Ulmer v. State

292 So.3d 611

Lonnie ULMER a/k/a Lonnie E. Ulmer Jr. Appellant

v.STATE of Mississippi Appellee

NO. 2018-CA-00499-COA

Court of Appeals of Mississippi.

March 17, 2020

ATTORNEYS FOR APPELLANT: THOMAS M. FORTNER, Jackson, VALERIE MOSS ANDREWS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE, Jackson

BEFORE J. WILSON, P.J., LAWRENCE AND C. WILSON, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. Lonnie Ulmer pled guilty to second-degree murder in 2014.¹ He was sentenced to a term of forty years in the custody of the Mississippi Department of Corrections (MDOC), with twenty years to serve, the remainder suspended, and five years of post-release supervision. Ulmer subsequently filed a motion for post-conviction relief (PCR) and raised three issues: (1) his plea was not knowingly, intelligently, and voluntarily made; (2) he received ineffective assistance of counsel; and (3) there was no factual basis for his plea to second-degree murder.

¶2. Following an evidentiary hearing, the circuit court denied Ulmer’s motion. Ulmer appealed. After review, we find Ulmer’s plea was not knowingly, intelligently, and voluntarily made as result of the erroneous advice given to him by his trial counsel. Finding this issue dispositive, we decline to address Ulmer’s remaining issues. Accordingly, we reverse the denial of post-conviction relief, vacate Ulmer’s guilty plea and remand this case to the Forrest County Circuit Court for further proceedings.

FACTS

¶3. Before Ulmer pled guilty in 2014 to second-degree murder, his attorney told him he would be eligible for "trusty-earned time," which included thirty days’ credit for every thirty days served. In other words, Ulmer was under the impression that he would only have to serve half of whatever sentence he received when he pled guilty to second-degree murder. That was not the case. After Ulmer was incarcerated, he learned that the crime of second-degree murder was ineligible for trusty-earned time.² Ulmer filed his PCR motion on January 6, 2017, and claimed that his plea was involuntary. Specifically, he argued that he relied on erroneous advice from counsel.

¶4. Ulmer attached an affidavit to his PCR motion from his trial attorney, Candance Rickman. Rickman’s affidavit and evidentiary hearing testimony indicates that she was appointed to represent Ulmer in 2014. In 2013, the Mississippi Legislature denominated the crime of second-degree murder in Mississippi Code Annotated section 97-3-19(1)(b) (Rev. 2006); 2013 Miss. Laws ch. 555, § 1 (S.B. 2377); see also 97-3-19(1)(b) (Supp. 2019). The district attorney informed Rickman that the State was willing to reduce Ulmer’s charge from deliberate-design murder, which carried a sentence of life imprisonment, Mississippi Code Annotated §§ 97-3-19(1)(a) & -21(1) (Supp. 2013), to second-degree murder, which carried a potential sentence of twenty to forty years in the MDOC’s custody. Miss. Code Ann. §§ 97-3-19(1)(b) & -21(2) (Supp. 2013). Rickman stated that she and "other public defenders throughout the state believed that a sentence for second-degree murder would be eligible for trusty-earned time." Mississippi Code Annotated section 47-5-138.1 (Supp. 2014) permitted trusty-earned time, allowing certain offenders to received credits of thirty days off their sentences for every thirty days served. In her affidavit and sworn testimony, Rickman testified that she told Ulmer he would be eligible for trusty-earned time. Notably, Rickman stated, "[B]ased on that advice, I believed Lonnie Ulmer pled guilty to second-degree murder. I do not believe that he would have pled guilty if he had been advised that the twenty[-]year sentence would have to be served day for day."

¶5. Ulmer also submitted a sworn statement of specific facts within his personal knowledge in accordance with Mississippi Code Annotated section 99-39-9(1)(d) (Supp. 2009). Ulmer stated that based on Rickman’s advice, he thought he was eligible for trusty-earned time when he pled guilty to second-degree murder. He also stated that because he had already served four years in Forrest County jail, he thought he would only have to serve six more years if he received the sentence of twenty years recommended by the State and if he received credit for time served. Finally, Ulmer stated, "I pled guilty upon the advice of my attorney [ ] that I would be eligible for trusty-earned time. If my attorney had correctly advised me that I was not eligible for trusty-earned time, I would not have pled guilty."

¶6. After reviewing Ulmer’s PCR motion, the circuit court held an evidentiary hearing. Rickman testified at the hearing consistently with her affidavit. Again, Rickman admitted that she had erroneously informed Ulmer that he was eligible for trusty-earned time. Rickman also testified that she did not think Ulmer would have pled guilty if she "had told him correctly that he would have to serve day for day." The circuit court produced two written orders denying the relief requested in the PCR motion. From that denial, Ulmer perfected his appeal to this Court.

STANDARD OF REVIEW

¶7. We review the denial of post-conviction relief after an evidentiary hearing under a clearly erroneous standard. Johns v. State , 926 So. 2d 188, 194 (¶29) (Miss. 2006). "A finding of fact is ‘clearly erroneous’ when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been made." Id . "This Court must examine the entire record and accept that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s findings of fact." Id . (quoting Mullins v. Ratcliff , 515 So. 2d 1183, 1189 (Miss. 1987) ). "[T]he trial judge, sitting in a bench trial as the trier of fact, has sole authority for determining credibility of the witnesses." Id .

ANALYSIS

¶8. Ulmer argues that his plea was not knowing, intelligent, and voluntary because he was affirmatively misinformed by counsel that he would receive trusty-earned time if he pled guilty to the reduced charge of second-degree murder, and he pled guilty in reliance on that erroneous information. As a result, Ulmer also argues that his counsel’s assistance was ineffective.

¶9. A plea is involuntary if a defendant is affirmatively misinformed regarding the possibility of parole and pleads guilty in reliance on that information. See Fairley v. State , 834 So. 2d 704, 706 (¶5) (Miss. 2003) ; see also Washington v. State , 620 So. 2d 966, 967-70 (Miss. 1993). When a defendant claims that he received ineffective assistance of counsel "[i]n the context of a guilty plea, the defendant must show that his counsel’s errors proximately resulted in the guilty plea and, but for counsel’s error, the defendant would not have engaged in the guilty plea." Magee v. State , 270 So. 3d 225, 229 (¶16) (Miss. Ct. App. 2018) (internal quotation marks omitted). "Our supreme court has held that a defendant who alleges that his plea is not voluntary because of his reliance on his attorney’s faulty advice regarding the possibility of parole, is entitled to an evidentiary hearing on the question of voluntariness." Stewart v. State , 845 So. 2d 744, 747 (¶10) (Miss. Ct. App. 2003) (citing Washington v. State , 620 So. 2d at 967 ).

¶10. Here, the circuit court held an evidentiary hearing and denied the relief requested by Ulmer. In fact, the court issued two orders—the order denying the PCR motion and the order clarifying the order denying the PCR motion. The first order was filed on March 21, 2018, and the second (clarifying) order was filed on February 7, 2019. In both orders, the circuit court stated that Ulmer’s claim (that he pled guilty in reliance on advice from his attorney that he would receive trusty-earned time) was "belied by the transcript of the plea hearing and his petition to plead guilty to second-degree murder." (Emphasis added). The circuit court also referenced the fact that Ulmer was informed of his constitutional rights, his minimum and maximum sentences, the nature of the charge, and the consequences of his plea. In the order clarifying judgment, the circuit court did not add any additional facts or analysis to Ulmer’s first issue that his plea was not knowing, intelligent, and voluntary.³

¶11. At the outset, it should be noted that the facts of this case are strikingly similar to Tiller v. State , 440 So. 2d 1001, 1002 (Miss. 1983). In Tiller , the supreme court reviewed a case in which the defendant alleged he had entered a guilty plea in reliance on his attorney’s advice that he would be eligible to earn "good time" toward early release. Id . The supreme court reiterated that "mistaken advice of counsel may in some cases vitiate a guilty plea." Id . at 1006 (citing Baker v. State , 358 So. 2d 401 (Miss. 1978) ). The court further found that at the time Tiller’s plea was entered, "earned time" was being granted for those convicted of armed robbery and that Tiller’s attorney, apparently aware of this, informed his client of such, and Tiller then chose to plead guilty. Id . About seven months later, the MDOC modified its "good time" policy, and Tiller was not eligible for any more good-time credit. Id . at 1003. The court found that Tiller’s guilty plea "was substantially infected by erroneous advice of counsel regarding his eligibility for good time." Id . at 1006. Most importantly, the supreme court reversed and remanded for an evidentiary hearing, finding that "[i]f [Tiller] can prove what he has alleged, Tiller’s plea as a matter of law was involuntary." Id . at 1002. The facts of this case were proven by affidavits and by testimony during the evidentiary hearing.

¶12. Here, after hearing those facts at the evidentiary hearing, the circuit court found that Ulmer’s proof was "belied" by the plea colloquy and the plea petition. During Ulmer’s plea hearing, the...