Ducote v. State

970 So. 2d 1309, 2007 WL 4303517
CourtCourt of Appeals of Mississippi
DecidedDecember 11, 2007
Docket2006-CA-00693-COA
StatusPublished
Cited by14 cases

This text of 970 So. 2d 1309 (Ducote 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
Ducote v. State, 970 So. 2d 1309, 2007 WL 4303517 (Mich. Ct. App. 2007).

Opinion

970 So.2d 1309 (2007)

Patrick Joseph DUCOTE, Appellant
v.
STATE of Mississippi, Appellee.

No. 2006-CA-00693-COA.

Court of Appeals of Mississippi.

December 11, 2007.

*1311 George S. Shaddock, Pascagoula, Calvin D. Taylor, attorneys for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before MYERS, P.J., BARNES and ROBERTS, JJ.

BARNES, J., for the Court.

¶ 1. Patrick Ducote appeals the judgment of the Circuit Court of Oktibbeha County which dismissed his motion to reconsider his sentence or, in the alternative, prove his plea of guilty was invalid. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. An Oktibbeha County grand jury returned a three-count indictment against Ducote, charging him with the sale of (1) dextropropoxyphene (Darvocet), (2) ecstasy and (3) hydrocodone, all in violation of Mississippi Code Annotated section 41-29-139 (Rev.2005). At the time, Ducote was an electrical engineering student at Mississippi State University. The sales occurred in his apartment in Starkville over a one-month period to an undercover agent. Initially, Ducote pleaded not guilty to all charges. However, in October 2005, Ducote entered a plea of guilty to the sale of ecstasy, only. At the sentencing hearing in January 2006, the judge viewed videotapes of the transactions and heard testimony from several witnesses in mitigation of sentencing. The judge ordered Ducote to serve eight years in the custody of the Mississippi Department of Corrections, with five years of post-release supervision and a fine of $5,000. Felony counts one and three were retired to the files.

¶ 3. On February 3, 2006, Ducote, appearing pro se, signed a motion to reconsider his sentence; however, the record does not reflect whether the motion was placed in the mail that day, turned into jail personnel for mailing or was given to any other person to mail. Ducote's motion to reconsider his sentence states it was "filed" with the circuit court on February 3, 2006, but this is an inaccurate statement. February 3 was apparently the date Ducote signed the motion. The circuit court stamped the motion "filed" on February 7, 2006 and entered it into the court docket on that date. In his motion, Ducote claimed there was material information regarding the mitigation of his sentence which was not produced for the court's consideration. In the alternative, Ducote moved the court to set aside his plea of guilty, which he claimed was not voluntary or intelligent. On March 10, 2006, Ducote's current counsel entered their appearances in circuit court. On March 23, 2006, the circuit court dismissed *1312 Ducote's motion to reconsider, finding the petition "not well taken" and denied a hearing on the matter. The court found it did not retain jurisdiction under Mississippi Code Annotated section 47-7-47 (Rev. 2004).[1] Also, the court stated that since Ducote "was sentenced during a previous term of court which had since ended," the court did not retain jurisdiction over Ducote regarding sentencing. On April 3, 2006, Ducote filed a motion for relief from the March 23 order and for reconsideration, noting that the term of court had not ended when he originally filed his motion to reconsider. There being no ruling from the trial court regarding this motion, on April 21, 2006, Ducote filed his notice of appeal of the circuit court's March 23rd order. Ducote raises four issues: (1) whether the circuit court erred in considering this action a petition for post-conviction relief, (2) whether the circuit court erred in refusing to consider Ducote's motion to reconsider his sentence for lack of jurisdiction, (3) whether Ducote's guilty plea was knowing and intelligent, and (4) whether one or more of the above errors resulted in ineffective assistance of counsel.

ANALYSIS

¶ 4. Ducote's appeal actually places before us two different procedural vehicles. First, we have the obvious appeal from a motion to reconsider his sentence. However, because of the wording of the motion, which in the alternative also requests his guilty plea be set aside because it was not voluntary or knowing, we also have before us an appeal from a motion for post-conviction relief. See Miss.Code Ann. § 99-39-5(1)(f) (Rev.2000) (stating one ground for post-conviction relief is whether plea involuntary). The trial court, in dismissing Ducote's motion, properly acknowledged and disposed of both matters. Even though one of Ducote's issues challenges whether the court erred in considering this action a petition for post-conviction relief, two of his other issues relate to well-established post-conviction issues: the validity of his plea and whether Ducote had ineffective assistance of counsel. Therefore, we shall address the motion under both procedural vehicles: first, as a motion to reconsider the sentence and then as a petition for post-conviction relief.

1. The Direct Appeal of the Motion to Reconsider Ducote's Sentence.

¶ 5. In the circuit court's March 23, 2006, order, it dismissed the motion for two reasons: because the circuit court did not retain jurisdiction and because the argument lacked merit. The court explained that it did not retain jurisdiction for two reasons: because Ducote's sentencing was during a previous term of court which had since ended and because the court did not retain jurisdiction under Mississippi Code Annotated section 47-7-47 (Rev.2004).

¶ 6. Our review of motions to reconsider a sentence is made under an abuse-of-discretion standard. Acker v. State, 797 So.2d 966, 969(¶ 10) (Miss.2001) (citing Wallace v. State, 607 So.2d 1184, 1191 (Miss.1992)). Sentencing is generally within the trial court's discretion and will not be disturbed on appeal if the sentence is within the statute's terms. Edge v. State, 945 So.2d 1004, 1008(¶ 15) (Miss.Ct. App.2007) (citing Davis v. State, 724 So.2d 342, 344(¶ 7) (Miss.1998)).

*1313 ¶ 7. Longstanding authority holds "[o]nce a case has been terminated and the term of court ends, a circuit court is powerless to alter or vacate its judgment," in the absence of a statute authorizing modification of a sentence. Presley v. State, 792 So.2d 950, 954(¶ 18) (Miss.2001) (quoting Harrigill v. State, 403 So.2d 867, 868-69 (Miss.1981)). However, this holding does not impact the ability of a circuit court to rule on motions which are pending at the end of the term of court, as these are allowed under Mississippi Code Annotated section 11-1-16 (Rev.2002). Id. Nor does this holding apply to URCCC 10.05, which states a motion for a new trial should be filed within ten days of the entry of judgment, regardless of when the term of court ends. Id. at 954(¶ 19). Additionally, section 47-7-47(2)(a) is one way a trial judge can statutorily revisit sentencing upon its own motion, after thirty days but before one year after the defendant has been delivered into the custody of the Department of Corrections.

¶ 8. Regarding the motion to reconsider the sentence, Ducote argues that the trial court retained jurisdiction. He maintains that the trial court has the authority to hear motions and appeals whether the court is in term or in vacation under URCCC 2.02. However, this is incorrect.[2]

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Bluebook (online)
970 So. 2d 1309, 2007 WL 4303517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ducote-v-state-missctapp-2007.