Robert Allen Worth v. State of Mississippi , 223 So. 3d 844 ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CP-00704-COA
ROBERT ALLEN WORTH A/K/A ROBERT A. APPELLANT
WORTH A/K/A BOB WORTH
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 01/21/2016
TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: ROBERT ALLEN WORTH (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA AINSWORTH
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: PETITION FOR POST-CONVICTION
RELIEF DENIED
DISPOSITION: AFFIRMED - 07/25/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
WILSON, J., FOR THE COURT:
¶1. Robert Allen Worth pled guilty to exploitation of a child and was sentenced to fifteen
years in the custody of the Mississippi Department of Corrections (MDOC), with five years
suspended, ten years to serve, and five years of post-release supervision.
¶2. Worth subsequently filed a petition for post-conviction relief (PCR), claiming (1) that
he received ineffective assistance of counsel, which led to an involuntary plea; (2) that his
sexually explicit emails, in which he sought to arrange a sexual encounter with a thirteen-
year-old girl, were protected speech under the First Amendment; (3) that the prosecutor and
his attorney both engaged in “misconduct”; and (4) that because no Viagra pills were found
in his possession at the time of his arrest, he lacked the ability and/or the intent to have sexual
intercourse “with anyone much less a minor.” The circuit court denied Worth’s PCR petition
as meritless, and we affirm.
FACTS AND PROCEDURAL HISTORY
¶3. On March 8, 2012, Sergeant Donnie Dobbs of the Biloxi Police Department signed
on to a chatroom on America Online (AOL) named “ShareHerNMississippi13” to monitor
for sexual predators. Sergeant Dobbs used the screen name “DnS4young1313” and
represented himself as “Denise,” a thirty-five-year-old single mother who lived in Biloxi and
had a thirteen-year-old daughter named “Brandi.” Sergeant Dobbs soon received an instant
message from someone using the screen name “ActivetongueLINY,” who said that his name
was Bob and that he lived in New York. Sergeant Dobbs initially ignored Bob’s messages
since Bob did not live near Mississippi, but Bob persisted in messaging “Denise.” Bob told
“Denise” that he was familiar with the Biloxi area because he had trained at Keesler Air
Force Base and that he would be going back to the base in April 2012.
¶4. Bob’s initial message to “Denise” indicated that he wanted to have sex with her
thirteen-year-old daughter “Brandi.” This led to numerous vulgar, disturbing, and sexually
explicit emails between March 8, 2012, and April 20, 2012, in which Bob expressed his
desire to have sex with “Brandi” and made plans to meet “Denise” and “Brandi” in order to
have sex with “Brandi.”
¶5. To prove that he was serious about meeting “Denise,” Bob provided his telephone
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number. Sergeant Dobbs asked a female detective to pose as “Denise” on a telephone call
to Bob. On March 25, the female detective, posing as “Denise,” called the number Bob
provided and made contact with him. He continued to express his desire to travel to Biloxi
to meet and have sex with “Brandi.” After the phone call, Sergeant Dobbs continued to
email Bob in order to make plans for him to come to Biloxi.
¶6. Sergeant Dobbs also used the telephone number to identify Bob as Robert Allen
Worth of Indianapolis, Indiana. The identification was supported by information included
in Bob’s emails, including his request that “Denise” and “Brandi” travel to Indianapolis to
visit him. Finally, by email, “Denise” asked Bob for his last name, and Bob said that his last
name was Worth.
¶7. On March 28, 2012, Worth told “Denise” that he had purchased a digital camera to
take pictures of “Brandi” and a GPS to help him travel to Biloxi. He also told “Denise” that
he would bring vibrators, lubricant, and condoms for his planned intercourse with “Brandi.”
Worth and “Denise” later arranged to meet at the Biloxi Lighthouse Pier between 3:00 and
3:30 p.m. on April 20, 2012.
¶8. On April 20, 2012, after receiving email updates from Worth about his estimated time
of arrival, law enforcement set up surveillance near the pier. Around 2:30 p.m., Worth
arrived at the pier and was arrested. Condoms, a GPS, a digital camera, lubricant, and
vibrators were found in Worth’s car. After Worth was arrested and informed of his rights,
he admitted that he believed that he had been communicating with a mother in Biloxi about
her thirteen-year-old daughter, but he claimed that he had traveled to Biloxi to help the
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mother educate her daughter about safe sex practices.
¶9. Worth was indicted for exploitation of a child. See Miss. Code Ann. § 97-5-33(6).
(Rev. 2014). On September 15, 2014, Worth filed a petition to plead guilty to the charge.
Worth’s plea petition acknowledged that he faced a minimum sentence of five years and a
$50,000 fine and a maximum sentence of forty years and a $500,000 fine. The petition also
acknowledged that Worth would enter an open plea, meaning that the State had not made a
sentencing recommendation and that there was no plea agreement between Worth and the
State. Worth’s sworn petition also provided the following factual basis for his plea:
Between March 8, 2012 and April 20, 2012 I sent electronic messages by cell
phone & computer to entice a child under 18 years for the purpose of meeting
to engage in sexually explicit conduct. I contacted a law enforcement officer
passing as the child’s mother. The cell phone & computer messages were
received in the Second Judicial District of Harrison Co., Miss. and I traveled
to Biloxi for the meeting & was arrested there.
¶10. A plea hearing was held the same day that Worth submitted his plea petition. At the
hearing, Worth told the circuit judge that he had read and understood the contents of his plea
petition and that he had discussed the petition fully with his attorney. Worth’s attorney also
informed the court that he and Worth had engaged in a “lengthy discussion” prior to the
hearing. Worth again swore that everything in the petition was true and correct. Worth told
the court he was satisfied with his attorney’s services and that his attorney had explained the
crime and the sentencing range to him. The circuit judge explained the rights that Worth was
waiving by pleading guilty, and Worth stated that he understood and desired to plead guilty.
Worth swore he was not coerced or forced into pleading guilty, nor had he been promised or
guaranteed any specific sentence. The circuit judge told Worth that he had no obligation to
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follow any recommendation by the State and could sentence him to the maximum of forty
years or the minimum of five. Worth said he understood. The court then accepted Worth’s
plea and postponed sentencing until the completion of a pre-sentence report.
¶11. Worth was sentenced on November 17, 2014. The State recommended a sentence of
five to ten years to serve and five years of post-release supervision. Worth’s attorney
requested a sentence of time served. The judge then allowed Worth to speak. Worth claimed
that he had never touched a child and would never do so. He claimed that he communicated
with “Denise” only to help a child who appeared to be in trouble. He emphasized that he
never communicated with a child or even an officer posing as a child. He admitted sending
sexually explicit emails about having sex with a thirteen-year-old girl, but he claimed that
he was only following the lead of the officer posing as “Denise.” After listening to Worth,
the judge sentenced him to fifteen years in MDOC custody, with five years suspended and
ten to serve, as well as five years of post-release supervision. Worth was fifty-seven years
old at the time of his sentencing.
¶12. On December 28, 2015, Worth filed a pro se PCR petition. In his first claim, Worth
alleged that his plea was involuntary because his attorney misled him about the minimum
sentence and told him that he would be sentenced to “time served.” Worth also claimed that
his attorney coerced him into pleading guilty by promising that he would be “home for the
holidays” if he pled. Worth also alleged that his attorney failed to inform him of the full
consequences of pleading guilty, including an alleged loss of Social Security benefits.
Finally, Worth alleged other miscellaneous failures by his attorney, such as failing to obtain
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discovery and failing to discuss trial strategy and defenses.
¶13. Worth’s PCR petition also alleged that his sexually explicit email communications
were protected by the First Amendment because they were sent to a “consenting adult.”
Worth also claimed that he had a “medical” defense to the charges against him: he had a
prescription for Viagra, and because no Viagra was found in his possession when he was
arrested, he lacked the intent or ability to have sex with “Brandi.” Finally, Worth alleged
miscellaneous “misconduct” by the State and his own attorney.
¶14. In his order denying Worth’s petition for post-conviction relief, the circuit judge found
that Worth’s plea was voluntarily and intelligently entered and that Worth had fully
understood the consequences of his plea at the time of his plea hearing. The circuit judge
also noted that at the time Worth pled guilty, he did not report any dissatisfaction with his
attorney’s performance, and the judge found that nothing in the record supported Worth’s
claim that the actions or inactions of his attorney resulted in an involuntary plea. Finally, the
judge ruled that Worth’s First Amendment claim, “medical” defense, and various allegations
of “misconduct” were all without merit. Worth filed a timely notice of appeal.
ANALYSIS
¶15. We review a circuit judge’s denial of a PCR petition for clear error and will not
disturb his factual findings absent such error. Wrenn v. State, 207 So. 3d 1252, 1256 (¶13)
(Miss. Ct. App. 2017) (citing Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999)).
However, we review his conclusions on questions of law de novo. Id. The circuit court may
summarily dismiss a PCR petition if it is plain from the face of the petition, any exhibits, and
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prior proceedings that the petitioner is not entitled to relief. Thomas v. State, 159 So. 3d
1212, 1214 (¶4) (Miss. Ct. App. 2015); Miss. Code Ann. § 99-39-11(2) (Rev. 2015).
Dismissal is proper where the petitioner can prove no set of facts in support of his claim that
would entitle him to relief. Thomas, 159 So. 3d at 1214 (¶4). The petitioner bears the burden
of proving by a preponderance of the evidence that he is entitled to relief. Miss. Code Ann.
§ 99-39-23(7) (Rev. 2015).
I. Ineffective Assistance/Involuntary Plea
¶16. Worth claims that he received ineffective assistance of counsel, which caused him to
enter an involuntary plea. Specifically, Worth claims that his attorney failed to secure
discovery from the State, failed to inform him of the true minimum and maximum sentences
for his crime and further misled him about his sentence, failed to contact witnesses, and
failed to discuss trial strategy. These failures, Worth asserts, resulted in an involuntary guilty
plea. He claims he would not have pled guilty if his attorney had done a better job.
¶17. A claim of ineffective assistance of counsel requires proof that counsel’s performance
was objectively deficient and that the defendant suffered prejudice as a result. Strickland v.
Washington, 466 U.S. 668, 687 (1984). If either prong of Strickland is not met, the claim
fails. Shinn v. State, 174 So. 3d 961, 965 (¶10) (Miss. Ct. App. 2015) (citing Havard v. State,
928 So. 2d 771, 781 (¶8) (Miss. 2006)). “A voluntary guilty plea waives claims of
ineffective assistance of counsel, except insofar as the alleged ineffectiveness relates to the
voluntariness of the giving of the guilty plea.” Thomas, 159 So. 3d at 1215 (¶10) (internal
quotation marks omitted). Thus, to obtain post-conviction relief, a petitioner who pled guilty
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must prove that his attorney’s ineffective performance proximately caused the plea—i.e., that
but for counsel’s errors, the petitioner would not have entered the plea. Id. This requires
proof beyond the petitioner’s own conclusory assertions. Id. at 1215-16 (¶10).
¶18. Worth offers nothing more than conclusory assertions regarding his attorney’s failure
to contact witnesses, discuss trial strategy, or obtain discovery. Accordingly, his claim of
ineffective assistance as it pertains to those alleged failures is without merit.
¶19. Worth also claims that his plea was involuntary and invalid because his attorney
misinformed him as to the sentence he faced. A guilty plea is valid as long as it is entered
“voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant
circumstances and likely consequences.” Hunt v. State, 99 So. 3d 269, 271 (¶8) (Miss. Ct.
App. 2012) (quoting Henderson v. State, 89 So. 3d 598, 600 (¶5) (Miss. Ct. App. 2011);
Carroll v. State, 963 So. 2d 44, 46 (¶8) (Miss. Ct. App. 2007)) (internal quotation omitted).
For a plea to be voluntary, knowing, and intelligent, the judge must advise the defendant of
his rights, the nature of the charge against him, and the consequences of his plea, including
applicable minimum and maximum sentences. Id.
¶20. Worth claims that his attorney suggested that he would be sentenced to “time served”
(about fifteen months at the time of his sentencing) and be “home for the holidays” if he pled
guilty. Worth also claims that his attorney did not inform him that the minimum sentence
was five years. Worth further alleges that his attorney felt good about the assigned judge,
stating that he could “talk to” this judge and that this was the “judge we want.” According
to Worth, such comments led him to believe that the judge would go along with his counsel’s
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request for a sentence of time served.
¶21. Worth’s sworn plea petition and plea colloquy refute these allegations. Worth’s
petition correctly states that the minimum sentence for his crime is five years. Worth averred
at his plea hearing that he completed and discussed the petition with his attorney. His
attorney stated that they had a lengthy discussion prior to the hearing. Worth did not give any
indication during the colloquy that he did not understand the minimum sentence, and the
record contains no suggestion that Worth was ever dissatisfied with his attorney’s assistance.
When asked if anyone had made him any promise of leniency or a certain sentence, Worth
said no. At his sentencing hearing, Worth was given ample opportunity to speak to the judge,
and he availed himself of that opportunity. The applicable minimum sentence was made
clear to him, and nothing in the record indicates any confusion.
¶22. Although the plea petition and hearing transcript are the best evidence of Worth’s
understanding of the consequences of his plea, Worth was entitled to submit additional
evidence in support of his PCR claim. See Thomas, 159 So. 3d at 1214-16 (¶¶5-10).
However, Worth offered only an “affidavit” from his neighbor and “attorney in fact,”
Richard Connelly, in support of his claims that his attorney misinformed him about the
statutory minimum sentence. The affidavit is entirely handwritten, and although it purports
to have been sworn to before some person, that person’s name is partially illegible, and the
document does not bear any notarial seal or otherwise indicate the source of the person’s
authority to administer oaths.1 In any event, the purported affidavit adds nothing to Worth’s
1
See McGriggs v. McGriggs, 192 So. 3d 350, 353 n.2 (Miss. Ct. App. 2015) (“An
affidavit is ‘a written or printed declaration or statement of facts, made voluntarily, and
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claim. It merely states that Connelly was also “advised that counsel would secure a sentence
of ‘time served.’”
¶23. Allegations such as those advanced here by Worth fail to establish a claim for post-
conviction relief when, as in this case, the circuit court’s plea colloquy and voluntariness
inquiry affirmatively establish that the petitioner was clearly and correctly informed of the
applicable minimum sentence and other consequences of his plea. The plea colloquy was
sufficient to correct any alleged misinformation provided by Worth’s counsel, and Worth
clearly stated under oath that he understood the relevant consequences of his plea.
Accordingly, this issue is without merit. See, e.g., Minshew v. State, 169 So. 3d 953, 956-57
(¶¶11-15) (Miss. Ct. App. 2014); Donnelly v. State, 841 So. 2d 207, 211 (¶¶7-9) (Miss. Ct.
App. 2003); Patrick v. State, 815 So. 2d 1216, 1220-21 (¶12) (Miss. Ct. App. 2001).
II. Freedom of Speech
¶24. Worth next argues that “all correspondence in this case was private e-mails between
2 adults posing as 2 adults, and thus protected speech.” He cites no authority other than the
First Amendment to the United States Constitution. The argument is frivolous. “Offers to
engage in illegal transactions are categorically excluded from First Amendment protection.”
United States v. Williams, 553 U.S. 285, 297 (2008) (upholding as constitutional a federal
statute criminalizing offers to provide or requests to obtain child pornography). “Speech
attempting to arrange the sexual abuse of children is no more constitutionally protected than
confirmed by the oath or affirmation of the party making it, taken before a person having
authority to administer such oath or affirmation.’” (Quoting Wilcher v. State, 863 So. 2d 776,
834 (¶209) (Miss. 2003) (quoting Black’s Law Dictionary 58 (6th ed. 1990))).
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speech attempting to arrange any other type of crime.” United States v. Hornaday, 392 F.3d
1306, 1311 (11th Cir. 2004). Furthermore, “the identity taken by an undercover officer in
an attempt to catch predators is irrelevant for First Amendment purposes.” Wang v.
Sampson, No. 08-cv-10832, 2010 WL 4340536, at *2 (E.D. Mich. Oct. 27, 2010) (collecting
cases). Put simply, there is no constitutional right to solicit sex with children via the internet,
regardless of whether the person solicited is an actual child, an adult offering to provide a
child for sex, or an undercover officer posing as either. The issue is without merit.
III. “Misconduct”
¶25. Under a single heading, Worth makes a series of allegations of various acts of
“misconduct” by the prosecution and his attorney during preliminary and pre-sentencing
proceedings in his case. The allegations are difficult to read and follow. This claim also
lacks legal and evidentiary support. In any event, the claim, such as it is, is without merit.
By entering a valid guilty plea, Worth waived all non-jurisdictional rights or defects which
are incident to trial. See, e.g., Williams v. State, 145 So. 3d 1241, 1244 (¶9) (Miss. Ct. App.
2014). Worth identifies no “misconduct” of the sort that would vitiate his guilty plea. As
we have already determined that Worth’s plea was valid, his “misconduct” claim also
provides no basis for post-conviction relief.
IV. “Medical” (Viagra) Defense
¶26. Worth claims that he has been diagnosed with erectile dysfunction and has a
prescription for Viagra. He asserts that because he did not possess Viagra when he was
arrested, he necessarily lacked the “ability/intention to have sexual intercourse with anyone
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much less a minor.” He argues that the circuit judge ignored this fact, as well as all other
exculpatory evidence, prior to his sentencing.
¶27. However, as the trial judge specifically explained during Worth’s plea hearing,
Worth’s guilty plea waived his right to present a defense and to require the State to prove the
elements of the offense beyond a reasonable doubt. See Singleton v. State, 213 So. 3d 521,
524 (¶6) (Miss. Ct. App. 2016). This issue is also without merit.
CONCLUSION
¶28. Worth fails to show that his attorney provided ineffective assistance or that any action
or inaction by his attorney resulted in an involuntary guilty plea. Rather, the record supports
the circuit judge’s determination that Worth’s plea was knowing, intelligent, and voluntary.
Worth’s First Amendment claim is frivolous, and his other claims are without merit and
waived by his valid guilty plea. Accordingly, we affirm the circuit court’s order denying
Worth’s PCR petition.
¶29. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
GREENLEE AND WESTBROOKS, JJ., CONCUR.
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