DATE OF JUDGMENT: 10/20/95 TRIAL JUDGE: HON. JERRY OWEN TERRY, SR. COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
Before: Sullivan, P.j., Banks And Mills, JJ.
The opinion of the court was delivered by: Sullivan, Presiding Justice
NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF
DISPOSITION REVERSED AND REMANDED - 3/12/98
MOTION FOR REHEARING FILED:
¶1. This appeal arises from the denial of Payton's motion for post conviction relief rendered on October 20, 1995 , by the Circuit Court of Harrison County, Mississippi in the criminal cause number 6150 after an evidentiary hearing was held on October 13, 1995. Payton was convicted of rape on April 19, 1990, and sentenced to thirty-five years in the Mississippi Department of Corrections. On direct appeal, this Court affirmed his conviction and sentence on December 31, 1992, issuing an [Editor's note: originally released as an unpublished opinion]. Payton v. State, 610 So. 2d 389 (Miss. 1992). Finding that Payton was denied effective assistance of counsel due to the failure to investigate the factual circumstances surrounding the alleged crime and provide him with a basic defense, we reverse and remand this case for a new trial.
JURISDICTION OF THE TRIAL COURT
¶2. The State argues that the circuit court did not have jurisdiction to entertain a motion for post-conviction relief due to Payton's failure to follow the proper procedures. This argument is without merit because Payton wrote a motion for post-conviction relief to the circuit court and an application for leave to file a post-conviction relief motion to this Court both dated April 28, 1993. On January 25, 1995, this Court granted Payton leave to file his PCR motion and further stated that Payton has presented facts which would entitle him to an evidentiary hearing. Payton then filed a second PCR motion dated February 6, 1995, which was filed on February 10, 1995. The statute makes clear that when this Court allows the filing of the motion with the trial court, further proceedings shall occur under the several, enumerated sections of the Post Conviction Relief Act. Miss Code Ann. § 99-39-27(7)(b) (1994). Therefore, the circuit court did have jurisdiction to entertain this motion and grant an evidentiary hearing.
¶3. Payton assigns several errors for this Court's consideration, however finding that all issues other than the claim of ineffective assistance of counsel lack merit we decline to address them.
INEFFECTIVE ASSISTANCE OF COUNSEL
¶4. A claim for ineffective assistance of counsel is Judged by the standard set forth in Strickland v. Washington, 466 U.S. 668, 688 (1984) and adopted by this Court in Stringer v. State, 454 So. 2d 468 (Miss. 1984). The two inquiries which must be made under the Strickland standard are "(1) whether counsel's performance was deficient, and, if so, (2) whether the deficient performance was prejudicial to the defendant in the sense that our confidence in the correctness of the outcome is undermined." Neal v. State, 525 So 2d 1279, 1281 (Miss. 1987) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)). Counsel's representation is deficient if the errors are so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). The deficient performance is prejudicial to the defendant if counsel's errors are so serious as to deprive the defendant of a fair trial. Id. When applying the Strickland standard, there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Schmitt v. State, 560 So. 2d 148, 154 (Miss. 1990). "To overcome this presumption, `he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Schmitt, 560 So. 2d at 154 (brackets in original) (quoting Strickland , 466 U.S. at 694); Nicolaou v. State, 612 So. 2d 1080, 1086 (Miss. 1992). The defendant has the burden to satisfy both prongs of the test. Edwards v. State, 615 So. 2d 590, 596 (Miss. 1993). If either part of the test, deficient performance or prejudice, is not satisfied then the claim must fail. Payton asserts eleven separate claims in his brief in support of his contention that he was denied effective assistance of counsel but this Court finds that only the claims that relate to the failure to investigate are meritorious.
¶5. It is unclear who Payton's counsel was from the date of his arrest on April 27, 1988, until September 17, 1988 when there is no doubt that McKoin became his attorney of record. At the evidentiary hearing Mr. McKoin, the attorney who represented Payton at trial and on his direct appeal, testified that he was retained by Payton's mother in September of 1988. He said that he did not talk to Payton about case number 6150 until six, seven, maybe eight months after the first arrest because Fred Lusk or Jim Rose was his lawyer during those months and he did not know Payton in April of 1988. In contrast, Payton testified that he first saw McKoin on April 27, 1988, about 7:30 that night at the Biloxi County Jail. He testified that McKoin represented him at his initial appearance on April 28, 1988 and the next time he saw McKoin was in September of 1988, when he was arrested for the second charge of rape. Given these conflicting facts it is unclear who Payton's attorney was between April, 1988, and September, 1988, or if in fact Payton was represented by any attorney during this time period.
¶6. Although the fact of who represented Payton during this time period is unclear, it is irrelevant to whether Payton was denied ineffective assistance of counsel since he has a constitutional right to have an attorney appointed if he cannot afford one. Even if, as McKoin testified, he did not represent Payton until several months after the incident, Payton had a right to have counsel and if McKoin was not his attorney then Payton may not ...