         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2017-CP-01711-COA

JODI HANEY A/K/A JODI ANN HANEY                                              APPELLANT

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                          11/30/2017
TRIAL JUDGE:                               HON. JAMES SETH ANDREW POUNDS
COURT FROM WHICH APPEALED:                 ALCORN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    JODI HANEY (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JEFFREY A. KLINGFUSS
NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                               AFFIRMED - 01/15/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       WILSON, J., FOR THE COURT:

¶1.    In this post-conviction proceeding, Jodi Haney alleges that her guilty plea was

involuntary and that she pled guilty because of the ineffective assistance of her counsel. The

circuit court denied and dismissed Haney’s motion for post-conviction relief (PCR) as

without merit. We agree with the circuit court that Haney’s motion failed to allege a viable

PCR claim. Therefore, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    In December 2015, an Alcorn County grand jury indicted Jodi Haney and Stephen

Pharr for a drive-by shooting. See Miss. Code Ann. § 97-3-109 (Rev. 2014). In July 2016,
Pharr decided to plead guilty and gave a written statement to law enforcement. Pharr stated

that on April 14, 2015, he, Haney, a man known as “Big John,” and a man known as “Skeet”

met at a Taco Bell in Corinth to sell and trade certain illegal drugs. Pharr and Skeet did the

sale/trade in the bathroom of the Taco Bell while Haney and Big John stayed in the car.

Pharr, Haney, and Big John then drove back to Haney’s home in Alabama. The next day,

Pharr called Skeet to discuss a possible issue with the first transaction and to set up a second

transaction. They made plans to meet again at the Taco Bell later that day.

¶3.    Haney and Pharr drove to Corinth to meet Skeet. Pharr saw Haney’s gun in the car,

but he was not surprised because Haney usually had the gun with her. Pharr and Haney went

to the Taco Bell, and Skeet arrived soon after. Another man approached Skeet’s car and got

inside, and Skeet then drove away. Pharr and Haney pursued Skeet’s car. As they were

driving, Pharr heard a gunshot. He turned to look at Haney “because [he] knew she had

shot.” Haney was holding her gun in her lap. As Pharr and Haney left Corinth, he asked her,

“What the hell have you just done?” Haney calmly replied, “I just shot at him.” Pharr and

Haney then returned to Alabama. Pharr told Haney to get rid of the gun, but he did not know

what she did with it. Two days later, Pharr and Haney were arrested for the shooting.

¶4.    In July 2016, Pharr pled guilty as an accessory after the fact to the drive-by shooting.

At his plea hearing, Pharr affirmed that his written statement was true, and the court admitted

the statement into evidence as the factual basis for Pharr’s plea. As part of his plea, Pharr

agreed to testify against Haney. The State recommended a ten-year sentence with credit for

time served, the balance of the sentence suspended, and five years of post-release



                                               2
supervision. The circuit court imposed the recommended sentence.

¶5.    In her PCR motion, Haney claims that there was no evidence other than Pharr’s

statement to connect her to the shooting. Haney says that she was prepared to go to trial until

Pharr made his statement to law enforcement. However, after Pharr implicated her in the

shooting, Haney decided to enter an open guilty plea. Haney claims that her attorney advised

her that she would receive a lesser sentence if she pled guilty. Thus, in July 2016 she entered

an open guilty plea to drive-by shooting.

¶6.    At Haney’s plea hearing, she denied that she was under the influence of any alcohol,

medicine, or other drug. She denied ever having psychiatric illnesses or mental diseases.

She denied that anyone had threatened her or promised her anything in order to get her to

plead guilty. She verified that she understood that she was waiving important rights,

including her right to a jury trial and appeal. The judge stated that he intended to sentence

Haney to twenty years with eleven years suspended. However, Haney stated that she

understood that the judge could sentence her to the maximum sentence of thirty years’

imprisonment. The judge then accepted Haney’s guilty plea, finding that Haney pled guilty

knowingly, intelligently, and voluntarily.

¶7.    Haney’s sentencing hearing was held three days later. Consistent with the judge’s

statements during Haney’s plea hearing, he sentenced her to twenty years in the custody of

the Department of Corrections, with eleven years suspended and credit for time served.

¶8.    In September 2017, Haney filed a PCR motion, alleging ineffective assistance of

counsel. Haney’s motion alleged that she is innocent and that her attorney could have proven



                                              3
her innocence if he had investigated the evidence against her and pursued other exculpatory

evidence. Haney also alleged that her plea was involuntary because she was not informed

that she would be ineligible for parole. The circuit court summarily denied and dismissed

Haney’s motion. Haney appealed.

                                         ANALYSIS

¶9.    On appeal from the denial of a motion for post-conviction relief, the circuit court’s

factual findings will not be disturbed unless they are clearly erroneous. Brown v. State, 731

So. 2d 595, 598 (¶6) (Miss. 1999). As to issues of law, “the applicable standard of review

is de novo.” Id. “The circuit court may summarily dismiss a PCR petition if it is plain from

the face of the petition, any exhibits, and prior proceedings that the petitioner is not entitled

to relief.” Worth v. State, 223 So. 3d 844, 849 (¶15) (Miss. Ct. App. 2017) (citing Thomas

v. State, 159 So. 3d 1212, 1214 (¶4) (Miss. Ct. App. 2015); Miss. Code Ann. § 99-39-11(2)

(Rev. 2015)). “Dismissal is proper where the petitioner can prove no set of facts in support

of his claim that would entitle him to relief.” Id. (citing Thomas, 159 So. 3d at 1214 (¶4)).

The petitioner bears the burden of proving by a preponderance of the evidence that she is

entitled to relief. Miss. Code Ann. § 99-39-23(7) (Rev. 2015).

       I.     Ineffective Assistance

¶10.   A claim of ineffective assistance of counsel requires proof (1) that counsel’s

performance was objectively deficient and (2) that the defendant suffered prejudice as a

result. Strickland v. Washington, 466 U.S. 668, 687 (1984). If either prong of Strickland is

not met, the claim fails. Havard v. State, 928 So. 2d 771, 781 (¶8) (Miss. 2006). “A



                                               4
voluntary guilty plea waives claims of ineffective assistance of counsel, except insofar as the

alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea.” Thomas,

159 So. 3d at 1215 (¶10) (quotation marks omitted). “Thus, to obtain post-conviction relief,

a petitioner who pled guilty must prove that his attorney’s ineffective performance

proximately caused the plea—i.e., that but for counsel’s errors, the petitioner would not have

entered the plea.” Worth, 223 So. 3d at 849 (¶17). “This requires proof beyond the

petitioner’s own conclusory assertions.” Id. at 849-50 (¶17).

¶11.   In her PCR motion, Haney generally alleged that she is innocent and that her attorney

could have proven her innocence if he had investigated the evidence against her and pursued

exculpatory evidence. She asserts that her attorney “was ready to get [her] sentenced and did

not represent [her] to the best of his ability.” However, Haney’s motion offered nothing

“beyond [her] own conclusory assertions.” Id. She provided nothing else to corroborate her

bare allegations that she is innocent and that available evidence could have proven it.

¶12.   Moreover, during her plea hearing, Haney testified under oath that she was satisfied

with her attorney’s performance and that she believed that her attorney had properly advised

her and represented her best interest. “Statements made in open court under oath carry a

strong presumption of veracity.” Thomas, 159 So. 3d at 1216 (¶12) (quotation marks and

brackets omitted); accord, e.g., Gable v. State, 748 So. 2d 703, 706 (¶11) (Miss. 1999).

“[Haney’s] in-court statements that [she] was satisfied with counsel’s performance, coupled

with the complete absence of any proof to support [her] argument, causes [her] claim to fail.”

Thomas, 159 So. 3d at 1216 (¶13).



                                              5
       II.     Involuntary Plea

¶13.   In her PCR motion, Haney alleged that her guilty plea was involuntary, asserting as

follows: “Involuntary Guilty Plea: I was unaware that my sentence would not be eligible for

parole. I feel like if I knew that I could not get different benefits like thirty for thirty[1] and

a parole date I would have consider[ed] going to trial.” Elsewhere in her motion, she alleged,

“I did not know that if I took a plea I would not be given a parole date.”

¶14.   “A guilty plea is valid as long as it is entered voluntarily, knowingly, and intelligently,

with sufficient awareness of the relevant circumstances and likely consequences.” Worth,

223 So. 3d at 850 (¶19) (quotation marks omitted). “For a plea to be voluntary, knowing, and

intelligent, the judge must advise the defendant of his rights, the nature of the charge against

him, and the consequences of his plea, including applicable minimum and maximum

sentences.” Id.

¶15.   However, “[b]ecause parole is a matter of legislative grace, parole eligibility or

noneligibility is not considered a ‘consequence’ of a guilty plea.” Moore v. State, 248 So.

3d 845, 852 (¶17) (Miss. Ct. App. 2017) (quoting Mosley v. State, 150 So. 3d 127, 136-37

(¶29) (Miss. Ct. App. 2014)), cert. denied, 247 So. 3d 1264 (Miss. 2018). Therefore, “it is

not a prerequisite to a voluntary plea that the defendant understand the nature of parole, his

eligibility for parole, and the circumstances under which it may be granted.” Id. (alteration

       1
        Under Mississippi Code Annotated section 47-5-138.1 (Rev. 2015), certain offenders
may receive a thirty-day reduction in sentence for every thirty days of participation in a trusty
program, which includes participation in educational or instructional programs, work
projects, or special incentive programs. An offender convicted of a drive-by shooting is
specifically excluded from this program until she has “served the mandatory time required
for parole eligibility.” Id. at (d).

                                                6
omitted). A plea may be rendered involuntary only if the “defendant is affirmatively

misinformed regarding the possibility of parole and pleads guilty in reliance on the

misinformation.” Id. (emphasis omitted).

¶16.   Haney’s PCR motion failed to state a viable claim that her guilty plea was involuntary

and invalid. As stated above, her PCR motion alleged only that she “was unaware that [her]

sentence would not be eligible for parole” and that she “did not know that [she] would not

be given a parole date.” Again, a defendant’s failure to “understand . . . [her] eligibility for

parole” does not render her guilty plea invalid. Moore, 248 So. 3d at 252 (¶17); see also

Jackson v. State, 178 So. 3d 807, 810 (¶13) (Miss. Ct. App. 2014) (“[B]eing unaware of

ineligibility for parole is not synonymous with ill or erroneous advice. A defendant does not

possess a constitutional right to full parole information at or before his guilty plea.”

(quotation marks omitted)). Therefore, the circuit court properly rejected Haney’s claim as

without merit.

¶17.   Moreover, Haney failed to allege that she pled guilty “in reliance on” her supposed

misapprehension regarding parole. Moore, 248 So. 3d at 252 (¶17). As stated above,

Haney’s PCR motion stated that she “fe[lt] like if [she] knew that [she] could not get . . . a

parole date,” then she “would have consider[ed] going to trial.” That falls short of alleging

that she pled guilty in reliance on any misunderstanding regarding her eligibility for parole.

¶18.   In her appellate brief, Haney claims, for the first time, that her attorney affirmatively

misinformed her regarding her eligibility for parole. However, this claim is procedurally

barred because it was not alleged in Haney’s PCR motion and is raised for the first time on



                                               7
appeal. See, e.g., Jones v. State, 844 So. 2d 499, 501 (¶14) (Miss. Ct. App. 2003); Hoskins

v. State, 812 So. 2d 1043, 1045 (¶9) (Miss. Ct. App. 2001); McClurg v. State, 758 So. 2d

473, 477 (¶9) (Miss. Ct. App. 2000).

¶19.   Finally, in her reply brief on appeal, Haney relies on the following comments by the

trial judge at the conclusion of the sentencing hearing:

       You’re sentenced in this case . . . to 20 years, 11 years will be suspended
       pending your future good behavior, no violation of any state, federal or local
       law, or terms and conditions of your post-release supervision, which will be
       for a period of five years. That leaves you nine years to serve, minus any time
       that you served in the local jail. Now, nine years doesn’t mean nine years.
       You’ll probably have to do 50 percent of this. Of course, if you get down
       there and don’t act right, cause trouble, get in a fight, or whatever, they could
       end up keeping you the whole nine years.

Haney suggests that these comments misled her regarding her parole eligibility and eligibility

for “thirty for thirty” time. See supra n.1.

¶20.   However, the circuit judge made these comments three days after Haney pled guilty.

Thus, Haney clearly did not plead guilty in reliance on the judge’s offhand estimate of how

much time she “probably” would serve in prison. Therefore, the judge’s comments cannot

possibly serve as a basis for Haney’s claim that her guilty plea was involuntary and invalid.

                                       CONCLUSION

¶21.   Haney’s PCR motion failed to allege a viable claim of ineffective assistance of

counsel or an involuntary guilty plea. Accordingly, the circuit court properly denied and

dismissed the motion without an evidentiary hearing.

¶22.   AFFIRMED.

       GRIFFIS, C.J., BARNES AND CARLTON, P.JJ., AND GREENLEE, J.,

                                               8
CONCUR. WESTBROOKS, J., CONCURS IN PART AND IN THE RESULT
WITHOUT SEPARATE WRITTEN OPINION. TINDELL, J., SPECIALLY
CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY GREENLEE AND
WESTBROOKS, JJ. McDONALD, LAWRENCE AND McCARTY, JJ., NOT
PARTICIPATING.

       TINDELL, J., SPECIALLY CONCURRING:

¶23.   Mississippi Code Annotated section 97-3-2(2) (Rev. 2014) states that “[n]o person

convicted of a crime of violence listed in this section is eligible for parole or for early release

from the custody of the Department of Corrections until the person has served at least fifty

percent (50%) of the sentence imposed by the court.” Many attorneys and trial courts could

interpret section 97-3-2(2) to mean that Haney is eligible for parole after serving 50% of her

sentence.2 However, Mississippi Code Annotated section 47-7-3(1)(g)(i) (Rev. 2015) states

that “[n]o person who, on or after July 1, 2014, is convicted of a crime of violence pursuant

to Section 97-3-2, a sex crime[,] or an offense that specifically prohibits parole release, shall

be eligible for parole.” The parole board apparently relies on the latter statute in its

determination that Haney is ineligible for parole. Based upon a plain reading of these

statutes, it is easy to see how the conflicting language may create confusion in understanding



       2
           Here, the trial judge stated the following at the conclusion of Haney’s sentencing
hearing:

       You’re sentenced in this case . . . to 20 years, 11 years will be suspended
       pending your future good behavior, no violation of any state, federal[,] or local
       law, or terms and conditions of your post-release supervision, which will be
       for a period of five years. That leaves you nine years to serve, minus any time
       that you served in the local jail. Now, nine years doesn’t mean nine years.
       You’ll probably have to do 50 percent of this. Of course, if you get down
       there and don’t act right, cause trouble, get in a fight, or whatever, they could
       end up keeping you the whole nine years.

                                                9
parole eligibility for practitioners, defendants, and trial courts.3

¶24.   Our statutory law also presently requires that, “within ninety (90) days of admission,

the caseworker shall notify the inmate of [his or her] parole[-]eligibility date.” Miss. Code

Ann. § 47-7-3.1(3)(a) (Rev. 2015). Coupled with the previously mentioned conflicting

statutes, this post-sentencing determination of parole eligibility denies defendants, trial

judges, prosecutors, victims, and the general public the ability to fully understand the

consequences of a sentence until after the sentence has been rendered.4 Further, this post-

sentencing determination has created a scenario where many defense attorneys,

understandably, are reluctant to give advice regarding parole eligibility because, if wrong,

an inmate could later claim ineffective assistance of counsel.5

¶25.   As the majority correctly states, Haney currently possesses no constitutional right to

be informed prior to or at the time of the trial court’s acceptance of her guilty plea that her

sentence is ineligible for parole. This is because, in 1980, the Mississippi Supreme Court

concluded, in a 5-to-4 decision, that a defendant is not entitled to information regarding


       3
        The correct interpretation of these two statutes is not currently before this Court on
appeal. As such, it will not be addressed here.
       4
         In some cases, such as that of a habitual offender, it is abundantly clear that criminal
defendants will be ineligible for parole, but in others, such as Haney’s case, it remains
unclear.
       5
        As is demonstrated by multiple decisions, our courts have determined that a defense
attorney’s provision of the wrong parole-eligibility advice is a ground for an ineffective-
assistance-of-counsel claim whereas no advice on the subject fails to constitute a ground for
such a claim. See Fairley v. State, 834 So. 2d 704, 707 (¶8) (Miss. 2003); Thinnes v. State,
196 So. 3d 204, 210-11 (¶¶26-27) (Miss. Ct. App. 2016); Mosley v. State, 150 So. 3d 127,
137 (¶¶29-30) (Miss. Ct. App. 2014); Sylvester v. State, 113 So. 3d 618, 624 (¶¶24-25) (Miss.
Ct. App. 2013).

                                               10
parole eligibility before entering a guilty plea. Ware v. State, 379 So. 2d 904, 907 (Miss.

1980). Across the country, States remain divided on the issue. See McCary v. State, 93 So.

3d 1002, 1007 (Ala. Crim. App. 2011) (holding that, where the relevant statute makes parole

ineligibility a direct consequence of a guilty plea, the defendant is entitled to be informed of

parole ineligibility prior to pleading guilty); In re Angel R., 118 A.3d 117, 860 (Conn. App.

Ct. 2015) (recognizing that a defendant must be informed of the direct consequences of his

plea but that the failure to inform a defendant of “all possible indirect and collateral

consequences does not render a plea unintelligent or involuntary in a constitutional sense”);

Alexander v. State, 772 S.E.2d 655, 660 (Ga. 2015) (finding that defense counsel had a duty

to advise defendant about automatic parole ineligibility prior to the defendant pleading

guilty).

¶26.   I write today in the hope of encouraging our current supreme court to readdress the

position adopted by Ware. In some instances, parole eligibility determines whether one

spends decades in prison. As such, I believe parole eligibility itself is a direct consequence

of a plea and one that defendants, trial judges, prosecutors, victims, and the general public

should have knowledge of prior to sentencing. For these reasons, I specially concur with the

majority’s opinion.

       GREENLEE AND WESTBROOKS, JJ., JOIN THIS OPINION.




                                              11
