Robert J. Dever v. State of Mississippi
210 So. 3d 977
| Miss. Ct. App. | 2017Background
- Robert Dever pled guilty to two counts of exploitation of a child after sending child-pornography images to an undercover officer responding to solicitations. He admitted possession of images of "actual children."
- He was sentenced to 30 years on each count, to be served day-for-day, with the sentences concurrent. Sex-offense laws required day-for-day service at the time.
- Dever filed a second motion for post-conviction relief (PCR) claiming: the Supreme Court's decision in Johnson v. United States affected his sentences; the indictment/ statute naming was defective; he was actually innocent because images were virtual/animated; and his guilty plea was involuntary because he was not told of parole ineligibility.
- The circuit court summarily dismissed the second PCR as a successive writ. The court applied Mississippi statutory bars and exceptions and found no basis to overcome the successive-writ bar.
- The Court of Appeals reviewed the summary dismissal de novo and affirmed the circuit court’s dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Johnson v. United States is an intervening decision rendering Dever's sentence illegal | Johnson's vagueness holding undermines classification or enhancements treating his offense as a "crime of violence" and affects parole/ release | Johnson addressed the ACCA residual clause only; Mississippi statutes explicitly list exploitation of a child as a crime of violence and sex-offense day-for-day rules apply regardless | Rejected — Johnson does not apply; no intervening decision and claim barred as successive writ |
| Sufficiency/formal naming of the indictment/statute | Section 97-5-33 does not use the phrase "exploitation of a child," so indictment naming is defective | Indictment tracked the statutory conduct (possession of visual depictions of actual children in sexually explicit conduct) and identified the statute; a statute need not include a label for the offense | Rejected — indictment sufficiently charged the statutory offense |
| Actual innocence based on images being animated or virtual | Images were animations/virtual (not depictions of actual children), so he is actually innocent of §97-5-33(5) | Plea colloquy and record reflect Dever admitted possession of images of actual children; no supporting evidence of animation claim | Rejected — claim contradicted by record and procedurally barred |
| Voluntariness of guilty plea due to failure to inform parole ineligibility/crime-of-violence status | Plea was involuntary because the judge did not inform him he would be subject to parole limitations as a crime of violence | Knowledge could come from other sources (e.g., counsel); sex-offense day-for-day rule made crime-of-violence label irrelevant; plea-voluntariness challenges here do not implicate fundamental right for successive-writ exception | Rejected — claim barred as successive writ and would not render plea involuntary or cause prejudice |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (held the ACCA residual clause is unconstitutionally vague)
- Young v. State, 731 So. 2d 1120 (Miss. 1999) (standards for succeeding on appeal of summary dismissal of PCR)
- Jackson v. State, 860 So. 2d 653 (Miss. 2003) (burden on movant to show exception to successive-writ bar)
- Patterson v. State, 594 So. 2d 606 (Miss. 1992) (definition of an intervening decision for PCR purposes)
- Rowland v. State, 42 So. 3d 503 (Miss. 2010) (fundamental-rights errors may except procedural bars)
- Chandler v. State, 44 So. 3d 442 (Miss. Ct. App. 2010) (mere assertion of constitutional violation insufficient to overcome procedural bar)
- Jefferson v. State, 556 So. 2d 1016 (Miss. 1989) (indictment sufficiency implicates fundamental constitutional right)
- Smith v. State, 118 So. 3d 180 (Miss. Ct. App. 2013) (guilty-plea voluntariness challenges and procedural-bar implications)