          IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2013-CP-01630-COA




KEP LAFOON                                                                  APPELLANT

v.

STATE OF MISSISSIPPI                                                          APPELLEE



DATE OF JUDGMENT:                          09/12/2013
TRIAL JUDGE:                               HON. ANDREW K. HOWORTH
COURT FROM WHICH APPEALED:                 MARSHALL COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    KEP LAFOON (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: LAURA HOGAN TEDDER
NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                   DISMISSED MOTION FOR POST-
                                           CONVICTION RELIEF
DISPOSITION:                               AFFIRMED – 10/07/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

         BEFORE IRVING, P.J., MAXWELL AND JAMES, JJ.

         IRVING, P.J., FOR THE COURT:

¶1.      Kep Lafoon pleaded guilty to first-degree murder in the Marshall County Circuit

Court.     The circuit court sentenced Lafoon, as a violent habitual offender, to life

imprisonment without eligibility for parole or early release. Lafoon filed a motion for post-

conviction relief (PCR), alleging ineffective assistance of counsel.      The circuit court

dismissed Lafoon’s motion as time-barred. Feeling aggrieved, Lafoon appeals and argues

that the circuit court erred in dismissing his motion.
¶2.    Finding no error, we affirm.

                                          FACTS

¶3.    Lafoon waived indictment and was charged by information, as a habitual offender

pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 2007),1 with the murder of

his mother-in-law. The two prior felonies listed in the information to establish Lafoon’s

habitual-offender status were theft of property over $500 and theft of merchandise over

$1,000. On October 16, 2002, Lafoon pleaded guilty to the charge in the information, and

the circuit court sentenced him as a habitual offender to life imprisonment in the custody of

the Mississippi Department of Corrections, without eligibility for parole or probation. On

November 2, 2002, the circuit court entered an amended judgment, sentencing Lafoon, as a

habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2007),2 to


       1
           Section 99-19-83 provides:

       Every person convicted in this state of a felony who shall have been convicted
       twice previously of any felony or federal crime upon charges separately
       brought and arising out of separate incidents at different times and who shall
       have been sentenced to and served separate terms of one (1) year or more in
       any state and/or federal penal institution, whether in this state or elsewhere,
       and where any one (1) of such felonies shall have been a crime of violence
       shall be sentenced to life imprisonment, and such sentence shall not be
       reduced or suspended nor shall such person be eligible for parole or probation.
       2
           Section 99-19-81 provides:

       Every person convicted in this state of a felony who shall have been convicted
       twice previously of any felony or federal crime upon charges separately
       brought and arising out of separate incidents at different times and who shall
       have been sentenced to separate terms of one (1) year or more in any state
       and/or federal penal institution, whether in this state or elsewhere, shall be

                                             2
life imprisonment without eligibility for parole or probation.

¶4.    On June 20, 2013, Lafoon filed a PCR motion, insisting that even though the motion

was untimely, it was excepted from the time-bar because his fundamental right to effective

assistance of counsel had been violated. More specifically, Lafoon alleged that his counsel’s

failure to object to his being charged as a habitual offender pursuant to section 99-19-83

constituted ineffective assistance of counsel, as neither of Lafoon’s prior convictions was a

violent crime. He further alleged that if he were properly charged under section 99-19-81,

he would not have waived his right to a jury trial. Lafoon claimed that he would have gone

to trial on a manslaughter defense, but because he was being charged under section 99-19-83,

there was nothing to be gained by going to trial. The circuit court found Lafoon’s petition

untimely, and, time-bar notwithstanding, found that Lafoon was not entitled to any relief

based on the evidence.

                                       DISCUSSION

¶5.    “When reviewing a [circuit] court’s denial or dismissal of a PCR motion, [appellate

courts] will only disturb the [circuit] court’s factual findings if they are clearly erroneous;

however, [appellate courts] review the [circuit] court’s legal conclusions under a de novo

standard of review.” Flowers v. State, 125 So. 3d 87, 88 (¶3) (Miss. Ct. App. 2013) (citing

Hughes v. State, 106 So. 3d 836, 838 (¶4) (Miss. Ct. App. 2012)).




       sentenced to the maximum term of imprisonment prescribed for such felony,
       and such sentence shall not be reduced or suspended nor shall such person be
       eligible for parole or probation.

                                              3
¶6.    Mississippi Code Annotated section 99-39-5 (Supp. 2014) provides that a PCR motion

must be filed within three years after the entry of the judgment of conviction when a

defendant has pleaded guilty. An untimely PCR motion may be excepted from the three-year

statute of limitations if the movant can show “new evidence [that was] 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); see also Miss.

Code Ann. § 99-39-5(2)(a)(i). Additionally, errors affecting a defendant’s fundamental

constitutional rights are exceptions to this time-bar. Blount, 126 So. 3d at 931 (¶13).

Because the circuit court entered its judgment of conviction in 2002, and Lafoon did not file

his PCR motion until 2013, Lafoon’s motion is clearly untimely. However, Lafoon claims

that because his counsel’s assistance was ineffective and violated his fundamental

constitutional rights, his motion is excepted from the time-bar.

¶7.    “The [Mississippi] [S]upreme [C]ourt has held that claims of ineffective assistance

of counsel . . . are indeed subject to the procedural bars.” Salter v. State, 64 So. 3d 514, 518

(¶14) (Miss. Ct. App. 2010) (citing Kirk v. State, 798 So. 2d 345, 346 (¶6) (Miss. 2000)).

“[M]erely raising the claim of ineffective assistance of counsel is insufficient to surmount

the procedural bar,” and this Court must review Lafoon’s ineffective-assistance-of-counsel

claim to determine whether it is sufficient to invoke the fundamental-rights exception.

Thomas v. State, 933 So. 2d 995, 997 (¶5) (Miss. Ct. App. 2006) (citing Beville v. State, 669

So. 2d 14, 17 (Miss. 1996)). When a defendant claims that his counsel’s assistance was

defective, he “must show that counsel’s performance was deficient . . . [and] that the

                                               4
deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687

(1984). In cases where a defendant seeks to challenge the validity of his guilty plea, the

Mississippi Supreme Court has stated, “In order to satisfy the prejudice requirement of

Strickland, the defendant must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

Wilson v. State, 81 So. 3d 1067, 1092 (¶42) (Miss. 2012) (quoting Hill v. Lockhart, 474 U.S.

52, 59 (1985)) (internal quotation marks omitted).

¶8.    Lafoon offers no argument on appeal as to how his counsel’s performance was

deficient and prejudiced his defense. Lafoon merely cites caselaw without an explanation

as to how the law applies to the facts of this case. The following colloquy took place during

Lafoon’s plea hearing:

       Q.     All right. Now, the court has before it, as I stated earlier, a Petition to
              Enter a Plea of Guilty to the crime of murder as an habitual offender;
              is that correct, Mr. Lafoon?

       A.     Yes, sir.

                                            ****

       Q.     Before you signed your name to this petition, did you go over it with
              your attorney?

       A.     Yes, sir.

       Q.     Do you feel comfortable that your attorney has explained everything to
              you about what rights you have that you are waiving or giving up by
              pleading guilty here today?

       A.     Yes, sir.


                                               5
       Q.     All right. Did your attorney answer any questions that you had of him?

       A.     Yes, sir.

                                          ****

       Q.     All right. Do you understand that in pleading guilty to the crime of
              murder as an habitual offender, you are admitting that you’re guilty of
              the crime of murder; do you understand that?

       A.     Yes, sir.

       Q.     Have you been made aware by your attorney of the elements necessary
              to prove the crime of murder?

       A.     Yes, sir.

       Q.     And are you satisfied that you are guilty of that crime of murder?

       A.     Yes, sir.

There is nothing in the record that indicates that Lafoon’s counsel “tricked” him into

pleading guilty, as Lafoon claims on appeal. Lafoon claims in his PCR motion that had his

counsel objected to Lafoon being charged under section 99-19-83, he would not have waived

his right to a jury trial. However, Lafoon knew that he was being charged with first-degree

murder by information before he pleaded guilty, and because the punishment for first-degree

murder is life imprisonment, it would have made no difference whether he was charged under

section 99-19-81 or section 99-19-83 before he pleaded guilty. Although the circuit court

initially incorrectly applied section 99-19-83 3 before Lafoon pleaded guilty, the proper



       3
         Section 99-19-83 would only apply if one of Lafoon’s prior offenses used to
establish his habitual-offender status was a violent offense.

                                             6
application of section 99-19-81 would have resulted in Lafoon receiving the same

sentence—that is, life imprisonment without eligibility for parole or probation. Lafoon has

not shown that his counsel’s performance was prejudicial. Accordingly, Lafoon’s claim of

ineffective assistance of counsel is not sufficient to invoke the fundamental-rights exception

to the time-bar. This issue is without merit.

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

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




                                                7
