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Payton v. State

Court of Appeals of Mississippi

August 14, 2018

DAVID PAYTON A/K/A DAVID R. PAYTON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 03/17/2016

          HINDS 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

          BEFORE LEE, C.J., BARNES AND TINDELL, JJ.

          BARNES, J.

         ¶1. 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.

         ¶2. 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."

         ¶3. 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.

         STANDARD OF REVIEW

         ¶5. 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 novo." Id.

         DISCUSSION

         ¶6. 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)).

         ¶7. 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.[1] 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 ...


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