           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2013-CP-00978-COA

TIMMIE BROOKS A/K/A TIMMY BROOKS                                          APPELLANT

v.

STATE OF MISSISSIPPI                                                        APPELLEE

DATE OF JUDGMENT:                          04/16/2013
TRIAL JUDGE:                               HON. JOHNNIE E. WALLS JR.
COURT FROM WHICH APPEALED:                 COAHOMA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    TIMMIE BROOKS (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JOSEPH SCOTT HEMLEBEN
NATURE OF THE CASE:                        CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION:                   DENIED MOTION FOR POSTCONVICTION
                                           RELIEF
DISPOSITION:                               AFFIRMED - 01/10/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., BARNES AND FAIR, JJ.

       LEE, C.J., FOR THE COURT:

                        FACTS AND PROCEDURAL HISTORY

¶1.    Timmie Brooks was indicted by a Coahoma County grand jury on one count of capital

murder1 and one count of felon in possession of a firearm. Brooks was subsequently indicted

in two separate matters: one count of felony escape, and one count of murder.2 On February

17, 2010, Brooks, represented by public defender Ricky Lewis, and Ray Carter from the



       1
           This charge alleged that Brooks had murdered Otis Lee.
       2
           This charge alleged that Brooks had murdered Kevin Jones.
Office of Capital Defense Counsel, filed a petition to plead guilty to capital murder.

Brooks’s petition shows that in exchange for his guilty plea to capital murder, the State

would recommend that the circuit court sentence Brooks to life in the custody of the

Mississippi Department of Corrections (MDOC) without the possibility of parole. The State

also agreed to recommend a concurrent life sentence without the possibility of parole, in

exchange for Brooks’s guilty plea to the other murder charge he faced. Additionally, the

State agreed to dismiss the charges of felon in possession of a firearm and another charge of

receiving stolen property. On February 18, 2010, Brooks pled guilty to both capital murder

and murder. The circuit court sentenced him to concurrent terms of life in MDOC custody

without the possibility of parole.

¶2.    On May 16, 2011, Brooks filed a motion for transcripts and discovery. He then filed

a motion to show cause on October 18, 2012, attacking the legality of his sentence.

Following no response from the circuit court or receipt of discovery information, Brooks

filed a petition for a writ of mandamus with the Mississippi Supreme Court. On December

8, 2012, in response to Brooks’s petition for a writ of mandamus, the circuit court ordered

the circuit clerk to send Brooks a copy of the court files. The circuit court also ordered the

district attorney’s office to send Brooks a copy of the discovery information. The circuit

court’s order noted that Karen Tanner, the court reporter present during Brooks’s arraignment

as well as his plea and sentencing hearing, was deceased. A new reporter, Brenda Blackburn,

was designated to prepare the transcripts through Tanner’s tapes and send them to Brooks.

Brooks’s petition for a writ of mandamus was then dismissed as moot.



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¶3.    On April 3, 2015, Brooks filed a motion for postconviction relief (PCR) and claimed

he received ineffective assistance of counsel when he pled guilty to capital murder because

he was “induced, coerced, and threatened into entering his plea.” On April 16, 2013, the

circuit court denied Brooks’s PCR motion. Brooks appealed.

¶4.    While his appeal was pending, Brooks filed a motion with this Court to compel the

production of his guilty-plea-hearing transcript. We granted Brooks’s motion and ordered

the court reporter to file the transcript. After Brooks twice renewed his motion to compel,

we noted that the Clerk of Appellate Courts received a letter from Blackburn stating that she

was unable to find the audio recordings necessary to complete the transcript. We then

ordered the circuit court to determine the status of the transcript and whether it could be

completed, and if not, ordered the circuit court to hold a hearing on the record to supplement

the record in accordance with Mississippi Rule of Appellate Procedure 10.

¶5.    On February 17, 2015, Brooks filed a petition for a writ of mandamus, requesting that

this Court compel the circuit court to provide the transcript. We granted Brooks’s motion

and ordered the circuit court to conduct a Rule 10 hearing within forty-five days. The circuit

court accordingly held a hearing to review the status of the transcript and determine whether

the transcript could be produced. Brooks, Assistant District Attorney William Gresham, and

Lewis were present at the hearing. The circuit court determined that the court reporter’s

audio tapes and notes needed to prepare the transcript of the plea and sentencing hearing

were unavailable and were not likely to become available. As such, the circuit court stated

that an additional hearing should be held in order for the parties and witnesses to testify to



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the facts and events surrounding Brooks’s guilty plea.

¶6.    The hearing was held on August 13, 2015, and October 26, 2015, during which the

circuit court heard the testimony of Lewis; Carter; Regina Curry – a mitigation specialist with

the Office of Capital Defense who was appointed to assist with Brooks’s representation;

Michael Carr – the assistant district attorney who prosecuted the case against Brooks; the

Honorable Kenneth L. Thomas – the circuit judge who had presided over the case and

received Brooks’s guilty plea; Theresa Thigpen – Judge Thomas’s former court

administrator; and Brooks. At the beginning of the hearing, Brooks requested an extension

of time in order to obtain counsel. His request was denied, and the hearing was conducted.

The parties and witnesses testified concerning the events surrounding Brooks’s guilty-plea

and sentencing hearing, and the transcript of the Rule 10 hearing was completed and certified

as part of the record on appeal.

¶7.    In his appeal, Brooks argues that (1) he received ineffective assistance of counsel, (2)

he did not voluntarily plead guilty to capital murder, and (3) the circuit court erred in denying

his request for appointed counsel at his Rule 10 hearing.

                                STANDARD OF REVIEW

¶8.    A circuit court’s denial or dismissal of a PCR motion is reviewed for abuse of

discretion, and we will only reverse the circuit court if its decision is clearly erroneous.

Hughes v. State, 106 So. 3d 836, 838 (¶4) (Miss. Ct. App. 2012). However, the circuit

court’s legal conclusions are reviewed under a de novo standard. Chaney v. State, 121 So.

3d 306, 308 (¶4) (Miss. Ct. App. 2013).



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                                        DISCUSSION

       I.      Ineffective Assistance and Voluntariness of Guilty Plea

¶9.    Brooks claimed he received ineffective assistance of counsel and his guilty plea was

involuntary because his lawyer “induced, coerced[,] and threatened [him] into entering his

plea.” On appeal, he maintains that he was “possibly threatened and[] intimidated by the

threat of the death penalty . . . .” He further contends that because there is no transcript of

the plea and sentencing hearing, there is insufficient evidence to show that his guilty plea was

voluntarily and intelligently given.

¶10.   To prevail on a claim of ineffective assistance of counsel, Brooks must show that his

attorney’s performance was deficient and that it resulted in prejudice. Strickland v.

Washington, 466 U.S. 668, 687 (1984). Because Brooks pled guilty, he has “waive[d] claims

of ineffective assistance of counsel except . . . as [they] . . . relate[] to the voluntariness of

the giving of the guilty plea.” Rigdon v. State, 126 So. 3d 931, 936 (¶16) (Miss. Ct. App.

2013). There is a presumption that “counsel’s representation falls within the range of

reasonable professional assistance.” Jackson v. State, 178 So. 3d 807, 812 (¶20) (Miss. Ct.

App. 2014) (citing Strickland, 466 U.S. at 689). To rebut this presumption, Brooks must

demonstrate that a reasonable probability exists that “but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Id.

¶11.   The circuit court did not err in denying Brooks’s claims. Apart from his own

assertions, Brooks did not present any evidence to support his claim of ineffective assistance

of counsel. This Court has held in PCR cases that “where a party offers only his affidavit,



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then his ineffective[-]assistance claim is without merit.” Alford v. State, 185 So. 3d 429, 432

(¶16) (Miss. Ct. App. 2016). Accordingly, Brooks’s claim for ineffective assistance of

counsel is without merit.

¶12.   Additionally, Brooks claims his plea was involuntary because he was coerced under

the threat of the death penalty. The circuit court’s order denying Brooks’s PCR motion noted

that “[h]ad [Brooks] gone to trial and been found guilty[,] he would surely face the death

penalty.” As such, the circuit court reasoned that it was logical that Brooks’s counsel would

warn him of the possible punishments he faced, which included the death penalty. This

Court has recognized that “the death penalty is a possible punishment for capital murder, and

it [is] logical that [ a defendant’s] trial counsel [would] warn[] him of this.” Grissom v.

State, 66 So. 3d 1280, 1283 (¶16) (Miss. Ct. App. 2011). And Brooks did not offer any

evidence to substantiate his claim that he was coerced or threatened to plead guilty.

Furthermore, Brooks’s petition to plead guilty shows that Brooks affirmed he had not been

“threatened[,] . . . forced, intimidated[,] or coerced in any manner to plead guilty,” and that

he offered his “plea of ‘guilty’ freely and voluntarily and of [his] own accord[.]” During the

Rule 10 hearing, numerous witnesses contradicted Brooks’s claim that he was coerced into

pleading guilty. There is no evidence – apart from Brooks’s own assertions – that he was

coerced into pleading guilty; rather, there is evidence in the record to the contrary.

¶13.   As to Brooks’s contention that there is insufficient evidence to show that his plea of

guilty was voluntarily and intelligently given because there is no transcript of the plea and

sentencing hearing, this Court has held that “an incomplete . . . record, of itself, does not



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constitute reversible error,” and noted that the “same consideration applies to . . . deficiencies

in the transcript . . . .” Stapleton v. State, 790 So. 2d 897, 899-900 (¶9) (Miss. Ct. App.

2001). And the Rule 10 hearing testimony and transcript was found to be a suitable

alternative. Accordingly, the circuit court did not err when it denied Brooks’s PCR motion.

       II.     Denial of Appointed Counsel

¶14.   Brooks argues that the circuit court erred when it denied his request for appointed

counsel during the Rule 10 hearing. There is no right to appointed counsel in PCR

proceedings. Allen v. State, 177 So. 3d 1148, 1152 (¶18) (Miss. Ct. App. 2014). Where an

evidentiary hearing is required, it is within the discretion of the circuit court to appoint

counsel. Higginbotham v. State, 114 So. 3d 9, 17 (¶26) (Miss. Ct. App. 2012). Here, the

circuit court did not abuse its discretion when it denied Brooks’s request for appointed

counsel at the Rule 10 hearing. Therefore, this issue is without merit.

¶15. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT
DENYING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

    IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON
AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.




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