Patrick Fluker v. State of Mississippi , 210 So. 3d 1062 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CP-01635-COA
PATRICK FLUKER A/K/A PATRICK DANTRE APPELLANT
FLUKER A/K/A PATRICK D. FLUKER
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 09/17/2013
TRIAL JUDGE: HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: PATRICK FLUKER (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: DISMISSED PETITIONER’S MOTION FOR
POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED: 10/06/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., MAXWELL AND FAIR, JJ.
FAIR, J., FOR THE COURT:
¶1. Patrick Fluker pled guilty to armed robbery and was sentenced to fifteen years’
imprisonment. Fluker appeals pro se the circuit court’s dismissal of his motion for post-
conviction relief based on his assertion that his indictment was defective since it was not
stamped “filed,” signed, or dated by the Forrest County Circuit Clerk. More specifically, he
claims this alleged defect resulted in an illegal sentence. Fluker also argues that he received
ineffective assistance of counsel because his counsel did not object to the indictment for the
alleged deficiency. We find no error and affirm.
STANDARD OF REVIEW
¶2. In considering the denial of a PCR motion, “we review the trial court’s findings of
fact for clear error and its determinations of law de novo.” Wilkerson v. State, 89 So. 3d 610,
613 (¶7) (Miss. Ct. App. 2011). A PCR movant bears the burden of showing he is entitled
to relief by a preponderance of the evidence. Id. We will affirm the summary dismissal of
a PCR motion if the movant fails to demonstrate “a claim procedurally alive substantially
showing the denial of a state or federal right.” Id. at 614 (¶7).
1. Defective Indictment
¶3. Fluker argues that the indictment was void for failure to show a “filed” stamp, and
therefore the circuit court lacked jurisdiction to accept his guilty plea. He also argues that
he received an illegal sentence as a result.
¶4. “[E]rrors affecting fundamental constitutional rights are excepted from the procedural
bars of the [Uniform Post-Conviction Collateral Relief Act].” Rowland v. State, 42 So. 3d
503, 506 (¶9) (Miss. 2010). But mere assertions of constitutional-rights violations do not
suffice to overcome the procedural bar. Chandler v. State, 44 So. 3d 442, 444 (¶8) (Miss.
App. Ct. 2010). “There must at least appear to be some basis for the truth of the claim before
the [procedural bar] will be waived.” Id.
¶5. “[A] valid guilty plea operates as a waiver of all non-jurisdictional rights or defects
which are incident to trial.” Anderson v. State, 577 So. 2d 390, 391 (Miss. 1991) (citing
Ellzey v. State, 196 So. 2d 889, 892 (Miss. 1967)). This Court has held that failing to stamp
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an indictment “filed” is a nonjurisdictional defect. Westbrook v. State, 953 So. 2d 286, 290
(¶13) (Miss. Ct. App. 2007). Therefore, Fluker waived his claim on appeal and failed to
meet any exception to the successive-writ bar.
2. Ineffective Assistance of Counsel
¶6. Fluker argues his attorney was ineffective by allowing him to plead guilty to a
defective indictment. To succeed on an ineffective-assistance-of-counsel claim, the appellant
must satisfy the two-pronged test laid out in Strickland v. Washington, 466 U.S. 668, 687
(1984), and adopted by the Mississippi Supreme Court in Stringer v. State, 454 So. 2d 468(Miss. 1984). “First, the defendant must show that counsel's performance was deficient . .
. . Second, the defendant must show that the deficient performance prejudiced the defense.”
Id. at 477 (quoting Strickland, 466 U.S. at 687).
¶7. Fluker only makes bare assertions in support of his ineffective-assistance-of-counsel
claim. He has failed to show that his counsel's performance was deficient, as required under
Strickland. Furthermore, he has not shown that his counsel's allegedly deficient performance
“proximately resulted in his guilty plea, and [that] but for counsel's errors, he would not have
entered the plea.” Cole v. State, 918 So. 2d 890, 894 (¶10). So Fluker’s claim has no merit.
¶8. Because Fluker’s PCR motion does not raise any issue that involves a violation of
fundamental constitutional rights, it is procedurally barred as a successive writ. The circuit
court was correct to hold, under Mississippi Code Annotated section 99-39-23(6) (Rev.
2007), that the motion was barred. Procedural bar notwithstanding, we find no merit to the
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motion. Therefore, we affirm the judgment of the circuit court.
¶9. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
MAXWELL, JAMES AND WILSON, JJ., CONCUR.
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