Bennie_Ward

I am convicted of possession with intent to transfer as an habitual offender. That is what I was tried and sentenced under without a lawful indictment. The first indictment (there were two (2)) was lawful. It stated possession with intent to distribute. but it "not" say "habitual offender." This indictment was lawfully executed because it was signed by the grand jury foreman, among other things. The "unlawful" indictment that I was convicted under had no grand jury foreman signature. It has the letters "D.A." written where it said foreman of grand jury; (I have a copy of both indictments) also the charge was changed from intent to distribute, to intent to transfer as habitual offender. The difference is 30 years mandatory, as opposed to, at the most, 30 years with parole, which I would have been eligible for in 2001 at the maximum sentence under the "lawful" indictment. I am accused of having in my possession, one (1) rock worth about $100.00.

I have a procedural bar because they say the issue of the indictment was not preserved at the trial court, nor appeal court level. I have a copy of my court records; in them, on page 19, is a motion to dismiss habitual offender allegation! In this motion, the previous indictment was mentioned, but I guess that is not considered as preserving. I have copies of both indictments.

I have filed a post conviction and Habeas Corpus without satisfactory results. They continue to cite the procedural bar concerning the indictment. The only evidence of intent to transfer the D.A. used was that I was going to party with the drugs, and share some with my friends. He used a dictionary to give the jury the meaning of transfer, as when you pass something from one hand to another. Now if a person gives some alcoholic beverages, (a beer) or tobacco products, (a cigarette) without a license to sell, trade, barter, or transfer, that violates the law?

There was an ineffective assistance of trial, and appellate counsel filed because of failure to:

(1) preserve the indictment

(2) failure to subpoena informant Lawrence Bonman (from whom I now have a notarized statement contradicting some things said by state witness Dafne Taylor: Miss Taylor was reportedly on paper (parole or probation) at the time, but was never charged even though she admitted to buying drugs and trying to buy some, and was found in the immediate vicinity of drugs)

(3) failure to request continuance in light of missing witness. As a matter of fact I have not one witness on my behalf, even though I tried to get the attorney to talk to a couple of people, (Green W. Brown) and Caledonia Dillworth) I also have a notarized statement from Mr. Brown.

I did not know about the procedural bar until after my appeal was confirmed and I went to a writ writer for help. Also considering the unlawful indictment of Intent to transfer as habitual offender; the time between the recorded date of the unlawful indictment and my trial was only ten (10) days; May 11, 1992 for indictment, May 21, 1992, trial. Not enough time for an attorney to prepare an adequate defense.

So I have 30 years mandatory. I have done eleven (11). I have an Associates degree in Theology and a Bachelors degree in Biblical studies, and currently working on my Masters. I am a born again, Bible believing Christian who believes whole-heartedly in the death, burial and resurrection of our Lord Jesus. I am also guitar player, and back-up vocalist for our Christian band.

If I can get back into trial court; I have witnesses this time, (Mr. Bonman and Mr. Brown) or just get the "habitual" removed. Any help from anyone is so gratefully appreciated.

Thank you very much.