Nevin Whetstone v. State of Mississippi

Citation: Not availableDocket: 97-CA-00153-SCT

Court: Mississippi Supreme Court; January 26, 1997; Mississippi; State Supreme Court

Original Court Document: View Document

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Nevin Whetstone appealed the dismissal of his Motion to Dismiss Indictment and Vacate Conviction and Sentence, which he filed under the Post Conviction Collateral Relief Act following his 1984 guilty plea to capital murder. He raised three main issues: 

1. He claimed the indictment was defective because it did not end with the phrase "against the peace and dignity of the State of Mississippi" as required by the Mississippi Constitution and court rules, asserting that the Grand Jury foreman's signature preceded this phrase.
   
2. He argued that the indictment was void for failing to specify the judicial district where it was issued.

3. He alleged ineffective assistance of counsel, asserting that his attorney failed to protect his substantive rights under the Mississippi Constitution.

The court noted that Whetstone's motion was filed nearly 12 years after his conviction, making his claims time-barred under Mississippi law, which requires that such motions be filed within three years. Whetstone contended that recent case law (specifically, McNeal v. State and Brandau v. State) provided an exception to this time limitation, as these decisions addressed similar defects in indictments related to the mandatory concluding phrase. He argued that this constituted an "intervening decision" that could have affected the outcome of his case. 

Ultimately, the court affirmed the lower court's decision, indicating that Whetstone's claims were indeed time-barred unless successfully invoking the exception, which was not established in his case.

Whetstone's claim that McNeal or Brandau constitutes an intervening decision that could exempt him from procedural bars is rejected. The court clarifies that the intervening decision exception applies only to new rules or rights that emerged after a convict's plea or within the three-year statute of limitations. In Patterson v. State, the inmate relied on a decision that merely enforced existing rules, similar to Whetstone's reliance on a constitutional provision and legal rule available at the time of his guilty plea. Whetstone's assertion that the issue has not been before the court for seventy-one years does not impact the analysis of whether a true intervening decision exists.

Whetstone's claim is also time-barred and waived due to his failure to raise it during the trial, as outlined by Miss. Code Ann. 99-7-21 (1994), which mandates objections to defective indictments be made before the jury is impaneled in capital cases. His guilty plea further waives any defect in the indictment. Although Whetstone cites Smith v. State to argue fundamental rights exempt him from procedural bars, the court counters with Brandau, which established that improper indictment wording does not infringe on fundamental rights. Moreover, the court emphasizes that the mere presence of a procedural requirement in the Constitution does not elevate it to a fundamental right status.

Lastly, Whetstone's argument regarding the placement of a mandatory phrase following the grand jury foreman's signature is considered meritless. He misinterprets the term "conclude," neglecting the legal definition of "indictment" as a formal accusation made by a grand jury, thus failing to substantiate his claims.

"Indictment" refers to the charging language rather than the form itself, as clarified by the Mississippi Constitution. The constitutional requirement is met when the indictment's charging language ends with the necessary phrase. Whetstone argues that the grand jury foreman's signature must precede the phrase "against the peace and dignity of the state," but the rule does not mandate the order of elements, rendering his argument without merit. 

Whetstone also claims the indictment is defective for failing to state the judicial district, asserting the court lacked jurisdiction. He cites a precedent indicating that an indictment must specify the venue. However, this argument, like his previous claims, is deemed time barred and procedurally waived since he did not raise it at trial. Although he argues jurisdictional matters can be raised on appeal, the merits show that the indictment was not defective; it specified "Lee County," which does not have separate judicial districts. Mississippi law indicates that jurisdiction for offenses lies within the county where they occur, further supporting that Whetstone's indictment was valid.

Whetstone's claim of ineffective assistance of counsel centers on his attorney's failure to identify defects in the indictment, which he argues led him to plead guilty to capital murder under a void indictment. However, the court found that Whetstone's allegations are without merit, as his claims regarding the indictment are time barred, procedurally barred, and lack substantive validity. Specifically, Whetstone did not file his claims within the three-year statutory limit, did not meet the criteria for an intervening decision, and did not demonstrate that a fundamental right was affected. Additionally, he failed to raise these claims at the trial court level, and the exception for jurisdictional defects is inapplicable. The indictment was deemed valid, as it included the necessary language "against the peace and dignity of the state," and the absence of a stated judicial district was not an issue due to Lee County having only one judicial district. Consequently, Whetstone's ineffective assistance of counsel claim, based on alleged defects in the indictment, is unfounded. The trial court's decision to dismiss Whetstone's motion for Post Conviction Collateral Relief is affirmed.