COURT FROM WHICH APPEALED: MARSHALL COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 09/12/2013. TRIAL JUDGE: HON. ANDREW K. HOWORTH. TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POST-CONVICTION RELIEF.
KEP LAFOON, APPELLANT, Pro se.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER.
BEFORE IRVING, P.J., MAXWELL AND JAMES, JJ. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
IRVING, P. J.
[¶1] Kep Lafoon pleaded guilty to first-degree murder in the Marshall County Circuit Court. The circuit court sentenced Lafoon, as a violent habitual offender, to life imprisonment without eligibility for parole or early release. Lafoon filed a motion for post-conviction relief (PCR), alleging ineffective assistance of counsel. The circuit court dismissed Lafoon's motion as time-barred. Feeling aggrieved, Lafoon appeals and argues that the circuit court erred in dismissing his motion.
[¶2] Finding no error, we affirm.
[¶3] Lafoon waived indictment and was charged by information, as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 2007), with the murder of his mother-in-law. The two prior felonies listed in the information to establish Lafoon's habitual-offender status were theft of property over $500 and theft of merchandise over $1,000. On October 16, 2002, Lafoon pleaded guilty to the charge in the information, and the circuit court sentenced him as a habitual offender to life imprisonment in the custody of the Mississippi Department of Corrections, without eligibility for parole or probation. On November 2, 2002, the circuit court entered an amended judgment, sentencing Lafoon, as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2007), to life imprisonment without eligibility for parole or probation.
[¶4] On June 20, 2013, Lafoon filed a PCR motion, insisting that even though the motion was untimely, it was excepted from the time-bar because his fundamental right to effective assistance of counsel had been violated. More specifically, Lafoon alleged that his counsel's failure to object to his being charged as a habitual offender pursuant to section 99-19-83 constituted ineffective assistance of counsel, as neither of Lafoon's prior convictions was a violent crime. He further alleged that if he were properly charged under section 99-19-81, he would not have waived his right to a jury trial. Lafoon claimed that he would have gone to trial on a manslaughter defense, but because he was being charged under section 99-19-83, there was nothing to ...