              IN THE SUPREME COURT OF MISSISSIPPI

                        NO. 2015-CT-00023-SCT

WILLIAM SCOTT ASHWELL a/k/a WILLIAM
ASHWELL a/k/a WILLIAM S. ASHWELL

v.

STATE OF MISSISSIPPI

                       ON WRIT OF CERTIORARI

DATE OF JUDGMENT:               11/20/2014
TRIAL JUDGE:                    HON. PRENTISS GREENE HARRELL
TRIAL COURT ATTORNEYS:          ROBERT E. EVANS
                                BARBARA WAKELAND BYRD
COURT FROM WHICH APPEALED:      LAWRENCE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:         TIMOTHY KEVIN BYRNE
ATTORNEY FOR APPELLEE:          OFFICE OF THE ATTORNEY GENERAL
                                BY: BARBARA WAKELAND BYRD
NATURE OF THE CASE:             CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                    REVERSED AND VACATED - 08/24/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

                        CONSOLIDATED WITH

                        NO. 2015-CT-00626-SCT

WILLIAM SCOTT ASHWELL a/k/a WILLIAM
ASHWELL a/k/a WILLIAM S. ASHWELL

v.

STATE OF MISSISSIPPI
                       ON WRIT OF CERTIORARI

DATE OF JUDGMENT:               11/20/2014
TRIAL JUDGE:                    HON. PRENTISS GREENE HARRELL
COURT FROM WHICH APPEALED:      LAWRENCE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:         TIMOTHY KEVIN BYRNE
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: BARBARA WAKELAND BYRD
NATURE OF THE CASE:                         POST-CONVICTION RELIEF
DISPOSITION:                                REVERSED AND VACATED - 08/24/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       DICKINSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    William Ashwell pleaded guilty to burglary and escape. He now seeks post-

conviction relief. Because the circuit court lacked jurisdiction and authority to accept guilty

pleas when Ashwell never had been charged with a crime, we reverse and vacate his

convictions.

                         FACTS AND PROCEDURAL HISTORY

¶2.    William Scott Ashwell filed two Waivers of Indictment and Petitions to Enter Plea

of Guilty in the Circuit Court of Lawrence County. Although the waivers stated that Ashwell

stood charged with burglary and escape, no criminal information had been filed. Ashwell

pleaded guilty and the circuit judge entered orders of conviction.

¶3.    Ashwell later filed a pro se Petition for Writ of Habeas Corpus/Motion to Vacate

Conviction and Sentence in the Circuit Court of Lawrence County, claiming the circuit court

lacked jurisdiction or authority to accept his guilty pleas because the State never filed any

charging documents. Ashwell supported his petition with copies of the docket sheet from

each cause number, which reflected no indictment or information had been filed. The

petition also claimed Ashwell’s waivers were ineffective because they failed to specify the

dates of the offenses.


                                              2
¶4.    The circuit judge treated the filing as a petition for post-conviction relief, appointed

Ashwell counsel, and ordered the State to respond. After the State responded, the circuit

judge entered an order denying Ashwell relief from the burglary conviction on the merits,

and from his escape conviction because Ashwell attacked both convictions in the same

petition, which Mississippi Code Section 99-39-9(2)—a procedural statute—purports to

prohibit.

¶5.    The circuit judge found that, even though no indictment or information charging

Ashwell with a crime had been filed, such document must exist because of references to it

in the plea colloquy and the prosecutor’s affidavit. Ashwell appealed, and the Court of

Appeals affirmed.1 Ashwell then petitioned this Court for writ of certiorari, which we

granted.

                                        ANALYSIS

¶6.    We first consider whether Section 99-39-9(2) prohibited the circuit judge from

considering the merits of Ashwell’s claim concerning his escape conviction. The Mississippi

Constitution divides “[t]he powers of the government of the State of Mississippi . . . into

three distinct departments, . . . each of them confided to a separate magistracy, to-wit: those

which are legislative to one, those which are judicial to another, and those which are

executive to another.”2 “No person or collection of persons, being one or belonging to one




       1
           Ashwell v. State, 2016 WL 3154003, **2–4 (Miss. Ct. App. June 7, 2016).
       2
           Miss. Const. art. 1, § 1.

                                              3
of these departments, shall exercise any power properly belonging to either of the others.”3

“The judicial power of the state shall be vested in a Supreme Court and such other courts as

are provided for in this constitution.”4

¶7.    In Newell v. State, this Court declared “[t]he inherent power of this Court to

promulgate procedural rules emanates from the fundamental constitutional concept of the

separation of powers and the vesting of judicial powers in the courts.”5 “This leaves no room

for a division of authority between the judiciary and the legislature as to the power to

promulgate procedural rules necessary to accomplish the judiciary’s constitutional purpose.”6

¶8.    Mississippi Code Section 99-39-9(2) states “[a] motion shall be limited to the

assertion of a claim for relief against one (1) judgment only. If a petitioner desires to attack

the validity of other judgments under which he is in custody, he shall do so by separate

motions.”7 In Wimley v. Reid, this Court found that Mississippi Code Section 11-1-58’s

requirement that a medical-malpractice plaintiff attach to his complaint a certificate of

consultation with a physician was a procedural rule and therefore unconstitutional.8 While

the Court recognized the legislative prerogative to establish substantive presuit requirements,

       3
           Miss. Const. art. 1, § 2.
       4
           Miss. Const. art. 6, § 144.
       5
        Newell v. State, 308 So. 2d 71, 76 (Miss. 1975) (citing Matthews v. State, 288 So.
2d 714 (Miss. 1974); Gulf Coast Drilling & Expl. Co. v. Permenter, 214 So. 2d 601 (Miss.
1968); S. Pac. Lumber Co. v. Reynolds, 206 So. 2d 334 (Miss. 1968)).
       6
           Newell, 308 So. 2d at 77.
       7
           Miss. Code Ann. § 99-39-9(2) (Rev. 2015).
       8
           Wimley v. Reid, 991 So. 2d 135, 138 (Miss. 2008).

                                               4
the Court squarely decided that the Mississippi Constitution empowers this Court, not the

Legislature, to establish the rules governing the content of a pleading in the courts of this

State.9

¶9.       Section 99-39-9(2) suffers from the same constitutional flaw. Through that statute,

the Legislature mandates that a petition for post-conviction relief attack only one conviction.

This would be no different from a statute prohibiting more than one count in a tort lawsuit

complaint and mandating that plaintiffs must file separate lawsuits for each count. The

Constitution grants the Legislature no power to limit the number of claims a litigant may

plead in a particular pleading. So we find that the circuit judge erred by rejecting Ashwell’s

claim pertaining to his escape conviction. And we decline to impose any such rule which,

in cases such as the one before us today, unnecessarily would require duplicate filings.

¶10.          It is well settled that “[a] plea of guilty does not waive (1) the failure of the

indictment to charge a criminal offense or, more specifically, to charge an essential element

of a criminal offense, and a plea of guilty does not waive (2) subject matter jurisdiction.”10

\¶11. The Court of Appeals affirmed the circuit judge’s reasoning that a criminal

information must have existed because it was mentioned in the plea documents, plea

colloquy, and a prosecutor’s affidavit. But Ashwell’s claim does not rest on the existence

of a document which purported to be a criminal information, but rather on the fact that the

State failed ever to charge him with a crime.


          9
              Id. at 138–39.
          10
         Conerly v. State, 607 So. 2d 1153, 1156 (Miss. 1992) (citing Jefferson v. State,
556 So. 2d 1016, 1019 (Miss. 1989)).

                                                 5
¶12.   The docket sheet in each criminal case reflects that no criminal information—even

assuming one existed—ever was filed with the circuit court. Nor did the criminal files

themselves include any charging document, a fact the circuit judge confirmed by personally

reviewing each criminal file. The prosecutor who handled Ashwell’s cases could say only

that in “[t]he normal procedure” for a prosecution by criminal information, “the Bill of

Information is submitted by the District Attorney’s Office to the Clerk of Court,” and that

“[t]o my knowledge, the normal procedure for a plea by Bill of Information would have

occurred in this case.”11 In disputes over the content of a court record, this Court has held

that the docket entries control.12 So the prosecutor’s statement of “would have occurred” is

of no help.

¶13.   The very nature of a criminal information shows that one must be filed for the court

to proceed. Historically, an information was a charging document in the king’s name “filed

ex officio by his own immediate officer, the attorney general” or “filed by the king’s coroner

and attorney in the court of king’s bench.”13 A prosecution by criminal information followed

“when an information is filed.”14



       11
            Emphasis added.
       12
       Bank of Richton v. Jones, 153 Miss. 796, 121 So. 823, 824 (1929); see also
Duncan v. Gerdine, 59 Miss. 550, 553 (1882) (“Where the law requires an entry or
memorandum of a particular transaction to be made in a court of justice, the official entry
or memorandum excludes all independent evidence of the same.”).
       13
            William C. Sprague, Blackstone’s Commentaries 510 (9th ed. 1915) (emphasis
added).
       14
            Id. at 510–11.

                                              6
¶14.   Likewise, this Court has recognized that a defendant is charged when the information

is filed.15 “[T]he filing of the criminal information charging him with simple robbery and

aggravated assault . . . took place on July 31, 1989.”16 So we must agree with Ashwell’s

contention that the circuit court lacks jurisdiction and authority to accept a guilty plea for a

crime for which he never has been charged.

                                       CONCLUSION

¶15.   Because the State never charged Ashwell with a crime, the circuit court lacked

jurisdiction and authority to accept Ashwell’s guilty pleas. So we reverse the decision of the

Court of Appeals, reverse the judgment of the circuit court, and vacate Ashwell’s convictions

for burglary and escape.

¶16.   REVERSED AND VACATED.

    KING AND COLEMAN, JJ., CONCUR. KITCHENS, J., CONCURS WITH
SEPARATE WRITTEN OPINION JOINED BY KING AND COLEMAN, JJ.;
MAXWELL, BEAM AND CHAMBERLIN, JJ., JOIN IN PART. CHAMBERLIN, J.,
CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED
BY RANDOLPH, P.J., MAXWELL AND BEAM, JJ.; KITCHENS, J., JOINS IN
PART. BEAM, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE
WRITTEN OPINION. WALLER, C.J., NOT PARTICIPATING.

       KITCHENS, JUSTICE, CONCURRING:

¶17.   I concur with Presiding Justice Dickinson’s decision to vacate Ashwell’s burglary and

escape convictions due to the absence of charging documents in the record. The circuit

court’s docket reveals no documents charging Ashwell with burglary, escape, or any other



       15
            Conerly, 607 So. 2d at 1156.
       16
            Id.

                                               7
crime. By executing written waivers of indictment,17 Ashwell consented to the State’s

proceeding against him by information. Before proceeding with Ashwell’s prosecution, the

State was required to have filed informations with the circuit court. Without bills of

information in the record, there is nothing to show that Ashwell ever was formally charged

with any crime. Therefore, the circuit court never obtained jurisdiction over him on either of

the two charges. Further, the trial court’s acceptance of Ashwell’s guilty pleas without bills

of information violated Ashwell’s federal and state constitutional rights to notice of the

essential elements of the crimes charged and of sufficiently specific facts to enable him to

plead double jeopardy in the event of a future prosecution for the same or a similar offense.

¶18.   This Court is faced with a record completely devoid of a charging document for either

of the crimes to which Ashwell pled guilty. The circuit court docket reflects that, on

December 14, 2006, the day of Ashwell’s guilty pleas, his written waivers of indictment and

his consent to the State’s proceeding against him by bill of information were filed in each

case. His petitions to enter guilty pleas also were filed on that date. But the docket in each

of the cases also reveals that informations never were filed. The fact that no charging

documents were filed in the circuit court is highly problematic and leaves this Court with no

choice but to vacate Ashwell’s convictions of burglary and escape.

¶19.   The transcript of Ashwell’s plea hearing reflects that he pled guilty as one of twelve

defendants, all of whom were represented, as was Ashwell, by Lawyer Robert E. Evans. The

only common thread among this group of twelve seems to be their representation by Lawyer



       17
            The two waivers were assigned separate circuit court cause numbers.

                                              8
Evans. The trial court accepted the guilty pleas of these twelve defendants en masse in a one-

size-fits-all proceeding, for a variety of unrelated offenses. At the beginning of the hearing,

the judge asked the defendants whether they had been in the courtroom when he had accepted

the guilty pleas of an earlier, unrelated group of defendants. Each person answered

affirmatively. Then, the judge asked whether they had been paying attention, and each person

answered “yes, sir.” The judge replied “All right. So I won’t need to go into quite the same

detail with this group as I did with the other group, so that will make it a little easier on me.”

The judge invited the defendants to inquire about any matters on which they needed further

clarification. No one responded. Then, the judge went through an abbreviated iteration of the

inquiries required by Uniform Rule of Circuit and County Court Practice 8.04 with regard

to whether the guilty pleas were voluntarily and intelligently made, whether the defendants

were competent and understood the nature and consequences of pleading guilty, the

maximum and minimum penalties for the crime of which each was charged, and the rights

that were being waived by their guilty pleas. See URCCC 8.04. The trial court also

ascertained that the defendants understood the proceedings at a jury trial. Id. Notably, the

judge omitted the required determination of a factual basis for the guilty pleas in several of

the cases, including both of Ashwell’s. Id.

¶20.   As Justice Chamberlin astutely recognizes, the record reflects that no factual basis was

stated for Ashwell’s guilty pleas. A factual basis for a guilty plea is required because, before

a trial court may accept a guilty plea, “the circuit court [must] have before it, inter alia,

substantial evidence that the accused did commit the legally defined offense to which he is



                                                9
offering the plea.” Burrough v. State, 9 So. 3d 368, 373 (Miss. 2009). But beyond the

absence of a factual basis in the record, without indictments or informations on record,

Ashwell cannot plead double jeopardy in the event of a future prosecution for either or both

of the same named offenses.

¶21.   Under the federal and state constitutions, a defendant has due process rights to notice

of criminal charges. U.S. Const. amend. VI; Miss. Const. art. 3, § 26. We have held that, to

fulfill these rights, “[a]n indictment must contain (1) the essential elements of the offense

charged, (2) sufficient facts to fairly inform the defendant of the charge against which he

must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of

a future prosecution for the same offense.” Gilmer v. State, 955 So. 2d 829, 836-37 (Miss.

2007). A claim that an indictment was substantively insufficient may be raised at any time.

Ross v. State, 954 So. 2d 968, 1015 (Miss. 2007).

¶22.   The waiver of indictment for burglary describes Ashwell’s offense as “burglary of

an inhabited dwelling” under Mississippi Code Section 97-17-23.18 The elements of dwelling

burglary include “(1) unlawful breaking and entering, and (2) intent to commit a crime

therein.” Jackson v. State, 90 So. 3d 597, 604 (Miss. 2012); Miss. Code Ann. § 97-17-23

(Rev. 2014). Because no charging document was filed, we are unable to discern the date of

Ashwell’s crime, the victim’s name, the particular residence he was pleading guilty to



       18
         Section 97-17-23 does not include an element requiring the dwelling to have been
inhabited at the time of the breaking and entering. Miss. Code Ann. § 97-17-23 (Rev. 2014).
But if Ashwell had been charged formally with “burglary of an inhabited dwelling,” the
State would have been required to prove that a human being was inside the dwelling at the
time of the breaking and entering.

                                             10
burglarizing, whether the entry was forcible, or the underlying crime that the State sought to

prove he intended to commit therein. With neither a true bill of indictment nor a bill of

information, it is impossible to discern the essential facts or the essential elements of the

crime charged. Thus, Ashwell lacked any notice of the essential elements and essential facts

of the crime to which he pled guilty. All that can be discerned from the record is that Ashwell

pled guilty to some burglary. Similarly, Ashwell pled guilty to some escape with no notice

of the essential elements or essential facts of the crime.

¶23.   Ashwell would be unable to plead double jeopardy in the event of a future prosecution

for the same or similar offenses. A criminal defendant has a federal and state constitutional

right against being twice placed in jeopardy for the same offense. U.S. Const. amend. V,

XIV; Miss. Const. art. 3, § 22. When determining whether the State seeks to subject an

individual to multiple punishments for the same crime, this Court applies the test from

Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932),

which provides that: “if each [criminal] statute requires proof of an additional fact which the

other does not, an acquittal or conviction under either statute does not exempt the defendant

from prosecution and punishment under the other.” Thus, for double-jeopardy purposes, an

indictment must include the essential elements of the crime charged. An indictment also must

include the essential facts of the crime charged to enable a reviewing court to distinguish the

facts of the charged crime from other crimes. See Goforth v. State, 70 So. 3d 174, 189 (Miss.

2011) (holding that multiple, identically worded counts in an indictment were factually

insufficient and did not protect against double jeopardy). Because no bill of information was



                                              11
filed in either of Ashwell’s cases, in the event of a future charge of burglary of a dwelling

or escape, no court will be able to discern whether he already has been convicted for the

identical offense.

¶24.   For its first eighty-eight years, the Mississippi Constitution of 1890 required grand

jury indictments in all felony prosecutions. Miss. Const. art. 3, § 27 (1890). An indictment

was an indispensable constitutional prerequisite to the State’s ability to prosecute felony

offenses. Then, a 1978 constitutional amendment provided the State an alternative means of

placing a felony charge before a court of competent jurisdiction through securing a

represented defendant’s sworn, written waiver of indictment and consent to the State’s

proceeding by information. 1997 Miss. Laws ch. 590. Now, Article 3, Section 27 provides:

       No person shall, for any indictable offense, be proceeded against criminally by
       information, except in cases arising in the land or naval forces, or the military
       when in actual service, or by leave of the court for misdemeanor in office or
       where a defendant represented by counsel by sworn statement waives
       indictment; but the legislature, in cases not punishable by death or by
       imprisonment in the penitentiary, may dispense with the inquest of the grand
       jury, and may authorize prosecutions before justice court judges, or such other
       inferior court or courts as may be established, and the proceedings in such
       cases shall be regulated by law.

Miss. Const. art. 3 § 27. The crime of burglary, a felony, is an indictable offense. And

Ashwell pled guilty to felony escape, also an indictable offense. Article 3, Section 27, begins

by prohibiting the State’s prosecution of such charges by information; but, under the added

language of the 1978 amendment, it allows the prosecution of an indictable offense upon an

information when there has been a sworn waiver of indictment by a defendant who is

represented by counsel. Thus, the constitution contemplates two required documents: a sworn



                                              12
waiver of indictment and a bill of information. Without an indictment or a bill of

information, Ashwell never was charged in circuit court with either crime as authorized by

the constitution.

¶25.   The State argues that, even though criminal informations never were filed in these

cases, this Court should deduce from other evidence that informations in fact existed. This

was the approach taken by the circuit court, which limited its review to the burglary

conviction, at the post-conviction relief hearing, finding “that a bill of information existed

at the time Ashwell entered his guilty plea” even though “the bill of information inexplicably

did not get placed in the court file and is not to be found.” The circuit court relied on the facts

to which Ashwell had sworn in his preprinted petition to enter a guilty plea that he “fully

underst[ood] all matters set forth in the indictment or information and waiver of indictment,”

and swore during the plea colloquy that the facts and charges stated in the information were

true. Also, Ashwell’s attorney submitted signed, preprinted certificates of counsel, attached

to the plea petitions, that stated he had “read and fully explained to Defendant the allegations

contained in the indictment or information and waiver of indictment in this case.” Further,

an assistant district attorney, Douglas E. Miller, submitted an affidavit stating he had been

the State’s representative in Ashwell’s cases, and that “the normal procedure for a plea by

Bill of Information would have occurred in this case.”

¶26.   A major problem with the circuit court’s reasoning is that, for a circuit court to obtain

jurisdiction over a criminal defendant, the indictment “must be presented to the clerk of the

circuit court . . . [and] must be marked ‘filed,’ and such entry be dated and signed by the



                                                13
clerk.” Miss. Code Ann. § 99-7-9 (Rev. 2015); Wilson v. State, 904 So. 2d 987, 996 (Miss.

2004). We have held that the “legal evidence of the concurrence of twelve or more of the

grand jurors in finding and presenting the indictment is fully established by the signing

thereof on the part of the foreman and the marking of it ‘filed’ by the clerk of the court.”

McCormick v. State, 377 So. 2d 1070, 1074 (Miss.1979) (quoting Temple v. State, 165 Miss.

798, 805-06, 145 So. 749, 751 (1933)). Because a bill of information provides an alternative

to the original constitutional means of charging one with a felony, it follows that a bill of

information likewise must be filed in the circuit court for that court to obtain jurisdiction.

Each of these charging mechanisms – the first, an indictment, being nonconsensual on the

part of the defendant and the second, an information, being consensual on the part of the

defendant – is a constitutional means of getting the State into the same legal position: that

of having a validly charged defendant before a court of competent jurisdiction. Both of these

means require a charging document – either an indictment or an information – timely filed

and docketed by the court’s clerk.

¶27.   Another problem with the omission of a bill of information is that our state

constitution mandates that “all prosecutions shall be carried on in the name and by the

authority of the ‘State of Mississippi.’” Miss. Const. art. 6 § 169. The charging document in

a criminal case establishes that the prosecution is brought in the name of the State, an

indispensable prerequisite that is conspicuously absent in this case. No evidence is present

in the trial record to show that the prosecution of Ashwell was brought in the name of the

State. During the plea colloquy, the assistant district attorney made no proffer of the factual



                                              14
bases for Ashwell’s guilty pleas. In fact, it is not evident from the transcript of the plea

colloquy that the State participated in Ashwell’s prosecution at all. No remarks regarding

Ashwell’s cases were attributed to a state prosecutor, and neither the trial court nor the

defense attorney mentioned the State or its representative in connection with Ashwell.19

¶28.   In sum, the trial court accepted Ashwell’s guilty pleas along with those of eleven other

defendants in an impersonal group exercise. Although Ashwell’s written waivers of

indictment did meet constitutional requirements, neither was followed by the essential bill

of information as required by the constitution. And the absence of charging documents is

reversible error because Ashwell could not plead double jeopardy in the event of future

prosecution for the same or similar offenses. Moreover, Ashwell lacked notice because the

essential facts and the essential elements of the charges were missing, and the record contains

no factual basis for Ashwell’s guilty pleas. In the absence of charging documents, Ashwell’s

state and federal due process rights were violated, and the circuit court lacked jurisdiction

to accept Ashwell’s guilty pleas. Therefore, Presiding Justice Dickinson correctly vacates

Ashwell’s convictions of burglary and escape.

    KING AND COLEMAN, JJ., JOIN THIS OPINION. MAXWELL, BEAM AND
CHAMBERLIN, JJ., JOIN THIS OPINION IN PART.

       CHAMBERLIN, JUSTICE, CONCURRING IN RESULT ONLY:

¶29.   While I concur with the Presiding Justice Dickinson that William Ashwell’s

convictions must be vacated, I do so on separate grounds. I am not prepared, nor do I believe



       19
         Assistant District Attorney Miller did provide a factual basis for another of the
twelve defendants charged with a crime at the plea hearing.

                                              15
it necessary, to state that the failure to file the charging instrument, without more, deprives

the trial court of jurisdiction. This issue should be decided on a case-by-case basis under the

facts of that particular case after a review of the record as a whole.

¶30.   The problem in this case is not that the charging instrument wasn’t filed. There is

sufficient proof in the record that a charging instrument—the bill of information—existed

in this case. The problem is that there is absolutely no evidence as to what was contained in

the charging instrument. While the failure to file the charging instrument may not be fatal

in all cases, the failure to present any evidence as to the contents of the instrument certainly

is in this case.

¶31.   The failure to prove the contents of the charging instrument means, in Ashwell’s case,

there is no factual basis for his plea. It is not contained in an indictment, a bill of

information, transcript or elsewhere in the record. Ashwell’s waiver acknowledges that the

charges are for burglary and escape with quoted code sections. This information, ostensibly,

advises Ashwell of the elements of the crimes to which he is pleading guilty but not the facts

constituting the crime committed.

¶32.   Rule 8.04 of the Uniform Rules of Circuit and County Court Practice states, in part,

as follows:

       3. Voluntariness. Before the trial court may accept a plea of guilty, the court
       must determine that the plea is voluntarily and intelligently made and that there
       is a factual basis for the plea. A plea of guilty is not voluntary if induced by
       fear, violence, deception, or improper inducements. A showing that the plea
       of guilty was voluntarily and intelligently made must appear in the record.

URCCC 8.04(A)(3).



                                              16
¶33.   A defendant may establish a factual basis for his guilty plea simply by pleading guilty;

however, his plea “must contain factual statements constituting a crime or be accompanied

by independent evidence of guilt.” Hannah v. State, 943 So. 2d 20, 26–27 (Miss. 2006)

(emphasis added). In other words, “a factual basis is not established by the mere fact that a

defendant enters a plea of guilty.” Id. at 27. Rather, the record must contain those facts

which are “sufficiently specific to allow the court to determine that the defendant’s conduct

was within the ambit of that defined as criminal.” Lott v. State, 597 So. 2d 627, 628 (Miss.

1992) (quoting United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir. 1984)). We are not

limited to a review of a defendant’s plea transcript when determining if a factual basis

existed for his guilty plea, but we may review the record as a whole for evidence of such.

See Boddie v. State, 875 So. 2d 180, 183 (Miss. 2004); Aucoin v. State, 17 So. 3d 142,

146–47 (Miss. Ct. App. 2009).

¶34.   Furthermore, the requirement of a factual basis for a defendant’s plea is not a mere

formality of the plea process, but it is required as part of a “constitutionally valid and

enforceable decision to plead guilty.” Carter v. State, 775 So. 2d 91, 98 (Miss. 1999)

(quoting Lott, 597 So. 2d at 628). The trial judge and any reviewing court must be able to

ascertain from the record sufficiently specific facts that demonstrate that the defendant’s

conduct was criminal. See Lott, 597 So. 2d at 628. Simple knowledge of the elements of the

crime is not sufficient. Carreiro v. State, 5 So. 3d 1170, 1173–75 (Miss. Ct. App. 2009).

¶35.   A factual basis for a guilty plea may be established in a number of ways, including a

statement of the prosecutor, testimony of live witnesses, prior factual proceedings, as well



                                             17
as actual admissions by the defendant; it is not necessary that factual basis be established

with words spoken from the defendant’s own mouth. Corley v. State, 585 So. 2d 765, 766-

68 (Miss. 1991). The Court has noted that “[a] factual showing does not fail merely because

it does not flesh out the details which might be brought forth at trial. Rules of evidence may

be relaxed at plea hearings. Fair inference favorable to guilt may facilitate the finding.” Id.

at 767. Even the reading of a sufficiently specific indictment has been deemed acceptable.

Timmons v. State, 176 So. 3d 168, 172 (Miss. App. Ct. 2015) (quoting Drake v. State, 823

So. 2d 593, 594 (Miss. Ct. App. 2002)). We look at the record as a whole. Id.

¶36.   Therein lies the problem. The record as a whole does not answer our questions.

Nothing in the record touches on the facts of this case, and we do not know the contents of

the charging instrument to determine if it is sufficiently specific to establish a factual basis.

We do not know the dates of the crimes, the victims of the burglary, the facility from which

Ashwell escaped, the manner employed in the crimes, etc. It is regrettable that the facts of

this case played out in the manner in which they did. It is certainly not the fault of the trial,

judge who very well may have had the instrument before him at the time of the plea.

However, the facts of this case, when considering the record as a whole, require vacation of

Ashwell’s convictions. For these reasons, I concur in result only.

    RANDOLPH, P.J., MAXWELL AND BEAM, JJ., JOIN THIS OPINION.
KITCHENS, J., JOINS THIS OPINION IN PART.




                                               18
