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Walton v. State

Court of Appeals of Mississippi

June 20, 2017

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

          DATE OF JUDGMENT: 01/07/2016

         Court From Which Appealed Bolivar County Circuit Court, Second Judicial District Hon. Albert B. Smith III

          Attorney For Appellant: Tim C. Holleman

          Attorney For Appellee Office of the Attorney General By: Billy L. Gore

          Before Lee, C.J., Barnes, Ishee and Greenlee, JJ.

          BARNES, J.

         ¶1. Kenny Walton appeals the denial of his motion for post-conviction relief (PCR), which was on remand from this Court. See Walton v. State, 165 So.3d 516 (Miss. Ct. App. 2016) (Cause no. 2013-CA-01708-COA). Finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. As the underlying facts of this case are detailed in our prior opinion, we will address only those facts pertinent to the issue raised in this appeal. Walton, Michael McGee, Corderral McKnight, and Jasmond Matthews were indicted on September 17, 2008, for conspiracy, armed robbery, aggravated assault, arson, and kidnapping. The Bolivar County Circuit Court appointed Walton a public defender, Rosharwin Williams.[1]

         ¶3. In October 2008, the State's investigator interviewed McKnight and Matthews, who had already entered guilty pleas. A condition of their plea agreements was that they would testify against their codefendants. On November 14, 2008, the State filed a one-page Supplemental State's Report of Discovery Disclosure, stating: "With written summary pending and to be submitted to our office, the State submits that its verbal knowledge of this date is that neither the co-defendant Matthews[, nor] McKnight[, ] inculpate[s] Michael McGee or Kenny Walton and [they] instead name other accomplices[.]"[2] A certificate of service indicated the report was mailed and faxed to Walton's attorney, Williams, and McGee's attorney, William Martin. However, Williams denies receiving this discovery. Walton entered a guilty plea to all counts on November 21, 2008, with sentencing to be deferred pending Walton's "truthful and complete testimony against the remaining defendant, Michael McGee."

         ¶4. On May 22, 2009, Williams filed a motion to withdraw Walton's guilty pleas, which the trial court denied. McGee's trial was held May 27-28, 2009. McGee was acquitted of all charges, as the witnesses, including Walton, denied McGee or Walton was criminally involved. Williams filed a renewed motion to withdraw the guilty plea on July 8, 2009, stating that Walton had shared information with him that "would possibly absolve him from any criminal responsibility, " and witnesses who testified at McGee's trial supported Walton's "version of facts."[3] After a hearing, the court denied the motion and sentenced Walton to fifty-one years to serve, as he failed to testify for the State as agreed.

         ¶5. Walton filed a motion for reconsideration of his sentence. The trial court held that it was "without authority or jurisdiction to reconsider [Walton's] sentence" and, additionally, there was "no new evidence warranting a reconsideration of sentence" presented at the hearing. The trial court further ruled that the motion to reconsider was actually a PCR motion, which the court denied.

         ¶6. Walton filed a PCR motion on June 12, 2012, and the court dismissed the motion as a successive writ. Walton appealed, and on May 19, 2015, this Court remanded the case for an evidentiary hearing on Walton's claim of ineffective assistance of counsel. Specifically, we "reverse[d] and remand[ed] to the trial court to make findings of fact on whether Williams learned of Matthews's and McKnight's October 2008 statements [to the investigator, ] whether [Williams] reviewed these with Walton prior to entering his guilty plea, and the effect any non-disclosure had on Walton's plea." Walton, 165 So.3d at 528 (¶44).

         ¶7. At an evidentiary hearing held on August 31, 2015, Williams testified that he did not receive the supplemental discovery from the State, which is consistent with his prior testimony. He also claimed he did not know Matthews and McKnight had testified at McGee's trial that two other individuals, not Walton and McGee, had participated in the crimes.[4] However, Williams did aver that, prior to Walton's guilty plea, he "had been in contact" with Matthews and his attorney, and Matthews "indicated that [Walton] was not involved" in the crimes. Williams said he shared that information with Walton prior to the entry of his guilty plea, and Walton entered his plea in light of that information. Based on this ...


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