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Kent v. State

Court of Appeals of Mississippi

May 15, 2018

DAVID WILLIAM KENT, JR. A/K/A D. WILLIAM KENT, JR. A/K/A DAVIS WILLIAM KENT, JR. APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 03/08/2017

          HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, HON. JEFF WEILL SR. TRIAL JUDGE.

          ATTORNEY FOR APPELLANT: BRENT M. BRUMLEY

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART

          BEFORE GRIFFIS, P.J., FAIR AND GREENLEE, JJ.

          FAIR, J.

         ¶1. David Kent filed a motion for post-conviction relief alleging that the circuit court lacked a factual basis to accept his guilty plea. The circuit court dismissed Kent's PCR motion as time-barred, and he appeals. We affirm the dismissal as Kent has failed to present an adequate record to support his contentions.

         STANDARD OF REVIEW

         ¶2. 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) (Rev. 2015). To succeed on appeal, the movant 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).

         ¶3. Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Id.

         DISCUSSION

         ¶4. At the outset, we note that the Mississippi Uniform Post Conviction Collateral Relief Act requires that motions for post-conviction relief contain the "identity of the proceedings in which the petitioner was convicted." See Walker v. State, 863 So.2d 1, 10 (¶13) (Miss. 2003). Kent's PCR motion fails to do this adequately; it stated only that, in April 2012, he was indicted "on two counts of violating [Mississippi Code Annotated section] 97-5-31(b) by photographing or filming persons under the age of eighteen, and one of count of violating [the same section] by filming an adult female." Section 97-5-31(b) does not define an offense; rather, it defines the words "sexually explicit conduct" in the context of the statute prohibiting child pornography. The petition further states that, in March 2013, Kent entered a petition to plead guilty "to Count 1" followed by a guilty plea on March 13, 2014. Kent's PCR motion refers to an indictment and briefly quotes from a plea petition, but neither reference reveals a cause number, nor were the documents filed with the PCR motion.

         ¶5. After Kent's PCR motion was filed, the circuit court identified it with Hinds County cause number 12-0-403. The circuit court found Kent's PCR petition time-barred because the conviction order in that cause number had been filed on March 7, 2013, more than three years prior to the filing of the PCR motion. See Miss. Code Ann. § 99-39-5(2) (Rev. 2015). The conviction order in that case was attached to the circuit court's order dismissing the PCR motion. It named Kent as the defendant and identified his offense as "FILM W/O CONSENT 97-29-63." The sentence was fifteen years (six were suspended), which appears to exceed the maximum permitted under section 97-29-63 for a single count, either five years or ten years depending on when the offense was committed and the age of the victim. A ten-year sentence became possible when the statute was amended, effective July 1, 2012, to raise the maximum punishment to ten years if the victim was under the age of sixteen. See 2012 Miss. Laws ch. 557, § 2. Nonetheless, Kent has not challenged the legality of his sentence, and the record is insufficient for this Court to find it illegal with certainty.

         ¶6. Kent repeats his ambiguous identification of the underlying offense and the inconsistent date of the conviction in his brief on appeal, but he does not acknowledge or discuss the inconsistencies with the sentencing order attached by the circuit court to its judgment; Kent appears ...


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