Reginald Alexander v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-CA-00397-COA

REGINALD ALEXANDER APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 04/12/2022

TRIAL JUDGE: HON. CELESTE EMBREY WILSON

COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: LISA MISHUNE ROSS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: SCOTT STUART

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

DISPOSITION: AFFIRMED - 09/26/2023

MOTION FOR REHEARING FILED:

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

McDONALD, J., FOR THE COURT:

¶1. Reginald Alexander appeals the DeSoto County Circuit Court’s denial of his motion

for post-conviction relief, which Alexander filed to set aside his plea of guilty to two counts

of sexual battery. He claims that he pleaded guilty because his counsel was ineffective and

misrepresented to Alexander the sentence that he would receive. After conducting an

evidentiary hearing, the circuit court denied Alexander’s motion. Considering the arguments

of the parties and the relevant caselaw, we affirm the circuit court’s order.

Facts

The Indictment

¶2. On December 16, 2016, Alexander was indicted on two counts of sexual battery in

violation of Mississippi Code Annotated section 97-3-95(1)(c) (Rev. 2014).1 The indictment

alleged that between May 1, 2015, and August 30, 2015, Alexander had placed his penis in

the mouth of C.D.P., who was a minor between the ages of fourteen and sixteen. At the time,

Alexander, age nineteen, was thirty-six months or more older than C.D.P. Because

Alexander was younger than twenty-one, the maximum penalty he could receive on each

count was five years’ incarceration and a $5,000 fine.2 If convicted of both counts,

Alexander faced a maximum prison term of ten years and a maximum fine of $10,000.3

The Motion to Suppress

1

Section 97-3-95(1) provides:

A person is guilty of sexual battery if he or she engages in sexual penetration

with:

(a) Another person without his or her consent;

(b) A mentally defective, mentally incapacitated or physically helpless

person;

(c) A child at least fourteen (14) but under sixteen (16) years of age, if

the person is thirty-six (36) or more months older than the child; or

(d) A child under the age of fourteen (14) years of age, if the person is

twenty-four (24) or more months older than the child.

2

Section 97-3-101(2)(a) (Rev. 2014) provides:

Every person who shall be convicted of sexual battery under Section

97-3-95(1)(c) who is at least eighteen (18) but under twenty-one (21) years of

age shall be imprisoned for not more than five (5) years in the State

Penitentiary or fined not more than Five Thousand Dollars ($5,000.00), or

both.

3

Apparently Alexander and the victim had sexual intercourse after the victim reached

the age of sixteen, and Alexander was only charged with acts done when the victim was

fourteen or fifteen.

2

¶3. Alexander retained counsel, David Walker, who, on August 21, 2017, filed a motion

to suppress a letter of apology Alexander had written during an interview with the

investigating detective. While the case was pending, the State sent two offers to negotiate

a plea. In the first letter, dated January 16, 2017, the State offered to recommend ten years

to serve followed by ten years of post-release supervision (PRS) (with five years reporting)

for Count 1 and to remand Count 2 to the files. This recommendation exceeded the

maximum sentence that Alexander could receive under the statute (five years) because of his

age. In the second letter, dated February 3, 2017, the State offered five years to serve for

Count 1 and five years of reporting PRS for Count 2. Alexander rejected both offers.

¶4. The circuit court held a hearing on Alexander’s motion to suppress on November 20,

2017. Detective Steve English testified that Alexander voluntarily came to his office to be

interviewed. English read Alexander his Miranda rights.4 Alexander signed a waiver of

those rights and did not ask for an attorney. During the interview, English asked Alexander

if he wanted to write an apology letter to the parents. English told Alexander that if he wrote

the letter, C.D.P.’s parents might not pursue the charges. English testified that he did not

threaten, coerce, or promise Alexander anything and that Alexander freely and voluntarily

wrote the apology letter. In it, Alexander specifically admitted to having oral sex with their

daughter. English also testified that he told Alexander that he could leave the interview at

any time, in which case English would write up the investigation and give it to the District

4

Miranda v. Arizona, 384 U.S. 436 (1966).

3

Attorney to present to the grand jury. Alexander did not testify at the suppression hearing

and his counsel and the State argued the matter to the circuit court. The circuit court listened

to the audiotape of the interview and found that there was no custodial interrogation and no

intimidation. The court denied the motion to suppress.

The Plea Petition

¶5. That same day, Alexander signed a plea petition. According to Alexander, Walker

told him that he could maintain his innocence but still plead guilty because it was in his best

interest to do so. This is known as an Alford plea (under North Carolina v. Alford, 400 U.S.

25 (1970)).5 Indeed, the printed title to Alexander’s plea petition reads “Petition to Enter

Plea of Guilty” followed by the handwritten phrase “(pursuant to NC v. Alford).”

¶6. Alexander signed each page of his plea petition, which was filed on November 20,

2017. The petition reflected that Alexander had completed high school and four semesters

of college, that he was mentally competent, and that he could read and write. He pleaded

guilty to the two counts in the indictment. He averred that he understood his constitutional

rights, including but not limited to the right to a speedy trial, to cross-examine witnesses, to

compel favorable evidence, to be present at all stages of the trial, to testify in his defense, to

have a unanimous jury verdict before being found guilty, and that he was presumed innocent

5

In that case, “after Alford’s plea of guilty was offered and the State’s case was

placed before the judge, Alford denied that he had committed the murder but reaffirmed his

desire to plead guilty to avoid a possible death sentence and to limit the penalty to the

30-year maximum provided for second-degree murder.” Alford, 400 U.S. at 31.

4

if he should plead not guilty. In the petition, Alexander confirmed that no one had made any

“promises or inducements of any kind to me or within my knowledge to anyone else that I

will receive a lighter sentence, probation, early release or any other form of lenience if I

plead ‘guilty.’”

¶7. In the plea petition, Alexander also said that his lawyer had informed him of the

maximum and minimum punishment of the offenses charged, which the petition reflected to

be five years’ imprisonment and $5,000 in fines for each count. The petition contained the

following provision concerning the result of plea negotiations between the parties:

10. (b) As a result of plea bargaining, my attorney and I have reached an

agreement with the District Attorney’s office concerning my offer to plead

guilty to the charge(s) listed in paragraph three. It is my understanding that the

District Attorney will recommend to the Court that I receive a sentence as

follows or see attached plea agreement:

count 1: open plea, Defendant will seek probation; State, 5 years

MDOC[;]

count 2: State agrees to recommend 5 years of post-release supervision

on count 2[.]

However, in the plea petition, Alexander further stated:

I understand that this agreement is not binding on the Court and that if my

guilty plea is accepted by the Court, the Court may impose the same sentence

as if I had pleaded “not guilty” and been found guilty by a jury.

Finally, concerning his attorney’s services, Alexander said that Walker was competent and

“had done all that anyone could do to counsel and assist me, and I am fully satisfied” with

his help.

5

The Plea Hearing

¶8. The circuit court also held the plea hearing on November 20, 2017, and considered

the plea petitions of three defendants at the same time, including Alexander’s. The record

of the hearing reflects questions by the court and the answers of each defendant individually.

The judge confirmed that each defendant had reviewed the petitions, gone over it with their

attorneys, and had no complaints about their attorneys’ representation.

¶9. The court then addressed Alexander individually about the charges against him and

his understanding of the potential sentence he could receive for each. The State proceeded

to set out the proof it would present to support the charges, including the testimony of the

mother of the victim who found messages on her daughter’s phone that indicated the child

and Alexander were having sexual relations. The State would also present testimony from

a child advocacy expert of her interview with the girl and the girl’s admissions of having oral

sex with Alexander. In addition, the State told the court that after being read his rights,

Alexander admitted to having oral sex with the victim and that he wrote an apology letter to

her parents for his actions.

¶10. The circuit court noted that Alexander was entering a plea pursuant to Alford and that

under Alford, Alexander was allowed to plead guilty without actually admitting his guilt.

Alexander confirmed his understanding of this and stated that he wanted to enter such a plea.

Alexander’s attorney told the court that he was satisfied that the proof was sufficient to get

the matter before a jury.

6

¶11. After questioning the other two defendants about their specific charges, the circuit

court returned to group questioning. The court confirmed that none were under the influence

of drugs or alcohol and none had any emotional or mental impairment. The court specifically

noted that it was not bound by any recommendation that the State or the defense attorneys

made, and all three defendants said they understood this. The court confirmed with the three

defendants that no one had made any promises to them about what their sentences would be,

nor had anyone threatened, pressured, or coerced them to plead guilty. The court specifically

addressed Alexander, asking:

Court: Mr. Alexander, are you asking that I accept your plea of guilty

because it is in your best interest?

A: Yes. Ma’am.

The court accepted Alexander’s plea, finding it to have been knowingly and voluntarily

made. Alexander’s case was continued to February 22, 2018, for sentencing.

The Sentencing Hearing

¶12. At the February sentencing hearing, the circuit court confirmed again with Alexander

that his attorney had been available to him and answered all his questions, and that he had

no complaints about Walker’s representation. The victim’s mother testified about the impact

of Alexander’s actions on her daughter and their family. She stated that her daughter had

been an honor student on her way to being accepted into West Point, but now the girl is

frightened and cannot be far from home. C.D.P. had also contemplated suicide and was in

counseling. The State also called Detective English who investigated the case. But he only

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testified that Alexander had been involved in a prior incident when he was in high school

when he allegedly had oral sex with a fourteen-year-old female. But, English said, there was

insufficient evidence of this to obtain an indictment.

¶13. Alexander called his mother, Tonya Clayborne, to testify. She told the court that

Alexander was her only son and that he was working at FedEx while going to school at the

University of Memphis. She said that he helps people and that his professors have told her

that Alexander has been an asset to the school. She testified he had not gotten into any

trouble since this incident and he did not drink or use drugs. She had letters of

recommendation from his superiors at FedEx and from his professors.

¶14. Alexander testified as well, telling the court that he was majoring in psychology while

minoring in music production and that he planned to go to law school. He said that in his

spare time, he prayed, read the Bible, wrote poetry, and visited family. Alexander identified

a letter written to him by the victim in which she professed her love for him. Alexander

testified that the victim initiated contact with him over Instagram. At that time he was a

freshman at Belhaven College in Jackson and he was 200 miles away in a different city from

the victim. He said he specifically told her that he did not want to deal with an underage girl.

But she pressed and they talked on the phone. She admitted she was underage, but she

confided in him about other personal matters and they continued to talk and play video

games. He admitted that what he did was wrong, but then he read the court a letter in which

he said he too felt like a victim because he trusted a girl who was not completely honest with

8

him.

¶15. After both the State and defense counsel argued their positions regarding sentencing,

Alexander again personally addressed the court. After considering the testimony, the circuit

court noted, among other things, Alexander’s knowledge that the victim was underage. The

court sentenced him to serve five years in custody for Count 1 and five years of PRS for

Count 2.

¶16. Alexander’s attorney, Walker, died on June 30, 2018. Alexander took no steps to

challenge the voluntariness of his plea or the effectiveness of his counsel’s representation

prior to Walker’s death.

The Motion for Post-Conviction Relief

¶17. Exactly three years after his sentencing, on February 22, 2021, Alexander filed a

motion for post-conviction relief (PCR) pursuant to Mississippi Code Annotated section 99-

39-5 (Rev. 2015).6 In it, Alexander argued that Walker had inadequately represented him and

6

Section 99-39-5(1)-(2) provide in part:

(1) Any person sentenced by a court of record of the State of Mississippi,

including a person currently incarcerated, civilly committed, on parole or

probation or subject to sex offender registration for the period of the

registration or for the first five (5) years of the registration, whichever is the

shorter period, may file a motion to vacate, set aside or correct the judgment

or sentence, . . . if the person claims:

....

(g) That his plea was made involuntarily;

....

(2) A motion for relief under this article shall be made . . . in case of a guilty

plea, within three (3) years after entry of the judgment of conviction. . . .

9

coerced him into pleading guilty by telling him that he had reached an agreement with the

trial judge and the district attorney to suspend all of Alexander’s sentence if he pleaded

guilty. Alexander argued that his pleas were not knowingly and voluntarily made because

they were predicated on his attorney’s misrepresentations that he would not be required to

do any jail time. Alexander also contended that his attorney’s representation was ineffective

because he failed to argue that Alexander’s sentence was disproportionate when compared

to the sentences of two other defendants who were convicted of similar or more serious

charges and received either suspended sentences or less than five years. Moreover,

Alexander argued, Walker should have sought to have Count 2 dismissed. Alexander signed

and swore to the motion, and attached an affidavit from his mother supporting his allegations.

In her affidavit, Clayborne recounted meetings with Walker in which he assured Alexander

that he had worked out a deal with the State and the court so that Alexander would be

sentenced to probation. She further stated that Walker told Alexander not to tell the court

about the agreement that had been reached.

¶18. The circuit court ordered the State to file a response, which it did on September 23,

2021. It attached Alexander’s plea petition and the transcript of his plea and sentencing

hearings to the response.

Hearing on PCR Motion

¶19. On February 28, 2022, the circuit court conducted an evidentiary hearing on

10

Alexander’s PCR motion.7 Clayborne and Alexander testified and several exhibits were

entered. Clayborne testified that she had retained Walker to represent her son, but she had

difficulties reaching Walker for several months because Walker was ill. Walker told her and

her son that because Alexander was a first-time offender, Walker would try to get him

probation and have the charge reduced to a misdemeanor. Clayborne said that Alexander

always wanted to go to trial and they rejected the plea offers that the State made in two letters

that were entered into evidence. She said that Walker told them he had worked it out with

the District Attorney’s office and with the judge that Alexander would not serve any jail time.

After Alexander was sentenced, she asked Walker what happened to probation, but Walker

only responded that “it was not an option.” That was the first time she and her son had heard

Walker say that. She further testified that her son would have never pleaded guilty if he had

known he would be a two-time convicted felon, one felony away from being a violent

habitual offender. On cross-examination, the State asked Clayborne to review Alexander’s

plea petition, which she admitted she had reviewed previously and in which there was a

reference to the defendant’s recommendation of probation.

¶20. Alexander testified that he wanted to go to trial because he had nothing to gain by

7

Mississippi Code Annotated section 99-39-19(1) (Rev. 2020) provides:

If the motion is not dismissed at a previous stage of the proceeding, the judge,

after the answer is filed and discovery, if any, is completed, shall, upon a

review of the record, determine whether an evidentiary hearing is required. If

it appears that an evidentiary hearing is not required, the judge shall make

such disposition of the motion as justice shall require.

11

taking a plea. He took the plea because Walker told him that he would not serve any time

in prison. Had he known that was not true, he would not have entered a plea. However,

Alexander admitted that he did not speak to Walker about his failure to ask the judge to

consider probation. Alexander said he did not understand what was happening in the

courtroom when he was sentenced, saying he “was going off my attorney’s advice.”

Alexander testified that he was not aware that if he had a complaint about Walker, he could

have told the judge. He said that he did not recall the judge telling him during the sentencing

hearing that she did not have to accept the recommendations concerning what sentence to

impose.

¶21. The State called no witnesses but simply argued against Alexander’s petition pointing

to the contents of the plea petition and the plea and sentencing hearings. After hearing the

arguments, the circuit court stated that Walker did an excellent job in limiting his client’s

exposure. Alexander could have received ten years to serve, but only received five years.

The court also noted that Alexander took responsibility for his actions when he entered an

Alford plea.

¶22. The court took the matter under advisement and issued its written order denying

Alexander’s motion on April 12, 2022. Among other things, in the written order the court

concluded that Alexander’s plea was voluntarily and knowingly made, pointing out that a

plea is voluntary if the court corrects any misinformation given by defense counsel during

the plea colloquy. Moreover, the court cited the plea hearing transcript to support its

12

findings, noting that Alexander’s statements and responses to the court during the plea

hearing are presumed to be valid. The court further found that Alexander had not proven that

Walker’s representation fell below an objective standard of reasonableness, nor had he

shown that but for counsel’s alleged unprofessional errors, the result of Alexander’s case

would have been different. The court noted that Walker had filed a motion to suppress

Alexander’s letter of apology and that he secured Alexander a five-year sentence when

Alexander was facing a potential day-to-day sentence of ten years. Moreover, because

Alexander’s sentence fell within the applicable statutory sentencing limits, there was no

inference of gross disproportionality.

¶23. Alexander appeals from the circuit court’s order and argues that Walker rendered

ineffective assistance of counsel because he misrepresented the sentence that the judge would

impose.8

Standard of Review

¶24. “When reviewing a circuit court’s decision to deny a petition for post conviction relief

8

Although Alexander mentions in the “Statement of the Issues” and “Summary of

the Argument” portions of his brief that he also contends that the trial court erred in finding

that his sentence was not disproportionate, Alexander presents no argument or authority on

that issue. The Mississippi Supreme Court has held that the failure to cite authority for an

argument precludes the appellate court from addressing an issue. Lockhart v. Lockhart, 324

So. 3d 777, 794 (¶59) (Miss. 2021) (citing Hale v. State, 191 So. 3d 719, 724 n.1 (Miss.

2016)); see also Jordan v. State, 918 So. 2d 636, 657 (¶60) (Miss. 2005) (“Jordan makes no

argument under this issue [trial court’s refusal to admit certain evidence], and he cites no

authority. Thus, we decline to address these claims.”(citing Brown v. State, 798 So. 2d 481,

497, 506 (Miss. 2001))). Accordingly, we decline to address Alexander’s claims regarding

sentence disproportionality.

13

this Court will not disturb the circuit court’s factual findings unless they are found to be

clearly erroneous.” Cleveland v. State, 359 So. 3d 669, 671 (¶4) (Miss. Ct. App. 2023)

(citing Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999)). “Where questions of law are

raised the applicable standard of review is de novo.” Id.

Discussion

¶25. Alexander contends that his Sixth Amendment right to effective assistance of counsel

was violated when Walker misrepresented to him that he had negotiated a plea deal for

Alexander to be sentenced to probation in exchange for his Alford guilty plea.

¶26. “To succeed on an ineffective-assistance-of-counsel claim, the defendant must meet

both prongs of the test laid out in Strickland v. Washington, 466 U.S. 668 (1984).” Beasley

v. State, 355 So. 3d 245, 248 (¶6) (Miss. Ct. App. 2022). First, he must show that his

counsel’s performance was deficient, and second, he must show that “but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. The

second prong has also been stated as requiring a showing “that the deficiency prejudiced the

defense of the case.” Harrell v. State, 947 So. 2d 309, 313 (¶10) (Miss. 2007).

To establish prejudice, a defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the trial

would have been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.

Dickerson v. State, 357 So. 3d 1010, 1022 (¶41) (Miss. 2021).

¶27. “Trial counsel is presumed competent, and the burden of proving that counsel’s

performance was deficient and prejudicial falls upon the Appellant.” Branch v. State, 882

14

So. 2d 36, 52 (¶26) (Miss. 2004); see also Luckett v. State, 346 So. 3d 509, 511 (¶6) (Miss.

Ct. App. 2022) (“A presumption exists that the attorney’s conduct was adequate.”). In cases

where a defendant has entered a plea of guilty, and later contends that his plea was entered

because of the alleged ineffective assistance of counsel, “the defendant must demonstrate that

his counsel’s conduct proximately resulted in the guilty plea, and that but for counsel’s

errors, he would not have entered the plea.” Bell v. State, 310 So. 3d 837, 840 (¶7) (Miss.

Ct. App. 2021). The defendant must prove the elements of ineffective assistance of counsel

by a preponderance of the evidence. Vaughn v. State, 85 So. 3d 907, 910 (¶8) (Miss. Ct.

App. 2012); Moreno v. State, 967 So. 2d 701, 703 (¶4) (Miss. Ct. App. 2007).

¶28. Alexander cites two cases in which the defendants alleged they pleaded guilty to

charges based on what their attorneys told them their sentences would be. However, both are

cases where the trial court erred in not granting a hearing on the PCR motion, not in denying

the motion on the merits. In Myers v. State, 583 So. 2d 174, 175 (Miss. 1991), the defendant

filed a PCR motion alleging that his attorney told him that if he entered a plea of guilty to an

aggravated assault charge, the court would sentence him to no more than twelve years, but

if he went to trial, he would likely receive a sentence of twenty-five years. Myers’s mother

confirmed this in her affidavit, adding that her son continuously told the attorney he was not

guilty and wanted to go to trial. Id. Myers’s sister also submitted an affidavit attesting that

Myers’s attorney told him that he would not receive any more than twelve years and to

answer in the affirmative to any question the judge asked. Id. The circuit court summarily

15

dismissed Myers’s motion, id., but the supreme court reversed, finding that Myers’s motion

had “[met] the pleadings requisites of the PCR Act” and that he was “entitled to proceed past

the pleading stage.” Id. at 178. The supreme court noted:

The question whether a plea of guilty was a voluntary and knowing one

necessarily involves issues of fact. Advice received by the defendant from his

attorney and relied upon by him in tendering his plea is a major area of factual

inquiry.

Id. at 177. The Court further noted that “[s]till, nothing said here should be taken to intimate

any view on the merits” of Myers’s claim. Id.

¶29. Alexander also cites Mitchener v. State, 964 So. 2d 1188, 1189 (¶1) (Miss. Ct. App.

2007), where the defendant filed a PCR motion and alleged that he received ineffective

assistance of counsel because his attorney assured him that he would receive a sentence of

time served and probation if he pleaded guilty. Mitchener had been charged with kidnapping

because he held a visitor to his property at gunpoint for several hours. Id. at 1190 (¶3).

Mitchener admitted to holding the individual at gunpoint and after an extensive sentencing

hearing, the court sentenced Mitchener to twenty years. Id. at (¶4). Mitchener filed a PCR

and attached his own affidavit as well as several others. In his PCR affidavit, Mitchener

identified six different times he met with his attorney who assured him he would get him

probation with time served. Id. at 1190-91 (¶5). Mitchener attached affidavits from his ex-

wife, his cousin, and a friend, all of whom confirmed what the attorney told Mitchener. See

id. at 1191-92 (¶¶6-8). Despite these affidavits, the circuit court summarily denied

Mitchener’s PCR motion, finding that the plea hearing transcript and plea petition indicated

16

that Mitchener was informed of the sentencing possibilities. Id. at 1192 (¶9). On appeal, this

Court reversed the summary disposition of Mitchener’s motion and remanded the matter for

a full evidentiary hearing. We noted that the record of the proceedings in the case revealed

a “facially correct guilty plea.” Id. at 1193 (¶14). Nonetheless, the allegations in the

affidavits did present a colorable claim that defense counsel had misrepresented the length

of sentence Mitchener would get and, on that basis, we reversed and remanded the case for

an evidentiary hearing. Id. at 1194-95 (¶18). We specifically stated, however, that we were

expressing no opinion on the merits of Mitchener’s PCR motion and held only that he had

presented enough information to warrant a hearing. Id.

¶30. Unlike Myers and Mitchener, the case before us involved the review of a ruling

following an evidentiary hearing where the merits were decided by the circuit court. More

applicable to Alexander’s facts are those of the defendant in McCray v. State, 785 So. 2d

1079 (Miss. Ct. App. 2001). In that case, McCray pleaded guilty to two counts of the sale

of a controlled substance. Id. at 1081 (¶1). He was sentenced to two separate twelve-year

terms of imprisonment. Id. McCray filed a motion to vacate his guilty plea and sentence,

claiming that he received ineffective assistance of counsel because his attorney promised him

he would be sentenced to only three months’ probation. Id. at (¶3). We affirmed the circuit

court’s denial of McCray’s motion and noted that “a plea is rendered voluntary despite advice

given to the defendant by his attorney, if the trial judge questions the defendant and explains

his rights and the effects and consequences of the plea on the record.” Id. at (¶4) (citing

17

Roland v. State, 666 So. 2d 747, 750 (Miss. 1995)).

¶31. Sandifer v. State, 799 So. 2d 914 (Miss. Ct. App. 2001), a PCR case, is also

applicable. There, this Court also refused to vacate a guilty plea when Sandifer’s attorney

allegedly promised him a sentence of less than the twenty years he received. Id. at 919 (¶10).

Sandifer, who had been indicted for the sale of cocaine, pleaded guilty and was sentenced

to a term of twenty years with ten suspended and five years probation. Id. at 916 (¶2).

Sandifer later filed a PCR motion claiming that his plea was not voluntarily made because

his attorney had promised that he would be sentenced to only an eight-year term. Id. at 917

(¶9). In affirming the trial court’s denial of Sandifer’s motion, we held that “Sandifer’s claim

is belied by his own sworn statements,” both in his plea petition and during his plea hearing.

Id. In his plea petition, Sandifer swore that he knew the State was recommending twenty

years with ten suspended. Id. Sandifer was also informed in the petition and at his plea

hearing that he faced a maximum of thirty years. Id.

¶32. Although the circuit courts in McCray and Sandifer did not conduct evidentiary

hearings, the only difference between those cases and Alexander’s is that Alexander attached

his mother’s supporting affidavit to his PCR motion and, significantly, the trial court granted

Alexander an evidentiary hearing. The court heard testimony from Clayborne and from

Alexander as well. Alexander, who was also represented by counsel, was given every

opportunity to present his evidence and argue his claim to the court.

¶33. Although the State presented no witnesses at the hearing on the PCR motion, the

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circuit court did have the transcripts of Alexander’s plea hearing and his sentencing hearing,

in which Alexander testified under oath. We have held that those “solemn declarations made

in open court” also “carry a strong presumption of verity.” Vaughn, 85 So. 3d at 912 (¶16)

(quoting Jones v. State, 885 So. 2d 83, 87 (¶8) (Miss. Ct. App. 2004)). During the plea

hearing, the court specifically clarified with Alexander that, even with a guilty plea, he could

still be sentenced to the maximum term of five years and a $5,000 fine on each count.

Alexander was specifically asked whether anyone had made any promises to him to plead

guilty and whether he understood that the court was not bound by any sentence either the

State or defense counsel had recommended. Alexander answered that no one had promised

him anything and that he understood that the court was not bound by the recommendations

in the plea petition.9

9

The importance of plea-hearing testimony is shown in this Court’s recent decision

in Holliday v. State, No. 2022-CA-00149-COA, 2023 WL 2884520 (Miss. Ct. App. April

11, 2023), which is subject to certiorari review at the time of this writing, where we rejected

a defendant’s claim that his plea of guilty to statutory rape and sexual battery was

involuntary because his counsel was ineffective by, among other things, failing to timely

accept a plea offer. Id. at *2 (¶15). In that case, Holliday claimed that with prior court-

appointed attorneys, he had been offered pleas of ten and then fifteen years. Id. at *1 (¶3).

He later pleaded guilty and was sentenced to thirty years. Id. at (¶6). In his PCR motion,

Holliday claimed that he pleaded guilty “with the expectancy of a much lesser sentence than

thirty years day-for-day.” Id. at *2 (¶7). He asserted that his attorney’s representation was

ineffective because, among other things, he “failed to timely accept the original plea offer.”

Id. In his affidavit, Holliday claimed he had been “mislead.” Id. at (¶9). In affirming the

trial court’s denial of his PCR motion, we relied heavily on the transcript of Holliday’s plea

hearing and noted that the court explained to him the nature of the charges and the

consequences of his guilty plea. Id. at *3 (¶19). Holliday affirmed his awareness of what

the court was telling him. Id. We noted that in his PCR motion, Holliday did not challenge

the voluntariness of his plea but centered his argument on his expectation that he would

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¶34. In addition to Alexander’s plea hearing, the circuit court considered Alexander’s plea

petition itself, which this Court has noted is “not an oral statement in open court, but it is a

sworn document presumptively prepared with an appreciation of its fateful consequences.”

Vaughn, 85 So. 3d at 912 (¶16). In his plea petition, Alexander acknowledges that, as a

result of plea negotiations, the State and the defense agreed on a recommendation of

supervised probation only on Count 2. There was no agreement on Count 1; on that count,

the plea petition indicated the State was recommending a sentence of five years but the

defense was seeking probation. Clearly the petition, which both Alexander and his mother

read, contradicts their testimony given three years later.

¶35. Finally, Alexander had a separate sentencing hearing, during which both he and his

attorney argued for leniency. The victim’s mother testified, but so did Alexander and his

mother. Alexander also read to the court a letter he had written concerning his future plans

and past mistakes. Nothing in the transcripts of these hearings indicated that a plea bargain

of probation had been reached.

¶36. Taking the entire record into consideration, we find no basis to conclude that the

circuit court erred in its findings that the plea was voluntary and that Alexander’s counsel had

receive a lesser sentence. Id. at (¶21). But we noted that “this expectation was clearly

addressed by the trial court during his plea hearing.” Id. We held that Holliday’s plea was

knowingly and voluntarily made and that his ineffective assistance of counsel claim had no

merit. Id. at (¶22). Similarly, in this case, at Alexander’s plea hearing, the circuit court

clearly clarified the maximum penalties he faced and confirmed with Alexander his

understanding that the court was not bound by any recommendations that may be made

concerning his sentence. Alexander affirmed his knowledge of these facts.

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not ineffectively represented him. Whether Walker materially misrepresented to Alexander

that he had negotiated a sentence of probation was a fact question for the circuit court to

decide. Although Walker could not present his version of events, there was other evidence

for the court to consider in addition to Alexander’s and his mother’s testimony. Given the

record before us, we cannot conclude that the circuit court was clearly erroneous in its

findings. Accordingly, we find the circuit court did not err in denying Alexander’s PCR

motion on the basis of ineffective assistance of counsel.

Conclusion

¶37. Because the circuit court’s decision was not clearly erroneous, legally in error, or an

abuse of its discretion, we affirm the circuit court’s denial of Alexander’s PCR motion.

¶38. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, LAWRENCE,

McCARTY, SMITH AND EMFINGER, JJ., CONCUR. WESTBROOKS, J.,

CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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