Cane v. State

109 So. 3d 568, 2012 WL 5205493, 2012 Miss. App. LEXIS 654
CourtCourt of Appeals of Mississippi
DecidedOctober 23, 2012
DocketNo. 2011-CP-01473-COA
StatusPublished
Cited by9 cases

This text of 109 So. 3d 568 (Cane v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cane v. State, 109 So. 3d 568, 2012 WL 5205493, 2012 Miss. App. LEXIS 654 (Mich. Ct. App. 2012).

Opinion

ROBERTS, J.,

for the Court:

¶ 1. This appeal stems from the Oktib-beha County Circuit Court’s August 24, 2011 summary denial of Joe S. Cane’s motion for post-conviction relief (PCR).1 On February 1, 2010, Cane pled guilty to Count I, sexual battery (oral sex), and Count III, exploitation of a child (possessing a photograph actually depicting a child engaging in sexually-explicit conduct). On Count I, he was sentenced to serve eight years in the custody of the Mississippi Department of Corrections (MDOC) with five years of post-release supervision (PRS). On Count III, he was sentenced to serve eight years in the custody of the MDOC. The circuit judge ordered Cane’s sentence in Count III to run concurrently with his sentence in Count I. Cane was also ordered to pay a $500 fine. In Count II, Cane was charged with sexual battery (sexual intercourse), but this count was nolle prossed. Cane filed a PCR motion on August 8, 2011, and it is from the summary denial of this motion that he now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 15, 2009, an Oktibbeha County grand jury indicted Cane on three counts. The first two counts charged him with sexual battery pursuant to Mississippi Code Annotated section 97-3-95 (Rev. 2006); the last count charged him with possessing a photograph of a child engaging in sexually-explicit conduct pursuant to Mississippi Code Annotated section 97-5-33 (Supp.2011). On February 1, 2010, Cane and his attorney appeared before the circuit court to enter a guilty plea. The circuit judge proceeded to describe each constitutional right Cane was waiving by entering a guilty plea. Cane indicated that he understood he was giving up the following rights: the right to a jury trial, the right against self-incrimination, the right to confront -witnesses, the right to testify on his own behalf, and the right to directly appeal to the Mississippi Supreme Court. Cane also stated that his attorney had explained the guilty-plea petition to him, including the minimum and maximum sentences and the elements of the crimes, and he understood what he was signing. He further stated that he was not promised anything or threatened to enter his guilty pleas. The circuit judge accepted Cane’s guilty pleas, finding that the guilty pleas “to count one and count three of the indictment ... [were] freely, voluntarily, knowingly!,] and intelligently entered!.]”

¶ 3. The State provided its factual basis for the crimes. According to the State, Cane engaged in oral sex with his seventeen-year-old niece. Cane also had a cell phone containing nude pictures of his niece engaged in sexually explicit conduct. The State also indicated that Cane had elected to plead in the open, but that the second count of sexual battery would be dismissed. The circuit judge accepted the factual basis for the crimes and dismissed Count II of the indictment by nolle prose-qui order. Cane was sentenced on Count I to serve eight years in the custody of the MDOC, followed by five years of PRS, plus a $500 fine. His sentence on Count III was to serve eight years in the custody of the MDOC to run concurrently with his eight-year sentence in Count I. He was also required to register as a sex offender upon release. The circuit judge also credited Cane for time he had already served in jail on these charges, which was approximately one year.

[570]*570¶ 4. On August 11, 2011, Cane filed a PCR motion in the circuit court alleging that the State violated his First, Fifth, Eighth, and Fourteenth Amendment rights. Specifically, he claimed that he did not understand his Miranda rights and that his request for an attorney did not end the interrogation; thus, his statement to the police that was relied upon in the circuit court should not have been allowed.2 Additionally, Cane claimed that he was denied a speedy trial and that he had ineffective assistance of counsel. The circuit court summarily denied Cane’s PCR motion on August 24, 2011. From this denial, Cane now appeals.

¶ 5. On appeal, Cane raises the following issues:

I. Whether Cane’s plea of guilty was intelligently and voluntarily entered.
II. Whether the [circuit court] erred in accepting Cane’s plea to the charges of sexual battery and child exploitation^] because there was no factual basis of his guilt.
III. Whether Cane was deprived of effective assistance of counsel.
IV. Whether Cane was deprived of his right [to a] speedy trial.

STANDARD OF REVIEW

¶ 6. “When reviewing a [circuit] court’s decision to deny a [PCR motion,] this Court will not disturb the [circuit] court’s factual findings unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999) (citing Bank of Miss. v. S. Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)). Questions of law receive a de novo analysis. Id.

ANALYSIS

I. Guilty Plea

¶ 7. For the sake of judicial economy, we will combine the Issues I and II in this section of our analysis, as they both pertain to Cane’s entry of his guilty plea.

¶ 8. In his first issue, Cane asserts that his guilty plea was not intelligently and voluntarily entered because he was threatened with one hundred years in prison if he did not plead guilty, versus a five-year sentence if he did plead guilty. Additionally, Cane claims he was coerced into entering his guilty plea based on an illegally obtained, false, and inadmissible confession. In his second issue, Cane claims there was an insufficient factual basis for the circuit judge to accept his guilty plea. To support this argument, Cane asserts that the State relied on a confession he had given the police after his Miranda rights were violated and that he was interrogated for four hours with no other witnesses. He further argues that at his guilty-plea hearing, he initially denied committing the crime in Count I because his niece inserted his penis in her mouth as opposed to him inserting it himself. According to Cane, the factual basis was not sufficient because his niece was not there to testify, no witnesses were called, and only hearsay statements were relied upon to coerce him into entering the plea.

¶ 9. After a review of the Cane’s guilty-plea colloquy, we cannot find that the circuit judge erred in summarily dismissing Cane’s PCR motion on the ground that Cane’s guilty plea was voluntarily, freely, and intelligently entered. Cane repeatedly informed the circuit judge that he was guilty of the crimes and that he understood what he was doing by pleading guilty. He also informed the circuit judge [571]*571that he was neither threatened or coerced by anyone into entering his guilty plea nor promised anything in exchange for entering a guilty plea. He also admitted that his attorney had explained the guilty-plea petition to him and that he knew the elements of the crimes he was pleading guilty to, as well as the minimum and maximum sentences for the crimes. Statements made in open court under oath “carry a strong presumption of veracity.” Nichols v. State, 955 So.2d 962, 965 (¶ 6) (Miss.Ct.App.2007) (quoting Herrod v. State, 901 So.2d 635, 636 (¶ 5) (Miss.Ct.App.2004)).

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Bluebook (online)
109 So. 3d 568, 2012 WL 5205493, 2012 Miss. App. LEXIS 654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cane-v-state-missctapp-2012.