        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-CA-00168-COA

KENNY WALTON A/K/A “K DOG”                                                 APPELLANT

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                         01/07/2016
TRIAL JUDGE:                              HON. ALBERT B. SMITH III
COURT FROM WHICH APPEALED:                BOLIVAR COUNTY CIRCUIT COURT,
                                          SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                   TIM C. HOLLEMAN
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: BILLY L. GORE
NATURE OF THE CASE:                       CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                  MOTION FOR POST-CONVICTION RELIEF
                                          DENIED
DISPOSITION:                              AFFIRMED - 06/20/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., BARNES, ISHEE AND GREENLEE, JJ.

      BARNES, J., FOR THE COURT:

¶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,



       1
            Williams is presently an assistant district attorney for the Eleventh Circuit Court
District.
       2
       The other persons later named by Matthews and McKnight were Desmond Johnson
and Nookie Alexander.

                                                2
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



         3
             The information consisted of notes/letters to Walton from McGee and others.

                                                3
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 testimony by Williams, the circuit court found that Walton was not denied effective

assistance of counsel in connection with his guilty plea and denied Walton’s PCR motion.

¶8.    On appeal, Walton argues that his PCR motion should have been granted, his guilty

pleas set aside, and the case remanded “for a full trial on the merits.”

                                 STANDARD OF REVIEW

¶9.    This Court remanded for an evidentiary hearing on whether Williams’s representation

of Walton constituted ineffective assistance of counsel. For Walton to prevail on his

ineffective-assistance-of-counsel claim, he must prove that Williams’s performance was

deficient, and Walton suffered prejudice as a result of the deficient performance. See

Strickland v. Washington, 466 U.S. 668, 687 (1984). While there is a presumption “that

counsel’s representation falls within the range of reasonable professional assistance,” the

defendant may overcome this presumption upon a showing “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Thinnes v. State, 196 So. 3d 204, 210 (¶23) (Miss. Ct. App. 2016) (quoting

Sylvester v. State, 113 So. 3d 618, 624 (¶22) (Miss. Ct. App. 2013)). We will affirm a trial



       4
           Williams noted that he did not attend McGee’s trial, nor did he read the transcript.

                                                4
court’s decision after an evidentiary hearing unless the court’s findings are “clearly

erroneous.” Chase v. State, 171 So. 3d 463, 479 (¶51) (Miss. 2015) (citation omitted).

Deference is given “to the trial court as the sole authority for determining credibility of the

witnesses.” Id. “[Q]uestions of law are reviewed de novo.” Id.

                                       DISCUSSION

¶10.   Walton claims the circuit court’s finding is “clearly erroneous” because Williams’s

testimony at the evidentiary hearing contradicted his prior “actions and representations.” At

the August 5, 2009 hearing on the motion to reconsider Walton’s sentence, Williams stated:

“In particular, the State has not address[ed] the issue of the exculpatory statements that were

made by their witnesses, Matthews and McKnight, as relates to Mr. Walton. . . . There was

no information shared with counsel that those witnesses that they pled and interviewed would

exculpate this particular defendant at trial.” The State objected to that representation,

claiming that the “exculpatory nature [of the] testimony of Jasmond Matthews and Corrderal

McKnight was disclosed.”

¶11.   At the August 31, 2015 evidentiary hearing, Williams acknowledged that he had

discussed with Matthews’s counsel “what his client would possibly testify to, and [he] even

met with [Matthews] at one point,” prior to Walton’s entering his guilty plea. Williams

testified: “I spoke with Mr. Matthews, and Mr. Matthews simply told me that [Walton] was

not involved. But that was . . . opposite to what my client told me when we had our

communications.” He further provided:

       Well, I did interview Mr. Matthews; and Mr. Matthews told me that my client
       was not involved . . . . But then, again, when I spoke with my client, he


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       provided me a totally different statement. So I’m left, at that point, with two
       versions of facts coming from the two different angles; and my client telling
       me one thing. And my client at that point, decided that it was in his best
       interests to plead; so that’s what he did.

While Williams admitted that he saw the “statement” from the State’s investigator, he

insisted the statement did not provide any facts exculpating Walton. The statement said that

McKnight’s comments regarding the incident seemed “rehearsed or coached,” and

Matthews’s “demeanor” was “comical and misleading.” It also noted that neither defendant

would make eye contact with the investigator, and McKnight became “nervous or scared”

when asked if he had been threatened. Nothing in the statement indicated other persons were

involved.5

¶12.   In regard to the other named associates, Johnson and Alexander, Williams told the

judge that he did not recall any disclosure prior to the entry of Walton’s guilty plea that two

other men were involved. Williams testified: “I never knew those names, no. And they

never shared those names with me in any way.” Thus, while Williams was made aware the

other two defendants would not inculpate Walton, he did not know McKnight and Matthews

would implicate Johnson and Alexander. McKnight’s and Matthews’s testimonies did not

reveal this information until McGee’s trial, which was several months after Walton entered

his guilty plea.

¶13.   We stated in our prior opinion: “In the context of a guilty plea, Walton must establish

that, but for his lawyer’s failure to advise him of the exculpatory statements of Matthews and



       5
        In our prior opinion, we noted that it was “unclear” when this report was furnished
to Williams. See Walton, 165 So. 3d at 526 (¶37).

                                              6
McKnight, he would have elected to go to trial and the outcome would have been different.”

Walton, 165 So. 3d at 525 (¶35). Williams testified that he discussed with Walton

Matthews’s comments regarding Walton’s lack of involvement in the incident, testifying:

       [Walton] made his own decision, based on the discovery, to enter a plea. . . .
       But the basis as to why he pled was on the attorney/client communications and
       in light of what was in the discovery, particularly the phone that he had[6] and
       his statements; and his statements were very incriminating.

When asked by the circuit judge at his guilty plea hearing whether he told his attorney,

Williams, the “truth about the facts of this case,” Walton replied, “Yes, sir.” He also said he

had not been threatened to enter his guilty plea.

¶14.   Walton contends that Williams “should not [have been] permitted to ‘impeach’ or

contradict his own previous representations.” However, “[t]he purpose of an evidentiary

hearing is for the court to receive evidence in order to make findings of fact.” Rowland v.

Britt, 867 So. 2d 260, 262 (¶9) (Miss. Ct. App. 2003) (quoting Lyle v. State, 756 So. 2d 1,

2 (¶7) (Miss. Ct. App. 1999)). Furthermore, Williams never acknowledged receipt of the

State’s supplemental report, and maintains that he never knew about the other two alleged

accomplices prior to Walton’s guilty plea. As the trial judge determined in his opinion,

Williams “did not the receive the State’s discovery through proper channels,” and the three

motions filed by Williams were “because of evidence he had received from his client after

the entry of his guilty plea.” (Emphasis added). We find the circuit court’s findings were

not clearly erroneous.



       6
        Walton possessed the victim’s cell phone when police arrested him. He claimed he
got the phone from McKnight.

                                              7
¶15.   Accordingly, we affirm the court’s denial of Walton’s PCR motion.

¶16. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY,
SECOND JUDICIAL DISTRICT, DENYING THE MOTION FOR POST-
CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.

    LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, FAIR, WILSON AND
GREENLEE, JJ., CONCUR. WESTBROOKS, J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY IRVING, P.J.

       WESTBROOKS, J., DISSENTING:

¶17.   I am of the opinion that the trial court erred in denying Walton’s request for

postconviction relief, and that Walton’s conviction represents a miscarriage of justice.

Therefore, I respectfully dissent.

¶18.   At the evidentiary hearing, I find that Walton showed that his attorney’s insufficiency

had a reasonable probability of affecting the outcome of the case. “The benchmark for

judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial [or plea] cannot

be relied on as having produced a just result.” Jordan v. State, 918 So. 2d 636, 647 (¶19)

(Miss. 2005) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)). “A defendant

must demonstrate that his attorney’s actions were deficient and that the deficiency prejudiced

the defense of the case.” Id.

¶19.   Initially, the public defender, Williams, denied receiving the “supplemental State’s

report of discovery,” which stated that neither codefendants Matthews nor McKnight

inculpated Walton in their statements. In fact, they named other accomplices in their

statements to investigators. Williams asserted that once he learned of the statements, he filed


                                              8
a motion to withdraw Walton’s guilty plea. However, Williams acknowledged that he did

not further investigate after speaking with Matthews and his attorney, despite Matthews

telling him that Walton was not involved in the crimes. However, at the evidentiary hearing,

Williams claimed that he informed Walton of certain information obtained from Matthews

and Matthews’s attorney. Williams asserted that Walton still decided to enter a plea of guilty

to all four counts. However, I find this assertion highly questionable and doubtful.

¶20.   Furthermore, Williams had an obligation to further investigate the exculpatory

information once he learned of its existence. “[Trial] counsel has, at a minimum, ‘a duty to

interview potential witnesses and to make an independent investigation of the facts and

circumstances of the case.”’ Quitman Cty. v. State, 910 So. 2d 1032, 1038 (¶14) (Miss.

2005) (quoting State v. Tokman, 564 So. 2d 1339, 1342 (Miss. 1990)). Williams testified that

if Matthews’s and McKnight’s statements had been disclosed to him, he would not have

advised Walton to enter a guilty plea. The record does not reflect that Williams spoke to

McKnight or his attorney regarding a statement that could have possibly exculpated Walton.

¶21.   After review of the record, it appears that the communication between Walton and

Williams was murky at best. I am of the opinion that Walton would have likely gone to trial

to let a jury of his peers determine his guilt or innocence. He would not have entered a guilty

plea without his attorney’s insistence, and he would not have been sentenced to fifty-one

years in the custody of the MDOC.

¶22.   While this Court cannot determine the outcome of a jury trial, we can deduce that

Walton would not have pleaded guilty to all four counts had he known of the existence of



                                              9
exculpatory evidence. As the majority states: “In the context of a guilty plea, Walton must

first establish [a reasonable probability] that, but for his lawyer’s failure to advise him of the

exculpatory statements of Matthews and McKnight, he would have elected to go to trial and

the outcome would have been different.” Maj. Op. at (¶13). The Mississippi Supreme Court

has held “that a reasonable probability arises when the ineffectiveness is of such sufficient

moment that the integrity of the proceeding or our confidence in the outcome has been

shaken.” Hannah v. State, 943 So. 2d 20, 24 (¶7) (Miss. 2006) (citing Leatherwood v. State,

539 So. 2d 1378, 1385 (Miss. 1989)).

¶23.   I would find that the trial court’s decision was clearly erroneous, and I would reverse

the dismissal of Walton’s PCR motion.

       IRVING, P. J., JOINS THIS OPINION.




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