            IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                  NO. 2014-CA-01146-COA

JERMAINE ROGERS A/K/A JERMAINE D.                                             APPELLANT
ROGERS

v.

STATE OF MISSISSIPPI                                                            APPELLEE


DATE OF JUDGMENT:                            07/21/2014
TRIAL JUDGE:                                 HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED:                   RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      CHARLES E. MILLER
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL
                                             BY: ABBIE EASON KOONCE
NATURE OF THE CASE:                          CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                     DISMISSED PETITION FOR POST-
                                             CONVICTION COLLATERAL RELIEF
DISPOSITION:                                 AFFIRMED: 12/01/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

          BEFORE GRIFFIS, P.J., MAXWELL AND JAMES, JJ.

          GRIFFIS, P.J., FOR THE COURT:

¶1.       Jermaine Rogers pleaded guilty to capital murder and received a life sentence without

the possibility of parole. Rogers filed a petition for post-conviction collateral relief (PCCR),

which the Rankin County Circuit Court dismissed. Rogers appeals. We find no error and

affirm.

                           FACTS AND PROCEDURAL HISTORY

¶2.       On February 9, 2005, a Rankin County grand jury indicted Rogers and Deandre

Dampier for capital murder and conspiracy to commit murder. As part of a plea agreement,
Rogers pleaded guilty to the capital-murder charge, with the State recommending life without

parole and dropping the second charge of conspiracy to commit murder. The circuit court

accepted the terms of the agreement and sentenced Rogers to life without parole on October

7, 2005.

¶3.    Rogers filed his first PCCR petition on August 29, 2006, an amended PCCR petition

on July 7, 2007, and a second amended PCCR petition on February 29, 2008. Rogers

primarily contended that, due to his mental health and intellectual disabilities, he lacked the

competency to enter a voluntary guilty plea.

¶4.    As part of the PCCR petitions, Rogers requested a psychological evaluation to

determine his competency. The circuit court granted Rogers’s request, and Dr. Linda

Wilbourn conducted an evaluation and produced a report on January 5, 2014. Further, at a

hearing on June 7, 2014, Rogers’s parents testified to Rogers’s mental problems. The circuit

court, however, dismissed the PCCR petition.

                                STANDARD OF REVIEW

¶5.    “This Court will not overturn a trial court’s dismissal of a PCCR [petition] on appeal

‘unless the trial court’s decision was clearly erroneous.’” Hamberlin v. State, 165 So. 3d

491, 493 (¶8) (Miss. Ct. App. 2015) (quoting Chapman v. State, 135 So. 3d 184, 185 (¶6)

(Miss. Ct. App. 2013)). “When reviewing questions of law, this Court’s standard of review

is de novo.” Id.

                                         ANALYSIS

¶6.     Rogers asserts the following issues on appeal: ineffective assistance of counsel,



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illegal sentence, and cumulative or plain error. Rogers also contends the circuit court erred

in not conducting a full evidentiary hearing to determine his competency.

       I.     Whether Rogers received ineffective assistance of counsel.

¶7.    Rogers contends he received ineffective assistance of counsel due to his trial counsel’s

failure to file several pretrial motions, specifically motions to request a change of venue and

a mental evaluation to determine Rogers’s competency to stand trial or plead guilty.

¶8.    To support an ineffective-assistance-of-counsel claim, Rogers must show: (1) his

counsel’s performance was deficient and (2) prejudice resulted. Strickland v. Washington,

466 U.S. 668, 687 (1984). Under Strickland, “there is a strong presumption that counsel’s

performance falls within the range of reasonable professional assistance.” Hooghe v. State,

138 So. 3d 240, 247 (¶31) (Miss. Ct. App. 2014) (citing Strickland, 466 U.S. at 689).

¶9.    “The movant must allege facts pointing toward counsel’s deficient performance with

‘specificity and detail.’” Bell v. State, 117 So. 3d 661, 664 (¶10) (Miss. Ct. App. 2013)

(citation omitted). However, “[i]n cases involving post-conviction collateral relief, ‘where

a party offers only his affidavit, then his ineffective assistance claim is without merit.’”

Cherry v. State, 24 So. 3d 1048, 1051 (¶6) (Miss. Ct. App. 2010) (quoting Vielee v. State,

653 So. 2d 920, 922 (Miss. 1995)). Rogers failed to attach any affidavits in support of his

contentions. In all three iterations of his PCCR petition, Rogers merely asserted he received

ineffective assistance without alleging specific acts, except in his appellate brief. Therefore,

Rogers failed to meet his burden in his PCCR petition.

¶10.   Additionally, Rogers pleaded guilty, which “waives claims of ineffective assistance



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of counsel ‘except insofar as the alleged ineffectiveness relates to the voluntariness of the

giving of the guilty plea.’” Rigdon v. State, 126 So. 3d 931, 936 (¶16) (Miss. Ct. App. 2013)

(quoting Hill v. State, 60 So. 3d 824, 827 (¶6) (Miss. Ct. App. 2011)). Rogers raises the issue

that he involuntarily pleaded guilty due to mental illness and intellectual deficiencies.

¶11.   Rogers states that, since the age of sixteen, he received medical treatment for

depression. Rogers argues his counsel knew this and should have requested a psychological

evaluation to determine whether he was competent to voluntarily plead guilty. The failure

to do so resulted in ineffective assistance of counsel according to Rogers.

¶12.   Rogers, however, does not meet his burden under Strickland. He fails to show how

this omission by trial counsel constituted an error or caused prejudice. Additionally, because

Rogers pleaded guilty, he must “show that the deficient conduct proximately resulted in his

guilty plea, and but for counsel’s errors, he would not have entered the plea.” Cole v. State,

918 So. 2d 890, 894 (¶10) (Miss. Ct. App. 2006) (citing Reynolds v. State, 521 So. 2d 914,

918 (Miss. 1988)). Yet Rogers did not claim he would have not pleaded guilty or that he was

in fact incompetent to voluntarily plead guilty.

¶13.   Further, the plea colloquy indicated Rogers voluntarily pleaded guilty. The circuit

court asked: “Are you telling the court that you’re freely and voluntarily admitting your guilt

to the crime you are charged with?” Rogers responded that he did. The circuit court also

inquired into Rogers’s counsel’s representation, to which Rogers stated he was satisfied with

his counsel, without any complaints. Therefore, Rogers failed to meet his burden, and this

issue is without merit.



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       II.    Whether Rogers received an illegal sentence.

¶14.   As a second matter, Rogers argues the circuit court imposed an excessive sentence of

life in prison without the possibility of parole, in violation of the statutory maximum. Rogers

claims his sentence violates the Eighth Amendment’s prohibition against cruel and unusual

punishment.

¶15.   Rogers was indicted and pleaded guilty to capital murder under Mississippi Code

Annotated section 97-3-19(2)(e) (Rev. 2006). Mississippi Code Annotated section 97-3-21

(Rev. 2006) provided the punishment for a defendant convicted of capital murder: “Every

person who shall be convicted of capital murder shall be sentenced (a) to death; (b) to

imprisonment for life in the State Penitentiary without parole; or (c) to imprisonment for life

in the State Penitentiary with eligibility for parole as provided in Section 47-7-3(1)(f).”

¶16.   Rogers cites to Parker v. State, 30 So. 3d 1222, 1228 (¶16) (Miss. 2010), for the

proposition that a sentence of life without parole for a murder conviction exceeds the

statutory maximum. Parker, however, received a sentence under section 97-3-21 for murder.

Id. In contrast, Rogers pleaded guilty to capital murder. Section 97-3-21's sentencing for

capital murder clearly allows for a sentence of life without parole. Therefore, this issue is

without merit.

       III.   Whether plain or cumulative errors warrant the reversal of Rogers’s
              conviction.

¶17.   As an alternative argument, Rogers asserts that cumulative error applies if no

individual error requires a reversal of his conviction. “The cumulative error doctrine stems

from the doctrine of harmless error[,] which holds that individual errors, which are not

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reversible in themselves, may combine with other errors to make up reversible error, where

the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.”

Thompson v. State, 990 So. 2d 265, 270 (¶12) (Miss. Ct. App. 2008) (quoting Harris v. State,

970 So. 2d 151, 157 (¶24) (Miss. 2007)). “However, reversal based upon cumulative error

requires a finding or findings of error.” Id. This Court found no error in any of Rogers’s

contentions on appeal; thus, we find no cumulative error.

¶18.   Rogers also invokes the plain-error doctrine. “The plain-error doctrine permits the

appellate court to review an ‘obvious error which was not properly raised by the defendant

on appeal, and which affects a defendant’s “fundamental, substantive right.”’” Harper v.

State, 102 So. 3d 1154, 1161 (¶25) (Miss. Ct. App. 2012) (quoting Smith v. State, 986 So.

2d 290, 294 (¶10) (Miss. 2008)). “The plain-error doctrine has been construed to include

anything that seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Stallworth v. State, 2 So. 3d 766, 769 (¶7) (Miss. Ct. App. 2009) (citation and

internal quotations omitted). This Court, however, finds no error that affects Rogers’s

fundamental rights. This issue is without merit.

       IV.    Whether the circuit court erred in failing to conduct a full evidentiary
              hearing to determine Rogers’s competency.

¶19.   As a final issue, Rogers claims the circuit court erred by failing to hold a full

evidentiary hearing during his PCCR-petition proceedings in order to determine his

competency to enter a voluntary guilty plea.

¶20.   “The movant bears the burden of proof to demonstrate by substantial evidence that

the defendant is mentally incompetent to stand trial.” Vanwey v. State, 55 So. 3d 1133, 1136

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(¶6) (Miss. Ct. App. 2011) (citation omitted). “The key consideration when determining if

a competency hearing is required is whether the court has a reasonable ground to believe that

the defendant is incompetent to stand trial. See URCCC 9.06. What constitutes a

‘reasonable ground’ falls within the discretion of the trial court.” Id. (citing Richardson v.

State, 722 So. 2d 481, 486 (¶24) (Miss. 1998)).

¶21.   Rogers asserts he met the requirements under Chase v. State, 873 So. 2d 1013, 1027-

30 (¶¶67-81) (Miss. 2004), for a finding that he was mentally retarded. However, Chase

outlines the procedure for determining the competency of a defendant to face the death

penalty. Id. Instead,

       [t]his Court has held that the test for competency to stand trial mandates that
       a defendant is one: (1) who is able to perceive and understand the nature of the
       proceedings; (2) who is able to rationally communicate with his attorney about
       the case; (3) who is able to recall relevant facts; (4) who is able to testify in his
       own defense if appropriate; and (5) whose ability to satisfy the foregoing
       criteria is commensurate with the severity of the case.

Martin v. State, 871 So. 2d 693, 697 (¶17) (Miss. 2004). “The standard of competency

necessary to enter a plea of guilty is the same as that for determining competency to stand

trial.” Henderson v. State, 89 So. 3d 598, 603 (¶23) (Miss. Ct. App. 2011) (citation omitted).

¶22.   At the plea colloquy, the circuit court asked whether Rogers suffered from any mental

illness or disorder. Rogers responded that he received treatment for depression and at the

time of the hearing took medication for his depression. However, this is the only indication

of any mental disorder. Rogers affirmatively stated he understood the charges and the

proceedings, spoke with his counsel concerning the charges, and recalled relevant facts.

Further, his counsel indicated Rogers perceived the nature and severity of the crime and his

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guilty plea. Based on the plea colloquy, the circuit court lacked any reasonable ground to

order a competency hearing.

¶23.   Moreover, during Rogers’s PCCR-petition proceedings, the circuit court held a

hearing and received evidence of Rogers’s competency in the form of Dr. Wilbourn’s

evaluation and testimony from Rogers’s mother and father concerning his mental state and

intellectual abilities. After hearing the evidence, the circuit court agreed with the State’s

position that Rogers failed to present sufficient evidence under Chase to prove incompetency.

¶24.   Though this Court finds Chase does not apply here, even under Chase, Rogers fails

to meet his burden. The procedure in Chase requires an affidavit of an expert who attests

that the petitioner, upon further testing, may be found mentally retarded, and such affidavit

must be attached to the PCCR petition. Chase, 873 So. 2d at 1029 (¶¶79-80). Rogers

provided no expert affidavits with his PCCR petition. Further, Dr. Wilbourn did not opine

on Rogers’s mental retardation. Therefore, this issue is without merit.

¶25.   Because this Court finds no error on any of Rogers’s claims, no cumulative or plain

error results to warrant a reversal. Further, Rogers fails to show he received ineffective

assistance of counsel, suffered from an illegal sentence, or lacked competency to submit a

voluntary guilty plea. For these reasons, this Court affirms the circuit court’s judgment.

¶26. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY
DISMISSING THE PETITION FOR POST-CONVICTION COLLATERAL RELIEF
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

    LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, MAXWELL, FAIR
AND WILSON, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN
PART WITHOUT SEPARATE WRITTEN OPINION.

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