                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 95-KP-00346-SCT
TROY COOK a/k/a TROY E. COOK
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:                              03/12/95
TRIAL JUDGE:                                   HON. R. KENNETH COLEMAN
COURT FROM WHICH APPEALED:                     UNION COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        PRO SE
ATTORNEY FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL

                                               BY: SCOTT STUART
DISTRICT ATTORNEY                              LAWRENCE L. LITTLE
NATURE OF THE CASE:                            CRIMINAL - POST CONVICTION RELIEF
DISPOSITION:                                   AFFIRMED - 6/5/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                6/26/97




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

     SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:




Troy Cook was indicted during the September 1992 Term of the Union County Circuit Court for
burglary of an inhabited dwelling with the intent to commit an assault as a habitual offender under
Miss. Code Ann. § 99-19-83. The indictment charged that Cook broke into Ozelia Eslinger's home
on July 3, 1992, with the intent to assault her. On September 10, 1992, Cook pled guilty to the
reduced habitual offender charge under Miss. Code Ann. § 99-19-81, reducing the mandatory
sentence from life imprisonment without parole to a mandatory fifteen-year sentence without parole.
Circuit Court Judge William R. Lamb accepted Cook's guilty plea, and sentenced him to serve the
mandatory fifteen-year term with the Mississippi Department of Corrections, without possibility of
parole.

On April 15, 1994, Cook filed his Petition for Post-Conviction Collateral Relief in the Circuit Court
of Union County. In his petition, Cook claimed that his guilty plea was not entered knowingly and
voluntarily due to ineffective assistance of counsel. He also asserted that his attorney's performance
was deficient due to the lack of a habitual offender hearing and because he failed to file a motion to
dismiss due to pre-trial publicity released by Union County Police Chief David Grisham. Cook filed a
petition for writ of mandamus with this Court on September 27, 1994, requesting that the Circuit
Court of Union County be ordered to issue a ruling on his petition for post-conviction collateral
relief. Finding that it was manifest that Cook was not entitled to any relief, Circuit Judge R. Kenneth
Coleman ordered that Cook's petition be denied pursuant to Miss. Code Ann. § 99-39-11(2) on
March 12, 1995. This Court then issued its order dismissing Cook's petition for writ of mandamus as
moot on March 27, 1995. Cook filed his notice of appeal to this Court on March 31, 1995.

                                    STATEMENT OF THE LAW

                                                     I.

  WHETHER THE CIRCUIT COURT ERRED IN FAILING TO PROVIDE APPELLANT
           WITH A COPY OF THE PLEA HEARING TRANSCRIPT.

Cook first argues that the trial court's denial of his request for a free copy of his plea transcript denied
him due process, because it deprived him of the ability to properly present his claims in his petition
for post-conviction relief. He cites Britt v. North Carolina, 404 U.S. 226 (1971), in support of this
proposition. In that opinion, the United States Supreme Court stated:

     Griffin v. Illinois and its progeny establish the principle that the State must, as a matter of
     equal protection, provide indigent prisoners with the basic tools of an adequate defense or
     appeal, when those tools are available for a price to other prisoners. While the outer limits of
     that principle are not clear, there can be no doubt that the State must provide an indigent
     defendant with a transcript of prior proceedings when that transcript is needed for an effective
     defense or appeal. . . . In prior cases involving an indigent defendant's claim of right to a free
     transcript, this Court has identified two factors that are relevant to the determination of need:
     (1) the value of the transcript to the defendant in connection with the appeal or trial for which it
     is sought, and (2) the availability of alternative devices that would fulfill the same functions as a
     transcript.

Britt, 404 U.S. at 227 (citing Griffin v. Illinois, 351 U.S. 12 (1956); Williams v. Oklahoma City,
395 U.S. 458 (1969); Gardner v. California, 393 U.S. 367 (1969); Roberts v. LaVallee, 389 U.S.
40 (1967); Long v. District Court of Iowa, 385 U.S. 192 (1966); Draper v. Washington, 372 U.S.
487 (1963); Eskridge v. Washington State Bd. of Prison Terms and Paroles, 357 U.S. 214 (1958)).

The Mississippi Uniform Post-Conviction Collateral Relief Act controls the procedure for appellate
review via a post-conviction relief motion in this state. Miss. Code Ann. § 99-39-1 et seq. "A
prisoner who has filed a proper motion pursuant to this Act, and whose motion has withstood
summary dismissal under § 99-39-11(2), may be entitled to trial transcripts or other relevant
documents under the discovery provisions of § 99-39-15, upon good cause shown and in the
discretion of the trial judge." Fleming v. State, 553 So.2d 505, 506 (Miss. 1989).

     Under 28 U.S.C. § 753, an indigent prisoner is entitled to a free transcript in pursuit of post-
     conviction collateral relief if a judge certifies that the claim is 'not frivolous' and that the
     transcript is 'needed to decide the issue presented.' The United States Supreme Court held that
     requiring the prisoner to satisfy these conditions at the collateral review stage did not violate
     either the due process or equal protection guarantees of the U.S. Constitution.

Id. at 507 (citing U.S. v. MacCollom, 426 U.S. 317, 325 (1976)). "The state has a serious obligation
to assist an indigent in getting a fair trial but it is under no duty to subsidize fishing expeditions."
Fisher v. State, 532 So.2d 992, 999 (Miss. 1988).

The record in this case does not reflect any denied request for a free transcript by Cook. However,
even if Cook did make a request for a copy of his plea transcript and it was denied, the trial judge in
this case properly found that Cook's petition for post-conviction relief was frivolous. In his petition,
Cook first claimed that his guilty plea was not knowingly and voluntarily entered because of failure to
hold a habitual offender hearing. However, in Keyes v. State, 549 So.2d 949 (Miss. 1989), this Court
held that a separate habitual offender hearing is not necessary when the defendant enters a guilty plea
and his habitual offender status is established at the plea hearing. Keyes, 549 So.2d at 951. Here, the
State presented the court files from Cook's previous convictions at his plea hearing, and Cook himself
testified that he had pled guilty to the previous three charges, two for burglary and one for simple
assault on a law enforcement officer. As a result, Cook was not entitled to a separate habitual
offender hearing.

Cook's petition also alleged that his guilty plea was rendered involuntary due to ineffective assistance
of counsel, but he did not provide any set of facts to show how his attorney was deficient other than
the assertion regarding pre-trial publicity by the chief of police. Cook did not make any evidentiary
showing of what the statement was or how it was prejudicial to his case, in light of his guilty plea
which waived any right to change of venue. See Banana v. State, 635 So.2d 851, 853-54 (Miss.
1994). Because Cook was plainly not entitled to any relief based upon the face of his petition, the
trial judge properly dismissed the petition pursuant to Miss. Code Ann. § 99-39-11(2). As a result,
Cook was not entitled to receive a free copy of his plea transcript.

                                                  II.

     WHETHER THE CIRCUIT COURT COMMITTED ERROR IN NOT ALLOWING
                 APPELLANT AN EVIDENTIARY HEARING.

"If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in
the case that the movant is not entitled to any relief, the judge may make an order for its dismissal
and cause the prisoner to be notified." Miss. Code Ann. § 99-39-11(2). Even if the trial judge does
not dismiss the motion, he may decide that an evidentiary hearing is not required. Miss. Code Ann. §
99-39-19.

This Court has previously stated:

     We adhere to the principle that a post-conviction collateral relief petition which meets basic
     pleading requirements is sufficient to mandate an evidentiary hearing unless it appears beyond
     doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
     to relief.
     In Moore v. Ruth, 556 So.2d 1059, 1061 (Miss. 1990) we held that where a prisoner is
     proceeding pro se, we take that fact into account and, in our discretion, credit not so well pled
     allegations.

Turner v. State, 590 So.2d 871, 874 (Miss. 1991) (internal citations omitted).

Even taking into consideration Cook's pro se status, his petition failed to meet the basic pleading
requirements. As previously discussed, none of Cook's allegations presented claims entitling him to
post-conviction relief. The trial judge properly dismissed Cook's petition pursuant to Miss. Code
Ann. § 99-39-11(2), finding that it was manifest that Cook was not entitled to any relief. No
evidentiary hearing is required under these circumstances.

                                                  III.

  WHETHER APPELLANT'S GUILTY PLEA WAS RENDERED INVOLUNTARY AND
      UNKNOWING DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.

In order to make a successful argument for ineffective assistance of counsel, the criminal defendant
must show that 1) his attorney's performance was deficient, and 2) that but for the attorney's
deficiency, the outcome of the proceedings would have been different. Wiley v. State, 517 So.2d
1373, 1378 (Miss. 1987) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

Cook argues that his attorney's performance was deficient, because he gave Cook misinformation
regarding his guilty plea. In Hill v. Lockhart, 474 U.S. 52, 56 (1985), the United States Supreme
Court determined that the Strickland test for determining ineffective assistance of counsel applies to
the challenge of a guilty plea based upon ineffective assistance. Hill, 474 U.S. at 58. In order to
prove that a guilty plea was rendered involuntary based upon ineffective assistance of counsel, a
defendant must first show that his attorney's advice on entering the guilty plea was outside of the
realm of competence expected of criminal attorneys. Id. at 56-59.

     The second, or "prejudice," requirement, on the other hand, focuses on whether counsel's
     constitutionally ineffective performance affected the outcome of the plea process. In other
     words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a
     reasonable probability that, but for counsel's errors, he would not have pleaded guilty and
     would have insisted on going to trial.

Id. at 59. Cook does not specifically say how his attorney misled him into pleading guilty. The record
does not reflect any improper or incorrect statements made by his attorney at the plea hearing. Judge
Lamb satisfied the requirements under U.R.C.C.C. 8.04, Gilliard v. State, 462 So.2d 710, 712 (Miss.
1985) (citing Henderson v. Morgan, 426 U.S. 637 (1976)), and Boykin v. Alabama, 395 U.S. 238
(1969), for ensuring that a guilty plea is made knowingly and voluntarily. The judge informed Cook
of his constitutional rights, determined that Cook's guilty plea was not induced by threat or force, and
thoroughly explained the charge, effects of pleading guilty, the sentencing phase, and the mandatory
sentence involved. The judge also determined that there was a factual basis to support the guilty plea.
The record reflects no deficiency by Cook's attorney, but instead shows that Cook knowingly and
voluntarily entered his guilty plea.
Cook also points to the fact that he did not admit to committing the burglary as evidence that his
guilty plea was not knowing and voluntary. However, it is well-settled that a guilty plea may be
properly accepted, even though it is accompanied by a protestation of innocence, so long as there is
an evidentiary basis for the defendant's guilt. North Carolina v. Alford, 400 U.S. 25, 37-39 (1970);
Lott v. State, 597 So.2d 627, 628-31 (Miss. 1992) ; Corley v. State, 585 So.2d 765, 766 (Miss.
1991); Reynolds v. State, 521 So.2d 914, 916 (Miss. 1988). In this case, Cook denied ever breaking
into Ozelia Eslinger's house, but testified at his plea hearing that he wanted to plead guilty, because
he believed that the jury would find him guilty based upon his prior record of burglary. Before
accepting his guilty plea, the trial court heard the factual basis offered by the State that Mrs.
Eslinger's daughter, Ruby, saw Cook exiting her mother's home immediately before finding her
mother, who had been physically assaulted, inside the front door. Ruby knew Cook from living in his
neighborhood, and was able to identify him as the person she observed leaving her mother's home
after the break-in and assault. Based upon this factual showing by the State, the trial court properly
found that sufficient evidence existed to support Cook's guilty plea.

                                           CONCLUSION

Cook has failed to make an convincing argument for unknowing, unintelligent, involuntary guilty plea
or for ineffective assistance of counsel. Because the claims set out in his petition for post-conviction
relief were properly dismissed by the trial court pursuant to Miss. Code Ann. § 99-39-11(2), Cook
was not entitled to either a free copy of his plea transcript or an evidentiary hearing. We therefore
affirm the trial court's dismissal of Cook's petition for post-conviction relief.

LOWER COURT'S DENIAL OF POST CONVICTION RELIEF AFFIRMED.

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