Jefferson v. State

302 So.3d 694

Kendrick C. JEFFERSON a/k/a Kendrick Cantrell Jefferson, Appellant

v.STATE of Mississippi, Appellee

NO. 2019-CP-00619-COA

Court of Appeals of Mississippi.

Filed August 18, 2020

ATTORNEY FOR APPELLANT: KENDRICK C. JEFFERSON (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD, Jackson

EN BANC.

CARLTON, P.J., FOR THE COURT:

¶1. Kendrick C. Jefferson filed a motion for post-conviction relief (PCR) in the Lamar County Circuit Court. The trial court dismissed the motion after finding it barred as successive.

¶2. After our review, we find that Jefferson is entitled to an evidentiary hearing due to the "extraordinary circumstances" of his case. Chapman v. State , 167 So. 3d 1170, 1174 (¶12) (Miss. 2015). The record reflects that the court reporter has never submitted the transcript of the plea hearing, including the plea colloquy, or the transcript of the sentencing hearing to the trial court clerk. As a result, these transcripts are not part of the record.¹ The trial court therefore summarily denied Jefferson's PCR motion without the ability to review the merits of Jefferson's claims. Under the particular circumstances of Jefferson's case, we reverse the trial court's order dismissing Jefferson's PCR motion and remand for an evidentiary hearing.

FACTS

¶3. On May 18, 2018, Jefferson pleaded guilty to one count of domestic violence/aggravated assault and one count of unlawful possession of a firearm by a felon.² That same day, the trial court sentenced him to serve a term of twenty years in the custody of the Mississippi Department of Corrections (MDOC) for the domestic violence conviction and ten years in the custody of the MDOC for the felon-in-possession-of-a-firearm conviction.

¶4. Jefferson filed his PCR motion on November 14, 2018, alleging insufficient indictments, insufficient evidence to support his domestic-violence charge, and ineffective assistance of counsel. On February 11, 2019, the trial court summarily dismissed Jefferson's PCR motion, explaining that his motion was barred as a successive motion pursuant to Mississippi Code Annotated section 99-39-23(6) (Rev. 2015) and this Court's holding in Shanks v. State , 233 So. 3d 877, 880 (¶11) (Miss. Ct. App. 2017).

¶5. On April 5, 2019, Jefferson filed his notice of appeal. The supreme court clerk issued a show-cause notice on April 10, 2019, requiring Jefferson to show cause as to why the appeal should not be dismissed as untimely filed. See M.R.A.P 4(a) ("[T]he notice of appeal ... shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from."); M.R.A.P. 2(a)(1) ("An appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rules 4 or 5."). Jefferson entered his response to the show-cause notice on April 16, 2019. On May 28, 2019, this Court entered an order stating that after "[t]aking into consideration Jefferson's response to the show-cause notice and delays in mailing due to Jefferson's status as a prisoner, we find that the appeal should be allowed to proceed." See M.R.A.P. 2(c).

¶6. We therefore turn to address Jefferson's appeal from the trial court's dismissal of his PCR motion.

STANDARD OF REVIEW

¶7. "When reviewing a trial court's denial or dismissal of a PCR motion, we will only disturb the trial court's decision if it is clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review." Williams v. State , 228 So. 3d 844, 846 (¶5) (Miss. Ct. App. 2017).

DISCUSSION

¶8. The State argues that Jefferson's PCR motion was successive-writ barred and that on appeal Jefferson failed to demonstrate why the successive-writ bar should not apply. Our review of Jefferson's appellate brief shows that Jefferson merely restates the issues that he presented in his PCR motion below, and he makes no argument as to why the successive-writ bar should not apply.

¶9. Mississippi Code Annotated section 99-39-23(6) "bars PCR motions from this Court's review if the movant has filed a previous PCR motion." Porter v. State , 281 So. 3d 935, 938 (¶12) (Miss. Ct. App. 2019). "[Jefferson], as the [PCR] movant, bears the burden of proving by a preponderance of the evidence that his claim is not ... barred as a successive [motion]." O'Neal v. State , 281 So. 3d 274, 278 (¶13) (Miss. Ct. App. 2019).

¶10. In its order dismissing Jefferson's PCR motion as a successive motion, the trial court found that as follows:

Jefferson has previously submitted a PCR motion and this [c]ourt has ruled on said motion. (Lamar County Circuit Court Cause No. 37C11:18-CV-0043AM). The instant motion is therefore dismissed as a successive writ. Miss. Code Ann. § 99-39-23(6) ( [R]ev. 2009); Shanks v. State , 233 So. 3d 877, 880 (¶11) (Miss. Ct. App. 2017).

¶11. Jefferson's prior PCR motion is not in the record before us. However, as shown, the trial court's order sets forth the previous cause number where Jefferson sought post-conviction relief and was denied relief. We recognize that "[a]though there is no proof in the record to either support or deny the existence of [Jefferson's] prior motion for post-conviction relief, the reference in the trial court's order is sufficient to take judicial notice of its existence and to rule that the successive motion was improper." Grogan v. State , 89 So. 3d 617, 622 (¶13) (Miss. Ct. App. 2011) (quoting McGriggs v. State , 877 So. 2d 447, 449 (¶6) (Miss. Ct. App. 2003) ). Because the record shows that this is Jefferson's second attempt for post-conviction relief, his motion is barred as successive "unless he can show an exception to overcome the procedural bar." Porter , 281 So. 3d at 938 (¶12) ; see also O'Neal , 281 So. 3d at 277 (¶11) ("[T]he trial court's two previous orders denying or dismissing O'Neal's PCR motions ... are the final judgments that bar[ ] the filing of a successive motion, such as [O'Neal's] present PCR motion, unless he demonstrates an exception to the statutory bar.").

¶12. In his present PCR motion, Jefferson asserts a claim of ineffective assistance of counsel and argues that his defense counsel refused to accept Jefferson's suggestions regarding various motions to file and arguments to make.³ Jefferson argued that his counsel also failed to subpoena or interview any witnesses or inspect the evidence against him. Jefferson further argued that his defense counsel "repeatedly advised [Jefferson] to [take the] plea deal, when [Jefferson] asked for a trial." According to Jefferson, his defense counsel promised Jefferson that he would receive "a way lighter sentence than life in prison"—specifically, ten years in the custody of the MDOC with eight years suspended.

¶13. We recognize that "[t]he following fundamental-rights exceptions have been expressly found to survive procedural bars: (1) the right against double jeopardy; (2) the right to be free from an illegal sentence; (3) the right to due process at sentencing; and (4) the right not to be subject to ex post facto laws." Hayes v. State , 282 So. 3d 1185, 1188 (¶9) (Miss. Ct. App. 2019). Although the procedural bars in the Uniform Post-Conviction Collateral Relief Act (UPCCRA), Miss. Code Ann. §§ 99-31-1 to -29 (Rev. 2015), apply to PCR claims based on ineffective assistance of counsel, this Court has recognized that "[u]nder ‘extraordinary circumstances,’ ineffective assistance of counsel can constitute an exception" to the procedural bars of the UPCCRA. Morales v. State , 291 So. 3d 363, 369 (¶24) (Miss. Ct. App. 2019) (internal quotation marks omitted), cert. denied , 289 So. 3d 310 (Miss. 2020). "[M]erely asserting a violation of a constitutional right or a claim of ineffective assistance fails to qualify for an exception to a procedural bar. Instead, the movant must show that there is some basis of truth for his claim." Hayes v. State , 282 So. 3d 1185, 1188 (¶9) (Miss. Ct. App. 2019) (citation omitted). Where a movant offers only his own affidavit in support of his PCR claim and the affidavit is then contradicted by unimpeachable documents in the record, an evidentiary hearing is not required. Gable v. State , 748 So. 2d 703, 706 (¶12) (Miss. 1999). "However, when the movant attaches an affidavit of another who supports the allegation, the trial court may be required to conduct an evidentiary hearing." Sylvester v. State , 113 So. 3d 618, 621 (¶10) (Miss. Ct. App. 2013).

¶14. Here, Jefferson failed to provide his own affidavit or the affidavit of another in support of his PCR claim for ineffective assistance of counsel. However, Jefferson attached an email sent to his defense counsel from the Assistant District Attorney on August 28, 2017. The email informed defense counsel of the State's sentencing recommendation for Jefferson in the event Jefferson entered a guilty plea:

Count 1: Aggravated Assault—20 years with 10 years suspended and 10 years to serve

Count 2: Nole Prosse [sic]

Count 3: Possession of a weapon by a felon, [h]abitual 99-19-81—10 years to serve

Sentences to run [c]onsecutive. No contact with victim or victim's family.

¶15. The document containing the email correspondence reflects that it was printed from defense counsel's email account. The following language was handwritten on the bottom of the printed page containing the email: "10 yrs MDOC/2 yrs to serve/8 suspended on 5 post. CONCURRENT WITH WALTHALL 2011-9T." There are no initials or signature under the handwriting to denote who wrote it. The supreme court has held that "unsworn statements" which have not been "notarized as made before any official" failed to provide sufficient evidence to support a movant's allegations in his PCR motion. Wilcher v. State , 863 So. 2d 719, 744 (¶¶78, 80) (Miss. 2003) (citing Black's Law Dictionary 58 (6th ed. 1990)); see also Russell v. State , 849 So. 2d 95, 119 (¶88) (Miss. 2003) (explaining that an unsworn statement attached to a PCR motion "is not an affidavit and, pursuant to statutory requirements, we...