Kenneth Dewayne Davis v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CP-00544-COA
KENNETH DEWAYNE DAVIS
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
3/15/2007
HON. LAMAR PICKARD
COPIAH COUNTY CIRCUIT COURT
KENNETH DEWAYNE DAVIS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
CIVIL - POST-CONVICTION RELIEF
DENIED POST-CONVICTION RELIEF
AFFIRMED - 01/29/2008
BEFORE LEE, P.J., CHANDLER AND BARNES, JJ.
LEE, P.J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1.
On November 7, 2005, in the Copiah County Circuit Court, Kenneth Davis pleaded guilty
to one count of sale of a controlled substance. Davis also pleaded guilty to conspiracy to commit
capital murder. On the controlled substance charge, Davis was sentenced to serve twenty-five years
in the custody of the Mississippi Department of Corrections. On the conspiracy charge, Davis was
sentenced to serve twenty years in the custody of the MDOC. The trial court ordered both sentences
to run consecutively.
¶2.
On February 15, 2007, Davis filed a motion for post-conviction relief. The trial court denied
Davis’s motion for relief on March 15, 2007. Davis now appeals, asserting the following issues:
(1) he received ineffective assistance of counsel, (2) his guilty plea was not entered into voluntarily
or intelligently, (3) the trial court failed to conduct a proper hearing, and (4) the trial court should
have granted an expansion of the record and an evidentiary hearing. Finding no merit to Davis’s
issues, we affirm.
STANDARD OF REVIEW
¶3.
A trial court’s denial of post-conviction relief 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). However, when issues of law are raised, the proper standard of review is de novo.
Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999).
DISCUSSION
I. WAS DAVIS’S COUNSEL INEFFECTIVE?
¶4.
In his first issue on appeal, Davis argues that he received ineffective assistance of counsel.
To prevail on this issue Davis must demonstrate that his trial counsel’s performance was deficient
and the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). In the context of a guilty plea, Davis must demonstrate that his counsel’s performance fell
below the range of competence demanded of attorneys in criminal cases and that but for the
attorney’s substandard performance, he would have insisted on going to trial. See Alexander v.
State, 605 So. 2d 1170, 1173 (Miss. 1992).
¶5.
Davis claims that his trial counsel conspired with the prosecution to force him to plead guilty
to the sale of a controlled substance charge. However, Davis fails to support these allegations and
uses this issue to reassert his innocence on this particular charge. Furthermore, during the plea
colloquy, Davis stated that he was satisfied with the advice of his attorney. This issue is without
merit.
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II. WAS DAVIS’S GUILTY PLEA ENTERED INTO VOLUNTARILY?
¶6.
In his second issue on appeal, Davis argues that his guilty plea was not entered into
voluntarily or intelligently. Davis claims that he was coerced into pleading guilty and telling the
trial court that he had not been threatened in any way. A plea is considered “voluntary and
intelligent” if the defendant knows the elements of the charge against him, understands the charge’s
relation to him, what effect the plea will have, and what sentence the plea may bring. Alexander,
605 So. 2d at 1172. Furthermore, solemn declarations in court carry a strong presumption of verity.
Gable v. State, 748 So. 2d 703, 706 (¶11) (Miss. 1999).
¶7.
During the plea colloquy, Davis was informed of the charges against him, the effect of the
plea, what rights he would waive if he pleaded guilty, and the possible sentence he could receive.
Davis indicated that he understood everything that was explained. Davis admitted to committing
both crimes to which he pleaded guilty. Davis stated that he was satisfied with his attorney, and he
entered into the guilty plea of his own free will. To survive summary dismissal, a collateral attack
on a facially correct plea must include supporting affidavits of other persons. Baker v. State, 358
So. 2d 401, 403 (Miss. 1978). Davis has not done so; thus, we find this issue to be without merit.
III. DID THE TRIAL COURT FAIL TO CONDUCT A PROPER HEARING?
¶8.
In his third issue on appeal, Davis argues that the trial court failed to conduct a proper
hearing pursuant to Rule 8.04(A)(3) of the Uniform Rules of Circuit and County Court Practice.
Rule 8.04(A)(3) states the following:
Before the trial court may accept a plea of guilty, the court must determine
that the plea is voluntarily and intelligently made and that there is a factual basis for
the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or
improper inducements. A showing that the plea of guilty was voluntarily and
intelligently made must appear in the record.
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¶9.
Davis’s main assertion is that there was no factual basis for the plea. Although Davis does
not specify which charge, we will discuss both. The factual basis requirement is met when the
record “contain[s] ‘enough that the court may say with confidence the prosecution could prove the
accused guilty of the crime charged.’” Jones v. State, 936 So. 2d 993, 999 (¶21) (Miss. Ct. App.
2006) (quoting Corley v. State, 585 So. 2d 765, 767 (Miss. 1991)). An adequate factual basis for
the plea may be formed by any record evidence before the court, including the defendant’s
admission of guilt. Corley, 585 So. 2d at 767.
¶10.
Here, the State was prepared to show that Davis had conspired with numerous individuals
to murder Corey Johnson. The State had evidence to show that Davis had exchanged money with
someone to murder Johnson. Davis admitted these facts. In regards to the other charge, the State
was prepared to offer the testimony of James Reagan, an agent for the Mississippi Bureau of
Narcotics, who would testify that Davis sold him over one ounce but less than one kilogram of
marijuana. The State was also prepared to call other witnesses involved in the drug buy. Davis
admitted these facts as well. We find no merit to this issue.
IV. DID THE TRIAL COURT ERR IN FAILING TO EXPAND THE RECORD AND
GRANT AN EVIDENTIARY HEARING?
¶11.
In his final issue on appeal, Davis argues that his post-conviction motion raised facts which
required the trial court to grant an expansion of the record and conduct an evidentiary hearing.
Davis contends that because he raised questions regarding his attorney’s effectiveness and the
validity of his guilty plea, he was entitled to an evidentiary hearing.
¶12.
“[A] post-conviction collateral relief petition which meets basic pleading requirements is
sufficient to mandate an evidentiary hearing unless it appears beyond a doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.” Turner v. State, 590
So. 2d 871, 874 (Miss. 1991) (emphasis added). Davis has not presented any facts which would
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entitle him to relief; therefore, the trial court did not err by not conducting an evidentiary hearing.
This issue is without merit.
¶13. THE JUDGMENT OF THE COPIAH COUNTY CIRCUIT COURT DENYING POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO COPIAH COUNTY.
KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ. CONCUR.
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