E-Filed Document

Jan 8 2015 09:17:38

2014-CP-00061-COA

Pages: 13

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

JOSEPH BOLDEN

APPELLANT

VS.

NO. 2014-CP-00061

STATE OF MISSISSIPPI

APPELLEE

BRIEF FOR THE APPELLEE

APPELLEE DOES NOT REQUEST ORAL ARGUMENT

JIM HOOD, ATTORNEY GENERAL

BY:

JOHN R. HENRY ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 2349

OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680

TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.

THAT THE APPELLANT’S MOTION IN POST-CONVICTION RELIEF WAS BARRED BY THE STATUTE OF LIMITATIONS AND SUCCESSIVE WRIT BAR; THAT THE INSTANT APPEAL WAS NOT TIMELY FILED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2.

THAT THE CIRCUIT COURT DID NOT ERR IN DENYING RELIEF ON THE APPELLANT’S MOTION IN POST- CONVICTION RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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TABLE OF AUTHORITIES State Cases Brown v. State, 731 So.2nd 595 (Miss. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Cook v. State, 990 So.2nd 788 (Miss. Ct. App. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Harris v. State, 819 So.2nd 1286 (Miss. Ct. App. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Ivy v. State, 31 So.3rd 643 (Miss. Ct. App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8 Joiner v. State, 61 So.3rd 156 (Miss. Ct. App. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Jones v. State, 146 So.3rd 1006 (Miss. Ct. App. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Magee v. State, 752 So. 2nd 1100 (Miss. Ct. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Moore v. State, 676 So.2d 244 (Miss. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Pierce v. State, 115 So.3rd 869 (Miss. Ct. App. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Smith v. State, 806 So.2nd 1148 (Miss. Ct. App. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Weaver v. State, 497 So.2d 1089 (Miss. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 State Statutes Miss. Code Ann. Section 97-3-95. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Miss. Code Ann. Section 97-3-95(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Miss. Code Ann. Section 99-39-23(6) (Supp. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Miss. Code Ann. Section 99-39-5(2) (Supp. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 State Court Rules Rule 4 MRAP.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JOSEPH BOLDEN A/K/A JOSEPH A. BOLDEN

APPELLANT

vs

CAUSE No. 2014-CP-00061-COA

STATE OF MISSISSIPPI

APPELLEE

BRIEF ON BEHALF OF THE STATE OF MISSISSIPPI STATEMENT OF THE CASE This is an appeal against an order of the circuit court of Lw2ndes County, Mississippi in which relief was denied on the Appellant’s motion in post - conviction relief. STATEMENT OF FACTS By true bill filed on 5 February 1998, the Appellant was charged with having committed a sexual battery upon a female child under the age of fourteen years. (R., pg 4). On 12 May 1998, the Appellant filed a “Petition to Enter a Guilty Plea”. ( R. Pp. 5 - 12). In this petition, which was signed by the Appellant under oath, the Appellant swore that his decision to plead guilty was his alone and not induced by any kind of coercion or promises of lenity, acknowledged that he could elect trial and stated that he understood the various rights he would have if he elected trial. He further stated that he waived those rights. He further stated that he understood the minimum and maximum sentence for the felony he committed and that sentencing was a matter left to the discretion of the court. He further stated that his plea was an “open” plea. The Appellant stated that he was satisfied with the assistance rendered by his attorney.

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The Appellant stated that the factual basis for the plea was that [the appellant] licked the vagina of [victim’s name omitted], a child 12 years of age, and penetrated her with my tongue”. The Appellant brought his petition on for a hearing before the circuit court on 12 May 1998. In that hearing, the Appellant stated that he had signed the petition, and, in further response to questions from the court concerning specific constitutional rights stated that he understood that his guilty plea would waive those rights. The court explained to the Appellant what sentence could be imposed if the plea of guilt were to be accepted. The State then read the charge to the Appellant and the court, establishing the factual basis for the charge. The Appellant stated that he understood the charge against and stated that he was in fact guilty of what was charged against him. The court then went on to find that the Appellant was competent to understand the charge against and that the plea of guilty was freely and voluntarily given, and thus accepted the plea of guilty. ( R. , 16 - 23). A sentencing hearing was held on 15 May 1998. The victim was called to testify. She stated that she was twelve years of age and wanted the Appellant to be sentenced to life imprisonment. The victim’s mother was then called, and she testified to the effects the felony committed against her daughter caused her daughter. The victim’s sister testified to an act of fondling committed by the Appellant against her person. The Appellant produced character witnesses on his behalf, who testified that the Appellant was a good worker. The Appellant testified. He denied having had sexual relations with the victim, but admitted that he had done a terrible thing and that he was sorry. He admitted that he had violated the child. He admitted that he had “dropped an atomic bomb” in the child’s life, but felt that he had had one dropped in his. The Appellant went on to call a sister and a preacher to give character evidence for him. The court went on to consider written statements 2

and a pre-sentence report. In allocution, the Appellant begged for mercy and stated that he was truly sorry for what he had done. The court imposed a sentence of twenty five years imprisonment. ( R. pp. 24 -47; 15). On 1 October 2015, the Appellant filed a motion in post-conviction relief, asserting a number of grounds. Those grounds were: (1) that the circuit court failed to advise the Appellant of the right to appeal the sentence imposed; (2) that the Appellant never admitted all the elements of the felony he committed; (3) that there were issues concerning the competency of the Appellant that had been raised but that the circuit court had violated Rule 9.06 URCCC; (4) that the Appellant’s attorney was ineffective; (5) that the State failed to prove the age of the victim; (6) that the guilty plea was involuntary because the circuit court did not comply with Rule 9.06; and (7) that the indictment was defective because no statute number was cited in it. ( R., pp. 49 76). Relief was denied on this motion, without an evidentiary hearing, by order filed 5 December 2013. The circuit court found that the statute of limitations had expired and that there were no exceptions to the statute applicable to the Appellant’s motion. ( R, pg. 80). The Appellant filed his notice of appeal on 10 January 2014. ( R, pg. 81). STATEMENT OF ISSUES DID THE CIRCUIT COURT ERR IN DENYING RELIEF ON THE APPELLANT’S MOTION IN POST - CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING? SUMMARY OF ARGUMENT The circuit court did not err in denying relief on the Appellant’s motion without an evidentiary hearing. The Appellant’s motion was barred by the statute of limitations and barred 3

by the successive writ bar. His appeal was not filed in a timely manner. In any event, none of the grounds asserted have merit. ARGUMENT 1. THAT THE APPELLANT’S MOTION IN POST-CONVICTION RELIEF WAS BARRED BY THE STATUTE OF LIMITATIONS AND SUCCESSIVE WRIT BAR; THAT THE INSTANT APPEAL WAS NOT TIMELY FILED The Appellant was sentenced for the felony he attacks in the present motion in postconviction relief in May of 1998, as we have said above. It appears that in January of 2000 the Appellant filed a motion in post-conviction relief in the circuit court. There was a hearing on that motion, apparently, yet in the end relief was denied on the motion. An appeal was taken from that denial, but the appeal was dismissed for failure to pay costs. ( R, pg. 1). Bolden v. State, 2000-TS-01850. The Appellant filed another motion in post - conviction relief in the circuit court in February of 2004. Relief was denied on that motion as well. ( R. Pg. 1). In any event, the Appellant admits that the motion involved in this appeal is successive, but, without further elaboration, makes a generic claim to the effect that his claims are based upon “fundamental “plain error”. ( R., pg. 73) The motion in post - conviction relief embraced by the instant appeal is the Appellant’s third motion. It was barred in the circuit court by Miss. Code Ann. Section 99-39-23(6) (Supp. 2013). Likewise, because the instant motion, filed in 2013, was filed beyond the three year period in which to file a motion in post - conviction relief, Miss. Code Ann. Section 99-39-5(2) (Supp. 2013), it was barred for that reason as well. The Appellant has asserted no exception to the operation of these statutes. The claims raised here each and all could have been and may well have been raised in the Appellant’s previous post-conviction relief filings. The claims thus should be regarded as barred 4

either because the could have been or were raised previously. In addition to these considerations, we point out that the notice of appeal was filed more than thirty days after the entry of the order denying relief on the motion. The Appellant has not trouble himself to explain why he failed to comply with Rule 4 MRAP. The appeal is untimely.

2. THAT THE CIRCUIT COURT DID NOT ERR IN DENYING RELIEF ON THE APPELLANT’S MOTION IN POST- CONVICTION RELIEF A circuit court’s decision to deny relief on a motion in post - conviction relief will not be disturbed absent a finding by this Court that the circuit court was clearly in error. Questions of law, however, are reviewed de novo. Smith v. State, 806 So.2nd 1148, 1150 (Miss. Ct. App. 2002); Brown v. State, 731 So.2nd 595, 598 (Miss. 1999). The first issue the Appellant presents is a claim that the circuit court did not advise him of the then-existing right to appeal a sentence arising from a plea of guilty. There was no obligation laid upon the circuit court to do so. Cook v. State, 990 So.2nd 788, 793 (Miss. Ct. App. 2008). The next claim is that the Appellant was convicted of sexual battery without having admitted having committed the elements of the felony. But this is untrue. During the plea colloquy, the prosecution read the charge against the Appellant, and the Appellant admitted having “unlawfully, willfully and feloniously” engaged in sexual penetration of the victim. ( R, pp. 19 - 20). This language was sufficient to allege a knowing and intentional act. Moore v. State, 676 So.2d 244, 246 (Miss. 1996). The reading of the charge, moreover, was sufficient to establish a factual basis for the plea., given the charge was factually specific as to exactly what the Appellant was accused of having done. Jones v. State, 146 So.3rd 1006, 1009 (Miss. Ct. App. 2014). Elsewhere, the Appellant claims that the indictment was defective because it did not

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cite the statute upon which the charge was based. The lack of the citation did not make the indictment fatally defective, and the plea of guilty waived any defect in the regard. Ivy v. State, 31 So.3rd 643, 645 (Miss. Ct. App. 2009). The Appellant then claims that there was “plain error”in that the circuit court did not conduct a competency hearing prior to accepting the plea of guilty. There is nothing in the record to show that proceedings under Rule 9.06 were instituted or were necessary. The only thing presented to this Court is the Appellant’s claim that the circuit should have known that competency should have been enquired into. No reason is offered here by the Appellant as to why the circuit court of the Appellant’s attorney should have reasonably thought that the Appellant’s competency might be an issue. There are no reports, there is nothing in the record to show that a competency examination was ordered, nothing to show that Rule 9.06 was invoked, and there is no record of an issue having been made of the Appellant’s competency at the time he entered his plea. The Appellant’s mere say-so that a competency hearing should have been held is wholly insufficient here. On the other hand, there is the petition to enter the plea and the plea colloquy. Nothing there gives the slightest hint that the Appellant was unable to know and understand the charge against him, the rights he was waiving by pleading guilty, or an inability to communicate with his attorney. In fact, there is nothing whatever in the record to even suggest that there was some reasonable question about the Appellant’s competence. The Appellant’s attorney stated that the Appellant gave no indication to him that the Appellant had difficulty in understanding his rights and the elements of the charge. ( R. Pg. 21). The circuit court addressed the Appellant, heard the Appellant’s answers and observed the Appellant’s demeanor in the course of determining the voluntariness of the Appellant’s plea. 6

In the end it found that the Appellant was competent to understand the charges against him and the nature and consequences of his plea of guilty. ( R., pg. 21). All that was necessary to demonstrate, with respect to competency, had the issue even arisen, was that the Appellant had a rational understanding of the charges against him and the ability to assist his counsel. Magee v. State, 752 So. 2nd 1100, 1102 (Miss. Ct. App. 1999). From what is before the Court in the record, it is quite clear that the Appellant did have that capacity, and there is nothing to even suggest otherwise. The Appellant says that his attorney was ineffective for having failed to raise the issues he raises here. However, inasmuch as there is no merit to the Appellant’s claims, the attorney cannot be said to have been ineffective for not having raised them. The Appellant also state in open court and in the petition to enter a plea that he was satisfied with his attorney’s representation. The Appellant then says that the State failed to prove the age of the victim. However, the Appellant waived the burden laid upon the State to prove the elements of the felony by his plea of guilty. Joiner v. State, 61 So.3rd 156, 158 (Miss. Ct. App. 2011). Furthermore, the Appellant admitted his guilt for having battered a child under the age of fourteen years. This was sufficient. The victim’s exact age was not important, only that she was under the age of fourteen. The Appellant then asserts that his plea was coerced. Yet, during the plea colloquy the Appellant denied having been coerced. ( R., pg. 21). He also denied same in his sworn petition to enter a plea of guilty. ( R. Pg. 8). Great weight is given to solemn declaration made in open court and under oath. Pierce v. State, 115 So.3rd 869 (Miss. Ct. App. 2013). The Appellant here does not even attempt to explain he was supposedly coerced. There is simply nothing presented to contradict the Appellant’s representations to the contrary made in the circuit court. The 7

petition to enter a plea of guilty and the plea colloquy show very clearly that the plea was voluntary and informed. The Appellant then claims that the indictment was fatally defective because it did not cite the statute upon which it was based. The failure to cite the statute that defines the crime charged in the indictment is not a fatal defect. Harris v. State, 819 So.2nd 1286, 1289 (Miss. Ct. App. 2002)(citing Weaver v. State, 497 So.2d 1089 (Miss. 1986). In any event, the Appellant’s plea of guilty waived any objection as to a lack of a citation. Ivy v. State, 31 So.3rd 643, 644-645 (Miss. Ct. App. 2009). The indictment fully and correctly set out the elements of sexual battery under Miss. Code Ann. Section 97-3-95 as that offense was defined when the Appellant committed it. Miss. Code Ann. Section 97-3-95(1)( c ) (Supp. 1997)(“A person is guilty of sexual battery if he engages in sexual penetration of. . . ( c ) a child under the age of fourteen”. The age of the perpetrator in this form of the offense was not at the time an element of the offense. Finally, it appears that the Appellant means to assert that the State failed to prove that he is an habitual offender. However, we do not find that the Appellant was sentenced as such. ( R. Pg. 47; 78).

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CONCLUSION The order of the circuit court denying relief on the Appellant’s motion in post-conviction relief should be affirmed. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL

BY:

s/ John R. Henry JOHN R. HENRY ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 2349

OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680

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CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-MEC participants: Honorable Lee J. Howard Circuit Court Judge Post Office Box 1679 Starkville, Mississippi 39760 Honorable Forrest Allgood District Attorney Post Office Box 1044 Columbus, Mississippi 39703 Joseph Bolden, #R4884 K.N.R.C.F., Zone F 374 Stennis Industrial Park Road DeKalb, Mississippi 39328

This the 8th day of January, 2015.

s/ John R. Henry JOHN R. HENRY ASSISTANT ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI 39205-0220 TELEPHONE: (601) 359-3680

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