IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-CP-00032-COA JEFFERY WALTON A/K/A JEFF WALTON A/K/A JEFFERY S. WALTON APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/17/2014 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN III COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JEFFERY W ALTON (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - POSTCONVICTION RELIEF TRIAL COURT DISPOSITION: DISMISSED MOTION FORPOSTCONVICTION RELIEF AS TIMEBARRED DISPOSITION: AFFIRMED - 04/19/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., ISHEE AND FAIR, JJ. ISHEE, J., FOR THE COURT: ¶1. In October 2014, J ef f e ry W alton f

iled a m otion f

or postconviction relief (PCR) in the Rankin County C ircuit Court contesting his 2004 convicti o n o f f orcible rape. W alton had pleaded guilty to the f

orcible-rape charge f

ollowing a plea bargain with the State t hat resulted in the State’s nolle prosequi of two additional charges against W alton. In W alton’s PCR

m otion, he a sser t e d, am ong other claim s, that newly discovered e vidence showed that his f undam ental rights had been v i olated due to a technicali t y relating to his indictm ent. Hef

u r ther argued t hat because h is f undam ental rights had allegedly been violated, his P C R

m otion was e xcepted f

rom the statutory three-y ear tim e-bar. The circuit court disagreed, and dism issed t h e m o tion as tim e -barred. Aggrieved, W alton appeals. F inding no error, we af f irm

. S TATEMENT OF FACTS ¶2. On August 26, 2004, W alton, m asked and arm ed with a knif e, broke into a hom e in Rankin County , Mississippi. H e tied up the f em ale i nhabitant, held a knif e t o her throat, and raped her. Muddy f

ootprints were discovered by authorities im m e d iately af t er the incident outside of the v ictim ’s hom e. T he f ootprints l ed f

rom the victim ’s hom e to W alton’s nearby hom e. DNA evidence f

ound on the victim ’s chest was tested and m a tched W alton despite
W a lton’s prior contentions that he had nothing to do with the attack. ¶3. W a lton was soon i n d i c t e d f or kidnaping, f

orcible rape, and sexual b attery

. W alton pleaded guilty to f

orcible rape in exchange f or a nolle prosequi of the kidnaping and sexualbattery charges. Af

ter a hearing on the m atter, the circuit court accepted W alton’s guilty plea and sentenced him to f

orty y ears, with thirty

- two y ears t o serve, e ight y ears suspended, and f ive y ears o f p o s t r e lease supervision, all i n the custody o f the Mississippi Departm ent of Corrections. ¶4. In October 2014, t en y ears a f t e r p l e a d i n g g u i l t y , Wa l t o n f i led a PCR m otion challenging h i s c o n v iction. He claim ed that he h ad recently discovered that a tem porary f orem an had signed his indictm ent, thereby re n d e r ing the indictm ent invalid. He also claim ed t hat he had r eceived inef f ective assistance o f c o u n s e l f o r h is counsel’s f

ailure to

2provide him with a s peedy trial. W alton asserted that hi s recent discovery regarding his

indictm ent c onstituted n ewly d iscovered evidence and directly af f ected his f

undam ental rights. This, h e c l a i me d , e xcepted his PCR m otion f rom the three-y ear statutory bar. The circuit court disagreed, and dism issed the m otion as tim e -barred. W alton now appeals.
DISCUSSION ¶5. W e review a circuit court’s dism i ssal of a PCR m o tion u n d e r a c l e a rly

- erroneous standard. Moore v. State , 986 So. 2d 928, 932 (¶13) (Miss. 2008). However, questions of law are reviewed de novo. Lambert v. State , 941 So. 2d 804, 807 (¶14) (Miss. 2006). ¶6. Mississippi Code A nnotated section 99-39-5 (Rev. 2 015) governs PCR m otions. The

statute provides that a prisoner h a s t h r e e y ears to request postconviction r elief

. A f ter that tim e, only certain cases are excepted f rom the procedural bar. Exceptions to the three-y ear statute of lim itations are as f

ollows: That there has been an intervening decision of the Suprem e Court o f either the State of Mississippi o r the United States which would have a ctually a dversely af f ected the outcom e o f [ the m o vant’s] convic t i o n or sentence o r that [ the m ovant] has evidence, n o t reasonably discoverable at the tim e of trial, which is of such nature t h a t i t w o uld be practically conclusive t hat had such been introduced at trial it would have caused a dif f e rent result in the conviction or sentence; or [ t]hat, even if the p etitioner p led guilty or nolo contendere, or conf essed or adm itted to a crim e, there exists biological e v idence n ot tested, or, if previously tested, that can be subjected t o additional D NA testing t hat would provide a reasonable likelihood of m ore probative re s u l t s, and t hat testing would dem onstrate by reasonable probability that the [ m o vant] w ould not have been convicted or would have received a lesser sentence if f avorable results had been obtained through such f orensic DNA testing at the tim e of the original prosecution. Likewise excepted are t hose cases in which the [ m ovant] claims that his sentence has expired or his probation, parole or c onditional release has been unlawf

u lly revoked. L ikewise excepted are f ilings f o r postconviction relief i n capital cases which shall be m a de within one (1) y ear af ter conviction.

3Miss. Code Ann. § 99-39-5(2)(a)-(b).

¶7. Here, W alton asserts that his PCR m otion is not subject to the ti me - b ar b ecause his f undam ental r i ghts were violated. He asserts that newly discovered evidence and evidence of inef f ective assistance of counsel support his claim

. S pecif ically , W alton points to his indictm ent, which w as s igned b y a tem porary f orem an of the grand jury

. W ithout a ddressing the legality of a tem

porary f o rem an signing an indictm ent, W alton’s claim that this is newly discovered evidence f

ails on its f

a ce. ¶8. W e have previously def ined newly discovered evidence as evidence that “could not have been discovered by the exercise of due diligence a t the tim e of the trial, as well as being alm ost certainly conclusive t hat it would cause a dif f erent result.” Garlotte v. State , 915 So. 2d 460, 4 64 (¶13) ( Miss. Ct. App. 2005). The i n d i c tm ent was s igned in 2004 and was available f

or W alton to r e v i e w f

rom the tim e it was issued until the present. W alton was privy to this inf

orm ation p r ior t o his guilty -plea hearing and cannot, theref ore, c l aim that this is newly discovered evidence. F urtherm ore, when W alton entered a guilty p lea, he waived all nonjurisdictional d ef

ects related to his indictm ent. See C lark v. State , 54 So. 3d 304, 308 (¶9) (Miss. Ct. App. 2011). Accordingly , his contentions are both tim e-barred a nd lack m erit. ¶9. W a lto n ’ s argum ent regarding inef f e c tive assistance of counsel relates t o his claim that his c ounsel should have f iled a m otion to dism iss the case f or the State’s alleged f

ailure to provide W alton with a speedy trial. H owever, we have clearly s t a t e d t h a t inef fectiveassistance-of

- counsel claim s do not m eet the f undam ental-rights exception to the three-y ear tim e-bar f or PCR m otions u nless they concern “(1) the right against double jeopardy ; (2) the

4right to be f ree f rom an i llegal sentence; (3) the right t o due process at s enten c i ng; and (4) the right not to be subject to ex p o st f acto l aws.” Salter v. State , 1 84 So. 3d 944, 950 (¶22) (Miss. Ct

. A p p . 2 0 1 5 ) (citing Boyd v
. S tate , 155 So. 3d 914, 918 (¶13) (Miss. Ct. App. 2014)). Thus, W alton’s PCR m otion is not excepted f rom t he tim e -bar, and the c i rcuit court properly dism issed it. ¶10. T H E J U D G M E N T O F T H E R A N K I N C O U N T Y C I R C U I T C O U R T DISMISSING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, JAMES, W ILSON AND G REENLE E , JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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