IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI V. CAUSE NO CA COA STATE OF MISSISSIPPI

Transcription

1 E-Filed Document Aug :08: CA COA Pages: 17 IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI DENNIS TERRY HUTCHINS APPELLANT V. CAUSE NO CA COA STATE OF MISSISSIPPI APPELLEE ON APPEAL FROM THE CIRCUIT COURT OF FORREST COUNTY, MISSISSIPPI Civil Action No. CI BRIEF OF APPELLANT DENNIS TERRY HUTCHINS Lisa M. Ross (MSB#9755) Post Office Box Jackson, Mississippi Telephone: (601) Facsimile: (601) COUNSEL FOR APPELLANT DENNIS HUTCHINS

2 CERTIFICATE OF INTERESTED PERSONS Pursuant to Miss.R.App. 28(a)(1), the undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal: 1. Lisa M. Ross, Esq. Post Office Box Jackson, MS Counsel for Appellant 2. Honorable Robert Helfrich Post Office Box 309 Hattiesburg, MS Presiding Judge 3. Honorable Patricia Burchell Post Office Box 166 Hattiesburg, MS Forrest County District Attorney 4. Lindsey Carter, Esq. 404 Hemphill Street Hattiesburg, MS Trial Counsel for Dennis Hutchins Respectfully Submitted, APPELLANT By: //s// Lisa M. Ross Lisa M. Ross (MSB# 9755) 2

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... 2 TABLE OF CONTENTS... 3 TABLE OF CASES AND AUTHORITIES... 5 STATEMENT OF THE CASE STANDARD OF REVIEW ARGUMENTS PAGE 1. WHETHER TRIAL COUNSEL S RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO THE STATE S MOTION TO AMEND THE INDICTMENT TO SENTENCE DENNIS HUTCHINS AS A VIOLENT HABITUAL OFFENDER UNDER MISS. CODE ANN ON THE GROUND THAT HUTCHINS HAD NOT SERVED ONE YEAR IN JAIL ON ONE OF HIS UNDERLYING FELONY CONVICTIONS WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HE ADVISED DENNIS HUTCHINS TO PLEAD GUILTY TO TWO FELONIES AS A NON-VIOLENT HABITUAL OFFENDER TO AVOID BEING SENTENCED AS A VIOLENT HABITUAL OFFENDER UNDER MISS. CODE ANN WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DENIED DENNIS HUTCHINS PETITION FOR POST CONVICTION RELIEF CONCLUSION CERTIFICATE OF SERVICE

4 REQUEST FOR ORAL ARGUMENT COMES NOW, the Appellant, Dennis Hutchins and requests oral argument. Oral argument would be beneficial to the Court s understanding of the facts as they apply to the law on the issues raised in this appeal. 4

5 TABLE OF CASES AND AUTHORITIES CASES Blount v. State, 111 So. 3d 1216, 1221 (Miss. COA 2012) Callins v. State, 975 So.2d 219, 222 (Miss. 2008) Cook v. State, 910 So.2d 745, 746 ( 3) (Miss. App. Ct. 2005) Curry v. State, 131 So. 3d 1232, 1235 (Miss. COA 2013) Hodges v. State, 949 So. 2d 706, 716 (P20) (Miss. 2006) Huntley v. State, 524 So. 2d 572, 575 (Miss. 1998) Johnson v. State, 50 So.3d 335, 339 (Miss. COA 2010) Leatherwood v. State, 473 So. 2d 964, 968 (Miss. 1985) Phillips v. State, 25 So.3d 404, 406 (P4) (Miss. Ct. App. 2010) Ryals v. State, 51 So.3d 974, 975 (Miss. Ct. App. 2010)... 12,13 Smith v. State, 965 So. 2d 732, 734 (Miss. COA 2007)... 13,14 Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) AUTHORITIES U.S. Const. Amend. VI Miss. Code Ann ,10,11,12,16 Miss. Code Ann ,8,10,11,12,13 14,15,16 Miss. Const. Art

6 PROCEDURAL HISTORY On or about January 24 th and 25 th of 2012, Dennis Hutchins (hereinafter Hutchins ) was tried before a jury in Forrest County, Mississippi on counts five and six of an eight count indictment. On January 25, 2012, the jury found Hutchins guilty on count five for sale of synthetic cannabinoids within 1500 feet of a church and six count of possession of less than 30 grams of JWH-250 synthetic cannabinoids with intent to transfer or distribute within 1500 feet of a church. After the trial on counts five and six of the multi-count indictment, Hutchins entered a plea of guilty to counts one and two of the multi-count indictment for sale of synthetic cannabinoids within 1500 feet of a church and six count of possession of less than 30 grams of JWH-250 synthetic cannabinoids with intent to transfer or distribute within 1500 feet of a church, respectively. The trial judge sentenced Hutchins to six years in the custody of the Mississippi Department of Corrections on counts one and two of the indictment as a non-violent habitual offender. The trial court sentenced Hutchins to six years in the custody of the Mississippi Department of Corrections on counts five and six as a non-violent habitual offender. After Hutchins was incarcerated, he filed a Motion for Post Conviction Relief. Hutchins asked the Court to set aside his sentences. Hutchins contended that he entered a guilty plea to counts one and two of the indictment after he was tried and found guilty on counts five and six of the indictment because his trial counsel advised him that was the only way to avoid a sentence of life imprisonment. The trial court denied Hutchins s request for post-conviction relief. 6

7 STATEMENT OF THE CASE On or about June 16, 2011, a Forrest County, Mississippi grand jury returned an eightcount indictment against Dennis Terry Hutchins (hereinafter Hutchins ). (See, C.P ). Counts one through five of the indictment charged that on November 3, 10, and 16 of 2010 and December 3 and 8 of 2010 in Forrest County, Mississippi, Hutchins sold or transferred a controlled substance, namely: less than 30 grams of JWH-250 Synthetic Cannabinoid ( Spice ) within 1,500 feet of Trinity Baptist Church. (See, C.P ). In addition to the five sale/distribution counts, in count six of the indictment, the State alleged that on or about December 10, 2010 in Forrest County, Mississippi, Hutchins possessed with intent to transfer or distribute less than 30 grams of a controlled substance, JWH-250 Synthetic Cannabinoid ( Spice ) within 1,500 feet of First Trinity Baptist Church. (See, C.P ). In counts seven and eight of the indictment, the State alleged that on December 10, 2010 in Forrest County, Mississippi, Hutchins possessed less than 30 grams of synthetic cannabinoid with intent to distribute. (See, C.P. 0032). On January 17, 2012, one week before Hutchins s trial commenced, the State moved to amend Hutchins s indictment to charge him as a violent habitual offender pursuant to Miss. Code Ann (1972). (See, Exhibit E-1, Exhibit I to CI ). The state did not move in the alternative to amend the indictment to charge Hutchins as a non-violent offender pursuant to Miss. Code Ann (See, Exhibit E-1, Exhibit I to CI ). In its Motion to Amend, the state noted that Hutchins had been convicted of grand larceny and simple assault on a law enforcement officer. (See, Exhibit E-1, Exhibit I to CI ). Hutchins was convicted of grand larceny charge on September 27, 1991 in Cause No. 7

8 14,101 and simple assault on a police officer charge on October 25, 1991 in Cause No. 14,992. (See, Exhibit E-1, Exhibit I to CI ). At the January 23, 2012 hearing on the Motion to Amend, the state offered Hutchins s pen-pack into evidence. (See, Exhibit E-4, p. 8-9). The State contended that Hutchins previously had been convicted of grand larceny and simple assault on a police officer and had in fact served over a year on each charge. (See, Exhibit E-4, p. 7, l ). The trial judge admitted the pen-pack into evidence over the objections of defense counsel. (See, Exhibit E-4, p. 8-12). Hutchins s trial counsel stated that he objected to the pen pack being admitted into evidence because no one from the Mississippi Department of Corrections was present verify that the documents in the pen-pack were actually MDOC records. (See, Exhibit E-4, p. 8, l ). Hutchins s trial counsel argued that the proof cannot stand to Section 83 which bears life without parole, and the reason is is (sic) they re going on, first of all, two cases that were run concurrently. And number, two and this is very clear in many cases and I ve got one with me that touches on another subject, but basically it says under the equal protection clause of our Bill of Rights and our United States Constitution, a law which punishes one section of society in one way and another in an opposite way cannot be used enhanced (sic). (See, Exhibit E-4, p. 8, l , p. 9, l. 1-7). Hutchins s attorney did not argue that he did not qualify for sentencing as a violent habitual offender because he had not in fact served one year in jail the simple assault on a police officer conviction. (See, Exhibit E-4, p. 8-13). The pen pack showed that Hutchins was sentenced on a grand larceny charge on May 10, 1990 to serve a term of three (3) years in the custody of the MDOC, suspended on written Order of probation, and conditioned upon his successful completion of the program at the Restitution 8

9 Center, that he pay a fine of $2,000 payable at the rate of $ per month, and pay all costs of court herein. (See, Exhibit E, Pen-Pack/ May 11, 1990). According to the sentence computation record, Hutchins s probation on the grand larceny conviction was revoked on September 27, 1991, the day he was arrested on the simple assault on a law enforcement officer. From September 27, 1991 through July 10, 1992, Hutchins served approximately 287 days in the custody on the grand larceny charge. (See, Exhibit E, Pen-Pack/Sentence Computation Record). According to the pen-pack, Hutchins was confined to jail on the simple assault charge on a police officer from July 29, 1991 through July 10, (See, Exhibit E, Pen-Pack/Jail Time Sheet). On October 22, 1991, Hutchins was charged by criminal information with simple assault on a police officer. (See, Exhibit E, Pen-Pack/Criminal Information). On October 25, 1991, Hutchins waived indictment and entered a guilty plea to the charge of simple assault on a police officer. (See, Exhibit E, Pen-Pack/Criminal Information). Hutchins was sentenced to serve a term of three (3) years to the Mississippi Department of Corrections, to run concurrent with current Forrest County sentence, and that he pay all costs of court herein, and he is remanded into the custody of the Sheriff who shall see that this judgment is properly executed. The defendant shall be given credit for time served in custody awaiting trial on this charge, as by law required. (See, Exhibit E, Pen-Pack/November 12, 1991 Order). The pen-pack shows that Hutchins was jailed on the simple assault on a police officer charge on July 29, 1991 and was in custody from that day through July 10, (See, Exhibit E, Pen-Pack/Discharge Certificate). At the conclusion of the hearing on the Motion to Amend the Indictment, the trial court stated, I will review the pen packs, but they re official documents of MDOC. I m going to 9

10 allow they re self-authenticating and these will be received I into evidence. I don t think the law requires or permits me to go behind the conviction. I mean, that s what he either plead guilty or was found guilty of, was simple assault on a police officer. As I understand and appreciate the law in this state, that is a violent offense in this state as it pertains to the habitual status and that would put Mr. Hutchins as a habitual offender under the life sentence section of the habitual statute. (See, Exhibit E-4, p.12, l. 1-15). Hutchins trial commenced on January 24, (See, C.P. 0040). During voir dire, the trial judge announced that the state had elected to proceed on counts five and six of the multicount indictment. (See, C.P ). On January 25, 2012, the jury found Hutchins guilty of count five, sale/distribution of synthetic cannabinoids within 1500 feet of a church as outlined and count six, possession of less than 30 grams of JWH-250 synthetic cannabinoids with intent to transfer or distribute within 1500 feet of a church. (See, C.P. 0334). At the sentencing hearing on January 30, 2012, the trial judge stated this matter was tried last week and a jury returned a verdict of guilty on two counts of sale of synthetic cannabinoids. The defendant, having been previously found to be a habitual offender under Cause No , would leave this Court absolutely no discretion in sentencing. After the guilty verdict was returned, I asked defense counsel for any more research they could find on whether or not this Court had any discretion in sentencing, which under the law as I understand it I do not have any discretion. (C.P ). The trial court continued the sentencing hearing until the next day. (C.P. 0341). While Hutchins was in jail awaiting sentencing, his attorneys visited him and told him that he faced a sentence of life pursuant to Miss. Code Ann because he had previously been convicted of grand larceny and simple assault on a law enforcement officer. 10

11 (See, Supp. Transcript, Vol. 2, p. 11, l. 5-15). Hutchins s attorneys told him a day before sentencing, Lin Carter and Lin Junior come to the jail. Told me that, look, Dennis, tomorrow they re going to give you life without parole. I ve got these twelve years right here. You can take them, or you can go over there tomorrow and get life without parole. At least you will be able to see your kids or your grandkids in this, and it won t be a life sentence. You only have today to answer, so I signed. (See, Supp. Transcript, vol. 2, p. 11, l. 8-15). Hutchins testified at the evidentiary hearing that he plead guilty to counts one and two of the indictment as a non-violent habitual offender because his lawyers had convinced him that was the only way he could avoid being sentenced to life imprisonment pursuant to Miss. Code Ann (See, Supp. Transcript, vol. 2, p. 11, l ). When Hutchins returned to court on January 31, 2012 for sentencing, the assistant district attorney announced that it s the State s understanding that the defendant wishes to enter a plea guilty to Count I and II, and given that, Your Honor, the State would move to amend its previous motion for enhancement to classify the defendant subject to his guilty plea on Count I and II to classify the defendant as a habitual under instead of (See, Exhibit E-5, Transcript, p. 6, l ). Hutchins s attorney confirmed that Hutchins wanted to enter a guilty plea to Count I and II as a habitual under Miss. Code Ann and the trial judge proceeded to take Hutchins s guilty pleas. (See, Exhibit E-5, Transcript, p. 6, l ). During the plea colloquy, the trial judge told Hutchins the consideration for your entry of a guilty plea is the State is reducing the habitual portion of that statute from , which would mean life in prison without parole, to , which is just a day-per-day sentence. Do you understand that? (See, Exhibit E-5, Transcript, p. 11, l. 8-13). 11

12 Hutchins s attorney interjected and stated, [i]t s the other way. (See, Exhibit E-5, Transcript, p. 11, l. 14). The trial judge responded [o]kay. To instead of 83. Do you understand that? (See, Exhibit E-5, Transcript, p. 11, l ). Hutchins stated that he understood. (See, Exhibit E-5, Transcript, p. 11, l. 18). The trial judge stated [w]hich simply means it s a day-per-day sentence but it s not a life in prison sentence. Do you understand that? (See, Exhibit E-5, Transcript, p. 11, l ). As to Counts one and two of the indictment, the trial judge sentenced Hutchins to six years in the custody of the Mississippi Department of Corrections with said sentence to be served day for day without the benefit of probation, parole, or any form of early release. (See, Exhibit E-5, Transcript, p. 18, l. 4-18). As to counts five and six, the trial judge stated that in consideration of your entry of a guilty plea on the previous charges, the State has moved to reduce the habitual portion from a life without parole to a simple day-to-day sentence. (See, Exhibit E-5, Transcript, p. 19, l , p. 20, l. 1-3). The trial court sentenced Hutchins to six years in the custody of the Mississippi Department of Corrections without the benefit of probation, parole, or early release on counts five and six. (See, Exhibit E-5, Transcript, p. 20, l ). STANDARD OF REVIEW When an appellate court reviews a trial court s dismissal of a motion for post-conviction relief it will not disturb that decision unless the trial court s factual findings are clearly erroneous. Ryals v. State, 51 So.3d 974, 975 (Miss. Ct. App. 2010) citing Phillips v. State, 25 So.3d 404, 406 (P4) (Miss. Ct. App. 2010). However, where questions of law are raised the 12

13 applicable standard of review is de novo. Ryals, 51 So.2d at 975 citing Callins v. State, 975 So.2d 219, 222 (Miss. 2008). WHETHER DENNIS HUTCHINS S TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HE FAILED TO OBJECT TO THE STATE S MOTION TO AMEND THE INDICTMENT TO SENTENCE DENNIS HUTCHINS AS A VIOLENT HABITUAL OFFENDER UNDER MISS. CODE ANN ON THE GROUND THAT THE STATE FAILED TO PRODUCE SUFFICIENT EVIDENCE THAT DENNIS HUTCHINS HAD SERVED ONE YEAR THE SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER CONVICTIONS Hutchins is guaranteed a fair trial under the Sixth Amendment to the United States Constitution. The Sixth Amendment states in all criminal prosecutions, the accused shall enjoy the right to speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. U.S. Const. Amend. VI. Article 3 26 of the Mississippi Constitution provides that in all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed. The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel s conduct so undermined the proper functioning of the adversial process that the trial cannot be relied on as having produced a just result. Smith v. State, 965 So. 2d 732, 734 (Miss. 13

14 COA 2007). Citing Hodges v. State, 949 So. 2d 706, 716 (P20) (Miss. 2006) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order to prove a claim of ineffective assistance of counsel, a defendant must show that the counsel s performance was deficient, and that the deficient performance prejudiced the defense. Smith, 965 So. 2d at 734, citing Leatherwood v. State, 473 So. 2d 964, 968 (Miss. 1985). To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the trial would have been different. Miss. Code Ann provides that: every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation. In Huntley v. State, 524 So. 2d 572, 575 (Miss. 1998), the court stated is obviously drawn to punish as habitual offenders those persons who have been convicted of two prior felonies, one being a crime of violence, and who have served two separate sentences of one year or more in a state or federal penal institution. At the hearing on the Motion to Amend the Indictment, Hutchins s counsel argued that simple assault on a law enforcement officer was not a violent crime. Hutchins s counsel was wrong. Simple assault of a police officer has been deemed a crime of violence. Blount v. State, 111 So. 3d 1216, 1221 (Miss. COA 2012) citing Cook v. State, 910 So.2d 745, 746 ( 3) (Miss. App. Ct. 2005). 14

15 Instead of arguing that simple assault on a police officer was not a violent crime, Hutchins s attorney should have reviewed the documents contained in the pen-pack and argued that Hutchins did not qualify as a violent habitual offender because there was not sufficient evidence to show that Hutchins served one year on the simple assault on a police officer conviction as required by Miss. Code Ann , In Curry v. State, 131 So. 3d 1232, 1235 (Miss. COA 2013), the court stated that a defendant who had not served one year in prison for one of the felony-convictions contained in the indictment could not be sentenced as a violent habitual offender. In the instant case, the evidence in Hutchins s pen-pack established that he did not serve one year in prison on the charge of simple assault on a law enforcement officer. Hutchins was arrested on that charge on July 29, 2011 and remained in custody until he was discharged by the Mississippi Department of Corrections on July 10, Because Hutchins served approximately 346 days, rather than 365 days, on the simple assault on a police officer, Hutchins could not be sentenced as a violent habitual offender. Curry v. State, 131 So. 3d 1232, 1235 (Miss. COA 2013). Hutchins s counsel s performance was deficient because he did not review the pen-pack and object to the Motion to Amend the Indictment on the proper ground. The information in the pen-pack clearly showed that Hutchins did not serve one year on the simple assault on a police officer conviction. Hence, the trial court, notwithstanding its ruling, could not sentence Hutchins as a violent habitual offender. Despite having the evidence necessary to resist the motion to amend, Hutchins s counsel failed to object on the correct ground. Hutchins s attorney s unprofessional error paved the way for the trial court to erroneously rule that Hutchins could be sentenced as a violent habitual offender under Miss. Code Ann

16 WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HE ADVISED DENNIS HUTCHINS TO PLEAD GUILTY TO TWO FELONIES AS A NON-VIOLENT HABITUAL OFFENDER TO AVOID BEING SENTENCED AS A VIOLENT HABITUAL OFFENDER UNDER MISS. CODE ANN To add insult to injury, Hutchins s attorneys waived an error that Hutchins would have had on appeal by convincing him that he should plead guilty to counts one and two of the indictment as a non-violent habitual offender. In exchange, Hutchins s trial counsel told him the state would forego its previous efforts to have the trial court sentence him as a violent habitual offender. Had Hutchins s trial counsel objected to the amendment on the proper ground and later properly advised him that the trial court erred in ruling that he could be sentenced as a violent habitual offender, Hutchins would not have given up his right to appeal the trial court s erroneously ruling. In addition, Hutchins would not have given up his right to a trial by jury on counts one and two, which he should have moved to dismiss when the State announced that it had elected to go forth on counts five and six of the indictment and did not state what would happen to the remaining counts of the multi-count indictment. In the instant case, instead of convincing Hutchins to enter a guilty plea, Hutchins s trial counsel should have resisted efforts by the State to amend the indictment under Miss. Code Ann because the State in its Motion to Amend the Indictment did not request that the court sentence Hutchins as a non-violent habitual offender in the alternative. Cf. Johnson v. State, 50 So.3d 335, 339 (Miss. COA 2010). WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DENIED DENNIS HUTCHINS PETITION FOR POST CONVICTION RELIEF For the reasons outlined above, the trial court erred as a matter of law when it denied Hutchins s Petition for Post-Conviction Relief. 16

17 CONCLUSION For the reasons outlined above, Hutchins prays that this Court will reverse the ruling of the trial judge and grant his Motion for Post-Conviction Relief. RESPECTFULLY SUBMITTED, this the 4th day of August, //s// Lisa M. Ross Lisa M. Ross (MSB#9755) Post Office Box Jackson, Mississippi Telephone: (601) Facsimile: (601) CERTIFICATE OF SERVICE I, Lisa M. Ross, do hereby certify that I have this day electronically filed the foregoing aforementioned document using the MEC system which sent notification of such filing to the following: Honorable Robert Helfrich Post Office Box 309 Hattiesburg, MS Honorable Patricia Burchell Post Office Box 166 Hattiesburg, MS Forrest County District Attorney Lindsey Carter, Esq. 404 Hemphill Street Hattiesburg, MS Trial Counsel for Dennis Hutchins SO CERTIFIED, this the 4th day of August, //s// Lisa M. Ross LISA M. ROSS 17