DAVID WILLIAM KENT, JR. A/K/A D. WILLIAM KENT, JR. A/K/A DAVIS WILLIAM KENT, JR. APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 03/08/2017
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:
GRIFFIS, P.J., FAIR AND GREENLEE, JJ.
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.
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).
Our review of the summary dismissal of a PCR motion, a
question of law, is de novo. Id.
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
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.
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 ...