Kevin Barome Collins a/k/a Kevin Collins a/k/a Kevin B. Collins v. State of Mississippi

• Court: Court of Appeals of Mississippi
• Decided: February 23, 2021
• Docket: 2019-CP-01760-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CP-01760-COA

KEVIN BAROME COLLINS A/K/A KEVIN APPELLANT COLLINS A/K/A KEVIN B. COLLINS

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 09/30/2019 TRIAL JUDGE: HON. MICHAEL M. TAYLOR COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: KEVIN BAROME COLLINS (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 02/23/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE BARNES, C.J., GREENLEE AND WESTBROOKS, JJ.

GREENLEE, J., FOR THE COURT:

¶1. Kevin Collins appeals from the Lincoln County Circuit Court’s dismissal of his

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

FACTS AND PROCEDURAL HISTORY

¶2. In 2014, Collins was indicted for murder, conspiracy to commit murder, aggravated

assault, and possession of a firearm by a felon. In May 2015, Collins pled guilty to

manslaughter and aggravated assault. For the manslaughter conviction, he was sentenced to

serve twenty years in the custody of the Mississippi Department of Corrections. For the

aggravated-assault conviction, he was sentenced to ten years, with eight years suspended and two years to serve, and five years of post-release supervision. The circuit court ordered

Collins’s sentences to run consecutively, and he was ordered to pay a $5,000 fine, $5,858.95

in restitution, and $419.50 in court costs.

¶3. In March 2017, Collins filed a PCR motion claiming (1) his convictions were against

the overwhelming weight of the evidence, (2) his guilty plea lacked a sufficient factual basis,

(3) the court did not advise him of certain constitutional rights, (4) his indictment was

defective, and (5) he received ineffective assistance of counsel. Subsequently, the circuit

court entered an order dismissing Collins’s motion. Collins filed a notice of appeal that our

supreme court dismissed as untimely filed in July 2018. Collins filed a motion to reinstate

the appeal after the mandate issued, which was denied.

¶4. In August 2019, Collins filed a second PCR motion reasserting the claims that he

raised in his first PCR motion. The circuit court dismissed the motion as time-barred and

barred as a successive motion. The court further held that Collins’s claims did not overcome

the procedural bars. Now Collins appeals.

STANDARD OF REVIEW

¶5. “When reviewing a [circuit] court’s denial or dismissal of a PCR motion, we will only

disturb the [circuit] court’s decision if it is clearly erroneous; however, we review the

[circuit] court’s legal conclusions under a de novo standard of review.” Williams v. State,

228 So. 3d 844, 846 (¶5) (Miss. Ct. App. 2017) (quoting Thinnes v. State, 196 So. 3d 204,

207-08 (¶10) (Miss. Ct. App. 2016)).

DISCUSSION

2 ¶6. Under the Mississippi Uniform Post-Conviction Collateral Relief Act (UPCCRA), any

order denying or dismissing a PCR motion is a bar to a second or successive PCR motion.

Miss. Code Ann. § 99-39-23(6) (Rev. 2015). Additionally, Collins had three years after the

entry of the judgment of conviction to file a PCR motion. Id. § 99-39-5(2) (Rev. 2015).

Because Collins’s PCR motion is not his first and was filed more than three years after the

entry of the judgment of conviction, it is procedurally barred. Notwithstanding the bar, we

briefly address his contentions below.

¶7. It is true that “errors affecting fundamental rights may be excepted from procedural

bars.” Rowland v. State, 42 So. 3d 503, 505-06 (¶7) (Miss. 2010) (internal quotation marks

omitted). But “the mere assertion of a constitutional[-]right violation does not trigger the

exception.” Evans v. State, 115 So. 3d 879, 881 (¶3) (Miss. Ct. App. 2013) (internal

quotation mark omitted) (quoting Wicker v. State, 16 So. 3d 706, 708 (¶5) (Miss. Ct. App.

2009)). To find an exception to the bar, “there must at least appear to be some basis for the

truth of the claim . . . .” Id. (quoting Stovall v. State, 873 So. 2d 1056, 1058 (¶7) (Miss. Ct.

App. 2004)).

I. Weight of the Evidence

¶8. Collins claims his convictions were against the overwhelming weight of the evidence.

Collins notes that his indictment alleged he used both a “firearm” and a “handgun” to shoot

the victims, and he suggests that it was impossible for him to have used two different

weapons. He also argues that the aggravated-assault statute requires an intended victim to

exist, and he did not intend to shoot at least one of the victims. However, this Court has held

3 that challenges to the weight of the evidence are waived by pleading guilty. See Pegues v.

State, 214 So. 3d 1080, 1083 (¶13) (Miss. Ct. App. 2017). Because Collins pled guilty, this

issue was waived.

II. Factual Basis

¶9. Collins claims that an insufficient factual basis existed for his guilty plea. “Prior to

accepting a defendant’s guilty plea, the circuit court must first decide whether the plea is

voluntarily and intelligently made and whether a factual basis exists to support the plea.”

Tucker v. State, 294 So. 3d 690, 695 (¶9) (Miss. Ct. App. 2020) (citing Venezia v. State, 203

So. 3d 1, 2 (¶6) (Miss. Ct. App. 2016)). “There are many ways to establish a factual basis,

including a statement of the prosecutor, the testimony of live witnesses, and prior

proceedings, as well as an actual admission by the defendant.” Id. (quoting Jenkins v. State,

202 So. 3d 220, 222 (¶8) (Miss. Ct. App. 2016)). “This Court reviews the entire record to

determine whether a factual basis supported the defendant’s plea.” Id. (citing Smith v. State,

86 So. 3d 276, 280-81 (¶11) (Miss. Ct. App. 2012)).

¶10. At the plea hearing, the court asked the State for a factual basis to support Collins’s

plea:

COURT: The State have proffers?

STATE: We do, Your Honor. As to Count 1, on or about October the 13th of 2013, Kevin Collins and David Earl Jones went to a residence . . . and found Mr. Darian Reese. A shootout occurred in which Mr. Reese was hit and died at the hospital. As to Count 3, on the same date, October 13th of 2013, in the middle of this shootout, Ms. Kimberly Simon was driving north on MLK and was hit - - a bullet came through her front windshield and hit her in the shoulder. That is to the aggravated assault.

4 ....

COURT: All right. And, Mr. Collins, there’s one thing - - I got kind of off my normal routine talking about the plea agreement. Have you had a chance to go over the evidence in this case with your attorney?

COLLINS: Yes, sir.

COURT: Are you satisfied that if we had a trial and brought that out, that the jury would have enough evidence to find you guilty of manslaughter and aggravated assault?

¶11. Collins heard the factual statements presented by the State and admitted that enough

evidence existed to support convictions for manslaughter and aggravated assault. Upon

reviewing the entire record, and based upon the statements made during the plea hearing by

the State and Collins, we find that a sufficient factual basis was established to support

Collins’s plea.

III. Constitutional Rights

¶12. Collins claims the circuit court failed to advise him of certain constitutional rights.

“A guilty plea is binding where it is entered voluntarily, knowingly, and intelligently.” Hill

v. State, 60 So. 3d 824, 828 (¶11) (Miss. Ct. App. 2011) (citing Alexander v. State, 605 So.

2d 1170, 1172 (Miss. 1992)). “A plea will be deemed to meet this standard where ‘the

defendant is advised concerning the nature of the charge against him and the consequences

of the plea.’” Id. (quoting Mason v. State, 42 So. 3d 629, 632 (¶7) (Miss. Ct. App. 2010)).

“Specifically, the defendant must be advised that his guilty plea waives multiple

5 constitutional rights.” Id. (citing Hannah v. State, 943 So. 2d 20, 25 (¶12) (Miss. 2006)).

¶13. Collins asserts that he was not advised that he had a right to counsel, a right to cross-

examine witnesses, and a right against self-incrimination. However, the transcript from the

plea hearing shows otherwise:

COURT: You have the right to have an attorney represent you at all stages of the proceeding or at every part of the case. If you can’t afford an attorney, you have the right to have one appointed for you and paid for by the county. Was [counsel] hired to represent you in this case?

....

COURT: . . . You have the right to confront and have [counsel] cross- examine any witnesses who bring testimony or other evidence against you. You have the right not to give any information that incriminates you, and you have the right not to provide any information or any evidence at all. You have the right to testify in your own defense, but you also have the right not to testify. You have the choice as to which of those you decide to do. . . . Do you understand those rights?

COURT: Mr. Collins, do you understand that if you plead guilty here today in court, you give up, or waive, all of those rights?

¶14. A review of the transcript shows Collins was advised that he had a right to counsel

(and had hired counsel), and he was advised that by entering a guilty plea he would waive

his right to cross-examine witnesses and his right against self-incrimination. Therefore, this

issue is without merit.

6 IV. Indictment

¶15. Collins claims his indictment was defective because it did not conclude with the words

“against the peace and dignity.” Article 6, Section 169 of the Mississippi Constitution

provides, in relevant part, that “all indictments shall conclude ‘against the peace and dignity

of the State.’” This Court has held that “while the concluding statement is, in fact, required,

it is a matter of the form of the indictment.” Collins v. State, 270 So. 3d 63, 67 (¶13) (Miss.

Ct. App. 2018) (quoting Pegues, 214 So. 3d at 1082 (¶5)). “As such, claims regarding the

concluding statement ‘must be raised as a demurrer to the indictment and are waived by a

valid guilty plea.’” Id. There is no indication in the record that Collins objected to his

indictment prior to pleading guilty. Therefore, this issue was waived. Nevertheless, a review

of the record shows that Collins’s indictment concluded with the words “against the peace

and dignity of the State.”

¶16. Collins also claims his indictment was defective because it contained a citation to an

incorrect statute. The State admits that the indictment contained an incorrect citation in the

charge of conspiracy to commit murder.1 However, this Court has held that “a valid guilty

plea waives all non-jurisdictional defects to an indictment.” Ivy v. State, 31 So. 3d 643, 645

(¶6) (Miss. Ct. App. 2009). Furthermore, this Court has held that “the incorrect citation of

a statute number does not alone render an indictment defective, but rather is ‘mere

surplusage’ and not prejudicial to a defendant.” Evans v. State, 916 So. 2d 550, 552 (¶6)

(Miss. Ct. App. 2005) (citing White v. State, 169 Miss. 332, 153 So. 387, 388 (1934)).

1 The State notes that this charge was ultimately dismissed as part of Collins’s plea agreement.

7 “When an indictment provides the essential elements of the crime, the statutory subsection

under which the defendant was charged need not be specified.” Id. (citing Carroll v. State,

755 So. 2d 483, 487 (¶¶9-11) (Miss. Ct. App. 1999)). Because Collins pled guilty, this issue

was waived.

V. Ineffective Assistance of Counsel

¶17. Finally, Collins claims he received ineffective assistance of counsel. In order to prove

ineffective assistance of counsel, Collins must show that “(1) counsel’s performance was

deficient and (2) the deficient performance prejudiced the defense.” Herrington v. State, 102

So. 3d 1241, 1244 (¶10) (Miss. Ct. App. 2012) (quoting Strickland v. Washington, 466 U.S.

668, 687 (1984)).

¶18. Collins contends that his attorney’s assistance was ineffective for failing to raise the

issues that he (Collins) raised in PCR proceedings and on appeal. However, “[b]ecause we

have held that the underlying claims are without merit, [Collins] cannot show the requisite

deficient performance and resulting prejudice necessary to establish the various claims of

ineffective assistance of counsel.” Walker v. State, 863 So. 2d 1, 11 (¶16) (Miss. 2003).

¶19. Collins also claims that his attorney coerced him into pleading guilty to fraudulent

charges. This Court had held that “[g]reat weight may be placed on a defendant’s sworn

testimony given at a plea hearing, because ‘solemn declarations in open court carry a strong

presumption of verity.’” Evans v. State, 114 So. 3d 778, 781 (¶9) (Miss. Ct. App. 2013)

(quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)). And “[a] defendant faces a ‘high

hurdle in recanting that testimony.’” Id. (quoting Pevey v. State, 914 So. 2d 1287, 1290 (¶8)

8 (Miss Ct. App. 2005)).

¶20. During the plea hearing, Collins indicated that he had not been coerced to plead guilty:

COURT: Has anyone threatened you or abused you to cause you to want to plead guilty?

COLLINS: No, sir.

COURT: Other than a reduction of the charges and a sentencing recommendation, have you been promised anything?

Collins also indicated that he was satisfied with the assistance of his attorney. The only

evidence offered by Collins to support his claim that he was coerced is his own unsupported

assertions.

¶21. Collins has failed to demonstrate that there is any merit to his claims, and they are not

excepted from the procedural bars. Therefore, we affirm the circuit court’s dismissal of post-

conviction relief.

¶22. AFFIRMED.

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