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Sturkey v. State

Court of Appeals of Mississippi

November 25, 2014

RICKEY STURKEY A/K/A RICHARD STURKEY A/K/A RICKEY LEE STURKEY, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

DATE OF JUDGMENT: 11/05/2013.

COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. VERNON R. COTTEN.

RICKEY STURKEY, APPELLANT, Pro se.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: STEPHANIE BRELAND WOOD.

BEFORE LEE, C.J., ROBERTS AND CARLTON, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

OPINION

Page 871

ROBERTS, J.

[¶1] Rickey Sturkey appeals the Scott County Circuit Court's decision to summarily deny his motion for post-conviction relief (PCR). According to Sturkey, the circuit court erred because it did not conduct an evidentiary hearing on his PCR motion after the Mississippi Supreme Court granted Sturkey leave to proceed with his ineffective-assistance-of-counsel claim. Finding no error, we affirm.

Page 872

FACTS AND PROCEDURAL HISTORY

[¶2] Following an introduction by a confidential informant, Sturkey sold four " eight balls of crack cocaine" to an agent with the Mississippi Bureau of Narcotics (MBN). The MBN agent was wearing a microphone during the transaction. Additional law enforcement officers were nearby in a surveillance van. Sturkey went to trial during October 2003. The MBN agent identified Sturkey as the man who sold him crack cocaine. One of the law enforcement officers in the surveillance van testified that he was familiar with Sturkey's voice. He identified Sturkey's voice while listening to the transmission from the MBN agent's microphone. The prosecution did not elicit any testimony regarding the precise time that the drug transaction occurred on April 18, 2001.

[¶3] Sturkey testified in his own defense. Relying on an alibi defense, Sturkey claimed that he had taken his car to a shop for repairs, and he and the mechanic had gone fishing afterward. Sturkey's wife testified that there had been no drug transaction at her and Sturkey's mobile home on the date alleged by the prosecution, because no men had visited their home that date. Ultimately, the jury found Sturkey guilty of selling cocaine. The circuit court found that he qualified for enhanced sentencing as a repeat drug offender and a habitual offender as contemplated by Mississippi Code Annotated section 99-19-81 (Supp. 2014), because he had two prior convictions for selling cocaine. Consequently, the circuit court sentenced Sturkey to sixty years in the custody of the Mississippi Department of Corrections. Represented by a different attorney, Sturkey filed a direct appeal. Sturkey v. State, 946 So.2d 790, 791 (¶ 1) (Miss. Ct.App. 2006). Sturkey raised three issues on direct appeal. According to Sturkey, the circuit court erred when it: (1) deprived him of his right to be represented by his attorney of choice; (2) sustained the prosecution's hearsay objection regarding a purported statement by the confidential informant, who did not testify at trial; and (3) overruled his trial attorney's objection during the prosecution's closing argument. Id. Sturkey's appellate attorney did not claim that Sturkey's trial attorney was ineffective. This Court found no merit to Sturkey's claims on direct appeal. Id. at 795 (¶ 17). The Mississippi Supreme Court denied Sturkey's petition for a writ of certiorari, and the mandate issued on February 1, 2007.

[¶4] The record reflects that Sturkey unsuccessfully sought the supreme court's leave to file a PCR motion at least three times. He filed his first unsuccessful request during September 2008. A different attorney submitted a proposed PCR motion on Sturkey's behalf and claimed: (1) the circuit court deprived Sturkey of his right to be represented by his attorney of choice; [1] and (2) Sturkey's sentence was illegal. Nearly simultaneously, Sturkey filed a pro se proposed PCR motion. Sturkey repeated his claims that he was denied his counsel of choice and that his sentence was illegal. Additionally, he claimed the indictment was defective, and there was insufficient evidence that he was guilty of selling cocaine. Sturkey also argued

Page 873

that his trial attorney was ineffective because she did not object to " the State's failure to produce the confidential informant as a witness." Most significant to the PCR motion that is presently before us, neither of Sturkey's proposed PCR motions included a claim that Sturkey's trial attorney was ineffective because she did not call two potential alibi witnesses. In October ...


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