                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 96-CA-00872-SCT
WILLIE STERLING
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:                              7/9/96
TRIAL JUDGE:                                   HON. GRAY EVANS
COURT FROM WHICH APPEALED:                     SUNFLOWER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        GEORGE F. HOLLOWELL, JR.
ATTORNEY FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL

                                               BY: DEIRDRE McCRORY
DISTRICT ATTORNEY:                             HALLIE G. BRIDGES
NATURE OF THE CASE:                            CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                   AFFIRMED - 12/8/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                12/31/97




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

     SMITH, JUSTICE, FOR THE COURT:




On June 8, 1995, Willie Sterling was indicted in the Circuit Court of Sunflower County, Mississippi
on the following charges: (1) sale of cocaine as a subsequent offender pursuant to Miss. Code Ann.
§§ 41-29-139(a)(1) (Supp. 1997) & 41-29-147 (1993), and (2) possession of cocaine with intent to
sell pursuant to Miss. Code Ann. §§ 41-29-139(a)(1) (Supp. 1997). On July 12, 1995, Sterling pled
guilty to both charges and Circuit Court Judge Gray Evans sentenced Sterling to thirty (30) years in
the custody of the Mississippi Department of Corrections, with eligibility for parole.

On January 26, 1996, Sterling, by and through his attorney, George F. Hollowell, Jr., filed the
following motions, and briefs in support of same, in the Circuit Court of Sunflower County,
Mississippi: (1) Motion to Modify the Sentence, (2) Motion for Medical Care of a Defendant
Confined to Prison, (3) Motion for Relief under the Mississippi Uniform Post-Conviction Collateral
Relief Act, and (4) Motion to Vacate and Set Aside Conviction and Sentence. The Post-Conviction
Relief Motion and the Motion to Vacate and Set Aside Conviction and Sentence were incorporated
into one motion and a hearing on the same was held before Judge Evans on July 9, 1996 at the
Sunflower County Courthouse, Indianola, Mississippi. Judge Evans overruled the Motion to Modify
Sentence on the grounds that the court had no authority to modify a sentence. The Motion for
Medical Care was also heard at the July 9, 1996 hearing, following the Motion for Post-Conviction
Relief.

Following the evidentiary hearing, Judge Evans denied Sterling's Motion for Post-Conviction Relief
by Order dated July 16, 1996. Sterling appeals, by and through his attorney Hollowell, and raises the
following issue:

WHETHER THE TRIAL COURT SHOULD HAVE DENIED STERLING'S MOTION FOR
POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING.

                                         LEGAL ANALYSIS

Sterling's request for Post-Conviction Relief was premised on the following two allegations: (1) his
guilty plea was involuntarily made, and (2) he was afforded ineffective assistance of counsel.

Evidentiary Hearing Analysis.

Sterling's counsel correctly outlines the legal standard for dismissing a petition for Post-Conviction
Relief.

     Under the authority of Mississippi Code Annotated § 99-39-11, Mr. Sterling was entitled to an
     evidentiary hearing. A petition should not be dismissed unless "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. . ." Miss. Code Ann. § 99-
     39-11. If a request for post-conviction relief meets the pleading requirements of Mississippi
     Code Annotated § 99-39-9, then the defendant is entitled to an evidentiary hearing and the
     petition should not [sic] dismissed based on the pleadings alone. Myers v. State, 583 So. 2d
     174, 176 (Miss. 1991).

Hollowell further states that "[t]he pleading requirements were complied with and the lower court
should have had an evidentiary hearing on the voluntariness of the plea and the ineffective
assistance of counsel."

Sterling's appeal to this Court should be dismissed as frivolous under Miss.R.App.P. 38 and sanctions
should be levied against Sterling's attorney, Hollowell, in that there is absolutely no merit to the claim
that the lower court dismissed Sterling's Motion for Post-Conviction Relief without an evidentiary
hearing. As indicated above, the lower court did in fact hold an evidentiary hearing regarding the
Post-Conviction Relief allegations on July 9, 1996. At that hearing, the court heard testimony
regarding Sterling's allegation that his guilty plea was involuntary and his allegation that he received
ineffective assistance of counsel. Following testimony by Willie Sterling (Appellant), Monica Sterling
(Appellant's wife), and Joe Buchanan (Appellant's Trial Attorney), Judge Evans denied Sterling's
Motion for Post-Conviction Relief and specifically held that there was no showing of ineffective
assistance of counsel and that "the defendant knew what he was doing and . . . simply was hoping for
the best, and is now dissatisfied with his sentence."

Mr. Hollowell represented Sterling at this evidentiary hearing but is now appealing the lower
court's decision on the basis that Sterling's Motion for Post-Conviction Relief Motion was dismissed
without an evidentiary hearing. It is clear from the record and the July 9, 1996, hearing transcripts
that Mr. Hollowell was aware that the hearing was specifically held for the purpose of determining
the validity of Sterling's Post-Conviction Relief Motion. Mr. Hollowell received a Notice of Hearing
dated June 6, 1996 from the Circuit Court Administrator informing him "that a hearing on
Plaintiff's Post Conviction Relief Motions will be held before Judge Gray Evans on Tuesday,
July 9, 1996, at 11:00 a.m., at the Sunflower County Courthouse, Indianola, Mississippi." At
the July 9, 1996 hearing, Judge Evans denied Sterling's Motion to Modify Sentence. Judge Evans
further indicated that he wanted to hear the Motion for Medical Care separately. The following
discussion of the remaining motions ensued:

     BY MR. HOLLOWELL: And the other Motion for Relief under the Uniform Post-Conviction
     Collateral Relief Act and the Motion to Vacate and Set Aside Conviction and Sentence will be
     incorporated into one?

     BY THE COURT: Yeah.

Hollowell then presented testimony from the appellant Willie Sterling, and the appellant's wife,
Monica Sterling regarding his claims of ineffective assistance of counsel and involuntary guilty plea.
The State then presented testimony from the appellant's trial attorney, Joe Buchanan regarding these
same issues and moved to have a copy of the guilty plea transcript introduced into evidence. Mr.
Hollowell then recalled the appellant Willie Sterling in rebuttal to the State's testimony. By Order
dated July 9, 1996, and entitled Order Overruling Motion to Vacate and Set Aside Conviction and
Motion for Relief Under the Mississippi Unifor [sic] Collateral Relief Act, Judge Evans denied
Sterling's request for collateral relief. The order specifically stated:

     This day this cause come on to be heard upon Defendant's Motion to Vacate and Set Aside
     Conviction and Sentence which was combined with Defendant's Motion for Relief under the
     Mississippi Uniform Post-Conviction Collateral Relief Act and the Court having heard and
     considered all of the evidence adduced, proffered, and submitted, and heard and
     considered arguments and statements of counsel is of the opinion and so finds that
     Defendant's primary contention is that he was denied effective assistance of counsel and the
     Court is of the opinion and so finds that Defendant's counsel, Joe Buchanan, was not ineffective
     in his representation of Defendant. The Court further finds that Defendant's pleas were freely
     and voluntarily entered into with knowledge of the consequences thereof. The Court having
     considered all of the allegations of the motions finds them to be without merit and the motions
     are hereby denied.

     It is thereupon Ordered and Adjudged that the Motion to Vacate and Set Aside Conviction and
     Sentence and the Motion for Relief under the Mississippi Uniform Post Conviction Collateral
     Relief Act be and the same are hereby denied.

It should also be noted that Sterling admitted during the evidentiary hearing that he simply was
dissatisfied with the sentence he received.

Rule 38 Sanctions.

Because there was in fact an evidentiary hearing conducted in the lower court and Sterling admitted
that he was simply dissatisfied with his sentence, common sense dictates that there is no merit to
Sterling's appeal.

This Court imposed Rule 38 sanctions in the amount of $25 each against an inmate and his co-inmate
writwriter in Ivy v. Merchant, 666 So. 2d 445, 452 (Miss. 1995).

     Rule 38 of the Mississippi Rules of Appellate Procedure states, "[i]n a civil case to which Miss.
     Code Ann. § 11-3-23 (1991) does not apply, if the Supreme Court or Court of Appeals will
     determine that an appeal is frivolous, it will award just damages and single or double costs to
     the appellee." This Court has evaluated Rule 38 frivolity by reference to M.R.C.P. 11. Roussel
     v. Hutton, 638 So. 2d 1305, 1318 (Miss. 1994). The Court has ruled that "a pleading or motion
     is frivolous within the meaning of Rule 11 only when objectively speaking, the pleader or
     movant has no hope of success." Tricon Metals & Services, Inc. v. Topp, 537 So. 2d 1331,
     1335 (Miss. 1989).

Ivy, 666 So. 2d at 450-51. In this case, inmate Ivy was proceeding pro se and in forma pauperis but
utilized the legal assistance of a co-inmate writwriter, Robert Tubwell. Id. at 451-52. Because
Tubwell had "some 20 years of experience as a writwriter. . . . and [is] capable of distinguishing
between a meritorious claim from a frivolous one," and the fact that he was "standing in the position
of an attorney," the Court also found Tubwell subject to sanctions under Miss.R.App.P. 38. Id. at
452.

The case at bar meets the Ivy standard of a frivolous appeal. Sterling's attorney asserts that the trial
court erred by dismissing Sterling's motion without an evidentiary hearing. However, it is clear from
the record and hearing transcripts that the trial court did in fact hold an evidentiary hearing. In
addition, Sterling admitted at the evidentiary hearing that he simply was not satisfied with his
sentence. Under these circumstances, it is abundantly clear that there is no hope of success in this
case.

                                              CONCLUSION

Attorneys are responsible for ensuring that pleadings and motions in our courts are made in good
faith and responsibility. The allegations presented by Attorney Hollowell in Sterling's Brief for
Appellant could not have been made in good faith and responsibility. Consequently, we hold that the
trial court's denial of Sterling's Request for Post-Conviction Collateral Relief is affirmed but
remanded to the trial court for a Rule 38 show cause hearing as to whether sanctions should be
imposed against Attorney Hollowell.

DENIAL OF POST-CONVICTION RELIEF AFFIRMED. REMANDED TO THE TRIAL
COURT FOR A RULE 38 SHOW CAUSE HEARING AS TO WHETHER SANCTIONS
SHOULD BE IMPOSED AGAINST ATTORNEY HOLLOWELL.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, ROBERTS AND
MILLS, JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY.
