                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 97-CP-00392-SCT
THEODUS LINDSAY
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                               03/12/97
TRIAL JUDGE:                                    HON. GRAY EVANS
COURT FROM WHICH APPEALED:                      LeFLORE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                         PRO SE
ATTORNEY FOR APPELLEE:                          OFFICE OF THE ATTORNEY GENERAL
                                                BY: DEWITT ALLRED
DISTRICT ATTORNEY:                              NOEL CROOK
NATURE OF THE CASE:                             CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                    AFFIRMED - 08/13/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                 9/3/98




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


     SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:


¶1. On October 10, 1993, Theodus Lindsay was indicted on charges of armed robbery for stealing a
wallet at gun point in Leflore County, Mississippi. After Lindsay entered a plea of guilty before the
Honorable Gray Evans, he was convicted and sentenced under Mississippi statute § 97-3-79 for a
term of fifteen (15) years, ten of which must be served before he can be eligible for parole. Lindsay
was informed of the results of the probable sentence he would receive on two separate occasions,
once by the trial judge, and once by his attorney. His sentence is to run concurrently with a previous
unrelated sentence.

¶2. Lindsay alleges he has the HIV virus, and the trial court accepted this allegation as fact in its
denial of Post Conviction Relief. He further claims his attorney knew of his diagnosis but this fact
was not disclosed to the judge at the time of sentencing.

¶3. On October 28, 1996, Lindsay entered a motion for Post Conviction Relief to vacate and set-
aside his conviction and sentence. In support of this motion Lindsay is claiming that he received
ineffective counsel and that the sentence he received was illegal because it was in effect a life
sentence. On March 12, 1997, an order was issued by the Circuit Court of Leflore County,
Mississippi, dismissing Lindsay's motion. On April 29, 1997, Lindsay appealed the dismissal of his
motion to the Mississippi Supreme Court. We find that Lindsay did not receive ineffective assistance
of counsel and his allegation that he received an unlawful sentence is without merit.

   I. WHETHER LINDSAY WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
 BECAUSE HIS COUNSEL FAILED TO INFORM THE COURT OF DEFENDANT'S HIV
                              STATUS.

¶4. Lindsay claims because his attorney did not reveal his HIV status, that his attorney was ineffective
as counsel, and he was therefore denied his Sixth Amendment right to representation and Fourteenth
Amendment right to due process. In a case that involves ineffective assistance of counsel, the test
that governs is that which was set out by the U.S. Supreme Court in the case of Strickland v.
Washington. This test has been adopted by this Court, and governs in this case. Stringer v. State,
454 So.2d 468, 476 (Miss. 1984). In order to prove that counsel was ineffective a defendant must
show 1) counsel's performance was deficient, and 2) the deficiency prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Both parts of this test must be met for
defendant to prove ineffective assistance of counsel. Edwards v. State, 615 So.2d 590, 596 (Miss.
1993). There is also a presumption that trial counsel is competent, and that counsel's conduct is
reasonable. Id. at 596.

¶5. The claim that Lindsay's attorney gave deficient assistance arises out of his attorney's failure to
reveal Lindsay's HIV status to the court, and his attorney's failure to tell him the possible sentence he
may receive for pleading guilty. Upon review of the record, these claims are proven to be without
merit. In the record, the trial court judge, the Hon. Gray Evans, states, "There is nothing in the
record to suggest that defense counsel's performance was deficient when measured by the objective
standard of reasonable professional competence." The lower court judge states that the defendant
was told two times, once by the court and once by his attorney, that by pleading guilty, he would be
required to serve ten (10) years.

¶6. In examining applicable case law, it is further shown that Lindsay's claims are without merit. The
only affidavits in the record that suggest appellant's counsel was deficient are those filed by Lindsay.
This is not enough to prove ineffective assistance. In a case involving Post Conviction Relief, this
Court has held, "that where a party offers only his affidavit, then his ineffective assistance of counsel
claim is without merit." Vielee v. State, 653 So.2d 920, 922 (Miss. 1995). See also Brooks v. State,
573 So.2d 1350 (Miss. 1990); Smith v. State, 490 So.2d 860 (Miss. 1986). Since that is all that the
appellant offers, his claim of ineffective assistance must fail.

¶7. Another alleged deficiency of counsel is based on a conflict of interest problem. Lindsay contends
that he was brought up on charges in juvenile court, and the judge that sentenced him in youth court
is the attorney who represented him in this case. This fact is not supported by the record. Lindsay
offers no evidence that would lead one to believe that even if this is true, this former association had
a detrimental effect on his attorney's performance. In addition, according to the Mississippi Rules of
Professional Conduct, a judge can represent a party that he has adjudicated over, as long as the case
does not involve the same matter. Miss. R. Prof. Conduct Rule 1.12 (a). Since Lindsay's armed
robbery conviction has nothing to do with his youth court conviction, it is clear that there is no
conflict of interest because these cases do not involve the same matter.
¶8. In this case, Lindsay does not offer convincing arguments or evidence that could overcome this
burden and prove that his attorney's performance was in some way deficient. Lindsay fails to prove
his case meets the first prong of the Strickland test; therefore, it is unnecessary to examine the
second prong. Foster v. State, 687 So.2d 1124, 1133 (Miss. 1996). Since the attorney's performance
was not deficient, there is no reason to examine how that deficient performance was prejudicial to the
appellant's case. Id. at 1133. Lindsay's claim of ineffective assistance of counsel lacks merit.

  II. WHETHER THE FIFTEEN (15) YEAR SENTENCE LINDSAY RECEIVED WAS IN
  EFFECT AN ILLEGAL LIFE SENTENCE BECAUSE IT WAS HANDED DOWN BY A
          JUDGE WITHOUT KNOWLEDGE OF LINDSAY'S HIV STATUS.

¶9. Lindsay also claims the fifteen year sentence he received is an illegal life sentence because it was
handed down by a judge, not a jury, who had no knowledge of appellant's HIV status or his life
expectancy. The appellant was sentenced under the Mississippi armed robbery statute, Miss. Code
Ann. § 97-3-79 (1994), which states:

     Every person who shall feloniously take or attempt to take from the person or from the
     presence the personal property of another and against his will by violence to his person or by
     putting such person in fear of immediate injury to his person by the exhibition of a deadly
     weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state
     penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the
     penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at
     imprisonment in the state penitentiary for any term not less than three (3) years.

Miss. Code Ann. § 97-3-79 (1994). When a jury fails to hand down a life sentence this statute sets
the sentencing guidelines at no less than three years and a term of years less than life. Lindsay
received a 15 year sentence with possibility of parole in ten years. This sentence fits into the
guidelines set out by the statute as a lawful sentence. Also Lindsay's attorney was not deficient in
neglecting to reveal appellant's HIV status. Because the sentence is allowed under the statute,
Lindsay's attorney's legal representation was not deficient for failing to object. We find that the
sentence Lindsey received is not a life sentence, even considering his HIV status.

¶10. The main contention by Lindsay was that the sentence he received was illegal because it
amounts to a life sentence for him because he must serve 10 years mandatory time. Lindsay argues
the average life expectancy of a person with HIV/AIDS is ten years, and because of this, his sentence
exceeds his life expectancy. There is no proof to support this contention in the record.

¶11. In cases where the judge has in effect sentenced the defendant to a term of years that is basically
a life sentence, the rule that governs in Mississippi is the one set out in the case Stewart v. State, 372
So.2d 257, 259 (Miss. 1979). The rule as set out by the Stewart case states, "...the trial court will
make a record of and consider all relevant facts necessary to fix a sentence for a definite term [of
years] reasonably expected to be less than life. The court should consider the age and life expectancy
of the defendant and any other pertinent facts which would aid in fixing a proper sentence." Stewart,
372 So.2d at 259.

¶12. Lindsay cites Stewart because this Court overruled the sentence the lower court gave the
defendant for armed robbery, stating it was basically a life sentence. Id. at 259. The Stewart case and
the case at hand, however, are two very different cases. The sentence the defendant in the Stewart
case received was a seventy-five (75) year sentence, whereas the sentence appellant received in this
case is fifteen (15) years. Id. at 258. The Court found that seventy-five years is a very excessive term
of years and it is one that can be considered a life sentence. Id. at 259. Fifteen years is not an
excessive sentence for armed robbery, and it is one that fits in the sentencing guidelines of the statute.
This Court has found that sentencing," . . . is within the discretion of the trial court, and this Court
will not review the sentence, if it is within the limits prescribed by statute." Reynolds v. State, 585
So.2d 753, 756 (Miss. 1991). See also Wallace v. State, 607 So.2d 1184, 1188 (Miss. 1992); Berdin
v. State, 648 So.2d 73, 80 (Miss. 1994). Lindsay's sentence was not less than three (3) years, and it
was for a term of years less than life. Because of this, the sentence that Lindsay received was within
the statutory guidelines and the trial court did not abuse its discretion. Coupled with the fact
appellant has already been convicted of two other crimes and the fifteen (15) year sentence was
running concurrently with another sentence, Lindsay's sentence is not excessive nor is it a life
sentence, but a sentence for a term of years.

¶13. Because of his life expectancy, Lindsay claims that had the judge known of his HIV status, then
he would have received a much lighter sentence. Lindsay bases much of his argument on the
assumption that people with HIV/AIDS have an average life expectancy of ten years. Nowhere
within the record is there offered any proof from medical journals or other sources substantiating
such a statement. Lindsay does state that he could have a doctor testify as to his status, but this does
not substantiate his claim about the average life span of a person with HIV. Lindsay cannot argue his
sentence is in effect a life sentence when he offers only opinion as to what that life expectancy will be.

¶14. This Court in several cases, has upheld sentences that neared what could be considered life
sentences while taking into account the defendant's life expectancy. Wilson v. State, 390 So.2d 575,
580 (Miss. 1980); Ware v. State, 410 So.2d 1330, 1332 (Miss. 1982). In the Ware case, the
defendant was given a 40 year sentence when he had an actuarial life expectancy of 40.51 years.
Ware, 410 So.2d at 1332. Though the sentence neared the defendant's life expectancy, the evidence
indicated that the defendant should receive every year possible. Id. at 1332.

¶15. In the Wilson case, the defendant was given a 20 year sentence when his life expectancy was 22
years. Wilson, 390 So.2d at 580. The Wilson case made reference to Stewart, in that the Court
considered other pertinent facts which led the judge to decide that the defendant deserved a harsh
sentence. Id. at 580. In Wilson, reference was made to the fact that though the sentence neared a life
sentence, the defendant showed little remorse for what he had done, and he had not helped the police
to catch his accomplices. Id. at 580. Because of this, his life expectancy was not weighed as heavily
as the other pertinent facts. Id. at 580.

¶16. Life expectancy may be outweighed by other pertinent facts and is but one factor to consider.
Besides armed robbery, Lindsay has been convicted of aggravated assault and sale of cocaine
indicating appellant's criminal tendencies have not been diminished. The sentence appellant claims is
illegal is lawfully allowed under the statute. At the time of sentencing, appellant made no effort to
inform the court of his HIV status, and did not do so until he went to prison. This weighs heavily
against Lindsay. Even though Lindsay may have HIV, it does not change the fact he committed a
serious crime for which he must pay the penalty.
¶17. The fifteen year sentence appellant received was a lawful sentence under the sentencing
guidelines of Miss. Code Ann. § 97-3-79 (1994) which is not an overly excessive sentence in view of
Lindsay's conviction. For all these reasons, Lindsay's claim that the fifteen year sentence handed
down by the trial court judge is an illegal life sentence is without merit.

¶18. Lindsay fails to meet the requirements of the two prong Strickland test to show ineffective
assistance of counsel. The sentence appellant received is one which is lawful under the sentencing
guidelines, and it is one that could not be considered a life sentence. For these reasons, we affirm the
dismissal of appellant's motion for Post Conviction Relief.

¶19. AFFIRMED.

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