Tony Ducksworth v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2010-CP-00479-COA
TONY DUCKSWORTH
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
03/04/2010
HON. BILLY JOE LANDRUM
JONES COUNTY CIRCUIT COURT
TONY DUCKSWORTH (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
CIVIL - POST-CONVICTION RELIEF
PETITION FOR POST-CONVICTION
RELIEF DENIED
AFFIRMED – 03/29/2011
BEFORE IRVING, P.J., MYERS AND MAXWELL, JJ.
IRVING, P.J., FOR THE COURT:
¶1.
Tony Ducksworth pleaded guilty in the Jones County Circuit Court to the crime of
forcible rape and was sentenced to thirty years in the custody of the Mississippi Department
of Corrections, with twenty years to serve and ten years of post-release supervision.1 Shortly
1
This is the sentence that was recommended by the State at the outset of
Ducksworth’s guilty-plea colloquy and appears to be the sentence that was given by the
circuit court. However, neither the sentencing order nor the guilty-plea petition is in the
record before us, and the circuit court did not state Ducksworth’s sentence in its order
denying his motion for post-conviction relief.
after pleading guilty, Ducksworth filed a motion for post-conviction relief (PCR), in which
he alleged that he was actually innocent, that his attorney had rendered ineffective assistance
of counsel, that his indictment was defective, and that his guilty plea was otherwise invalid.
The circuit court denied the motion without an evidentiary hearing. Feeling aggrieved,
Ducksworth appeals and argues that the circuit court improperly denied his PCR motion.
¶2.
Finding no reversible error, we affirm the judgment of the circuit court.
FACTS
¶3.
In April 2005, Ducksworth sexually assaulted a thirteen-year-old girl, S.D.2
Ducksworth initially denied having any sexual contact with S.D., but his DNA was recovered
from semen deposited inside S.D. during the assault. In his PCR motion, Ducksworth
claimed that he had consensual sex with S.D. in exchange for fifty dollars. Ducksworth
further claimed that the investigating officer in his case presented false evidence to the grand
jury in order to obtain an indictment against him.
As support for his contentions,
Ducksworth claimed in his PCR motion that S.D. told his aunt that, in exchange for fifty
dollars, he and S.D. had consensual sex. Ducksworth also claimed that his indictment was
defective because it cited the incorrect statute.
¶4.
As to his attorney, Ducksworth claimed in his PCR motion that his attorney “was
ineffective for failing to inform him about the knowledge of the charges and a notice and
understanding of the severity of the charges and the severity of the potential punishment.”
Ducksworth then claimed that he had only pleaded guilty because his attorney “tricked” him
and threatened that Ducksworth would receive a life sentence if he went to trial. Ducksworth
2
We have used initials to protect the identity of the thirteen-year-old victim.
2
also claimed in his PCR motion that his attorney failed to research Ducksworth’s allegation
that he had consensual sex with the victim.3 As evidentiary support, Ducksworth provided
only his own self-serving affidavit.
The circuit court reviewed the transcript of
Ducksworth’s guilty plea and found his contentions without merit. It is from that decision
that Ducksworth appeals.
¶5.
Additional facts, as necessary, will be related during our analysis and discussion of
the issue.
ANALYSIS AND DISCUSSION OF THE ISSUE
¶6.
Ducksworth raises the same contentions in his appeal that he raised before the circuit
court in his PCR motion. We note at the outset that, if valid, Ducksworth’s guilty plea
“admits all elements of a formal charge and operates as a waiver of all non-jurisdictional
defects contained in [his] indictment . . . .” Reeder v. State, 783 So. 2d 711, 720 (¶36) (Miss.
2001) (citing Brooks v. State, 573 So. 2d 1350, 1352 (Miss. 1990)). As we will explain in
more detail below, Ducksworth’s guilty plea was valid; therefore, any defect in his
indictment was waived when he pleaded guilty.
¶7.
As to Ducksworth’s actual-innocence claim, there is insufficient evidence in the
record to support his contention. When Ducksworth pleaded guilty, he admitted that there
was a factual and legal basis that he had committed the crime of forcible rape. When asked
whether the facts recited by the prosecutor were correct, Ducksworth agreed and said nothing
3
Although Duckworth was convicted of forcible rape, not statutory rape, we note that
because his victim was only thirteen years old and he was twenty-nine, he could have been
sentenced to life imprisonment had he been charged and convicted of statutory rape. In any
event, consent is not a defense to rape in any form when the victim is under sixteen years old.
Miss. Code Ann. § 97-3-65 (Supp. 2010).
3
about the victim consenting to have sex with him. The only evidence of consensual sex came
from Ducksworth’s own self-serving affidavit, which is wholly insufficient to support his
claim.4 See Gable v. State, 748 So. 2d 703, 705-06 (¶8) (Miss. 1999). The same evidentiary
problem exists with regard to Ducksworth’s claim that the investigating officer presented
false evidence to the grand jury and withheld exculpatory evidence from the grand jury and
the magistrate who issued Ducksworth’s arrest warrant.
¶8.
As to Ducksworth’s claim that his counsel was ineffective, we note that the following
transpired during Ducksworth’s guilty-plea colloquy:
[COURT]:
Are you satisfied with the lawyer’s representation and advice in
this matter?
[DUCKSWORTH]: Yes, sir.
****
[COURT]:
Do you want to say anything or have any questions about any of
the things that we’ve gone over thus far.
[DUCKSWORTH]: No, sir.
If Ducksworth had any qualms about his attorney’s representation, he could have raised them
at that time; instead, he indicated that he was satisfied with his attorney’s representation.
¶9.
In order to succeed on a claim of ineffective assistance of counsel, Ducksworth must
show that his attorney’s performance was deficient and that that deficiency prejudiced
Ducksworth’s case. Doss v. State, 19 So. 3d 690, 694-95 (¶7) (Miss. 2009). Ducksworth
complains that his attorney told him that he would get a life sentence if he went to trial.
4
As already noted, even if Ducksworth had produced additional evidence on the
question of consent, it would not have been a defense to raping a thirteen year old child.
4
Ducksworth was convicted of forcible rape, which carries a maximum sentence of life in
prison. Ducksworth’s attorney was not ineffective for informing him that he might receive
a life sentence if he went to trial. Ducksworth also complains that his attorney did not
contact his aunt regarding her conversation with S.D., wherein S.D. allegedly admitted that
she consented to have sex with Ducksworth after he paid her fifty dollars. Since consent is
no defense to raping a thirteen year old child, this Court fails to see how that information
could have aided Ducksworth’s defense in any way. Finally, Ducksworth complains that his
attorney did not seek DNA testing of a window, window screen, and gun at the scene of the
crime. Since Ducksworth ultimately admitted that he had sexual contact with the victim,
DNA testing of those items became a relative non-issue. Given the deference awarded to the
decisions of trial counsel, we cannot say that any of the above is sufficient to prove
ineffective assistance of counsel, especially in light of Ducksworth’s sworn statement that
he was pleased with the conduct of his trial attorney. See Doss, 19 So. 3d at 695 (¶8).
¶10.
Finally, we find no merit to Ducksworth’s claim that his guilty plea was not
knowingly and intelligently entered. As the Mississippi Supreme Court has stated:
A guilty plea will be found valid if it is shown to have been voluntarily and
intelligently made by the criminal defendant before the trial court. King v.
State, 738 So. 2d 240, 241 [(¶¶2-3)] (Miss. 1999). To determine whether the
plea is voluntarily and intelligently given, the trial court must advise the
defendant of his rights, the nature of the charge against him, as well as the
consequences of the plea. Harris v. State, 806 So. 2d 1127, 1130 [(¶9)] (Miss.
2002).
Burrough v. State, 9 So. 3d 368, 373 (¶11) (Miss. 2009). The transcript of Ducksworth’s
plea colloquy shows that Ducksworth was informed of the minimum and maximum sentence
that he might receive as well as all the rights and procedures that he would be entitled to if
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chose to proceed to trial. Ducksworth indicated that he and his counsel had discussed his
case and that he was pleased with the advice he received. During the colloquy, Ducksworth
was informed of the charge against him and of the factual basis for the charge. Ducksworth
indicated that he was sufficiently educated, that he was not under the influence of any drugs
or alcohol, and that he still wished to plead guilty. Under these circumstances, we find that
Ducksworth’s guilty plea was voluntarily and intelligently made.
¶11.
There is no merit to Ducksworth’s contentions of error.
¶12. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY
DENYING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.
LEE, C.J., GRIFFIS, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON
AND MAXWELL, JJ., CONCUR.
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