Dekerrius Ford v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-CP-00372-COA

DEKERRIUS FORD APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 06/10/2020
TRIAL JUDGE: HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: DEKERRIUS FORD (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ASHLEY LAUREN SULSER
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 04/05/2022
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE WILSON, P.J., GREENLEE AND EMFINGER, JJ.

WILSON, P.J., FOR THE COURT:

¶1. Dekerrius Ford appeals from the dismissal of his motion for post-conviction relief

(PCR). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In 2015, Ford and Jeremiah Hair stole a television, a television mount, and high

definition multimedia cables from an Office Depot in Greenville. The store’s assistant

manager, Sean Jackson, and two other employees told police that Jackson approached Hair

and Ford as they attempted to leave the store with the merchandise, but Hair raised his shirt

to display a handgun, placing the employees in fear for their lives. As a result, the employees

did not attempt to stop Hair and Ford from stealing the merchandise. A Washington County
grand jury indicted Hair and Ford for armed robbery.

¶3. In 2016, Ford entered a “best interest” or Alford plea1 to the charge of armed robbery.

At his sentencing hearing, Ford admitted that he participated in the robbery and that Hair

displayed a gun to the store’s employees. However, Ford claimed that he took part in the

robbery under “duress” after Hair had threatened him at gunpoint. The circuit court found

Ford’s “story to be totally unbelievable” and sentenced Ford to a term of twenty years in the

custody of the Department of Corrections, with fifteen years to serve, five years suspended,

and five years of post-release supervision.

¶4. In September 2017, Ford filed a PCR motion through retained counsel. Ford alleged

that around May 2017, Hair’s attorney had “discovered” a recording of a 911 call reporting

the robbery. Ford claimed that the recording was “exculpatory” and that the State had

committed a “discovery violation” by not disclosing it to him. Ford alleged that the 911

caller, “identified as Sean Jackson, denie[d] that there was a robbery and sa[id] the suspects

just put items in the basket, looked at them, and walked [out] of the store.” Ford also

“claim[ed] that his plea was not intelligently given” because “he did not know about the

[recording].” The circuit court denied Ford’s motion, ruling that “a defendant who pleads

guilty admits his culpability and, therefore, cannot later claim innocence even after the

1
North Carolina v. Alford, 400 U.S. 25, 37-38 & n.10 (1970) (holding that a court
may accept a guilty plea even if the defendant maintains his innocence provided there is a
factual basis for the plea and the defendant voluntarily and intelligently concludes it is in his
best interest to plead guilty).

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discovery of evidence not known to him prior to his conviction.” Ford did not appeal.2

¶5. The case against Hair proceeded to trial in December 2017. According to a sentencing

order attached to Ford’s present PCR motion, the jury convicted Hair of shoplifting, not

armed robbery, and Hair received a suspended sentence of six months in the county jail.

¶6. In 2018, Ford filed a pro se PCR motion that made the same claims as his first PCR

motion. The circuit court denied Ford’s second PCR motion as an impermissible successive

motion. See Miss. Code Ann. § 99-39-23(6). Ford appealed.

ANALYSIS

¶7. Under the Uniform Post-Conviction Collateral Relief Act, an “order dismissing . . .

or otherwise denying” a PCR motion “shall be a bar to a second or successive [PCR]

motion.” Id. Here, the circuit court denied Ford’s first PCR motion in 2017, and Ford did

not appeal. Therefore, Ford’s present motion is barred unless he can show that it comes

within an exception to the successive-motions bar. Ford bears the burden of proving that a

recognized exception to the successive-motions bar applies. E.g., Badger v. State, 290 So.

3d 377, 384 (¶29) (Miss. Ct. App. 2020).

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The circuit court erred to the extent that it held that a defendant who pleads guilty
cannot seek post-conviction relief based on newly discovered evidence. The Mississippi
Supreme Court has held that a defendant who pleads guilty may seek post-conviction relief
based on newly discovered evidence and may rely on the newly-discovered-evidence
exception to the applicable statute of limitations. Chancy v. State, 938 So. 2d 251, 252-53
(¶4) (Miss. 2006); accord Huggins v. State, 291 So. 3d 401, 403-04 (¶6) (Miss. Ct. App.
2020); see also Johnson v. State, 204 So. 3d 346, 349 (¶11) (Miss. Ct. App. 2016)
(recognizing that “[t]he newly-discovered-evidence exception” to the successive-motions
bar “does apply to situations where a defendant pleaded guilty”). However, Ford did not
appeal the circuit court’s ruling dismissing his first PCR motion. Therefore, the circuit
court’s “final judgment” dismissing Ford’s first PCR motion remains “conclusive” and “a
bar to a second or successive [PCR] motion.” Miss. Code Ann. § 99-39-23(6) (Rev. 2020).

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¶8. Ford argues his motion comes within a statutory exception for “cases in which the

petitioner can demonstrate . . . that he has evidence, not reasonably discoverable at the time

of trial, which is of such nature that it would be practically conclusive that, if it had been

introduced at trial, it would have caused a different result in the conviction or sentence.”

Miss. Code Ann. § 99-39-23(6). Ford argues that the 911 recording meets this standard.

However, for two reasons, we conclude that Ford fails to meet his burden of proving that the

exception applies.

¶9. First, Ford fails to show that the recording “is of such nature that it would be

practically conclusive that, if it had been introduced at trial, it would have caused a different

result in the conviction or sentence.” Id. Although Ford apparently attached the recording

to his first PCR motion, he failed to make it part of the record in this case.3 His second PCR

motion only described the recording’s alleged contents in general terms without attaching it.

As a result, Ford cannot show that it is “practically conclusive” that the result would have

been different if this recording had been available to him prior to his plea.

¶10. Second, Ford cannot establish that the 911 recording was not “reasonably discoverable

at the time of” his guilty plea. Miss. Code Ann. § 99-39-23(6). Although Ford alleges that

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Ford’s first PCR motion, which was filed as an exhibit to the State’s response in this
case, stated that the 911 recording was attached thereto as an exhibit. However, that exhibit
was not made a part of the record in this case. In addition, Ford did not attach the recording
to his second PCR motion, and he failed to show “good cause” for not attaching the
recording. See Miss. Code Ann. § 99-39-9(1)(e) (Rev. 2020) (“[A PCR] motion shall state
how or by whom [the] facts [alleged therein] will be proven. . . . [C]opies of documents or
records that will be offered shall be attached to the motion. . . . [T]he copies of documents
and records may be excused upon a showing, which shall be specifically detailed in the
motion, of good cause why they cannot be obtained.”).

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the State did not disclose the recording in a response to a discovery request, he offers nothing

to support this claim. With respect to this issue, the only relevant fact the record does

establish is that Ford’s codefendant, Hair, obtained the 911 recording at some point. Ford

fails to show why he could not have also obtained the recording prior to pleading guilty.

Thus, for multiple reasons, Ford cannot meet his burden of showing that his second PCR

motion is excepted from the statutory bar on successive motions.

¶11. Although the primary focus of Ford’s arguments is the 911 recording, his PCR motion

and appellate brief also reference an allegedly exculpatory surveillance video from the store.

However, Ford does not specifically allege that the surveillance video could not have been

discovered prior to his guilty plea. Indeed, the contemporaneous police report in the record

specifically discusses the video footage and notes that callers to crime stoppers identified

Ford and Hair after the “video footage . . . was aired on television.” Accordingly, the

surveillance video was “reasonably discoverable” at the time of Ford’s plea, and any claim

related to it also cannot survive the successive-motions bar. Id. There is also nothing in the

record to indicate that the video is exculpatory.

¶12. On appeal, Ford also argues that the circuit court erred by dismissing his second PCR

motion without an evidentiary hearing. However, a circuit court may dismiss a PCR motion

without an evidentiary hearing if the movant fails to show that his claim is “procedurally

alive.” E.g., Porter v. State, 281 So. 3d 935, 938 (¶15) (Miss. Ct. App. 2019); Dever v. State,

210 So. 3d 977, 979 (¶2) (Miss. Ct. App. 2017), cert. denied, 229 So. 3d 118 (Miss. 2017);

Timmons v. State, 176 So. 3d 168, 176 (¶35) (Miss. Ct. App. 2015). Ford was not entitled

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to an evidentiary hearing because his motion was subject to the successive-motions bar.

¶13. Finally, Ford argues that his right to a “speedy trial” was violated by the delay

between the filing and disposition of his second PCR motion4 and delays by the circuit clerk

and court reporter in preparing the record on appeal. However, the Sixth Amendment to the

United States Constitution and Article 3, Section 26 of the Mississippi Constitution guarantee

“a speedy and public trial.” (Emphasis added). They do not impose any requirements on

collateral post-conviction proceedings. As the United States Supreme Court put it, the

speedy-trial “guarantee protects the accused from arrest or indictment through trial, but does

not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal

charges.” Betterman v. Montana, 578 U.S. 437, 439 (2016). Moreover, although our

Supreme Court has said that in “rare” cases “substantial delays during the criminal appellate

process” may “implicate[]” “due process concepts,” the Court has also made clear that the

“denial of a speedy appeal is not reversible error on its own in this state.” Crawford v. State,

192 So. 3d 905, 912-13 (¶38) (Miss. 2015). Therefore, Ford’s complaints about delays in

this successive post-conviction proceeding are also without merit.

¶14. In summary, the circuit court correctly dismissed Ford’s second PCR motion as an

impermissible successive motion. Miss. Code Ann. § 99-39-23(6). Therefore, the judgment

of the circuit court is AFFIRMED.

BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, McDONALD,

4
Ford filed his second PCR motion in November 2018, but the circuit judge stated
that he did not receive a copy until April 2020. The judge then ordered the State to respond
and entered an order dismissing the motion in June 2020.

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LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.

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