Hickerson v. State

• Decision Date: 05 April 2022
• Docket Number: 2021-CA-00176-COA
• Citation: 336 So.3d 1134
• Parties: Dwayna Porche HICKERSON a/k/a Dwayna Hickerson a/k/a Dwanya Hickerson, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

336 So.3d 1134

Dwayna Porche HICKERSON a/k/a Dwayna Hickerson a/k/a Dwanya Hickerson, Appellant

v.STATE of Mississippi, Appellee

NO. 2021-CA-00176-COA

Court of Appeals of Mississippi.

April 5, 2022

ATTORNEY FOR APPELLANT: ANDRE ROBERT BELANGER

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, Jackson

BEFORE CARLTON, P.J., GREENLEE AND McDONALD, JJ.

McDONALD, J., FOR THE COURT:

¶1. Dwayna Hickerson pled guilty to second-degree murder and robbery in the Jackson County Circuit Court. On July 20, 2017, the circuit court sentenced Hickerson to forty years in the custody of the Mississippi Department of Corrections (MDOC), with thirty-five years to serve without eligibility for parole and five years of post-release supervision (PRS) for the murder conviction. For the robbery conviction, the circuit court sentenced him to fifteen years, with eight to serve and five years of PRS. The sentences were to run consecutively. After obtaining new counsel, Hickerson filed a petition for post-conviction relief (PCR), arguing that he received ineffective assistance of counsel and that his guilty plea was involuntary and invalid. The circuit court denied the PCR motion. Hickerson now appeals. Finding no error, we affirm the circuit court's denial.

Statement of the Facts and Procedural History

¶2. Hickerson, twenty-one, met Dee "Princess" Whigham, twenty-five, on the dating application "Hot or Not." Hickerson and Whigham began communicating through "KIK," a messenger application. Whigham sent numerous pictures of herself to Hickerson, which included pictures of her face, breasts, and buttocks. Hickerson and Whigham eventually arranged a date for July 23, 2016. According to Hickerson's statement, he had been drinking before Whigham picked him up from Keesler Air Force Base (the base), where Hickerson was stationed. Ultimately, Hickerson and Whigham decided to go to a hotel to have sexual intercourse. Whigham performed fellatio on Hickerson in the car and at the hotel. She requested to have anal sex, which Hickerson obliged.

¶3. Shortly thereafter, Whigham told Hickerson that she was born a man and was taking steps to become a female. According to Hickerson, he believed Whigham to be born a woman and became enraged when she disclosed this information. He pulled out a knife and stabbed Whigham multiple times, killing her. According to his declaration of facts,¹ he stated that he "stabbed Whigham what [he] believed to be 1 or 2 times, which [he] later learned was many times more than that and that led to her death." Hickerson took Whigham's purse, which included her cell phone, and left the hotel. He walked to a gas station in his blood-stained shirt, and an elderly couple gave him a ride back to the base. The following day, Hickerson burned his blood-stained shirt, Whigham's purse, her cell phone, and the knife in a burn pit.² Hickerson also cut his hair, got new glasses, and shaved.

¶4. That same day, Whigham's body was discovered in the hotel room. The Jackson County Sheriff's Department (JCSD) recovered video surveillance from the hotel. In order to aid their investigation, the JCSD released still pictures from the video to the public. Hickerson was identified by one of the airmen on the base, who reported the information to the Commander. During their investigation, JCSD also secured video footage of Hickerson returning to the base in his blood-stained shirt. On July 25, 2016, law enforcement arrested and charged Hickerson with capital murder. According to Hickerson, he had no recollection of what occurred due to his diminished capacity because of a psychotic episode. Whigham's autopsy report stated that she was stabbed at least 190 times.

¶5. On October 29, 2016, a Jackson County grand jury indicted Hickerson for capital murder in violation of Mississippi Code Annotated section 97-3-19(2)(e) (Rev. 2020) for willfully, unlawfully, and feloniously murdering Whigham while engaging in the commission of a felony (robbery) in violation of Mississippi Code Annotated section 97-3-73 (Rev. 2020). Hickerson's family hired Adrianne Rhoads-Wells (Rhoads) to represent him. He was arraigned on December 15, 2016, and pled not guilty to all the charges in the indictment. On December 20, 2016, the court scheduled a trial date for August 14, 2017. Because Hickerson faced the death penalty, the circuit court appointed Attorney Cameron McCormick to assist Rhoads. Additionally, William LaBarre, an attorney with the Office of the State Public Defender (Capital Defense Division), entered his appearance. On April 24, 2017, the State withdrew the death penalty as a sentencing option. On July 5, 2017, the State extended a plea recommendation to Hickerson for second-degree murder and robbery. Two weeks later, the State extended a second plea recommendation to Hickerson for second-degree murder and robbery with a reduction in sentence for the robbery charge.

¶6. Hickerson filed a sworn plea petition and a plea agreement on July 20, 2017. In the petition, Hickerson acknowledged that he was not under the influence of any drugs at the time he signed the petition and that he was waiving his constitutional right to a trial. The petition stated that he understood the minimum and maximum sentence for each crime. The petition also provided that no one had threatened Hickerson to plead guilty or promised him anything if he pled guilty. Additionally, the petition provided that Hickerson was fully satisfied with his attorneys’ service and that his attorneys acted in his best interest.

¶7. The circuit court held Hickerson's plea hearing on the same day that Hickerson filed his plea petition and agreement. Prior to accepting the plea, the court questioned Hickerson about the consequences of pleading guilty. The court asked Hickerson whether he understood that he was waiving his constitutional rights;³ whether he was satisfied with his attorneys’ representation; and whether he understood the nature of the charges against him. Hickerson answered those questions in the affirmative. Several of the victim's family members gave impact statements, which included the fact that they were devastated at the loss of Whigham, that Whigham was an RN nurse, and that although they did not approve of Whigham's lifestyle, they had accepted it.

¶8. The circuit court sentenced Hickerson to forty years in the custody of the MDOC, with thirty-five years to serve without eligibility for parole and five years of PRS, for the murder conviction and fifteen years, with eight to serve and five years of PRS, for the robbery conviction. The sentences were to run consecutively.

¶9. Hickerson hired Stephen Shapiro to file his PCR petition. In 2018, Shapiro requested that Rhoads send him a copy of Hickerson's entire case file twice on February 20, 2018, and on March 19, 2018. According to Shapiro, Rhoads never sent him the file. However, Rhoads said that he was asking for her prior notes, which she was not required to provide.

¶10. On July 20, 2020, exactly three years after Hickerson pled guilty, and after he hired yet another attorney, Hickerson finally filed a PCR petition and a memorandum. In the petition and memorandum, Hickerson argued that he received ineffective assistance of counsel from Rhoads.⁴ He also claimed that he suffered prejudice as a result of Rhoads's deficient performance and that his guilty plea was not knowingly, intelligently, and voluntarily given. Hickerson claimed in his petition that Rhoads failed to advise him about the progress of the case and failed to discuss the legal issues in the case. Hickerson stated that he only had three days to consider the plea offer. He argued that the State and his counsel placed "enormous pressure" on him to make a "monumental decision within an extremely short time frame."

¶11. Furthermore, Hickerson argued that Rhoads failed to request a mental evaluation or even discuss his competence and mental state of mind when it was clear that he "had a break from reality or psychotic episode at the time of the incident," which continued "for the next couple of days." Finally, Hickerson argued that Rhoads failed to advise him that he did not commit a robbery but rather obstructed justice when he took and destroyed Whigham's purse and cell phone.⁵

¶12. Hickerson requested an evidentiary hearing and attached six exhibits to his PCR petition, including his declaration of facts, pictures Whigham sent to him, Shapiro's declaration of facts, emails from Shapiro to Rhoads, and a newspaper article detailing Hickerson's case and guilty plea. In his declaration of facts, Hickerson stated that Rhoads had only visited him four or five times while he was incarcerated, that she failed to discuss the legal issues of the case, and that she never advised him on the offenses of his case. Shapiro's emails to Rhoads show that he had requested a copy of her file on Hickerson. But Rhoads did not produce her file but instead left a voicemail, stating that she did not have a full copy of the file and that she was not sure if she could provide anything more than what was in the court record.

¶13. On August 7, 2020, the circuit court ordered the State to respond to Hickerson's PCR petition no later than September 4, 2020. Further, the circuit court ordered that an evidentiary hearing on Hickerson's petition would be held on September 24, 2020, if necessary. The State filed its response to Hickerson's petition on August 20, 2020. The State argued that Hickerson failed to present any evidence in support of his ineffective-assistance-of-counsel claim other than his own affidavit; thus, the State argued that the court should deny Hickerson's request for an evidentiary hearing. The State attached several exhibits to its response, including Hickerson's sentencing order, Rhoads's affidavit, the circuit court's order appointing McCormick, jail visitation slips, McCormick's affidavit, and LaBarre's affidavit. Both parties submitted copies of the transcript of Hickerson's...