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Davis v. State

Court of Appeals of Mississippi

January 27, 2015

HENCE DAVID DAVIS A/K/A HENCE DAVIS A/K/A " SHAWN" A/K/A " SHEAN" A/K/A " SEAN", APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

Page 538

COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 02/13/2014. TRIAL JUDGE: HON. LESTER F. WILLIAMSON JR. TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POST-CONVICTION RELIEF.

AFFIRMED.

FOR APPELLANT: HENCE DAVID DAVIS (PRO SE).

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE.

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

OPINION

Page 539

CARLTON, J.

[¶1] Hence David Davis appeals the Lauderdale County Circuit Court's summary denial and dismissal of his motion for post-conviction relief (PCR), arguing that his indictment is defective and that his sentence is illegal. Finding no error, we affirm the trial court's dismissal.

FACTS

[¶2] On August 5, 2011, a Lauderdale County grand jury indicted Davis for sale of cocaine, in violation of Mississippi Code Annotated section 41-29-139 (Supp. 2014). Davis was further indicted as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Supp. 2014), and also as a subsequent offender under Mississippi Code Annotated section 41-29-147 (Rev. 2013).

[¶3] On November 15, 2011, Davis pled guilty to the sale of cocaine as a second offender. The trial court sentenced Davis to serve forty years in the custody of the Mississippi Department of Corrections and ordered him to pay a $5,000 fine, as well as court costs and laboratory fees. The record reflects that the trial court did not sentence Davis as a habitual offender. Rather, the State agreed to dismiss the charges in two other indictments and not prosecute other possible drug charges in Lauderdale County; as a result, the trial court dropped the habitual charge.

[¶4] On June 28, 2013, Davis simultaneously filed two motions for reconsideration of his sentence, which the trial court treated as a PCR motion. On July 22, 2013, Davis filed a third motion for reconsideration, and four days later, on July 26, 2013, he filed a PCR motion, arguing that his second-offender enhancement was illegal due to entrapment, that his indictment was improper, and that he received ineffective assistance of counsel. On September 26, 2013, Davis filed a second PCR motion. The trial court, after finding that all five pleadings were filed very close in time and contained nearly identical arguments, stated that it would consider Davis's claims together as one request for post-conviction relief.

[¶5] The trial court found that Davis freely and voluntarily entered his guilty plea. The trial court stated that Davis's plea petition indicated that Davis desired to plead guilty to the charge of " sale of cocaine--enhanced--not habitual," and that Davis acknowledged and accepted the district attorney's recommendation of forty years. The trial court further held that the transcript from the plea hearing revealed that the court informed Davis of the possible punishment he was facing. The transcript also shows that Davis affirmed that ...


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