississippi, Appellee

NO. 2021-CP-01101-COA

Court of Appeals of Mississippi.

07/18/2023

Rehearing Denied November 21, 2023

TATE COUNTY CIRCUIT COURT, HON. GERALD W. CHATHAM SR., JUDGE

ATTORNEY FOR APPELLANT: SOWETO RONNELL LOVE (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAUREN GABRIELLE CANTRELL

EN BANC.

GREENLEE, J., FOR THE COURT:

¶1. Soweto Love appeals from the dismissal of his motion for post-conviction collateral relief (PCR). Finding no revers- ible error, we affirm the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶2. In 2018, Love was indicted for conspiracy to obtain a controlled substance by fraud (Count I); attempt to acquire or obtain possession of a controlled substance by forged prescription (Count II); two counts of acquiring or obtaining a controlled substance by forged prescription (Counts III and IV); and two counts of possession of a false, fraudulent, or forged prescription of a practitioner (Counts V and VI). The indictment was amended to charge Love as a nonviolent habitual offender and as a second or subsequent drug offender.

¶3. In 2019, Love entered a petition to plead guilty to Counts II and III of the indictment. The plea petition stated, "I plead guilty to the charge(s) of Forged Prescription - 2 counts in violation of Miss. Code Ann. § 41-29-144, as set forth in count[s] 2, 3 of the indictment in this cause number." The petition also stated:

My lawyer has informed me as to the maximum and minimum punishment which the law provides for the offense charged in the indictment. The maximum punishment which the [c]ourt may impose for this crime that I am charged with is 5 years imprisonment [on each count] and $1,000.00 fine [on each count]. The minimum punishment is 1 years imprisonment [on each count] and/or $0 fine [on each count]….¹

In the petition, Love acknowledged that he had been previously convicted of "possession with intent" and "possession of [a] controlled substance by fraud." The petition stated:

I understand that if [I] have now been convicted of two (2) or more felonies upon charges separately brought and arising out of separate incidents at different times and have been sentenced to separate terms of one (1) year or more in any state and/or Federal prison institution, that if I am convicted of another felony, then I may be sentenced to the maximum term of imprisonment prescribed for such felony and such sentence shall not be reduced or suspended nor will I be eligible for parole or probation or other earned or good time.

Finally, the petition stated:

I do understand that no one can assure me of parole or early release. Certain crimes make a Defendant ineligible for parole. These include, but are not limited to, sex crimes, armed robbery and defendants who are sentenced as habitual offenders. I have discussed with my attorney whether the crime for which I am charged fits into that category. I understand that this process is governed by the Legislature and the Mississippi Department of Corrections and not by this [c]ourt.

¶4. After a plea hearing, the circuit court accepted Love’s plea and sentenced him as a non-violent habitual offender to serve two consecutive terms of five years in the Mississippi Department of Corrections. The court also ordered Love to pay a $1,000 fine, $200 to the district attorney’s office, $100 to the Mississippi Crime Victim’s Compensation Fund, and all court costs.

¶5. In 2021, Love filed a PCR motion claiming that his guilty plea was not voluntary. Specifically, Love asserted that he was in the restroom when the circuit court found his rights had been waived and his plea voluntarily entered. He argued that there was no factual basis to establish his plea, that he did not waive his rights, and that he was not informed of the minimum and maximum sentences for each charge.

¶6. On August 27, 2021, the circuit court dismissed Love’s PCR motion. While citing to relevant portions of the plea-hearing transcript, the circuit court found that Love was present throughout the plea hearing, the State established a factual basis for Love’s plea, and Love understood that he was waiving his rights and understood the minimum and maximum sentences for each charge.

¶7. On September 27, 2021, Love filed a notice of appeal. In his brief, Love now claims that (1) there was no factual basis for his plea, (2) his plea was involuntary because he was "told that he would not be charged as a habitual [offender]" and that he "would [only be sentenced to] probation," (3) the circuit court erred by not allowing him to withdraw his plea, and (4) he received ineffective assistance of counsel.

STANDARD OF REVIEW

[1] ¶8. "When reviewing a [circuit] court’s denial or dismissal of a PCR motion, we will only disturb the [circuit] court’s decision if the [circuit] court abused its discretion and the decision is clearly erroneous; however, we review the [circuit] court’s legal conclusions under a de novo standard of review." Green v. State, 242 So. 3d 176, 178 (¶5) (Miss. Ct. App. 2017) (citing Hughes v. State, 106 So. 3d 836, 838 (¶4) (Miss. Ct. App. 2012)).

DISCUSSION

I. Factual Basis

[2–5] ¶9. Love claims that no factual basis existed for his plea. "Prior to accepting a defendant’s guilty plea, the circuit court must first decide whether the plea is voluntarily and intelligently made and whether a factual basis exists to support the plea." Taylor v. State, 313 So. 3d 1106, 1111 (¶13) (Miss. Ct. App. 2021) (quoting Tucker v. State, 294 So. 3d 690, 695 (¶9) (Miss. Ct. App. 2020)). "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. Furthermore, "if sufficiently specific, an indictment or information can be used as the sole source of the factual basis for a guilty plea." Id. (quoting Williams v. State, 110 So. 3d 840, 843 (¶17) (Miss. Ct. App. 2013)). "To determine whether a factual basis exists, we consider the entire record." Id.

[6] ¶10. At the plea hearing, the circuit court asked the State for a factual basis for the charges, and the prosecutor responded:

Yes, sir. Your Honor, in CR2018-20GCT, in Count Two, if this matter were to go to trial, the State would be prepared to prove beyond a reasonable doubt and with credible and admissible evidence that between the 26th and the 27th day of October in the year 2017 Soweto Ronnell Love, along with his codefendant Porcha Latoya Knox, did willfully, unlawfully, feloniously, knowingly, and intentionally attempt to acquire, obtain possession of a controlled substance, that substance being approximately 150 dosage units of Oxycodone, 30 milligrams, by misrepresentation, fraud, forgery, deception, or subterfuge by presenting to Lori Chandler, a registered pharmacist at Fred’s Pharmacy in Senatobia, Mississippi, a forged prescription. In Count Three, Your Honor, the State would further be prepared to prove that on or about the 23rd day of September in the year 2017 Soweto Ronnell Love and Porcha Latoya Knox did again willfully, unlawfully, feloniously, knowingly, and intentionally acquire or obtain possession of a controlled substance, that substance being approximately 150 dos-age units of Oxycodone, 30 milligrams, by misrepresentation, fraud, forgery, deception, or subterfuge by presenting to Lori Chandler, a registered pharmacist at Fred’s Pharmacy in Senatobia, Mississippi, a forged prescription.

Additionally, the prosecutor stated:

The facts would show specifically, Your Honor, that the pharmacist at Fred’s Pharmacy in Senatobia, Mississippi, Ms. Lori Chandler, contacted Senatobia Police Department to let them know that she had been tendered what she believed to be a forged or fraudulent prescription for four Oxycodone. Prior to calling the police department she had already contacted the medical personnel to determine whether or not it had, in fact, been a legitimate prescription written that had been turned over to her for filling. She gave law enforcement officers information that it was, in fact, determined that it was not a legitimate prescription and that the individual who had called it in was coming back in to pick it up. On the date that Soweto Ronnell Love and Porcha Latoya Knox returned to Fred’s Pharmacy in Senatobia, Mississippi, to pick up the prescription that had been left there to be filled they were, in fact, taken into custody by Senatobia Police Department narcotics officers. During the course of the investigation they found flash drives that contained other means of printing out forged prescriptions. They found prescription pad papers. They found other prescriptions with medical information for -- to be presented for other fraudulent prescriptions to be filled. During the course of their investigation they were also able to interview Mr. Soweto Ronnell Love and he gave a full and voluntary statement regarding what he knew as to the presentation of these bogus prescriptions and the substance that was going to be collected based on those prescriptions.

These events all occurred in Senatobia, Mississippi, which is in Tate County and therefore within the jurisdiction of this court.

¶11. Afterward, Love stated that he recalled the facts and that he did not have any disagreements with the prosecutor’s factual basis. Upon reviewing the record, we find that a factual basis was established to support Love’s plea, and the circuit court did not err by dismissing Love’s PCR motion on this claim.

II. Involuntary Plea

[7–9] ¶12. Next, Love claims that his plea was not voluntarily, knowingly, or intelligently entered. "A guilty plea is binding if entered voluntarily, knowingly, and intelligently." Willis v. State, 321 So. 3d 584, 587 (¶7) (Miss. Ct. App. 2021) (quoting Hayes v. State, 301 So. 3d 45, 49 (¶16) (Miss. Ct. App. 2019)). "For a guilty plea to be voluntary, knowing, and...