Peckinpaugh v. State

949 So. 2d 86, 2006 Miss. App. LEXIS 547, 2006 WL 2129872
CourtCourt of Appeals of Mississippi
DecidedAugust 1, 2006
DocketNo. 2005-CP-00796-COA
StatusPublished
Cited by3 cases

This text of 949 So. 2d 86 (Peckinpaugh 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
Peckinpaugh v. State, 949 So. 2d 86, 2006 Miss. App. LEXIS 547, 2006 WL 2129872 (Mich. Ct. App. 2006).

Opinion

ISHEE, J.,

for the Court.

¶ 1. Gilbert Dale Peckinpaugh pled guilty to one count of failure to register as a sex offender and one count of possession via the Internet of a visual depiction of a child under the age of eighteen engaged in sexually explicit conduct, in the Circuit Court of Pearl River County. For possession via the Internet of a visual depiction of a child under the age of eighteen engaged in sexually explicit conduct (“possession of child pornography”), Peckinpaugh was sentenced to serve twenty years, with five years to serve and fifteen years suspended, pending successful completion of five years of post-release supervision, in the custody of the Mississippi Department of Corrections. For failure to register as a sex offender, Peckinpaugh was sentenced to serve five years in the custody of the Mississippi Department of Corrections, to be served consecutively with the twenty-year sentence for possession of child pornography. Peckinpaugh’s pro se motion for post-conviction relief was denied by the circuit court. Aggrieved by the circuit court’s decision, Peckinpaugh appealed. Finding no error, we affirm.

FACTS

¶ 2. Peckinpaugh was indicted in two separate indictments by a Pearl River County grand jury for five counts of possession of child pornography, in violation of Mississippi Code Annotated section 97-5-38(5) (Supp.2005); one count of exhibiting to another obscene material of sexual acts of bestiality and fondling of sex organs of animals, in violation of Mississippi Code Annotated section 97-29-101 (Rev. 2000); one count of failure to register as a sex offender, in violation of Mississippi Code Annotated section 45-33-27 (Supp. 2005); and two counts of sexual battery, in violation of Mississippi Code Annotated section 97-3-95(l)(b) (Rev.2000). The first indictment, containing the failure to register as a sex offender and sexual battery charges, was handed down during the August term of 2002.1 The second indictment, containing the remaining charges, was handed down during the December term of 2002.2

¶ 3. On August 12, 2003, during a guilty plea hearing, Peckinpaugh pled guilty to failure to register as a sex offender and possession of child pornography. The State dropped the remaining charges, including both counts of sexual battery, one count of exhibiting to another obscene material, and four of the five counts of possession of child pornography.

¶ 4. Richard C. Fitzpatrick, Peckin-paugh’s court-appointed counsel, assisted Peckinpaugh in filling out a sworn petition to enter a plea of guilty for each of the charges to which Peckinpaugh pled guilty. In both of the petitions to enter a plea of guilty, Peckinpaugh acknowledged that his lawyer counseled and advised him on the nature of each charge, on any and all lesser-included charges, and on all possible defenses. He further acknowledged in the petitions that by pleading guilty he waived certain constitutional guarantees, such as the right to have an attorney at all proceedings, the right to a trial, and the presumption of innocence until proven guilty beyond a reasonable doubt. Regarding [89]*89the count of failure to register as a sex offender, Peckinpaugh acknowledged that he could possibly receive a sentence of zero to five years and/or a fine of zero to $5,000. Regarding the count of possession of child pornography, Peckinpaugh acknowledged that he could possibly receive a sentence of two to twenty years and/or a fine of $25,000 to $100,000. In both petitions, Peckinpaugh also acknowledged that no officer or agent of any branch of government (federal, state, or local) made any promise or suggestion that he would receive a fighter sentence, probation, or any other form of leniency. Finally, Peckin-paugh stated that he was satisfied with the advice and help of his counsel and that he offered his guilty pleas “freely and voluntarily and of [his] own accord and with full understanding of all the matters set forth in the indictment and in [the petitions to enter a plea of guilty].”

¶ 5. Peckinpaugh was sentenced on August 18, 2003, and on March 2, 2005, he filed a motion for post-conviction relief. In the motion for post-conviction relief, Peckinpaugh stated that he did not take issue with his conviction and sentence for failure to register as a sex offender. He also stated that he was not asserting a claim for ineffective assistance of counsel. Instead, Peckinpaugh challenged his conviction for possession of child pornography, asserting that he was innocent and that the judge had no authority to give him a suspended sentence for possession of child pornography because he had a prior conviction for sexual battery and unlawful deviant conduct in Indiana. Peckinpaugh further asserted that his guilty plea was involuntary because his attorney told him that the judge and the prosecutor agreed to give him a sentence of one year for failure to register, and one year for the single count of possession of child pornography, with both of the sentences to run consecutively and the remaining charges would be nolle prossed.

¶ 6. The circuit court held that the use of the term “suspended” in the sentencing order was mere surplusage, and that suspension of Peckinpaugh’s sentence was either no error at all or harmless error. Regarding the voluntariness of the plea, the court held that each of Peckinpaugh’s rights was carefully and thoroughly explained to him during the guilty plea hearing and in his signed petition to enter a plea of guilty. The court also held that the elements of the charges were sufficiently set forth in the indictments and that the record contained sufficient facts upon which a jury might have found Peckin-paugh guilty of the charges to which he pled. Moreover, the court noted that Pec-kinpaugh stated during the guilty plea hearing that he was under no pressure to plead guilty. Consequently, the court determined that Peckinpaugh entered his guilty pleas voluntarily and intelligently. On March 24, 2005, the court dismissed his motion for post-conviction relief. From that dismissal, Peckinpaugh appeals. He asserts the following issues for this Court’s review, which we summarize as follows:

I. Whether the circuit court lacked jurisdiction because of improper indictments.
II. Whether Peckinpaugh willfully, intentionally, or knowingly violated any law.
III. Whether the State and the court breached a plea bargain agreement with Peckinpaugh.
IV. Whether Peckinpaugh’s conviction for failure to register as a sex offender is unconstitutional because of the ex post facto clause.
V. Whether the State committed pros-ecutorial error and/or misconduct when it breached the sentencing agreement, withheld exculpatory ev[90]*90idence, and violated the ex post fac-to clause.
VI. Whether Peckinpaugh received ineffective assistance of counsel.
VII. Whether Peckinpaugh’s actual, factual, and legal innocence has been established.

STANDARD OF REVIEW

¶ 7. When reviewing the denial of a motion for post-conviction relief, we will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Pace v. State, 770 So.2d 1052, 1053(¶4) (Miss.Ct.App.2000) (citing Terry v. State, 755 So.2d 41, 42(¶ 4) (Miss.Ct. App.1999)). However, where questions of law are raised, the applicable standard of review is de novo. Id.

¶ 8.

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Bluebook (online)
949 So. 2d 86, 2006 Miss. App. LEXIS 547, 2006 WL 2129872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peckinpaugh-v-state-missctapp-2006.