Patton v. State

• Decision Date: 28 March 2013
• Docket Number: No. 2011–KP–00106–SCT.,2011–KP–00106–SCT.
• Parties: Edgar Earl PATTON a/k/a Edgar Patton a/k/a M.E. Edgar Patten v. STATE of Mississippi.
• Court: Mississippi Supreme Court

109 So.3d 66

Edgar Earl PATTON a/k/a Edgar Patton a/k/a M.E. Edgar Patten

v.STATE of Mississippi.

No. 2011–KP–00106–SCT.

Supreme Court of Mississippi.

Dec. 13, 2012.

Rehearing Denied March 28, 2013.

Edgar Earl Patton, appellant, pro se.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before DICKINSON, P.J., LAMAR and KITCHENS, JJ.

LAMAR, Justice, for the Court:

¶ 1. In this criminal pro se appeal, we address several issues raised by Edgar Earl Patton, who was convicted of the crime of false pretense under Mississippi Code Section 97–19–39 (one count) and fraudulent use of identity under Mississippi Code Section 97–19–85 (four counts) in the Circuit Court of Winston County. Specifically, Patton argues the following assigned errors require reversal of his convictions: 1) the circuit court judge engaged in improper ex parte communications; 2) Patton was denied his Sixth–Amendment right to counsel at all critical phases; 3) the circuit court erred in denying Patton's motion to recuse Judge Vollor; 4) the circuit court erred by allowing a substantive amendment to the indictment; 5) Patton was denied the right to compulsory service of process; 6) Patton's Fourth–Amendment protection against unlawful search and seizure was violated; 7) the circuit court erred by violating Uniform Circuit and County Court Rule 1.11; ¹ 8) the circuit court judge's inquiry into Patton's educational background for purposes of determining his ability to represent himself was an improper discovery tool that benefitted the State and violated his Fifth–Amendment right against self-incrimination; 9) the circuit court erred by denying Patton's motion for directed verdict; 10) jurisdiction was improper and venue was not established; 11) the jury was improperly instructed; and 12) the indictment was legally insufficient and defective. Finding no reversible error, we affirm Patton's convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 4, 2009, Patton appeared in the Circuit Court of Winston County, acting as an attorney for Ashley Dixon, even though Patton is not and has never been licensed to practice law. Patton filed a motion for discovery while acting as Dixon's attorney on May 4, signing his name as M.E. (Edgar) Patten. ² Michael Rias also was arraigned in circuit court that day. Rias was in need of an attorney, saw Patton, and asked Patton if he was an attorney and how much Patton would charge to represent him. Patton represented to Rias, while they were still in the Circuit Court of Winston County, that he was an attorney and that he would charge $5,000 to take Rias's case. Rias then put Patton in touch with Rias's mother, Willie Mae Robinson, who was to pay Patton's bill. Thereafter, Patton called Robinson and informed her that he was the attorney her son wanted to represent him. Patton informed Robinson that he would charge a retainer of $3,000 and would require $400 up-front toward that amount. Patton also informed Robinson that he would charge $150 an hour in addition to his retainer. Patton faxed a contract to Robinson reciting those terms, which she signed and faxed back to him. Robinson also sent the $400 up-front payment to Patton via moneygram.

¶ 3. Patton then began acting as Rias's attorney. A few days later, Patton made an initial phone call to Mike Howie, an assistant district attorney in the Fifth Circuit Court District, informing Howie that Patton had been retained by Rias and inquiring as to whether Rias might be able to get a better plea deal. On May 18, 2009, Patton again appeared in the Circuit Court of Winston County acting as an attorney, this time on behalf of Rias. Howie and Patton discussed Rias's case, and Patton eventually informed Howie that his client would accept a plea bargain. Patton then prepared a petition to plead guilty on behalf of Rias, representing that Patton was Rias's attorney and additionally representing a specific Mississippi Bar Number as his.³

¶ 4. On October 8, 2009, Patton filed another motion on behalf of Dixon, again signing his name as M.E. (Edgar) Patten and again representing the same number as his. On November 16, 2009, Patton filed a motion to dismiss the case against Dixon for alleged tampering with the grand jury, again signing his name as M.E. (Edgar) Patten and giving the same bar number as his. After Patton filed his November 16, 2009, motion, Howie became suspicious and began looking into whether Patton actually was a member of the Mississippi Bar. Howie discovered that Patton was not a member of the Bar and that Patton had been using another attorney's name and a second attorney's bar number to file pleadings. Howie then contacted Randy Thomas, the Sheriff of Winston County, to inform him of the situation and ask him to determine Patton's actual identity.

¶ 5. Patton was indicted by the grand jury on one count of violating Mississippi Code Section 97–19–39 (obtaining valuable thing with intent to defraud),⁴ and four counts of violating Mississippi Code Section 97–19–85 (fraudulent use of identifying information to obtain a thing of value). ⁵ Specifically, Count I of the indictment charged that Patton fraudulently had obtained money in excess of $500 from Willie Robinson in Winston County on or about or between May 1, 2009, and May 18, 2009. Counts II through IV of the indictment charged that Patton fraudulently had used another's identifying information to obtain a thing of value in Winston County on or about May 4, May 18, October 8, and October 16, 2009.

¶ 6. Patton was declared indigent and was appointed a public defender. Austin Vollor initially was appointed to represent Patton, but Vollor represented him only at a preliminary hearing. Judge Joseph H. Loper and Judge Clarence E. Morgan III recused themselves from Patton's trial on the ground that they were potential witnesses in the prosecution of the case, as the charges against Patton stemmed from his appearances in court before Judge Loper and Judge Morgan. Judge Loper informed this Court of the recusals by letter, and also requested that we appoint a substitute judge in the matter. Judge Frank G. Vollor was appointed as special judge to preside over the proceedings.

¶ 7. On July 19, 2010, a status hearing was held before Judge Vollor. Patton indicated he wanted to represent himself, that he had received and understood the indictment, and he declined to enter a plea. An examination under Rule 8.05 of the Uniform Rules of Circuit and County Court Practice was scheduled to determine whether Patton could proceed pro se. As no court reporter was present at the status conference, all motions were scheduled to be heard at the next hearing. Judge Vollor also appointed Steve Wright as standby counsel for Patton.

¶ 8. On September 24, 2010, a pretrial hearing was held before Judge Vollor then District Attorney. Forrest Allgood appeared on behalf of the State, Patton appeared pro se, and Richard Carter appeared as Patton's new standby attorney.⁶ Carter remained present and available to Patton at all times during the September 24 hearing. At the beginning of the hearing, Judge Vollor examined Patton regarding his decision to proceed pro se in order to make a determination as to whether Patton knowingly and voluntarily had waived his right to counsel, in accordance with Rule 8.05. To make a Rule 8.05 determination, Judge Vollor asked Patton a series of questions concerning his education, whether he was seeing a mental-health professional, his current medicines, and whether he had been involved in a trial or watched the procedure of a trial. While Patton answered some of the circuit court's questions, he refused to answer several questions related to his education, stating that he wished to exercise his Fifth–Amendment right against self-incrimination. Judge Vollor ultimately found that Patton was competent to represent himself.

¶ 9. After the Rule 8.05 determination, the circuit court heard pretrial motions, beginning with Patton's motion to recuse Judge Vollor. Patton argued that Judge Vollor did not give Patton a fair and impartial hearing on July 19, 2010, and that Judge Vollor had knowledge of material factual information such that Patton anticipated calling Judge Vollor as a witness. Patton also argued that Judge Vollor had communications regarding the case with his nephew, Austin Vollor, and this Court. Judge Vollor clearly stated on the record that any communications he had regarding the case were for the purposes of determining whether he could take the case and did not go to the merits of the matter; therefore, the circuit court overruled Patton's motion to recuse.

¶ 10. Patton next moved to quash the indictment and to dismiss for want of “personal territory and subject matter jurisdiction.” Patton argued that the State had not established jurisdiction in this matter and had the burden to prove jurisdiction once challenged. When questioned, Patton stated that he was referring to “the juris—subject matter. Over the subject, over the person and the territory.” The circuit court found that it had subject-matter jurisdiction over criminal matters and further found that all the alleged acts had occurred in Winston County; therefore, Patton's motion to dismiss on subject-matter and territorial jurisdiction was denied. Relatedly, Patton also moved to quash the indictment, arguing that the circuit court was not allowed to look beyond the indictment for personal territory and subject-matter jurisdiction. The State argued that Patton could point to no infirmity in the indictment, as the indictment laid out the elements of the charges and included the information required. The circuit court overruled the motion to quash the indictment and set a trial date.

¶ 11. Prior to trial, a status conference was held regarding the subpoena list Patton had served on the clerk of court. Carter assisted Patton during this hearing. Patton requested subpoenas for approximately twenty ...