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Walton v. State

Court of Appeals of Mississippi

May 19, 2015

KENNY WALTON A/K/A " K DOG" , APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

Page 517

COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 09/06/2013. TRIAL JUDGE: HON. ALBERT B. SMITH III. TRIAL COURT DISPOSITION: POST-CONVICTION MOTION DISMISSED.

REVERSED AND REMANDED.

FOR APPELLANT: TIM C. HOLLEMAN.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: MELANIE DOTSON THOMAS.

BEFORE LEE, C.J., BARNES AND MAXWELL, JJ. LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

Page 518

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

BARNES, J.

[¶1] In this post-conviction-relief appeal, we must determine if the trial court properly dismissed Walton's post-conviction motion as a successive writ. Finding error, we reverse the judgment of the trial court and remand this case with instructions that the trial court make appropriate findings of fact regarding Walton's ineffective-assistance-of-counsel claim.

FACTS

[¶2] On Halloween night, October 31, 2007, four assailants wearing masks brutally beat and robbed a pizza-delivery employee in Cleveland, Mississippi. One of the items stolen was the victim's cell phone. A few days later, police traced the phone to a house. On the porch they found the appellant, Walton, talking on the stolen phone. Walton was taken into custody, and he gave two statements. In the first, Walton said he was not involved but heard that his brother, Abraham, had robbed the pizza employee, along with James Thomas and Kenny Henry. Walton

Page 519

claimed he got the cell phone earlier that day from Corderal McKnight. When investigators told Walton that the phone belonged to the pizza-delivery employee, Walton said that Corderal McKnight must have been involved in the robbery. Walton also claimed that Jasmond Matthews must also have been involved.

[¶3] In the second statement, taken later that night, Walton first claimed that he overheard Matthews, Michael McGee, and McKnight talking about the robbery. Then he claimed he was present when the victim was beaten and robbed. He claimed that Matthews, McKnight, and McGee beat and robbed the victim while he sat and watched.

[¶4] Walton, along with Matthews, McKnight, and McGee, was indicted in September 2008. The indictment charged all four with conspiracy, armed robbery, aggravated assault, arson, and kidnapping. In October 2008, Matthews and McKnight entered guilty pleas to charges relating to the incident. Matthews pled guilty to all five counts and was sentenced to a total of twenty years to serve. McKnight pled guilty to one count of accessory after the fact and was sentenced to five years to serve. One of the conditions of the plea agreements was that Matthews and McKnight testify against their codefendants. They were each interviewed after they pled guilty.

[¶5] What they said in those interviews, and what notice Walton's attorney, and Walton himself, had of their statements, are central to this appeal. After Matthews and McKnight entered their guilty pleas, two defendants remained for trial: Walton and McGee. On October 21, 2008, Walton signed a petition to enter a guilty plea to all of the charges: armed robbery, kidnapping, aggravated assault, arson, and conspiracy to commit those crimes. The factual basis in the petition stated simply, " I am guilty as charged."

[¶6] On November 14, 2008, the State filed a one-page document in Walton's and McGee's criminal cases entitled " Supplemental State's Report of Discovery Disclosure." The notice was file-stamped on November 14, 2008, by the Bolivar County Circuit Clerk. The notice stated that Matthews and McKnight had been interviewed, but that written reports of their interviews were not expected until the following Monday, November 17, 2008. The document summarized what Matthews and McKnight had to say: " neither the co-defendant Matthews or McKnight inculpate Michael McGee or Kenny Walton but instead name other accomplices." The other accomplices claimed by Matthews and McKnight were Desmond Johnson and Nookie Alexander. The notice contained a certificate of service indicating that it had been mailed to Walton's attorney, Rosharwin Williams, at Post Office Box 184, Indianola, MS 38751, and faxed to Williams at " 887-7050." The certificate also indicated that it was mailed and faxed to McGee's attorney, William Martin, in Gulfport, Mississippi.

[¶7] On November 21, 2008, Walton entered a guilty plea before Judge Albert Smith III to all five counts. The State recommended that Walton be sentenced to a total of fifteen years. One of the terms of the sentencing recommendation was that sentencing would be deferred pending Walton's " truthful and complete testimony against the remaining co-defendant, Michael McGee."

[¶8] Trial for the lone remaining defendant, McGee, was scheduled to begin in May 2009. On May 22, 2009, Walton's attorney, Williams, filed a motion to withdraw Walton's guilty plea. In the motion, Williams claimed " [t]hat [Walton] has recently provided information that calls into

Page 520

question his former guilty plea which would therefore lend it to be set aside," and that " [t]his information has not been shared with his counsel in the past and would now seriously impact and undermine the integrity of his former guilty plea." Finding the motion " frivolous on its face," a different circuit judge denied the motion on May 26, 2009.[1]

[¶9] McGee's trial commenced on May 27, 2009. Walton was called as a prosecution witness, but he testified that neither he nor McGee were involved in the crimes. Walton testified that he was afraid and did not understand what was going on in his interviews or his guilty plea. He claimed that he just made up the names and the events related to the investigators. Matthews and McKnight also testified that they committed the crimes with two other individuals, and that McGee and Walton had nothing to do with the crimes. McGee was acquitted.

[¶10] On May 27, 2009, the State moved to revoke Walton's bond based upon his failure to testify as expected against McGee. On July 8, 2009, Williams filed a " Renewed Motion to Withdraw Guilty Plea," in which he claimed that " [o]n or about May 20, 2009, Defendant shared [sic] his counsel information that differed from his previous guilty plea and would possibly absolve him from any criminal responsibility. The same was shared with the State in advance of the Michael McGee trial date."

[¶11] At the commencement of Walton's sentencing hearing on July 8, 2009, the court allowed Walton's counsel to present argument on his motion to withdraw Walton's guilty plea. Walton's counsel said that he had received some notes two days before McGee's trial was scheduled to commence containing statements from one of Walton's codefendants that Walton was not involved in the crimes. Williams then argued:

During the trial, the other codefendants as well exculpated my client from any participation in the incident. And so, those bases, since it was new evidence that had not ever been disclosed to me either through my client or anyone else, I thought it was necessary to at least file the motion to withdraw his guilty plea on those bases.

[¶12] Circuit Judge Smith said that he had reviewed the guilty-plea transcript and was satisfied that Walton understood what he was charged with and that the plea was a valid one. The State withdrew its prior sentencing recommendation of fifteen years to serve. The court then proceeded to sentence Walton to fifty-one years to serve. The next day, the court entered a written order denying Walton's renewed motion to withdraw his guilty plea.

[¶13] Williams filed a " Motion for Reconsideration of Sentence" on August 4, 2009. In it, he argued that Walton's fifty-one-year sentence was disproportionate to the twenty-year sentence of Matthews and the five-year sentence of McKnight, even though both individuals, like Walton, had exonerated McGee at his trial. Williams also argued that a family member of the victim had asked for leniency for Walton.

[¶14] On August 5, 2009, Judge Smith held a hearing on Walton's motion to reconsider his sentence. At the hearing, Williams stated that " the statements of Mr. Matthews that would exculpate Mr. Walton -- the statements of Mr. McKnight that would exculpate Mr. Walton were never shared with Counsel." The State

Page 521

responded that Matthews's and McKnight's statements had been disclosed prior to Walton's guilty plea and McGee's trial, and that this was what had led the State to reduce Walton's offer from twenty years to fifteen years, in recognition of the fact that he would be the only witness against McGee. Williams reiterated his argument that " [t]here was no information shared with counsel that those witnesses [(Matthews and McKnight)] that they pled and interviewed would exculpate this particular defendant at trial. And that raises the issue, again, as to Brady." The State responded that the records of the clerk's office would confirm that the disclosure had been made.

[¶15] Judge Smith opined that Pollard v. State, 12 So.3d 584, 585 (¶ 5) (Miss. Ct. App. 2009), stood for the proposition that the court lacked jurisdiction, after the term of court had ended, to revisit the sentence. The court noted that, in its opinion, the only way to attack a guilty plea and sentence was through the post-conviction statutes. The court noted that the issue could be addressed as a post-conviction proceeding under Mississippi Code Annotated section 99-39-5 (Rev. 2007), and defense counsel agreed to do so. The court, without specifically addressing the Brady issue, ruled that Walton's guilty plea was knowing and voluntary, and that the sentence would not be altered.

[¶16] Walton filed a timely notice of appeal. The appeal in Walton v. State, 2009-TS-01310-COA, was dismissed by this Court for lack of jurisdiction because it appeared to be an attempt to appeal a guilty plea and sentence. The dismissal order noted that Walton could challenge his conviction and sentence under the ...


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