IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-CP-00501-COA ABEL J. DEDEAUX

A/K/A ABEL JEROME DEDEAUX

A/K/A ABEL DEDEAUX A/K/A ABLE JEROME DEDEAUX APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 02/18/2015 TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT COURT FROM W HICH APPEALED HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: ABEL J. DEDEAUX (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF DENIED DISPOSITION: AFFIRMED – 05/17/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND JAMES, JJ. IRVING, P.J., FOR THE COURT: ¶1. Abel Dedeaux appeals the judgm ent of the Circuit Court of Harrison County deny ing his m otion f

or post-conviction relief (PCR). He raises six issues, which are overlapping and interrelated. T heref

ore, w e c ondense and sum m arize his i ssues as f ollows: (1) whether the

c i r c u i t court abused its discretion in deny i ng h is m otion to withdraw h is guilty plea, ( 2 ) whether he received i nef

f e ctive assistance of counsel, and (3) whether t he S tate presented suf f i cient evidence to support his conviction and the f inding of habitual-of

f ender status.¶2. Finding no error, we af f irm

. FACTS ¶3. On October 1 4 , 2013, Dedeaux was i ndicted f or unlawf ul possession of a f

irearm by

a convicted f

elon u nder Mississippi Code Annotated section 97-37-5 (Rev. 2014 )

. On August 21, 2014, t he circuit court accepted his plea of guilty to that charge but def erred his sentencing to the f

o llowing Monday so that he c ould attend his grandm other’s f uneral over the weekend. However, when his case was called f or sentencing on A ugust 25, 2014, Dedeaux m ade an ore te n u s motion to w i thdraw h is guilty plea, and the circuit court reluctantly a llowed h i m t o d o so. On August 2 6, 2014, af t er ref lecting on the m atter, the circuit judge, o v er Dedeaux’s objec t i o n , changed his m ind and withdrew p erm ission f or D e d e a u x to withdraw his g uilty plea. The circuit court then f o und Dedeaux guilty o f possession o f a f

irearm by a c onvicted f

elon and s entenced him t o ser v e s i x y e a r s in the

c u s t o d y o f the M ississippi Departm ent of Corrections. Dedeaux f iled a m otion f

o r reconsideration on Septem ber 5, 2014, and a written m otion to withdraw his guilty plea on Septem ber 12, 2 014, both o f which were denied by t he circuit court on Septem ber 18, 2014.
He later f iled a PCR m otion, w hich the circuit court sum m arily denied on February 18, 2015, resulting in this appeal. DISCUSSION ¶4. “W e review a circuit court’s denial of a PCR m otion und e r a c l e a rly

- erroneous standard of review.” V

a nwey v
. State , 147 S o. 3d 3 67, 369 ( ¶8) (Miss. C t

. App. 2014)

2( q u o t i n g McLaurin v
. S tate , 114 So. 3d 811, 813 (¶4) (Miss. C t. App. 2013)). “Howeve r , where questions of law are raised, the applicable standard of review is de novo.” Chaney v. State , 121 So. 3d 3 06, 308 (¶4) (Miss. Ct. A pp. 2 013) (citing T erry v. State , 755 So. 2d 41, 42 (¶4) (Miss. Ct. App. 1999)).
I. Denial of Dedeaux’s Motion to Withdraw His Guilty Plea ¶5. Dedeaux alleges that the circuit c ourt a bused its discretion by deny ing his m otion to withdraw his guilty p l ea. He argues that the c ourt’s ruling on August 2 5, 2014, allowing h im

to withdraw his guilty plea, conf licts with his s e ntencing orde r. W hile D edeaux does not explain how that is so, we pre s u me D edeaux is c ontending that s ince he was allowed to withdraw his guilty plea, he could not be subjected to a sentencing o rder without f irst being f ound guilty by a jury

. He f urther argues that the reinstatem e nt of his g u i l t y p l e a w a s im p roper, because t he plea agreem ent should have been void at the point the w i thdrawal was allowed by the c ourt

. In addition, he contends that, af ter the plea was reinstated, he f iled a

m otion f or reconsideration but never received a c opy of t he court’s order deny ing his m otion f or reconsideration. In Dedeaux’s view, this constituted reversible error. ¶6. In response, the State argues that the trial court did not abuse its discretion by reinstating Dedeaux’s g uilty plea. The State f urther a rgues that the court ruled that Dedeaux had entered into his plea agreem ent “voluntarily a n d intelligently ,” which m ade it binding.
Britton v. State , 130 So. 3d 90, 94 (¶10) (Miss. Ct. App. 2013) ( quoting Brooks v. State , 89 So. 3d 6 2 6, 629 (¶14) (Miss. Ct. App. 2011)). “To determ ine whether the plea is voluntarily

3and intelligently given, the trial court m

ust advise the def

endant of his rights, the nature of the charge a gainst him , as well a s the c onsequences of the plea.” B urrough v. State , 9 So. 3d 368, 373 (¶11) (Miss. 2009) (cit ing Harris v. S tate , 8 06 So. 2d 1 127, 1130 (¶9) (Miss. 2002)). The State asserts that t he record supports a f inding that the c o u rt adequately inf orm ed Dedeaux of the rights that h e would be giving up, the nature of the charges against him , a s well as the consequences of the plea, which is all that i s required f o r a valid guilty plea. ¶7. In addition, the State a r g u e s t h a t “ the decision of w hether to a llow a def endant to withdraw a valid g uilty plea lies within the discretion of the trial court.” Britton, 130 So. 3d

at 94 (¶10) ( quoting Burrough , 9 S o. 3d at 372-73 (¶11) (citing URCCC 8 .04(A)(5))). The State also correctly asserts that n ot receiving a c o py of the order deny ing a mo t i o n f or reconsideration is not a cognizable ground f or relief delineated u nder the M i s s i ssippi Unif orm Post-Conviction Collateral Relie f A c t

. M i ss. Code Ann. § 9 9-39-5 (Rev. 2015).
Bas e d on our caselaw, we f ind that the circuit court did n ot a buse its discretion when it reversed its initial decision that allowed Dedeaux to withdraw his guilty plea. T heref ore, no error exists with respect to the enf orcem ent of

Dedeaux’s plea agreem e nt. II. Ineffective Assistance of Counsel ¶8. Dedeaux argues that h e received inef f ective assistance o f counsel and was f orced to proceed d e spite a conf

lict with h is attorney in violation of his Sixth Am endm ent rights. He alleges that Attorney Theressia Ly ons was retained by h im and that she f ailed to m a ke certain

4objections and to f ile certain m otions w ith the court, pointing specif ically to Ly ons’s f

ailure

to f ile a m otion t o suppress. Dedeaux f urther alleges that b ecause Ly ons f ailed to f ile those

m otions, “her perf

orm a nce f ell b elow all objecti v e s t andard[ s] of r easonableness,” and “[ her] perf orm ance p r ejudice d [ him ], resulting in [ a] f undam e ntally unf

air outcom e of the proceeding.” ¶9. In response, t he S tate a rgues that the vagueness o f Dedeaux’s assertions makes it im p ossible to determ ine whether Ly ons’s actions were def icient. The State f

urth e r a r gues that the burden w as on Dedeaux, as the def endant, to show that his attorney ’s perf orm ance

was def icient and t ha t h e w as subsequently prejudiced under the Strickland 1 two-part test. F i n l e y v
. State , 739 So. 2d 425, 427 (¶5) (Miss. Ct. App. 1999) (citations om itted). I n addition, the State contends that “counsel’s c hoice of whether or not t o f ile certain m otions

. . . f alls within t he am

bit of trial strategy .” S

cott v. State , 742 So. 2 d 1190, 1196 (¶14) (Miss. Ct. App. 1999) (citing Cole v. State, 666 So. 2d 767, 7 77 (Miss. 1995)). The State f urther contends that a valid guilty p lea results in the waiver of a claim of inef f e ctive assistance of counsel unless the c laim relates to the voluntarine s s o f t h e plea. Smith v. S tate , 86 So. 3d 276, 283 (¶23) (Miss. Ct. App. 2012). ¶10. This Court agrees with the State’s argum ents and f inds t hat Dedeaux e n tered into a

1 A claim o f in ef

f ectiv e assistan ce o f co u n sel is j u d g e d b y th e stan d ard in S trickla n d v. Wa sh i n g to n , 4 6 6 U .S

. 6 6 8 (1 9 8 4 ). T h e tw o in q u iries u n d er th at s tan d ard are (1 ) w h eth er co u n sel’s p erf

o rm an ce w as d ef

icien t, an d , if s o , (2 ) w h eth er th e d ef icien t p erf

o rm an ce w as p rej u d icial t o th e d ef

en d an t in th e sen se t h a t o u r c o n f id e n ce in th e co rrectn ess o f th e o u tco m e is u n d erm in ed

. Id . at 6 8 7

. 5valid plea agreem ent, and his inef f ective-assistance-of

-counsel c laim does not relate to the voluntariness of his plea. See id. Theref ore, Dedeaux’s c laim of i nef f ective assistance of counsel f ails. See id. The decisions m ade by Dedeaux’s counsel d id n ot rise to the level of inef f ective assistance since they were discreti o nary decisions within the am bit of trial strategy

. Se e S

c o t t , 742 S o. 2d at 1196 (¶14). Finally , during the court proceedings on Au gust 21, 2014, Dedeaux, while entering his plea agreem ent, s t ated that he was satisf ied with the services of

his counsel. Accordingly , this issue is without m erit.
III. Sufficiency of the Evidence: Habitual-Offender Status and Conviction ¶11. Dedeaux argues that t he State f ailed to prove his habitual-of f ender status. In support of this argum ent, Dedeaux asserts that the State f ailed to provide him

with certif

ied copies of his prior convictions. Howev e r , D e d e a u x adm its that the State inf o rm ed him of the habitual-of

f ender status a n d provided on the record a recitation of his prior f elonies. Moreover, the record ref

lects t hat Dedeaux’s prior f elonies are l isted in his plea petition that he signed in the presence of the circuit judge af ter t he State had read int o t h e r ecord the inf orm ation regarding those prior f elonies. Dedeaux also a lleges that the State’s evidence against him was insuf

f icient to s upport h is conviction and that the State’s f ailure t o present adequate evidence of his guilt resulted in a violation o f his F ourteenth Am endm ent right to due p rocess. He also alleges, without explanation, that his Fourth Am endm ent r ights were violated. ¶12. In r esponse, the State argues that “the requirem e n t that the State prove the existence

6of the prior convictions

. . . [ is] negated by

. . . [ the] decision t o enter a guilty plea.” Easley

v. State , 60 So. 3 d 8 12, 816 (¶15) (Miss. Ct. App. 2011). Notwithstanding Easley , the State contends that Dedeaux’s habitual-of f ender status was in f

a ct proven. The S tate points out that the indictm ents and sentencing orders f rom Dedeaux’s previous f

elonies were entered into evidence during the plea hearing. The p rior f e lony convictions of robbery and leaving the scene of an accident satisf y the statute, and the record supports th e S t a t e ’ s assertions. Dedeaux was properly indicted as a habitual of f ender under section 99-19-81. ¶13. In regard to D e d e a u x’s a rgum ent that the evidence supporting h is c onviction was insuf f icient, the State properly argues that “[ a] guilty plea operates t o waive t he def endant’s

. . . r ight t hat the prosecution prove each elem ent of the of f e nse bey ond a reasonable doubt.” Garrett v. State , 110 So. 3 d 790, 7 93 (¶9) (Miss. C t. App. 2012) (quoting Jefferson v. State , 556 So. 2d 1016, 1019 (Miss. 1989)). As previously s tated, Dedeaux voluntarily entered a valid guilty plea, waiving his right to have the State prove ea ch elem ent of the of f ense bey ond a reasonable doubt. This issue is without m erit. ¶14. In sum m ary , we f

ind no m erit to any of the issues raised by Dedeaux. Theref ore, it f ollows that the judgm ent of the circuit court should be af f irm e d. ¶15. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON CO U N TY, F I R S T J U D I C I A L D I S T R I C T , D E N Y I N G T H E M O T I O N F O R P O S T
- C O N V I C T I O N RELIEF IS A FFIRMED. ALL COSTS OF THIS APPEAL A R E A S S ESSED TO HARRISON COUNTY. LEE, C. J . , G R IFFIS, P.J., BARNES, ISHEE, CARLTON, F AIR AND GREENLEE, JJ., CONCUR. JAMES, J., C ONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. W ILSON, J., C ONCURS IN PART AND IN THE
7RESULT WITHOUT SEPARATE WRITTEN OPINION.

8