Roosevelt Dockens, Jr. v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CP-00352-COA
ROOSEVELT DOCKENS, JR.
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
4/7/2003
HON. HENRY L. LACKEY
CHICKASAW COUNTY CIRCUIT COURT
ROOSEVELT DOCKENS, JR. (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
BENJAMIN F. CREEKMORE
CIVIL - POST-CONVICTION RELIEF
POST-CONVICTION RELIEF DENIED
AFFIRMED: 08/03/2004
BEFORE SOUTHWICK, P.J., IRVING AND GRIFFIS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Roosevelt Dockens, Jr. pled guilty to two charges of grand larceny and one charge of possession
of cocaine. He was sentenced to five years in the custody of the Mississippi Department of Corrections,
with three years suspended and two years to serve, on each of the grand larceny charges. He was
sentenced to serve eight years on the possession of cocaine charge. Dockens petitioned the circuit court
for post-conviction relief and, subsequently, filed a motion to vacate, set aside, and correct judgment. The
circuit court denied relief. On appeal, Dockens asserts that (1) the court failed to inform him of the true
charges he faced and the minimum sentences for the charges, (2) his pleas were not entered knowingly,
intelligently, and voluntarily, (3) the court failed to honor the plea agreement, (4) he was denied due
process, and (5) he was denied effective assistance of counsel. We find no error and affirm.
STANDARD OF REVIEW
¶2.
In reviewing a trial court's decision to deny a motion for post-conviction relief the standard of
review is clear. The trial court's denial will not be reversed absent a finding that the trial court's decision
was clearly erroneous. Smith v. State, 806 So. 2d 1148, 1150 (¶3) (Miss. Ct. App. 2002).
ANALYSIS
1.
¶3.
Failure to inform of true charges and minimum sentence
Dockens asserts that his indictment was not read in open court in order to inform him of the true
charges he faced. He also argues that the court erred in not reciting the minimum sentences for each charge
and that he was unaware of the two-year minimum sentence for possession of cocaine.
¶4.
During the evidentiary hearing, the legal assistant for Dockens' counsel testified that she was not
the one who wrote the "2" on the plea petition for possession of cocaine illustrating the minimum number
of years imprisonment. Dockens relies on this testimony to support his claim that he was not informed of
the two year minimum sentence that possession of cocaine carries. However, the fact that the minimum
sentence was not written in the legal assistant's handwriting does not suggest that Dockens was unaware
of the minimum sentence. In fact, the record contains no evidence that supports either Dockens' claim that
he was not informed of the minimum sentence for the charges or his claim that he was not informed of the
true charges he faced.
¶5.
Both the indictment, which charged Dockens, and the petition to enter a plea of guilty filed by
Dockens expressed that two years was the minimum sentence for possession of cocaine. The indictment
specifically charged Dockens with having in his "possession a certain controlled substance, to wit .39 grams
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of Cocaine." His petition to enter a plea of guilty on the possession of cocaine charge stated he was
entering a plea of guilty to "possession of a controlled substance." His petition to enter a plea of guilty on
the two counts of grand larceny stated that he was pleading to the charges of "grand larceny 2 counts."
¶6.
Although the trial judge did not verbally state the minimum penalties for each charge Dockens
faced, Dockens' plea petitions informed him of the minimum sentences for the charges he faced. In
Thompson v. State, 724 So. 2d 1070, 1073 (¶ 14) (Miss. Ct. App. 1998), we held that:
failure by a trial court specifically to inform a defendant of the maximum and minimum
sentences may be harmless if the defendant was correctly informed by another source or
"if appears beyond a reasonable doubt that the plea would have been entered anyway. .
. ." State v. Pittman, 671 So. 2d 62, 64 (Miss. 1996).
¶7.
Dockens was informed in his plea petition and indictment of the minimum sentence for possession
of cocaine. His indictment stated that possession of cocaine is "punishable by imprisonment not less than
two (2) years nor exceeding eight (8) years." His plea petitions for the possession charges stated the
maximum punishment the court could impose was eight years and the minimum punishment was two years.
Therefore, the trial judge's failure to verbally state the minimum sentence during the plea hearing was
harmless. Thompson, 724 So. 2d at 1073 (¶ 14).
¶8.
Dockens' plea petitions for the grand larceny charges did not state the minimum punishment for
grand larceny. However, Mississippi Code Annotated Section 97-17-41 (Supp. 2003) does not provide
a minimum sentence for grand larceny. Since this statute sets no minimum penalty, the trial judge was not
obligated to inform Dockens of the minimum sentence for grand larceny. Bevill v. State, 669 So. 2d 14,
18 (Miss. 1996).
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¶9.
Neither Dockens' claim that he was not informed of the true charges he faced nor his claim that he
was unaware of the minimum sentences are supported by the record. Therefore, these claims are without
merit.
2.
¶10.
Involuntary plea
Dockens argues that his plea petitions were involuntary because he was led to believe his sentences
would run concurrently. He offers that it was his belief that, due to his sentences running concurrently, he
would serve only eight years.
¶11.
A plea is considered "voluntary and intelligent" if the defendant is advised about the nature of the
charge and the consequences of the entry of the plea. Alexander v. State, 605 So. 2d 1170, 1172 (Miss.
1992). The defendant must be instructed that a guilty plea waives his or her rights to a jury trial, to confront
adverse witnesses, and to protection against self-incrimination. Id.
¶12.
Dockens bears the burden of proving by a preponderance of the evidence that he is entitled to
post-conviction relief. McClendon v. State, 539 So. 2d 1375, 1377 (Miss. 1989). "Once the trial judge
has determined at a preliminary hearing that a confession is admissible, the defendant/appellant has a heavy
burden in attempting to reverse that decision on appeal." Sills v. State, 634 So. 2d 124, 126 (Miss. 1994)
(quoting Frost v. State, 483 So. 2d 1345, 1350 (Miss. 1986)). “Such findings are treated as findings of
fact made by a trial judge sitting without a jury as in any other context. As long as the trial judge applied
the correct legal standards, his decision will not be reversed on appeal unless it is manifestly in error, or is
contrary to the overwhelming weight of the evidence.” Foster v. State, 639 So. 2d 1263, 1281 (Miss.
1994).
¶13.
The record simply does not support Dockens' claim that he expected to serve only eight years.
Each of Dockens' plea petitions recited that the recommended sentence would be eighteen years with six
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years suspended and twelve to serve. Dockens' trial counsel testified during the evidentiary hearing that
he informed Dockens that he would be sentenced to serve twelve years. Dockens received the exact
sentence he bargained for, twelve years to serve.
¶14.
Dockens was fully advised about the nature of the charges and the consequences of his entry of
the pleas. In his plea petitions, Dockens affirms that his lawyer fully advised him of the nature of the
charges and the possible defenses. Dockens acknowledged that he understood that by pleading guilty he
was waiving his right to a jury trial, to cross-examine witnesses, and to protection against self-incrimination.
¶15.
During the plea hearing, the judge questioned Dockens regarding his age, his ability to read and
write, and whether it was his signature on his plea petition. Dockens professed that his lawyer reviewed
the petition with him and that he was satisfied with his lawyer's performance. Dockens responded that he
understood the maximum penalty the court could impose on him was eighteen years. He stated that he did
not know of any reason why the judge should not accept his pleas. He acknowledged that he was pleading
guilty for the sole reason that he was in fact guilty of committing the crimes. The court accepted Dockens'
pleas finding that he was alert, understood the circumstances and the consequences of offering his pleas,
and offered the pleas freely and voluntarily after having been advised by competent counsel.
¶16.
Based on our review of the record, we find that Dockens entered his pleas knowingly, voluntarily,
and intelligently. Therefore, the trial judge did not err in accepting Dockens' pleas.
3.
¶17.
Failure to honor plea agreement
Dockens argues that the circuit court erred by failing to honor the plea bargain agreement. He
claims that the district attorney's office recommended that all three of his sentences run concurrently, but
the court did not honor that agreement and required that the sentences run consecutively.
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¶18.
In Moore v. State, 394 So. 2d 1336, 1337 (Miss. 1981), the court held that if the judge informs
the defendant that the judge does not have to accept the recommendation, the judge is not in error for failing
to follow the recommendation. Here, the circuit judge informed Dockens that he did not have to accept
the recommendation and he could sentence him to the maximum or minimum sentence. Dockens replied
that he understood. Therefore, the circuit judge would not be in error for failing to follow the plea
agreement.
¶19.
However, our review of the record reveals that the judge did follow the plea agreement. Each of
the plea petitions states the recommendation of eighteen years with six years suspended and twelve to
serve. Despite the parties' confusion over whether to classify the sentences as running concurrently or
consecutively, the basis of the recommendation was that Dockens would serve a total of twelve years.
Dockens was sentenced to serve the twelve years, as recommended. This assignment of error is without
merit.
4.
¶20.
Denial of due process
It appears that Dockens advances two claims in support of his contention that he was denied due
process. First, he asserts that he was denied a fair and impartial evidentiary hearing because the judge did
not rule on whether the court had violated Uniform Circuit and County Court Rule 8.04. Second, Dockens
argues that the judge should have disqualified himself due to an unfair ruling the judge made by stating that
Dockens signed three plea agreements stating the exact same language.
¶21.
Uniform Circuit and County Court Rule 8.04 provides the proper procedures, duties, and
safeguards involved in the entry of guilty pleas and in plea bargaining. As we ruled above, the circuit court
committed no error in accepting Dockens' pleas and the basis of the plea bargain was effectuated. Also,
nothing in the record suggests the circuit judge had any reason to disqualify himself and the reason Dockens
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suggests for disqualification is totally devoid of merit. Therefore, this assignment of error is without merit.
5.
¶22.
Ineffective assistance of counsel
Dockens next argues that he was denied effective assistance of counsel. Dockens bases this claim
on the fact that his trial counsel did not object when the court sentenced him to serve his three sentences
consecutively. Dockens argues that his counsel gave a false statement regarding whether he had written
on the plea agreement. Dockens claims his counsel failed to tell the judge about the concurrent agreement.
He also notes that his plea petitions contained a recommendation of eighteen years which is more time than
possession of cocaine carries.
¶23.
In order to prevail on his claim, Dockens must demonstrate that his counsel's performance was
deficient and that this deficiency prejudiced him in such a way that he was denied a fair trial. Strickland
v. Washington, 466 U.S. 668, 687 (1984). The counsel’s deficiency is assessed by looking at the totality
of the circumstances. Hiter v. State, 660 So. 2d 961, 965 (Miss. 1995). We, as an appellate court,
apply "a strong presumption that counsel's conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy." Burns v. State, 813 So. 2d 668, 673 (¶14)
(Miss. 2001).
¶24.
Before accepting Dockens' guilty plea, the judge specifically asked Dockens if he was satisfied with
his counsel. Dockens responded in the affirmative. Dockens' guilty plea petitions also indicate that he was
informed of the possible sentence he could receive and that he was satisfied with his counsel's
representation.
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¶25.
Moreover, Dockens has failed to establish that his counsel's performance was deficient. The basis
of the plea bargain was that Dockens would serve twelve years for the charges he faced. The court
awarded him eighteen years with six years suspended and twelve years to serve, as was bargained for.
Therefore, the failure of Dockens' counsel to object to his sentence does not constitute deficient
performance.
¶26.
Neither Dockens' claims regarding his counsel giving false statements, nor the eighteen year
recommendation on the plea petitions, establish that his counsel was deficient. The record simply does not
support Dockens' claim that his counsel gave false statements regarding whether he had written on the plea
agreement. Although the eighteen year recommendation on each of Dockens' plea petitions was longer
than the maximum sentence for either possession of cocaine or two counts of grand larceny, it is clear that
the recommendations were for the total of the charges, not for the total on each charge.
¶27.
Dockens has failed to show that his counsel's performance was deficient. Therefore, we find this
issue to be without merit.
¶28. THE JUDGMENT OF THE CHICKASAW COUNTY CIRCUIT COURT DENYING
POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED
TO CHICKASAW COUNTY.
KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., LEE, IRVING, MYERS AND
CHANDLER, JJ., CONCUR.
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