           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2013-CP-01945-COA

DEAN C. BOYD A/K/A DEAN BOYD                                                 APPELLANT

v.

STATE OF MISSISSIPPI                                                           APPELLEE


DATE OF JUDGMENT:                          06/12/2013
TRIAL JUDGE:                               HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED:                 LEAKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    DEAN C. BOYD (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JEFFREY A. KLINGFUSS
NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                   MOTION FOR POST-CONVICTION RELIEF
                                           DISMISSED
DISPOSITION:                               AFFIRMED - 03/24/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., BARNES, CARLTON AND JAMES, JJ.

       BARNES, J., FOR THE COURT:

¶1.    On March 1, 2011, Dean C. Boyd was charged with statutory rape, in violation of

Mississippi Code Annotated section 97-3-65(1)(b) (Rev. 2006), for sexually assaulting (and

impregnating) his minor daughter, Deborah.1 DNA tests later confirmed that Boyd was the

natural father of Deborah’s child. He pleaded guilty to the charge on April 26, 2011, and was

sentenced to twenty-five years in the custody of the Mississippi Department of Corrections.



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      Deborah is a fictitious name, used to protect the identity of the sexual-assault victim,
who was a minor at the time of the crime.
¶2.    Boyd filed a motion for post-conviction relief (PCR) on March 27, 2012, asserting

claims of ineffective assistance of counsel and an involuntary guilty plea. On July 18, 2012,

the Leake County Circuit Court denied Boyd’s PCR motion, finding that Boyd had

acknowledged at the plea hearing that his guilty plea was “given freely, knowingly,

voluntarily, and intelligently,” and that Boyd had “failed to allege fact[s] to show counsel

was ineffective and counsel’s ineffectiveness prejudiced his defense.”

¶3.    Boyd filed a second PCR motion on May 10, 2013, asserting the same issues, and

additionally claiming that there was (1) new evidence not reasonably discoverable at the

hearing that would have caused a different result in the conviction; and (2) an intervening

decision by the Mississippi Supreme Court, which would have actually adversely affected

the outcome of his conviction or sentence. Specifically, he asserted that his indictment

charged him under the wrong statute, which violated his fundamental right against double

jeopardy. On June 13, 2013, the trial court denied Boyd’s motion, and dismissed the motion

as a successive writ.

¶4.    On November 15, 2013, after the thirty-day requirement for filing a notice of appeal

under Mississippi Rule of Appellate Procedure 4(a) had passed, Boyd filed a notice of

appeal, requesting permission to file an out-of-time appeal due to excusable neglect. A note

from the Leake County Circuit Clerk, contained in the record, indicates Boyd did not receive

a copy of the order denying his PCR motion until November 4, 2013. Additionally, the trial

court entered an order on November 25, 2013, allowing Boyd to proceed with his appeal in

forma pauperis. The Mississippi Supreme Court concluded in an April 9, 2014 order that the



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trial court’s order, allowing Boyd to appeal in forma pauperis, reopened the time for appeal.

Consequently, the supreme court considered Boyd’s November 15, 2013 notice of appeal

timely and dismissed Boyd’s request for an out-of-time appeal as moot.

¶5.    On appeal, we affirm the trial court’s dismissal of Boyd’s PCR motion.

                                 STANDARD OF REVIEW

¶6.    “When reviewing a trial court’s denial or dismissal of a PCR motion, we will only

disturb the trial court’s factual findings if they are clearly erroneous; however, we review the

trial court’s legal conclusions under a de novo standard of review.” Martin v. State, 138 So.

3d 267, 268 (¶3) (Miss. Ct. App. 2014) (citing Hughes v. State, 106 So. 3d 836, 838 (¶4)

(Miss. Ct. App. 2012)).

                                        DISCUSSION

¶7.    Because Boyd’s PCR motion was a successive writ, the trial court dismissed it as

procedurally barred. “Second or successive PCR motions are usually procedurally barred

from the trial court’s review.” Boone v. State, 148 So. 3d 377, 379 (¶7) (Miss. Ct. App.

2014) (citing Miss. Code Ann. § 99-39-23(6) (Supp. 2013)). However, a petitioner may be

excepted from the procedural bar against successive writs if he shows there was:

       [A]n intervening decision of the Supreme Court of either the State of
       Mississippi or the United States which would have actually adversely affected
       the outcome of his conviction or sentence or . . . evidence, not reasonably
       discoverable at the time of trial, . . . of such nature that it would be practically
       conclusive that had such been introduced at trial it would have caused a
       different result in the conviction or sentence[.]

Miss. Code Ann. § 99-39-5(2)(i) (Supp. 2014). In his May 10, 2013 PCR motion, which was

undeniably a successive writ, Boyd attempted to circumvent the procedural bar by claiming


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these two exceptions.

¶8.    While “errors affecting fundamental constitutional rights are excepted from the

procedural bars of the [Uniform Post-Conviction Collateral Relief Act,] . . . . the mere

assertion of a constitutional right violation does not trigger the exception.” Evans v. State,

115 So. 3d 879, 881 (¶3) (Miss. Ct. App. 2013) (citations and internal quotation marks

omitted). “To find an exception to the successive-writ bar, ‘there must at least appear to be

some basis for the truth of the claim’ of a fundamental-constitutional-rights violation.” Id.

(quoting Stovall v. State, 873 So. 2d 1056, 1058 (¶7) (Miss. Ct. App. 2004)). Upon review

of his PCR motion, we find that Boyd cited no intervening decision to support his claim of

a fundamental-right violation, nor did Boyd provide any evidence not reasonably

discoverable at the time of his guilty plea that would have caused a different result in his

conviction or sentence. Furthermore, although Boyd attempts to provide some legal authority

to support his claim on appeal, we find no factual basis to support the truth of his claim.

¶9.    Boyd argues that his indictment failed to specify the date of the crime and charged

him under the wrong subsection of the applicable statute. Boyd was charged with, and

pleaded guilty to, violating Mississippi Code Annotated section 97-3-65(1)(b), which reads:

“The crime of statutory rape is committed when . . . [a] person of any age has sexual

intercourse with a child who: (i) [i]s under the age of fourteen (14) years; (ii) [i]s twenty-

four (24) or more months younger than the person; and (iii) [i]s not the person’s spouse.”

Boyd contends that Deborah was fourteen years old at the time the rape occurred; thus, he

was charged under the wrong statute, which violated his fundamental right against double



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jeopardy.

¶10.   The indictment states that the rape occurred in January 2010. Deborah’s birthday was

January 27, 1996, and Boyd is correct that Deborah stated in the Mississippi Department of

Human Services’ report that the rape occurred in February 2010, which would have made her

fourteen at the time of the incident. However, the medical evaluation of Deborah, dated June

9, 2010, stated that she was approximately twenty-six weeks pregnant, which would place

the conception date closer to December 2009 or early January 2010. If the rape occurred in

February 2010, she would only have been approximately eighteen weeks pregnant. The

medical evaluation also noted that Deborah had stopped having a menstrual cycle five

months prior, which would also support the indictment’s January 2010 date. Therefore, there

is evidence to support the date in the indictment. Regardless, this was evidence reasonably

discoverable at the time of Boyd’s plea hearing. Boyd was Deborah’s father; he knew her

birthday. All of the previously referenced documentation was available prior to the hearing.

Accordingly, we find that Boyd has not provided any new evidence, or cited an intervening

decision, that would except his motion from the procedural bar.

¶11.   When the circuit judge asked Boyd if he had intercourse with a child under the age

of fourteen, Boyd answered affirmatively. Boyd admitted to all relevant facts, was apprised

by the trial court of the consequences of his guilty plea, and pleaded guilty to the charge of

statutory rape “of a child under the age of fourteen (14) years[.]” Nothing in the record, nor

in Boyd’s PCR motion, suggests that his plea was not knowingly and voluntarily entered, or

that the plea was otherwise invalid.



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¶12.   Therefore, we find the trial court did not err in dismissing Boyd’s petition as a

successive writ.

¶13. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

   LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.




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