        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CP-00434-COA

ERIC LAQUINNE BROWN A/K/A ERIC L.                                          APPELLANT
BROWN

v.

STATE OF MISSISSIPPI                                                         APPELLEE


DATE OF JUDGMENT:                         03/17/2014
TRIAL JUDGE:                              HON. THOMAS J. GARDNER III
COURT FROM WHICH APPEALED:                PONTOTOC COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   ERIC LAQUINNE BROWN (PRO SE)
ATTORNEYS FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                          BY: JOHN R. HENRY JR.
                                              SCOTT STUART
NATURE OF THE CASE:                       CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION:                  DENIED MOTION FOR POSTCONVICTION
                                          RELIEF
DISPOSITION:                              AFFIRMED - 08/11/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       MAXWELL, J., FOR THE COURT:

¶1.    Since 1999, Eric LaQuinne Brown has been serving a life sentence for the murder of

his girlfriend and a twenty-year sentence for the manslaughter of his unborn child. In 2014,

he filed his fourth motion for postconviction relief (PCR). In his latest motion, he cites a

2009 Mississippi Supreme Court case, Sanders v. State, 9 So. 3d 1132, 1136 (¶16) (Miss.

2009), to argue his convictions must be reversed. He insists, under Sanders, his fundamental

rights were violated because the trial court did not conduct an on-the-record competency
hearing before accepting his plea, despite having ordered Brown to undergo a psychological

exam. But Sanders and its progeny do not apply retroactively to undo Brown’s 1999 guilty

plea.

¶2.     What the record shows is that Brown was in fact deemed competent by the

psychologist who evaluated him. And the record shows the trial judge indeed considered the

psychologist’s report, and questioned Brown about his competency, before accepting

Brown’s guilty plea. Furthermore, neither Brown nor his counsel ever asserted Brown was

incompetent to stand trial. So from the face of Brown’s own motion and the underlying

criminal record, Brown failed to show the absence of a formal competency hearing led to a

denial of his due-process rights. We thus affirm the dismissal of this PCR claim.

¶3.     Because Brown also failed to produce any “newly discovered evidence” to overcome

the successive-writ and time-bars, we also affirm the dismissal of his other claims.

                      Background Facts and Procedural History

        I.    Murder of Shorelanda and Her Unborn Child

¶4.     In January 1999, Brown was involved in two relationships with two different women.

One of those women was Tennille Brown, his wife, with whom he had at least one child.

The other was Shorelonda Moore, his girlfriend. Brown and Shorelanda already had one

child together. And Shorelanda was several months pregnant with another of Brown’s

children. Tennille and Shorelanda did not get along, and the situation was stressful for

Brown. In early January 1999, Brown allegedly spoke with friends about getting rid of


                                             2
Shorelanda, as she was causing trouble between him and his wife.

¶5.    On January 22, the situation came to a head. The day of the murder, Brown called

Shorelanda at her job at McDonald’s several times. Witnesses told law enforcement that

Brown and Shorelanda made plans to meet once she got off work. Shorelanda believed they

were going to spend the weekend together in Memphis, Tennessee. Brown admitted to law

enforcement he met Shorelanda behind a restaurant in Pontotoc after she got off work. The

two sat in Shorelanda’s car, as they often did. But that day their conversation took a dark

turn. Shorelanda and Brown began arguing because Shorelanda was upset that Brown had

married Tennille only a few days earlier. As the argument escalated, according to Brown,

he began to shake her. Soon, Shorelanda was unresponsive.

¶6.    Brown returned home and told Tennille he had killed Shorelanda. He then told his

wife they were leaving for Memphis to ditch Shorelanda’s body. Tennille put the children

in the car, and Brown loaded a five-gallon gas can in the trunk. Tennille dropped Brown off

at Shorelanda’s car and followed Brown as he drove Shorelanda’s body to Memphis. Once

in Memphis, he drove Shorelanda’s car down an alley. He parked the car, used the gas can

he had brought from Pontotoc to douse the vehicle, and set it and Shorelanda’s body on fire.

¶7.    Early the next day, a man found Shorelanda’s car smouldering in the alley. Memphis

police discovered Shorelanda’s body in the car. Her pants and underwear were pulled below

her hips. Her shirt and bra were pulled up, and her bra was partially around her throat. The

medical examiner later determined Shorelanda’s cause of death was strangulation. The


                                             3
ligature marks on her neck matched the pattern of her bra. Medical examiners also

determined Shorelanda was approximately twenty-eight weeks pregnant.

¶8.    Law enforcement quickly caught up with Brown. Both he and Tennille spun a story

about being in Tupelo. But that was determined to be a lie. Tennille eventually gave several

statements to officers, each incriminating her and her husband in some way. Police found

physical evidence that incriminated Brown. And eventually, Brown gave a voluntary

statement to law enforcement. Both Brown and Tennille were indicted for Shorelanda’s

murder and the manslaughter of her unborn child.

       II.     Psychological Evaluation

¶9.    On July 20, 1999, Brown filed a motion for psychiatric assistance. He claimed he

intended to use the psychiatric report as mitigation should he be convicted and to determine

if he was able to form the necessary intent for murder. Significantly, Brown’s motion did not

claim he was presently incompetent.         The trial court ordered Brown to undergo an

examination at the Mississippi State Hospital. This exam was to assess his mental capability

to stand trial, his need for inpatient hospitalization, and for the hospital to do a psychological

exam. The order did not state that reasonable grounds existed to believe Brown was

presently incompetent. This exam never occurred because Brown’s attorney failed to give

the hospital the requested and required materials.

¶10.   On November 12, 1999, the State filed for a psychiatric examination to determine if

Brown was competent to stand trial, able to discern the difference between right and wrong,


                                                4
able to form the necessary intent, and if “under the conditions he suffered whether malice

could be implied ‘where no considerable provocation appears.’” The State further noted

Brown had claimed past mental illnesses and had indicated a “mental-type” defense would

be used in his trial. The trial judge ordered Brown undergo an evaluation to be performed

by Dr. Criss Lott.

¶11.   Dr. Lott conducted his exam on November 14, 1999. And he found to a reasonable

degree of psychological certainty that Brown had “the sufficient present ability to confer with

his attorney with a reasonable degree of rational understanding and he has a good factual and

rational understanding of the nature and object of the legal proceedings against him.”

       III.   Plea Colloquy

¶12.   On November 29, 1999, Brown pled guilty to both murder and manslaughter charges.

At the plea hearing, Brown denied being under the influence of drugs or alcohol. He denied

being treated for any drug or alcohol abuse. And he specifically denied he was suffering any

psychiatric illness or mental disease. Brown told the judge he understood the nature of the

charges against him and the consequences of pleading guilty.

¶13.   The State relayed, at length, the factual basis of the crimes and the evidence the State

would prove at trial. The trial judge asked Brown if the State’s evidentiary proffer was

substantially correct. Brown answered that it was.

¶14.   The trial judge asked Brown if he understood what was taking place that day. And

Brown said he did. Brown did not have any questions about the day’s proceedings, nor did


                                              5
he have any questions for the judge. Nothing from the hearing transcript indicates the trial

judge should have been alerted Brown might be suffering from mental issues.

¶15.   The State also noted for the trial court that Brown’s attorney had filed for a psychiatric

exam, and after that exam, Brown had been found competent to stand trial. The trial judge

mentioned he had seen a copy of the doctor’s report. And he asked the State to ensure a copy

would be filed in the court’s file after the proceedings had concluded. Neither Brown nor

his attorney voiced any concerns or objections to the conversation involving Brown’s prior

competency determination.        The trial judge then found that Brown “knowingly,

understandingly, freely and voluntarily” pled guilty. The judge sentenced Brown to serve a

life sentence for the murder of Shorelanda and to serve twenty years for the manslaughter of

their unborn child, with both sentences to run concurrently.

       IV.    Postconviction Filings

¶16.   Fifteen years have passed since Brown’s guilty plea. Since then, Brown filed three

PCR motions with the trial court, one of which was appealed to this court. Brown v. State,

907 So. 2d 979, 981 (¶9) (Miss. Ct. App. 2005) (finding Brown’s motion both subsequent-

writ and time-barred). He has also filed no fewer than five motions in the Mississippi

Supreme Court seeking various relief, all of which have been denied or dismissed. Brown

v. State, 2000-CP-01799 (order dismissing case dated Mar. 22, 2001); Brown v. State, 2002-

M-01821 (order denying motions dated Jan. 21, 2004); Brown v. State, 2012-M-01132 (order

denying motions dated Sept. 19, 2012); Brown v. State, 2013-M-02102 (order denying


                                               6
motion dated Jan. 23, 2014).

¶17.     The present appeal is from the dismissal of Brown’s fourth PCR motion, filed in

February 2014. In this motion, Brown claims for the first time the lack of a competency

hearing was a violation of his due-process rights. He also suggests he has “newly discovered

evidence.” Finally, he claims there was an insufficient factual basis for the trial court to

accept his guilty plea.

                                          Discussion

¶18.     Brown concedes his present PCR motion is well outside the three-year time-bar and

is successive. See Miss. Code Ann. § 99-39-5(2) (Supp. 2014); Miss. Code Ann. § 99-39-

23(6) (Supp. 2014). But he asserts these bars do not apply due to the “fundamental rights”

exception of Rowland v. State, 42 So. 3d 503, 507 (¶12) (Miss. 2010), and because he has

newly discovered evidence, Miss. Code Ann. § 99-39-5(2)(a)(i); Miss. Code Ann. § 99-39-

23(6).

         I.     Lack of a Competency Hearing

¶19.     Brown is correct that the due-process right not to stand trial or be convicted while

incompetent is a fundamental right not subject to the procedural bars of the Mississippi

postconviction-relief statutes. See Smith v. State, 149 So. 3d 1027, 1031 (¶8) (Miss. 2014)

(citations omitted). But having evaluated the merits of Brown’s allegations, we find he has

failed to establish a claim that this right was violated. See Smith v. State, 129 So. 3d 243, 245

(¶5) (Miss. Ct. App. 2013) (citation omitted) (“We affirm dismissals or denials of PCR


                                               7
motions when the movant fails to demonstrate a claim procedurally alive substantially

showing the denial of a state or federal right.”).

¶20.   In arguing his conviction must be vacated due to the lack of a formal competency

hearing, Brown relies on the 2009 Mississippi Supreme Court ruling in Sanders, 9 So. 3d at

1136 (¶16). In that opinion, the supreme court strictly interpreted Uniform Circuit and

County Court Rule 9.061 to mandate a competency hearing in every case where the trial court

has ordered a psychological exam. Sanders, 9 So. 3d at 1136 (¶16). Brown reasons that,

since he underwent a court-ordered mental exam, the trial court had to conduct a formal

competency hearing before accepting his guilty plea. And the court’s failure to do so entitles

him to a new trial.

¶21.   But Sanders and the later cases that have relied on Sanders2 do not apply to Brown’s

1999 guilty plea because they are not retroactive.

¶22.   In Teague, the United States Supreme held a new rule of constitutional law will not

be applied retroactively to a case on habeas review unless it falls within one of two limited

exceptions:

       The first exception [is] that a new rule should be applied retroactively if it
       places certain kinds of primary, private individual conduct beyond the power

       1
         Rule 9.06 directs that, “[i]f before or during trial the court . . . has reasonable ground
to believe that the defendant is incompetent to stand trial, the court shall order the defendant
to submit to a mental examination[.]” And “[a]fter the examination the court shall conduct
a hearing to determine if the defendant is competent to stand trial.” URCCC 9.06.
       2
        Coleman v. State, 127 So. 3d 161 (Miss. 2013); Smith v. State, 149 So. 3d 1027
(Miss. 2014).

                                                8
       of the criminal law-making authority to proscribe[.] . . . The second exception
       [is] that a new rule should be applied retroactively if it requires the observance
       of those procedures that . . . are implicit in the concept of ordered liberty.

The Supreme Court later pointed out in Sawyer v. Smith, 497 U.S. 227, 234 (1990), that

“[t]he principle announced in Teague serves to ensure that gradual developments in the law

over which reasonable jurists may disagree are not later used to upset the finality of state

convictions valid when entered.”

¶23.   Our state supreme court adopted the Teague analysis in Manning v. State. As our

supreme court put it, “we take this opportunity to expressly state that in the future this Court

will continue to apply the very limited retroactive application standard set forth by the United

States Supreme Court in Teague v. Lane.” Manning v. State, 929 So. 2d 885, 900 (¶42)

(Miss. 2006). In Manning, the court discussed in-depth the United States Supreme Court’s

holdings in both Teague and Schriro v. Summerlin, 542 U.S. 348 (2004). The Schriro Court

delineated a distinction between substantive and procedural rules and their retroactive

applicability, explaining:

       When a decision of this Court results in a “new rule,” that rule applies to all
       criminal cases still pending on direct review. As to convictions that are
       already final, however, the rule applies only in limited circumstances. New
       substantive rules generally apply retroactively. This includes decisions that
       narrow the scope of a criminal statute by interpreting its terms . . . as well as
       constitutional determinations that place particular conduct or persons covered
       by the statute beyond the State’s power to punish. Such rules apply
       retroactively because they necessarily carry a significant risk that a defendant
       stands convicted of an act that the law does not make criminal or faces a
       punishment that the law cannot impose upon him.

       New rules of procedure, on the other hand, generally do not apply

                                               9
       retroactively. They do not produce a class of persons convicted of conduct the
       law does not make criminal, but merely raise the possibility that someone
       convicted with use of the invalidated procedure might have been acquitted
       otherwise. Because of this more speculative connection to innocence, we give
       retroactive effect to only a small set of watershed rules of criminal procedure
       implicating the fundamental fairness and accuracy of the criminal proceeding.
       That a new procedural rule is “fundamental” in some abstract sense is not
       enough; the rule must be one without which the likelihood of an accurate
       conviction is seriously diminished. This class of rules is extremely narrow[.]

Schriro, 542 U.S. at 351-52 (emphasis added and internal quotations and citations omitted).

¶24.   A rule is substantive if it “alters the range of conduct or the class of persons that the

law punishes,” whereas a rule is procedural if it “regulate[s] only the manner of determining

the defendant’s culpability.” Id. at 353. In Sanders, the supreme court interpreted Rule 9.06

to mandate a formal competency hearing “once a trial court orders a psychiatric evaluation

to determine competency to stand trial.” Sanders, 9 So. 3d at 1136 (¶16). Because this

ruling was procedural in nature, it does not apply retroactively.

¶25.   The Sanders rule did not change the “range of conduct” punishable by statute. Nor

did it suddenly place Brown in a category of persons who could not be punished by law. The

Sanders ruling simply regulated the trial court’s procedure for determining a defendant’s

competency. Additionally, the rulings of Sanders and its progeny could hardly be considered

a “watershed” rule of criminal procedure. The strict interpretation of Rule 9.06 did not make

prior cases involving competency issues fundamentally unfair, and it did not affect the

accuracy of criminal proceedings. As the U.S. Supreme Court noted in Schriro, the class of

procedural rules applied retroactively should be construed extremely narrowly. Schriro, 542


                                              10
U.S. at 352. It is paramount to limit retroactive application of new rules so as to not “upset

the finality of state convictions” that were valid when entered. Sawyer, 497 U.S. at 234.

¶26.   In this case, to apply Sanders retroactively to Brown—as the dissent suggests we

should—would require the trial judge to have been clairvoyant in 1999 and accurately predict

what the Mississippi Supreme Court would do ten years later in Sanders.3

¶27.   Also, Brown had been determined competent under the Dusky standards4 by a

competent psychologist. And the judge, defense counsel, prosecutor, and Brown knew that

at the plea hearing.


       3
         The dissent notes that the supreme court applied Sanders retroactively in Goodin
v. State, 102 So. 3d 1102, 1118-19 (¶¶48-50) (Miss. 2012). However, in Goodin, the
supreme court’s application of Sanders dealt solely with the issue of Goodin’s trial counsel’s
performance under Strickland v. Washington, 466 U.S. 668 (1984). The supreme court
found that Goodin’s attorney was deficient in not following the procedure set forth in Rule
9.06; the court made no finding as to the trial court’s errors in not conducting a competency
hearing. Furthermore, Goodin involved a conviction for capital murder. The supreme court

       will review an appeal from a capital murder conviction and death sentence
       with “heightened scrutiny” under which all bona fide doubts are resolved in
       favor of the accused. Porter v. State, 732 So. 2d 899, 902 (Miss. 1999).
       Further, [the supreme court] is cognizant of the fact that what may be harmless
       error in certain situations becomes reversible error where the penalty is death.
       Id.

Simmons v. State, 805 So. 2d 452, 472 (¶26) (Miss. 2001). The present case and Goodin are
not analogous.
       4
         The standard for competency to stand trial set forth in Dusky v. United States is
“whether [a defendant] has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding . . . and whether he has a rational as well as
factual understanding of the proceedings against him.” Dusky v. United States 362 U.S. 402,
402 (1960) (per curiam).

                                             11
¶28.   Competency is to be presumed until the defendant proves by “substantial evidence that

[he] is mentally incompetent to stand trial.” Evans v. State, 725 So. 2d 613, 660 (¶180)

(Miss. 1997) (quoting Medina v. California, 505 U.S. 437, 448 (1992)). Defense counsel

never raised the issue of Brown’s competency. And his motion for a mental exam dealt

solely with Brown’s mental ability to form the necessary intent to commit murder. Nothing

occurred during the plea hearing to raise any issues about Brown’s competency. And any

possible doubt of Brown’s competency was resolved when a licensed psychologist found him

to be competent after a thorough examination.

¶29.   Further, defense counsel raised no objection to proceeding without a formal hearing.

And had some sort of formal competency hearing occurred, it is reasonable to conclude the

State would have introduced Dr. Lott’s written report into evidence. Defense counsel would

have voiced no objection, as he did not object during the plea hearing. The State and defense

would have then rested. This is particularly so since Brown had sworn under oath that he had

never been treated for any mental disease or psychiatric illness and fully understood what

was occurring in the courtroom. Under such circumstances, mandating a formal competency

hearing before proceeding with a guilty plea would be placing form over substance.

¶30.   Brown’s guilty plea was valid when entered. He was informed of all of the rights he

forfeited by pleading guilty. A factual basis of the crimes was recited. And he was told the

minimum and maximum sentences he faced by pleading guilty. He told the trial judge he

was not under the influence of drugs or alcohol. Brown maintained he was satisfied with his


                                             12
attorney’s performance and advice. And he represented that he had not been threatened or

coerced into pleading guilty. Importantly, Brown denied any history of mental disease or

psychiatric illness. And neither he nor his attorney voiced any objections to the State’s

statement that Dr. Lott found Brown to be competent. Having heard this, and personally

observing Brown’s demeanor in court, the judge found Brown’s plea to be knowing,

voluntary, and intelligent. And now, fifteen years later, Brown presents no persuasive reason

for us to doubt the trial judge’s finding.

       II.    “Newly Discovered Evidence”

¶31.   Alternatively, Brown asserts he is entitled to relief based on “newly discovered

evidence.” Following his convictions, Brown sued three Ponotoc police officers involved

in his arrest. See Brown v. Sudduth, 675 F.3d 472 (5th Cir. 2012). According to Brown,

certain facts came to light during the 2008 federal civil trial that, had he had known them

back in 1999, he would not have pled guilty.

¶32.   Setting aside the fact Brown waited six years after this trial to file his “newly

discovered evidence” claim, none of this evidence meets the definition of “newly

discovered.” “The term ‘newly discovered evidence’ refers to evidence, that is, an exhibit,

testimony, or some other information that could have been offered as evidence in the

defendant’s trial but was not offered because it was not reasonably discoverable at the time

of the trial.” Pickle v. State, 942 So. 2d 243, 246 (¶12) (Miss. Ct. App. 2006) (emphasis

added); see also Miss. Code Ann. § 99-39-5(2)(a)(i) (requiring the defendant, to overcome


                                             13
the procedural bar, to demonstrate “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”

(emphasis added)); Miss. Code Ann. § 99-39-23(6) (same). And Brown has failed to show

that the evidence he refers to as “new” was not reasonably discoverable in 1999.

¶33.   Brown claims the first piece of “newly discovered evidence” arose when one of the

officers testified at trial in the 2008 lawsuit. The issue in that suit was if and when the

Pontotoc police had probable cause to arrest him. Brown, 675 F.3d at 475. The arresting

officer testified that, when the Ponotoc police first caught up with Brown and Tennille, it was

still unclear where Shorelanda was murdered—in Pontotoc or Memphis. Id. at 478. The

arresting officer testified during her initial detention Tennille gave a statement to Pontotoc

police. And this statement led them to reasonably believe Shorelanda was already dead

before Moore drove her car to Memphis, which is why the Pontotoc police were the ones

who arrested Brown and Tennille for murder. See id.

¶34.   In his PCR motion, Brown claims this was the first time he realized the police had

relied on Tennille’s statement to establish the murder occurred in Ponotoc. Brown claims

Tennille had lied to the police, when they first questioned her—and both the police and

prosecutor knew she had lied. And had he known the prosecution was relying on this “false”

evidence, he would not have pled guilty. To support this claim, Brown points to a 1999

police report—a report he fails to prove was newly discovered—that says Tenille initially


                                              14
lied to cover for Brown before failing a polygraph and coming clean about his guilt in the

murder. Though the report mentions nothing about the details of Tenille’s initial false

statement, Brown stretches the report, attempting to create a nonbarred claim. As he views

it, the report’s general statement about Tenille’s initial protection of him is somehow proof

she was lying when she admitted he had killed Shorelanda in Pontotoc County. Thus,

officers—knowing about this lie—arrested him without sufficient probable cause to arrest

him for a Pontotoc County murder.

¶35.   Even if the circuit judge had accepted Brown’s theory, Brown fails to show how an

initial lack of probable cause to arrest equates to his innocence in the murder case. As the

Fifth Circuit put it in one of Brown’s several appeals of his federal lawsuit, “it can hardly be

said that the proof required to establish Brown’s unlawful arrest claim necessarily would

imply the invalidity of his underlying murder conviction.” Brown v. Sudduth, 255 F. App’x

803, 806 (5th Cir. 2007) (unreported) (citing Brown v. Edwards, 721 F.2d 1442, 1448 (5th

Cir. 1984)). So his claimed newly discovered evidence is immaterial here. See Crawford v.

State, 867 So. 2d 196, 204 (¶9) (Miss. 2003) (requiring showing that newly discovered

“evidence is material and is not merely cumulative or impeaching” in order to be granted a

new trial).

¶36.   Still, even in light of his claimed new evidence, the record shows Brown admitted to

law enforcement he met Shorelanda behind the Pontotoc restaurant. And once inside

Shorelanda’s car, the two began arguing about Brown recently marrying Tennille days


                                              15
earlier. According to Brown, he began to shake her, and Shorelanda became unresponsive.

There is also additional evidence Brown fails to consider. The Pontotoc McDonald’s

manager had told an investigator that Moore had worked the previous day during which

Brown had telephoned the restaurant several times. Brown, 675 F.3d at 475. Her manager

also told the investigator that Brown and Moore were to meet after Moore’s shift. Moore and

Brown had plans to leave town for the weekend. Id. Brown’s neighbor reported Brown was

away from home that night, and officers did not find Brown at home Saturday morning. And

Shorelanda’s strangled and burned body was still clothed in her McDonald’s uniform when

discovered in Memphis. Id. So it is certainly not practically conclusive that, if Brown had

opted for trial and pitched his supposed new evidence, it would have caused a different result

in the conviction. See Crawford, 867 So. 2d at 204 (¶10) (“Evidence is material only if there

is a reasonable probability (i.e., ‘probability sufficient enough to undermine confidence in

the outcome’) that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” (quoting De La Beckwith v. State, 707 So. 2d 547,

572 (Miss. 1997))).

¶37.   The judge was also not swayed by Brown’s second piece of alleged newly discovered

evidence—a threatening letter from Shorelanda to Moore, which was part of the criminal file

subpoenaed for the 2008 civil lawsuit. Brown claims, had he known the police had this letter

in their possession, he would not have pled guilty. But by his own admission, Brown knew

about the letter before he pled guilty. In fact, he asserts he told the Pontotoc police about the


                                               16
letter’s existence back in 1999. So this evidence could have easily been discovered prior to

trial.

¶38.     Because, from the face of his motion, none of Brown’s “newly discovered evidence”

was really newly discovered, the trial court did not err when it summarily dismissed this

claim.

         III.   Factual Basis to Support Guilty Plea

¶39.     Finally, Brown claims there was insufficient evidence to establish a factual basis for

his plea. See URCCC 8.04(A)(3) (requiring that, “[b]efore the trial court may accept a plea

of guilty, the court must determine . . . that there is a factual basis for this plea”). Brown

argues this claim also presents a fundamental-rights exception to the procedural bars under

Rowland, 42 So. 3d at 507 (¶12), because “a factual basis is an essential part of the

constitutionally valid and enforceable decision to plead guilty,” Carter v. State, 775 So. 2d

91, 98 (¶28) (Miss. 1999) (citation omitted).

¶40.     Bars or no bars, Brown’s no-factual-basis claim clearly lacks merit. Brown contends

there was no factual basis for his plea because he never specifically admitted he strangled

Shorelanda with a bra. But a factual basis is not insufficient simply because the defendant

does not confess each gory detail of the crime. See Corley v. State, 585 So. 2d 765, 767

(Miss. 1991) (rejecting the defendant’s “view that only words spoken from his own mouth

can form the requisite factual predicate”); see also Gazzier v. State, 744 So. 2d 776, 779 (¶7)

(Miss. 1999) (“The law does not require that a defendant admit every aspect of a charge


                                               17
against him. Instead, a guilty plea will be considered valid even though the defendant makes

only a bare admission of guilt.”).

¶41.   Brown admitted he deliberately killed Shorelanda—the crime for which he was

indicted. As part of the recitation of facts, the prosecutor told the court that Brown had

admitted he was in the car with Shorelanda behind the restaurant in Ponotoc—a fact other

witnesses confirmed. Brown also admitted he argued with Shorelanda, that he shook her

until she was no longer responsive, and that he then went home and told his wife that he had

killed Shorelanda and needed to dispose of her body. Brown then drove Shorelanda’s body

to Memphis, where he attempted to burn Shorelanda’s car. The police later discovered

Brown’s discarded burnt clothing along the road between Memphis and Ponotoc. They also

found clippings of Brown’s singed hair, which he had trimmed off in his bathroom. And the

autopsy report showed Shorelanda had been strangled and the ligature marks on her neck

were consistent with her bra, which had been pulled around her neck.

¶42.   From this, we find a more-than-sufficient factual basis under Rule 8.04(A)(3) for the

trial court to accept Brown’s guilty plea. Therefore, we affirm.

¶43. THE JUDGMENT OF THE PONTOTOC COUNTY CIRCUIT COURT
DISMISSING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO PONOTOC COUNTY.

     IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR AND WILSON, JJ.,
CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE
WRITTEN OPINION. JAMES, J., DISSENTS WITH SEPARATE WRITTEN
OPINION. LEE, C.J., NOT PARTICIPATING.

       JAMES, J., DISSENTING:

                                            18
¶44.     Because the trial court failed to conduct a competency hearing mandated by Uniform

Rule of Circuit and County Court Practice 9.06, after ordering two separate psychiatric

evaluations, only one of which was actually performed, I respectfully dissent from the

majority opinion. I would reverse the decision of the trial court, vacate Brown's conviction,

and he must be either retried or institutionalized following a mental evaluation and

competency hearing under Rule 9.06. See Smith v. State, 149 So. 3d 1027, 1035 (¶19) (Miss.

2014).

¶45.     On July 20, 1999, Brown filed a motion for psychiatric assistance. On the same day,

the trial court entered an order for a psychological examination, compelling Brown to

undergo an examination at the psychiatric department of the Mississippi State Hospital. The

order provided in part: "The Court has sufficient cause to believe that a psychological report

on the defendant would be helpful to the Court in determining what disposition should be

made of the above stated case." The order requested that the "psychiatrists include in their

report: (1) a psychological analysis of [Brown]; (2) an opinion as to whether [Brown] is

mentally capable of standing trial; and (3) whether [Brown] is in need of in-patient

hospitalization."

¶46.     On October 25, 1999, a staff psychiatrist at the Mississippi State Hospital faxed a

request for information to Brown's attorney, James O. Ford.             The request included

information such as the trial court's order for evaluation, the motion requesting the evaluation

or statement giving reasons why the examination was sought, prior psychiatric/psychological


                                              19
examinations or treatment, a statement describing the defendant's behavior in jail, a list of

the medications the defendant was taking, and names of family members. The request stated

that once the information was received, the hospital would schedule the evaluation. It

appears that the Mississippi State Hospital never received the requested information, and the

evaluation was not scheduled. However, it is clear that this court-ordered psychological

examination never occurred.

¶47.   On November 12, 1999, the State filed a motion for a psychiatric examination. The

State moved for a psychiatric examination of Brown

       for the purpose of determining whether, by reason of some defect, disease, or
       condition of the mind or memory (1) the defendant is able to comprehend the
       nature of the charges against him and rationally aid in his defense; and (2) at
       the time of the commission of the crime herein charged, the defendant was of
       such mental capacity as to distinguish between right and wrong; [and] (3)
       whether under the conditions [the] defendant was being subjected to on and
       before January 22, 1999, he was able to form the intent necessary under the
       law to be responsible for the act of which he is accused; and (4) to determine
       as to the murder charges whether[,] as to this defendant under the conditions
       he suffered[,] . . . malice could be implied “where no considerable provocation
       appears.”

The State alleged the cause in support of the motion was that "the defendant may claim in

the past he has exhibited a history of some degree of mental illness" and "that the defendant

has indicated through his attorney that a mental type defense will be used in the trial of this

matter." Further, the motion provided "that it is necessary for the State to examine the

capacity of the defendant by a competent mental health professional in order to properly try

this cause."


                                              20
¶48.   On the same day, the trial court granted the State’s motion and entered an order

compelling Brown to undergo a competency exam to be performed by Dr. Criss Lott. The

order provided in part:

       The cause this day came for hearing on Motion of the State of Mississippi for
       an Order for a psychiatric examination of the above named defendant in this
       case, for the purpose of determining whether, by reason of some defect,
       disease, or condition of the mind or memory (1) the defendant is able to
       comprehend the nature of the charges against him and rationally aid in his
       defense; and (2) at the time of the commission of the crime herein charged, the
       defendant was of such mental capacity as to distinguish between right and
       wrong; and[] (3) whether under the conditions [the] defendant was being
       subjected to on and before January 22, 1999, he was able to form the intent
       necessary under the law to be responsible for the act of which he is accused;
       and (4) to determine as to the murder charges whether[,] as to this defendant
       under the conditions he suffered[,] . . . malice could be implied “where no
       considerable provocation appears.”

¶49.   On November 14, 1999, Dr. Lott conducted a psychological evaluation of Brown and

prepared a report of his findings. On November 19, 1999, Dr. Lott's report was sent to the

circuit court judge. Dr. Lott acknowledged in his report each of the stated purposes of the

court-ordered evaluation report. In his report, Dr. Lott concluded: "It is my opinion, to a

reasonable degree of psychological certainty, that Mr. Brown has the sufficient present ability

to confer with his attorney with a reasonable degree of rational understanding[,] and he has

a good factual and rational understanding of the nature and object of the legal proceedings

against him." However, a separate competency hearing was never conducted.

¶50.   On November 29, 1999, the trial court conducted a plea hearing. The trial court asked

Brown if he was under the influence of drugs or alcohol. Brown replied, "No, sir." As


                                              21
somewhat of an afterthought, the State mentioned that a clinical psychologist, Dr. Lott,

examined Brown and found him competent to stand trial. The judge confirmed that he had

“seen” Dr. Lott's report. However, the prosecutor informed the court that he did not believe

the report had been filed and that he would file the report following the conclusion of the

plea hearing. Without the report having been filed, the trial court accepted Brown's guilty

plea as knowingly, freely, understandingly, and voluntarily entered, and sentenced him to life

in prison for murder and twenty years for manslaughter, to run concurrently with the life

sentence.

¶51.   Although Brown’s PCR motion is procedurally barred, "errors affecting fundamental

constitutional rights are excepted from the procedural bars of the [Uniform Postconviction

Collateral Relief Act]." Rowland v. State, 42 So. 3d 503, 507 (¶12) (Miss. 2010). "[T[he

prohibition against trying or convicting an incompetent defendant is fundamental to an

adversary system of justice." Smith, 149 So. 3d at 1031 (¶8) (citing Drope v. Missouri, 420

U.S. 162, 172 (1975)). "The constitutional right not to be tried or convicted while

incompetent is a component of a defendant's due-process right to a fair trial." Id. (citing Pate

v. Robinson, 383 U.S. 375, 385 (1966)). "When the evidence raises sufficient doubt as to the

defendant's competency to stand trial, the defendant is deprived of due process of law if the

trial court fails to conduct a separate competency hearing." Id. at 1033 (¶15) (citing Pate,

383 U.S. at 385).

¶52.   "Rule 9.06 of the Uniform Rules of Circuit and County Court Practice clearly


                                              22
delineates the procedure for a trial court's determination of whether a potentially incompetent

criminal defendant is mentally competent to stand trial." Coleman v. State ,127 So. 3d 161,

168 (¶20) (Miss. 2013). "Rule 9.06 is meant to ensure that a defendant's due process rights

are not violated." Id. at 166 (¶13). Rule 9.06 provides in pertinent part:

       If before or during trial the court, of its own motion or upon motion of an
       attorney, has reasonable ground to believe that the defendant is incompetent
       to stand trial, the court shall order the defendant to submit to a mental
       examination by some competent psychiatrist selected by the court in
       accordance with § 99-13-11 of the Mississippi Code Annotated of 1972.

       After the examination the court shall conduct a hearing to determine if the
       defendant is competent to stand trial. After hearing all the evidence, the court
       shall weigh the evidence and make a determination of whether the defendant
       is competent to stand trial. If the court finds that the defendant is competent
       to stand trial, then the court shall make the finding a matter of record and the
       case will then proceed to trial. If the court finds that the defendant is
       incompetent to stand trial, then the court shall commit the defendant to the
       Mississippi State Hospital or other appropriate mental health facility.

(Emphasis added).

¶53.   Simply put, "once the trial court has reasonable ground to believe the defendant is

incompetent, Rule 9.06 mandates that the trial court shall order a mental evaluation followed

by a competency hearing to determine whether the defendant is competent to stand trial."

Smith, 149 So. 3d at 1033 (¶16). "In the face of this plain language [of Rule 9.06], it is

evident that it would be error not to hold a competency hearing once a trial court orders a

psychiatric evaluation to determine competency to stand trial." Sanders v. State, 9 So. 3d

1132, 1136 (¶16) (Miss. 2009).

¶54.   Here, the majority clings to the “reasonable ground” language; however, the trial court

                                              23
already ordered not one, but two mental examinations. Whether a mental examination is

ordered or not hinges on whether a reasonable ground exists to order an examination. The

competency hearing, on the other hand, is mandated. Rule 9.06 clearly states that “after the

examination the court shall conduct a hearing to determine if the defendant is competent to

stand trial.” (Emphasis added). The language of Rule 9.06 leaves no room for discretion on

whether or not to conduct a competency hearing once the trial court orders a mental

examination. Here, the trial court ordered two mental examinations, only one of which

actually occurred, and did not conduct a single competency hearing. As a result, Rule 9.06

was violated.

¶55.   In Sanders, the trial court ordered a mental evaluation of the defendant to determine

his competency to stand trial. Sanders, 9 So. 3d at 1134 (¶8). The Mississippi Supreme

Court held: "By finding that [the defendant's] motion for psychiatric examination was well

taken and granting it, the trial court necessarily determined that some, if not all, of the

assertions in [the defendant's] motion were sufficient to order a psychiatric examination of

[the defendant]." Id. at 1137 (¶18).

¶56.   In Coleman, the defendant filed a motion for a psychiatric examination and/or

treatment. Coleman, 127 So. 3d at 168 (¶20). The trial court granted the motion and the

defendant submitted to the court-ordered examination. Id. However, the trial court did not

hold a separate and timely hearing to determine the defendant's competence to stand trial.

Id. The Court held: "The trial court's grant of [the defendant's] motion was conclusive of its


                                             24
having found [a] reasonable ground to believe that [the defendant] was entitled to a mental

examination and a competency hearing, based on the plain and forthright language of Rule

9.06." Id. at (¶19). Moreover, "[o]nce a mental health evaluation has occurred, the trial court

must hold a separate competency hearing before the trial begins." Id. at (¶20). Because the

trial court failed to hold a separate competency hearing under Rule 9.06, the court remanded

the case to the trial court for a new trial. Id. at 162 (¶2).

¶57.   Similarly, the trial court’s grant of Brown’s and the State’s motions for mental

examinations was conclusive of its having found a reasonable ground that Brown was

entitled to a mental examination and competency hearing.             Only the court-ordered

examination entered on the State's motion for a psychiatric examination actually occurred.

The court-ordered examination to take place at the Mississippi State Hospital never occurred.

The majority notes that the orders did not specifically state that reasonable grounds exist to

believe Brown was incompetent at the time, but the orders themselves are conclusive of the

trial court’s having found a reasonable ground. Id. at 168 (¶19).

¶58.   The majority finds that nothing in the plea-hearing transcripts indicates that the trial

court should have been alerted Brown might be suffering from mental issues. I disagree.

Although Brown represented to the court during the plea colloquy that he was not under the

influence of any medication, medical records and Dr. Lott's report reveal that Brown was

receiving medication. Specifically, Brown was prescribed a psychotropic antidepressant,

elavil (generic name: amitriptyline), by Dr. Dale L. Wing on September 24, 1999. Dr. Wing


                                               25
started Brown on twenty-five milligrams of elavil. At the time of Dr. Lott's evaluation,

Brown's dosage had been increased to fifty milligrams. Notably, Dr. Lott's evaluation was

not filed with the trial court prior to his plea hearing. Dr. Lott's report clearly stated that

Brown was on medication, contrary to his representation to the trial court. The trial court did

not question this misrepresentation despite having “seen” the report, which plainly revealed

the inconsistency. Moreover, Dr. Lott's report states that Brown cut his wrists in jail prior

to trial; however, this alleged suicide attempt was not discussed during the plea colloquy.

The prescribed psychotropic medications and the wrist cutting certainly should have alerted

the trial court that Brown might be suffering from some mental issues. Nonetheless, even

one court-ordered examination for the purpose of determining the defendant’s competency

is conclusive of the trial court’s having reasonable grounds to doubt Brown's competency and

entitles Brown to a competency hearing based on the plain language of Rule 9.06. See

Coleman, 127 So. 3d at 168 (¶19).

¶59.   In Smith, on the day of trial, the defendant orally moved for a continuance and a

psychiatric examination. Smith, 149 So. 3d at 1029 (¶2). The trial court entered an order

compelling the defendant to undergo a psychiatric evaluation. Id. at 1030 (¶2). The record

was unclear as to why the trial court entered the order. Id. at 1034 (¶18). The examination

was never done, and the defendant later pled guilty. Id. at 1029-30 (¶2). Because of the

ambiguity surrounding the reason the trial court ordered a mental examination, the Court

remanded the case for an evidentiary hearing. Id. at 1031 (¶9). The Court concluded that "if,


                                              26
after the evidentiary hearing, the trial court determines that the purpose of the court-ordered

mental evaluation was to determine Smith's competency to stand trial, Smith's conviction

cannot stand, and Smith must be either retried or institutionalized following a mental

evaluation and competency hearing under Rule 9.06." Id. at 1035 (¶19). Here, both orders

unambiguously state that a purpose of the mental examinations was to determine Brown's

competency to stand trial.

¶60.     The majority seems to find that Brown waived his claim of incompetency for failing

to raise it at the plea hearing. However, the United States Supreme Court in Pate, 383 U.S.

375, held that “it is contradictory to argue that a defendant may be incompetent, and yet

knowingly or intelligently” waive his right to have the court determine his capacity to stand

trial.

¶61.     The majority, relying on the holding in Manning v. State, 929 So. 2d 885, 898-99

(¶35) (Miss. 2006), holds that Sanders does not apply retroactively because it announced a

procedural rule. The majority concludes that Sanders’s requiring a competency hearing did

not control at the time Brown entered his guilty plea. I disagree. The Mississippi Supreme

Court applied the holding in Sanders retroactively in a PCR case where the movant was

convicted in 1999. See Goodin v. State, 102 So. 3d 1102, 1105, 1118-19 (¶¶3, 48-50) (Miss.

2012). The majority distinguishes Goodin from this case by finding that the movant in

Goodin claimed ineffective assistance of counsel because the defense attorney failed to

ensure that the defendant was afforded a competency hearing, which was required by Rule


                                              27
9.06. Consequently, under the majority’s view, Brown could circumvent this retroactive bar,

and would be better served by filing a PCR motion alleging ineffective assistance of counsel,

essentially alleging the same set of facts, but assigning error on the part of his counsel rather

than the trial court for failing to comply with Rule 9.06. I would not hold that Sanders

applies retroactively depending on the label of the claim.

¶62.   Moreover, “[a] rule which is not enforced is no rule.” Patton v. State, 34 So. 3d 563,

571 (¶24) (Miss. 2010) (quoting Box v. State, 437 So. 2d 19, 21 (Miss. 1983)). “And when

a rule that we promulgated says a trial court ‘shall’ do a thing, justice and fairness demand

that, absent extremely unusual circumstances, we either require trial courts to do it, or change

the rule.” Id. at 572 (¶25). Rule 9.06 was in effect at the time of Brown's guilty plea. The

rule was adopted effective May 1, 1995. It is undeniable that the trial court failed to comply

with the mandatory requirements of Rule 9.06.

¶63.   In any event, the trial court never held a competency hearing, which is required by the

“shall” language of Rule 9.06. Consequently, the trial court's failure to hold a separate

competency hearing despite ordering two examinations prior to Brown's guilty plea was a

violation of his constitutional right to due process of law and is reversible error. The

appropriate remedy for failure to hold a competency hearing is a new trial, not a retrospective

competency hearing. See Coleman, 127 So. 3d at 168 (¶20). Therefore, I would reverse the

decision of the trial court, vacate Brown's conviction, and he must be either retried or

institutionalized following a mental evaluation and competency hearing under Rule 9.06.


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