Knight v. State

• Decision Date: 26 June 2007
• Docket Number: No. 2005-CP-00110-COA.,2005-CP-00110-COA.
• Citation: 959 So.2d 598
• Parties: Shawn Louis KNIGHT, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

959 So.2d 598

Shawn Louis KNIGHT, Appellant v. STATE of Mississippi, Appellee.

No. 2005-CP-00110-COA.

Court of Appeals of Mississippi.

June 26, 2007.

Shawn Louis Knight, pro se.

Office of the Attorney General by Billy L. Gore, attorney for appellee.

EN BANC.

MODIFIED OPINION

GRIFFIS, J., for the Court.

¶ 1. The motion for modification is denied as requested; however, the original opinion is being modified with this opinion substituted in lieu thereof.

¶ 2. Shawn Louis Knight pled guilty to gratification of lust in the Circuit Court of Rankin County. He was sentenced to serve a total of fifteen years in the custody of the Mississippi Department of Corrections, with five years suspended, followed by five years supervised probation. He was fined $1,000, which was suspended, and was ordered to pay court costs. Knight then filed a motion for post-conviction relief, which was denied on its merits. On appeal, he raises the following issues: (1) the indictment was insufficient to charge a crime, (2) the grand jury could not find penetration and corpus delicti, (3) his plea was involuntary and unknowing, and (4) his counsel was ineffective. After the appeal was filed, the trial court moved this Court to consider Knight's petition a successive writ. We find no error and affirm.

FACTS

¶ 3. Knight was indicted on two counts of sexual battery of a minor. The two counts were nearly identical in that they charged sexual battery against a minor, identified as M.W. However, Count I was for one act of sexual battery in September 2001, and Count II was for an act on October 27, 2001. In exchange for a guilty plea to gratification of lust for the incident described in Count II, the prosecution agreed not to prosecute Count I. Knight pled guilty on December 19, 2002.

¶ 4. On September 15, 2004, Knight filed his petition for post-conviction relief. The trial court denied the motion on its merits. Knight appealed to this Court.

¶ 5. This Court ordered the lower court to supplement the record with the plea hearing transcript. The lower court complied; however, it was accompanied by an ex parte "Supplemental Findings of the Trial Court" ("Supplemental Findings"). The Supplemental Findings stated that the trial court should have considered the petition a successive writ and asked this Court to "correct this error" and to sanction Knight. This Court supplied the parties with a copy of the supplemental findings and ordered supplemental briefing.

STANDARD OF REVIEW

¶ 6. A trial court's denial of post-conviction relief will not be reversed absent a finding that the trial court's decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when issues of law are raised the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). Whether or not an indictment is defective is a question of law. Peterson v. State, 671 So.2d 647, 652 (Miss. 1996).

ANALYSIS

I. Is the successive writ bar properly before this Court?

¶ 7. First, we must consider whether the Supplemental Findings are properly before this Court. Knight argues that the lower court has violated proper procedure and "waived" its holding by not considering it in the first place. He also argues the State waived this argument when it was not raised below. In the alternative, Knight argues that he has raised fundamental, constitutional rights which survive a successive writ bar. The State's argument is that it finds "no legal impediment to Judge Richardson's supplemental finding."

¶ 8. The Supplemental Findings read, in part:

The Trial Court after receiving the Court of Appeals Order for Supplementation, researched all of the Movant's court files and pleadings. The Trial Court has determined that the Movant filed a pro se Motion to Vacate and Set Aside Sentence June 9, 2003 . . . which the Trial Court elected to treat as a Motion for Post Conviction Relief based upon the relief requested, urging essentially the same grounds for relief as he has alleged in the Motion . . . which is the subject of the current appeal. At the time the Trial Court addressed and considered the current Motion . . . the Trial Court . . . did not realize and was unaware that the Movant had previously filed a Motion for Post Conviction Relief which had been denied. No appeal was taken from this order and the time for taking such appeal has expired. . . . The Trial Court urges the Court of Appeals to correct the Trial Court's error or oversight and dismiss the [appeal] as a second or successive motion. Further, the Trial Court urges the Court of Appeals to impose sufficient sanctions on the Movant. . . .

¶ 9. A prisoner may file a motion for post-conviction collateral relief with the circuit clerk and deliver a copy of the motion to the State. Miss.Code Ann. § 99-39-9(5) (Rev.2000). An answer is not required unless the trial court orders the State to file one. Id. The motion is to be "examined promptly by the judge to whom it is assigned." Miss.Code Ann. § 99-39-11(1) (Rev.2000). If the judge's examination reveals that the prisoner is not entitled to relief, the judge may dismiss the motion. Id. This is what occurred with Knight's motion. The judge examined the motion and determined that Knight was not entitled to relief. As a result, the trial judge dismissed the motion. Knight appealed the judgment.

¶ 10. Normally, it is the duty and responsibility of the State to present arguments that refute Knight's motion for post-conviction relief. The State did not raise this issue below, nor did it raise it here in its brief. Having failed to do so, we would typically decline to reach the State's argument that Knight's petition is a successive writ. Herrington v. State, 690 So.2d 1132, 1137 (Miss.1997). However, we recognize that the State did not have an opportunity to respond and raise this defense, because the trial judge summarily dismissed Knight's motion without requiring an answer by the State.

¶ 11. We next consider whether the trial judge had the authority to make a supplemental finding after we ordered the trial court to supplement the record with the plea hearing transcript. The general rule is that "where a case has been removed to an appellate court by appeal, the lower tribunal is divested of any jurisdiction to subsequently modify its order or entertain a petition for rehearing." See Banana v. State, 638 So.2d 1329, 1331 (Miss.1994) (holding trial judge could not sua sponte reconsider denial of post-conviction relief after appeal was filed). This rule has been ameliorated in part by the rules of appellate and civil procedure. Gardner v. State, 547 So.2d 806, 807 (Miss. 1989); Ward v. Foster, 517 So.2d 513, 516-17 (Miss.1987).

¶ 12. Rule 59(e) of the Mississippi Rules of Civil Procedure provides that a motion to alter or amend the judgment shall be filed no later than ten days after entry of judgment. We have held that if a judge seeks to do this sua sponte, he is also bound by the ten day period, as well as the requirements of notice and hearing set out in Rule 59(d). Ford v. Ford, 795 So.2d 600, 605(¶ 17) (Miss.Ct.App.2001). Failure to do so renders the amended judgment void. Id. The final judgment in this case was rendered December 22, 2004. The supplementation was not filed until November 16, 2005. Further, neither Knight nor the State had notice or a hearing before the judgment was altered. Therefore, Rule 59 does not provide the means by which we may consider the motion.

¶ 13. Rule 60(a) provides that clerical mistakes in judgments and the record may be taken up at any time "until the time the record is transmitted by the clerk of the trial court to the appellate court and the action remains pending therein. Thereafter, such mistakes may be so corrected only with leave of the appellate court." We do not deal here with clerical errors, so Rule 60(a) does not authorize the supplementation.

¶ 14. After the case is appealed, Rule 60(b) grants the lower court concurrent jurisdiction limited to granting relief from a judgment pursuant to a timely filed motion. Griffin v. Armana, 679 So.2d 1049, 1050 (Miss.1996). Rule 60(b) does not apply here, because the court's supplemental findings and holdings were not to grant relief from judgment.

¶ 15. Likewise, we are unable to find any authority in the Mississippi Rules of Appellate Procedure which allows a trial court to reopen a judgment and supplement its findings and holdings under these circumstances or allow us to consider same. Therefore, the general rule applies. The trial court was without jurisdiction to reopen and amend the judgment after it was appealed.

¶ 16. The final judgment, which Knight appeals, denied his petition on its merits. We now consider the merits of Knight's appeal.

II. Was Knight's guilty plea knowing and voluntary?

¶ 17. Knight claims that he never waived his rights in a face-to-face exchange with the trial court. He further claims the trial court never discussed the elements of sexual battery. The trial court held this issue was meritless, because Knight asserted under oath, in his petition to enter a plea and in open court, that he was pleading guilty freely and voluntarily.

A. Did Knight know which rights he was waiving?

¶ 18. A plea of guilty is binding only if it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). A plea is voluntary and intelligent when the defendant is informed of the charges against him and the consequences of his plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). A defendant must be told that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self incrimination. URCCC 8.04.

It is not enough to ask an accused whether counsel has explained his constitutional rights. Nor is a standardized petition . . . sufficient standing alone. The court must go further and determine in a...