                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 96-CA-00625-SCT
MELVIN INGRAM
v.
STATE OF MISSISSIPPI
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                        PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:                              05/08/96
TRIAL JUDGE:                                   HON. GRAY EVANS
COURT FROM WHICH APPEALED:                     SUNFLOWER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        PRO SE
ATTORNEY FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL

                                               BY: JEAN SMITH VAUGHAN
DISTRICT ATTORNEY:                             FRANK CARLTON
NATURE OF THE CASE:                            CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                   AFFIRMED - 12/08/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                12/31/97




     BEFORE SULLIVAN, P.J. , SMITH AND MILLS, JJ.

     SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:




This appeal arises from the Order denying Ingram's motion for post-conviction relief by the
Sunflower County Circuit Court on May 8, 1996. However there was a second Order filed on
August 21, 1996, in response to the State's Motion To Reconsider Post-Conviction Order. The May
8th order denied the relief sought by finding that although the indictment, apparently criminal cause
number 95-0161, was technically defective since it did not conclude with the constitutionally
mandated language "against the peace and dignity of the State of Mississippi", Ingram waived such
defect when he entered a voluntary plea of guilty. The State filed a Motion To Reconsider Post-
Conviction Order alleging that Ingram misled the court by only attaching page one of a two page
indictment. Further the State alleged that the motion was not well taken on its merits because the
indictment does contain the wording that Ingram alleged to have been omitted.
In response to said motion the Circuit Court of Sunflower County drafted another Order filed on
August 21, 1996, once again denying the requested relief sought by Ingram. In that Order the judge
found that Ingram's plea was in cause number 95-0160 and not 95-0161.However, it further found
that neither indictments were defective in that they both properly concluded with the required
language and therefore Ingram's motion was frivolous and without merit. The notice of appeal states
this appeal is from the Order issued on May 8, 1996.

The record contains two indictments each being two pages long and both entered on June 8, 1995.
Both of these indictments, Exhibits A and B were made part of the August 21, 1996 order. The first
indictment, cause number 95-0161, charged Ingram with the sale of less than one ounce of marihuana
under Section 41-29-139(a)(1) & (b)(3) and Section 41-29-147 as a subsequent offender. On page
two of the indictment it also included the two necessary prior felony convictions, one for the sale of
marihuana on June 10, 1991, and the other for burglary on September 10, 1981, in order to sentence
him under Section 99-19-81 of the Mississippi Code of 1972, the habitual offender statute. The
second indictment, cause number 95-0160, charged Ingram with the sale of cocaine under Section
41-29-139(a)(1) and Section 41-29-147, and included the same two necessary prior convictions in
order to also sentence him under the habitual offender statute. Both indictments concluded with the
language "against the peace and dignity of the State of Mississippi" at the bottom of both pages.

When looking at Ingram's Motion for Post Conviction Relief Ingram stated that the nature of the
offense was sale of cocaine. This would explain why the judge determined that the motion was
pertaining to cause number 95-0160 and not cause number 95-0161. However on the appeal to this
Court both Ingram and the State set out in their briefs the crime of the sale of marihuana and neither
brief mentions the sale of cocaine. The record includes neither a transcript of Ingram's entry of his
guilty plea to either offense charged nor a copy of any sentencing order. Ingram, according to the
notice of appeal, is appealing the Order dated May 8, 1996. The only issue raised in his motion before
the lower court was the defective indictment. However, on appeal Ingram assigns the following two
new errors for this Court's consideration:

     I. WHETHER OR NOT THE TRIAL COUNSEL WAS INEFFECTIVE WHEN
     WAIVING A CONSTITUTIONAL DEFECTIVE INDICTMENT AND PERMITTING
     APPELLANT TO PLEA TO THE SAME IN VIOLATION TO MISSISSIPPI
     CONSTITUTION ARTICLE 6 § 169 OF 1890.

     II. WHETHER THE GUILTY PLEA WAS KNOWINGLY, VOLUNTARILY AND
     INTELLIGENTLY ENTERED WHEN THE TRIAL COURT FAILED TO INFORM
     APPELLANT AS TO WHICH ENHANCEMENT PENALTY THE STATE WOULD
     SEEK TO USE FOR THE PURPOSES OF PUNISHMENT; AND THE TRIAL COURT
     WAS WITHOUT STATUTORY AUTHORITY TO IMPOSE A TWELVE (12) YEAR
     SENTENCE PURSUANT TO § 41-29-139(a)(1) & (b)(3) OF THE MISSISSIPPI CODE
     ANNOTATED OF 1972.

                                   STATEMENT OF THE LAW

                                             ISSUE ONE

The State argues that this claim is procedurally barred because it was not raised in the motion for
post-conviction relief. Although the trial court did not address this claim and the claim was inartfully
drafted, there is mention in the motion that Ingram's attorney did not challenge the fatally defective
indictment. However, this Court finds that it is devoid of merit. Ingram should not be allowed to
relitigate an issue already decided by the trial court under the guise of ineffective assistance of
counsel.

A claim for ineffective assistance of counsel is judged by the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984) and adopted by this Court in Stringer v. State, 454 So. 2d 468
(Miss. 1984). Ingram must show: (1) that counsel's performance was deficient, and (2) that the
deficient performance prejudiced the defense. Stringer, 454 So. 2d at 477. This standard also applies
to challenges to guilty pleas. Coleman v. State, 483 So. 2d 680, 683 (Miss. 1986); Roland v. State,
666 So. 2d 747, 750 (Miss. 1995). The defendant has the burden of satisfying both prongs of the test.
Edwards v. State, 615 So. 2d 590, 596 (Miss. 1993). If either part of the test is not satisfied then the
claim must fail, and therefore if Ingram can not prove that his attorney's representation was deficient
then the inquiry must end.

Ingram argues to this Court that counsel's performance was deficient when he failed to petition the
trial court pursuant to Miss. Code Ann. § 99-7-21, for a Motion to Demur the indictment. He next
argues that he was prejudiced because this deficiency erroneously permitted the trial court to impose
a sentence which exceeded what was permitted by Miss. Code Ann. § 41-29-139(a)(1) & (b)(3). This
argument does not concur with the evidence in the record.

Although the Order filed May 8, 1996, which is the Order being appealed only found that Ingram had
waived the defect in the indictment, the circuit court, in the second Order filed August 21, 1996,
found that neither indictment was defective. The facial sufficiency of the indictment has already been
determined by the trial court. When looking at both indictments, all four pages end with the required
language "against the peace and dignity of the State of Mississippi." Ingram has failed to meet the
first part of the Strickland test that his attorney's performance was deficient. For how could his
attorney's performance be deficient by failing to demur to a facially correct indictment? Since there is
no showing of any deficiency of performance on the part of Ingram's counsel, there is no need to
discuss the issue of prejudice. There is no merit to this assignment of error.

                             ISSUE II IS PROCEDURALLY BARRED

The State correctly asserts that Ingram's second claim about his plea being involuntary and that the
sentence imposed was unlawful is procedurally barred. Mississippi Code Ann. § 99-39-21(1) (1994)
explains that the failure to raise issues that were capable of determination at trial constitutes a waiver
and shall be procedurally barred unless there is a showing of cause or actual prejudice. Ingram has
made no attempt and has failed to meet his burden of overcoming this bar by either showing cause or
prejudice; therefore, this claim is procedurally barred. Smith v. State, 500 So. 2d 973, 975 (Miss.
1986); Billiot v. State, 454 So. 2d 445 (Miss. 1984).

Ingram failed to properly plead and present a record to this Court, and the issues of unlawful
sentencing and involuntary plea should have been raised in the trial court and not for the first time in
his brief on this appeal. There is no mention of this error in Ingram's motion for post-conviction
relief, and consequently it was never addressed by the lower court. This Court has stated, "[a]n
assignment of error may not be raised for the first time on appeal". Berdin v. State, 648 So. 2d 73,
80 (Miss. 1994) (citing Collins v. State, 594 So. 2d 29, 35 (Miss. 1992)). Therefore the second issue
is procedurally barred as it is not properly before this Court. In Berdin v. State, this Court never
even considered the procedurally barred issue on the merits. Id. at 80.

In addition, there is no way to address the merits of these issues because the record does not include
a sentencing order, a petition to enter a guilty plea or a transcript of the taking of the guilty plea. It is
even unclear to this writer which offense, if not both offenses for which Ingram was indicted, that
Ingram entered his plea of guilty. There is nothing in the record to clear this up or inform this Court
what Ingram's sentence was for what crime. The only thing in the record that even mentions a twelve
year sentence is in Ingram's motion which seems to correlate to the sale of cocaine offense instead of
the sale of marihuana. How can you review a claim based on the failure of the trial court to advise
Ingram about which enhancement penalty the State would seek or the unlawfulness of a sentence
when there is nothing in the record to review? This Court may not act upon statements in briefs or
arguments which are not reflected in the record. Shelton v. Kindred , 279 So. 2d 642, 644 (Miss.
1973); Moawad v. State, 531 So. 2d 632, 635 (Miss. 1988). It is the appellant's duty to preserve and
prepare the record for appeal. Shelton, 279 So. 2d at 644. Since the record contains no transcript of
the plea hearing, this Court will presume that the trial court acted properly. Moawad, 531 So. 2d at
635.

Even trying to address this issue on the merits, the State correctly argues that mere allegations that
Ingram was not informed of the parameters of the sentences which the trial judge could impose have
not been substantiated by the record. Ingram had notice of the statutes under which he was indicted
and he has not overcome the presumption that the trial court correctly informed him of the possible
sentence or that the length of the sentence was erroneous. Therefore, this Court determines this claim
has no merit, procedural bar notwithstanding.

                                             CONCLUSION

Ingram has failed to establish that either issue presented on this appeal has any merit. As to the issue
of ineffective assistance of counsel, Ingram has failed to prove that his attorney's representation in
any way was deficient. Furthermore, the second issue pertaining to the involuntariness of his plea and
the alleged imposition of an unlawful sentence is procedurally barred as well as devoid of any merit.
Therefore, the circuit court properly denied Ingram's motion for post-conviction relief and this Court
affirms that decision.

LOWER COURT'S DENIAL OF POST CONVICTION RELIEF AFFIRMED.

LEE, C.J., PRATHER, P.J., PITTMAN, BANKS, McRAE, ROBERTS, SMITH AND MILLS,
JJ., CONCUR.
