Rotheleo Dixon v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CP-00948-COA
ROTHELEO DIXON
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
05/20/2009
HON. JANNIE M. LEWIS
YAZOO COUNTY CIRCUIT COURT
ROTHELEO DIXON (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
AFFIRMED - 02/01/2011
BEFORE LEE, P.J., ISHEE AND MAXWELL, JJ.
ISHEE, J., FOR THE COURT:
¶1.
On April 5, 2005, Rotheleo Dixon pleaded guilty to the crime of murder. He was
sentenced to life in the custody of the Mississippi Department of Corrections. Dixon
subsequently filed a pro se petition for sentence reduction with the Yazoo County Circuit
Court; it was considered by the circuit court as a motion for post-conviction relief (PCR).
Dixon’s PCR motion alleged that his guilty pleas had been involuntarily entered and that he
had received ineffective assistance of counsel. After reviewing the motion and applicable
records, the circuit court found that the PCR motion failed to comply with the statute of
limitations set forth in Mississippi Code Annotated section 99-39-5(2) (Supp. 2010) and
dismissed the motion. Aggrieved, Dixon now appeals.
STANDARD OF REVIEW
¶2.
Circuit courts may summarily dismiss a PCR motion “if it plainly appears from the
face of the motion, any annexed exhibits and the prior proceedings in the case that the
movant is not entitled to any relief.” Robinson v. State, 19 So. 3d 140, 141-42 (¶6) (Miss.
Ct. App. 2009) (quoting Miss. Code Ann. § 99-39-11(2) (Rev. 2007)). This Court will not
disturb a lower court's dismissal of a PCR motion unless the court’s findings are clearly
erroneous. Mann v. State, 2 So. 3d 743, 745 (¶5) (Miss. Ct. App. 2009). However, when
questions of law are raised, we employ a de novo standard of review. Id.
DISCUSSION
¶3.
Section 99-39-5(2) provides, in part, that a prisoner who has entered a guilty plea, has
three years following entry of judgment on the guilty plea to file a PCR motion. Excepted
from the three-year statute of limitations are situations in which the prisoner can show an
intervening decision of the Supreme Court of Mississippi or of the United States that
adversely affects his conviction or sentence, or when the prisoner has new evidence that was
not reasonably discoverable at trial that would have caused a different outcome at the trial.
Miss. Code Ann. § 99-39-5(2). Also, errors affecting fundamental constitutional rights are
excepted from the procedural bars of the Uniform Post-Conviction Collateral Relief Act.
Rowland v. State, 42 So. 3d 503, 507 (¶12) (Miss. 2010).
¶4.
A PCR motion must be filed within three years following the entry of judgment of
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conviction. Johnson v. State, 923 So. 2d 237, 238 (¶8) (Miss. Ct. App. 2006). Failure to file
within the period of the three-year statute of limitations procedurally bars the appeal of the
dismissal of the motion. Id.
¶5.
Dixon’s petition was filed on April 21, 2009, approximately four years after his
conviction. Not only is Dixon’s appeal barred by the applicable statute of limitations, but
he also has failed to reach his burden of showing that his motion was an exception provided
by statute or involved a fundamental constitutional right. Although Dixon mentions in his
brief that he was denied effective assistance, he has failed to plead this properly in his brief
and, therefore, has failed to state any claim for which relief can be granted. Accordingly, this
issue has no merit.
¶6.
THE JUDGMENT OF THE YAZOO COUNTY CIRCUIT COURT
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.
LEE AND MYERS, P.JJ., GRIFFIS AND MAXWELL, JJ., CONCUR. KING,
C.J., IRVING, BARNES AND ROBERTS, JJ., CONCUR IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS IN
RESULT ONLY WITH SEPARATE WRITTEN OPINION.
CARLTON, J., CONCURRING IN RESULT ONLY:
¶7.
I concur with the majority’s decision to affirm the trial court’s dismissal of Dixon’s
motion for post-conviction relief. I write separately, however, to comment as to the
majority’s citation to Rowland v. State, 42 So. 3d 503 (Miss. 2010) and a defendant’s ability
to waive constitutional rights through a proper voluntary, intelligent, and knowing waiver.
I also write to distinguish Rowland from the case at bar.
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¶8.
In the case at hand, Dixon filed a motion for a sentence reduction with the trial court,
and the court treated this motion as a motion for post-conviction relief. In this motion, Dixon
explained that the State had initially charged him with aggravated assault for setting his
girlfriend on fire with a gasoline-type substance during an argument over cocaine. He also
explained that the State later indicted him for murder because the victim died a month later
from the burns sustained from the gasoline poured on her by Dixon. In his motion, Dixon
requested that the trial court vacate his sentence or reduce his sentence to a lesser charge.
He asserts that he received ineffective assistance of counsel because his counsel failed to “put
forth effort” to get him a reduced charge and failed to inform him of the lesser offense of
murder – manslaughter. He complains of his sentence arguing that his actions were not
premeditated, and he argues that this offense constituted his first offense.
¶9.
Notably, Dixon failed to provide any specific statement of facts in his motion for a
sentence reduction that were not within his own personal knowledge, and he failed to attach
any affidavits or material evidence in support of his claim of ineffective assistance of
counsel. Therefore, his claim differs from Rowland in that Dixon failed to meet the threshold
showing of an alleged error of a fundamental constitutional right.
¶10.
In the present case, the trial court found that Dixon entered a free and voluntary plea
to the crime of murder and that Dixon’s motion failed to comply with the statute of
limitations as set forth in Mississippi Code Annotated section 99-39-5(2) (Supp. 2010). I
concur with the ruling of the trial court and further note that Dixon also failed to comply with
Mississippi Code Annotated section 99-39-5(1)(e) (Supp. 2010), which requires “[t]hat there
exists evidence of material facts, not previously presented and heard, that requires vacation
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of the conviction or sentence in the interest of justice” when he failed to provide any
supporting evidence, other than his own assertions, in support of his claim of ineffective
assistance of counsel. Hence, Dixon failed to raise a proper claim of any error to ineffective
assistance of counsel, and the trial court correctly found Dixon’s motion barred by the statute
of limitations. In contrast with Rowland, Robert Rowland’s convictions on their face
established a sufficient basis to support a claim of a violation of double jeopardy, and the
Mississippi Supreme Court remanded Rowland’s motion for post-conviction relief to the trial
court for an evidentiary hearing to determine if any error had occurred.
¶11.
In Rowland,1 the supreme court held that “errors affecting fundamental constitutional
rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral
Relief Act].” Id. at 507 (¶12). While this is true, it should also be noted that a defendant
may indeed choose to waive constitutional rights through a proper waiver that is voluntarily,
intelligently, and knowingly made.2 Uniform Rule of County and Circuit Court 8.04
specifically identifies particular constitutional rights that the defendant must acknowledge
and waive before a trial court may accept a plea of guilt. Rule 8.04(A) provides in pertinent
part:
1
In Rowland, no evidence existed that Rowland provided a waiver, much less a
knowing and voluntary waiver, of his constitutional right against double jeopardy and
thereafter received an illegal sentence. See Rowland, 42 So. 3d at 504-06 (¶¶2-7).
2
For example, defendants may knowingly and voluntarily waive their right to selfincrimination and the right to remain silent. See Jones v. State, 948 So. 2d 499, 504 (¶14)
(Miss. Ct. App. 2007); Barlow v. State, 8 So. 3d 196, 205 (¶23) (Miss. Ct. App. 2008).
Defendants may similarly waive their right to a jury trial. See Wade v. State, 33 So. 3d 498,
502 (¶13) (Miss. Ct. App. 2009). A defendant may choose to waive their rights for various
motives or reasons, including the hope of a reduced sentence. See Myles v. State, 988 So.
2d 436, 439 (¶9) (Miss. Ct. App. 2008).
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1. A defendant may plead not guilty, or guilty, or with the permission of the
court, nolo contendere.
....
4. When the defendant is arraigned and wishes to plead guilty to the
offense charged, it is the duty of the trial court to address the defendant
personally and to inquire and determine:
a. That the accused is competent to understand the nature of the
charge;
b. That the accused understands the nature and consequences of
the plea, and the maximum and minimum penalties provided by
law;
c. That the accused understands that by pleading guilty (s)he
waives his/her constitutional rights of trial by jury, the right to
confront and cross-examine adverse witnesses, and the right
against self-incrimination; if the accused is not represented by
an attorney, that (s)he is aware of his/her right to an attorney at
every stage of the proceeding and that one will be appointed to
represent him/her if (s)he is indigent.
URCCC 8.04. See Bolton v. State, 831 So. 2d 1184, 1189 (¶¶19-22) (Miss. Ct. App. 2002).
¶12.
Consistent with Rule 8.04, in Myles, this Court recognized that a pre-requisite for
acceptance of a guilty plea in Mississippi is that a defendant must be told that a guilty plea
involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and
the right to protection against self-incrimination. Myles, 988 So. 2d at 438 (¶4). In addition,
this Court acknowledged that a trial court may “disregard the movant’s own assertions when
they are substantially contradicted by the court record of the proceedings that culminated in
the guilty plea.” Id. at 440 (¶10). This Court further explained that “a post-conviction-relief
petition must include ‘[a] specific statement of the facts which are not within the prisoner's
personal knowledge, how or by whom said facts will be proven, and affidavits of the
witnesses who will testify and copies of documents or records that will be offered.’” Id. at
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(¶12) (citing Miss. Code Ann. § 99-39-9(1)(e) (Rev. 2007)). In finding that John Myles
failed to attach any affidavits to his motion for post-conviction relief to support his claims,
this Court affirmed the trial court’s denial of his motion for post-conviction relief. Id.
¶13.
Dixon, the defendant in the present case, like Myles, attached no affidavits or any
other supporting evidence to his motion for post-conviction relief supporting his own
assertions claiming that his guilty pleas were involuntarily entered and that he had received
ineffective assistance of counsel. Hence, consistent with Myles and Mississippi Code
Annotated section 99-39-5(1)(e), I affirm the trial court’s dismissal of Dixon’s motion for
post-conviction relief as to his unsupported claims of ineffective assistance of counsel, and
I concur with the court’s finding that Dixon failed to comply with the applicable statute of
limitations.
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