Ellis Dawkins v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CP-00014-COA
ELLIS DAWKINS
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
11/6/2003
HON. ANDREW K. HOWORTH
MARSHALL COUNTY CIRCUIT COURT
ELLIS DAWKINS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: W. DANIEL HINCHCLIFF
BENJAMIN F. CREEKMORE
CRIMINAL - POST-CONVICTION RELIEF
POST-CONVICTION RELIEF DENIED.
AFFIRMED - 05/24/2005
BEFORE KING, C.J., IRVING AND BARNES, JJ.
BARNES, J., FOR THE COURT:
¶1.
Ellis Dawkins entered a plea of guilty on August 19, 2002, to the capital rape of his daughter, who
was aged ten at the time of the assault. Dissatisfied with receiving the minimum sentence of twenty years
(ten of which were suspended) and five years of post-release supervision, Dawkins filed a motion for postconviction relief on October 2, 2003. The motion was denied without a hearing by the circuit court.
Dawkins appeals that denial raising numerous issues, most of which are directly contradicted by his petition
to enter plea agreement and the plea qualification hearing. Finding no error in the trial court’s denial of
post-conviction relief, we affirm.
STATEMENT OF FACTS
¶2.
Ellis Dawkins was indicted by the grand jury of Marshall County, Mississippi, on October 7, 1998;
count one of the indictment charged Dawkins withstatutory rape of child under the age of fourteen between
January 1 and June 30, 1998, in violation of section 97-3-65(1) of the Mississippi Code; count two
charged Dawkins with sexual battery of the same child, aged ten at the time, on or about July 22, 1998,
in violation of section 97-3-95(d) of the Mississippi Code. The record before us is silent as to the reason
for delay in bringing Dawkins to trial on these charges. On August 19, 2002, Dawkins signed a sworn
"petition of defendant for court to accept plea,” in which he pled guilty to capital rape. At a hearing later
that day, the circuit judge informed Dawkins of his constitutional rights and questioned him extensively
about his knowledge of those rights and his understanding that, in pleading guilty, he was waiving those
rights. In response to questioning, Dawkins admitted that he was in fact guilty of the crime of capital rape,
denied suffering from any type of disability which might impair his ability to understand the court
proceedings, denied that anyone had intimidated or coerced him into pleading guilty, and acknowledged
that he had reviewed the plea petition with his attorney and was satisfied with the services of his attorney.
¶3.
Circuit Court Judge Andrew K. Howorth determined that Dawkins freely and voluntarily offered
his plea of guilty to capital rape and, based upon the court’s observation of Dawkins before the bench,
found him capable and competent to enter the plea. The court accepted Dawkins’s plea of guilty to the
crime of capital rape and sentenced him, in accordance with the recommendation of the State, to the
minimum sentence of twenty years, with ten years suspended and five years’ post-release supervision. The
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maximum sentence for statutory rape by someone of Dawkins’s age is life imprisonment. See Miss. Code
Ann. § 97-3-65(2)(c) (Rev. 2000).
¶4.
On petition for post-conviction collateral relief, Dawkins disavowed his admission of guilt, alleging
the following: his plea was involuntary as he was “mentally incompetent” from the false accusations; his right
to a speedy trial had been violated; the prosecution had coerced him into pleading guilty with false
evidence; and his counsel had provided him ineffective assistance. Judge Howorth denied Dawkins’s
motion for post-conviction relief without an evidentiary hearing. Dawkins has appealed to this Court
seeking reversal of the circuit court's ruling.
ISSUES AND ANALYSIS
I. WHETHER THE CIRCUIT COURT ERRED IN NOT GRANTING THE
PETITIONER A HEARING OR APPOINTED COUNSEL IN THE POSTCONVICTION PROCEEDINGS.
¶5.
Dawkins raises two procedural issues regarding the circuit court’s handling of his motion for post-
conviction relief: the court’s decision not to grant Dawkins a hearing before dismissing the motion for postconviction relief and the court’s denial of appointed counsel. The statute regarding summary dismissal of
a motion for post-conviction relief is clear and reads as follows:
If it plainly appears from the face of the motion, any annexed exhibits and 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 prisoner to be notified.
Miss. Code Ann. § 99-39-11 (2) (Rev. 2000). In Smith v. State, the Mississippi Supreme Court stated:
Smith's current contentions and credibility are certainly suspect. When we compare his
previous sworn testimony during his guilty plea with his current affidavit, the latter is
practically rendered a "sham,"thus allowing the summary dismissal of the petition to stand.
Smith v. State, 636 So. 2d 1220, 1224 (Miss. 1994). Most of Dawkins’s contentions are directly
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contradicted by his petition to enter plea agreement and the plea qualification hearing. Judge Howorth
specifically asked Dawkins, “Has anybody done anything to intimidate you, coerce you, beat you, intimidate
you, anything else to try to force you to plead guilty?” To which, Dawkins responded, “No, sir.” The
judge also asked Dawkins, “Has anybody promised you a lighter sentence, . . . any other type of
inducement, a reward or anything like that to try to persuade you to plead guilty?” To which, Dawkins
again responded, “No, sir.” Judge Howorth asked Dawkins, “Are you suffering from any type of disability,
physical, mental or otherwise, that might impair or affect your ability to understand what’s going on here
today?” Dawkins replied, “No, sir.” When asked if he was satisfied with his attorney, Dawkins
responded, “Yes, sir.” The supreme court has held that allegations in post-conviction pleadings that are
completely contradicted by the sworn testimony in the record do not require a hearing. Taylor v. State,
682 So. 2d 359, 364 (Miss. 1996). Denial of an evidentiary hearing was, thus, justified with respect to
the majority of Dawkins’s contentions by this reason alone.
¶6.
Dawkins raises two issues which we discuss separately as they are not directly contradicted by
his prior sworn testimony. However, we agree with the trial court’s determination that no hearing was
required with respect to either issue. The Mississippi Supreme Court has stated:
By statute and under long-established precedent, the movant in a post-conviction relief
motionmust make some reasonable demonstration of the actual existence of evidence that,
if shown satisfactorily at a hearing, would indicate an entitlement to relief. Mere
unsupported assertions contained in the motion may be disregarded by the trial court and
the motion dismissed without the necessity of a hearing.
Davidson v. State, 850 So.2d 158, 159-60 (¶4) (Miss. Ct. App. 2003) (citations omitted).
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¶7.
First, Dawkins makes unusual allegations that a “Judge Lance”1 dismissed the capital rape case on
May 5, 2000, and that the prosecution made a “motion” to defense counsel giving him “permission” to
dismiss the case in August of 2000. These allegations are contradictory on their face. Had the trial judge
dismissed the case on May 5, 2000, the prosecution would have no need to give “permission” to
Dawkins’s counsel to dismiss the case in August of 2000. Dawkins provides no evidence that either of
these events occurred. There are no affidavits either of the judge in question or of the unidentified
prosecutor who allegedly gave permission to dismiss the charges. Further, in the order denying postconviction relief, the circuit court judge confirms that he reviewed “the court file in this case” and considered
all matters “in light most favorable” to Dawkins. If there were anything in the record to substantiate
Dawkins’s claims of dismissal in May or a motion in August of 2000, the circuit court judge surely would
have identified it. This Court finds no evidence presented by Dawkins that would require an evidentiary
hearing on this issue.
¶8.
Second, Dawkins contends that an FBI Report of Examination of certain deoxyribonucleic acid
(DNA) samples submitted in connection with the case (attached to his petition) proves his innocence and
that his counsel misunderstood the report and incorrectly advised him to plead guilty. The DNA report
refutes rather than supports Dawkins’s allegations of innocence. The DNA analysis could not exclude
Dawkins as a potential contributor of the male DNA obtained from the victim’s panties. The report stated
that “the probability of selecting an unrelated individual at random from the general population who could
1
This Court is unaware of any Judge Lance serving the circuit court district in which Dawkins was
convicted during the time frame at issue. This Court can only assume that Dawkins is attempting to refer
to either Judge William R. Lamb or Judge Henry L. Lackey.
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be a potential contributor to the mixture of DNA from [the panties] was 1 in 2.4 billion from the Black
population, approximately 1 in 5.3 billion from the Caucasian population, approximately 1 in 2.2 billionfrom
the Southeastern Hispanic population, and approximately 1 in 12 billion from the Southwestern Hispanic
population.” The report noted that the victim and Dawkins “account for all of the results obtained from
[the] specimen . . . .”2 Nonetheless, Dawkins contends that the report evidenced his innocence as vulvar
and rectal swabs from the victim produced “no conclusive typing results . . . for comparison to [Dawkins.]”
Further, Dawkins construes the report’s conclusion that “[n]o STR [short tandem repeat] typing results
unlike the [victim] specimen were obtained from [the panties]” to mean that the DNA on the panties “did
not match” the victim.
¶9.
On its face, the report condemns rather than exonerates Dawkins. While some of the arguments
Dawkins raises on appeal might have been addressed on cross-examination of the DNA examiner,3 the
report itself does not, on its face, raise any question concerning Dawkins’s guilt. Dawkins has failed to
demonstrate the actual existence of evidence which would indicate his entitlement to relief. Accordingly
we find that the circuit court judge did not err in denying Dawkins an evidentiary hearing.
¶10.
As no evidentiary hearing was required, there was no need for the trial court to appoint counsel
for Dawkins. Section 99-39-23 (1) of the Mississippi Code provides that counsel may be appointed for
2
Dawkins attempted to explain this finding by alleging that the mother of the victim, with whom he
was having a sexual relationship, must have “wipe[d] herself” with the child’s panties following a sexual
encounter with Dawkins in an attempt to “set [him] up.”
3
For example, the witness could have been cross examined regarding the “double negative”–“no
STR typing results unlike the [victim]” -- which lead Dawkins to believe the report showed that the panties
did not contain DNA of the victim or could have addressed Dawkins’s contention that his son could have
been the source of the DNA since he is “related to” Dawkins and the report merely discusses the
probabilities that the DNA came from an “unrelated” source.
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post-conviction proceedings if an evidentiary hearing is required. Miss. Code Ann. § 99-39-23(1) (Rev.
2000) (emphasis added). Further, the supreme court has held "a criminal defendant has neither a state nor
federal constitutional right to appointed counsel in post-conviction proceedings." Moore v. State, 587 So.
2d 1193, 1195 (Miss. 1991). Dawkins’s assignment of error in the court’s refusal to appoint counsel is
without merit.
II.
WHETHER DAWKINS’S COURT APPOINTED COUNSEL AND
PROSECUTING ATTORNEY USED MISREPRESENTATION TO OBTAIN A
PLEA OF GUILTY.
¶11.
Dawkins now claims that his counsel informed him that he would be eligible for parole after one
year. This claim is contradicted by the signed plea agreement, which stated the agreed to sentence was
twenty years with ten years suspended and made no mention of parole. Dawkins testified to the judge that
he had reviewed the plea agreement, understood it, and wished to plead guilty based on the agreement.
¶12.
Dawkins also claims that he was coerced into the plea agreement by false evidence, including the
DNA test the FBI performed.4 The DNA report could not exclude Dawkins as the source of the semen
found in his daughter's panties. There is no evidence that the prosecutor or Dawkins’s counsel told
Dawkins anything but the truth with respect to the DNA analysis. The State apparently informed Dawkins
the evidence was sufficient to convict him, and offered him a plea instead of trial. The record reflects that
Dawkins voluntarily accepted this plea on the advice of his counsel.
4
Dawkins also claims that his counsel and the prosecutor misrepresented the existence of a
videotape that showed Dawkins “had sex with his daughter so much that it looked like she ha[d] had 3 or
4 babies.” He has offered no evidence that the tape did not, in fact, exist.
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¶13.
The plea acceptance record completely contradicts Dawkins's claims that he was coerced into
pleading guilty. When claims are contradicted by the record of the plea acceptance, they may be labeled
as a "sham" by the court and be disregarded. Taylor v. State, 682 So. 2d 359, 363 (Miss. 1996) (citing
King v. State, 679 So. 2d 208, 210-11 (Miss. 1996)). Since Dawkins's claims fall outside the record,
the allegations can be disregarded by this Court. This issue is without merit.
III. WHETHER DAWKINS'S GUILTY PLEA WAS MADE INVOLUNTARILY OR
UNKNOWINGLY AND WHETHER PETITIONER'S 5TH, 6TH, OR 14TH UNITED
STATES CONSTITUTIONAL RIGHTS WERE VIOLATED.
¶14.
“[The] determination of voluntariness may be evaluated by looking to see whether the defendant
was advised of the nature of the charges against him, the rights which he would be waiving by pleading
guilty, the maximum sentences that he could receive for the crimes with which he was charged and whether
he was satisfied with the advice and counsel of his attorney.” Gunter v. State, 841 So. 2d 195, 197 (¶4)
(Miss. Ct. App. 2003). “A plea is voluntary if the defendant knows what the elements are of the charge
against him including an understanding of the charge and its relation to him, what effect the plea will have,
and what the possible sentence might be because of his plea.” Wilson v. State, 577 So. 2d 394, 396-97
(Miss. 1991).
¶15.
The only evidence for this Court to examine is the plea qualification record. During the plea
hearing, Dawkins testified that his plea was voluntary and that he understood his rights. The judge assured
that Dawkins was aware of the charges against him. Dawkins was also informed of his rights to a speedy
trial, the right to trial by jury, and his right to confrontation of witnesses. The plea hearing shows that
Dawkins voluntarily waived each of these rights. The judge specifically informed Dawkins of the maximum
punishment for capital rape. The judge satisfied each of the elements required to render a guilty plea
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voluntary.
¶16.
Dawkins alleges that he is innocent and was so threatened by the prosecutor and his own attorney
that he became “mentally incompetent” at the time the plea was entered. Without more, this Court cannot
grant Dawkins relief. Further, Dawkins testified at the plea qualification hearing that he was not suffering
from any type of disability which might impair his ability to understand the court proceedings and no one
had intimidated or coerced him into pleading guilty. Judge Howorth observed Dawkins and determined
that his plea of guilty was offered freely and voluntarily and found him capable and competent to enter the
plea. Therefore, this issue is without merit.
¶17.
Dawkins further claims that he was denied the right to a speedy trial.5 It is clear from the record
that Dawkins was advised of his right to a speedy trial by Judge Howorth before the plea was accepted
and that Dawkins acknowledged that he was waiving this right. The supreme court has held that the
statutory and constitutional right to a speedy trial is waived by entry of a valid guilty plea. Anderson v.
State, 577 So. 2d 390, 391 (Miss. 1991). Therefore, this issue is without merit.
IV. WHETHER PETITIONER'S PLEA OF GUILTY WAS SUPPORTED BY THE
EVIDENCE.
¶18.
Dawkins claims that his plea of guilty is not supported by the evidence, and that proof is required
5
Dawkins makes a second timeliness argument as well; he claims that he was not tried within two
years; therefore, the action was barred by a two-year statute of limitations. Mississippi Code Annotated
Section 99-1-5 provides a two-year limitation on the prosecution of a number of crimes. Rape, however,
is expressly excluded. Miss. Code Ann. § 99-1-5 (Rev. 2000). By necessity, statutory rape is included
within this exception. Op. Atty. Gen. No. 2001-0476. Further, the limitation applies to the time between
the commission of the crime and the commencement of the prosecution. See Miss. Code Ann. § 99-1-5
(Rev. 2000). Prosecution may be commenced by indictment. See Miss. Code Ann. § 99-1-7 (Rev.
2000). In the instant case, Dawkins was indicted, and his prosecution thus commenced, within ten months
of the crime.
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to accept a plea of guilty. This Court has held many times that a defendant waives his right to challenge the
State's evidence by entering a valid guilty plea. Young v. State, 797 So. 2d 239, 246 (¶17) (Miss. Ct.
App. 2001); Johnson v. State, 753 So. 2d 449, 456 (¶¶17-18) (Miss. Ct. App. 1999); Jefferson v.
State, 556 So. 2d 1016, 1019 (Miss. 1989). Dawkins’s contentions are without merit.
V.
WHETHER PETITIONER IS ENTITLED TO RELIEF BASED ON
INEFFECTIVE ASSISTANCE OF COUNSEL.
¶19.
Dawkins's final claim is that his appointed counsel was ineffective. Dawkins makes claims that his
attorney acted in concert with the prosecutor, did not discuss the DNA results with him, misunderstood the
analysis, misrepresented to him that the DNA report evidenced Dawkin’s guilt and erroneously advised
him to accept the plea agreement. We find this argument to be wholly without merit. The Mississippi
Supreme Court has adopted the Strickland v. Washington, 466 U.S. 668, 687-96 (1984), test for
determining ineffective assistance of counsel claims. Eakes v. State, 665 So. 2d 852, 872 (Miss. 1995).
"A defendant must show that his attorney's performance was deficient, and that the deficiency was so
substantial as to deprive the defendant of a fair trial." Johnson v. State, 753 So. 2d 449, 452 (¶5) (Miss.
Ct. App. 1999) (citing Eakes, 665 So. 2d at 872). Both elements of the test must be proven by the
defendant. Brown v. State, 626 So. 2d 114, 115 (Miss. 1993). “There is a strong, yet rebuttable,
presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Cole
v. State, 666 So. 2d 767, 775 (Miss. 1995) (citing Frierson v. State, 606 So. 2d 604, 608 (Miss.
1992)). To overcome this presumption, "[t] he defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466
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U.S. at 694 (¶20). ¶20.The record reflects that it is Dawkins, rather than his appointed counsel, who
misunderstood the import of the DNA analysis. Cognizant of the effect the DNA analysis would have on
Dawkins’s case, his counsel was able to secure a plea agreement of twenty years in prison, which is the
minimum allowed by statute. Had Dawkins been found guilty, he could have been sentenced to life in
prison. Dawkins has not demonstrated that his counsel was ineffective in reviewing the DNA evidence and
advising Dawkins to plead guilty.
¶21.
Dawkins finally contends that his attorney misrepresented to him that he “did not have a right to
appeal.” Dawkins’s counsel was correct. Since Dawkins entered a guilty plea, he was not entitled to a
direct appeal. Section 99-35-101 specifically provides that “an appeal from the circuit court to the
supreme court shall not be allowed in any case where the defendant enters a plea of guilty.” Miss. Code
Ann. § 99-35-101; see also Walton v. State, 752 So.2d 452, 454-55 (¶6) (Miss. Ct. App.1999) (by
pleading guilty, criminal defendant bypasses the right to direct appeal). During the plea qualification hearing,
Judge Howorth explained to Dawkins that “except for some very limited circumstances, you waive or give
up the right to an appeal if the Court accepts your plea of guilty.” When asked if he understood, Dawkins
replied, “Yes, sir.” Dawkins’s contention is without merit.
¶22.
For these reasons, we affirm the circuit court's summary denial of the petition for post-conviction
relief.
¶23. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY DENYING
POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO MARSHALL COUNTY.
KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER, GRIFFIS
AND ISHEE, JJ., CONCUR.
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