Dunlap v. State
| Docket Number: | 2006-CP-00294-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 05-22-2007 Opinion Author: CHANDLER, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Ineffective assistance of counsel - Voluntariness of plea - Defective indictment Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: PCR Nature of the Case: CIVIL - POST-CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 01-18-2006 Appealed from: Clay County Circuit Court Judge: James T. Kitchens, Jr. Disposition: POST-CONVICTION RELIEF DENIED Case Number: 2006-0019 |
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| Party Name: | Attorney Name: | |||
| Appellant: | GREGORY DUNLAP |
GREGORY DUNLAP (PRO SE) |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Post-conviction relief - Ineffective assistance of counsel - Voluntariness of plea - Defective indictment |
| Summary of the Facts: | Gregory Dunlap was convicted of the sale of cocaine. He filed a post-conviction relief motion which was denied. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel Dunlap argues that his attorney did not alert him of any available defenses, such as a faulty indictment, and persuaded him to take a guilty plea which required more prison time than that allowed by the statutory guidelines. Dunlap claims that the indictment was insufficient because it did not include the weight and price of the cocaine sold. The indictment against Dunlap states in relevant part that “Gregory Dunlap . . . did unlawfully, wilfully, and feloniously, knowingly and intentionally sell a controlled substance, to wit: COCAINE, . . . for and in consideration of money, in violation of MCA §41-29-139 . . . .” Therefore, the indictment sufficiently stated the elements of the crime of sale of a controlled substance. Dunlap also argues that his counsel was ineffective by allowing him to plead to a sentence which went beyond the statutory maximum allowed for the crime. Dunlap admits that his attorney informed him that under the sentencing guidelines provided by section 41-29-139(b)(1), he could have received up to thirty years in prison for selling cocaine. However, he claims that because the weight of the cocaine was under two grams, he should have been informed of the sentence pertaining to section 41-29-139 (c)(1)(B), which renders a maximum of eight years in prison. The plain language of the applicable statute does not support Dunlap’s argument. His sentence of twelve years imprisonment, with five years of post-release supervision and a fine of $5,000 was well within the guidelines provided by section 41-29-139(b)(1). Issue 2: Voluntariness of plea Dunlap argues that due to the alleged faulty indictment and sentencing errors, his guilty plea was made involuntarily and unknowingly. A plea is considered voluntary and intelligent if the defendant is advised about the nature of the charge against him and the consequences of the entry of the plea. Dunlap stated in his sworn and signed guilty plea petition that he understood the charges against him and the consequences of pleading guilty. Dunlap asserted that he was not coerced into pleading guilty and that he was satisfied with his attorney’s assistance. Further, Dunlap acknowledged that the maximum sentence for the crime was thirty years. Considering the fact that the State had an audio and videotape of the purported sale, as well as several witnesses to the transaction, Dunlap was well-advised to accept the plea. Issue 3: Defective indictment Dunlap argues that his indictment was defective because it did not contain the weight and price of the cocaine sold. Neither the weight nor the price of the substance are required elements under section 41-29-139. |
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