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Bilbo v. State9/7/2004
On April 16, 1998, an officer with the Columbus Police Department was called to the scene of an automobile accident. Raymond Bilbo, who was at the scene of the accident, informed the officer that he was driving one of the vehicles involved in the accident. The officer noted the smell of alcohol on Bilbo's breath, and Bilbo took an Intoxilyzer test. Bilbo scored a .22 on the test, well above the legal limit. In June of 1999, Bilbo was served and picked up by the police. Bilbo was arraigned in August of 1999, left town shortly thereafter, and evaded prosecution until he was arrested by the Alabama police in July 2002. Bilbo had two prior convictions for driving under the influence. At his arraignment he pled guilty to a DUI 3 third offense under the habitual offender statute. Notably, Bilbo also had two prior felony convictions. Bilbo was sentenced to serve three years in the custody of the Mississippi Department of Corrections, followed by two years of post-release supervision, plus fines totaling $2,000. It is from this sentence that Bilbo filed his petition for post-conviction relief. After reviewing the petitioner's criminal file and the court's file, the trial judge denied Bilbo's motion for post-conviction relief without a hearing. It is from this denial that Bilbo has filed his appeal.
2. On appeal, Bilbo raises a number of complaints which are summarized as follows: (1) Bilbo claims he was never indicted; (2) Bilbo claims he never received a copy of the indictment; (3) Bilbo claims he was never arraigned; and (4) Bilbo claims his attorney rendered "insufficient representation" because she only spoke with him on the day of his arraignment and plea and allegedly told Bilbo that if he did not plead guilty he could be tried pursuant to Mississippi Code Annotated Section 99-19-83 and be sentenced to life without parole. Finding these claims to be without merit, this Court affirms the trial court's denial of Bilbo's petition for post-conviction relief.
STANDARD OF REVIEW
3. When a trial court has denied a petition for post-conviction relief, this Court will examine whether the denial is clearly erroneous. Kirksey v. State, 728 So.2d 565, 567( 8) (Miss.1999). The trial judge's obligation is to review the "original motion, together with all the files, records, transcripts and correspondence relating to the judgment under attack," in order to resolve the merits of the allegations. Miss.Code Ann. § 99-39-11(1) (Rev.2000). The burden is upon Bilbo to prove by a preponderance of the evidence that he is entitled to the requested post-conviction relief. Miss.Code Ann. § 99-39- 23(7) (Rev.2000).
I. DID THE TRIAL COURT ERR IN DENYING BILBO'S MOTION FOR POST-CONVICTION
RELIEF?
4. Bilbo argues that he was never indicted for the offense of driving under the influence. Bilbo invites this Court to find that, although he confessed under oath in open court to a third offense of driving under the influence, he was never indicted for such a crime. Although the indictment does not appear in the record before this Court, a copy of the transcript of Bilbo's guilty plea hearing was included in the record. During the guilty plea, Judge Montgomery thoroughly questioned Bilbo regarding his understanding of the charges, his Sixth Amendment rights, his *968 Fifth Amendment rights, and his Eighth Amendment rights under the United States Constitution.
5. When asked if he understood that he had the right to a public trial by jury, the right to confront witnesses against him, the right to be represented by an attorney, the right to appeal, and the right to choose whether to testify on his own behalf, Bilbo responded under oath that he did, indeed, understand these rights. Bilbo acknowledged that he understood that by pleading guilty he was
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