                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 95-KP-01311-SCT
BILLY M. CRUSE
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:                               11/15/95
TRIAL JUDGE:                                    HON. THOMAS J. GARDNER III
COURT FROM WHICH APPEALED:                      TISHOMINGO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                         PRO SE
ATTORNEY FOR APPELLEE:                          OFFICE OF THE ATTORNEY GENERAL

                                                BY: JEFFERY A. KLINGFUSS
DISTRICT ATTORNEY                               JOHN R. YOUNG
NATURE OF THE CASE:                             CRIMINAL - POST CONVICTION RELIEF
DISPOSITION:                                    AFFIRMED - 6/26/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




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

     SMITH, JUSTICE, FOR THE COURT:




Billy M. Cruse pled guilty to two counts of burglary of a building and one count of possession of
burglary tools. Cruse pled guilty to these charges but later filed a petition for post-conviction relief
wherein he alleged that he was unlawfully sentenced as a habitual offender; the State failed to honor a
promise made by the Sheriff of Tishomingo County; and the sentences imposed by the trial court
were ambiguous. The trial court summarily dismissed the petition and denied all relief. Cruse now
appeals to this Court.

                                     STATEMENT OF FACTS

On February 15, 1992, Cruse was arrested and charged with two counts of business burglary and one
count of possession of burglary tools. Cruse later pled guilty to all counts and was sentenced to serve
seven years as a habitual offender on Count I of the indictment; seven years (non-habitual) on Count
II to run consecutively with Counts I and III; and five years on Count III of the indictment. The trial
court conditionally suspended the five-year sentence on Count III.

Cruse later filed a Motion for Post-Conviction Relief wherein he alleged that he should not have been
sentenced as a habitual offender because he did not specifically plead guilty to the habitual charge of
the indictment; the State failed to honor a promise made to Cruse by the Sheriff of Tishomingo
County; and that an ambiguity exists in the sentences imposed by the trial court. The trial court
summarily dismissed the petition and denied all relief. Aggrieved, Cruse now appeals to this Court,
citing the following issues:

     I. WHETHER CRUSE WAS ENTITLED TO AN EVIDENTIARY HEARING.

     II. WHETHER CRUSE WAS PROPERLY SENTENCED AS A HABITUAL
     OFFENDER.

     III. WHETHER THE SENTENCES IMPOSED BY THE TRIAL COURT WERE
     AMBIGUOUS.




                                      DISCUSSION OF LAW

     I. WHETHER CRUSE WAS ENTITLED TO AN EVIDENTIARY HEARING.

Cruse now argues that the trial court erred in refusing to conduct an evidentiary hearing to determine
whether Johnny Nunley, former Sheriff of Tishomingo County, made certain promises regarding
Cruse's sentences. Cruse alleges that Nunley promised that he would receive five-year sentences on
each count if he would aid law enforcement in making drug arrests. Nunley allegedly promised that
the sentences would be suspended if Cruse agreed to banish himself from Tishomingo County.

However, while Cruse was out on bond on the initial three charges, he was arrested on four
additional burglary charges. Cruse argues that he again agreed to cooperate and Nunley promised
that the four additional charges would be dismissed. Cruse alleges that the second promise was made
in the presence of Chief Deputy Bob McCarthy, Deputy Ricky Brazil, and Investigator Terry Jones.

Nunley later denied making the promises. As a result, defense counsel advised Cruse that it would be
"futile to try to get the deputies and investigator to testify against the Sheriff"and therefore advised
Cruse to accept the plea offer by the State.

In Milam v. State, 578 So. 2d 272, 273 (Miss.1991), this Court held that no evidentiary hearing is
required for post-conviction cases involving "pure questions of law" or "where there are no facts
disputed or disputable." See also, Brooks v. State, 573 So. 2d 1350, 1352 (Miss.1990); Jordan v.
State, 577 So. 2d 368, 369 (Miss.1990); Garlotte v.State, 530 So. 2d 693, 694 (Miss.1988), rev'd on
other grounds, 115 S.Ct. 1948 (1995). Miss. Code Ann. § 99-39-11 (2)(1972) states:

     (2) 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 petitioner to be notified.

However, "if the application meets [the] pleading requirements and presents a claim procedurally
alive 'substantial[ly] showing denial of a state or federal right' the petitioner is entitled to an in court
opportunity to prove his claims." Jordan v. State , 577 So. 2d 368, 369 (Miss.1990). Although Cruse
alleges that promises were made by Nunley, the trial court had only Cruse's affidavit. Cruse,
however, has included the affidavit of Bob McCarley, Chief Deputy Sheriff of Tishomingo County
with his appellate brief. McCarley alleges that he "was aware that Nunley did make a plea promise to
. . . Cruse if he would cooperate in certain situations." McCarley states that he did not remember who
was present when the promise was made, but indicated that to his knowledge the promise was not
kept. Attached to Cruse's rebuttal brief is the affidavit of James D. Logan wherein Logan alleges
Chief Deputy McCarley told him that Nunley had made promises to Cruse. Logan also alleges that
Investigator Terry Jones acknowledged that he was present when the promises were made and knows
of the exact terms of the promises made to Cruse.

These affidavits, however, were not presented to the trial court. Moreover, during the guilty plea
hearing, Cruse specifically stated that no promises or threats had been made to him. This Court has
repeatedly held that "a trial court cannot be put in error on a matter not presented to the court for
decision." Chase v. State, 645 So. 2d 829, 846 (Miss.1994), cert. denied, 115 S.Ct. 2279 (1995),
reh'g denied, 116 S.Ct. 20 (1995); Jones v. State, 606 So. 2d 1051, 1058 (Miss.1992); Crenshaw v.
State, 520 So. 2d 131, 134-35 (Miss.1988). Cruse and his attorney were aware of the alleged
promises at the time of the guilty plea, yet neither brought this matter to the attention of the trial
court. This issue is therefore waived.

Notwithstanding the failure of Cruse to present affidavits to the trial court, this Court is faced with
two affidavits which allege that Nunley made certain promises. In seeking enforcement of those
promises, Cruse relies on Santobello v. New York, 404 U.S. 257 (1971), wherein the Supreme Court
held:

     . . . when a plea rests in any significant degree on a promise or agreement of the prosecutor, so
     that it can be said to be a part of the inducement or consideration, such promise must be
     fulfilled.

Id. at 433.

However, Cruse alleges not that he was involved with plea negotiations with the District Attorney's
office, but rather with the Sheriff of Tishomingo County. Cruse also relies on the analysis set forth in
United States v. Kettering, 861 F.2d 675 (11th Cir. 1988), where the defendant sought to enforce a
plea agreement made by a DEA agent. That court conducted the following two-pronged inquiry to
ascertain whether the plea agreement was enforceable:

     . . . [The general rule requiring governmental adherence to promises made during plea
     negotiations is subject to two conditions. First, the agent making the promise must be
     authorized to do so, and second, the defendant must detrimentally rely on the promise. If either
     condition is lacking, then the agreement is unenforceable and the government may withdraw its
     offer.
Id. at 677 (quoting Johnson v. Lumpkin, 769 F.2d 630 (9th Cir. 1985)).

The initial issue under the Kettering analysis is whether Nunley possessed the authority to conduct
plea negotiations with criminal defendants. A review of URCCC 8.04 (1996) does not indicate that
law enforcement officers possess such authority. The only government officer addressed by the rule is
the prosecuting attorney. Therefore, the initial issue is whether the Sheriff possessed the authority to
enter into plea negotiations.

In Boyington v. State, 389 So. 2d 485 (Miss.1980), MBN Agent Pierce and the District Attorney
agreed to recommend that Boyington receive probation after he agreed to work as an undercover
informant. Although the circuit court was aware of the agreement, the trial judge refused to accept
the recommendation. Thereafter, Boyington proceeded to trial and following conviction received an
eight-year sentence. After review, this Court held that "justice requires that the judgment of the lower
court . . . be vacated . . . and that the appellant be placed on probation." Id. at 491.

Boyington, however, is clearly distinguishable from the case sub judice. In Boyington, as in
Santobello, the prosecuting attorney was involved in the plea negotiations. Here, there is no
indication that the district attorney's office was involved or approved the alleged promises made by
Nunley.

Moreover, under the analysis utilized in Kettering and San Pedro v. United States, 79 F.3d 1065
(11th Cir.1996), cert. denied, 117 S.Ct. 431 (1996), an appellant must demonstrate detrimental
reliance. However, in Kettering, the court held that "a detrimental reliance argument is inappropriate
when the defendant learns of the change in the proposed agreement prior to entry of the plea since
then, he still has the option of pleading not guilty and proceeding to trial." Id. (quoting United States
v. Coon, 805 F.2d 822, 824-25 (8th Cir. 1986)). Cruse admits that he was informed prior to the
guilty plea hearing that Nunley denied making the alleged promises and upon the advice of counsel,
elected to accept the plea offer by the State. As in Kettering, Cruse was aware that the government
did not intend to abide by the alleged promises made by Nunley. Therefore, Cruse's guilty plea was
"wholly voluntary and not contingent upon [Sheriff Nunley's promises]."

In Mabry v. Johnson, 467 U.S. 504 (1984), the Court held that as long as the defendant is not in a
worse position, there is no detrimental reliance. There, the prosecutor withdrew his first offer and
made a second less favorable offer to the defendant. The Court held that the defendant's guilty plea
was not induced by the withdrawn offer because the defendant was aware that the second agreement
controlled when the guilty plea was entered. Id. at 510. Here, as in Mabry, Cruse was aware that the
plea offer extended by the assistant district attorney, not the alleged promises by Nunley, controlled.

Therefore, even if this Court were to remand for an evidentiary hearing and utilized the two-pronged
Kettering inquiry, Cruse would not prevail. Regardless of Nunley's alleged promises, Cruse failed to
bring this matter to the attention of the trial court. Moreover, Cruse affirmatively indicated that no
promises had been made to him and elected to accept the plea offer extended by the prosecution. This
issue is without merit.

     II. WHETHER CRUSE WAS PROPERLY SENTENCED AS A HABITUAL
     OFFENDER.
Cruse next argues that he was not properly sentenced as a habitual offender because the trial court
failed to advise him that he had a right to plead separately to the enhanced charge; that he had a right
to challenge the prior convictions contained in the indictment; that it is the burden of the prosecution
to prove prior convictions beyond a reasonable doubt; or require him to plead "guilty" or "true" to
the prior convictions.

Cruse admits that he was unable to locate Mississippi authority to support the argument that a
separate Boykin examination is required to be conducted with regard to an enhanced charge. Cruse,
however, relies on Government of Virgin Islands v. George, 741 F.2d 643 (3d Cir. 1984) and Long
v. McCotter, 792 F.2d 1338 (5th Cir. 1986).

In George, the Court held that under the Virgin Islands Habitual Criminals Statute, before a
defendant is asked to admit to previous convictions, the court must personally address the defendant
to determine whether the consequences of such an admission are understood. 741 F.2d 643, 649 (3rd
Cir. 1984). However, in Long, the Fifth Circuit noted that in Neyland v. Blackburn, 785 F.2d 1283
(5th Cir. 1986), cert. denied, 479 U.S. 930 (1986), it had considered, but did not decide, whether
Boykin requires an affirmative showing in the trial court record that a defendant knowingly and
intelligently entered an enhancement plea. In Neyland, that Court chose rather to utilize "an approach
. . . which resolves the validity of such admissions under an effective assistance of counsel analysis
rather than under the standards ordinarily applicable to accepting guilty pleas." The Neyland court
examined the totality of the circumstances to ascertain whether the petitioner was aware of the
consequences of his counsel's admissions.

In Keyes v. State, 549 So. 2d 949 (Miss.1989), the defendant pled guilty to six separate charges.
During the guilty plea hearing, the circuit court determined that the pleas were voluntary and
sentenced Keyes as a habitual offender. However, Keyes argued that he should have been given a
separate hearing on his habitual offender status. This Court held:

     Where the defendant has been convicted after jury trial, the recidivism hearing will indeed be
     separate and subsequent. But, where the defendant enters a plea of guilty, nothing in the rule
     mandates a separate hearing. The rule provides only that, after entry of the plea, "a hearing . . .
     will then be conducted . . . ."

In the case sub judice, four prior convictions were set forth in the indictment to meet the
requirements of Miss. Code Ann. § 99-19-81 (1972). During the guilty plea hearing, Cruse indicated
that he had been provided with a copy of the indictment and had read or had the indictment read to
him. Cruse was specifically questioned by the trial court about the habitual portion of the indictment
and indicated that he understood this portion of his sentence.

Although Cruse did not specifically plead "true" to the four prior convictions used to enhance his
sentence on Count I, nothing requires him to do so. URCCC 11.03 (1996)(1) requires the following:

     3. If the defendant is convicted or enters a plea of guilty on the principal charge, a hearing
     before the court without a jury will then be conducted on the previous convictions.

Cruse voluntarily entered his guilty plea and was advised of the consequences of doing so. Moreover,
Cruse was specifically advised by the trial court of the consequences of the habitual enhancement and
chose not to challenge the prior convictions or object to their use. There is nothing in this record to
indicate that Cruse did not understand the nature or the consequences of his guilty plea. This issue is
without merit.

     III. WHETHER THE SENTENCES IMPOSED BY THE TRIAL COURT WERE
     AMBIGUOUS.

This Court has repeatedly held that an ambiguity in criminal sentencing "must be resolved in favor of
the accused." State v. Willis, 539 So. 2d 1043, 1045 (Miss.1989); Johnson v. State, 260 So. 2d 436
(Miss.1972); Anderson v. State, 288 So. 2d 852, 855 (Miss.1974). However, an examination of the
sentences imposed by the trial court in the present case reflects no ambiguity.

During the guilty plea hearing, the trial court sentenced Cruse to serve seven years on Count I as a
habitual offender pursuant to Miss. Code Ann. § 99-19-81 and therefore imposed the maximum term
of imprisonment without benefit of probation or parole. On Count II of the indictment, Cruse was
sentenced to serve seven years to run consecutive to the sentence in Count I. On Count III of the
indictment, Cruse was sentenced to serve a five-year term to run consecutive to the sentences
imposed on Counts I and II. The five-year sentence for Count III was subsequently suspended by the
trial court upon recommendation by the State.

After sentencing, the trial court made several comments regarding the actual amount of time Cruse
would be required to serve. Cruse, however, argues that these statements rendered the sentences
ambiguous. Presented in a disjointed fashion these comments appear to present somewhat of an
ambiguous picture regarding the actual time Cruse would serve. However, when placed in proper
context, it is clear that the trial court was merely estimating the amount of time Cruse would actually
serve given current parole policy.

Despite the statements by the trial judge, the sentences remained the same. There is simply nothing
ambiguous about the sentences imposed by the trial court during the guilty plea hearing or in the
sentencing order. This issue is without merit.

                                           CONCLUSION

Cruse challenges the entry of his guilty plea on several bases. However, no evidentiary hearing is
warranted; Cruse was properly sentenced as a habitual offender; and the sentences imposed were
unambiguous. Cruse is therefore not entitled to any relief from his voluntary and intelligent guilty
plea.

DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE AND
ROBERTS, JJ., CONCUR. MILLS, J., NOT PARTICIPATING.




1. Formerly Rule 6.04 of the Mississippi Uniform Rules of Circuit Court Practice.
