Percy Hawthorne v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CP-00363-COA
PERCY HAWTHORNE A/K/A PERCY ALLEN APPELLANT
HAWTHORNE
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 02/26/2014
TRIAL JUDGE: HON. JOHN C. GARGIULO
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: PERCY HAWTHORNE (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LISA L. BLOUNT
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF
DENIED
DISPOSITION: AFFIRMED - 08/11/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., BARNES AND FAIR, JJ.
BARNES, J., FOR THE COURT:
¶1. Percy Hawthorne, appearing pro se, appeals the Harrison County Circuit Court’s
denial of his motion for post-conviction relief (PCR). We find no error and affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶2. In April 2011, a Harrison County Circuit Court issued a four-count indictment against
Hawthorne for possession of cocaine with intent to distribute, possession of marijuana with
intent to distribute, and two counts of a felon in possession of a firearm, all as a habitual
offender under Mississippi Code Annotated section 99-19-81 (Supp. 2014). The State also
sought an enhanced sentence on the drug charges – as a subsequent drug offender under
Mississippi Code Annotated section 41-29-147 (Rev. 2013). Hawthorne entered an open
plea of guilty for all four counts. The trial court sentenced him to thirty years for each of
Counts 1 and 2, and ten years for each of Counts 3 and 4, to run concurrently, for a total of
thirty years to serve in the custody of the Mississippi Department of Corrections, as a
habitual offender without the eligibility for parole.
¶3. In January 2014, Hawthorne filed a motion for post-conviction relief (PCR), claiming
his indictment was defective because it failed to state an amount of cocaine, and law
enforcement lacked probable cause to enter his home and seize the drugs and weapons at
issue. In February 2014, the trial court denied the PCR motion. Hawthorne duly appealed,
and in March 2014 immediately filed a pro se brief with this Court, making the same
arguments as he did in his PCR motion before the trial court. In October 2014, he filed
another brief with this Court raising the same issues, as well as constitutional violations
related to a speedy trial, the right to confront the State’s witnesses, and ineffective assistance
of counsel. We shall address each issue in turn.
STANDARD OF REVIEW
¶4. When reviewing the denial of a PCR motion, this Court will not disturb the trial
court’s factual findings unless they are clearly erroneous. Questions of law are reviewed de
novo. Moore v. State, 986 So. 2d 928, 932 (¶13) (Miss. 2008).
ANALYSIS
2
1. Indictment
¶5. Hawthorne claims that Count 1 of his indictment was defective because it did not have
the quantity of cocaine he allegedly possessed and intended to distribute, and this information
is an essential element of the offense that must be included in the indictment.
¶6. “The purpose of the indictment is to provide the accused reasonable notice of the
charges against him so that he may prepare an adequate defense.” Brawner v. State, 947 So.
2d 254, 265 (¶31) (Miss. 2006) (citing Brown v. State, 890 So. 2d 901, 918 (¶61) (Miss.
2004)). This Court has repeatedly held:
Under Mississippi law, “the penalty for the sale of cocaine . . . is the same
regardless of the quantity sold.” Therefore, “the amount of cocaine sold is .
. . not an essential element of the crime.” As such, an indictment is not
defective for failing to list a quantity of cocaine in the context of a sale of
cocaine charge. In fact, Mississippi law is clear that a quantity or amount of
cocaine is not required to be listed in the indictment for a charge of sale of
cocaine.
Fair v. State, 93 So. 3d 56, 58 (¶7) (Miss. Ct. App. 2012) (internal citations omitted).
¶7. Here, Hawthorne’s indictment charged him with “knowingly, wilfully, unlawfully, and
feloniously possess[ing] cocaine, a Schedule II Controlled Substance, with the intent to
transfer or distribute said controlled substance . . . .” While there was no quantity of cocaine
listed in the indictment, there is no requirement in Mississippi that it be listed. Further,
Hawthorne was given adequate notice of the charge so he could prepare an adequate defense.
Therefore, the indictment is not defective.
2. Probable Cause
3
¶8. Hawthorne maintains that law enforcement officers entered Hawthorne’s house,
without probable cause, and illegally seized drugs and weapons without a warrant in
violation of his Fourth Amendment rights. He thus claims the drugs and weapons should
have been suppressed.
¶9. “A voluntary and intelligent plea waives all defects allegedly occurring before the
defendant enters the plea with the exception of subject matter jurisdiction.” Carter v. State,
117 So. 3d 643, 646 (¶11) (Miss. Ct. App. 2013) (quoting Matthews v. State, 761 So. 2d 931,
934 (¶12) (Miss. Ct. App. 2000)). The sentencing order of April 2012 states that Hawthorne
filed “a petition to enter a plea of guilty in which he was advised of his legal and
constitutional rights . . . and was advised of the consequences of such a plea.” He entered
the plea after he was “fully advised of his legal rights and questioned under oath” by the trial
court “concerning his understanding of the proceedings including his rights” under the state
and federal constitutions. The trial court was satisfied by the proof and Hawthorne’s
answers, finding he “knowingly and voluntarily waived his constitutional rights to trial” and
that his guilty plea “was freely, knowingly and voluntarily made.” We find no error with the
trial court’s accepting Hawthorne’s guilty plea, which waived any alleged Fourth
Amendment violation.
3. Other Constitutional Claims
¶10. Finally, Hawthorne also alleges in his brief before this Court that he received
ineffective assistance of counsel, and was denied a speedy trial as well as the right to
4
confront and cross-examine the State’s witnesses. A defendant who fails to raise an issue
in his PCR motion before the trial court may not raise the issue for the first time on appeal.
Fluker v. State, 17 So. 3d 181, 183 (¶5) (Miss. Ct. App. 2009) (citing Gardner v. State, 531
So. 2d 805, 808-09 (Miss. 1988)). Moreover, it is well established that a valid guilty plea
would also waive certain constitutional rights, including “the privilege against self-
incrimination, the right to confront and cross-examine the State’s witnesses, the right to a
jury trial, and the right to have the State prove each element of the offense beyond a
reasonable doubt.” Joiner v. State, 61 So. 3d 156, 158 (¶7) (Miss. 2011) (citing Jefferson v.
State, 556 So. 2d 1016, 1019 (Miss. 1989)).
¶11. Hawthorne did not raise these claims before the trial court; thus, they are precluded
from our review. Further, his valid guilty plea waives these claims.
¶12. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL,
FAIR, JAMES AND WILSON, JJ., CONCUR.
5