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Mitchell v. State

Court of Appeals of Mississippi

February 28, 2017

DONALD MITCHELL A/K/A DONALD K. MITCHELL A/K/A "BLACK", APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

          DATE OF JUDGMENT: 05/28/2015

         HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. WILLIAM A. GOWAN JR. TRIAL JUDGE

          ATTORNEY FOR APPELLANT: DONALD MITCHELL (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH

         EN BANC.

          WILSON, J.

         ¶1. Donald Mitchell pled guilty to possession of cocaine with intent to distribute and was sentenced to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with twenty years suspended and ten years to serve. Mitchell had been indicted as a violent habitual offender and thus faced a life sentence without the possibility of parole if found guilty at trial.

         ¶2. Mitchell subsequently filed a motion for post-conviction relief (PCR), claiming that he received ineffective assistance of counsel and that his plea was involuntary. Both claims are based on Mitchell's allegation that his attorneys coerced him into pleading guilty and abandoned a meritorious motion to suppress evidence. The circuit court summarily dismissed Mitchell's PCR motion. We affirm because Mitchell's motion to suppress lacked merit; therefore, his attorneys did not provide ineffective assistance by advising him to accept the State's plea offer, and his plea was not involuntary.

         FACTS AND PROCEDURAL HISTORY

         ¶3. Donald Mitchell was indicted as a violent habitual offender, Miss. Code Ann. § 99-19-83 (Rev. 2015), [1] for possession of cocaine with intent to distribute. His indictment resulted from a search of an apartment on West Capitol Street in Jackson. Detective Kevin Dear of the Jackson Police Department obtained a warrant for the search from a Jackson municipal judge. Dear's signed statement of "Underlying Facts and Circumstances, " which was attached to and specifically incorporated by reference in Dear's affidavit for the search warrant, stated as follows:

In August of 2008, Detectives of the Jackson Police Department's Narcotics Division were told of a subject named "Black" who was operating a "trap house" on Capitol Street, at 2100 Capitol, in a red brick two story building. (A trap house is a residence that is used by the drug dealer during the hours that the dealer sells narcotics but one [in which] the dealer does not live.)
The suspect "Black" was identified as Donald Mitchell, [and] was said to be a convicted felon. The suspect was said to be in possession of a substantial amount of crack cocaine.
Anonymous sources have also called in tips to the Narcotics office giving very specific details of this subject's activities which were independently verified through our resources.
Also, on Wednesday, September 3, 2008, a black male in this parking lot by the back door to this apartment tried to flag undercover narcotics detectives down in an attempt to sell them illegal narcotics. The suspect was not apprehended due to him escaping on foot.
The residence is at 2100 Capitol Street, the bottom apartment on the western side of the building. The numbers have been removed preventing exact determination of the apartment number.
On September 4, 2008, Detectives spoke with a confidential and reliable source that has been proven reliable in the past by giving true and accurate information in the area of narcotics trafficking in and around the city of Jackson. This source states that the house is controlled by "Black" who the source identified as Donald Mitchell. The C.I. (confidential informant) stated that the back door to this apartment is where the transactions take place and that this door is "fortified, " meaning there are dead fall locks using large pieces of wood which would prevent speedy entry by Police Officers.
This C.I. stated that he or she has seen a large amount of crack cocaine being stored and distributed at this location by this suspect and that the suspect is selling the cocaine from this apartment[, ] and the C.I. states that he or she has seen this within the past twenty-four hours.
. . . Therefore, it is requested that a search warrant be issued for 2100 Capitol Street, bottom western apartment, which is operated and under the control of a subject named Donald Mitchell.
. . . .
[signature]
Detective Kevin Dear
Jackson Police Department
Narcotics Division [2]

         ¶4. The municipal judge found that probable cause for the search existed and issued the warrant. The return on the warrant states that it was received "on the 4th day of September 2008" and executed "on the 4th day of September 2008, " with the date, month, and year handwritten on the form. On the warrant and the affidavit, however, the municipal judge wrote in "Aug" on the lines for the month. But as noted above, the affidavit specifically incorporates by reference Dear's signed statement of "Underlying Facts and Circumstances, " which was also attached to the affidavit. Dear's statement specifically discusses events that occurred on September 3 and September 4. Obviously, the judge could not have witnessed an affidavit or issued a warrant based on events that did not occur for another month. The only logical conclusion that can be drawn is that "Aug" was a scrivener's error.

         ¶5. Mitchell was represented at trial by privately retained counsel who filed a number of pretrial motions; however, he did not file a motion to suppress or any other motion alleging irregularity in the issuance or execution of the search warrant. At trial, the search warrant and the supporting affidavit, together with the attached Underlying Facts and Circumstances, were admitted into evidence as a single exhibit, S-2. The entire exhibit was also included in Mitchell's record excerpts in his direct appeal from his subsequent conviction. Dear testified at trial that the search warrant was issued on September 4, 2008. He also testified that he and other officers executed the search warrant "[o]n the same day [they] obtained it." Mitchell's brief in his initial appeal similarly stated that the judge granted the search warrant on September 4, 2008, and that officers executed the warrant the same day. On direct appeal, Mitchell did not raise any issue as to the validity of the search warrant.

         ¶6. Following a jury trial, Mitchell was convicted of possession of cocaine with intent to distribute, and the circuit court sentenced him to life imprisonment without parole as a violent habitual offender. On appeal, the Mississippi Supreme Court held that the circuit court abused its discretion by allowing the admission of evidence of Mitchell's prior convictions for drug possession. The Supreme Court therefore remanded Mitchell's case to the circuit court for a new trial. Mitchell v. State, 110 So.3d 732, 735 (¶14) (Miss. 2013).

         ¶7. On remand, the Hinds County Public Defender's Office was appointed to represent Mitchell, and a different assistant district attorney represented the State. Mitchell's new attorney filed a motion to suppress, alleging that the search warrant was invalid because it was executed a month after it was issued in violation of Mississippi Code Annotated section 41-29-157(a)(3) (Rev. 2013)[3] and the Fourth Amendment to the United States Constitution. The motion attached the search warrant and affidavit and relied on the apparent scrivener's errors in those documents; however, the motion failed to attach the signed statement of Underlying Facts and Circumstances as part of the affidavit.

         ¶8. The motion was served on the State on October 9, 2013. The State offered to allow Mitchell to plead guilty as a non-habitual offender and to recommend a sentence of thirty years with twenty years suspended and ten years to serve. But the State told Mitchell that the offer would expire on October 10, 2013. In other words, Mitchell could either accept the State's offer or litigate his motion to suppress, but he could not do both.

         ¶9. At a hearing in the circuit court on October 10, 2013, Mitchell's counsel advised the court as follows:

I've explained to the defendant, and I'd like to put this on the record, that this is a case that he has already been found guilty by a jury one time, and it's been reversed by the [Supreme] [C]ourt, as the Court is well aware; that he is a [99-]19-83 habitual, meaning if the jury finds him guilty of anything in this case, he is facing life in prison.
The State has put an offer on the table today that is 30 years, 20 suspended, 10 to serve. I've explained to him, and the sticking point here is we -- and I understand his concern, and we have filed a motion which we have served on the State and on the Court, motion to ...

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