Ikeheem R. Colenberg a/k/a Ikeheem Ralpheal Colenberg a/k/a Ikeheem Colenberg v. State of Mississippi

         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2021-CA-00673-COA

IKEHEEM R. COLENBERG A/K/A IKEHEEM                                           APPELLANT
RALPHEAL COLENBERG A/K/A IKEHEEM
COLENBERG

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                             02/23/2021
TRIAL JUDGE:                                  HON. TOMIKA HARRIS IRVING
COURT FROM WHICH APPEALED:                    JEFFERSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                      NOAH M. DRAKE
                                              OTTOWA E. CARTER JR.
ATTORNEY FOR APPELLEE:                        OFFICE OF THE ATTORNEY GENERAL
                                              BY: ALLISON ELIZABETH HORNE
NATURE OF THE CASE:                           CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                                  AFFIRMED - 12/13/2022
MOTION FOR REHEARING FILED:

       EN BANC.

       WESTBROOKS, J., FOR THE COURT:

¶1.    Ikeheem Colenberg appeals the circuit court’s denial of his motion for post-conviction

collateral relief (PCR). The circuit court ruled that Colenberg did not establish by a

preponderance of the evidence that there was not a sufficient factual basis for his guilty plea

or that his guilty plea was involuntary. Finding no error, we affirm.

                        FACTS AND PROCEDURAL HISTORY

¶2.    On February 12, 2019, Colenberg was indicted on four counts: (1) first-degree murder

of Latasha Collins; (2) attempted murder of Rasheen Carter; (3) shooting into an automobile;

and (4) drive-by shooting.
¶3.    Colenberg was arraigned in March 2019 and initially pled not guilty. On September

18, 2019, Colenberg changed his plea and pled guilty to second-degree murder and drive-by

shooting. The circuit court held a hearing to ensure that Colenberg pled guilty knowingly,

intelligently, and voluntarily. The circuit judge asked Colenberg a series of questions to

which Colenberg answered in the affirmative, including if he had read and understood his

plea petition and if his attorney had explained everything to him. The circuit judge also

asked about his attorney’s representation. Colenberg confirmed that he had been properly

advised and that his attorney had not promised him anything or threatened him. Then, the

circuit judge asked the State what facts it would use to prove the charges against Colenberg.

For the charge of second-degree murder, the State merely recited the elements of second-

degree murder. For the charge of drive-by shooting, the State again recited the elements of

the crime and stated that it would prove that Colenberg was in a vehicle when he engaged

in the shooting. Colenberg also stated he understood that because he pled guilty, “the State

[was] not required to prove anything.”

¶4.    Afterward, Colenberg admitted that he had committed the offenses pled. The State

recommended that Colenberg be sentenced to thirty years in custody for second-degree

murder, with twenty years to serve and ten years suspended and on post-release supervision,

and thirty years in custody for drive-by shooting, with twenty years to serve and ten years on

post-release supervision, with both sentences set to run concurrently. Colenberg asserted that

he understood the sentencing recommendation. The circuit judge repeatedly asked Colenberg

if he had committed the charged crimes and understood that he was pleading guilty, and each



                                              2
time, Colenberg stated that he understood and was guilty. Finding that the guilty plea was

entered knowingly, intelligently, and voluntarily, the circuit court sentenced Colenberg as the

State had recommended. The same day, Colenberg signed, initialed, and entered his guilty

plea.

¶5.     On December 11, 2020, Colenberg filed his PCR motion alleging that he received

ineffective assistance of counsel, that his plea was involuntary based on this ineffective

assistance, and that there was no factual basis to support his plea. Colenberg attached to his

PCR motion affidavits from himself, his father, and his sister, all attesting that Attorney

Edward Blackmon misinformed him about his eligibility to receive earned time and trusty

time.

¶6.     On February 8, 2021, the circuit court held an evidentiary hearing on the PCR motion.

At the hearing, Colenberg’s father and sister testified, but Colenberg did not. Like their

affidavits, Colenberg’s family testified that Colenberg had received incorrect advice. In

contrast, Blackmon testified that as a matter of “good practice” he does not talk to clients

about eligibility for earned time or trusty time because the Mississippi Legislature may

change those laws at any given time.         Blackmon’s co-counsel, Bradford Blackmon

(Bradford), also denied giving Colenberg erroneous advice on the same matter. After review,

the circuit court denied Colenberg’s PCR motion. Colenberg moved for reconsideration, but

the circuit court denied his motion, as well. Colenberg appeals.

                                       DISCUSSION

¶7.     Colenberg argues on appeal that the circuit court’s denial of his PCR motion was



                                              3
clearly erroneous because (1) the State provided no factual basis to support his guilty plea,

and (2) Blackmon misinformed him regarding his eligibility to receive earned time and trusty

time, constituting ineffective assistance of counsel and making his plea involuntary.

¶8.    “When reviewing a circuit court’s denial or dismissal of a PCR motion, we will only

disturb the circuit court’s decision if it is clearly erroneous; however, we review the circuit

court’s legal conclusions under a de novo standard of review.” Magee v. State, 

, 300 (¶11) (Miss. 2022). “The burden of proof . . . is on the petitioner to show ‘by a

preponderance of the evidence’ that he is entitled to relief.” Doss v. State, 

 (¶5) (Miss. 2009) (quoting 

(7) (Rev. 2007)); accord 

 (Rev. 2015).

       I.     Factual Basis for Plea

¶9.    “Before the trial court may accept a plea of guilty, the court must determine . . . that

there is a factual basis for the plea.” MRCrP 15.3(c). This means that before a trial court

may accept a plea, it must “have before it . . . substantial evidence that the accused did

commit the legally defined offense to which he is offering the plea. What facts must be

shown are a function of the definition of the crime and its assorted elements.” Corley v.

State, 

 (Miss. 1991). However, the requisite factual showing need “not

flesh out the details which might be brought forth at trial. Rules of evidence may be relaxed

at plea hearings. Fair inference favorable to guilt may facilitate the finding.” 

 “In the end

there must be enough that the court may say with confidence the prosecution could prove the

accused guilty of the crime charged, that the defendant’s conduct was within the ambit of that



                                               4
defined as criminal.” 

 (internal quotation marks omitted).

¶10.   “Just as there is more than one way to skin the proverbial cat, there are numerous ways

to establish a factual basis for a guilty plea.” Williams v. State, 

 (¶17)

(Miss. Ct. App. 2013). “A factual basis for a plea may be established by the admission of

the defendant, but the admission must contain factual statements constituting a crime or be

accompanied by independent evidence of guilt. . . . [A] factual basis is not established by the

mere fact that a defendant enters a plea of guilty.” Hannah v. State, 

(¶16) (Miss. 2006) (citation omitted). A factual basis may also be established “by a statement

of the prosecutor, the testimony of live witnesses, and prior proceedings.” Williams, 

 (¶17) (quoting Turner v. State, 

 (¶17) (Miss. Ct. App. 2003)).

“And if sufficiently specific, an indictment or information can be used as the sole source of

the factual basis for a guilty plea.” 

 (internal quotation marks omitted). However, this

Court has held that “the indictment must be read into the record at the plea hearing” before

it can be used to establish the factual basis for a plea. Venezia v. State, 

 (¶7)

(Miss. Ct. App. 2016); accord Barton v. State, 

, 114 (¶8) (Miss. Ct. App.

2020), cert. denied, 

 (Miss. 2020). “When determining whether a sufficient

factual basis existed at the trial-court level, we review the entire record.” Crawford v. State,

, 317 (¶6) (Miss. Ct. App. 2019).

¶11.   In the present case, Counts 1 and 4 of the indictment alleged that on or about February

10, 2018, Colenberg

       did wilfully, unlawfully, feloniously, with deliberate design to effect the death
       of a human being other than the deceased Latasha Collins and without the

                                               5
       authority of law did kill and murder one Latasha Collins, a human being, by
       shooting her with a gun, contrary to and in violation of Section 97-3-19(1)(a)
       of the Mississippi Code . . . ;

       ....

       and . . . did wilfully, unlawfully, feloniously, purposely and knowingly attempt
       to cause serious bodily injury to others and caused such injury by discharging
       . . . a gun at the . . . vehicle occupied by Latasha Collins and Michael
       Washington at a time when . . . Colenberg was in [another] vehicle . . .
       contrary to and in violation of Section 97-3-109 of the Mississippi Code . . . .

As noted above, under Count 1, Colenberg subsequently pled guilty to the lesser-included

offense of second-degree murder rather than the indicted offense of first-degree murder. The

indictment was not read or even mentioned during Colenberg’s plea hearing. Accordingly,

the indictment cannot provide a factual basis for his plea. Venezia, 

 (¶7);

Barton, 341 So. 3d at 114 (¶8).1

¶12.   Seven months after he was indicted, Colenberg entered into a plea agreement and filed

a petition to plead guilty. It is clear that there was some confusion in completing Colenberg’s

plea petition. On the first page of the petition, one of Colenberg’s attorneys, Bradford, wrote

that Colenberg was pleading guilty to second-degree murder (Count 1) and “shooting into



       1
         The State argues that we should reconsider our decisions in Venezia and Barton on
this point, but we decline to do so. “An indictment is only an accusation . . . .” State v.
Brooks, 

 (¶9) (Miss. Ct. App. 2001) (quoting Black’s Law Dictionary
772 (6th ed. 1990)). It “is not evidence of the facts charged in [it] and . . . should not be
considered as evidence of guilt.” Rainer v. State, 

 (Miss. 1983).
Therefore, unless the accused admits to facts charged in the indictment, the indictment’s
mere existence cannot establish that there is “substantial evidence that the accused did
commit the legally defined offense to which he is offering the plea.” Corley, 

. Moreover, in the absence of a valid waiver, an indictment is a requirement in all felony
cases. MRCrP 14.5. If the mere existence of an indictment was sufficient to supply the
factual basis for a plea, the latter requirement would have little practical significance.

                                              6
a motor vehicle” (Count 3). However, someone later struck through “shooting into a motor

vehicle” and wrote in “Drive by” (Count 4),2 and Colenberg initialed the change to the

petition. During Colenberg’s plea hearing, Colenberg and Blackmon confirmed that he was

pleading guilty to Counts 1 and 4 of the indictment, not Count 3.

¶13.   Although the error was corrected on the first page of the plea petition, related errors

were not corrected in subsequent sections of the petition. On page 5, the petition addressed

the elements and facts of the offenses to which Colenberg was pleading guilty as follows:

              My lawyer advises me that the elements of the charge to which I am
       pleading guilty are as follows:

       willfully, unlawfully, or feloniously attempting to cause serious bodily injury
       to others by discharging a firearm into an occupied vehicle/the killing of a
       human being during an eminently dangerous act w/o premeditation.

             I submit the following facts which I state to be true, and, feel all of the
       above elements are proven by these facts:

       On the date charged in the indictment, the Defendant did willfully, unlawfully,
       and feloniously discharge a firearm into an occupied vehicle. On the date
       charged in the indictment, the Defendant did willfully, unlawfully, and
       feloniously did cause the death of Latasha Collins.

Bradford handwrote the underlined text above, and Colenberg initialed the page and signed

the petition under oath. In relevant part, the handwritten text tracks Count 3 of the

indictment rather than Count 4.

¶14.   During Colenberg’s plea hearing, the circuit judge asked the prosecutor what the State

would prove if the case went to trial, and the prosecutor responded as follows:



       2
        At the evidentiary hearing on Colenberg’s PCR motion, Bradford testified that the
correction was not in his handwriting and that he did not know who made the change.

                                              7
       [I]f the State were to go to trial on a second degree murder charge, the State
       would have to prove that the defendant did kill a human being and would have
       to prove that he did so in the commission of an act eminently dangerous to
       others and evidencing a depraved heart regardless of human life although
       without any premeditated design to the effect of any particular individual and
       this would be on a second degree murder charge.

       If we were to proceed to trial on the drive-by shooting charge, the [S]tate
       would have to prove that the defendant did, in fact, with an intent to cause
       bodily injury to another or causing bodily injury to another, discharge a firearm
       and that he discharged the firearm while he, himself, was driving in a certain
       vehicle, and in this case we would prove that he was, in fact, driving a vehicle
       when he committed this offense.

¶15.   The State’s answer to the judge’s question was unhelpful and, standing alone, failed

to provide a sufficient factual basis for the plea. For one thing, the State recited what

elements it “would have to prove” if the case went to trial. This was merely a partial listing

of the elements of the offenses, not a positive statement of anything that the State would in

fact prove if the case went to trial. However, the circuit judge’s follow-up questions to

Colenberg were adequate to correct this particular error. The judge asked Colenberg whether

he “hear[d] what the State would prove if [the case went] to trial on the charges [he was]

pleading guilty to.” (Emphasis added). After Colenberg answered in the affirmative, the

judge then asked specifically, “[D]id you commit those offenses?” Colenberg again

answered in the affirmative.

¶16.   In addition, even while attempting to establish a factual basis by a bare recitation of

the elements of the offenses, the State omitted or misstated some elements. An essential

element of second-degree murder is that the defendant killed the victim “without the

authority of law.” Clark v. State, 

, 1000-01 (¶32) (Miss. 2021) (quoting



                                              8
Montgomery v. State, 

 (¶42) (Miss. 2018)); 

-

19(1)(b) (Supp. 2017). In addition, an essential element of drive-by shooting is attempting

to cause or causing “serious bodily injury to another.” 

(1) (Rev.

2014) (emphasis added). The difference between mere bodily injury and serious bodily

injury is material.3 Nonetheless, at Colenberg’s plea hearing, the prosecutor failed to state

that the killing was done without authority of law or that Colenberg attempted to cause

serious bodily injury. If the prosecutor had provided a more substantial description of the

facts of the case and the evidence of guilt, the underlying factual basis for these elements

might have been readily apparent, and a verbatim recitation of statutory language would not

have been necessary. However, the prosecutor did not offer any specific facts regarding the

offense. If the State attempts to establish a factual basis based on nothing more than the

barest recitation of the elements of an offense, the State should at least make sure to recite

all of those elements correctly.

¶17.   Despite the shortcomings of the State’s factual presentation, we conclude that the

record as a whole was sufficient to establish a factual basis for Colenberg’s plea. As noted

above, “[w]hen determining whether a sufficient factual basis existed at the trial-court level,

we review the entire record.” Crawford, 287 So. 3d at 317 (¶6). This includes Colenberg’s

plea petition. Colenberg signed the petition under oath, and at his plea hearing he confirmed

that his lawyer had gone over the entire petition with him and that he understood everything

       3
         Compare Fleming v. State, 

 (Miss. 1992) (defining “serious
bodily injury”), with Murrell v. State, 

 (Miss. 1995) (defining “bodily
injury”), criticized on other grounds by Dilworth v. State, 

, 735 n.4 (Miss.
2005).

                                              9
in it. Taken together, Colenberg’s sworn plea petition and plea colloquy establish that he

admitted he had killed Collins without authority of law4 and by an act eminently dangerous

to others, i.e., by shooting into an occupied vehicle. Those facts are a sufficient factual basis

for the offense of second-degree murder. See, e.g., Cooper v. State, 

, 1224-

25 (¶18) (Miss. Ct. App. 2007) (holding that evidence the defendant shot into an occupied

vehicle was sufficient to establish depraved-heart murder, now classified as second-degree

murder). In addition, Colenberg’s plea colloquy establishes that he recklessly discharged his

gun while in a vehicle and caused serious bodily injury. This is a sufficient factual basis for

the offense of drive-by shooting. See 

(1).

¶18.   We note that “the best practice during a plea hearing is for the State to offer more

factual detail than what was produced in this case.” Crawford, 287 So. 3d at 319-20 (¶16).

In addition, “[a] defendant waives his constitutional right to remain silent when he pleads

guilty. It is not asking too much of a trial judge to require the defendant to inform the court

of exactly what he, the defendant, did that constitutes the crime that the defendant is pleading

guilty to . . . .” Carreiro v. State, 

 (¶16) (Miss. Ct. App. 2009). Because

that did not occur in this case, the record contains only a limited factual basis for Colenberg’s

plea. Nonetheless, we conclude that all the facts before the trial court were minimally

sufficient to establish a factual basis for the plea.

       II.     Involuntary Guilty Plea



       4
        In his plea petition, Colenberg admitted that he killed Collins “unlawfully.” “The
word ‘unlawfully’ and the phrase ‘without the authority of law’ are interchangeable.”
Turner v. State, 

 (¶20) (Miss. 2001).

                                               10
¶19.   Colenberg’s remaining claims are intertwined. He alleges that Blackmon incorrectly

advised him that he would be eligible for trusty time and other forms of earned time, which

could make him eligible for release in eight to twelve years. Colenberg further alleges that

he pled guilty in reliance on this misinformation, which rendered his plea involuntary, and

that Blackmon’s errors amounted to ineffective assistance of counsel.

¶20.   When a defendant in the current context pleads guilty but then later alleges that the

plea was involuntary due to counsel’s misinformation, the defendant must show to the court

by a preponderance of the evidence that (1) “the defendant’s attorney affirmatively

misinformed him regarding his eligibility for earned time or trusty time[,] [(2)] the attorney’s

erroneous advice was not corrected[,] and [(3)] the defendant pled guilty in reliance on the

erroneous advice.” Manuel v. State, 

, 717 (¶11) (Miss. Ct. App. 2020) (citing

Sylvester v. State, 

 (¶¶19-20) (Miss. 2013)).

¶21.   Months after sentencing, Colenberg alleged in his PCR motion that his plea was

involuntary because Blackmon had misinformed him by telling him that “he would be able

to get into classes, have a job, and receive trusty earned time or meritorious time and other

forms of ‘good-time’”; however, “he was actually serving twenty (20) years day for day and

he was ineligible for ‘good time.’” (Emphasis added). The circuit court then properly held

an evidentiary hearing on the matter. Afterward, the circuit court concluded that any

misinformation, if given, was “cured” by the plea petition and the plea transcript.

¶22.   As we discussed in a recent case, when looking back at the plea colloquy, the relevant

inquiry is whether the judge said “anything that could contradict or make [the defendant]



                                              11
question the advice he had received from his attorney.” Ulmer v. State, 

, 615

(¶13) (Miss. Ct. App. 2020). A correction is sufficient if statements were made that could

cause the defendant to doubt his counsel’s statements. Id.

¶23.   In Ulmer, Lonnie Ulmer pled guilty to second-degree murder and was sentenced to

forty years, with twenty of those years to serve and the rest suspended, in the custody of the

Mississippi Department of Corrections (MDOC). Id. at 612 (¶1). He alleged in his PCR

motion that his plea was involuntary. Id. Ulmer alleged that he was told by counsel that he

would be “eligible for trusty-earned time.” Id. at (¶3). But Ulmer later learned that a person

convicted of second-degree murder is ineligible for trusty-earned time. Id. Remarkably,

Ulmer’s attorney, Rickman, corroborated his story. Id. at (¶4). Rickman affirmed that she

told Ulmer he would be eligible for trusty-earned time and also that she believed he would

not have pled guilty had he known he was going to serve twenty years day for day. Id. at 613

(¶4). The circuit court denied Ulmer’s PCR motion. On appeal, we explained the circuit

court’s error:

       The plea petition did not mention trusty-earned time, parole, or early release.
       The plea petition did not mention day-for-day time or an MDOC policy or the
       fact that the court or the attorney cannot control the ultimate application of
       Mississippi law or MDOC policy. Thus, the plea petition did not contradict in
       any shape or form Ulmer’s erroneous expectation about trusty-earned time,
       parole, or early release. The petition’s statement that the judge could sentence
       a person to the maximum sentence did not alleviate Ulmer’s erroneous
       assumption as a result of the wrong advice given by his attorney. Had the plea
       petition contained the standard language included in some written petitions,
       that neither the circuit court nor anyone else could guarantee or give advice as
       to early release or parole and that those decisions are a matter between the
       individual and the MDOC, maybe the plea petition would have, in fact,
       “belied” the testimony presented by Ulmer.



                                             12
Id. at 615-16 (¶14).

¶24.   While in Ulmer, we found that the plea colloquy did not serve to contradict the

counsel’s advice, this case is factually distinguishable. Id. at 615 (¶14). Unlike Ulmer, the

record, here, reflects that Colenberg’s alleged misinformation about his earned time or trusty

time was sufficiently contradicted by both his plea petition and his attorney’s testimony.

When Colenberg signed his guilty-plea petition, he attested to the following:

       4.      I have told my lawyer all of the facts and circumstances known to me
       about the charge(s) asserted in the indictment(s). I believe that my lawyer is
       fully informed on all such matters. My lawyer has advised me of the nature of
       the charge(s) and the possible defenses that I may have to the charge(s).

       ....

       8.     I declare that no officer or agent of any branch of government, or any
       other person has made any promise or inducement of any kind to me, or within
       my knowledge to anyone else, that I will receive a lighter sentence, probation,
       or early release, or any other form of lenience, if I plead “Guilty.” I have not
       been beaten, threatened, mentally or physically forced, intimidated or coerced
       in any manner to plead guilty to the crime charged against me. I offer my plea
       of “Guilty” freely and voluntarily and of my own accord and with full
       understanding of all the matters set forth in the indictment(s) herein and in this
       Petition, and this plea is with the advice and consent of my lawyer.

       ....

       11.    I do understand that no one can assure me of parole or early release.

       12.    I understand that if I am not eligible for parole, I will not receive “good
       time credits.” I also understand that “earned time” or “good time” will not be
       applied to reduce my parole eligibility date. I understand that this Court has
       no control over the giving of earned time or good time. I understand that this
       process is governed by the Mississippi Department of Corrections.

¶25.   Moreover, unlike the facts in Ulmer where the defendant’s attorney corroborated his

statements, here, there is no affirmative showing that Colenberg was misinformed.

                                              13
Colenberg’s attorney “vehemently denied stating any promise of earned time or early release

to Mr. Colenberg.” And, unlike the plea petition in Ulmer, Colenberg’s plea petition, which

he signed, initialed, and dated, informed Colenberg that he would not receive good time

credits and that neither earned time nor good time would be applied to reduce his parole

eligibility date. Colenberg’s petition emphasized that the Court did not have control over the

“giving of earned time or good time” and that it could only be determined by the MDOC.

¶26.   In any event, the circuit court gave Colenberg an opportunity to question any advice

that he received from his counsel. The circuit judge asked Colenberg:

       THE COURT:                   And did you read the petition?

       THE DEFENDANT:               Yes, ma’am.

       THE COURT:                   Did Mr. Blackmon explain everything to you?

       THE DEFENDANT:               Yes, ma’am.

       THE COURT:                   Did you understand everything in the petition?

       THE DEFENDANT:               Yes, ma’am.

¶27.   Later in the hearing, the circuit judge specifically asked about the representation

Colenberg had received, and Colenberg stated that he had been properly advised and that no

one had promised him anything or threatened him. For these reasons, the circuit court did

not err when it found that the plea petition corrected or contradicted Colenberg’s expectation

or misinformation, if any. The plea petition and plea hearing, when combined, support the

circuit court’s conclusion that Colenberg failed to show by a preponderance of the evidence

that his plea was involuntary and that Blackmon did not provide ineffective assistance. Cf.



                                             14
Sylvester, 

 (¶¶21-24).

                                      CONCLUSION

¶28.   The circuit court did not err by concluding that the record established a factual basis

for the plea or by finding that Colenberg knowingly, intelligently, and voluntarily pled guilty.

Therefore, we affirm the circuit court’s order denying Colenberg’s PCR motion.

¶29.   AFFIRMED.

    CARLTON, P.J., GREENLEE, LAWRENCE AND SMITH, JJ., CONCUR.
WILSON, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE
WRITTEN OPINION, JOINED BY BARNES, C.J., McCARTY AND EMFINGER, JJ.
McDONALD, J., NOT PARTICIPATING.

       WILSON, P.J., CONCURRING IN PART AND DISSENTING IN PART:

¶30.   I concur with the majority’s holding in Part I that the record establishes a “minimally

sufficient . . . factual basis for the plea.” Ante at ¶18. However, I respectfully dissent from

Part II, affirming as to Colenberg’s involuntary plea and ineffective assistance claims. The

circuit judge did not make sufficient findings of fact to support her ruling on those claims.

Specifically, the judge declined to make a finding as to whether Colenberg’s plea counsel

misadvised him, reasoning that “[e]ven if [counsel] gave incorrect advice,” any

misinformation was corrected in Colenberg’s plea petition and during his plea hearing.

However, Colenberg’s plea colloquy and plea petition did not address his eligibility for trusty

time or other forms of earned time. Therefore, in order to rule on Colenberg’s claims, the

judge needed to determine whether Colenberg’s plea counsel provided incorrect advice, and,

if so, whether Colenberg pled guilty in reliance on the misinformation. Because the circuit

judge failed to make findings of fact on those critical issues, we should reverse and remand


                                              15
for further proceedings limited to those issues.

¶31.   Prior to accepting a guilty plea, a circuit judge is not required to advise a defendant

regarding his eligibility for parole, trusty time, or other forms of earned time or early release.

Manuel v. State, 

, 717 (¶¶10-11) (Miss. Ct. App. 2020). Such an explanation

is not a prerequisite to a voluntary, valid guilty plea. 

 However, “a plea is considered

involuntary if the defendant’s attorney affirmatively misinformed him regarding his

eligibility for earned time or trusty time, the attorney’s erroneous advice was not corrected,

and the defendant pled guilty in reliance on the erroneous advice.” 

 at (¶11); accord

Sylvester v. State, 

 (¶¶19-20) (Miss. Ct. App. 2013); Ulmer v. State,

, 613-16 (¶¶8-15) (Miss. Ct. App. 2020).

¶32.   In the present case, Colenberg alleges that his plea counsel, Blackmon, advised him

that he “would be eligible for [t]rusty [e]arned [t]ime and . . . would receive 30 days’ credit

for every 30 days [he] served.” Colenberg claims that Blackmon also said that he could

“reduce [his] time” further by taking classes while in prison. Colenberg states that Blackmon

told him that he “would only have to serve 12 years” if he earned trusty time and other forms

of earned time. After he entered prison, however, Colenberg learned that he would not be

eligible for trusty time or other forms of earned time.5 Colenberg alleges that if Blackmon



       5
        Pursuant to MDOC policy, Colenberg currently is not eligible for earned time, trusty
time, or meritorious earned time. See MDOC Inmate Handbook, ch. III, at 6-7 (providing
that inmates convicted of second-degree murder are ineligible for meritorious earned time
and trusty time); 

 ch. V, at 10-11 (providing that inmates convicted of second-degree
murder are ineligible for earned time), https://www.mdoc.ms.gov/Inmate-Info/Pages/Inmate-
Handbook.aspx (June 2016). By statute, he also is ineligible for parole. 

(1)(d) (Supp. 2021).

                                               16
had advised him correctly, he “would not have pled guilty to any charges and . . . definitely

would have gone to trial.” Colenberg alleges that Blackmon’s erroneous advice rendered his

plea involuntary and amounted to constitutionally ineffective assistance of counsel.

¶33.   Colenberg did not testify at his PCR hearing, apparently because he wanted to avoid

further incriminating himself. However, the sworn statement that he submitted in support

of his PCR motion was entered into evidence. In addition, Colenberg’s father and sister both

corroborated Colenberg’s claims through affidavits and live testimony. They testified that

they were present and overheard Blackmon give Colenberg incorrect advice regarding his

eligibility for trusty time and his ability to earn an early release. They also testified that

Colenberg would not have pled guilty but for the incorrect advice.

¶34.   Blackmon testified at Colenberg’s PCR hearing and denied that he told Colenberg that

he would be eligible for trusty time or any other form of earned time. Indeed, Blackmon

denied that he ever discussed trusty time or any other form of earned time with Colenberg.

Blackmon stated that MDOC and the Legislature can always change the rules regarding

eligibility for such programs, “and those rules change often.” Therefore, Blackmon stated

that as a general policy, he will not advise clients regarding their eligibility for such

programs. In fact, Blackmon said he was “not even sure how [the trusty] system works.”

¶35.   Ultimately, the circuit judge did not make any finding of fact as to whether Blackmon

gave Colenberg incorrect advice. Rather, the circuit judge reasoned that

       [e]ven if Attorney Blackmon gave incorrect advice (i.e., serving 8-12 years of
       a 20-year sentence) that rose to the level of a deficient performance, the
       deficient performance was not prejudicial to the outcome of Mr. Colenberg’s
       case because it was cured by this court during its final remarks at the plea

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       hearing as well as in the [plea petition], sworn to and signed by Mr. Colenberg,
       that earned time is under the authority of the [MDOC].

¶36.   The circuit judge erred by avoiding a critical factual issue—whether Blackmon gave

incorrect advice. The judge erred because Blackmon’s alleged incorrect advice would not

have been “cured” by the court’s “final remarks at the plea hearing” or the plea petition.

First, the court’s “final remarks at the plea hearing” had nothing to do with Colenberg’s

eligibility for trusty time or earned time. Those remarks were as follows:

       BLACKMON:             Your Honor, if I may, I don’t know if the Court can
                             address this at this time, but I just wanted the record to
                             reflect Mr. Colenberg’s, I guess, request or inquiry. He
                             has been -- since he’s been released, he’s been on bond.
                             The bond did have restrictions on him for reference to
                             time and place where he could be. The inquiry is
                             whether or not that would count as time served. It may
                             be something the [MDOC] might have to resolve.

       THE COURT:            Yes, sir. And I think they’ll make that determination.
                             Once I place him in their custody, at that point, you know
                             how this works, they have their own rules and
                             regulations. So they’ll determine that.

Here, counsel simply inquired whether the time that Colenberg was out on bond subject to

restrictions could be credited to him as “time served.” In response, the judge simply stated

that MDOC would make that determination. This exchange did nothing to inform Colenberg

that he was categorically ineligible for trusty time and other forms of earned time. Therefore,

it would not have cured or corrected counsel’s alleged incorrect advice.6

       6
         In addition, this exchange occurred at the very end of the hearing—after the court
had already accepted Colenberg’s plea and pronounced his sentence. Logically, a judge’s
post-sentencing remarks cannot cure an involuntary plea that has already been entered. Cf.
Haney v. State, 

, 90 (¶20) (Miss. Ct. App. 2019) (reasoning that a defendant
“clearly did not plead guilty in reliance” on comments the judge made after the judge had

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¶37.   Second, Colenberg’s plea petition also would not have cured or corrected the alleged

incorrect advice. The plea petition did advise Colenberg that “no one [could] assure [him]

of parole or early release,” that the circuit court “ha[d] no control over the giving of earned

time or good time,” and that those matters were “governed by [MDOC].” However, nothing

in the plea petition advised Colenberg that he was categorically ineligible for trusty time or

other forms of earned time. Thus, if Colenberg’s attorney did incorrectly advise him that he

was eligible for trusty time and could earn his release in eight to twelve years, there was

nothing in the plea petition that would have corrected that misinformation. Manuel, 304 So.

3d at 717-18 (¶14).

¶38.   In summary, Colenberg was not advised in his plea petition or during his plea hearing

that he was ineligible for trusty time or other forms of earned time. Therefore, if Blackmon

incorrectly advised Colenberg on that subject, the misinformation would not have been cured

or corrected by the plea petition or during the plea hearing. Once Colenberg supported this

claim with affidavits and the testimony of additional witnesses, it became necessary for the

circuit judge to make findings of fact sufficient to decide the claim. Specifically, the circuit

judge needed to determine whether Blackmon misadvised Colenberg and, if so, whether

Colenberg pled guilty in reliance on the misinformation. The circuit judge erred by declining

to address those factual issues and by holding that Colenberg’s claims failed “[e]ven if

Attorney Blackmon gave incorrect advice.” Accordingly, we should reverse and remand for

further proceedings limited to those issues.



already accepted the defendant’s plea and pronounced the defendant’s sentence).

                                               19
¶39.   Of course, “the trial court sits as finder of fact in a [PCR] proceeding” when, as in this

case, “the evidence on a critical point is in conflict.” Henderson v. State, 

 (¶8) (Miss. Ct. App. 2000). “When conflicting evidence capable of more than one

reasonable interpretation is presented to the court, the trial judge, as with any finder of fact,

is entitled to determine the credibility of the witnesses and the weight to afford their

testimony.” Dickerson v. State, 

, 353 (¶36) (Miss. 2020); accord Shelby v.

State, 

, 622 (¶39) (Miss. Ct. App. 2020), cert. denied, 

 (Miss.

2021). Therefore, the circuit judge in this case was entitled to weigh the conflicting evidence

and determine whether Colenberg had met his burden of proving his claim by a

preponderance of the evidence. See Doss v. State, 

 (¶5) (Miss. 2009);

(7) (Rev. 2020). What the circuit judge could not do was decline

to resolve the critical factual issues that Colenberg’s claims raised.

¶40.   In summary, while I concur with the majority that there was a minimally sufficient

factual basis for Colenberg’s plea, I would reverse and remand for the circuit judge to

determine whether Blackmon incorrectly advised Colenberg regarding his eligibility for

trusty time and other forms of earned time and, if so, whether Colenberg pled guilty in

reliance on the misinformation. Accordingly, I respectfully dissent in part.

       BARNES, C.J., McCARTY AND EMFINGER, JJ., JOIN THIS OPINION.




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