IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-CP-01195-COA RAY JAMES APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 07/27/2017 TRIAL JUDGE: HON. CAROL L. W HITE-RICHARD COURT FROM W HICH APPEALED: SUNFLOW ER COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: RAY JAMES (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 09/11/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ. WESTBROOKS, J., FOR THE COURT: ¶1. Ray J am e s was convicted of burglary of a dwelling and f our counts o f a g g r a v a t e d assault against a p o l i c e of f icer. Eleven y ears later, Jam es f iled a m otion f

o r a sentence reduction or, in the a lternative, a n e w t r i a l o r perm ission to appeal. Finding that Jam es’s

m otion was tim e barred, the circuit court denied his m otion. Finding no error, we af f irm

. FACTS ¶2. I n J u l y 2 0 0 5 , J a me s w as convicted of burglary of a dwelling and f our counts o f

a g g r avated assault a gainst a police of f icer. In 2010, the of

f icer, Tony Cooper, was l a t e r convicted and sentenced on u nrelated charges i n f e deral court. In 2016, Jam es f iled a m otion f or a sentence reduction or, in the alternative, a new trial or perm i ssion to appeal. The circuitcourt stated that J am es’s m otion was tim e b a r r e d a n d that it had no authority t o grant his

request of a sentence r eduction, a new trial a nd/or an out of t i me a ppeal. Jam es tim ely appeals. STANDARD OF REVIEW ¶3. “ Wh e n r e viewing a trial court’s denial or d ism issal of a [ m otion f or postconviction relief (PCR)], we w ill only d isturb the trial court’s f actual f i n dings if they are clearly

erroneous; however, we review the trial court’s legal conclusions under a d e novo standard

o f r e v i e w .” Creppel v. State , 199 So. 3d 715, 7 18 (¶8) (Miss. Ct. A pp. 2016) (quot i n g Jackson v. State , 178 So. 3d 807, 809 (¶8) (Miss. Ct. App. 2014)). DISCUSSION I. Procedural Bar ¶4. “Under Mississippi Code Annotated s ection 99-39-5(2) (Supp. 2012), a m ovant has three y ears to f

ile a PCR m otion, and f

ailure to f i le a PCR m o tion within the three y ears is

a procedural bar.” Blount v. State , 126 So. 3d 927, 930-31 (¶13) (Miss. Ct. A pp. 2013). But, the M issi ssippi Suprem e Court has held that “errors af f ecting f undam ental rights are exceptions to the rule t hat questions not raised in t he trial court c annot be r aised f o r the f irst tim e on appeal.” Rowland v. State , 42 So. 3d 503, 506 (¶10) (Miss. 2010). ¶5. W h ile inef

f ective assistance o f counsel claim s a r e not traditionally categorized as a “f undam ental right” u nder Rowland , the M i ssissippi S uprem e Court held that “under the f acts of a particular case, this Court m ight f ind that a lawy er’s perf

orm ance was so def

icient, and so prejudicial t o the def endant, that the d e f

endant’s f undam ental constitutional rights

2were violated. However, this Court has never held t hat m erely raising a claim of inef f ective assistance of counsel is suf f icient to surm ount the procedural b ar.” Bevill v. State , 669 So. 2d 14, 17 (Miss. 1996). ¶6. Here, Jam es did not challenge h is 2005 conviction until 2 016, eleven y ears later; nor does his m ere c laim support a ny violations o f his “f undam ental” rights. Rowland , 42 So. 3d at 506 (¶10). W ithout extrem e circum stances, “claim s of inef f ective assistance of

counsel

. . . are indeed s ubject to the procedural bars.” Salter v
. State , 184 S o. 3d 9 44, 947 (¶7) (Miss. Ct. App. 2015). Accordingly , Jam es’s PCR m otion i s tim e barred. N otwithstanding the procedural b ar, we will brief ly address Jam es’s inef

f e ctive-assistance-of

-counsel claim

. II. Ineffective Assistance of Counsel ¶7. A l t h o u g h J am es’s pro se brief is e x tensive, at the crux of his claim s is inef f ect i v e assistance of counsel. 1 Jam es asserts that he was denied e f f e ctive assistance o f counsel because his attorney ( 1) ref used to f ile an appellant brief

, (2) f ailed to notif

y the c ircuit court he wished to withdraw as counsel, (3) f ailed to inf

orm Jam es the circuit court had appointed him new counsel, (4) f

ailed to render a n o t i c e o f a p peal, a n d (5) abandoned Jam es and thereby created a conf

lict o f interest. To s u c ceed on a n inef f ective-assistance-of

-counsel claim , Jam es m

ust dem onstrate, “(1) def iciency o f counsel ’ s perf

orm ance (2) s uf

f icient to constitute prejudice t o the d ef ense.” W alker v. State , 703 So. 2d 266, 268 ( Miss. 1997)

1 Jam es also a sserts th at C o o p er’s su b seq u en t c o n v ictio n sh o u ld ren d e r h is testim o n y at Jam es’s trial im

p each a b le; t h a t th e circu it co u rt f ailed to ap p ly an in t erv en i n g d ecisio n ; an d th at a j u ro r w as im

p ro p erly allo w ed to testif y f o r th e S tate. B u t, C o o p er’s co n v ictio n is u n related to Jam es’s; th e cases r elied o n b y J am es p red a te h is co n v ictio n ; an d t h e assertio n th at a j u ro r w a s called as a w itn ess is n o t su p p o rted in t h e reco rd

. 3(quoting Strickland v. W a shington , 466 U.S. 668, 687 (1984)). Here, Jam es relies only on his assertions in his brief

s to support his claim s. ¶8. In his reply b rief

, Jam e s does request this Court to order the circuit court records to support his a ssertions, but “[ i]t is the responsibility of the appellant to designate t he record pursuant to R

ule 10(b) of the M ississippi Rules of A ppellate Procedure in a m anner suf f icient

to a llow this Court to review the appellant’s issues.” Austin v. State , 971 So. 2d 1 286, 1287 n.1 (Miss. Ct. App. 2008). “In the absence of any thing in the r ecord to the contrary , we m ust
presum e that the trial court acted p r o p erly

. ” Id. Jam e s provides no trial transcripts or af f idavits to substantiate h is claim s. W ithout the record t o review, we af f irm the circuit court’s denial of

Jam es’s m otion. ¶9. AFFIRMED. LEE, C.J., IRVING AND GRIFF I S , P.JJ., CARLTON, F AIR, WILSON, GREENLEE AND TINDELL, JJ., CONC U R . B A R N ES, J., C ONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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