Angelena Miller Tidwell a/k/a Angelena Tidwell v. State of Mississippi

• Court: Court of Appeals of Mississippi
• Decided: June 16, 2020
• Docket: NO. 2018-CP-00044-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CP-00044-COA

ANGELENA MILLER TIDWELL A/K/A APPELLANT ANGELENA TIDWELL

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/16/2017 TRIAL JUDGE: HON. ANDREW K. HOWORTH COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ANGELENA MILLER TIDWELL (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 06/16/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE J. WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. Angelena Miller Tidwell (Tidwell) filed a motion for post-conviction collateral relief

(PCR). The circuit court denied Tidwell’s PCR motion as being without merit, and she

appeals. We affirm the denial of Tidwell’s motion for post-conviction relief.

FACTS AND PROCEDURAL HISTORY

¶2. Tidwell filed the subject appeal without providing a sufficient record. The original

record provided by Tidwell was only thirty-eight pages and failed to include, among other

things, the indictment, a plea colloquy, any hearing transcripts, or a statement of evidence

pursuant to Mississippi Rule of Appellate Procedure 10(c). Finding the record insufficient to address even basic facts, an order was entered on November 14, 2019, requesting that the

Lafayette County Circuit Clerk supplement the record with certified copies of all clerk’s

papers, transcripts, and exhibits filed in the circuit court (in cause number LK15-315).

¶3. According to the supplemented record, on June 22, 2015, Tidwell voluntarily entered

the Lafayette County Sheriff’s Department and asked to speak to an investigator. She spoke

with Deputy John Dukes and handed him an envelope containing sexually explicit images

of a man and a child who was less than a year old. Tidwell identified the man as her ex-

husband. A subsequent search warrant revealed more photographs and video footage of the

same man and infant engaged in sexual acts. The photographs and videos obtained during

the search revealed that Tidwell also participated in the acts along with her ex-husband.

¶4. On June 23, 2015, Tidwell was arrested and charged with statutory rape, possession

of child pornography, and unnatural intercourse. On September 15, 2015, a Lafayette County

grand jury returned an eight-count indictment against Tidwell. Count 1 of the indictment

stated that on June 23, 2009, in Lafayette County, Mississippi, Tidwell unlawfully, wilfully,

and feloniously engaged in sexual penetration of a child under the age of fourteen by

performing cunnilingus on the minor in violation of Mississippi Code Annotated section 97-

3-95(1)(d) (Rev. 2014). Count 2 of the indictment stated that on June 23, 2009, in Lafayette

County, Mississippi, while acting in concert with and/or aiding, abetting, assisting, or

encouraging another, Tidwell unlawfully, wilfully, and feloniously engaged in sexual

penetration of a child under the age of fourteen by inserting a penis into the vagina of the

minor in violation of section 97-3-95(1)(d). Count 3 of the indictment stated that on June 23,

2 2009, in Lafayette County, Mississippi, while acting in concert with and/or aiding, abetting,

assisting, or encouraging another, Tidwell unlawfully, wilfully, and feloniously engaged in

sexual penetration of a child under the age of fourteen by inserting a finger into the minor’s

rectum in violation of section 97-3-95(1)(d). Count 4 of the indictment stated that on June

23, 2009, in Lafayette County, Mississippi, while acting in concert with and/or aiding,

abetting, assisting, or encouraging another, Tidwell unlawfully, wilfully, and feloniously

engaged in sexual penetration of a child under the age of fourteen by inserting a penis into

the minor’s rectum in violation of section 97-3-95(1)(d). Count 5 of the indictment stated

that on June 23, 2009, in Lafayette County, Mississippi, while acting in concert with and/or

aiding, abetting, assisting, or encouraging another, Tidwell unlawfully, wilfully, and

feloniously engaged in sexual penetration of a child under the age of fourteen by inserting

a penis into the minor’s mouth in violation of section 97-3-95(1)(d). Count 6 of the

indictment stated that on June 23, 2009, in Lafayette County, Mississippi, while acting in

concert with and/or aiding, abetting, assisting, or encouraging another, Tidwell did

unlawfully, wilfully, and feloniously photograph, film, video tape, or otherwise depict a child

under the age of fourteen engaging in sexually explicit (or the simulation of sexually explicit)

conduct in violation of Mississippi Code Annotated section 97-5-33(2) (Rev. 2014). Counts

7 and 8 of the indictment involved charges pertaining to unnatural intercourse with a dog and

are not part of this appeal.1

1 Tidwell’s attorney filed a demurrer to the indictment on October 22, 2015, regarding Counts 7 and 8 of the indictment. The two counts of unnatural intercourse with a dog occurred on May 1, 2001, and November 1, 2011. Because they were not prosecuted within two years, they were time-barred and ultimately dismissed.

3 ¶5. Tidwell underwent a court-ordered psychological evaluation based upon a motion

filed by her original court-appointed attorney Leroy Percy. The exam was conducted by Dr.

Louis Masur on or about July 1, 2016. A copy of his report was obtained during the

supplemental production. Dr. Masur was asked “whether or not [Tidwell] has [the] sufficient

present ability to consult with her attorney with a reasonable degree of rational understanding

in the preparation of her defense and has a rational as well as factual understanding of the

nature and object of the legal proceedings against her.” Dr. Masur concluded as follows: “I

opine that Ms. Tidwell has sufficient present ability to consult with her attorney with a

reasonable degree of rational understanding in the preparation of her defense and has a

rational as well as factual understanding of the nature and object of the legal proceedings

against her.” Secondly, Dr. Masur was asked “to describe her mental state at the time of the

alleged offense with respect to her ability to know the nature and quality of her acts and to

know the difference between right and wrong in relation to her alleged acts at that time.” Dr.

Masur concluded as follows: “I have no knowledge of mental state defects at the time of the

alleged offense which would interfere with her ability to know the nature and quality of her

acts and to know the difference between right and wrong in relation to her alleged acts at the

time.”

¶6. On March 17, 2016, Leroy Percy, the court-appointed attorney for Tidwell, filed a

motion to withdraw as counsel. The motion stated that a conflict had arisen between Percy

and Tidwell due to Tidwell’s belief that Percy was not representing her best interests. Percy

believed the conflict was irreconcilable and filed the motion, which the trial court granted.

4 On Aril 20, 2016, Preston Ray Garrett was appointed as Tidwell’s new counsel. Trial was

set for October 11, 2016.

¶7. Tidwell filed a petition to offer a plea of guilty on October 5, 2016. Tidwell pled

guilty to the remaining counts of the indictment before the trial court on October 6, 2016.2

After a hearing, the court accepted Tidwell’s plea and sentenced her as follows: “Life on

Count I: Life on Count II: Life on Count III 40 years, 15 years suspended and 25 years to

serve on Count VI. All counts shall run concurrent.”

¶8. On November 14, 2017, Tidwell filed a PCR motion, which was denied on November

16, 2017. Tidwell appealed.

STANDARD OF REVIEW

¶9. “A trial court’s denial of a motion for post-conviction relief will not be reversed

absent a finding that the trial court’s decision was clearly erroneous.” Smith v. State, 806 So.

2d 1148, 1150 (¶3) (Miss. Ct. App. 2002). “However, when issues of law are raised, the

proper standard of review is de novo.” Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999).

DISCUSSION

¶10. Tidwell lists thirteen issues in her brief. Tidwell’s issues all pertain to whether she

entered a knowing, intelligent, and voluntary guilty plea, whether she was mentally

competent to enter that plea, and whether she received ineffective assistance of counsel.

2 As to Count 3 of the indictment, Tidwell entered an Alford plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). In essence, Tidwell pled guilty because she understood and agreed that the evidence offered at trial regarding Count 3 would likely prove she committed the act, but on this particular count, she was not admitting that she committed the act as charged.

5 Based upon the information contained in the transcript of her plea hearing, the mental

evaluation performed, and for the reasons outlined below, her issues are without merit.

¶11. It must be noted from the outset that Tidwell has cited no authority for her claims on

appeal. “[A]n appellant has a duty to make more than mere assertions, and should set forth

reasons and cite authority in support of his arguments.” Mitchell v. State, 915 So. 2d 1, 8

(¶22) (Miss. Ct. App. 2005) (citing Clark v. State, 503 So. 2d 277, 280 (Miss. 1987)). “When

an appellant fails to cite any legal authority or to offer any record evidence in support of a

claim of error, the issue is procedurally barred, and this Court will not consider that issue on

appeal.” Billups v. State, 270 So. 3d 917, 923 (¶21) (Miss. Ct. App. 2018) (citing Haskins

v. State, 159 So. 3d 1222, 1224 (¶8) (Miss. Ct. App. 2015)).

¶12. Secondly, upon filing of the instant appeal, Tidwell failed to provide an adequate

record for review. Our Supreme Court has specifically held that “as has been oft-stated, it is

the duty of the appellant to see that the record of trial proceedings wherein error is claimed

is brought before this Court.” Smith v. State, 572 So. 2d 847, 849 (Miss. 1990). As in the

present case, when the record contains no documentation, this Court has stated that “[i]n the

absence of a contrary indication, this Court must accept as true that order of the trial judge,

which is part of the record before this Court . . . .” Lyons v. State, 881 So. 2d 373, 376 (¶8)

(Miss. Ct. App. 2004). In affirming the circuit court’s dismissal of a PCR motion, this Court

in Kent v. State, 269 So. 3d 401 (Miss. Ct. App. 2018), stated that “Kent was required to

demonstrate error on appeal, and he was required to provide an adequate record to support

his claims.” Id. at 403 (¶6).

6 ¶13. Tidwell failed to provide an adequate record. Tidwell failed to offer any authority or

evidence to support any of her claims of error. As such, the circuit court’s denial of Tidwell’s

PCR motion should be affirmed. Notwithstanding the previous discussion, the record in this

matter was supplemented pursuant to an order on or about November 14, 2019. The

documents received in response to that order included, but are not limited to, the following:

the indictment, the plea petition, the report and conclusions of the psychological exam of

Tidwell by Dr. Masur, and the transcript of the plea colloquy.

¶14. The report and findings from Dr. Masur’s evaluation of Tidwell show unequivocally

that she was able to assist her attorney in preparing her defense and capable of understanding

the charges against her. As stated in Dr. Masur’s report, “I opine that Ms. Tidwell has

sufficient present ability to consult with her attorney with a reasonable degree of rational

understanding in the preparation of her defense and has a rational as well as factual

understanding of the nature and object of the legal proceedings against her.” Further, Dr.

Masur’s report found her capable of knowing right from wrong at the time the subject acts

were committed: “I have no knowledge of mental state defects at the time of the alleged

offense which would interfere with her ability to know the nature and quality of her acts and

to know the difference between right and wrong in relation to her alleged acts at the time.”

¶15. In Joiner v. State, 61 So. 3d 156 (Miss. 2011), our Supreme Court stated that “[i]t is

well-settled that a knowing and voluntary guilty plea waives certain constitutional rights,

among them 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

7 element of the offense beyond a reasonable doubt.” Id. at 158 (¶7) (quoting Jefferson v.

State, 556 So. 2d 1016, 1019 (Miss. 1989)). Further, the court in Joiner said that “beyond the

constitutional rights that may be waived, the law is settled that with only two exceptions, the

entry of a knowing and voluntary guilty plea waives all other defects or insufficiencies in the

indictment.” Id. at 158-59 (¶7) (quoting Conerly v. State, 607 So. 2d 1153, 1156 (Miss.

1992)).

¶16. In addition to the petition to enter a guilty plea signed and submitted by Tidwell, the

plea colloquy reveals that Tidwell’s guilty plea was knowing, intelligent, and voluntary. The

trial judge questioned Tidwell thoroughly. Specifically, the trial judge questioned Tidwell

regarding the voluntariness of her plea, verifying what was in the filed plea petition, if she

had been given an opportunity to discuss the petition with her attorney, if her attorney had

explained the petition to her, if she was satisfied with her attorney, and whether she

understood all the rights she was giving up by pleading guilty. Tidwell answered

affirmatively to all of the judge’s questions. Additionally, Tidwell denied being under the

influence of anything that would impair her, having any type of disability, or being threatened

or promised anything in exchange for her guilty pleas.

¶17. Tidwell failed to provide an adequate record on appeal. Tidwell offered no authority

or any evidence from the record supporting her claims of error. Tidwell instead relied on

mere assertions in each and every claim of error raised in the subject PCR motion and

subsequent appeal. Notwithstanding the procedural bars to Tidwell’s claims, the Lafayette

County Circuit Clerk supplemented the record pursuant to an order of this Court. After

8 reviewing the record as supplemented, Tidwell knowingly, intelligently, and voluntarily

entered a plea of guilty, was found mentally competent to enter such a plea, and received

effective assistance of counsel. As such, her claims are without merit. For the foregoing

reasons the circuit court’s denial of Tidwell’s PCR motion is affirmed.

¶18. AFFIRMED.

CARLTON AND J. WILSON, P.JJ., GREENLEE, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR. BARNES, C.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.