John H. Lofton a/k/a John Henry Lofton a/k/a John Lofton v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-CP-00309-COA

JOHN H. LOFTON A/K/A JOHN HENRY APPELLANT
LOFTON A/K/A JOHN LOFTON

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 12/31/2019
TRIAL JUDGE: HON. LEE J. HOWARD
COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JOHN H. LOFTON (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 03/16/2021
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE CARLTON, P.J., GREENLEE AND McDONALD, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. In 1993, John H. Lofton pleaded guilty to certain aggravated-assault, kidnapping, and

capital-rape charges against him. In 2015, the Oktibbeha County Circuit Court dismissed

Lofton’s first motion for post-conviction relief (PCR), which this Court affirmed. Based

upon Lofton’s guilty plea, the circuit court dismissed Lofton’s second PCR motion in which

Lofton requested DNA testing. Lofton appeals, asserting that his request for DNA testing

should not have been dismissed even though he pleaded guilty to certain charges against him.

Lofton also asserts that this, his second PCR motion, is not time-barred or barred as a

successive motion. Although we disagree with the circuit court’s reasoning for the dismissal,
the right result was reached, and the judgment is affirmed.

PROCEDURAL HISTORY AND FACTS

¶2. In July 1993, Lofton was indicted by an Oktibbeha County grand jury for one count

of aggravated assault, one count of kidnapping, and three counts of capital rape. In October

1993, Lofton pleaded guilty to the aggravated-assault charge, the kidnapping charge, and one

of the capital-rape charges. The two remaining capital-rape charges were retired in exchange

for his guilty plea. The circuit court accepted and entered Lofton’s guilty plea, and in its

order entered on October 22, 1993, the court sentenced Lofton to twenty years for aggravated

assault, twenty years for kidnapping, and life imprisonment for capital rape, all to be served

in the custody of the Mississippi Department of Corrections (MDOC). The circuit court

ordered the aggravated-assault sentence to run consecutively to the life sentence, and the

kidnapping sentence was ordered to run concurrently with the other sentences.

¶3. In October 2015, Lofton filed a PCR motion with the circuit court, asserting that the

trial court did not have the authority to sentence him to life imprisonment for the rape

conviction under Mississippi Code Annotated section 97-3-65(2) (Supp. 1993). Lofton v.

State, 233 So. 3d 907, 907-08 (¶3) (Miss. Ct. App. 2017). “The circuit court dismissed

Lofton’s PCR motion without an evidentiary hearing, finding that Lofton was properly

sentenced under section 97-3-65(1)—the subsection under which Lofton pleaded guilty.”

Id. at 908 (¶3). This Court affirmed the circuit court’s dismissal of Lofton’s PCR motion.

Id. at 908 (¶6).

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¶4. In December 2019, Lofton filed another PCR motion, re-asserting that his sentence

was unlawful and also asking the circuit court to order DNA testing of the rape kit that was

collected in his case. The circuit court entered its order denying Lofton’s request on

December 31, 2019. Citing Young v. State, 797 So. 2d 239 (Miss. Ct. App. 2001), the circuit

court found that Lofton “waived his right to a jury trial and the necessity that the State

present evidence proving each element of the [offense]” when he pleaded guilty. With

permission from the circuit court, Lofton filed an out-of-time notice of appeal on March 20,

2020.

¶5. In his appellant’s brief, Lofton asserts that he was entitled to the DNA testing he

requested even though he pleaded guilty. Lofton also asserts that his PCR motion is excepted

from the procedural bars under Mississippi’s Uniform Post-Conviction Collateral Relief Act

(UPCCRA). In response to Lofton’s assertions, the State asserts that the circuit court did not

err in dismissing Lofton’s PCR motion because Lofton had failed to present any evidence to

show that DNA evidence ever existed or that his DNA still existed, as required by

Mississippi Code Annotated section 99-39-5(2)(a)(ii) (Rev. 2015). See also Miss. Code Ann.

§ 99-39-9(1)(d) (Rev. 2015).

¶6. Lofton filed a reply brief on October 1, 2020. For the first time, Lofton included an

exhibit containing the results of the DNA testing that was conducted in his case in 1993 prior

to the entry of his guilty pleas.

STANDARD OF REVIEW

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

disturb the trial court’s decision if the trial court abused its discretion and the decision is

clearly erroneous; however, we review the trial court’s legal conclusions under a de novo

standard of review.” Green v. State, 242 So. 3d 176, 178 (¶5) (Miss. Ct. App. 2017).

DISCUSSION

¶8. Lofton asserts that under section 99-39-5(2)(a)(ii) he was entitled to the DNA testing

he requested in the trial court even though he pleaded guilty. He also asserts that his PCR

motion is not procedurally barred. We combine both issues in our discussion below.

¶9. Lofton pleaded guilty in October 1993. He filed his PCR motion in December 2019.

Unless an exception applies, his PCR motion is time-barred because it was filed well after

the three-year statute of limitations set forth in section 99-39-5(2). We address Lofton’s

appeal on the merits to determine whether he meets an exception to this procedural bar.1

¶10. Pursuant to section 99-39-5(2)(a)(ii) of the UPCCRA, even with respect to prisoners

1
Because this is Lofton’s second PCR motion, it is also barred as a successive motion
under section 99-39-23(6) unless an exception applies. Relevant to the circumstances in this
case, section 99-39-23(6) excepts from the successive-writ bar “those cases in which the
petitioner has filed a prior petition and has requested DNA testing under this article,
provided the petitioner asserts new or different grounds for relief related to DNA testing not
previously presented or the availability of more advanced DNA technology.” Miss. Code
Ann. § 99-39-23(6) (emphasis added). In this case, Lofton never filed a “prior [PCR]
petition” in which he “requested DNA testing.” Lofton, for the first time, requested DNA
testing in the subject PCR motion, and we therefore find that it is not barred as a successive
motion. Cf. Green v. State, 294 So. 3d 634, 636 (¶8) (Miss. Ct. App. 2019) (finding that
defendant’s request for DNA testing was barred as a successive motion where defendant
“present[ed] the same claim [regarding DNA testing] that this Court rejected just two years
ago”) (emphasis added), cert. denied, 291 So. 3d 1111 (Miss. 2020).

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who plead guilty, like Lofton in this case, a party is entitled to DNA testing if

there exists biological evidence not tested, or, if previously tested, that can be
subjected to additional DNA testing that would provide a reasonable likelihood
of more probative results, and that testing would demonstrate by reasonable
probability that the petitioner would not have been convicted or would have
received a lesser sentence if favorable results had been obtained through such
forensic DNA testing at the time of the original prosecution.

Miss. Code Ann. § 99-39-5(2)(a)(ii).

¶11. Motions brought under this section are excepted from the three-year time-bar, but only

where “the petitioner can demonstrate” that there is DNA evidence to test and that the results

of the testing would produce a more favorable result. Miss. Code Ann. § 99-39-5(2)(a)(ii);

see Green, 242 So. 3d at 179 (¶10) (defendant’s request for DNA testing time-barred where

defendant “failed to show how a different testing method would produce more probative

results than the method originally used”); see also Green, 294 So. 3d at 636 (¶7); Pickle v.

State, 203 So. 3d 753, 757 (¶¶9-13) (Miss. Ct. App. 2016) (affirming circuit court’s dismissal

of defendant’s request for DNA testing when, among other reasons, defendant could not

show such DNA evidence existed).

¶12. Section 99-39-9(1)(d) of the UPCCRA sets forth the requisite contents of a PCR

motion. With respect to the requirements for requests made under section 99-39-5 regarding

DNA testing, section 99-39-9(1)(d) requires that the movant provide

a statement that there exists a reasonable probability that the petitioner would
not have been convicted or would have received a lesser sentence if favorable
results had been obtained through DNA testing at the time of the original
prosecution; that the evidence to be tested was secured in relation to the
offense underlying the challenged conviction and (i) was not previously

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subjected to DNA testing, or (ii) although previously subjected to DNA
testing, can be subjected to additional DNA testing that provides a reasonable
likelihood of more probative results; and that the chain of custody of the
evidence to be tested established that the evidence has not been tampered with,
replaced or altered in any material respect or, if the chain of custody does not
establish the integrity of the evidence, that the testing itself has the potential
to establish the integrity of the evidence.

Miss. Code Ann. § 99-39-9(1)(d) (Supp. 2009).

¶13. In his reply brief, Lofton attaches as an exhibit the results of the DNA testing in his

case. The report, which was not included in the record on appeal, dates back to June 28,

1993, and shows that DNA testing was conducted and that Lofton was “included as a

possible source of the seminal fluid identified in [the vaginal swab of the victim’s rape kit].”

¶14. We cannot consider evidence not contained in the record. Brooks v. State, 832 So. 2d

607, 609 (¶6) (Miss. Ct. App. 2002). Even if we were to review this report, it reflects that

DNA testing was conducted on June 28, 1993. Although this DNA evidence existed in June

1993, there is no evidence in the record that the DNA evidence exists now. We recognize

that the Mississippi Legislature enacted a procedure for the preservation and destruction of

DNA evidence—but this statutory procedure did not become effective until March 16, 2009.

Miss. Code Ann. § 99-49-1 (Supp. 2009).2 That statutory provision was not in effect at the

2
Under this statute, “the state shall preserve all biological evidence . . . [t]hat is
secured in relation to an investigation or prosecution of a crime for the period of time that
the person convicted of that crime remains in custody,” Miss. Code Ann. § 99-49-1(3)(a)(ii)
(Supp. 2009), and the state must retain biological evidence “in the amount and manner
sufficient to develop a DNA profile from the biological material[.]” Miss. Code Ann. §
99-49-1(3)(d).

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time the DNA was tested in this case or when Lofton pleaded guilty in October 1993;

therefore it has no application here. See Chapman v. State, 47 So. 3d 203, 209 (¶21) (Miss.

Ct. App. 2010) (determining that laws pertaining to biological evidence would not be applied

retroactively). Lofton has failed to show that the DNA evidence in his case was preserved.

Pickle, 203 So. 3d at 757 (¶¶9-13). We further find that Lofton has not provided any support

for his suggestion that additional testing would likely produce a more favorable result, as is

also required under section 99-39-5(2)(a)(ii).

¶15. For the above-stated reasons, we find that the circuit court did not err in dismissing

Lofton’s PCR motion to obtain DNA testing. Although we disagree with the circuit court’s

reasoning for dismissal on the ground that Lofton was not entitled to DNA testing because

he pleaded guilty, we find that the right result was reached for the reasons we have

addressed. The judgment of dismissal is therefore affirmed. Howard v. State, 62 So. 3d 995,

999 (¶19) (Miss. Ct. App. 2011) (disagreeing with the circuit court’s reasoning for dismissal

of a PCR motion seeking DNA testing but affirming the dismissal on alternate grounds); see

Green, 242 So. 3d at 179 (¶10) (affirming the denial of a request for DNA testing where the

petitioner failed to show that additional DNA testing “would produce more probative results

than the method originally used”); see also Green, 294 So. 3d 634, 636 (¶7).

¶16. AFFIRMED.

BARNES, C.J., WILSON, P.J., GREENLEE, WESTBROOKS, McDONALD,
LAWRENCE, McCARTY AND SMITH, JJ., CONCUR. EMFINGER, J., NOT
PARTICIPATING.

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