Dennis v. State

831 So. 2d 1197, 2002 Miss. App. LEXIS 689, 2002 WL 31691117
CourtCourt of Appeals of Mississippi
DecidedDecember 3, 2002
DocketNo. 2001-CA-00445-COA
StatusPublished

This text of 831 So. 2d 1197 (Dennis 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
Dennis v. State, 831 So. 2d 1197, 2002 Miss. App. LEXIS 689, 2002 WL 31691117 (Mich. Ct. App. 2002).

Opinion

MYERS, J.,

for the court.

¶ 1. Donald Dennis (Dennis) while working as an informant for the U.S. Drug Enforcement Agency (DEA)and the Mississippi Bureau of Narcotics (MBN) was arrested for possession of cocaine with intent to distribute. Dennis claims the MBN gave him immunity in exchange for working as an informant for them. Despite this alleged immunity, he was prosecuted and sentenced to twenty years in prison. He filed a petition for post-conviction relief that the Circuit Court of Hinds County denied. Dennis now appeals that decision, asserting the following, errors:

1. THAT THE CIRCUIT COURT ERRED IN DENYING DENNIS’S PETITION FOR POST CONVICTION RELIEF.

2. THAT THE AGREEMENT BETWEEN DENNIS AND LAW ENFORCEMENT OFFICIALS TO NOT PROSECUTE HIM IF HE WORKED AS A CONFIDENTIAL INFORMANT WAS ENFORCEABLE AND PRECLUDED HIS INDICTMENT.

8. THAT LAW ENFORCEMENT AGENCIES HAD APPARENT AU[1199]*1199THORITY TO MAKE AN IMMUNITY/LENIENCY AGREEMENT AND THE FACT THE DISTRICT ATTORNEY’S OFFICE WAS NOT AWARE OF THE AGREEMENT WAS IMMATERIAL CONSIDERING DENNIS RELIED UPON THE AGREEMENT TO HIS DETRIMENT.

4. THAT THE ADVICE OF DENNIS’S FORMER ATTORNEY, WITH RESPECT TO THE AGREEMENT BETWEEN HIMSELF AND LAW ENFORCEMENT OFFICIALS TO ACT AS A CONFIDENTIAL INFORMER, AND HIS ATTORNEY’S SUBSEQUENT FAILURE TO OBTAIN AN AGREEMENT FROM THE DISTRICT ATTORNEY’S OFFICE FELL BELOW THE MINIMUM STANDARD OF PROFESSIONAL REPRESENTATION TO THE EXTENT THAT DENNIS WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO COUNSEL.

5. THAT DENNIS, MEDICATED WITH PAINKILLERS AT THE TIME OF HIS GUILTY PLEA, DID NOT MAKE HIS PLEA KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY.

STATEMENT OF THE FACTS

By the Appellant

¶ 2. In December 1994, Dennis entered into an agreement with the DEA to serve as an anonymous informant. Dennis did this hoping that a friend of his facing federal drug charges would receive a more lenient sentence.

¶ 3. On April 12, 1995, the MBN arrested Dennis, charging him with possessing more than a kilogram of marijuana with intent to distribute.1 On April 2, 1997, Dennis pled guilty to the marijuana charge before the Circuit Court of Hinds County. This was an “open plea” with no recommendation from the prosecution about what should be Dennis’s sentence. The trial court advised Dennis of the rights he waived by pleading guilty and the nature of the charge. Further, the court determined that no one coerced or promised Dennis anything in exchange for his plea, and that he knew it was an open plea with a possible maximum sentence of sixty years. The court found that Dennis, was not under the effects of drugs or alcohol at the time of his plea.2

¶ 4. Dennis later filed a motion to withdraw his plea, stating there were “communication problems” between the DEA and the MBN, and that the medications he was taking caused him to involuntarily accept the plea. The trial court denied this motion. Dennis then filed a motion for post-conviction relief on January 21, 2000. The trial court also denied this motion. Dennis now appeals this denial.

By the State

¶ 5. The State agrees with the facts up to the point of his April 12, 1995 arrest. Shortly after his arrest, Dennis and his attorney, John Colette, met with Bruce Kirby (Kirby) and Ron Pitts of the MBN. They agreed that Dennis would work for the MBN to obtain arrests and convictions of drug offenders in the metro area. Though they did not memorialize the agreement in writing, its substance, in the words of Agent Kirby, was to “not pursue the charges [against Dennis] if he gave us [1200]*1200drug cases.” Kirby later admitted that he should have seen that he made the district attorney’s office aware of-the agreement. At a later hearing, Kirby stated the agreement had conditions. Namely, that Dennis no longer deal drugs, and that he would not work for the DEA.

¶ 6. Dennis violated the agreement with the MBN. He continued to work as an informant for the DEA. Further, he was arrested for selling drugs in Madison County in September 1995. Thus, he violated both terms of the MBN agreement.

¶ 7. After the trial court denied Dennis’s motion to dismiss, he decided to plead guilty on April 2, 1997, to possession of marijuana in excess of one kilogram. At the plea, he testified that he was taking medicines for high blood pressure, anxiety, and pain. Dennis later filed a motion to set aside the guilty plea, claiming that the pain medicines caused him to not knowingly, intelligently, and voluntarily plead guilty. The trial court denied this motion and sentenced Dennis to twenty years in the custody of the Mississippi Department of Corrections.

¶ 8. Dennis then filed a petition for post-conviction relief on January 21, 2000, with the Circuit Court of Hinds County. The court dismissed the petition on July 26, 2000. A motion to reconsider the post-conviction relief was denied on January 19, 2001. Dennis appeals the denial of his post-conviction relief.

LEGAL ANALYSIS

Dennis’ Second and Third Assignments of Error

¶ 9. Although Dennis classifies this argument as two separate assignments of error, we can succinctly state it as one: His immunity agreement with the MBN should be enforced since he detrimentally relied upon it. Upon review, however, it is apparent that Dennis did not live up to his end of the bargain. Dennis’s agreement with the MBN contained two conditions: (1) he was to no longer work for the DEA, and instead deliver cases to the MBN; (2) he would not engage in any non-controlled drug sales. Contrary to Dennis’s argument, this Court finds that it is Dennis who violated the terms of any agreement which may have existed between himself and the MBN. Thus, his second and third assignments of error are without merit.

Dennis’ Fourth Assignment of Error

¶ 10. Dennis also asserts that he did not receive effective assistance from the attorney who represented him during his trial and any plea negotiations that may have taken place. To prove the alleged ineffective representation, Dennis points out that his attorney failed to notify the district attorney’s office of the agreement reached between the MBN and Dennis. In fact, it was over a year after the indictment that his attorney finally notified the assistant district attorney assigned the case about the agreement.

¶ 11. In Leatherwood v. State, 473 So.2d 964 (Miss.1985), the supreme court adopted the test promulgated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). One claiming ineffective assistance of counsel bears the burden of proving: (1) his counsel’s performance was deficient; and (2) the outcome of the trial would have been different, but for the deficiency in performance. Id. at 687, 104 S.Ct. 2052. This is a high standard, since we presume that an attorney’s conduct is “within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Further, we view the conduct in the totality of the circumstances to discover if any errors made by the attorney were “outside the range of professionally competent assistance.” Id. at 690, 104 S.Ct. 2052.

¶ 12. Dennis caches his argument in a qualification; Dennis argues that his attor

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Leatherwood v. State
473 So. 2d 964 (Mississippi Supreme Court, 1985)
Griffis v. State
797 So. 2d 299 (Court of Appeals of Mississippi, 2001)
Jones v. State
747 So. 2d 249 (Mississippi Supreme Court, 1999)

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Bluebook (online)
831 So. 2d 1197, 2002 Miss. App. LEXIS 689, 2002 WL 31691117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dennis-v-state-missctapp-2002.