Robert E. Hicks v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CP-01100-COA
ROBERT E. HICKS
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
05/27/2009
HON. ANDREW C. BAKER
TATE COUNTY CIRCUIT COURT
ROBERT E. HICKS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
AFFIRMED: 07/20/2010
BEFORE KING, C.J., BARNES AND MAXWELL, JJ.
KING, C.J., FOR THE COURT:
¶1.
On December 16, 2008, Robert E. Hicks filed a pro se motion to vacate and set aside
his conviction of burglary of a dwelling house and sentence of twenty years in the custody
of the Mississippi Department of Corrections (MDOC). The Tate County Circuit Court
dismissed Hicks’s motion without benefit of a hearing. Aggrieved, Hicks appeals. On
appeal, Hicks argues the following issues: (1) the trial court did not have jurisdiction to hear
his case; (2) he received ineffective assistance from counsel; (3) the State failed to disclose
Brady material which resulted in a miscarriage of justice; and (4) his conviction and sentence
were illegal. Finding no error, we affirm the judgment of the trial court.
FACTS
¶2.
On July 29, 2005, Hicks was indicted in a multi-count indictment for conspiracy to
commit burglary of a dwelling, burglary of a dwelling, grand larceny, and possession of a
concealed weapon. On June 20, 2006, Hicks pled guilty to burglary of a dwelling. On
September 22, 2006, Hicks was sentenced to twenty years in the custody of the MDOC. The
sentencing order was filed on September 26, 2006.
¶3.
On December 16, 2008, Hicks filed his motion for post-conviction relief alleging
ineffective assistance of counsel, a due-process violation of the Fourteenth Amendment,
prosecutorial misconduct, and a sentencing error by the trial judge. The trial court reviewed
the pleadings and court files, and pursuant to Mississippi Code Annotated section 99-3911(2) (Rev. 2009), the court, without benefit of a hearing dismissed Hicks’s petition as being
without merit. The order of dismissal was filed on May 28, 2009.
¶4.
Hicks appealed on July 7, 2009. On August 26, 2009, the trial court signed an order
allowing Hicks to proceed in forma pauperis. In that order, the trial court noted that Hicks’s
attempted appeal was filed eight days late. However, the trial court found it appropriate,
pursuant to Rule 4(g) of the Mississippi Rules of Appellate Procedure, to allow Hicks to file
an out-of-time appeal.
STANDARD OF REVIEW
¶5.
When the appellate court reviews a trial court’s dismissal of a motion for post-
conviction relief, it will not disturb that decision unless the trial court’s factual findings are
2
clearly erroneous. Phillips v. State, 25 So. 3d 404, 406 (¶4) (Miss. Ct. App. 2010).
“However, where questions of law are raised, the applicable standard of review is de novo.”
Callins v. State, 975 So. 2d 219, 222 (¶8) (Miss. 2008).
I. Jurisdiction
¶6.
Hicks argues that the indictment failed to allege intent, an essential element in the
offense of burglary of a dwelling, thereby depriving the Tate County Circuit Court of the
jurisdiction to accept his guilty plea or to sentence him. This issue was not raised with the
trial court by Hicks. Generally, issues not first presented to the trial court may not be raised
for the first time on appeal. Fluker v. State, 17 So. 3d 181, 183 (¶5) (Miss. Ct. App. 2009).
Notwithstanding Hicks’s failure to present this matter to the trial court, we find the issue
lacks merit. In the multi-count indictment, Hicks was charged in Count One with conspiracy
to commit burglary, in Count Two with burglary of a dwelling house, in Count Three with
grand larceny, and in Count Five with possession of a concealed weapon. Hicks pled guilty
to Count Two, and all other charges were remanded to the file. Count Two of the indictment
reads that Hicks:
[L]ate of the County and State aforesaid, on or about the 21st day of
JANUARY, in the year of our Lord 2005, in the County and State aforesaid,
and within the jurisdiction of this Court, did wilfully, unlawfully and
feloniously, break and enter the dwelling house of Jeff Triplett and Laura
Triplett, with the intent to commit some crime therein, in direct violation of
Section 97-17-23, Mississippi Code 1972 Annotated, as amended . . . .
¶7.
The issue that Hicks actually attempts to raise for the first time on appeal is not a
jurisdictional one, but rather a question of whether the indictment was defective. This Court
has previously held in Cochran v. State, 969 So. 2d 119, 123 (¶15) (Miss. Ct. App. 2007),
3
that “[a] valid guilty plea waives all non-jurisdictional defects to an indictment.” Because
Hicks entered a guilty plea as to Count Two, he waived all claims to non-jurisdictional
defects to Count Two of the indictment.
¶8.
Assuming for the sake of discussion that Hicks’s argument was not waived, we would
still find that this argument is without merit.
¶9.
“[T]he law is clear that where an indictment tracks the language of the statute, the
indictment sufficiently puts the defendant on notice of the charges against him in order to
prepare his defense.” Miller v. State, 18 So. 3d 898, 908 (¶43) (Miss. Ct. App. 2009).
Pursuant to Mississippi Code Annotated section 97-17-23 (Supp. 2009), the elements of the
crime of burglary of a dwelling are: (1) the unlawful breaking and entering and (2) the intent
to commit some crime when entry is attained. See Parker v. State, 962 So. 2d 25, 27 (¶9)
(Miss. 2007). Count Two of the indictment alleged a breaking and entering by Hicks “with
the intent to commit some crime therein.”
¶10.
While the specific offense that the State alleged Hicks intended to commit inside the
Tripletts’ home was not stated in Count Two of the indictment, it was stated in Count Three
of the indictment. The relevant portion of Count Three provides:
[T]hat ROBERT E. HICKS . . . on or about the 21st day of JANUARY, in the
year of our Lord 2005, in the County and State aforesaid, and within the
jurisdiction of this Court, did wilfully, unlawfully, and feloniously, take, steal
and carry away the personal property of Jeff Triplett and Laura Triplett, to wit:
one (1) laptop computer;
one (1) black briefcase;
jewelry;
one (1) safety deposit box and contents;
one (1) video camera;
one (1) Elgin watch, and
4
one (1) watch,
of the total aggregate value of $500.000 . . . .
A multi-count indictment is to be read and construed as a whole, rather than giving limited
consideration to the individual counts contained therein. See Stafford v. State, 55 So. 2d 477
(Miss. 1951). “So long as a fair reading of the indictment, taken as a whole, clearly describes
the nature and cause of the charge against the accused, the indictment is legally sufficient.”
Berry v. State, 996 So. 2d 782, 790 (¶24) (Miss. 2008); (quoting Farris v. State, 764 So. 2d
411, 421 (¶28) (Miss. 2000); see Sanderson v. State, 883 So. 2d 558, 561 (¶9) (Miss. 2004).
At Hicks’s plea hearing, the assistant district attorney recited the State’s expected proof as
follows:
In Count [Two], the State would be prepared to prove that on or about the 21st
day of January in the year 2005, Robert E. Hicks, along with George Marin,
who is also known as Buddy Martin, did break and enter the dwelling house
of Jeff and Laura Triplett where the personal property of Mr. And Mrs. Triplett
was kept, with the intent of Mr. Hicks and Mr. Martin to take, steal, and carry
away the personal property found inside that home. . . . [Hicks] matched the
physical description of one of the individuals that [Laura] was able to give, and
the personal property of the Tripletts was found inside the SUV that Mr. Hicks
was driving at the time.
Hicks acknowledged through his counsel that the State could probably get sufficient evidence
before a jury to conclude that he did break and enter the Tripletts’ home and that he was later
apprehended driving an SUV that contained the Tripletts’ personal property that had been
taken and carried away from their home.
¶11.
For the foregoing reasons, this issue is without merit.
II. Ineffective Assistance of Counsel
¶12.
Hicks argues that his counsel was ineffective for several reasons. Hicks alleges that
5
defense counsel failed to investigate the facts of the charged offense; erroneously advised
him to enter a guilty plea, which resulted in his pleading to a fatally defective indictment; and
failed to object to the untimely filing of the victim impact statement. Each claim alleged by
Hicks will be addressed separately below.
¶13.
In order to establish a claim of ineffective assistance of counsel, Hicks must prove
that: (1) his counsel’s performance was deficient, and (2) his defense was prejudiced by his
counsel’s deficient performance. Coleman v. State, 979 So. 2d 731, 735 (¶14) (Miss. Ct.
App. 2008) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). We find that the
evidence before this Court indicates that Hicks did not receive ineffective assistance from
his counsel.
A. Indictment
¶14.
Hicks contends that defense counsel’s performance was deficient because had he
properly investigated the facts, he would have discovered that the indictment did not charge
the essential element of intent; thus, the indictment failed to conform to the statute.
¶15.
Hicks’s argument of ineffective assistance of counsel as to the indictment is dependent
upon a finding that the indictment failed to allege the essential element of intent and,
therefore, was fatally defective. Count Two of the indictment does, in fact, conform to the
language of the statute; thus, it is not defective. This contention of error is without merit.
B. Voluntariness of Plea
¶16.
Hicks argues that his guilty plea was unknowingly and involuntarily given because
of erroneous and mistaken advice from his counsel. Hicks asserts that he was advised by
counsel to plead guilty, even though counsel did not inform him that the indictment was
6
fatally defective because it did not contain the essential element of intent. As this Court has
previously noted, the indictment was not defective. Having found that the indictment was
not defective, we also conclude that Hicks’s contention that his plea was not voluntary
because of his counsel’s erroneous advice is not supported by the record.
¶17.
In considering whether a guilty plea was voluntarily entered, it must be shown that:
the defendant’s plea was not induced by fear, violence, deception, or improper inducements;
the fact that the plea was voluntarily and intelligently made must appear in the record; the
defendant was competent to understand the nature of the charge; the defendant understood
the nature and consequences of the plea as well as the maximum and minimum penalties
provided by law; the defendant understood that by pleading guilty he waived his
constitutional rights to trial by a jury, to confront and cross-examine adverse witnesses, and
to avoid self-incrimination; and if the defendant is not represented by an attorney and he is
indigent, he has the right to be appointed an attorney to represent him at every stage of the
proceeding. URCCC 8.04.
¶18.
During the plea colloquy, the following dialogue occurred between the trial judge and
Hicks:
Q. [I] want to know for sure that you are offering your plea freely and
voluntarily, that you are mentally alert.
A. Yes, sir.
....
Q. Anyone tricked you or deceived you in any way that you know of?
A. No, sir.
7
....
Q. Also, Mr. Hicks, I want to be sure that you understand that if I accept your
offered plea today, for all practical purposes, you are giving up your right to
appeal any action taken here at the trial court level to the Mississippi Supreme
Court and I'll tell you why. If you freely and voluntarily admit your guilt and
you know what you're doing; that is, you are not a mentally ill person or a
retarded person, and you don't appear to be that; if I accept your plea and
sentence properly, there is just not much left to appeal from. Do you
understand that?
A. Yes, sir.
¶19.
Hicks acknowledged in the plea colloquy that he was not threatened, deceived,
tricked, or promised leniency to enter a plea of guilty. Also, Hicks acknowledged that he
understood that by entering a guilty plea to burglary of a dwelling he admitted to the facts
as charged. While not finding that Hicks received faulty advice, this Court has previously
held that in instances in which counsel gives faulty advice at the time preceding the plea
hearing, such “error is cured if the defendant unequivocally is given the correct information
and indicates his understanding of it during the hearing itself.” Henderson v. State, 769 So.
2d 210, 214 (¶12) (Miss. Ct. App. 2000). This issue lacks merit.
C. Brady Material
¶20.
Hicks contends that the State did not timely disclose all evidence or information to his
defense counsel known to the prosecutor that would negate his guilt or serve to mitigate his
sentence. Hicks asserts that the State intentionally withheld the victim impact statement from
his defense counsel and the trial court until the day of sentencing. Hicks claims that such
conduct is a Brady violation. Brady v. Maryland, 373 U.S. 83 (1963).
¶21.
To establish a Brady violation a defendant must prove the following:
8
(1) that the government possessed evidence favorable to the defendant
(including impeachment evidence); (2) that the defendant does not possess the
evidence nor could he obtain it himself with any reasonable diligence; (3) that
the prosecution suppressed the favorable evidence; and (4) that had the
evidence been disclosed to the defense, a reasonable probability exists that the
outcome of the proceedings would have been different.
King v. State, 656 So. 2d 1168, 1174 (Miss. 1995) (citing United States v. Spagnoulo, 960
F. 2d 990, 994 (11th Cir. 1992)). Hicks does not argue that he was either denied access to
or had access to exculpatory information delayed. Instead, Hicks merely argues that the
victim impact statement was not provided to him until the day of sentencing. Because there
is no allegation of exculpatory or mitigating information being contained therein, Hicks’s
claim is more akin to one of prosecutorial misconduct as opposed to a Brady violation.
¶22.
Pursuant to Mississippi Code Annotated section 99-19-159 (Rev. 2007), disclosure
of a victim impact statement must be given to the defendant at least forty-eight hours prior
to the date of sentencing. During the sentencing hearing, the State informed the trial judge
that the victims did not wish to be in court due to the emotional stress and discomfort Hicks
had caused them, but they had prepared a victim impact statement. The State also apprised
the trial court that a copy of the victim impact statement had been provided to defense
counsel. The record does not indicate that defense counsel made any objections at that time
as to the timeliness of the statement; likewise, defense counsel did not suggest that Hicks was
disadvantaged in any way by the timing of the statement’s receipt. “Failure by a prisoner to
raise objections, defenses, claims, questions, issues or errors either in fact or law which were
capable of determination at trial and/or on direct appeal, regardless of whether such are based
on the laws and the Constitution of the [S]tate of Mississippi or of the United States, shall
9
constitute a waiver thereof and shall be procedurally barred.” Miss. Code Ann. § 99-3921(1) (Rev. 2007). See Tobias v. State, 724 So. 2d 972, 976 (¶24) (Miss. Ct. App. 1998).
Because Hicks failed to object to the untimely submission of the victim impact statement
during the plea hearing, he waived his right to raise this argument on appeal. This issue is
procedurally barred.
¶23. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.
LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
10
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.