Cadarrio Dewayne Patrick a/k/a Cadarrio D. Patrick a/k/a Cadarrio Patrick v. State of Mississippi

• Court: Court of Appeals of Mississippi
• Decided: April 27, 2021
• Docket: 2020-CP-00543-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-CP-00543-COA

CADARRIO DEWAYNE PATRICK A/K/A APPELLANT CADARRIO D. PATRICK A/K/A CADARRIO PATRICK

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 06/01/2020 TRIAL JUDGE: HON. BRIAN KENNEDY BURNS COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: CADARRIO DEWAYNE PATRICK (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 04/27/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:

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

WESTBROOKS, J., FOR THE COURT:

¶1. Appearing pro se, Cadarrio Dewayne Patrick appeals the circuit court’s dismissal of

his most recent motion for post-conviction collateral relief (PCR). Finding no error, we

affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On December 2, 2011, Patrick was indicted by a Scott County grand jury for murder

while engaged in the commission of the felony crime of robbery in violation of Mississippi

Code Annotated section 97-3-19(2)(e) (Rev. 2006). On August 3, 2012, Patrick filed a sworn “Petition to Plead Guilty” in Case No. 12-CR-020. Patrick pled guilty to capital murder and

robbery. After conducting a hearing, the circuit court accepted Patrick’s guilty plea. Patrick

was sentenced to life without eligibility for parole for capital murder, to be served in the

custody of the Mississippi Department of Corrections. He was also sentenced to ten years

for robbery, to be served consecutively to the life sentence for the murder conviction.

¶3. On November 30, 2012, Patrick filed his first PCR motion in the Scott County Circuit

Court. Patrick alleged double jeopardy and ineffective assistance of counsel. On December

10, 2012, the circuit court vacated the conviction and sentence for the robbery charge and

dismissed the ineffective-assistance-of-counsel claim. Patrick’s second PCR motion was

denied by the circuit court on March 15, 2013, and the Supreme Court dismissed his appeal

as untimely on September 25, 2013.1 Patrick filed two subsequent motions in the Supreme

Court, which were considered as PCR motions and dismissed for filing in the circuit court.2

¶4. On November 21, 2019, Patrick filed the current PCR motion. On June 1, 2020, the

circuit court denied the relief requested and dismissed the motion as being successive and

time-barred. Miss. Code Ann. § 99-39-5(2) & -23(6) (Rev. 2015). Patrick appeals alleging

(1) that the trial court incorrectly found the PCR motion to be successive and time-barred;

(2) that his indictment was defective; (3) that the trial judge improperly participated in the

plea discussions; (4) that his plea was involuntary; (5) that he was denied the opportunity to

1 The record before us does not contain a copy of this PCR or the circuit court’s denial, so we do not know what allegations were made in Patrick’s second PCR motion. 2 The record before us does not indicate whether Patrick refiled either of these motions in the Scott County Circuit Court.

2 withdraw his plea; and (6) that he received ineffective assistance of counsel.

STANDARD OF REVIEW

¶5. The standard of review for the denial and dismissal of PCR motions is well-settled;

we will only disturb a decision that was clearly erroneous. Kirksey v. State, 728 So. 2d 565,

567 (¶8) (Miss. 1999) (citing State v. Tokman, 564 So. 2d 1339, 1341 (Miss. 1990)).

Questions of law are reviewed de novo. Rice v. State, 910 So. 2d 1163, 1164-65 (¶4) (Miss.

Ct. App. 2005) (citing Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999)).

DISCUSSION

¶6. As stated above, Patrick’s first PCR motion, filed on November 30, 2012, was

dismissed by the circuit court. The motion currently before us is Patrick’s most recent

attempt at relief pursuant to the Uniform Post-Conviction Collateral Relief Act (UPCCRA).

“[A]ny order dismissing the petitioner’s motion or otherwise denying relief under [the

UPCCRA] is a final judgment and shall . . . be a bar to a second or successive motion under

this article.” Miss. Code Ann. § 99-39-23(6). But we recognize that “errors affecting

fundamental constitutional rights are excepted from the procedural bars of the [UPCCRA].”

Dixon v. State, 52 So. 3d 1254, 1255 (¶3) (Miss. Ct. App. 2011) (citing Rowland v. State, 42

So. 3d 503, 507 (¶12) (Miss. 2010). “When a subsequent PCR motion is filed, the burden

falls on the movant to show he has met a statutory exception.” Stokes v. State, 199 So. 3d

745, 749 (¶10) (Miss. Ct. App. 2016) (quoting Williams v. State, 110 So. 3d 840, 843 (¶15)

(Miss. Ct. App. 2013)). We have reviewed Patrick’s submissions and find that only his claim

of a defective indictment raises a fundamental constitutional right that could (if supported

3 by the evidence) give rise to an exemption.

¶7. In an attempt to evade the procedural bars of the UPCCRA, Patrick maintains that the

indictment affected a fundamental constitutional right because it was defective, thus

depriving the circuit court of having jurisdiction to accept his plea. Specifically, he argues

that the indictment erroneously failed to identify the victim of the underlying robbery offense

and also failed to cite “the robbery statute.” However, the subject indictment was not

defective. “In capital-murder cases, unless the underlying felony is burglary, ‘the underlying

felony that elevates the crime to capital murder must be identified in the indictment along

with the section and subsection of the statute under which the defendant is being charged.’”

Batiste v. State, 121 So. 3d 808, 836 (¶43) (Miss. 2013) (footnote omitted) (quoting Goff v.

State, 14 So. 3d 625, 665 (¶176) (Miss. 2009)); see Miss. Code Ann. § 99-17-20 (Rev. 2020).

There is no requirement that a capital murder indictment identify the victim of the underlying

felony. Carson v. State, 212 So. 3d 22, 33 (¶38) (Miss. 2016).

¶8. Patrick’s indictment reads, in relevant part: “That Cadarrio Dewayne Patrick . . . did

kill and murder one George Bates, a human being, while he, the said Cadarrio Dewayne

Patrick, was then and there engaged in the commission of the felony crime of robbery,

contrary to and in violation of Section 97-3-19(2)(e), Miss. Code 1972, as amended[.]”

Clearly, Patrick’s indictment was sufficient, as it includes all necessary requirements. It

states that robbery is the underlying felony and also cites the statute under which he was

charged for capital murder.

¶9. Further, Patrick’s claim pertaining to the indictment cannot overcome the procedural

4 bars of the UPCCRA, and the trial court properly held all claims to be successive. Miss.

Code Ann. § 99-39-23(6). The instant motion was also filed outside of the applicable three-

year statute of limitations provided in the UPCCRA. Miss. Code Ann. § 99-39-5(2). The

record indicates that Patrick pled guilty and was sentenced on August 3, 2012. His current

motion was filed on November 21, 2019, over seven years later. Therefore, we agree with

the circuit court that Patrick’s PCR motion is time-barred.

CONCLUSION

¶10. Because Patrick clearly fails to establish an excepted error affecting a fundamental

constitutional right, we must affirm the circuit court’s dismissal of his successive and

untimely claims. Accordingly, and for the reasons stated above, we affirm.

¶11. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, McDONALD, LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.