Bell v. State, 011921 MSCA, 2019-CP-01034-COA

Docket Nº2019-CP-01034-COA
Opinion JudgeWESTBROOKS, J.
Party NameKENDRICK MARQUES BELL A/K/A KENDRICK BELL APPELLANT v. STATE OF MISSISSIPPI APPELLEE
AttorneyATTORNEY FOR APPELLANT: KENDRICK MARQUES BELL (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE
Judge PanelBEFORE BARNES, C.J., GREENLEE AND WESTBROOKS, JJ. BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE AND McDONALD, JJ., CONCUR. McCARTY, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. LAWRENCE, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. SMITH, J., NOT PAR...
Case DateJanuary 19, 2021
CourtCourt of Appeals of Mississippi

KENDRICK MARQUES BELL A/K/A KENDRICK BELL APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

No. 2019-CP-01034-COA

Court of Appeals of Mississippi

January 19, 2021

DATE OF JUDGMENT: 12/14/2018

HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. WINSTON L. KIDD TRIAL JUDGE.

ATTORNEY FOR APPELLANT: KENDRICK MARQUES BELL (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE

BEFORE BARNES, C.J., GREENLEE AND WESTBROOKS, JJ.

WESTBROOKS, J.

¶1. Kendrick Bell appeals from the dismissal of his motion for post-conviction relief. On August 18, 2018, in the Circuit Court of Hinds County, Bell pled guilty to committing second-degree murder, being a felon in possession of a firearm, and shooting into an occupied vehicle. (He was originally indicted for first-degree murder, but the charge was reduced to second-degree murder in exchange for his accepted guilty plea.) The court sentenced Bell to forty years in custody, with five years suspended and thirty-five years to serve, to be followed by five years of post-release supervision, for second-degree murder; to ten years to serve in custody for being a felon in possession of a firearm; and to five years to serve in custody for shooting into an occupied vehicle. The court set the sentences to run concurrently. Bell subsequently filed a motion for post-conviction relief, arguing he received ineffective assistance of counsel. The trial court denied the relief requested and dismissed the motion. Finding no error we affirm.

STATEMENT OF THE FACTS

¶2. On March 24, 2016, officers with the Jackson Police Department were dispatched to the Jubilee gas station at 3210 Highway 80 in reference to a shooting. Officers gathered suspect information, which led them to Kendrick Bell, who was at 3211 Washington Street located in Jackson. The individual who drove Bell to the Jubilee gas station was present and was able to provide officers with information leading to Bell's arrest. The incident at the gas station was recorded on surveillance video and showed Bell shooting and killing Teletha Burks.

¶3. Bell pled guilty to second-degree murder, being a felon in possession of a firearm, and shooting into an occupied vehicle. As a result, Bell was sentenced as stated above.

¶4. On November 6, 2018, Bell filed a "Motion for Post-Conviction Collateral Relief." On December 14, 2018, the Hinds County Circuit Court entered its order dismissing Bell's motion for post-conviction collateral relief. Although untimely, on June 25, 2019, Bell filed a "Notice of Appeal," which was accepted after he showed he did not receive the trial court's order dismissing his PCR motion until May 28, 2019.

STANDARD OF REVIEW

¶5. The standard of review for the dismissal of a motion for post-conviction relief is whether the trial court's decision was "clearly erroneous." Brown v. State, 731 So.2d 595, 598 (¶6) (Miss. 1999). Questions of law are reviewed de novo. Id.

DISCUSSION

¶6. Bell is not entitled to post-conviction relief for ineffective assistance of counsel because he entered a guilty plea knowingly, intelligently, and voluntarily. Bell argues that his due process rights were violated when his public defender chose not to pursue an insanity defense, chose not to request a change of venue or medical records, and elected not to have a preliminary hearing, thus rendering the assistance ineffective.

I.

Bell knowingly, intelligently, and voluntarily entered into a plea agreement.

¶7. Bell asserts a claim of ineffective assistance of counsel but is not able to overcome the hurdles presented from voluntarily entering into a plea agreement. "A voluntary guilty plea waives claims of ineffective assistance of counsel, 'except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea.'" Thomas v. State, 159 So.3d 1212, 1215 (¶10) (Miss. Ct. App. 2015) (quoting Fortenberry v. State, 151 So.3d 222, 225 (¶10) (Miss. Ct. App. 2014)). Therefore, the defendant "must demonstrate that his counsel's 'conduct proximately resulted in the guilty plea, and that but for counsel's errors, he would not have entered the plea." Id. (internal quotation marks omitted). Furthermore, "in cases involving post-conviction collateral relief, where a party offers only his affidavit, then his ineffective-assistance-of-counsel claim is without merit." Id. (quoting Cherry v. State, 24 So.3d 1048, 1051 (¶6) (Miss. Ct. App. 2010)).

¶8. Bell is not able prove the articulated requirements to demonstrate that his plea agreement was entered into involuntarily, and has only offered his own affidavit to support his claim. As articulated within the transcript, Bell voluntarily entered into the guilty plea:

Q. And are you right now under the influence of any drugs or alcohol?

A. Well, I took my medical this morning.

Q. What was it?

A. Depakote.

Q. You take it in the morning?

A. Yes, sir.

Q. Do you take anything else?

A. Yes, sir, dyspraxia.

Q. You had that today as well?

A. Sir?

Q. You've had that today as well?

A. Yes, sir.

Q. Does that cause you to be sleepy?

A. No, sir.

Q. You understand what's going on now?

A. Yes, sir.

Q...

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