Patrick Dantre Fluker v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-01182-COA
PATRICK DANTRE FLUKER
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
07/31/2008
HON. ROBERT B. HELFRICH
FORREST COUNTY CIRCUIT COURT
PATRICK DANTRE FLUKER (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
AFFIRMED - 08/25/2009
BEFORE LEE, P.J., ISHEE AND ROBERTS, JJ.
ISHEE, J., FOR THE COURT:
¶1.
On February 13, 2007, Patrick Fluker entered a guilty plea in the Circuit Court of
Forrest County to a charge of armed robbery. The circuit court sentenced Fluker to serve a
term of twenty years in the custody of the Mississippi Department of Corrections, with five
years to serve and five years of post-release supervision. On June 26, 2007, Fluker filed a
motion for reconsideration of his sentence. On July 29, 2008, he filed a motion for postconviction relief in which he argued that: (1) he was not advised of the mandatory minimum
sentence regarding his plea, and (2) he received ineffective assistance of counsel.
¶2.
In an opinion and order filed on July 31, 2008, the circuit court addressed Fluker’s
motions, treating the first motion as a motion for post-conviction relief and the second as a
supplement to that motion. The circuit court dismissed Fluker’s claims, finding that: (1)
Fluker was advised of the minimum sentence for armed robbery when he signed the guilty
plea petition that stated the minimum sentence and when he stated in court that he understood
the consequences of his pleading guilty, and (2) Fluker did not receive ineffective assistance
of counsel because he was informed of the minimum sentence and could have stopped the
plea hearing if he did not understand the charge and the consequences of pleading guilty.
¶3.
On August 18, 2008, Fluker timely filed a notice of appeal following the dismissal of
his motions. However, in his appeal, Fluker makes no argument in favor of the issues he
presented in his motions to the circuit court. Instead, he asks how the State of Mississippi
regards the United States Supreme Court case, Halbert v. Michigan, 545 U.S. 605 (2005).
In his reply brief, Fluker attempts to clarify his argument and states that he requests the
appointment of counsel and an evidentiary hearing. Fluker has attached to his appellate brief
the circuit court order denying his motion for appointment of counsel, which was filed on
December 10, 2008, almost four months after the court dismissed his motion for postconviction relief.
DISCUSSION
¶4.
On appeal, Fluker has not argued either of the issues that he presented to the circuit
court in his motion for post-conviction relief. Issues that are “unsupported and not argued
are abandoned and need not be considered [on appeal].” Bannister v. State, 731 So. 2d 583,
2
588 (¶20) (Miss. 1999) (quoting Thibodeaux v. State, 652 So. 2d 153, 155 (Miss. 1995)).
Accordingly, Fluker has abandoned the two issues he presented in his motions to the circuit
court, and we will not consider them on appeal.
¶5.
As for the argument he makes on appeal, a defendant who fails to raise an issue in his
motion for post-conviction relief before the trial court may not raise that issue for the first
time on appeal. Gardner v. State, 531 So. 2d 805, 808-09 (Miss. 1988) (citing Colburn v.
State, 431 So. 2d 1111, 1114 (Miss. 1983)).
¶6.
Fluker’s argument is that under Halbert, 545 U.S. at 610, he must be appointed
counsel because the appeal of the dismissal of his motion for post-conviction relief is
essentially his first-tier appellate review as contemplated in Halbert. However, the present
case is distinguishable from the situation presented in Halbert. In Halbert, the United States
Supreme Court noted that a Michigan defendant who pleaded guilty did not forfeit all
opportunity for appellate review; he could still file an application for leave to appeal. Id. at
617. At the time that Fluker pleaded guilty to armed robbery, Mississippi Code Annotated
section 99-35-101 (Rev. 2000) provided, in part, 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.” 1
The Supreme Court, in Halbert, recognized that it was not necessary for states to provide
such a right when it reiterated the fact that “[t]he Federal Constitution imposes on the States
no obligation to provide appellate review of criminal convictions.” Halbert, 545 U.S. at 610
1
In 2008, the language of this section was changed to provide, in part: “However,
where the defendant enters a plea of guilty and is sentenced, then no appeal from the circuit
court to the Supreme Court shall be allowed.” Miss. Code Ann. § 99-35-101 (Supp. 2008).
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(citing McKane v. Durston, 153 U.S. 684, 687 (1894)).
¶7.
Unlike the situation in Halbert, Fluker has presently mounted a collateral attack on
his conviction via the Mississippi Uniform Post-Conviction Collateral Relief Act. Miss.
Code Ann. §§ 99-39-1 to -29. As this Court has previously stated, “[p]ost-conviction relief
is not the same or a substitute for direct appeal.” Andrews v. State, 932 So. 2d 61, 62 (¶3)
(Miss. Ct. App. 2006); see also Cole v. State, 666 So. 2d 767, 772-73 (Miss. 1995). In
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), the United States Supreme Court once
again refused to find that there existed a right to counsel for a prisoner who wished to mount
a collateral attack upon his conviction. See also Johnson v. Avery, 393 U.S. 483, 488 (1969).
This ruling was undisturbed by the holding in Halbert.
¶8.
Accordingly, we affirm the circuit court’s dismissal of Fluker’s motion for post-
conviction relief. He has abandoned the issues that he raised in his motions before the circuit
court by not arguing them on appeal. Furthermore, the issue that he now presents to this
Court is barred from our review because it was not included in his motions before the circuit
court, and it was not brought up until after he filed the present appeal. Even assuming that
Fluker could not argue this issue until he was denied appellate counsel for his appeal, we find
no merit to his argument. Halbert requires the appointment of appellate counsel for a firsttier appellate review of a guilty plea where an appeal is authorized by state law. It does not
require the appointment of counsel for a prisoner who seeks post-conviction collateral relief,
as is the issue in the present case. Fluker’s issue is procedurally barred and, alternatively,
without merit.
¶9.
THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY
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DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN PART
AND IN THE RESULT.
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