IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2017-CP-00058-COA DEAN C. BOYD A/K/A DEAN BOYD APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 12/29/2016 TRIAL JUDGE: HON. VERNON R. COTTEN COURT FROM W HICH APPEALED: LEAKE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: DEAN C. BOYD (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 03/13/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ. BARNES, J., FOR THE COURT: ¶1. Dean C. Boy d was charged with statutory rape of a child under the age of f ourteen in

v i olation o f Mississippi C ode Annotated section 97-3-65(1)(b) ( Rev. 2006). O n Apr i l 2 6 , 2011, Boy d pleaded guilty to the charge a n d was sentenced to twenty

- f ive y e a r s in the custody of t h e Mississippi Departm ent of C orrections. On March 27, 2012, Boy d f iled a

m otion f or post-conviction relief (PCR). The Leake County Circuit Court d enied the m otion,
f inding that Boy d ’s guilty plea was knowing a n d v o l untary and that he had f ailed to dem onstrate inef

f ectiveness of

counsel. 1

1 S ee B o yd v. S t a te , 1 7 5 S o . 3 d 5 9 , 6 0 (¶2 ) (M is s . C t. A p p . 2 0 1 5 ) (d iscu ssin g th e f actu al an d p ro ced u ral h isto ry related to B o y d ’s ap p eal o f h is seco n d P C R

m o tio n ).¶2. A second PCR m otion was f iled on May 10, 2013, which was dism i ssed by the circuit

court as a successive writ. Boy d appealed the dism issal of the m o tion to this Court. See Boyd v. State , 175 So. 3d 59 (Miss. Ct. App. 2015). Finding Boy d had f ailed to provide “any

new evi d ence, or cite[ ] an intervening decision, that would except his m otion f rom the procedural bar,” we af

f irm ed the circuit court’s decision. Id . at 62 (¶¶10, 13). ¶3. Boy d f

iled a third PCR m otion on April 18, 2016. 2 An am ended m otion was f iled on
Decem ber 22, 2016, which asserted: (1) there was no f a ctual basis f

or h is guilty plea; (2) the trial court f

ailed t o advise him of his right t o c o nf ro n t w i t n e s s es and his right against self

incrim ination; a nd (3) his counsel was inef f ective. The circuit court dism issed Boy d’s

m otion on Decem

ber 29, 2016, f

inding it barred as a successive writ. See Miss. Code Ann. § 99-39-23(6) (Rev. 2015). ¶4. Boy d now appeals, alleging several issues. W hile Boy d acknowledges that his third
PCR m otion i s a successive writ and tim e-barred, 3 he contends that his c laim s are excepted
f rom the procedural bars. “[ E ]rrors af f ecting f undam ental constitutional rights are excepted
f rom the procedural bars of the [ Unif orm P o st-Conviction Collateral Relief Act].” Rowland

v. State , 42 So. 3d 503, 5 0 7 (¶12) ( Miss. 2010). “ But m ere assertions of c onstitutional-rights violations do not s uf

f ice to overcom e the procedural bar.” W hite v. State , 59 So. 3d 633, 636

2 T h is m o tio n is n o t i n c lu d ed in th e ap p e llate r eco r d , b u t th e m o tio n is l isted in th e d o ck et e n tr i e s . T h e t rial c o u rt n o ted in its o rd er th at B o y d alleg ed h i s g u ilty p lea w as i n v o lu n tary , h is s en t en ce w a s i lleg al, h is in d ictm e n t w as d ef e c tiv e, t h e ev id en ce w as in su f f icien t to su p p o r t t h e v e rd ict, h e w as d e n ied h is S i x th A m en d m e n t rig h t t o ef f ectiv e assistan ce o f

co u n sel, an d v ario u s o th er co n stitu tio n al rig h ts w ere v io lated

. 3 M ississip p i C o d e A n n o t ated sectio n 9 9 -3 9 -5 (2 ) (R e v . 2 0 1 5 ) b ars a P C R m o tio n f iled m o re th an th ree y ears af ter th e en try o f

a g u ilty p lea. 2(¶11) (Miss. Ct. App. 2011).

¶5. Upon r eview, we f ind Boy d has f

ailed to r aise any claim t h a t w o u l d o v e r c o me the procedural bars, and we af f irm the circuit court’s dism i ssal of his PCR m otion.
STANDARD OF REVIEW ¶6. A cir c u i t c o u r t ’ s d i s m issal of a PCR m otion is r eviewed f or abuse o f

discretion. Birmingham v. State , 1 59 So. 3d 597, 598 (¶4) ( Miss. Ct. A p p . 2014) (citing W illiams v. State, 110 So. 3d 840, 842 (¶11) (Miss. Ct. App. 2013)). “W e will only reverse i f the circuit
court’s decision was c learly erroneous.” I d

. “Questions of l aw are reviewed de n ovo.” Id

. DISCUSSION
I. Whether Boy d’s indictm ent w as defective. ¶7. Boy d c laim s his constitutional rights were violated because his indictm ent f ai l e d to specif y the date o f the alleged conduct and, as a result, he had inadequate notice of the charge against him

. T his issue was directly addressed in our prior opinion. See Boyd , 175 So. 3d

at 6 1-62 (¶¶9-10) (f

inding “evidence to support the date i n the indictm ent

. . . [ and] this was evidence reasonably

discoverable at the tim e of Boy d’s plea hearing”). “Res judicata bars ‘all issues that m i ght h ave been (or could have been) raised and decided in the initial suit, plus all i ssues that were actually decided in the f irst cause of action.’” Mohead v. State, 158
So. 3d 3 5 8, 360 (¶8) (Miss. Ct. App. 2014) (quoting Bosarge v. State , 1 41 So. 3d 24, 26 (¶6) (Miss. Ct. App. 2014)). “ A p erson who r e q uests post-conviction relief is obligated to place bef ore t he court all claim s known to h im a nd/or of which he should have had k nowledge.

. . . The f ailure to do s o results in a loss of his claim s f or a second or successive petition.” Salter

3v. State , 184 So. 3d 944, 951 (¶24) (Miss. Ct. App. 2015) (citing Rochell v. State , 913 So. 2d

993, 994 (¶6) (Miss. Ct. App. 2005)). ¶8. Thus, B oy d’s claim t hat his indictm ent was def e ctive is p r o c e d u r a l l y b a r red f rom review. Procedural bar n o twithstanding, “a g uilty plea waives any c laim to a def ective indictm ent.” Phillips v. State , 25 S o. 3d 404, 407 (¶6) (Miss. Ct. App. 2010) ( quoting Harris v. State , 757 So. 2d 195, 197 (¶9) (Miss. 2000)).
II. Whether there w as a factual basis for Boy d’s guilty plea. ¶9. Boy d also contends there was no f actual basis f

or his g uilt y p l e a . A dm ittedly , at Boy d’s guilty -plea hearing, the State did not provide a recitation of the evidence that it was prepared to present. But as we concluded in our prior Boyd opinion:
W h en t he circuit judge asked Boy d i f he had intercourse with a child under the age of f ourteen, Boy d answered af f irm atively . Boy d adm itted to a l l relevant f acts, was apprised by the trial court of the consequences of his guilty plea, and pleaded guilty to the charge of statutory rap e “ o f a c hild under the age of f ourteen (14) y e ars.” Nothing in the record, nor in Boy d’ s P C R mo t ion, suggests that h is plea was n o t k n o w ingly and voluntarily entered, or t hat the plea was otherwise invalid. Boyd , 175 So. 3d at 62 (¶11). Theref ore, we f ind this claim without m erit and subject to the procedural bars.
III. Whether t he circuit cou r t erred by failing to advise Boy d of his right to confront w itnesses and his right against self-incrim ination. ¶10. Boy d argues t hat the c ircuit court’s f ailure to a d vi s e h i m o f h i s r ight to conf ront witnesses and his right against self -incrim ination was a vi o l ation o f a f undam ental constitutional right. “A knowing and voluntary guilty plea w a i ves certain constitutional rights, am ong them , the privilege against self -incrim ination, t he r ight to conf r ont and cross4exam ine the State’s witnesses, the right to a jury trial, and the right to have the State prove each e l em ent of the of

f ense bey ond a reasonable doubt.” Scurlock v. State , 147 S o. 3d 894,
896 (¶9) (Miss. Ct. App. 2014) (quoting Joiner v. State , 61 S o. 3d 156, 158 ( ¶ 7) (Miss. 2011)). Although the c ircuit judge did n ot list every constitutional right B oy d was waiving by pleading guilty , he twice asked Boy d if he understood that he was entitled t o a trial. Boy d indicated that he understood he would be giving up his right to a trial by jury and that he was not threatened or intim idated into entering his guilty plea. ¶11. M o r eover, Boy d’s notarized “Petition to Plead G uilty ” c o n t a i n e d a “ Wa i v e r o f Constitutional Rights,” which e num erated the various rights Boy d would be w a i v i ng by entering his guilty plea, including the right t o b e conf ronted by witnesses and to crosse x a mi n e those witnesses and t he right not to testif y . Boy d acknowledged that he wa s waiving those rights. S

ee H ughes v. State , 106 So. 3 d 836, 840 (¶9) (Miss. Ct. App. 2012) (rejecting def

endant’s claim of an involuntary plea as his “ s worn plea petition show[ ed] that he was advised

. . . that he was waiving h is right against self

- incrim ination”). Theref

ore, this issue is without m erit and does not constitute an exception to the procedural bars.
IV. Whether Boy d w as subject to ineffective assistance of counsel

. ¶12. Ref

erencing the alleged errors raised above, Boy d claim s his def ense counsel should have objected t o the entry of his guilty plea. An inef f ective-assistance-of

- co u n s e l claim requires a showing that: ( 1) counsel’s perf orm ance was def

icient a n d ( 2 ) t h e def

icient perf orm ance r e sulted in prejudice to the def endant. Strickland v
. W

ashington , 466 U.S. 668,
687 (1984). “In the context o f his guilty plea, [ the def e n d a n t ] ‘ mu s t show t hat there is a

5reasonable probability t hat, but f or counsel’s errors, he would not have pleaded guilty , would have i nsisted on going t o trial, and the outcom e would have been dif f erent.’” Brown v. State , 187 So. 3d 667, 671 (¶8) (Miss. Ct. App. 2016) (quoting Hannah v. State , 943 S o. 2d 20, 24 (¶7) (Miss. 2006)). The suprem e court has not held under Rowland that claim s of inef f ective assistance of

counsel are exem

pt f rom procedural bars, but it has determ ined that: under “ex t r aordinary circum stances” (i.e., “lack of a direct appeal, lack of a court record, his attorney ’s a lleged f ailure to o btain a transcript, lack of appellate review of the m erits of his claim s”), trial counsel’s f ailure “ to ensure the def endant could adequately appeal his c onvi c t i o n” excepted his PCR m otion f r om the statutory

tim e-bar. Id

. at 671 (¶7) (quoting Chapman v. State , 167 So. 3d 1170, 1173-74 (¶¶10-1 3 ) ( M i s s . 2015)). ¶13. W e f

ind n o t h i n g i n the r ecord to support Boy d’s claim of inef f ective assistance of counsel. A s stated, there was a s uf f icient f actual basis f

or B oy d’s guilty plea. Furtherm ore, in entering his guilty plea, B oy d expressed to the c ircuit j udge that h e was satisf ied with his counsel’s perf

orm ance. Finally , as m entioned in our prior opinion, Boy d brought a claim of inef f ective a ssistance of c ounsel i n his f irst PCR m otion f

iled in 2012; theref

ore, the claim is barred by

res judicata. See Boyd , 175 So. 3d at 60 (¶2). ¶14. W e f

ind B oy d h a s f

ailed t o dem onstrate any violation of a f undam ental constitutional right, and his claim s are procedurally b arred. Accordingly , we af f irm t he c i r cuit court’s dism issal of

Boy d’s PCR m o tion. ¶15. AFFIRMED. LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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