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Palmer v. State

Court of Appeals of Mississippi

June 3, 2014

RICHARD PALMER A/K/A RICHARD DONALD PALMER, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

Page 449

[Copyrighted Material Omitted]

Page 450

COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 02/22/2013. TRIAL JUDGE: HON. KATHY KING JACKSON. TRIAL COURT MOTION FOR POST-CONVICTION RELIEF DENIED.

FOR APPELLANT: RICHARD PALMER (Pro se).

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LISA L. BLOUNT.

BEFORE IRVING, P.J., ROBERTS AND FAIR, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

OPINION

Page 451

NATURE OF THE CASE: CIVIL -- POST-CONVICTION RELIEF

ROBERTS, J.

¶1. During February 2012, Richard Palmer went before the Jackson County Circuit Court and pled guilty to twelve counts of an eighteen-count indictment. Specifically, Palmer pled guilty to three counts of touching a child for lustful purposes, four counts of sexual battery of a child, and five counts of exploitation of a child. In exchange for his guilty plea, the prosecution dismissed the remaining six counts of sexual battery that Palmer faced. The circuit court sentenced Palmer to concurrent sentences that, when taken collectively, operate as thirty years in the custody of the Mississippi Department of Corrections (MDOC), with eighteen years to serve followed by twelve years of post-release supervision.

¶2. Eight months after Palmer's guilty-plea hearing, he filed a motion for post-conviction relief (PCR). Palmer claimed that he was deprived of his right to a speedy trial; he received ineffective assistance of counsel; there was no factual basis for his guilty pleas; and the sexual-battery charges were fatally defective because they did not allege that the victim did not consent to sexual penetration. The circuit court denied Palmer's PCR motion. Palmer appeals.

STANDARD OF REVIEW

¶3. We will not disturb the circuit court's denial of a PCR motion unless the circuit court's factual findings are clearly erroneous. Smith v. State, 29 So.3d 126, 128 (¶ 8) (Miss. Ct. App. 2010).

Page 452

However, we review questions of law de novo. Id.

ANALYSIS

I. INDICTMENT

¶4. Palmer claims that all of the sexual-battery charges in the indictment were fatally defective because they did not allege that the victim did not consent to sexual penetration. Palmer's claim is based on a misunderstanding of the nature of the charges that he faced.

¶5. Palmer is correct that under certain circumstances, to convict an accused of sexual battery, it is necessary to prove that the victim did not consent to sexual penetration. Mississippi Code Annotated section 97-3-95(1)(a) (Rev. 2006) provides that " [a] person is guilty of sexual battery if he or she engages in sexual penetration with . . . [a]nother person without [the other person's] consent." But Palmer was not charged with sexual battery under section 97-3-95(1)(a). Palmer was charged with ten counts of sexual battery under Mississippi Code Annotated section 97-3-95(1)(c) (Rev. 2006).

¶6. Section 97-3-95(1)(c) states that " [a] person is guilty of sexual battery if he or she engages in sexual penetration with . . . [a] child at least fourteen . . . but under sixteen . . . years of age, if the person is thirty-six . . . or more months older than the child[.]" Section 97-3-95(1)(c) does not require that the sexual penetration occur without the child's consent. Accordingly, an indictment that alleges sexual battery under section 97-3-95(1)(c) is not required to claim that the sexual penetration occurred without the victim's consent. See Bryant v. State, 879 So.2d 530, 531 (¶ 4) (Miss. Ct. ...


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