                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 96-CA-00913-SCT
WILLIE GAINES a/k/a WILLIE B. GAINES a/k/a
WILLIE B. GAINES, JR.
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:                              04/03/96
TRIAL JUDGE:                                   HON. ROBERT LOUIS GOZA, JR.
COURT FROM WHICH APPEALED:                     RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        PRO SE
ATTORNEY FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL

                                               BY: BILLY GORE
DISTRICT ATTORNEY:                             JOHN KITCHENS
NATURE OF THE CASE:                            CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                   AFFIRMED - 10/16/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                11/6/97




     BEFORE DAN LEE, C.J., PITTMAN AND MILLS, JJ.

     MILLS, JUSTICE, FOR THE COURT:




                                  STATEMENT OF THE CASE

On April 3, 1996, the Circuit Court of Rankin County summarily dismissed Willie Gaines' motion to
vacate his guilty plea, sentence and conviction. Aggrieved, Gaines appeals to this Court, assigning as
error the following issues:

     I. WHETHER GAINES' GUILTY PLEA WAS KNOWINGLY, INTELLIGENTLY
     AND VOLUNTARILY MADE.

     II. WHETHER GAINES RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
                                               FACTS

Willie Gaines, on June 15, 1993, entered pleas of guilty to dwelling house burglary, recidivism and to
house burglary as a nonrecidivist. Gaines was convicted and sentenced to serve a term of ten (10)
years without parole on the dwelling house burglary and recidivism charges. Gaines was also
sentenced to serve a consecutive nonmandatory ten (10) year sentence on the house burglary as a
nonrecidivist charge.

On January 22, 1996, Gaines filed a Motion for Post-Conviction Collateral Relief to Vacate and Set
Aside Conviction and Sentence. On April 3, 1996, the circuit court summarily denied Gaines' motion.

                                            DISCUSSION

     I. WHETHER GAINES' GUILTY PLEA WAS KNOWINGLY, INTELLIGENTLY
     AND VOLUNTARILY MADE.

Gaines' first contention is that the trial court erred when it sentenced him as a habitual offender
because the portion of the indictment charging him as such came after the phrase "against the peace
and dignity of the state." Gaines' argument is based solely upon this Court's decision in McNeal v.
State, 658 So.2d 1345 (Miss.1995). In McNeal, this Court reversed McNeal's conviction of
recidivism and vacated his status as a habitual offender because the portion of the indictment
charging McNeal with recidivism did not "conclude" with the words "against the peace and dignity of
the State of Mississippi." This Court specifically noted that McNeal "was not prejudiced in this
instance." Nevertheless, this Court held that the habitual offender portion of the indictment was
fatally defective because the language charging him with recidivism came after the words "against the
peace and dignity of the State [of Mississippi.]"

A McNeal defect, however, is curable by amendment and subject to waiver. Brandau v. State, 662
So.2d 1051, 1055 (Miss. 1995). A valid guilty plea admits all elements of a formal criminal charge
and operates as a waiver of all non-jurisdictional defects contained in an indictment against a
defendant. Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990). Gaines validly plead guilty to both
burglary and recidivism in the wake of a plea bargain that dismissed twelve (12) additional counts of
burglary. Hence, Gaines waived any objection that he may have once possessed based upon McNeal
when he entered his guilty plea. The argument is devoid of merit on this issue.

Gaines' second contention is that the trial court failed to adequately apprise him of consequences and
nature of his penalty under the habitual offender statute. A plea is voluntary if the defendant knows
what the elements are in the charge against him, including an understanding of the charge and its
relation to him, the effect of the plea, and the possible sentence. Taylor v. State, 682 So.2d 359
(Miss.1996). Further, a complete record should be made of the plea proceeding to ensure that the
defendant's plea was entered voluntarily. Id.

The record of the guilty plea proceeding is replete with explanations by the trial judge of the charges
and the consequences of those charges to Gaines. Gaines' sworn guilty plea petition contains sworn
statements of the petitioner, that: he was 31 years of age; had a twelfth grade education; was able to
read and write; was not under the influence of "any drugs or intoxicants"; that he waived the several
constitutional rights enumerated therein; that he understood the elements of the offense; that he
realized that the possible sentence could be up to 10 years imprisonment on each count with no
statutory minimum sentence; that his plea was freely, voluntarily and intelligently made and that he
was satisfied with the advice and services of his legal counsel. All of this was done prior to accepting
any guilty pleas from Gaines. Gaines' argument is without merit on this issue.

     II. WHETHER GAINES RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

The standard of review for ineffective assistance of counsel is set out in Strickland v. Washington,
466 U.S. 668 (1984). The Strickland standard was adopted by this Court in Gilliard v. State, 462
So.2d 710, 714 (Miss.1985). The test to be applied is (1) whether counsel's overall performance was
deficient and (2) whether or not the deficient performance, if any, prejudiced the defense. Taylor v.
State, 682 So.2d at 363, citing Cole v. State, 666 So.2d 767, 775 (Miss.1995).

The burden is on the defendant to prove both prongs. Id. The adequacy of counsel's performance, as
to its deficiency and prejudicial effect, should be measured by the "totality of the circumstances." Id;
citing Cole, 666 So.2d at 775; Frierson v. State, 606 So.2d 604 (Miss.1992). This Court in Cole
stated that the level of scrutiny to be applied when measuring the performance of counsel against the
deficiency and prejudicial prongs of Strickland is to look at the "over-all" performance. Taylor, 682
So.2d at 363; citing Cole, 666 So.2d at 775. There is a strong presumption that the actions by the
defense counsel were reasonable and strategic. Taylor , supra.

According to the second prong, the defendant must show that there was a reasonable probability that,
but for counsel's unprofessional errors, the result would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome. Id. Gaines contends that his trial
counsel was ineffective due to counsel's failure to raise the error on the face of the indictment. The
result in this case would not have been any different had trial counsel objected to the McNeal defect.
This defect was curable by amendment. Thus, the prosecution could have simply moved to amend so
as to conclude the indictment with the words "against the peace and dignity of the State of
Mississippi."

There is no merit among Gaines' assignments of error. Accordingly, we affirm the circuit court's
denial the 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, McRAE, ROBERTS
AND SMITH, JJ., CONCUR.
