PAUL R. FERRELL A/K/A PAUL RAY FERRELL A/K/A PAUL FERRELL A/K/A PAUL FERRELL, JR. A/K/A PAUL RAY FERRELL, JR., APPELLANT
STATE OF MISSISSIPPI, APPELLEE
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COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 10/09/2013. TRIAL JUDGE: HON. JOHN HUEY EMFINGER. TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF DISMISSED.
PAUL R. FERRELL, APPELLANT, Pro se.
FOR APPELLEE: JOHN R. HENRY JR., OFFICE OF THE ATTORNEY GENERAL.
BEFORE LEE, C.J., ISHEE AND FAIR, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, MAXWELL AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY BARNES, J.
¶1. Paul Ferrell pled guilty to possession of methamphetamine as a second controlled substances offense, possession of precursors in the presence of a minor, and interstate removal of a child under fourteen. He received concurrent sentences pursuant to a plea agreement, the longest of which was thirty years in the custody of the Mississippi Department of Corrections, with eighteen to serve followed by five on post-release supervision. Ferrell filed a timely motion for post-conviction relief making various challenges to his convictions, which the circuit court dismissed without an evidentiary hearing.
¶2. We affirm the summary dismissal on every issue but one: whether Ferrell's guilty plea was involuntary because he was affirmatively misinformed that he would be eligible for parole on the two enhanced counts. We reverse and remand for an evidentiary hearing limited to that single issue.
STANDARD OF REVIEW
¶3. The circuit court may summarily dismiss a PCR motion without an evidentiary hearing " [i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief." Miss. Code Ann. § 99-39-11(2) (Supp. 2014). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss. 1999).
¶4. When reviewing the denial of a PCR motion, an appellate court " will not disturb the trial court's factual findings unless they are found to be clearly erroneous." Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss. 2008). Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Young, 731 So.2d at 1122 (¶ 9).
¶5. Ferrell enumerates four issues in his brief on appeal, but his identification of the issues does not always match the arguments he presents. Mississippi Rule of Appellate Procedure 28(a)(3) requires that " [e]ach issue presented for review shall be separately numbered in the statement [of the issues]," but we are mindful that courts " are obligated to construe pro se pleadings with some reasonable degree of liberality," so we shall do our best to address all of Ferrell's contentions even if they are not distinctly briefed. See Hall v. State, 800 So.2d 1202, 1206 (¶ 14) (Miss.Ct.App. 2001).
1. Interstate Removal Indictment
¶6. Ferrell's first contention is that he is " falsely imprisoned" because the indictment for interstate removal of a child under fourteen is defective. Specifically, Ferrell alleges that the indictment is " duplicitous" because it references both the kidnapping statute (Miss. Code Ann. § 97-3-53 (Rev. 2014)) and the interstate removal statute (§ 97-3-51 (Rev. 2014)). The charge is clearly for interstate removal, of which all the elements are alleged, but it includes at least some of the elements of kidnapping, such as that the removal was against the will of the child. Ferrell ultimately pled guilty to interstate removal.
¶7. This argument fails because a valid guilty plea waives all technical and nonjurisdictional defects in an indictment
except failure to charge an essential element of the crime and lack of subject-matter jurisdiction. See Joiner v. State, 61 So.3d 156, 158-59 (¶ 7) (Miss. 2011) (citing Conerly v. State, 607 So.2d 1153, 1156 (Miss. 1992)). Moreover, it has been specifically held that " objections to indictments on the grounds that they are duplicitous must be raised before the return of the verdict." Medina v. State, 688 So.2d 727, 731 (Miss. 1996).
2. Kidnapping " Recantation"
¶8. Ferrell next contends that he is innocent of the " kidnapping" charge. He presents an affidavit from the child, his daughter, stating that her removal from the state by Ferrell was not against her will and that she had in fact asked him to do it.
¶9. Ferrell pled guilty and was sentenced under the interstate removal statute, under which it is not required to be proven that the removal was against the will of the child. See Miss. Code Ann. § 97-3-51. Moreover, when Ferrell admitted his guilt and pled guilty, he waived his right to present a defense. This claim of innocence is procedurally barred. Shields v. State, 75 So.3d 86, 89 (¶ 8) (Miss.Ct.App. 2011).
¶10. Notwithstanding the procedural bar, Ferrell misapprehends the nature of consent in the kidnapping of a child. Even if we assume that the State had to prove Ferrell took the minor " against her will," as alleged in the indictment, it would be the will of the legal guardian and not the whim of the child that controls. See 51 C.J.S. Kidnapping § 19 (2010). We further note that, before his guilty plea was accepted, Ferrell admitted under oath that he was guilty of the offense as charged.
3. Interstate Removal Indictment -- Specificity
¶11. Ferrell argues that the indictment for interstate removal was defective because it failed to say which state the child had been removed to. Ferrell provides no authority for this specific proposition; instead, he cites to Bell v. State, 725 So.2d 836, 855-56 (¶ 61) (Miss. 1998), which addresses variances between the proof and the indictment.
¶12. Mississippi Code Annotated section 97-3-51(2) makes it a crime " for any noncustodial parent or relative with intent to violate a court order awarding custody of a child to another to remove the child from this state or to hold the child out of state after the entry of a court order." The statute does not require the State to prove that the child was removed to any specific state, just that she was removed from the State of ...