                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 93-KP-00852-SCT
EDDIE JAMES SHANKS
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                                 3/24/93
TRIAL JUDGE:                                      HON. ROBERT WALTER BAILEY
COURT FROM WHICH APPEALED:                        WAYNE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                           PRO SE
ATTORNEYS FOR APPELLEE:                           OFFICE OF THE ATTORNEY GENERAL
                                                  BY: SCOTT STUART
DISTRICT ATTORNEY:                                NA
NATURE OF THE CASE:                               CRIMINAL - POST CONVICTION RELIEF
DISPOSITION:                                      AFFIRMED - 4/11/96
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                   5/2/96




     EN BANC.


     SMITH, JUSTICE, FOR THE COURT:


¶1. Eddie James Shanks filed a motion for post-conviction relief in the Circuit Court of Wayne County
alleging that his guilty plea to armed robbery was involuntary and unintelligently made. The trial judge
entered an order denying the motion for post-conviction relief. Shanks filed an appeal to this Court claiming
that the trial judge's comments regarding parole were misleading. We disagree. The trial judge was not
required to inform Shanks of his ineligibility for parole. Ware v. State, 379 So. 2d 904, 907 (Miss. 1980).

                                                  FACTS

¶2. On April 2, 1990, Shanks pled guilty to armed robbery and robbery. Shanks received a twenty-five
year sentence for armed robbery and a fifteen year concurrent sentence for robbery.

¶3. On February 18, 1993, Shanks filed a motion for post-conviction relief in the Circuit Court of Wayne
County requesting that his guilty plea to armed robbery be vacated because the trial judge and his attorney
failed to inform him that the first ten years of his armed robbery sentence would have to be served without
possibility of parole pursuant to Miss. Code Ann. § 47-7-3(1)(d)(Supp. 1990). On March 25, 1993, the
trial judge entered an order denying the motion for post-conviction relief. In denying the post-conviction
relief, the trial judge found that:

      Mr. Shanks understood each paragraph [of his guilty plea petition] including Paragraph 16. . . . He
      stated that he understood whether he made parole or did not make parole would be up to the
      authorities at the Parole Board. Paragraph 16 of said petition, which Mr. Shanks signed under oath
      and which he told the Court he understood, states that any estimate of the time required to serve
      before becoming eligible for parole or release made by his attorney was an estimate only and that the
      Parole Board was not bound by that estimate.

¶4. Shanks filed an appeal alleging that the trial judge failed to inform him that the first ten years of his
sentence would be mandatory; thus, his plea was involuntary and unintelligently made.

                                           DISCUSSION OF LAW


      WHETHER THE TRIAL JUDGE'S FAILURE TO INFORM SHANKS OF THE
      MANDATORY PORTION OF HIS SENTENCE RENDERED THE PLEA
      INVOLUNTARY?

¶5. Shanks was informed of the minimum and maximum sentence he could receive for armed robbery in
compliance with Rule 3.03(3)(B) of the Uniform Criminal Rules of Circuit Court Practice. The transcript of
the guilty plea hearing indicates that Shanks was not informed that the first ten years of his sentence for
armed robbery would have to be served without possibility of parole. See Miss. Code Ann. § 47-7-3(1)(d)
(Supp. 1990). Shanks claims that this fact renders his guilty plea involuntary. The State contends that there
is no requirement that defendants be advised of parole eligibility information prior to entering a guilty plea,
citing Womble v. State, 466 So. 2d 910 (Miss. 1985) and Ware v. State, 379 So. 2d 904 (Miss. 1980).

¶6. In Ware, the defendant was not advised until the sentencing hearing that the sentence for attempted
armed robbery was without parole. Likewise, Shanks claims that he did not learn about the non-parolable
portion of his sentence until after he had entered his guilty plea. This Court held that Ware "was not, as a
constitutional right, entitled to full parole information at or before his guilty plea." Ware, 379 So. 2d at 907.
This language was later cited as authority in Womble, 466 So. 2d at 912. See also Alexander v. State,
605 So. 2d 1170, 1173-74 (Miss. 1992).

¶7. Shanks is clearly not entitled to an evidentiary hearing under these circumstances because the trial
judge's comments found objectionable were accurate statements of the law. The trial judge merely made the
statement that he did not have jurisdiction to determine parole eligibility. The parole board, not the trial
court, has jurisdiction over parole matters.

¶8. Through the colloquy between the court and Shanks, the guilty plea was properly entered. Shanks was
properly informed of the maximum and minimum sentence as required by Rule 3.03(3)(B) of the Uniform
Criminal Rules of Circuit Court Practice. Shanks indicated that he understood the impact of entering a plea
of guilty to the charge of armed robbery, and the trial court found that he knowingly and intelligently entered
his petition. Jurisdiction over the parole decision is vested in the parole board once the trial court has
properly accepted a plea of guilty. Although the parole board may be bound by laws, such as Miss. Code
Ann. § 47-7-3 (Cum. Supp. 1995), in granting parole to a particular individual, there was no
misrepresentation in the case at hand since the trial judge merely commented on the proper jurisdiction for
parole decisions.
¶9. This Court, in Ware, specifically held that a trial judge was not required to inform a defendant of his
ineligibility for parole. 379 So. 2d at 907. Trial courts are not required to provide parole information
because eligibility or ineligibility for parole is not a "consequence" of a plea of guilty, but a "matter of
legislative grace" or a "consequence of the withholding of legislative grace." Smith v. United States, 324
F. 2d 436, 441 (D.C. Cir. 1963), cert. denied, 376 U.S. 957 (1964); see also Fernandez v. United
States, 492 F. 2d 771 (5th Cir. 1974) (trial court not required to divulge parole eligibility information
before accepting plea). There is no merit to this issue and we must affirm the trial court.

¶10. DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

LEE, C.J., PITTMAN, McRAE, ROBERTS AND MILLS, JJ., CONCUR. SULLIVAN, P.J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY PRATHER, P.J., AND
BANKS, J.




      SULLIVAN, PRESIDING JUSTICE, DISSENTING:


¶11. While Shanks might not have a constitutional right to full parole information under our decision in
Ware, he nevertheless is entitled to information that is not misleading. Because the trial judge misinformed
Shanks concerning his eligibility for parole, the guilty plea was not properly entered. I therefore respectfully
dissent.

¶12. In Vittitoe v. State, 556 So. 2d 1062 (Miss. 1990), we held that "[b]efore a person may plead guilty
to a felony he must be informed of his rights, the nature and consequences of the act he contemplates, and
any other relevant facts and circumstances, and, thereafter, voluntarily enter the plea." Id. at 1063
(emphasis added) (citing Boykin v. Alabama, 395 U.S. 238 (1969)). Furthermore, the dissent in Ware
stated: "Parole is the norm and ineligibility for parole the exception, an exception of which petitioner Ware
should have been informed. 'The nature of parole is well understood, and its availability may be
regarded as assumed by the average defendant.'"Ware, 379 So. 2d at 911 (Robertson, P.J.,
dissenting) (emphasis added) (quoting Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969)).

¶13. During the guilty plea hearing, the trial judge informed Shanks of the following:

      BY THE COURT: You understand that once I sign the sentencing order that whether you make
      parole or don't make parole is up to the authorities at the parole board and I loose [sic] complete
      jurisdiction over it; do [sic] understand that?

      BY MR. SHANKS: Yes, sir.

I find the trial judge's statement to be misleading. It likely led Shanks to the assumption that the parole
board had the authority to grant parole during the first ten years of his sentence. The parole board,
however, had no discretion as to the first ten years of a sentence for armed robbery pursuant to Miss. Code
Ann. § 47-7-3.(1)
¶14. Our holding in Ware should not be extended to cover situations where a defendant is misinformed as
to parole eligibility by the trial judge. As noted by the dissent in Ware, the average defendant assumes the
availability of parole. It is particularly prejudicial to Shanks to be misinformed that the parole board has the
authority to grant him parole when that authority is actually limited by § 47-7-3.

¶15. I therefore believe that Shanks was entitled to an evidentiary hearing to determine whether he was
properly informed of the limitations of the parole board's authority in light of the trial judge's statements to
the contrary.

PRATHER, P.J., AND BANKS, J., JOIN THIS OPINION.


1. This statute was amended in 1994 and 1995 so as to provide that persons convicted of armed robbery
on or after October 1, 1994, shall not be eligible for parole. Miss. Code Ann. § 47-7-3(1)(d)(ii)(Supp.
1995).
