Derrick Mitchell v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2010-CP-00327-COA
DERRICK MITCHELL
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
01/25/2010
HON. ANDREW K. HOWORTH
LAFAYETTE COUNTY CIRCUIT COURT
DERRICK MITCHELL (PRO SE)
OFFICE OF ATTORNEY GENERAL
BY: BILLY L. GORE
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
AFFIRMED: 04/05/2011
BEFORE GRIFFIS, P.J., MYERS AND CARLTON, JJ.
MYERS, J., FOR THE COURT:
¶1.
Derrick Mitchell pleaded guilty in the Lafayette County Circuit Court to the crime of
selling cocaine, as a habitual offender, and he was sentenced to ten years without eligibility
for probation or parole. Mitchell thereafter filed a motion for post-conviction relief (PCR)
in the circuit court, in which he claimed that: his indictment was fatally defective for not
including the judgment dates of his prior convictions, and he had received constitutionally
ineffective assistance of counsel as a result. The circuit court summarily dismissed the PCR
motion, and this appeal followed. Finding no error, we affirm the circuit court’s dismissal.
FACTS
¶2.
In April 2006, Mitchell was indicted by a Lafayette County grand jury on one count
of selling cocaine and one count of selling marijuana. Following a motion by the State,
which was filed on January 3, 2007, Mitchell’s indictment was amended to charge Mitchell
as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2007).
¶3.
Based on a plea agreement, the State agreed to reduce the charge to habitual-offender
status under section 99-19-81 (Rev. 2007). In addition, the State agreed to retire the
marijuana charge and another unrelated pending charge to the files. The State also agreed
to recommend to the circuit court that Mitchell receive a ten-year sentence.
¶4.
On January 8, 2007, a guilty-plea hearing was held. The circuit court accepted
Mitchell’s plea after determining that Mitchell knew and understood that he was pleading
guilty as a habitual offender to the crime of selling cocaine, and Mitchell’s plea was
voluntary. The circuit court then sentenced Mitchell as a habitual offender to ten years
without eligibility for probation or parole in the custody of the Mississippi Department of
Corrections.
DISCUSSION
¶5.
The circuit court may summarily dismiss a PCR motion without an evidentiary
hearing “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.’” Staggs v. State, 960 So.
2d 563, 565 (¶2) (Miss. Ct. App. 2007) (quoting Miss. Code Ann. § 99-39-11(2) (Rev.
2000)). This Court will affirm the summary dismissal of a PCR motion “if the petitioner has
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failed to demonstrate a claim procedurally alive substantially showing the denial of a state
or federal right.” Flowers v. State, 978 So. 2d 1281, 1283 (¶5) (Miss. Ct. App. 2008)
(citation and internal quotations omitted).
I. Mitchell’s Indictment as a Habitual Offender
¶6.
Mitchell contends that when his indictment was amended to charge him as a habitual
offender, the date of judgment was omitted for each of his previous convictions. Mitchell
argues that these omissions thereby made the habitual-offender portion of his indictment
invalid. We disagree.
¶7.
In cases involving enhanced punishment for habitual offenders, Rule 11.03 of the
Uniform Rules of Circuit and County Court applies. Rule 11.03(1) states: “The indictment
must allege with particularity the nature or description of the offense constituting the
previous convictions, the state of federal jurisdiction of any previous conviction, and the date
of judgment.”
¶8.
As Mitchell correctly points out, the habitual-offender portion of his amended
indictment failed to include the judgment dates of his prior convictions. The amendment to
Mitchell’s indictment reads, in relevant part, as follows:
The defendant was previously convicted in this court of two separate and
distinct felonies which arose at different times, which are otherwise wholly
unrelated, one to the other, and which were separately prosecuted. In cause
number LK98-265B[,] the defendant was convicted of the felony crime of
possession of cocaine with intent to distribute and was sentenced to serve a
term of three years incarceration in the custody of the Mississippi Department
of Corrections. In cause number LK98-265B the defendant served more than
one year in prison. In cause number LK98-331D the defendant was convicted
of the felony crime of sexual battery and was sentenced to serve a term of three
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years incarceration in the custody of the Mississippi Department of
Corrections. In cause number LK98-331D the defendant served more than one
year in prison.
¶9.
The Mississippi Supreme Court addressed a similar issue in Benson v. State, 551 So.
2d 188, 195 (Miss. 1989), and found it meritless. There, the contention was made that
because the indictment charging the defendant as a habitual offender failed to state the date
of the previous judgments, it was fatally defective. Id. In speaking to Rule 6.04, Mississippi
Uniform Criminal Rules of Circuit Court Practice (URCCC 11.03 effective May 1, 1995),
the Benson court noted that: “The indictment must allege with particularity the nature or
description of the offenses constituting the previous felonies, the state or federal jurisdiction
of previous conviction, and the date of judgment.” Benson, 551 So. 2d at 195. The Benson
court then held as follows:
While it is correct that the date of the judgment is not specifically stated in the
indictment, all of the information that is contained, and specifically the cause
number, afforded the defendant access to the date of the judgment. This Court
holds that information pertaining to the date of the judgment was substantially
set forth in the indictment and that sufficient information was afforded the
defendant to inform him of the specific prior convictions upon which the State
relied for enhanced punishment to comply with due process.
Id. at 196.
¶10.
In accord with Benson, we find in the instant case that even though the date of
judgment for each prior conviction was not provided in the amendment to Mitchell’s
indictment, all the information contained therein afforded Mitchell access to the date of
judgment.
The amendment provides the nature and description of each prior felony
conviction; it indicates the court in which each conviction was adjudicated; it states the
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sentence given by the court for each conviction and that Mitchell served one year or more
for each sentence; and it provides the cause number for each case.
¶11.
All this fairly enabled Mitchell to defend against the State’s habitual-offender charge
if Mitchell so chose. Mitchell did not.
¶12.
As previously mentioned, Mitchell told the circuit court that he knew and understood
he was pleading guilty as a habitual offender. And Mitchell indicated to the circuit court that
he knew the State would recommend a ten-year sentence to the court. This issue is without
merit.
II. Ineffective Assistance of Counsel
¶13.
Mitchell contends that he received constitutionally ineffective assistance of counsel
because his attorney failed to object to the fact that the date of judgment for each of his prior
convictions was not provided in the amendment to the indictment.
¶14.
In order to demonstrate ineffective assistance of counsel, a petitioner must satisfy the
familiar two-prong test established in Strickland v. Washington, 466 U.S. 668, 687 (1984).
“First, the convicted defendant must show that counsel’s representation fell below an
objective standard of reasonableness. Second, the defendant must show there is reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Hannah v. State, 943 So. 2d 20, 24 (¶6) (Miss. 2006) (internal citations
omitted).
¶15.
This being a case which involves a guilty plea, in order to satisfy the second prong,
Mitchell was required to show that but for his counsel’s error(s): he would not have pleaded
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guilty; he would have instead insisted on going to trial; and the ultimate outcome would have
been different. Id. at (¶7). Mitchell failed to make such a showing.
¶16.
Mitchell simply alleges that his attorney was ineffective because his attorney made
no objection to the omissions contained in the amendment to the indictment. This is not
enough to demonstrate ineffective assistance of counsel. Accordingly, this issue is without
merit.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAFAYETTE COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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