Rico Kiwanis Dunlap v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CP-01735-COA
RICO KIWANIS DUNLAP
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
09/23/2009
HON. ROBERT P. CHAMBERLIN
DESOTO COUNTY CIRCUIT COURT
RICO KIWANIS DUNLAP (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
AFFIRMED: 04/19/2011
BEFORE GRIFFIS, P.J., MYERS AND CARLTON, JJ.
GRIFFIS, P.J., FOR THE COURT:
¶1.
Rico Kiwanis Dunlap appeals the judgment of the DeSoto County Circuit Court that
dismissed his motion for post-conviction collateral relief. He claims that: (1) the circuit
court resentenced him in violation of his due-process rights and the Fifth Amendment’s
protection against double jeopardy; (2) his counsel was ineffective in failing to object to this
re-sentencing; and (3) the circuit court improperly dismissed his motion without an
evidentiary hearing. We find no error in the court’s modification of Dunlap’s sentence.
Therefore, we affirm.
FACTS
¶2.
Dunlap was charged with Count I – possession of cocaine with the intent to sell under
Mississippi Code Annotated section 41-29-139(a)(1) (Rev. 2009), Count II – felon in
possession of a firearm under Mississippi Code Annotated section 97-37-5 (Supp. 2010), and
Count III – possession of marijuana under Mississippi Code Annotated section 41-29-139.
He was charged as a recidivist and as a habitual offender in Counts I and II.
¶3.
On November 27, 2007, Dunlap entered a plea of guilty to all three charges. Under
Count I, he was sentenced to twenty-five years, with fifteen to serve followed by ten years
of post-release supervision. On Count II, Dunlap was sentenced to three years to be served
concurrently with the sentence in Count I. Count III was remanded to the file.
¶4.
On November 30, 2007, Dunlap appeared before the circuit court again on the State’s
motion to set aside the sentence while in term. The State presented evidence that, after
Dunlap had entered his guilty plea and was sentenced on November 27th, he was searched
by the DeSoto County Sheriff’s Department prior to his incarceration. The officer who
conducted the search found a bag on Dunlap’s person containing cocaine, marijuana, and
hydrocodone.
¶5.
Dunlap admitted that he was carrying the drugs. The State requested that Dunlap be
resentenced due to the high probability that Dunlap possessed the drugs when he appeared
in court to enter his guilty plea. The circuit judge modified Dunlap’s time to serve on Count
I to a twenty-five-year sentence with twenty years to serve and five years of post-release
supervision.
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¶6.
Dunlap filed his motion for post-conviction relief. He claimed that his re-sentencing
was a violation of his due-process rights and the Fifth Amendment’s prohibition against
double jeopardy. The circuit court dismissed the motion finding that it had the authority to
amend the sentence within the same term of court. Dunlap now appeals the circuit court’s
judgment.
STANDARD OF REVIEW
¶7.
A circuit court's dismissal of a motion for post-conviction collateral relief will not be
reversed on appeal absent a finding that the trial court's decision was clearly erroneous.
Williams v. State, 872 So. 2d 711, 712 (¶2) (Miss. Ct. App. 2004). However, when
reviewing issues of law, this Court's proper standard of review is de novo. Brown v. State,
731 So. 2d 595, 598 (¶6) (Miss. 1999).
ANALYSIS
1.
¶8.
Re-sentencing
Dunlap asserts several violations as a result of the circuit court’s decision to
resentence him to serve twenty years instead of fifteen years on Count I. He claims: (1) the
re-sentencing constituted double jeopardy; (2) his due-process rights were violated because
the circuit court did not advise him that his sentence could be appealed to the supreme court
and because he was not allowed to withdraw his guilty plea before a harsher sentence was
imposed; and (3) he was entitled to an evidentiary hearing before he was resentenced.
¶9.
What Dunlap fails to recognize is that the circuit judge did not sentence Dunlap a
second time for the same crime; instead, the circuit judge exercised his “‘inherent authority’
to alter a sentence until [the] regular term of court expires.” Leverette v. State, 812 So. 2d
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241, 244 (¶11) (Miss. Ct. App. 2002) (citing Miss. Comm'n on Judicial Performance v.
Russell, 691 So. 2d 929, 944 (Miss. 1997)); see also Ales v. State, 921 So. 2d 1284, 1286 (¶9)
(Miss. Ct. App. 2006) (holding that the amendment of a defendant's sentence is within the
circuit court's jurisdiction if done before the expiration of the same term of court); Pegues
v. State, 840 So. 2d 721, 726 (¶19) (Miss. Ct. App. 2002) (affirming defendant's resentencing within the same term of court after defendant's skirmish with courtroom deputies).
Thus, the re-sentencing did not constitute double jeopardy.
¶10.
Further, despite Dunlap’s contention, “a trial court is not required to inform a
defendant who pleads guilty of his right to appeal the resultant sentence.” Cook v. State, 990
So. 2d 788, 793 (¶11) (Miss. Ct. App. 2008) (citing Coleman v. State, 979 So. 2d 731, 733
(¶6) (Miss. Ct. App. 2008)).
¶11.
His claim that he was entitled to a hearing or to withdraw his plea on Count I before
he was resentenced also fails. Dunlap did not enter a separate guilty plea on Count I for
which another hearing was necessary. The circuit court had already accepted Dunlap’s guilty
plea as voluntarily and knowingly entered. Dunlap was specifically informed that the circuit
judge had the authority to sentence him to the maximum sentence of sixty years on Count I.
He acknowledged this and affirmatively entered his guilty plea.
The circuit court’s
amendment of his time to serve did nothing to change Dunlap’s testimony or the circuit
court’s finding that his guilty plea was knowingly and voluntarily entered.
¶12.
The circuit judge had complete authority to modify Dunlap’s time to serve on the
sentence in Count I. Accordingly, this issue has no merit.
2.
Ineffective Assistance of Counsel
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¶13.
Dunlap also claims that his counsel was ineffective because counsel failed to object
to the re-sentencing based on double jeopardy. To prove ineffective assistance of counsel,
Dunlap must show that: (1) his counsel's performance was deficient, and (2) this deficiency
prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The burden of
proof rests with Dunlap to show both prongs. McQuarter v. State, 574 So. 2d 685, 687
(Miss. 1990). Under Strickland, there is a strong presumption that counsel's performance
falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689. To
overcome this presumption, Dunlap must “show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. In cases involving post-conviction collateral relief, “where a party
offers only his affidavit, then his ineffective assistance of counsel claim is without merit.”
Vielee v. State, 653 So. 2d 920, 922 (Miss. 1995).
¶14.
Dunlap has failed to prove any deficiency on the part of his counsel. His only claim
is that his counsel did nothing while the circuit court changed his sentence. However, as
discussed above, this alteration of his sentence was within the inherent power of the circuit
court. Because Dunlap has failed to prove the first prong of the Strickland test, his claim for
ineffective assistance must fail. Therefore, this issue has no merit.
3.
¶15.
Evidentiary Hearing
Finally, Dunlap argues that the circuit court erred in summarily dismissing his motion
for post-conviction relief without first conducting an evidentiary hearing. However, “[t]he
trial court may summarily dismiss a motion for post-conviction relief ‘if it plainly appears
from the face of the motion, any annexed exhibits and the prior proceedings in the case that
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the movant is not entitled to any relief.’” Burrough v. State, 9 So. 3d 368, 371 (¶6) (Miss.
2009) (quoting Miss. Code Ann. § 99-39-11(2) (Rev. 2007)).
¶16.
The circuit court entered a detailed order in which each of Dunlap’s claims were fully
addressed. It was clear from the motion that Dunlap was not entitled to the relief requested;
therefore, the circuit court properly dismissed the motion. Accordingly, this issue has no
merit.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.
LEE, C.J., IRVING, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON
AND MAXWELL, JJ., CONCUR.
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