325 So.3d 1195
Miss. Ct. App.2021Background
- Jenkins was indicted May 5, 2015 on two counts of gratification of lust (fondling a child) under Miss. Code Ann. § 97-5-23(1).
- He pleaded guilty and received 15 years per count, nine years suspended on each, five years post-release supervision, with sentences consecutive.
- Jenkins filed a first PCR on December 4, 2017 arguing the indictment omitted the word "feloniously" (and certain statutory language); the trial court denied relief and this Court affirmed in Jenkins I.
- On June 2, 2020 he filed a second PCR arguing the indictment omitted "feloniously" and the phrase "with or without consent."
- The circuit court dismissed the second motion as successive under the UPCCRA and Jenkins appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the second PCR is barred as successive | Jenkins: prior denial does not bar this claim because indictment omissions implicate fundamental rights and cannot be waived | State: UPCCRA bars successive PCR motions; Jenkins bears burden to overcome bar | Dismissal as successive affirmed; no valid exception shown |
| Whether omission of the word "feloniously" makes the indictment fatally defective | Jenkins: "feloniously" is an essential element and its omission invalidates the indictment | State: "Feloniously" is not an element; statute labels the offense a felony but does not require that term as an element | Held not defective; indictment tracks statutory language and provided sufficient notice |
| Whether omission of "with or without consent" makes the indictment fatally defective | Jenkins: phrase omission affects notice and fundamental rights | State: Consent is not an element for this offense because a child under 16 legally cannot consent; the statute proscribes conduct both with and without consent | Held not defective; phrase not an essential element and omission does not undermine indictment |
Key Cases Cited
- Jenkins v. State, 283 So. 3d 217 (Miss. Ct. App. 2019) (prior appeal affirming denial of Jenkins's first PCR)
- Rowland v. State, 42 So. 3d 503 (Miss. 2010) (identifies limited fundamental-rights exceptions to procedural bars)
- White v. State, 59 So. 3d 633 (Miss. Ct. App. 2011) (mere assertions of constitutional violations do not overcome procedural bars)
- Gilmer v. State, 955 So. 2d 829 (Miss. 2007) (requirements for a valid indictment)
- Miller v. State, 18 So. 3d 898 (Miss. Ct. App. 2009) (indictment that tracks statutory language gives sufficient notice)
- Carter v. State, 204 So. 3d 791 (Miss. Ct. App. 2016) (guilty plea does not waive claim that indictment fails to allege an essential element)