Dawkins v. State, 2004-CP-00014-COA.

• Decision Date: 24 May 2005
• Docket Number: No. 2004-CP-00014-COA.,2004-CP-00014-COA.
• Citation: 919 So.2d 92
• Parties: Ellis DAWKINS, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

919 So.2d 92

Ellis DAWKINS, Appellant, v. STATE of Mississippi, Appellee.

No. 2004-CP-00014-COA.

Court of Appeals of Mississippi.

May 24, 2005.

Ellis Dawkins, Appellant, pro se.

Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.

Before KING, C.J., IRVING and BARNES, JJ.

BARNES, J., for the Court.

¶ 1. Ellis Dawkins entered a plea of guilty on August 19, 2002, to the capital rape of his daughter, who was aged ten at the time of the assault. Dissatisfied with receiving the minimum sentence of twenty years (ten of which were suspended) and five years of post-release supervision, Dawkins filed a motion for post-conviction relief on October 2, 2003. The motion was denied without a hearing by the circuit court. Dawkins appeals that denial raising numerous issues, most of which are directly contradicted by his petition to enter plea agreement and the plea qualification hearing. Finding no error in the trial court's denial of post-conviction relief, we affirm.

STATEMENT OF FACTS

¶ 2. Ellis Dawkins was indicted by the grand jury of Marshall County, Mississippi, on October 7, 1998; count one of the indictment charged Dawkins with statutory rape of child under the age of fourteen between January 1 and June 30, 1998, in violation of section 97-3-65(1) of the Mississippi Code; count two charged Dawkins with sexual battery of the same child, aged ten at the time, on or about July 22, 1998, in violation of section 97-3-95(d) of the Mississippi Code. The record before us is silent as to the reason for delay in bringing Dawkins to trial on these charges. On August 19, 2002, Dawkins signed a sworn "petition of defendant for court to accept plea," in which he pled guilty to capital rape. At a hearing later that day, the circuit judge informed Dawkins of his constitutional rights and questioned him extensively about his knowledge of those rights and his understanding that, in pleading guilty, he was waiving those rights. In response to questioning, Dawkins admitted that he was in fact guilty of the crime of capital rape, denied suffering from any type of disability which might impair his ability to understand the court proceedings, denied that anyone had intimidated or coerced him into pleading guilty, and acknowledged that he had reviewed the plea petition with his attorney and was satisfied with the services of his attorney.

¶ 3. Circuit Court Judge Andrew K. Howorth determined that Dawkins freely and voluntarily offered his plea of guilty to capital rape and, based upon the court's observation of Dawkins before the bench, found him capable and competent to enter the plea. The court accepted Dawkins's plea of guilty to the crime of capital rape and sentenced him, in accordance with the recommendation of the State, to the minimum sentence of twenty years, with ten years suspended and five years' post-release supervision. The maximum sentence for statutory rape by someone of Dawkins's age is life imprisonment. See Miss. Code Ann. § 97-3-65(2)(c) (Rev.2000).

¶ 4. On petition for post-conviction collateral relief, Dawkins disavowed his admission of guilt, alleging the following: his plea was involuntary as he was "mentally incompetent" from the false accusations; his right to a speedy trial had been violated; the prosecution had coerced him into pleading guilty with false evidence; and his counsel had provided him ineffective assistance. Judge Howorth denied Dawkins's motion for post-conviction relief without an evidentiary hearing. Dawkins has appealed to this Court seeking reversal of the circuit court's ruling.

ISSUES AND ANALYSIS

I. WHETHER THE CIRCUIT COURT ERRED IN NOT GRANTING

THE PETITIONER A HEARING OR APPOINTED COUNSEL IN THE POST-CONVICTION PROCEEDINGS.

¶ 5. Dawkins raises two procedural issues regarding the circuit court's handling of his motion for post-conviction relief: the court's decision not to grant Dawkins a hearing before dismissing the motion for post-conviction relief and the court's denial of appointed counsel. The statute regarding summary dismissal of a motion for post-conviction relief is clear and reads as follows:

If it plainly appears from the face of the motion, any annexed exhibits and prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.

Miss.Code Ann. § 99-39-11(2) (Rev.2000). In Smith v. State, the Mississippi Supreme Court stated:

Smith's current contentions and credibility are certainly suspect. When we compare his previous sworn testimony during his guilty plea with his current affidavit, the latter is practically rendered a "sham," thus allowing the summary dismissal of the petition to stand.

Smith v. State, 636 So.2d 1220, 1224 (Miss. 1994). Most of Dawkins's contentions are directly contradicted by his petition to enter plea agreement and the plea qualification hearing. Judge Howorth specifically asked Dawkins, "Has anybody done anything to intimidate you, coerce you, beat you, intimidate you, anything else to try to force you to plead guilty?" To which, Dawkins responded, "No, sir." The judge also asked Dawkins, "Has anybody promised you a lighter sentence, . . . any other type of inducement, a reward or anything like that to try to persuade you to plead guilty?" To which, Dawkins again responded, "No, sir." Judge Howorth asked Dawkins, "Are you suffering from any type of disability, physical, mental or otherwise, that might impair or affect your ability to understand what's going on here today?" Dawkins replied, "No, sir." When asked if he was satisfied with his attorney, Dawkins responded, "Yes, sir." The supreme court has held that allegations in post-conviction pleadings that are completely contradicted by the sworn testimony in the record do not require a hearing. Taylor v. State, 682 So.2d 359, 364 (Miss.1996). Denial of an evidentiary hearing was, thus, justified with respect to the majority of Dawkins's contentions by this reason alone.

¶ 6. Dawkins raises two issues which we discuss separately as they are not directly contradicted by his prior sworn testimony. However, we agree with the trial court's determination that no hearing was required with respect to either issue. The Mississippi Supreme Court has stated:

By statute and under long-established precedent, the movant in a post-conviction relief motion must make some reasonable demonstration of the actual existence of evidence that, if shown satisfactorily at a hearing, would indicate an entitlement to relief. Mere unsupported assertions contained in the motion may be disregarded by the trial court and the motion dismissed without the necessity of a hearing.

Davidson v. State, 850 So.2d 158, 159-60 (¶ 4) (Miss.Ct.App.2003) (citations omitted).

¶ 7. First, Dawkins makes unusual allegations that a "Judge Lance"¹ dismissed the capital rape case on May 5, 2000, and that the prosecution made a "motion" to defense counsel giving him "permission" to dismiss the case in August of 2000. These allegations are contradictory on their face. Had the trial judge dismissed the case on May 5, 2000, the prosecution would have no need to give "permission" to Dawkins's counsel to dismiss the case in August of 2000. Dawkins provides no evidence that either of these events occurred. There are no affidavits either of the judge in question or of the unidentified prosecutor who allegedly gave permission to dismiss the charges. Further, in the order denying post-conviction relief, the circuit court judge confirms that he reviewed "the court file in this case" and considered all matters "in light most favorable" to Dawkins. If there were anything in the record to substantiate Dawkins's claims of dismissal in May or a motion in August of 2000, the circuit court judge surely would have identified it. This Court finds no evidence presented by Dawkins that would require an evidentiary hearing on this issue.

¶ 8. Second, Dawkins contends that an FBI Report of Examination of certain deoxyribonucleic acid (DNA) samples submitted in connection with the case (attached to his petition) proves his innocence and that his counsel misunderstood the report and incorrectly advised him to plead guilty. The DNA report refutes rather than supports Dawkins's allegations of innocence. The DNA analysis could not exclude Dawkins as a potential contributor of the male DNA obtained from the victim's panties. The report stated that "the probability of selecting an unrelated individual at random from the general population who could be a potential contributor to the mixture of DNA from [the panties] was 1 in 2.4 billion from the Black population, approximately 1 in 5.3 billion from the Caucasian population, approximately 1 in 2.2 billion from the Southeastern Hispanic population, and approximately 1 in 12 billion from the Southwestern Hispanic population." The report noted that the victim and Dawkins "account for all of the results obtained from [the] specimen. . . ."² Nonetheless, Dawkins contends that the report evidenced his innocence as vulvar and rectal swabs from the victim produced "no conclusive typing results ... for comparison to [Dawkins.]" Further, Dawkins construes the report's conclusion that "[n]o STR [short tandem repeat] typing results unlike the [victim] specimen were obtained from [the panties]" to mean that the DNA on the panties "did not match" the victim.

¶ 9. On its face, the report condemns rather than exonerates Dawkins. While some of the arguments Dawkins raises on appeal might have been addressed on cross-examination of the DNA examiner,³ the report itself does not, on its face, raise any question concerning Dawkins's guilt. Dawkins has failed to demonstrate the actual existence of evidence which would indicate his entitlement to relief. Accordingly we find that the circuit court judge did not err in denying Dawkins an evidentiary hearing.

¶ 10. As no evidentiary hearing was required, there...