Netherland v. State

380 So.3d 333

John NETHERLAND, Appellant

v.STATE of Mississippi, Appellee

NO. 2022-CP-01236-COA

Court of Appeals of Mississippi.

02/13/2024

NESHOBA COUNTY CIRCUIT COURT, HON. MARK SHELDON DUNCAN, JUDGE

ATTORNEY FOR APPELLANT: JOHN NETHERLAND (Pro Se)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ASHLEY LAUREN SULSER

BEFORE CARLTON, P.J., McDONALD AND EMFINGER, JJ.

McDONALD, J., FOR THE COURT:

¶1. John Netherland appeals the Neshoba County Circuit Court’s denial of relief and summary dismissal of his motion for post-conviction relief (PCR), in which Netherland challenged the voluntariness of his guilty plea to the charge of the sale of methamphetamine, Netherland argues, among other things, that the evidence against him was obtained in violation of his constitutional rights (i.e., through an unreasonable search and seizure), that his indictment as a habitual offender was defective, and that he received ineffective assistance of counsel. After considering Netherlands arguments, as well as those of the State in response, we affirm the circuit court’s order denying relief and dismissing Netherlands PCR motion.

Facts

¶2. On February 24, 2021, Netherland was indicted by a Neshoba County grand jury and charged as follows:

John Edward Netherland … on or about May 2, 2010, did wilfully, unlawfully, feloniously and knowingly sell and deliver to MBN confidential informant #104-2010, a Schedule II controlled substance, namely Methamphetamine, in the amount of less than two (2) grams, in Neshoba County, Mississippi, contrary to the form of the statute in such eases made and provided and against the peace and dignity of the State of Mississippi.

The indictment further charged Netherland as a second-time drug offender under Mississippi Code Annotated section 41-29-147 (Rev. 2018) because Netherland had been previously convicted of the felony crime of the sale of methamphetamine on March 14, 2011, for which he was sentenced to serve ten years in the custody of the Mississippi Department of Corrections. In addition, because he was also convicted in federal court on January 5, 2001, for the felony crime of possession with intent to distribute methamphetamine and sentenced to a term of thirty-two months in the custody of the MDOC, Netherland was charged as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2020).

¶3. On March 4, 2021, Netherland waived the reading of the indictment and pleaded not guilty to the charges. He was appointed felony indigent counsel, Wade White, to represent him, and trial was set for the June 2021 term. Between March and June 22, 2021, Netherland’s counsel changed, and Jeffrey Chalmers undertook his representation.¹

¶4. On the day of the trial, June 22, 2021, with Chalmers at his side, Netherland changed his plea and pleaded guilty to the charges. Netherland was placed under oath and questioned by the court concerning his petition to plead guilty.

¶5. During that questioning, Netherland said he had reviewed the petition with his attorney, that it had been explained to him, and that he understood it. Netherland confirmed that he was sixty-five years old and had a GED and some college education. He said he was not under the influ- ence of any drugs and did not take any medication. The court confirmed that Netherland was pleading guilty not only to the sale-of-methamphetamine charge, but also to being a second-time drug offender and habitual offender. The court reviewed with Netherland the consequences of such pleas, i.e., that he could receive double the punishment as a second-time drug offender and that he would have to serve all his sentence. Netherland agreed that he understood. Netherland confirmed that he was freely and voluntarily pleading guilty, that no one had promised anything to him or threatened him, and that it was his decision to plead, not his attorney’s decision. Netherland stated that he was satisfied with his attorney, that his attorney had done a good job, and that he had no complaints about his attorney’s performance.

¶6. The circuit court reviewed Netherland’s constitutional rights with him to make sure Netherland understood what he was waiving, such as his right to a trial by jury, his right to confront and cross-examine witnesses against him, and his right to call his own witnesses and testify himself or remain silent. Netherland voiced understanding that all twelve jurors had to agree on a verdict and that if just one person voted not guilty, he could not be found guilty. Netherland said, "I figured that’d be a hung jury." Netherland said he understood he was waiving his right to appeal any guilty verdict.

¶7. The circuit court read the facts of his crime from the indictment, i.e., that Netherland had allegedly sold methamphetamine to an informant for the Mississippi Bureau of Narcotics. The court asked Netherland if he was guilty of that crime, to which Netherland replied, "Yes, sir." Netherland also confirmed his prior charges and convictions. The State then stated that part of its proof against

Netherland was an audio and video recording of the informant’s purchase of the methamphetamine from Netherland. The substance the informant purchased was sent to the Mississippi Crime Laboratory, where it was tested and confirmed to be methamphetamine. The court confirmed with Netherland that these things were true.

¶8. The circuit court accepted Netherland’s plea as freely and voluntarily given and sentenced him as a second-time drug offender and a habitual offender to a term of twelve years with four years suspended and eight years to serve in the custody of the MDOC and to pay a fine, restitution, and court costs. Upon release, Netherland would be placed on four years of post-release supervision.

¶9. On March 14, 2022, Netherland, pro se, filed a PCR motion in the Neshoba County Circuit Court with a twenty-one-point argument. Netherland claimed ineffective assistance of counsel, alleging that his lawyer failed to investigate the case, file any motions, make any objections, or call any witnesses, and he was charging Netherland $7,000 for representation. Netherland also alleged that his Fourth Amendment privacy rights were violated when the informant’s drug purchase was videotaped without a warrant. Further, he contended that his Fifth Amendment rights were violated when he was allowed to plead guilty when he should never have been charged because the evidence against him was illegally obtained. Netherland also contended that his Fourteenth Amendment due process rights were violated because of "prosecutorial misconduct in not protecting his constitutional rights." Finally, he alleged that his indictment was faulty because it did not conclude with the words "against the peace and dignity of the State" as required by the Mississippi Constitution.

¶10. Concerning his claim that his court-appointed attorney demanded a fee, Netherland said that his sister paid his attorney Chalmers $500 and that Chalmers repeatedly asked when the balance of the account would be paid. However, Netherland stated that because Chalmers was appointed by the court, no payment was owed and that Chalmers was extorting money from his family. Netherland also stated that Chalmers told him that with an additional $7,000 payment, he could get Netherland’s case referred to drug court. Netherland filed an affidavit from his sister, Melody Winstead, who said that she gave attorney Jeffrey Chalmers $500 "to help pay his fees for representing Mr. Netherland on the case before you now." A receipt for that amount, signed by Chalmers, was attached and noted that the total amount of the account was $7,500 with a remaining balance of $6,500. Netherland also attached an affidavit from his son, Levi Netherland, who stated that he went to his father’s attorney’s office to pick up the files pertaining to his father’s case. When he did so, the attorney asked him when the balance of his fee would be paid. Levi said the attorney had asked about this on several occasions.

¶11. Netherland also attached to his PCR motion documents that he said he obtained after pleading guilty.² Among them was a May 2, 2019 statement of the confidential informant #104-2019 concerning Netherland’s drug sale to him. The informant stated that he met with MBN (Mississippi Bureau of Narcotics) agents who searched him and his vehicle for contraband. Nothing was found. The agents then gave the informant $100, and the informant went to Netherland’s home. The informant asked Netherland for some methamphetamine. Netherland gave him a bag of meth, and the informant paid Netherland $50. The informant went directly to a pre-designated post-buy location and gave Agent Ogletree the meth and the remaining $50. Ogletree searched the informant’s vehicle again and found nothing else. Ogletreee drafted the statement, and the informant initialed it.

¶12. Netherland also attached law enforcement’s report of the informant’s buy, which included that the informant wore surveillance equipment to record the sale. Also included was Agent Ogletree’s report of his interrogation of Netherland following his arrest. In that report, Ogletree said that Netherland admitted that he was back using methamphetamines and that he may have given someone some meth, but he did not remember selling anyone meth.

[1, 2] ¶13. The State did not respond to Netherland’s motion at the trial level. The circuit court denied relief and summarily dismissed Netherland’s PCR motion in a detailed opinion filed on October 19, 2022. On November 21, 2022, Netherland appealed, arguing that his guilty plea should be vacated because his constitutional rights were violated by the use of illegal evidence obtained by an unreasonable search and seizure, the denial or his constitutional right to effective assistance of counsel, and his allegedly defective indictment.³

Standard of Review

[3]¶4. A circuit court may summarily dismiss a PCR motion "[i]f it plainly appears from the face of...