IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-01146-COA JERMAINE ROGERS A/K/A JERMAINE D. ROGERS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 07/21/2014 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN III COURT FROM W HICH 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 POSTCONVICTION COLLATERAL RELIEF DISPOSITION: AFFIRMED: 12/01/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., MAX WELL AND JAMES, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. Jerm a ine Rogers pleaded guilty to capital m urder a nd received a lif

e s entence without the possibility of p arole. Rogers f iled a petition f

or post-conviction c ollateral relief (PCCR), which t he Rankin County Circuit C o u rt dism issed. Rogers appeals. W e f ind no error and af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. On February 9, 2005, a Rankin County grand jury i n d i c t e d R ogers and Deandre
Dam pier f or capital m

urder and conspiracy to com m it m urder. As part of a plea agreem ent,Rogers pleaded g u i l t y t o t h e c apital-m

urder charge, with the State recom m ending lif e without parole a nd dropping the second charge of conspiracy to com m it m urder. The circuit court accepted the term s of the agreem ent and sentenced Rogers to lif e without parole on October 7, 2005. ¶3. Rogers f

iled his f i rst P CCR petition on August 29, 2006, an am ended PCCR petition

o n J uly 7, 2 007, and a second am ended PCCR petition on February 29, 2008

. R o g e r s prim arily contended that, due to his m e ntal health and i ntellectual disabilities, he lacked the

com petency to enter a voluntary

guilty plea. ¶4. A s p a rt of the PCCR petitions, Rogers requested a psy chological e valuation t o d e t erm ine his com

p etency

. The circuit court granted Rogers’s request, and Dr. L i n d a W i lbourn conducted an evaluation and produced a report on January 5, 2014. F urther, at a hearing on June 7, 2014, R ogers’s parents testif ied t o R ogers’s m ental problem s . The circuit court, however, dism issed the PCCR petition. S TANDARD OF REVIEW ¶5. “This Court will not overturn a trial court’s dism issal o f a PCCR [ petition] on appeal ‘unless the trial court’s decision was clearly erroneous.’” Hamberlin v. State , 165 So. 3d 491, 4 93 (¶8) ( Miss. Ct. App. 2015) (quoting C hapman v. State , 1 35 So. 3 d 1 84, 185 (¶6) (Miss. Ct. App. 2013)). “W h en reviewing questions of law, t his Court’s s tandard o f review is de novo.” Id. ANALYSIS ¶6. R ogers asserts the f ollowing i s sues on a

ppeal: i nef

f ective assistance of counsel,

2illegal sentence, and cum ulative or plain e r

ror. Rogers also contends the circuit court erred in not conducting a f

ull evidentiary

hearing to determ ine his com p etency

. I. W hether Rogers received ineffective assistance of counsel

. ¶7. Rogers contends he r ece i v e d i n e ffe c t i v e assistance of c ounsel due to his t rial counsel’s f ailure to f ile s everal pretrial m otions, specif i cally m otions to request a change of venue and

a m ental evaluation to determ ine Rogers’s com petency to stand trial or plead guilty

. ¶8. To s u p p ort an inef f ective-assistance-of

-counsel claim , Rogers m ust s how: (1) his counsel’s perf

orm ance was def

i cient a nd (2) p rejudice resulted. Strickland v. W ashington , 466 U.S. 668, 687 (1984). Under Strickland , “there is a strong presum ption that counsel’s perf orm ance f alls within the range of reasonable prof essional assistance.” Hooghe v. State , 138 So. 3d 240, 247 (¶31) (Miss. Ct. App. 2014) (citing Strickland , 466 U.S. at 689). ¶9. “The m ovant m

ust allege f

acts pointing t oward counsel’s d ef icient p erf

orm ance with ‘specif icity and detail.’” Bell v. State , 117 So. 3 d 6 6 1 , 6 6 4 ( ¶ 1 0 ) ( Miss. Ct. App. 2013) (citation om itted). However, “[ i ]n cases i nvolving post-conviction collateral relief , ‘where

a party of f ers only his af

f idavit, then his inef

f ective a ssistance claim is without m erit.’” Cherry v. State , 24 So. 3d 1048, 1051 (¶6) (Miss. Ct. App. 2010) (quoting V ielee v. State , 653 So. 2d 920, 922 (Miss. 1995)). Rogers f ailed to attach any a f

f idavits in support of his contentions. In all three iterations of his PCCR petition, Rogers m erely asserted he received inef f ective assistance without a lleging specif ic acts, except in his a

ppellate brief

. Theref ore, Rogers f ailed to m eet his burden in his PCCR petition. ¶10. Additionally , R ogers pleaded guilty , which “waives c l aim s of i nef f ective assistance

3o f counsel ‘except i nsof ar as the alleged inef

f ectiveness relates to the v oluntariness of the giving o f the guilty plea.’” R igdon v. State , 126 S o. 3d 9 31, 936 (¶16) (Miss. C t. A pp. 2013) (quoting Hill v. State , 60 So. 3d 8 24, 827 (¶6) (Miss. C t. App. 2011)). Rogers raises the issue that he involuntarily

pleaded guilty

due to m ental illness and intellectual def iciencies. ¶11. Rogers s t a t es that, since the age o f s ixteen, he received m edical treatm ent f or depression. Rogers argues his counsel knew t his and should have requested a psy chological evaluation to determ ine whether he was com petent to voluntarily plead guilty . The f ailure to do so resulted in inef

f ective assistance of

counsel according to Rogers. ¶12. Rogers, however, does not m eet his b urden under Strickland

. He f ails to show how this om ission by trial c ounsel constituted an error or caused p rejudice. Additionally , because Rogers pleaded guilty , he m ust “show that the d ef

icient c onduct proxim ately resulted in his guilty plea, and but f

or counsel’s errors, he would not have entered the plea.” Cole v. State , 918 S o. 2d 890, 894 (¶10) (Miss. Ct. App. 2006) (citing R eynolds v
. State , 521 So. 2d 914, 918 ( Miss. 1988)). Yet Rogers did not claim he would have not pleaded guilty or t hat he was in f a ct incom petent to voluntarily

plead guilty

. ¶13. Further, the plea colloquy indicated Roger s v o l u n t arily pleaded guilty

. The circuit

court asked: “Are y o u telling the court that y ou’re f reely and voluntarily adm itting y our guilt

to t he crim e y ou are charged with? ” Rogers responded that he did. T he cir c u i t court also inquired into Rogers’s counsel’s representation, to which Rogers stated he was s atisf ied with his counsel, without any com plaints. Theref

ore, Rogers f

ailed to m eet his burden, and this issue is without m erit.

4II. W hether Rogers received an illegal sentence. ¶14. As a second m atter, Rogers argues the circuit court im posed an excessive sentence of lif e in prison without t he p ossibility of parole, in violation of the statutory m a x im um . Rogers claim s his sentence violates the Eighth Am endm ent’s prohibition a gainst cruel and unusual punishm ent. ¶15. Rogers was indicted an d p leaded guilty to capital m urder under Mississippi Code Annotated section 97-3-19(2)(e) (Rev. 2006). Mississippi Code Annotated s ection 97-3-21 (Rev. 2006) provided t he punishm ent f or a def endan t c o n v i c t e d of capital m urder: “Every
person who shall be c onvicted of capital m u rder shall be sentenced (a) to death; (b) to im p risonm ent f

or l if e in the State Penitentiary without parole; or (c) to im prisonm e nt f

or lif e in the State Penitentiary with eligibility f or parole as provided in Section 47-7-3(1)(f ).” ¶16. Rogers cites to Pa r k e r v
. S t a t e , 30 So. 3d 1 222, 1228 (¶16) (Miss. 2 010), f or the proposition that a sentence of lif e without parole f

or a m urder c onviction e xceeds the statutory m axim

u m . Parker, however, received a sentence under section 97-3-21 f o r m urder. Id. In con trast, Rogers pleaded guilty to capital m urder. Section 97-3-21' s sentencing f or capital m urder clearly allows f

or a sentence of lif

e without parole. Theref

ore, this issue is without m erit.
III. W hether plain or cumulative errors warrant t he reversal of Rogers’s conviction. ¶17. As an alternative argum ent, Rogers asserts t hat cum ulative error applies if no individual error requires a reversal of his conviction. “The cum ulative e r ror doctrine stem s f rom the d octrine of harm less e rror[ ,] w hich holds that individual errors, w hich are not

5reversible in t hem selves, m ay com bine with other errors to m ake up reversible error, where the c um ulative ef f e ct of a ll e r r o r s d e p rives the def endant of a f

undam entally f

air trial.” Thompson v. State , 990 So. 2d 265, 270 (¶12) ( Miss. Ct. A pp. 2008) (quoting Harris v. State , 970 So. 2d 151, 157 (¶24) (Miss. 2007)). “However, reversal based upon cum ulative error requires a f

inding or f

indings of error.” I

d. This Court f

ound n o e rror in any of Rogers’s contentions on appeal; thus, we f ind no cum

ulative error. ¶18. Rogers also invokes t he plain-err o r doctrine. “The p lain-error doctrine perm its the appellate court t o review an ‘obvious error which was not properly raised by the def endant

on appeal, and which a f

f ects a def endant’s “f

undam ental, s u b s t antive right.”’” Harper v. State , 102 So. 3d 1154, 1161 (¶25) (Miss. C t. A p p . 2 0 1 2 ) (quoting Smith v. State , 986 So. 2d 290, 294 (¶10) (Miss. 2008)). “T h e plain-error doctrine has been construed to include
any thing that seriously af

f ects the f

airness, integrity or p ublic reput a t i o n o f judicial proceedings.” Stallworth v
. S t ate , 2 So. 3d 766, 769 (¶7) (Miss. Ct. App. 2009) (citation and internal quotations om itted). This Court, however, f in ds no error that af

f ects Rogers’s f undam ental rights. This issue is without m erit.
IV. W hether the circuit court erred in failing to conduct a full e videntiary hearing to determine Rogers’s competency. ¶19. As a f

inal i ssue, R ogers claim s t h e c i r c u i t court erred by f ailing to hold a f

ull evidentiary hearing during h is PCCR-petitio n p r o c e edings in order to determ ine his

com petency to enter a voluntary

guilty plea. ¶20. “The m ovant bears the burden of proof to dem onstrate by

substantial evidence that the def e n dant is m entally incom

petent to stand trial.” Vanwey v. State , 55 So. 3d 1133, 1136

6(¶6) (Miss. Ct. App. 2011) (citation om itted). “The key consideration when determ ining if

a c om petency hearing is required is whether the court has a reasonable g round to believe that the def endant is i ncom

petent to s t a n d trial. See URCCC 9 .06. W h at constitutes a ‘reasonable ground’ f

alls within the discretion of the trial c ourt.” I d. (citing R ichardson v. State , 722 So. 2d 481, 486 (¶24) (Miss. 1998)). ¶21. Rogers asserts he m et t he requirem ents under Chase v. State , 873 So. 2 d 1013, 1027- 30 (¶¶67-81) (Miss. 2004), f or a f inding that he was m e n tally r etarded. However, Chase

o u t l ines the procedure f

or d eterm ining the c o m

petency of a def

e ndant to f

ace the deat h penalty

. Id. Instead, [ t]his Court has held that the test f or com petency to stand trial m andates that a d ef endant i s one: (1) who is able t o perceive and understand the nature of the proceedings; (2) who is able to rationally com m unicate with his attorney about the case; ( 3) who i s able to recall relevant f acts; ( 4) who is able to t estif y in his own def ense if appropriate; and (5) w hose ability to s a t i s f y the f oregoing criteria is com m ensurate with the severity of the case.
M a r t i n v. State , 8 71 So. 2 d 693, 697 (¶17) (Miss. 2004). “The standard of c o m peten c y necessary to enter a p lea o f g u i l t y i s the sam e as that f or determ ining com

petency to stand trial.” Henderson v. State , 89 So. 3d 598, 603 ( ¶23) (Miss. Ct. App. 2011) (citation om itted). ¶22. At the plea colloquy , the c ircuit court a s ked whether Rogers suf f ered f rom any m ental illness or disorder. Rogers responded that he r eceived t reatm ent f o r d e pression and at the tim e of the hearing took m e dication f or his depression. However, this i s the only indication of any m e ntal d isor d e r . R o g ers af f irm atively stated h e understood t he charges and the proceedings, spoke with his counsel concerning t h e c h a rges, and recalled relevant f acts. Further, his counsel indicated Rogers perceived the nature and severity of the crim e and his

7guilty plea. Based on the pl e a c o lloquy , the circuit court lacked any reasonable ground to

order a com

petency hearing. ¶23. Moreover, during Rog e r s’s PCCR-petition p roceedings, the circuit court held a hearing and received e vidence of Rogers’s com petency in the f

orm of Dr. W ilbourn’s evaluation and testim ony f rom Rogers’s m other and f ather concerning his m ental state and intellectual abilities. Af

ter hearing the ev i d ence, the circuit court agreed with t he State’s position that Rogers f

a iled to present suf

f icient e v i d e n c e u

n d e r C h a s e t o prove incom

petency

. ¶24. Though this Court f inds Chase does not apply here, even under Chase , Rogers f ails

to m e et his b urden. T h e p r o c e d u r e in Chase requires an af f idavit of a n e x pert who attests that the petitioner, upon f urther testing, m ay b e f

ound m e ntally retarded, a nd such af f idavit

mu s t b e a t t a c h e d to the PCCR petition. Chase , 873 So. 2 d at 1 029 (¶¶79-80). Roger s provided no expert af

f idavits with his PCCR petition. F urther, Dr. W ilbourn did not opine on Rogers’s m ental retardation. Theref ore, this issue is without m erit. ¶25. Because this Court f i nds no error on any of

Rogers’s claim s, no c um ulative or plain

error r esults to warrant a reversal. F urther, Rogers f ails to s h o w he received inef f ective assistance of c o unsel, suf f ered f rom an illegal sentence, or lacked com petency to subm it a voluntary guilty plea. For these reasons, this Court af f irm s the circuit court’s judgm ent. ¶26. T H E JUDGMENT OF THE CIRCUIT COURT OF RANKIN CO U N T Y D I S M I S S I N G T HE PETITION FOR POST-CONVICTION COLLATERA L R E L I E F I S AFFIRMED. A LL COSTS OF THIS APPEAL ARE ASSESSED TO T H E APPELLANT. LEE, C.J., IRVING, P . J., BARNES, ISHEE, CARLTON, M AXW E L L , FAIR AND WILSON, JJ., CONCUR. JAMES, J., C ONCURS IN PART A ND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

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