DAVID PAYTON A/K/A DAVID R. PAYTON APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 03/17/2016
COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. WILLIAM A.
GOWAN JR. JUDGE.
ATTORNEY FOR APPELLANT: DAVID PAYTON (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
LAURA HOGAN TEDDER
LEE, C.J., BARNES AND TINDELL, JJ.
David Payton was indicted on June 27, 2008, of two counts of
armed robbery and one count of receiving stolen property. The
State moved to amend the indictment on November 16, 2009, to
reflect Payton's habitual-offender status under
Mississippi Code Annotated section 99-19-81 (Rev. 2007). The
following day, November 17, Payton entered a guilty plea to
Count II of the indictment, armed robbery. As part of a plea
agreement with the State, the other two counts were remanded
to the trial court's file and Payton's
habitual-offender status was dropped. The Hinds County
Circuit Court, First Judicial District, sentenced Payton to
twenty-five years in the custody of the Mississippi
Department of Corrections. Payton filed several post-trial
motions - a motion for reconsideration on December 9, 2009, a
motion to dismiss on January 19, 2010, and a motion for
records and transcripts on August 11, 2015 - all of which the
trial court denied.
On March 16, 2016, Payton filed a motion for post-conviction
relief (PCR), asserting ineffective assistance of counsel due
to counsel's failure to inform him of certain plea offers
prior to trial. Specifically, he asserted that before his
hearing, the district attorney told Payton she had afforded
him an opportunity to accept a plea offer of ten years. He
claimed that his defense counsel never communicated that
particular plea offer to him before it expired. Payton
attached only his own affidavit in support of his claim. The
trial court denied Payton's PCR motion as time-barred,
and noted that Payton "failed to attach the necessary
affidavits as required."
Aggrieved, Payton appeals the court's denial of his PCR
motion. He has attached two affidavits to his appeal-a new
affidavit by him dated October 13, 2016, and an affidavit by
Kimberly Turner dated May 24, 2016. Turner's affidavit
avers that two district attorneys visited her home, seeking
to get a statement from her daughter regarding the armed
robbery, and they commented that "it looked like Mr.
Payton wasn't going to accept the [ten-]year plea bargain
offer they were preparing for trial." ¶4. Finding
Payton has failed to demonstrate any error by the trial
court, we affirm.
In reviewing the denial of a PCR motion by a trial court, we
"will only disturb the trial court's factual
findings if they are clearly erroneous." Kennedy v.
State, 179 So.3d 82, 83 (¶5) (Miss. Ct. App. 2015)
(citing Doss v. State, 19 So.3d 690, 694 (¶5)
(Miss. 2009)). "Matters of law, however, are reviewed de
Payton argues that he was denied his constitutional right to
effective assistance of counsel because he was not informed
by defense counsel of the ten-year plea offer by the State.
Payton's PCR motion is time-barred as he pleaded guilty
in 2009 and filed his first PCR motion in 2016, well after
the three-year statute of limitations set forth in
Mississippi Code Annotated section 99-39-5(2) (Rev. 2015).
Exempted from the time-bar are "cases in which the
movant can demonstrate new evidence not available at trial,
an intervening higher-court decision, or that the movant is
being detained on an expired sentence." Blount v.
State, 126 So.3d 927, 931 (¶13) (Miss. Ct. App.
2013) (citing Miss. Code Ann. § 99-39-5(2)(a)-(b)).
"In addition to these codified exceptions, our supreme
court has deemed the procedural bars of the Uniform
Post-Conviction Collateral Relief Act inapplicable to
'errors affecting fundamental constitutional
rights.'" Id. (quoting Rowland v.
State, 42 So.3d 503, 507 (¶12) (Miss. 2010)).
Payton argues that the intervening decisions, Missouri v.
Frye, 566 U.S. 134 (2012), Lafler v. Cooper,
566 U.S. 156 (2012), and Padilla v. Kentucky, 557
U.S. 962 (2009), exempt his claim of ineffective assistance
of counsel from the procedural time bar. In Frye,
the United States Supreme Court established a specific
framework for assessing deficiency and prejudice in cases
where a lawyer has allegedly failed to communicate a
favorable plea offer, resulting in prejudice to the
defendant. "[A]s a general rule, defense counsel has the
duty to communicate formal offers from the prosecution to
accept a plea on terms and conditions that may be favorable
to the accused." Frye, 566 U.S. at 145. If the
lawyer fails to communicate the offer, and it lapses, the