Deriera Magee v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CP-01182-COA
DERIERA MAGEE A/K/A DERIE’RA MAGEE APPELLANT
A/K/A DERIERA A. MAGEE A/K/A DERIERA
ALEJANDOUR MAGEE
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 9/10/2014
TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO
COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: DERIERA MAGEE (PRO SE)
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
JOHN R. HENRY JR.
NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION: DENIED PETITION FOR
POSTCONVICTION COLLATERAL RELIEF
DISPOSITION: AFFIRMED: 11/10/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.
GRIFFIS, P.J., FOR THE COURT:
¶1. Derie’ra Magee appeals the denial of his petition for postconviction collateral relief
(PCCR), claiming: (1) that he received no arraignment after being charged under a new
indictment, (2) that his double-jeopardy rights were violated by his conviction under the new
indictment, and (3) that he received ineffective assistance of counsel. We affirm the
judgment of the circuit court.
FACTS
¶2. On February 20, 2009, Magee was indicted on felony drug charges. In May 2009, the
prosecutor made a motion to amend the indictment to charge Magee as a habitual offender.
This motion was never granted.
¶3. The district attorney then obtained a new indictment on June 12, 2009, charging
Magee with two counts of possession of a controlled substance as a habitual offender. Miss.
Code Ann. § 99-19-83 (Rev. 2015). In Count I, Magee was charged with possession of a
controlled substance (cocaine) with intent to distribute under Mississippi Code Annotated
section 41-29-139(a) (Supp. 2015). As to Count II, he was charged with possession of a
controlled substance (marijuana) under Mississippi Code Annotated section 41-29-139(c)
(Supp. 2015).
¶4. Then on January 19, 2010, the State reduced the charge, and Magee pleaded guilty
to possession of a controlled substance as a habitual offender and was sentenced to serve
sixteen years. Miss. Code Ann. §§ 41-29-139(c) & 99-19-81 (Rev. 2015).1 The prosecutors
did not pursue a conviction as to Count II of the indictment. Magee subsequently filed a
PCCR petition, which was denied by the circuit court.
ANALYSIS
¶5. When “reviewing a trial court’s dismissal of [a PCCR petition] . . . We will not disturb
the trial court’s factual findings unless they are found to be clearly erroneous.” Mann v.
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After briefing was completed in this case, Magee filed a pro se “motion to
amendment to show amendment to order of conviction to correct sentence” to bring the
Court’s attention to an amended order of conviction correcting aspects of his sentence. The
amended order was part of the supplemental record that this Court requested on its own
motion. Therefore, Magee’s motion is moot.
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State, 2 So. 3d 743, 745 (¶5) (Miss. Ct. App. 2009). “[W]here questions of law are raised,
the applicable standard of review is de novo.” Id.
I. Magee waived any objection to a lack of arraignment.
¶6. Magee first argues that he was not arraigned under the second indictment and that
because of this error, his conviction should be reversed. The record is not clear as to whether
Magee was arraigned under the second indictment. We note that Magee failed to raise this
issue in his original PCCR petition and is barred from raising it for the first time on appeal.
Holmes v. State, 97 So. 3d 704, 706 (¶8) (Miss. Ct. App. 2011). Notwithstanding this
procedural bar, we address Magee’s claim.
¶7. “A defendant may waive arraignment, either expressly or impliedly, by proceeding
to trial without objection, and one who has by his assent and conduct thus impliedly joined
issue with the state on an affidavit or indictment, cannot, by objection to a later arraignment,
avoid a conviction.” Spry v. State, 796 So. 2d 229, 233 (¶12) (Miss. 2001) (quoting Bufkin
v. State, 134 Miss. 1, 16, 98 So. 452, 454 (1923)). Therefore, “by pleading guilty without
objecting to his arraignment,” a defendant waives any objection. Id.
¶8. Magee pleaded guilty under Count I in the second indictment. He made no objection
at the time of his pleading; in fact he made no objection to his lack of arraignment until this
appeal. Magee was scheduled for trial the day that he pleaded guilty. “Arraignment is
deemed waived where the defendant proceeds to trial without objection.” Id. At the plea
hearing, Magee was again made aware of all the charges against him. He made no objections
to the charges or his guilty plea. This issue is without merit.
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II. Magee’s guilty plea did not violate the protection against double jeopardy.
¶9. Magee also argues that his double-jeopardy rights were violated because he pleaded
guilty to a misdemeanor charge of possession of marijuana in the Picayune City Court. This
alleged charge arose from the same arrest, where it appears that Magee was in possession of
one marijuana cigarette and several small bags of cocaine.
¶10. Generally, claims made for the first time on appeal are barred. Holmes, 97 So. 3d at
706 (¶8). But the supreme court has held that “errors affecting fundamental constitutional
rights are excepted from the procedural bars . . . .” Rowland v. State, 42 So. 3d 503, 506 (¶9)
(Miss. 2010). The court has also “deemed the right to be free from double jeopardy a
‘fundamental right.’” Id. at (¶7). Even when a defendant has pleaded guilty to a charge,
“[he] does not waive his double[-]jeopardy claim.” Rush v. State, 749 So. 2d 1024, 1027 (¶9)
(Miss. 1999). Thus we address the merits of Magee’s double-jeopardy claim.
¶11. “The three primary purposes of the Double Jeopardy Clause are that (1) it protects
against a second prosecution for the same offense after an acquittal, (2) it protects against a
second prosecution for the same offense after a conviction, and (3) it protects against
multiple punishments for the same offense.” Rush, 749 So. 2d at 1026 (¶8). But
“Mississippi has long recognized that separate offenses, though committed under a common
nucleus of operative fact, [do] not present a legal impediment to multiple prosecutions under
the [D]ouble [J]eopardy [C]lause . . . .” Johnston v. State, 172 So. 3d 756, 759 (¶8) (Miss.
Ct. App. 2012) (citing Henley v. State, 749 So. 2d 246, 249 (¶12) (Miss. Ct. App. 1999)).
¶12. The record is silent regarding any city court conviction. Assuming Magee did plead
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guilty to both crimes, his double-jeopardy rights were not violated because these crimes were
not the same offense. The circuit court conviction pertained to his possession of cocaine,
while the alleged city court conviction resulted from his possession of marijuana. Magee
committed two offenses simultaneously, but double jeopardy is not violated when a
defendant is convicted of two offenses arising from a common nucleus of fact.
III. Magee did not suffer ineffective assistance of counsel.
¶13. Magee then argues that he had ineffective assistance of counsel.
To prove ineffective assistance of counsel, a defendant must show that: (1) his
counsel’s performance was deficient, and (2) this deficiency prejudiced his
defense. The burden of proof rests with the defendant to prove both prongs.
Under Strickland, there is a strong presumption that counsel’s performance
falls within the range of reasonable professional assistance. To overcome this
presumption, the defendant must show that there is a reasonable probability
that, but for the counsel’s unprofessional errors, the result of the proceeding
would have been different.
Maggitt v. State, 26 So. 3d 363, 365 (¶12) (Miss. Ct. App. 2009) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)) (internal citations and quotations omitted).
¶14. Because of Magee’s alleged double-jeopardy violation, he argues that he had
ineffective assistance of counsel. Having found that Magee’s double-jeopardy rights were
not violated, Magee has no basis for ineffective assistance of counsel.
¶15. Magee’s claims as to the arraignment, double jeopardy, and ineffective counsel have
no merit. We affirm the judgment of the Circuit Court of Pearl River County.
¶16. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY
DISMISSING THE PETITION FOR POSTCONVICTION COLLATERAL RELIEF
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL
RIVER COUNTY.
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LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, MAXWELL, FAIR,
JAMES AND WILSON, JJ., CONCUR.
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