                        IN THE SUPREME COURT OF MISSISSIPPI
                                 NO. 95-CA-01322-SCT
JOHN R. HOBSON a/k/a JOHN RICHARDSON
HOBSON a/k/a JOHN LEE CLARK
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:                             01/19/95
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: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                            FRANK CARLTON
NATURE OF THE CASE:                           CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                  AFFIRMED - 10/16/97
MOTION FOR REHEARING FILED:                   10/24/97
MANDATE ISSUED:                               12/15/97




     BEFORE PRATHER, P.J., BANKS AND McRAE, JJ.

     McRAE, JUSTICE, FOR THE COURT:




This case arises from a January 19, 1995 order of the Leflore County Circuit Court denying John R.
Hobson's Motion to Vacate and Set Aside Conviction and Sentence. We find no merit to Hobson's
assertions that his attorney's performance was ineffective, that his guilty plea was not obtained
voluntarily, that his first amendment rights were violated during the sentencing hearing, and that
various constitutional rights were violated prior to his guilty plea and sentencing hearing.
Accordingly, the decision of the circuit court is affirmed.

                                                I.

Hobson was indicted by a grand jury of the Leflore County Circuit Court on February 12, 1993,
along with three others, for armed robbery. He initially entered a plea of not guilty. On July 6, 1993,
he changed his plea to guilty in that action as well as to a separate charge of burglary. Hobson's guilty
plea was entered on July 16, 1993 and he was sentenced to ten years in the custody of the MDOC.

Hobson filed a Motion to Vacate and Set Aside Conviction and Sentence, a hearing on which was
held December 12, 1995. He asserted that counsel was ineffective, that his guilty plea was not
entered voluntarily and that his sentence was constitutionally invalid. Finding no merit to the issues
raised, the circuit court dismissed Hobson's request for relief on January 19, 1995.

                                                   II.

Hobson first asserts that his attorney provided ineffective assistance in advising him on his guilty plea.
He contends that she failed to advise him of his right against self- incrimination and that he had a
right to a lesser-included offense instruction if the case proceeded to trial. He further claims that his
attorney was not adequately prepared for the proceedings.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must prove that his
attorney's performance was deficient, and that the deficiency was so substantial as to deprive him of a
fair trial. Strickland v. Washington, 466 U.S. 668, 687-96 (1984); Wilcher v. State, 479 So. 2d 710,
713 (Miss. 1985); Stringer v. State, 454 So. 2d 468, 477 (Miss. 1984). This Court looks at the
totality of the circumstances to determine whether counsel's efforts were both deficient and
prejudicial. Carney v. State, 525 So. 2d 776, 780 (Miss. 1988); Read v. State, 430 So. 2d 832, 839
(Miss. 1983). "Judicial scrutiny of counsel's performance [is] highly deferential." Strickland, 466
U.S. at 689. There is a strong but rebuttable presumption that counsel's conduct falls within the wide
range of reasonable professional assistance. Carney, 525 So. 2d at 780; Gilliard v. State, 462 So. 2d
710, 714 (Miss. 1985). Only where it is reasonably probable that but for the attorney's errors, the
outcome of the trial would have been different, will this Court find that counsel's performance was
deficient. Dickey v. State, 662 So. 2d 1106,1109 (Miss. 1995); Reed v. State, 536 So. 2d 1336, 1339
(Miss. 1988).

As to Hobson's first assertion that his attorney failed to advise him of his right against self-
incrimination, there is nothing in the record either to support or refute this allegation. The burden is
on the defendant to designate the record. Jackson v. State, 689 So.2d 760, 764 (Miss. 1997); Davis
v. State, 684 So. 2d 643, 651 (Miss. 1996). We have stated:

     This Court will not consider matters which do not appear in the record and must confine itself
     to what actually does appear in the record. Dillon v. State, 641 So.2d 1223, 1225 (Miss.1994).
     Moreover, we cannot decide an issue based on assertions in the briefs alone; rather, issues must
     be proven by the record. Ross v. State, 603 So.2d 857, 861 (Miss.1992). As we stated in
     Mason v. State, 440 So.2d 318 (Miss.1983),

     We have on many occasions held that we must decide each case by the facts shown in the
     record, not assertions in the brief, however sincere counsel may be in those assertions. Facts
     asserted to exist must and ought to be definitely proved and placed before us by a record,
     certified by law; otherwise, we cannot know them. [citations omitted].

     Id. at 319.
Robinson v. State, 662 So.2d 1100, 1104 (Miss. 1995). Because Hobson has failed to provide any
evidence of his attorney's failure to fully advise him of his rights beyond the allegations raised in his
briefs, we cannot say that counsel's performance fell outside the realm of what would be considered
to be reasonable professional assistance in advising her client of his rights or waiver thereof.

Hobson further asserts that his attorney should have advised him that had the case gone to trial, he
would have been entitled to a lesser-included offense instruction. He therefore contends that he was
misadvised to enter his guilty plea to the charge of armed robbery. Attorneys, however, are permitted
wide latitude in their choice of defense strategy. Hiter v. State, 660 So.2d 961, 965 (Miss. 1995);
Edwards v. State, 615 So.2d 590, 596-97 (Miss.1993).

Relying on Moore v. State, 493 So. 2d 1295, 1298 (Miss. 1986), the circuit court judge, in his order
dismissing Hobson's motion, found that Hobson was not entitled to a lesser-included offense
instruction even though he did not wield a weapon. In Moore, this Court determined that regardless
of whether a participant in an armed robbery was holding a gun, he could be found guilty of armed
robbery and was not entitled to a lesser-included offense instruction. Id. at 1298-1299 (citing
Robinson v. State, 465 So. 2d 1065, 1070 (Miss. 1985))("[O]ne who acts in concert with another in
the perpetration of a robbery need not actually wield a weapon in order to be found guilty of armed
robbery"). Hobson, apparently contrary to the testimony of his co-defendants, asserts that he merely
drove the get-away car and thus was entitled to a lesser-included offense instruction as an accessory
after the fact. He relies on Gangl v. State, 539 So. 2d 132 (Miss. 1989), where there was no
evidence linking the driver of the get-away car with any events prior to or contemporaneous with the
armed robbery of a drug store. In that case, because of the clear evidentiary basis for granting an
instruction for the lesser-included offense of accessory after the fact, this Court found that such an
instruction should have been granted even though the defendant was not separately indicted on that
charge. Gangl, 539 So. 2d at 137. In the case sub judice, however, Hobson has provided no
evidence limiting his participation to driving the get-away car. The circuit court judge, who also
heard the guilty pleas of Hobson's three co-defendants, was clearly in a better position to determine
whether there was any merit to this issue when it was raised in his Motion to Vacate and Set Aside
Sentence. Based on the circuit court's findings, it cannot be said, that but for Hobson's attorney's
strategic decisions, he might have fared better had he not entered his plea of guilty.

Finally, Hobson pulls the language "I don't know how to proceed" from his attorney's comments
during the guilty plea hearing and claims that she was not prepared for the proceeding. Put in the
proper context, the attorney was merely indicating to the judge that she wanted to know his
preference for her presentation of the various mitigating factors she had discovered in researching
Hobson's background, e.g., whether he wanted a narrative statement and where she was to stand.
There is no merit, therefore, to this assertion.

                                                   III.

Hobson next asserts that his guilty plea was not entered voluntarily and intelligently because he was
not advised of his right against self-incrimination and that by entering a guilty plea, he waived that
right. He contends that neither his attorney nor the circuit court advised him that he had a right
against self-incrimination. As discussed in Issue I, supra, Hobson has provided this Court with no
evidence that he was not advised of his rights by his attorney. He presents only the allegations raised
in his briefs. This Court does not decide matters based on assertions in the briefs alone; rather, issues
must be proven by the record. Robinson, 662 So.2d at 1104.

At the guilty plea hearing, the circuit court advised Hobson of the minimum and maximum penalties
he could face on both the armed robbery and burglary charges. He further explained to Hobson:

     I want you to understand, Mr. Hobson, you do not have to plead guilty. You have every right
     to a jury trial. Going into that trial, you would be presumed innocent. The whole burden of
     proof would be on the State. The State would present its witnesses, each of whom your
     attorney would have a right and obligation to cross-examine. After that part of the trial, you
     would put on your defense. The court would require the attendance of any witnesses you might
     wish to testify in your behalf. So, you would have an opportunity to testify if you desired to do
     so. However, you could not be required to do so. If you and your attorney determined that it
     was not in your best interest and you didn't testify, the Court would instruct the jury before it
     retired to consider its verdict that no inference of guilt could be drawn from the fact that you
     failed to testify. You would be entitled to a unanimous verdict. If the jury did find you guilty
     and you were dissatisfied with the finding of the jury, you would have the right to take an
     appeal to the Mississippi Supreme Court. Do you understand your rights?

The circuit court adequately advised Hobson of his rights as required by Uniform Criminal Rule of
Circuit Court Practice 3.03(3), in effect at the time of Hobson's guilty plea and sentencing.

                                                   IV.

Hobson received a ten-year sentence for armed robbery. He now alleges that the circuit judge based
the sentence on his belief that Hobson had participated in "some cult." Thus, he asserts that his first
amendment rights were violated.

"Sentencing is within the complete discretion of the trial court and not subject to appellate review if it
is within the limits prescribed by statute." Hoops v. State, 681 So. 2d 521, 537 (Miss. 1996);
Edwards v. State, 615 So. 2d 590, 597 (Miss. 1993); Reynolds v. State, 585 So. 2d 753, 756 (Miss.
1991). A sentence generally will not be disturbed on appeal unless it exceeds the maximum statutory
penalty. Hoops, 681 So. 2d at 538; Fleming v. State, 604 So. 2d 280, 302 (Miss. 1992).

Miss. Code Ann. § 97-3-79 (1994), the statute under which Hobson was indicted and sentenced,
provides for a life sentence for armed robbery when the defendant is convicted by a jury. It further
provides that "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." § 97-3-79 (emphasis added). Hobson's sentence, therefore, does not
exceed the statutory maximum and is not subject to appellate review.

There further is no merit to Hobson's attempt to create a constitutional challenge to his sentence. At
the July 16, 1993 hearing where Hobson was sentenced, his attorney presented various mitigating
factors to the court. Questioning Hobson on the negative influence one of his co-defendants, Ivan
Cresswell, had had upon him, the judge asked if the young men had "some sort of little cult." The
following exchange then took place:
     [BY THE COURT]:

     Q. I heard something about wanting some blood and some hair; what's all that about?

     A. I was thinking about suicide and I thought that maybe Ivan could bring my soul back
     because he had told me he could.

     Q. Uh-uh-mmmmmm.

     BY MS. STUCKEY: That was the point I asked for a mental exam, Your Honor.

     Q. Did ya'll meet and have any rituals?

     A. No, sir.

     Q. Didn't ever kill any animals?

     A. No, sir.

     Q. Did you talk about that?

     A. Not really.

     Q. Well now that really doesn't tell me a lot.

     A. Ah, he just always told me different things like at concerts and different stuff, that had the
     concerts and that he had read the Satanic Bible and stuff. As far as actual being involved in any
     of it, I wasn't.

     Q. Well do you still think he may have any special powers?

     A. No, sir, I've done a lot of thinking and reading the Bible. I figured out that he's just . . . he
     was full of hogwash but at the time I was confused.

Nothing in this exchange can be construed as tagging Hobson with any particular religious beliefs or
making any finding that adversely affected his sentence. Moreover, looking at the context of the
proceedings in which the exchange arose, the circuit court and Hobson's attorney were focusing on
mitigating factors to explain his behavior and/or reduce his sentence. There is no merit, therefore, to
this assertion.

                                                    V.

Hobson also contends that he was not advised of his Miranda rights by arresting officers prior to
questioning and that he was denied the opportunity for a preliminary hearing. He concedes that these
issues were not raised in any of the proceedings below. Therefore, they are not properly before this
Court. Brandau v. State, 662 So. 2d 1051, 1053 (Miss. 1995)(only matters of jurisdiction may be
raised for the first time on appeal); Ross v. State, 603 So. 2d 857, 861 (Miss. 1992); Patterson v.
State, 594 So. 2d 606, 609 (Miss. 1992). "[A] trial judge cannot be put in error when he was not
given the opportunity to address the issue." Robinson, 662 So. 2d at 1104; Holland v. State, 587 So.
2d 848, 868 n. 18 (Miss. 1991). Moreover, there is nothing in the record to support the assertions
made. Jackson, 689 So. 2d at 764; Davis, 684 So. 2d at 651.

                                                 VI.

Finding no merit to the issues raised by Hobson, we affirm the order of the circuit court denying his
Motion to Vacate and Set Aside Conviction and Sentence.

LOWER COURT'S DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

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