         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2015-CP-00575-COA

DONALD MITCHELL A/K/A DONALD K.                                              APPELLANT
MITCHELL A/K/A “BLACK”

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                           05/28/2015
TRIAL JUDGE:                                HON. WILLIAM A. GOWAN JR.
COURT FROM WHICH APPEALED:                  HINDS COUNTY CIRCUIT COURT,
                                            FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                     DONALD MITCHELL (PRO SE)
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: ALICIA MARIE AINSWORTH
NATURE OF THE CASE:                         CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                    MOTION FOR POST-CONVICTION RELIEF
                                            SUMMARILY DISMISSED
DISPOSITION:                                AFFIRMED - 02/28/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       WILSON, J., FOR THE COURT:

¶1.    Donald Mitchell pled guilty to possession of cocaine with intent to distribute and was

sentenced to thirty years in the custody of the Mississippi Department of Corrections

(MDOC), with twenty years suspended and ten years to serve. Mitchell had been indicted

as a violent habitual offender and thus faced a life sentence without the possibility of parole

if found guilty at trial.

¶2.    Mitchell subsequently filed a motion for post-conviction relief (PCR), claiming that
he received ineffective assistance of counsel and that his plea was involuntary. Both claims

are based on Mitchell’s allegation that his attorneys coerced him into pleading guilty and

abandoned a meritorious motion to suppress evidence. The circuit court summarily

dismissed Mitchell’s PCR motion. We affirm because Mitchell’s motion to suppress lacked

merit; therefore, his attorneys did not provide ineffective assistance by advising him to accept

the State’s plea offer, and his plea was not involuntary.

                         FACTS AND PROCEDURAL HISTORY

¶3.    Donald Mitchell was indicted as a violent habitual offender, Miss. Code Ann. § 99-19-

83 (Rev. 2015),1 for possession of cocaine with intent to distribute. His indictment resulted

from a search of an apartment on West Capitol Street in Jackson. Detective Kevin Dear of

the Jackson Police Department obtained a warrant for the search from a Jackson municipal

judge. Dear’s signed statement of “Underlying Facts and Circumstances,” which was

attached to and specifically incorporated by reference in Dear’s affidavit for the search

warrant, stated as follows:

              In August of 2008, Detectives of the Jackson Police Department’s
       Narcotics Division were told of a subject named “Black” who was operating
       a “trap house” on Capitol Street, at 2100 Capitol, in a red brick two story
       building. (A trap house is a residence that is used by the drug dealer during the
       hours that the dealer sells narcotics but one [in which] the dealer does not
       live.)

              The suspect “Black” was identified as Donald Mitchell, [and] was said
       to be a convicted felon. The suspect was said to be in possession of a
       substantial amount of crack cocaine.

                Anonymous sources have also called in tips to the Narcotics office

       1
           Mitchell has prior convictions for manslaughter and drug possession.

                                               2
       giving very specific details of this subject’s activities which were
       independently verified through our resources.

              Also, on Wednesday, September 3, 2008, a black male in this parking
       lot by the back door to this apartment tried to flag undercover narcotics
       detectives down in an attempt to sell them illegal narcotics. The suspect was
       not apprehended due to him escaping on foot.

              The residence is at 2100 Capitol Street, the bottom apartment on the
       western side of the building. The numbers have been removed preventing
       exact determination of the apartment number.

              On September 4, 2008, Detectives spoke with a confidential and
       reliable source that has been proven reliable in the past by giving true and
       accurate information in the area of narcotics trafficking in and around the city
       of Jackson. This source states that the house is controlled by “Black” who the
       source identified as Donald Mitchell. The C.I. (confidential informant) stated
       that the back door to this apartment is where the transactions take place and
       that this door is “fortified,” meaning there are dead fall locks using large
       pieces of wood which would prevent speedy entry by Police Officers.

               This C.I. stated that he or she has seen a large amount of crack cocaine
       being stored and distributed at this location by this suspect and that the suspect
       is selling the cocaine from this apartment[,] and the C.I. states that he or she
       has seen this within the past twenty-four hours.

              . . . Therefore, it is requested that a search warrant be issued for 2100
       Capitol Street, bottom western apartment, which is operated and under the
       control of a subject named Donald Mitchell.

                ....

                [signature]
                Detective Kevin Dear
                Jackson Police Department
                Narcotics Division [2]

¶4.    The municipal judge found that probable cause for the search existed and issued the

warrant. The return on the warrant states that it was received “on the 4th day of September

       2
           Portions of the narrative were redacted at Mitchell’s trial and are omitted above.

                                               3
2008” and executed “on the 4th day of September 2008,” with the date, month, and year

handwritten on the form. On the warrant and the affidavit, however, the municipal judge

wrote in “Aug” on the lines for the month. But as noted above, the affidavit specifically

incorporates by reference Dear’s signed statement of “Underlying Facts and Circumstances,”

which was also attached to the affidavit. Dear’s statement specifically discusses events that

occurred on September 3 and September 4. Obviously, the judge could not have witnessed

an affidavit or issued a warrant based on events that did not occur for another month. The

only logical conclusion that can be drawn is that “Aug” was a scrivener’s error.

¶5.    Mitchell was represented at trial by privately retained counsel who filed a number of

pretrial motions; however, he did not file a motion to suppress or any other motion alleging

irregularity in the issuance or execution of the search warrant. At trial, the search warrant

and the supporting affidavit, together with the attached Underlying Facts and Circumstances,

were admitted into evidence as a single exhibit, S-2. The entire exhibit was also included in

Mitchell’s record excerpts in his direct appeal from his subsequent conviction. Dear testified

at trial that the search warrant was issued on September 4, 2008. He also testified that he and

other officers executed the search warrant “[o]n the same day [they] obtained it.” Mitchell’s

brief in his initial appeal similarly stated that the judge granted the search warrant on

September 4, 2008, and that officers executed the warrant the same day. On direct appeal,

Mitchell did not raise any issue as to the validity of the search warrant.

¶6.    Following a jury trial, Mitchell was convicted of possession of cocaine with intent to

distribute, and the circuit court sentenced him to life imprisonment without parole as a



                                              4
violent habitual offender. On appeal, the Mississippi Supreme Court held that the circuit

court abused its discretion by allowing the admission of evidence of Mitchell’s prior

convictions for drug possession. The Supreme Court therefore remanded Mitchell’s case to

the circuit court for a new trial. Mitchell v. State, 110 So. 3d 732, 735 (¶14) (Miss. 2013).

¶7.    On remand, the Hinds County Public Defender’s Office was appointed to represent

Mitchell, and a different assistant district attorney represented the State. Mitchell’s new

attorney filed a motion to suppress, alleging that the search warrant was invalid because it

was executed a month after it was issued in violation of Mississippi Code Annotated section

41-29-157(a)(3) (Rev. 2013)3 and the Fourth Amendment to the United States Constitution.

The motion attached the search warrant and affidavit and relied on the apparent scrivener’s

errors in those documents; however, the motion failed to attach the signed statement of

Underlying Facts and Circumstances as part of the affidavit.

¶8.    The motion was served on the State on October 9, 2013. The State offered to allow

Mitchell to plead guilty as a non-habitual offender and to recommend a sentence of thirty

years with twenty years suspended and ten years to serve. But the State told Mitchell that the

offer would expire on October 10, 2013. In other words, Mitchell could either accept the



       3
         This provision, which applies to warrants issued under the Uniform Controlled
Substances Law, states that “[a] warrant issued pursuant to this section must be executed and
returned within ten (10) days of its date unless, upon a showing of a need for additional time,
the court orders otherwise.” Miss. Code Ann. § 41-29-157(a)(3). Rule 4.3(1) of the new
Mississippi Rules of Criminal Procedure (effective July 1, 2017) imposes the same
requirement. A leading treatise states that courts have “sometimes” suppressed evidence
because of noncompliance with such provisions, “though other courts are disinclined to
require suppression where there is no Fourth Amendment violation.” 2 Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment § 4.7(a) (5th ed. 2012).

                                              5
State’s offer or litigate his motion to suppress, but he could not do both.

¶9.    At a hearing in the circuit court on October 10, 2013, Mitchell’s counsel advised the

court as follows:

               I’ve explained to the defendant, and I’d like to put this on the record,
       that this is a case that he has already been found guilty by a jury one time, and
       it’s been reversed by the [Supreme] [C]ourt, as the Court is well aware; that
       he is a [99-]19-83 habitual, meaning if the jury finds him guilty of anything in
       this case, he is facing life in prison.

              The State has put an offer on the table today that is 30 years, 20
       suspended, 10 to serve. I’ve explained to him, and the sticking point here is
       we -- and I understand his concern, and we have filed a motion which we have
       served on the State and on the Court, motion to suppress the evidence in this
       case based on a bad search warrant.

              The search warrant -- and the motion will be presented to the Court, but
       I’ve explained to him that the State has made this offer and that it expires
       today, as the State has informed me.

               If the offer goes off the table, then we have no choice but to go back to
       trial on this case; that if we go to trial and he is convicted again, he is facing
       life in prison.

             But I’ve explained to him that it is not -- I can’t decide what this young
       man needs to do with his life. This is his decision and his decision only.

               And I’ve explained to him that he needs to announce to the Court
       whether he wants to go ahead and accept the offer of the State, which is a 10
       year sentence or -- and it’s as a non-habitual with no enhancements, so he will
       be eligible for good time credit through the MDOC system, whatever credit
       that might be. The lawyers are no longer allowed to advise what that
       realistically will mean.

              But I’ve explained to him that -- he understands the plea. He
       understands that if we go back and he is found guilty, he is facing life in prison
       again.

              And I, of course, as an attorney I can’t make a recommendation one
       way or another of how we will do at trial because I will never tell a client ever

                                               6
       we will win this or we will lose it. I just can’t do that because I don’t know.

             That being said, it’s his opportunity to announce to the Court whether
       he wants to accept the State’s offer or whether he wants another trial.

¶10.   The court then asked Mitchell what he wanted to do, and Mitchell said that he wanted

to pursue his motion to suppress and go to trial. Based on Mitchell’s decision, the court

began reviewing its schedule for an open trial date. The prosecutor then reiterated that the

State’s plea offer would be revoked based on Mitchell’s decision. In response, Mitchell’s

attorney asked for a brief recess so that she and two other attorneys in her office “could speak

with [Mitchell] for just a moment.” The court agreed, stating, “I certainly don’t want to rush

him because I know it’s a very important decision.”

¶11.   After a brief recess, Mitchell informed the court that he wanted to accept the State’s

offer and plead guilty. Mitchell testified under oath that he had conferred with all three

attorneys about his decision and that he was satisfied with the advice they had given him.

He testified that he understood everything in his plea petition and that no one had threatened

him or coerced him in any way in order to get him to plead guilty. The court advised

Mitchell of the rights that he would waive by pleading guilty, and Mitchell testified that he

understood. See URCCC 8.04(A)(4)(c). The State recited the factual basis of the plea, and

Mitchell testified that he agreed with it. Mitchell then pled guilty, and the court found that

his plea was entered freely and voluntarily after he had been advised of his rights by counsel

and by the court.

¶12.   The prosecutor then reiterated the State’s plea offer and recommended sentence of

thirty years in MDOC custody, with twenty years suspended and ten years to serve. The

                                               7
prosecutor advised the court that the State’s offer was “based on some litigation risk

associated with the search warrant, as well as an officer who was involved that was later

indicted.” The prosecutor stated that the “officer was subsequently acquitted,” but there were

“some issues surrounding” his indictment “that could come up at trial.”4 The court accepted

the State’s recommendation and sentenced Mitchell accordingly.

¶13.   On May 19, 2015, Mitchell filed a PCR motion seeking to set aside his conviction.

Mitchell’s PCR motion attached his previously filed motion to suppress, with the search

warrant and affidavit but not the statement of Underlying Facts and Circumstances. In his

motion, Mitchell alleged that his lawyer gave him “erroneous” advice—specifically, that she

told him that the circuit court “would deny his motion” to suppress and sentence him to life

without parole upon conviction. Mitchell maintains that this was bad advice because the

search warrant was “stale” and invalid. He alleges that he was thereby “coerced” into

abandoning the motion and pleading guilty.         The circuit court summarily dismissed

Mitchell’s motion without directing the State to respond.

                                       DISCUSSION

¶14.   We affirm the denial of Mitchell’s PCR motion for a straightforward reason: the

motion’s foundational premise—that the search warrant was stale and invalid—is factually

incorrect. The only logical conclusion that can be drawn is that the officers applied for and

received the warrant on September 4, 2008, and executed it the same day. That the municipal

judge mistakenly wrote “Aug” on the form affidavit and warrant is of no consequence. A

       4
         Multiple officers were involved in the case. The prosecutor did not specify which
officer was indicted and subsequently acquitted.

                                              8
judge’s scrivener’s errors in an affidavit and warrant do not render the warrant invalid. See,

e.g., United States v. Walker, 534 F.3d 168, 171-72 (2d Cir. 2008).

¶15.   Because the allegations in the motion to suppress were factually inaccurate, the

motion lacked merit, and Mitchell’s attorneys did not provide ineffective assistance. A claim

of ineffective assistance requires proof (1) that counsel’s performance was seriously and

objectively deficient and (2) that the defendant suffered prejudice as a result. Strickland v.

Washington, 466 U.S. 668, 687 (1984). Here, if Mitchell’s retrial had again ended with a

guilty verdict, he faced a mandatory sentence of life in prison without the possibility of

parole. He alleges that his attorneys prevailed upon him to accept the State’s offer of ten

years to serve, with twenty years suspended, rather than pursue his motion to suppress.

Based on the true facts, Mitchell’s motion to suppress was frivolous. Therefore, his attorneys

alleged advice to abandon the motion and accept a favorable plea offer simply cannot

establish a claim of ineffective assistance of counsel.

¶16.   The above discussion draws primarily on the signed statement of Underlying Facts

and Circumstances that was attached to and incorporated by reference in Dear’s affidavit

supporting the search warrant. Because Mitchell did not attach this document to his PCR

motion, it is not part of the clerk’s papers transmitted from the circuit clerk to this Court.

However, for reasons that are not clear, the circuit clerk included the exhibits from Mitchell’s

trial as part of the record in this appeal. As noted above, the statement of Underlying Facts

and Circumstances was part of exhibit S-2, admitted into evidence at Mitchell’s trial, and was

also included in his record excerpts in his prior appeal. Whether the document was properly



                                               9
included in the record in this appeal ultimately is of no significance. It was part of the record

in the Supreme Court in Mitchell’s direct appeal, and this Court certainly can take judicial

notice of Supreme Court files. Crawford v. Fisher, No. 2014-CA-01606-SCT, 2016 WL

7331043, at *2 (¶10) (Miss. Dec. 15, 2016). The same applies to Mitchell’s trial transcript

and his brief and record excerpts in his prior appeal.

¶17.   The dissent says that Detective Dear’s signed statement of Underlying Facts and

Circumstances is “mysterious.” There is no mystery. To be absolutely clear, the statement

was attached to and expressly incorporated by reference as part of the affidavit supporting

the application for the search warrant, and it was introduced into evidence together with the

affidavit as exhibit S-2 at Mitchell’s trial. These critical pages are missing from the record

in only two places: (1) Mitchell omitted them from his post-remand motion to suppress, and

(2) Mitchell again omitted them from his present PCR motion. We may take judicial notice

of the complete affidavit because it is in the Supreme Court file as part of the record of

Mitchell’s prior trial and appeal. We are not required to pretend as though it does not exist,

and Mitchell cannot cast doubt on its authenticity simply by failing to attach it to his own

motions.

¶18.   We also acknowledge that the State has not pointed out that Mitchell’s argument is

based on scrivener’s errors. The circuit court dismissed Mitchell’s motion without directing

the State to respond, and the State’s brief on appeal argues that the circuit court’s ruling

should be affirmed for other reasons. However, even if the State had confessed error, we

would “have an obligation to examine the record to determine whether the conviction should



                                               10
stand or be reversed.” McCollum v. State, 186 So. 3d 948, 953 (¶19) (Miss. Ct. App. 2016)

(citing Sibron v. New York, 392 U.S. 40, 58 (1968)). For the same reasons, regardless of

whether the State notices the issue, we should not set aside a valid conviction based on a

post-conviction claim that is founded on an evident scrivener’s error.5

                                      CONCLUSION

¶19.   In summary, Mitchell was presented with a clear decision: pursue his motion to

suppress and risk a possible sentence of life without the possibility of parole or accept the

State’s offer of ten years to serve with twenty years suspended. He accepted the State’s offer,

apparently with the encouragement of his attorneys. Whatever the reasons for his attorneys’

advice, they advised him well, because his motion to suppress was factually without merit.

Mitchell did not receive ineffective assistance. Accordingly, we affirm.

¶20. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, DISMISSING THE MOTION FOR POST-CONVICTION
RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
HINDS COUNTY.

     GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR AND GREENLEE, JJ.,
CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION,
JOINED BY LEE, C.J., AND WESTBROOKS, J.

       IRVING, P.J., DISSENTING:

¶21.   Because the majority has exceeded its authority under the appropriate parameters of

appellate review by implicitly making findings of fact and reviewing matters not considered

by the trial court, I am compelled to dissent.

       5
        Mitchell also claims that his plea was involuntary, but his sole argument is that his
plea was involuntary because of his attorneys’ ineffective assistance. As his ineffective
assistance claim is without merit, his involuntary plea claim necessarily fails as well.

                                              11
¶22.   Our standard of review of the judgment of the trial court in post-conviction relief

matters is well settled and well known to this Court: “In reviewing a trial court’s decision to

deny a petition for post[-]conviction relief [an appellate court] will not reverse such a denial

absent a finding that the trial court’s decision was clearly erroneous.” Kirksey v. State, 728

So. 2d 565, 567 (¶8) (Miss. 1999). Issues of law are reviewed de novo. Moore v. State, 986

So. 2d 928, 932 (¶13) (Miss. 2008).

¶23.   The judgment of the trial court stated: “The court noting the Defendant has failed to

comply with the statutory mandates regarding filing of petitions for post[-]conviction relief,

nonetheless having reviewed the plea petition and transcript (attached hereto as Exhibits A

and B) finds the petition should be and the same is hereby SUMMARILY DISMISSED.”

¶24.   So the question on appeal for this Court is whether the quoted judgment is clearly

erroneous. Or the question may be asked another way: What facts are contained in Mitchell’s

plea petition and transcript of his plea colloquy that make the allegations of his PCR motion

a sham? I say nothing. By affirming the judgment, apparently the majority implicitly finds

enough but fails to point out or discuss those poignant facts. The next question then is on

what basis does the majority make that determination, since the only thing that was placed

before the trial court was Mitchell’s motion for post-conviction relief, which contained, as

exhibits, only the search warrant, the affidavit for the search warrant, and the return? The

affidavit and search warrant are dated August 4, 2008. The return states that the search

warrant was received on September 4, 2008, and was executed on September 4, 2008, at “162

hrs.” It does not say whether the execution occurred in the a.m. or p.m. But more



                                              12
importantly, “162 hrs” does not denote a time. In any event, there is a clear factual variance

between the dates which, in my view, can only be explained and resolved by testimonies

from the parties involved, the municipal judge and Officer Dear, who allegedly presented the

statement of “Underlying Facts and Circumstances” to the judge.

¶25.   The majority relies upon a mysterious, undated statement of “Underlying Facts and

Circumstances,” which the majority states was incorporated into the affidavit for the search

warrant.6 More specifically, the majority states:

       We affirm the denial of Mitchell’s PCR motion for a straightforward reason:
       the motion’s foundational premise—that the search warrant was stale and
       invalid—is factually incorrect. The only logical conclusion that can be drawn
       is that the officers applied for and received the warrant on September 4, 2008,
       and then executed it the same day. That the municipal judge mistakenly wrote
       “Aug” on the form affidavit and warrant is of no consequence. A judge’s
       scrivener’s errors in an affidavit and warrant do not render the warrant invalid.

The majority apparently misunderstands my use of the term “mysterious” in my discussion

of the statement of “Underlying Facts and Circumstances.” To be clear, I am only referring

to how it could have mysteriously ended up in Mitchell’s PCR appellate file when, as I state

in footnote 1, it was not introduced as an exhibit or attached to his PCR motion in the PCR

proceedings, and he did not include it in his record excerpts.

¶26.   I do not take issue with the majority’s assertion that the statement of “Underlying

Facts and Circumstances” was introduced as exhibit 2 in Mitchell’s trial, nor do I take issue



       6
          I should point out that this statement of “Underlying Facts and Circumstances” is
contained in an exhibit folder from Mitchell’s previous trial and was mysteriously included
in this record. I say mysteriously included because there was no hearing held; therefore,
there could not be any exhibits admitted as a part of this record, and Mitchell did not include
it in his record excerpts.

                                              13
with the majority’s assertion that we, as an appellate court, can certainly take judicial notice

of what was introduced in Mitchell’s trial proceedings, as borne out by the record on appeal

of his conviction, which was Cause No 2011-KA-684. But as I discuss in this dissent, the

fact that the statement of “Underlying Facts and Circumstances,” along with the search

warrant and affidavit for the search warrant, was introduced during Mitchell’s criminal trial

does not resolve the factual questions presented by his PCR motion.

¶27.   I agree that a judge’s scrivener’s errors in an affidavit and warrant do not render the

warrant invalid. But where is the testimony in this record that the judge committed

scrivener’s errors? If it exists, the majority has not pointed it out, and I have not been able

to find it. For the majority to make such a statement as fact is indeed befuddling, because

to conclude that the municipal court judge, who issued the warrant, made scrivener’s errors

is to engage in pure conjecture. And more troubling is the fact that the majority’s

conclusion—that the municipal judge made two scrivener’s errors—appears to be premised

on the notion that the date that Officer Dear said he received the warrant and the dates

discussed in the “Underlying Facts and Circumstances” are absolutely accurate and

controlling because these representations were made by a law enforcement officer. Are all

law enforcement officers beyond reproach? I could understand the majority’s position if

there were conflicting or competing testimony on this point and the trial judge, as the fact-

finder, had found that a scrivener’s error had to have occurred based on the testimony that

the trial judge chose to accept as true, but that is not the case.

¶28.   With all due respect to the majority, nothing in this record proximally connects or



                                               14
identifies the undated statement of “Underlying Facts and Circumstances” with the affidavit

or search warrant other than Officer’s Dear’s testimony in Cause No. 2011-KA-684. I fully

understand that the statement of “Underlying Facts and Circumstances” discusses activities

that allegedly occurred on September 3 or 4, 2008, but that fact begs the primordial question,

as it is not impossible nor necessarily improbable that the search warrant could have been

issued without the statement of “Underlying Facts and Circumstances” being attached. And

I take this position knowing full well that the affidavit in support of the search references a

“sheet headed ‘Underlying Facts and Circumstances.’” Suffice it to say that both the search

warrant and affidavit in support of the search warrant are preprinted form documents.

Therefore, that information is contained in every affidavit for a search warrant, even those

that have yet to be executed. So the existence of that information in the affidavit for the

search warrant certainly does not prove that the statement of “Underlying Facts and

Circumstances” was indeed presented, although it may have been, to the municipal judge at

the time the search warrant was issued.

¶29.   The majority finds that Officer Dear’s testimony during Mitchell’s trial, which

resulted in a conviction that was reversed on appeal, is sufficient to resolve the discrepancy

between the dates of the affidavit and search warrant, and the date of the execution of the

search warrant as reflected in the return. In that trial, according to the majority, Officer Dear

       testified that he and other officers executed the search warrant “[o]n the same
       day [they] obtained it.” Mitchell’s brief on appeal similarly stated that the
       judge granted the search warrant on September 4, 2008, and that officers
       executed the warrant the same day. On appeal, Mitchell did not raise any issue
       as to the validity of the search warrant.



                                               15
¶30.   I would agree with the majority that Officer Dear’s testimony from the criminal trial

would be sufficient to resolve the date discrepancies if he had been questioned by Mitchell’s

counsel during that trial regarding the discrepancies between his testimony and the dates of

the search warrant and affidavit for the search warrant. That did not occur, which raises the

specter of whether counsel was ineffective in that trial for not doing so, even suggesting in

his appellate brief that the search warrant was issued on September 4, 2008, when the date

on the face of the warrant contradicted that statement. Moreover, I know of no authority

holding that Mitchell’s new counsel on retrial after remand was bound by any decisions made

by Mitchell’s previous attorney, especially if that attorney had rendered ineffective

assistance. Further, a PCR motion is a civil matter, separate and apart from the criminal trial.

Therefore, if Mitchell made, and I believe that he did, a prima facie showing in his PCR

motion that he had received ineffective assistance during proceedings leading up to his

retrial, I believe it was incumbent upon the trial judge to require the State to respond prior

to summarily dismissing Mitchell’s PCR motion. So I believe the majority errs by relying

upon Officer Dear’s unchallenged testimony in Mitchell’s criminal trial to clear up factual

questions raised by the PCR documents. I think this is especially true since, as stated, the

issue of the validity of the search warrant was not an issue in the criminal trial. We cannot

assume that Officer Dear’s testimony was truthful as to when the warrant was issued and that

that was the reason there was no challenge to the validity of the search warrant.

¶31.   After Mitchell’s initial conviction was reversed, the mandate was issued May 3, 2013,

and on June 7, 2013, the circuit court executed an order setting a new trial date of October



                                              16
14, 2013, and a plea date of October 4, 2013. On June 12, 2013, Mitchell’s attorney filed a

“Motion for Discovery and Request for Plea Offer and Other Relief,” which requested,

among other things, “[a]ny affidavit or affidavits and the underlying facts and circumstances

which preceded the issuance of the arrest and/or search warrant or warrants, if any, filed

against [Mitchell,] along with copies of the arrest warrant or warrants and copies of the

search warrant or warrants, if any.”

¶32.   Apparently, the State did not respond to Mitchell’s discovery motion because the

docket reflects that on August 27, 2013, Mitchell filed a “Motion to Compel Search

Warrant.”7 The docket also reflects that on October 10, 2013, Mitchell’s attorney filed a

motion to suppress evidence, but there is no indication that this motion was brought on for

hearing prior to Mitchell entering his guilty plea.

¶33.   On the same date, October 10, 2013, that Mitchell’s attorney filed the motion to

suppress evidence, Mitchell entered the guilty plea that lies at the root of this appeal. Before

entering the guilty plea, and at the beginning of what turned out to be a plea hearing, the

court asked, “Are we ready to proceed?” and Mitchell’s counsel8 stated:



       7
        The motion to compel is not included among the papers in the appellate record. But
it would not be unreasonable to assume that maybe the State had something to hide for not
timely disclosing the search warrant. Also, a plausible inference could be drawn that during
Mitchell’s trial, he may not have known of the discrepancies in the dates of the search
warrant and the date of the execution of the warrant. Otherwise, why was he pushing his
new trial counsel to get the documents if he knew that they would show that everything was
in order? Surely, it would not be of any benefit to him to pursue the documents for the fun
of it.
       8
           Mitchell’s defense counsel was a member of the Hinds County Public Defender’s
Office.

                                              17
      Yes, Your Honor, but I’m going to - - I’ve explained to the defendant, and I’d
      like to put this on the record, that this is a case that he has already been found
      guilty by a jury one time, and it’s been reversed by the Court, as the [c]ourt is
      well aware; that he is a [99-]19-83 habitual, meaning if the jury finds him
      guilty of anything in this case, he is facing life in prison. The State has put an
      offer on the table today that is 30 years, 20 suspended, 10 to serve. I’ve
      explained to him, and the sticking point here is we - - and I understand his
      concern, and we have filed a motion which we have served on the State and on
      the [c]ourt, motion to suppress the evidence in this case based on a bad search
      warrant. The search warrant - - and the motion will be presented to the [c]ourt,
      but I’ve explained to him that the State has made this offer and that it expires
      today, as the State has informed me.

      If the offer goes off the table, then we have no choice but to go back to trial on
      this case; that if we go to trial and he is convicted again, he is facing life in
      prison.

      But I’ve explained to him that it is not - - I can’t decide what this young man
      needs to do with his life. This is his decision and his decision only.

      And I’ve explained to him that he needs to announce to the Court whether he
      wants to go ahead and accept the offer of the State, which is a 10 year sentence
      or - - and it’s as a non-habitual with no enhancements, so he will be eligible
      for good time credit through the MDOC system, whatever credit that might be.
      The lawyers are no longer allowed to advise what that realistically will mean.

      But I’ve explained to him that - - he understands the plea. He understands that
      if we go back and he is found guilty, he is facing life in prison again. And I,
      of course, as an attorney I can’t make a recommendation one way or another
      of how we will do at trial because I will never tell a client ever we will win this
      or we will lose it. I just can’t do that because I don’t know.

      That being said, it’s his opportunity now to announce to the Court whether he
      wants to accept the State’s offer or whether he wants another trial.

The trial court then asked, “What’s your desire, Mr. Mitchell?” Thereafter, the following

occurred:

      BY MR. MITCHELL:              I would like to file my motion to suppress the
                                    search warrant and go back to trial then. We’ll go
                                    to trial, sir.

                                              18
       BY THE COURT:                It’s my understanding that the motion to suppress
                                    is already filed.

       BY DEFENSE COUNSEL:                  Yes, sir. It has been filed.

       BY THE COURT:                So that part of your request has already been taken
                                    care of, and we’ll put you back on the trial docket.
                                    Your case will not go to trial, however, on the
                                    date that it is presently set. That is a civil term.
                                    We set cases as backup possibility. One of those
                                    civil cases is going to go, so the 14th is out. So
                                    you will be given a new trial date.

       BY THE COURT ADMINISTRATOR: December the 9th.

       BY THE COURT:                December the 9th.

       BY THE PROSECUTOR: And, Your Honor, the considerably low offer
                          extended by the State today is revoked.

       BY THE COURT:                Okay.

       BY DEFENSE COUNSEL:                  Your Honor, the Court’s indulgence. If
                                            Mr. - - Marvell [Gordon] and Yemi
                                            [Kings]9 could speak with him for just a
                                            moment. Just one more minute.

¶34.   After the defense counsel asked the court’s indulgence, the court stated:

       Okay. We’re going to hold - - I’ve been accommodating Mr. Mitchell now for
       about the past 45 minutes holding a lot of people here while he’s trying to
       make his decision, and I certainly don’t want to rush him because I know it’s
       a very important decision.

                                            ****

       But he’s got 15 more minutes, and we’re leaving today.



       9
           Messrs. Gordon and Kings are also members of the Hinds County Public Defender’s
Office.

                                              19
¶35.   When the court reconvened after the fifteen-minute recess, the court commenced the

plea qualification hearing and asked the standard questions of Mitchell and received the

standard responses, including Mitchell’s statement that he was satisfied with the advice that

Yemi and Marvell had given him. Conspicuously absent from the colloquy that occurred

were any questions regarding Mitchell’s understanding about the validity of the search

warrant, which formed the backbone of the charges against him. While he was told that he

could challenge the admissibility of the evidence that the State proposed to offer against him

if he chose to go to trial, such knowledge would not be of any benefit to him in trying to

assess whether he should go to trial unless he also understood the probability of the chance

that the State would be thwarted in its efforts.

¶36.   Based on the unanswered factual questions surrounding the issuance of the search

warrant and the failure of the trial court to require the State to respond to the allegations of

Mitchell’s PCR motion before summarily dismissing the motion, I would reverse the

judgment of the circuit court and remand this case for an evidentiary hearing to address what

Mitchell’s counsel, Marvell, and Yemi told him regarding the validity of the search warrant

before he entered his guilty plea. I arrive at this conclusion, in part, because the transcript

arguably shows that Mitchell’s counsel engaged in a hard-sell to convince Mitchell to accept

the State’s offer even after Mitchell had made it clear that he wanted to “file [his] motion to

suppress the evidence and go to trial”—even calling in two of counsel’s associates to help

convince Mitchell that he should plead guilty—all before testing the validity of the search

warrant.



                                              20
¶37.   I also arrive at this conclusion because, in my view, it is unquestionably clear that the

judgment of the trial court cannot be affirmed without this Court making specific findings

of fact supported, as stated, by nothing more than conjecture and an apparent willingness to

do so to assist the prosecution in its dereliction of duty. That seems apparent from the

majority’s acknowledgment that, in this appeal, “the State has not pointed out that Mitchell’s

argument is based on scrivener’s errors,” which is the fulcrum of the majority’s rationale.

In light of the statement made by the State during the plea colloquy—that there were issues

associated with the warrant and the officer involved—might the reason for the State not

making the argument that undergirds the majority’s rationale be that there is some merit to

Mitchell’s contentions?

¶38.   It is difficult to understand Mitchell’s counsel’s action in light of the fact that

Mitchell’s trial was not scheduled to take place until December 9, 2013, approximately two

months from the date the plea was taken. It seems that period of time should have afforded

counsel an ample opportunity to get the motion to suppress heard. While the State had

indicated that the offer would not stay on the table until then, that was of no moment since

it was Mitchell’s choice to pursue the motion to suppress the search warrant.

¶39.   It is even more difficult for me to understand why this Court is unable to discern the

necessity for an evidentiary hearing to flesh out the time issues surrounding the issuance and

execution of the search warrant and what advice Mitchell’s attorney(s) gave him immediately

prior to his entering his guilty plea. It is clear to me that the allegations of Mitchell’s PCR

motion and the documents that he attached make out a prima facie case that his counsel may



                                              21
have been ineffective, despite the fact that Mitchell received a much lighter sentence than he

would have received had he gone to trial and been convicted, because this argument

presupposes the validity of the search warrant—an argument I cannot embrace because of

the unanswered questions presented.

¶40.   Our Constitution means nothing if our courts are unwilling to accept that its

protections of due process also extend to the repeat criminal. For the reasons presented, I

dissent. I would reverse the summary dismissal of Mitchell’s PCR motion for an evidentiary

hearing on the issues discussed herein.

       LEE, C.J., AND WESTBROOKS, J., JOIN THIS OPINION.




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