OF JUDGMENT: 05/20/2016
COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. LISA P.
ATTORNEY FOR APPELLANT: W.F. HOLDER II
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
ABBIE EASON KOONCE
IRVING, P.J., BARNES AND WESTBROOKS, JJ.
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.
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
We review the dismissal or denial of a PCR motion for abuse
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
Wilson v. State, 203 So.3d 762, 764 (¶6) (Miss.
Ct. App. 2016) (internal citations and quotations
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 ...