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Ishee v. State

Court of Appeals of Mississippi

November 28, 2017

MICHAEL ISHEE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 05/20/2016

         HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. LISA P. DODSON

          ATTORNEY FOR APPELLANT: W.F. HOLDER II

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE

          BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.

          IRVING, P.J.

         ¶1. Michael Ishee appeals the Harrison County Circuit Court's denial of his motion for post-conviction relief (PCR), after pleading guilty to one count of exploitation of a child under Mississippi Code Annotated section 97-5-33(5) (Supp. 2007). He claims that, at the time of his indictment and conviction, section 97-5-33(5) was overbroad and unconstitutional because it lacked the element of scienter.

         FACTS

         ¶2. On December 5, 2011, Ishee was indicted on nineteen counts of exploitation of a child. The indictment charged that, on or about July 12, 2010, Ishee possessed visual depictions of actual children under the age of eighteen years engaging in sexually explicit conduct. These images were found on the hard drive of his computer. The State agreed to pass eighteen counts to the files, and Ishee entered a plea of guilty to Count I. Sentencing was deferred to a later date, at which time Ishee was sentenced to twenty years, with eight years suspended, leaving twelve years to serve, followed by four years of probation. Ishee timely filed his PCR motion; however, it was denied by the circuit court. This appeal followed.

         DISCUSSION

         ¶3. We review the dismissal or denial of a PCR motion for abuse of discretion.

We will only reverse if the trial court's decision is clearly erroneous. We review issues of law de novo. Under Mississippi Code Annotated section 99-39-11(2) (Rev. 2015), a trial court may deny a PCR motion if 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.

Wilson v. State, 203 So.3d 762, 764 (¶6) (Miss. Ct. App. 2016) (internal citations and quotations omitted).[1]

         ¶4. Ishee argues that section 97-5-33(5), as written at the time of his indictment, was unconstitutional because it lacked a scienter requirement. At that time, section 97-5-33(5) read: "No person shall, by any means including computer, possess any photograph, drawing, sketch, film, video tape or other visual depiction of an actual child engaging in sexually explicit conduct." Effective July 1, 2013, this section was amended to read: "No person shall, by any means including computer, knowingly possess or knowingly access with intentto view any photograph, drawing, sketch, film, video tape or other ...


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