Simoneaux v. State

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Citation	29 So.3d 26
Decision Date	21 July 2009
Docket Number	No. 2007-CA-01983-COA.,2007-CA-01983-COA.
Court	Court of Appeals of Mississippi
Parties	Richard A. SIMONEAUX, Appellant v. STATE of Mississippi, Appellee.

29 So.3d 26

Richard A. SIMONEAUX, Appellant v. STATE of Mississippi, Appellee.

No. 2007-CA-01983-COA.

Court of Appeals of Mississippi.

July 21, 2009.

Rehearing Denied December 8, 2009.

Certiorari Denied March 4, 2010.

Margaret P. Ellis, Jackson, Daniel Wesley Kitchens, Matthew Warren Kitchens, Attorneys for Appellant.

Office of the Attorney General by W. Glenn Watts, Attorney for Appellee.

EN BANC.

MAXWELL, J., for the Court.

¶ 1. Richard A. Simoneaux pled guilty to the sexual abuse of a seventy-six-year-old vulnerable adult who lived in a nursing home. He also entered guilty pleas to one count of sexual battery, two burglary-related counts, and two counts of voyeurism, which stemmed from him peeping into nursing homes and spying upon the residents.

¶ 2. Rather than proceed to trial, Simoneaux chose to enter guilty pleas to each count in what appears to be a package deal, complete with sentencing recommendations from the State. When questioned by the trial judge, Simoneaux offered unwavering admissions of guilt, and the trial judge accepted his guilty pleas.

¶ 3. Simoneaux also admitted to the court that he has had problems for a long time and pleaded for the court to help him with these problems. The trial judge sentenced Simoneaux in line with the State and Simoneaux's agreed upon recommendation to a sentence of twenty-five years' imprisonment, on the six counts of conviction with each count to run concurrently with the others.1 Also, pursuant to the State's recommendation, the trial court ordered that Simoneaux be banned from Mississippi upon his release from the Mississippi Department of Corrections. Thereafter, assisted by different counsel, Simoneaux sought post-conviction relief, which the trial court denied.

¶ 4. Aggrieved, Simoneaux appeals, asserting essentially five issues: (1) his guilty pleas were involuntary because of insufficient factual bases and because the elements of each offense were not explained to him; (2) his counsel was constitutionally ineffective; (3) his convictions for both sexual abuse of a vulnerable adult and sexual battery violate double jeopardy; (4) the trial court's order banishing him from Mississippi is unconstitutional and illegal as applied; and (5) he is being denied his right to receive credit against his sentence for time spent incarcerated.

¶ 5. We affirm the trial court's denial of Simoneaux's petition for post-conviction relief on issues one, two, and three, and modify the trial court's denial of the post-conviction motion as to the banishment provision complained of in his fourth assignment of error; accordingly, we order the banishment provision stricken from his sentence. We also agree that he should be given credit for time served, as requested, but instruct Simoneaux to voice his requests to the proper authorities within the MDOC administrative system. We will address each assignment of error in turn.

STANDARD OF REVIEW

¶ 6. "[T]his Court reviews a denial of post-conviction relief under an abuse of discretion standard." Brown v. State, 872 So.2d 96, 98(¶ 8) (Miss.Ct.App.2004). We will not overturn a lower court's denial of post-conviction relief unless its factual findings are clearly erroneous. McClinton v. State, 799 So.2d 123, 126(¶ 4) (Miss.Ct. App.2001). However, if questions of law are raised on appeal, our standard of review is de novo. Id.

I. Whether Simoneaux's Guilty Pleas Were Voluntary

A. Factual Basis

¶ 7. It is undisputed that neither Simoneaux nor the State laid out all of the specific, detailed facts of the underlying charges when he pled guilty. However, the failure to do so does not in and of itself render a guilty plea involuntary, nor does it cause a factual showing to fail merely because the details that may be brought forth at trial are not fleshed out. Corley v. State, 585 So.2d 765, 767-68 (Miss.1991). Furthermore, our appellate courts are not limited to a mere review of the plea transcript. Instead, we are directed to review the entire record to determine if a factual basis exists. Boddie v. State, 875 So.2d 180, 183 (¶ 8) (Miss.2004).

1. The First Indictment

¶ 8. Count One of the indictment in Cause No. 04-212 charged Simoneaux with sexual battery. Mississippi Code Annotated section 97-3-95 (Rev.2006) makes clear that a person is guilty of sexual battery if: (1) he engages in sexual penetration with another person, (2) without her consent. We find that both elements are present in Count One. The count is also heavily fact laden. It charges, in pertinent part, that Simoneaux "did wil[l]fully, unlawfully and feloniously engage in sexual penetration against the will and without the consent of [F.S.2], a female person. ..." The indictment also describes the manner in which Simoneaux committed the sexual battery, that is, by "willfully, unlawfully and feloniously inserting his penis into the vagina" of F.S.

¶ 9. Count Two charges sexual abuse of a vulnerable adult. Mississippi Code Annotated section 43-47-19(3) (Rev.2004) instructs that "[a]ny person who willfully inflicts physical pain or injury upon a vulnerable adult, shall be guilty of felonious abuse or battery. ..." This count is also sufficiently specific and all elements are addressed. The charging language provides that Simoneaux, "did wil[l]fully, unlawfully and feloniously inflict physical pain upon [F.S.], a female born, January 26, 1928, a vulnerable adult." The manner in which Simoneaux caused physical pain to F.S., was also clearly stated. According to the indictment, he "pull[ed] her legs apart and insert[ed] his penis into [her] vagina. ..."

¶ 10. The burglary alleged in Count Three charged Simoneaux with breaking and entering into a dwelling occupied by F.S., a resident of McComb Extended Care. The method of breaking was described in detail and so was the underlying felony. Simoneaux was accused of "wil[l]fully, unlawfully, feloniously, forcibly and burglariously forcing an outer window" of McComb Extended Care, with the intent to sexually abuse and sexually penetrate F.S. There are two elements in a burglary case: (1) the burglarious breaking and entering a dwelling, and (2) the felonious attempt to commit some crime therein. Tran v. State, 962 So.2d 1237, 1242(¶ 19) (Miss.2007). Both elements are clearly pled, and the count is sufficiently specific.

¶ 11. Simoneaux received a copy of this indictment. He was also verbally advised of the specific charges and facts giving rise to the offenses. The indictment was read to him verbatim during his arraignment and is certainly part of the record in this matter. All three counts were without question sufficiently specific enough for the trial court to determine that Simoneaux's conduct was indeed criminal. The first two counts set forth graphic details of the sexual abuse of a vulnerable adult and the sexual battery charge. The remaining burglary count is also sufficiently comprehensive.

2. The Second Indictment

¶ 12. A second indictment was returned in Cause No. 04-211. Simoneaux was charged in Count One with attempted burglary of a dwelling. More specifically, Count One accused Simoneaux of attempting to break into the Camellia Estates building in McComb, which was occupied and used by D.E. Count One also set forth Simoneaux's attempt to enter through a door to Room E-1A, which was occupied by D.E., with the intent to assault D.E., but his attempt failed. Again, the allegations are fact specific, and all elements are present.

¶ 13. As to Count Two, Simoneaux was charged with voyeurism, in violation of Mississippi Code Annotated section 97-29-61 (Rev.2006). This section makes clear that "[a]ny person who enters upon real property whether the original entry is legal or not, and thereafter pries or peeps through a window ... for the lewd, licentious and indecent purpose of spying upon the occupants thereof, shall be guilty of" voyeurism. Count two alleges that Simoneaux "wil[l]fully, unlawfully and feloniously" entered upon the property of Camellia Estates and once there, peeped through a window of D.E.'s residence for the lewd, licentious, and indecent purpose of spying on her. Again, the facts are specifically pled and each element of the statute is addressed.

¶ 14. Count Three charged Simoneaux with a separate act of voyeurism. This time Simoneaux was charged with entering a different property, McComb Nursing and Rehab, and thereafter peeping through a window of the room of A.A. and M.B. for the lewd, licentious, and indecent purpose of spying on them. Once more, the count is fact specific and all elements are present.

¶ 15. Simoneaux waived arraignment on the second indictment, but admitted in the signed waiver that he had been served a copy of the indictment. He then decided to forgo trial and plead guilty to each of the six charges.

¶ 16. At his plea hearing, Simoneaux was placed under oath. The trial court identified the specific charges against him, and Simoneaux verified that he wanted to withdraw his not-guilty pleas and to plead guilty to each of the offenses:

The Court: Your attorney has announced that you wish to withdraw the not-guilty pleas made earlier to sexual battery, sexual abuse of a vulnerable adult, burglary, attempted burglary, and voyeurism — two counts of that — and plead guilty at this time. Is that your desire?