source: Caselaw Access Project

author: BRIDGES, J., KING, P.J.,

license: Public Domain

text:
    Rheuvonia BUCK, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CA-00345-COA.
    Court of Appeals of Mississippi.
    June 11, 2002.

      James L. Penley, Jr., Vicksburg, attorneys for appellant.
    Office of the Attorney General by Charles W. Maris Jr., attorneys for appel-lee.
    Before KING, P.J., BRIDGES, and CHANDLER, JJ.
   BRIDGES, J.,

for the court.

¶ 1. This case comes on appeal from denial on the merits of a motion for post-conviction relief. Rheuvonia R. Buck, a minor at the time of her offense, asked to be certified to circuit court from youth court, and then pled guilty in circuit court on one charge of sale of cocaine. The court sentenced her to ten years in prison with five years suspended, with no fine. Buck filed a PCR motion that the court denied on its merits.

STATEMENT OF ISSUES

I. DID THE COURT ERR IN FINDING THAT BUCK RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL BEFORE THE YOUTH COURT?

II. DID THE COURT ERR IN FINDING THAT BUCK RECEIVED EFFECTIVE ASSISTANCE BEFORE THE CIRCUIT COURT?

FACTS

¶ 2. Buck sold cocaine to an undercover agent while a minor.

STANDARD OF REVIEW

¶ 3. “When reviewing a lower court’s decision to deny a petition for post conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

¶ 4. Buck makes two assignments of error, alleging ineffective assistance of counsel at both her youth court hearing and her plea hearing in circuit court. “To successfully claim ineffective assistance of counsel the Defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Moody v. State, 644 So.2d 451, 456 (Miss.1994). The Strickland test requires the defendant demonstrate first the deficiency of the counsel’s performance, and second that the deficiency was sufficient to prejudice the defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The defendant faces a strong yet rebuttable presumption that counsel performed adequately, and must show a reasonable probability that but for counsel’s errors, defendant would have received a different result. Moody, 644 So.2d at 456. The court must look at the totality of the circumstances, with deference towards counsel’s actions, to determine a factual basis for the claim. Id. If the defendant raises questions of fact regarding either deficiency of counsel or prejudice, she is entitled to an evidentiary hearing. Id. If the court finds counsel was ineffective, the appropriate remedy is remand for a new trial. Id.

I. DID THE COURT ERR IN FINDING THAT BUCK RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL BEFORE THE YOUTH COURT?

¶ 5. Buck’s first assignment of error alleges that she was inappropriately certified to circuit court, although she was certified at her own request and against her attorney’s advice. During the certification hearing, Buck affirmed that she wished to be certified as an adult and transferred to the circuit court. Her attorney, Mike Bonner, stated that this was contrary to his advice. The court questioned Buck, and she affirmed that she wished to proceed to circuit court. Both Buck and her mother offer affidavits stating that they were confused and did not speak with Buck’s attorney prior to that day in court; however, during the hearing for post-conviction relief in circuit court, Buck’s mother admitted that she spoke with Bonner before Buck’s appearance, and that Buck was adamant about transferring to circuit court.

¶ 6. A transfer from youth court to circuit court via a motion for certification requires a hearing in two parts: in the first part, the court must make a probable cause determination (or the defendant can waive this determination); in the second part of the hearing, the court must adduce through clear and convincing evidence that the transfer is appropriate based on several statutory factors. Miss.Code Ann. § 43-21-157 (Rev.2001). The statute applies exclusively to transfer motions initiated sua sponte from the court or by the district attorney, and makes no mention of defendant initiated motions for transfer. Id. There is no extant case law in Mississippi regarding defendant initiated transfers.

¶ 7. Beyond the unreliable evidence offered by Buck and her mother in the affidavits and subsequently impeached in the PCR hearing, there is no evidence of any deficiency by Bonner in his treatment of Buck’s case. Nor does Buck show that the result of the certification hearing would be different. Buck is procedurally barred from questioning the validity of the certification, because 1) Buck received a full hearing in youth court, where she was represented by counsel; 2) Buck requested certification herself; and 3) Buck did not move to quash the indictment, which was the appropriate remedy. In re Watkins, 324 So.2d 232, 234 (Miss.1975).

II. DID THE COURT ERR IN FINDING THAT BUCK RECEIVED EFFECTIVE ASSISTANCE BEFORE THE CIRCUIT COURT?

¶ 8. Buck’s second assignment of error alleges that her representation was inadequate at her guilty plea hearing. However, no additional proofs are offered beyond the two affidavits from Buck and her mother. Neither affidavit provides any specific acts of either attorney that may serve to indicate a deficient performance; the record reinforces this perception. Buck’s attorney in circuit court, Clifford Whitney, opposed her open plea of guilt to one charge of sale of cocaine, because the State offered three years of prison time, with three years suspended and probation. Buck believed that she would not serve any time with an open plea, despite the court’s statement that she would serve time during the plea hearing, and Whitney’s opposition to her open plea.

¶ 9. Buck again fails to show any deficiency in her counsel’s actions. In the case of her plea, there is substantial evidence that if she followed her attorney’s advice, she would have received a lighter sentence. This does not constitute prejudice, nor deficient representation.

CONCLUSION

¶ 10. Buck’s two claims of ineffective assistance of counsel fail to meet the threshold burden of establishing deficiency or prejudice on the part of her attorneys. Consequently, her claims lack merit, and we affirm the judgment of the Circuit Court.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY DENYING POST CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

McMILLIN, C.J., THOMAS, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR. SOUTHWICK, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. KING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE AND IRVING, JJ.

KING, P.J.,

dissenting:

¶ 12. With appropriate respect for the opinion of my colleagues in the majority, I am compelled to dissent on the issue of whether Buck received effective assistance of counsel in the Youth Court of Warren County. I believe that Buck was poorly and constitutionally ineffectively served by her attorney.

¶ 13. Pursuant to Section 43-21-151(1) Mississippi Code Annotated, the youth court shall have exclusive original jurisdiction of all proceedings concerning a delinquent child, except:

(a) Any act attempted or committed by a child, which if committed by an adult would be punishable under state or federal law by life imprisonment or death, will be in the original jurisdiction of the circuit court:
(b) Any act attempted or committed by a child with the use of a deadly weapon, the carrying of which concealed is prohibited by section 97-37-1, or a shotgun or a rifle, which would be a felony if committed by an adult, will be in the original jurisdiction of the circuit court.

¶ 14. While placing exclusive original jurisdiction of delinquent children in the youth court, the legislature has provided that the youth court may “either on motion of the youth court prosecutor or on the youth court’s own motion,” transfer a case to the appropriate adult court. A transfer pursuant to Section 43-21-157 requires at least ten days’ notice, and representation by counsel at a bifurcated hearing. Section 43-21-157(3) requires that the youth court first make a determination that probable cause exists to believe that an offense has been committed, and the juvenile committed the offense.

¶ 15. Under Section 43-21-157(4) the youth court may only transfer if it “finds by clear and convincing evidence that there are no reasonable prospects of rehabilitation within the juvenile justice system.”

¶ 16. In considering the prospects for treatment within the juvenile system, the youth court, pursuant to Section 43-21-157(5), is required to consider and make a finding on the following factors:

(a) Whether or not the alleged offense constituted a substantial danger to the public;
(b) The seriousness of the alleged offense;
(c) Whether or not the transfer is required to protect the community;
(d) Whether or not the alleged offense was committed in an aggressive, violet, premeditated or willful manner;
(e) Whether the alleged offense was against persons or against property, greater weight being given to the offense against persons, especially if personal injury resulted;
(f) The sophistication, maturity and educational background of the child;
(g) The child’s home situation, emotional condition and life-style;
(h) The history of the child, including experience with the juvenile justice system, other courts, probation, commitments to juvenile institutions or other placements;
(i) Whether or not the child can be retained in the juvenile justice system long enough for effective treatment or rehabilitation;
(j) The dispositional resources available to the juvenile justice system;
(k) The dispositional resources available to the adult correctional system for the child if treated as a adult;
(Z) Whether the alleged offense was committed on school property, public or private, or at any school-sponsored event, and constituted a substantial danger to other students;
(m) Any other factors deemed relevant by the youth court;

¶ 17. While this Court does not have the youth court record before it, there is nothing in the record before us, which allows us to say with confidence that these things were considered.

¶ 18. If after consideration of Section 43-21-157(5) factors, the youth court finds transfer to be appropriate, Section 43-21-157(6) requires that:

(6) If the youth court transfers jurisdiction of the alleged offense to a criminal court, the youth court shall enter a transfer order containing:
(a) Facts showing that the youth court had jurisdiction of the cause and of the parties;
(b) Facts showing that the child was represented by counsel;
(c) facts showing that the hearing was held in the presence of the child and his counsel;
(d) A recital of the findings of probable cause and the facts and reasons underlying the youth court’s decision to transfer jurisdiction of the alleged offense;
(e) the conditions of custody or release of the child pending criminal court proceedings, including bail or recognizance as the case may justify, as well as a designation of the custodian for the time being; and
(f) A designation of the alleged offense transferred and of the court to which the transfer is made and a direction to the clerk to forward for filing in such court a certified copy of the transfer order of the youth court.

¶ 19. The order entered by the youth court does not meet these requirements. The transfer order is a part of the record before this Court.

That order provides:

This cause came on for hearing on April 8, 1999 on the Motion of the State of Mississippi to certify as an adult Rhe-vonia Buck, a minor child whose date of birth is August 4, 1982, for a charge of sale of cocaine which allegedly occurred in Warren County, Mississippi on April 2, 1999, and the Court being satisfied with the jurisdiction of the subject matter and of the parties and having heard the Motion of the State and counsel for the youth having announced that the youth and her mother have agreed to the certification, and the Court being of the opinion that the relief sought should be granted, it is therefore,
ORDERED AND ADJUDGED that the jurisdiction of the youth, Rhevonia Buck, whose date of birth is August 4, 1982, as well as the charge of sale of cocaine which occurred in Warren County, Mississippi on April 2, 1999, are hereby transferred to the Circuit Court of Warren County, Mississippi for further proceedings. That all procedural matters pursuant to the Youth Court Act with regards to the certification have been complied with. That bond is hereby set at $25,000.00 returnable to the next Term of the Warren County Grand Jury. The Sheriff of Warren County, Mississippi is hereby ordered to take custody of the youth and to transfer her to the Warren County adult jail.
ORDERED AND ADJUDGED this the 8th day of April, 1999.

¶ 20. The order is signed by the youth court judge and approved as to form by the youth court prosecutor and Buck’s counsel.

¶ 21. While the majority states that Buck was certified at her request, the order states that it was the request of the prosecutor, and agreed to by Buck. This appears to recognize that a court cannot of its own volition, expand or contract its jurisdiction except as allowed by law. Transfer is a matter of jurisdiction. The statutes of this state do not provide for a transfer request by a juvenile, or her counsel.

¶ 22. Indeed, to even call the matter to the court’s attention is constitutionally ineffective assistance of counsel. Such an act is akin to a confession of guilt by defendant’s counsel, when there is no benefit to be gained by the defendant. This is particularly true where, as in this case, counsel’s actions subjected Buck to a far harsher penalty than could have been imposed upon her in the juvenile system.

¶ 23. The law has predetermined that juveniles are special people, who cannot abrogate their rights, except under very limited circumstances. In re Winship, 397 U.S. 358, 359, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); see also In Interest of Gressett, 272 So.2d 921, 922 (Miss.1973).

¶ 24. This recognition of special circumstances is further set out in Section 43-21-311(4) which forbids the interview or an interrogation of a child in a detention facility without prior youth court approval.

¶ 25. I believe the actions of the Warren County Youth Court failed to comply with the statutory and constitutional protections accorded Buck, and these failures did not effectively transfer jurisdiction to the circuit court. I also believe that counsel provided constitutionally ineffective assistance counsel. For these reasons, I would reverse and remand this case to the Warren County Youth Court.

LEE AND IRVING, JJ., JOIN THIS SEPARATE WRITTEN OPINION.

      . Section 43-21-105, defines delinquent child and delinquent act, respectively as:
      (i) "Delinquent child” means a child who has reached his tenth birthday and who has committed a delinquent act or, while being required to attend an alternative school program provided under Section 37-13-92, willfully and habitually absents himself therefrom.
      © "Delinquent act” is any act, which if committed by an adult, is designated as a crime under state or federal law, or municipal or county ordinance other than offenses punishable by life imprisonment or death. A delinquent act includes escape from lawful detention and violations of the Mississippi Schools Compulsory Attendance Law, violations of the Uniform controlled Substances Law and violent behavior.

      . The requirement of clear and convincing evidence places a heightened burden upon the youth court prior to transfer of a child to the adult system. Foster v. State, 639 So.2d 1263, 1293 (Miss.1994); State v. U.G. 726 So.2d 151 (¶ 34) (Miss.1999) (Banks, J. dissenting). This heightened standard is consistent with the philosophy of the youth court act that children are vulnerable, and require special protection.


author: BRIDGES, J.,

text:
    Becky LADNER, Appellant, v. Jimmy JORDAN, Appellee.
    No. 2001-CA-01469-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2002.
    Rehearing Denied March 11, 2003.
    Certiorari Denied June 26, 2003.

      Sam M. Brand, Jackson, attorney for appellant.
    Jimmy Jordan (pro se), attorney for ap-pellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   BRIDGES, J.,

for the court.

¶ 1. Becky Ladner sued Jimmy Jordan in the Chancery Court of Hinds County asking for rescission of a contract and consequential damages based on a theory of breach of warranty of merchantability. After hearing the case, the court ruled for Jordan, finding that he was not a merchant under the meaning of the statute, and that he had breached no warranty. Ladner perfected her appeal.

STATEMENT OF THE ISSUES

I. DID THE COURT ERR IN DISMISSING LADNER’S CLAIM FOR BREACH OF AN EXPRESS WARRANTY?

II. DID THE COURT ERR IN HOLDING THAT JORDAN HAD TO BE A “MERCHANT WITH RESPECT TO GOODS OF THAT KIND” TO BE LIABLE FOR A BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY?

III.DID THE COURT ERR IN HOLDING THAT LADNER HAD NOT BROUGHT A CLAIM BASED ON THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE?

FACTS

¶ 2. Becky Ladner purchased a thirteen-year-old Palomino horse from Jimmy Jordan for $1800. She had seen Jordan ride the horse twice before the purchase, but refused to ride the horse herself. She also did not have the horse examined by a veterinarian prior to purchase. Jordan guaranteed that the horse was sold as sound as when Jordan owned him, which he clarified meant “as is.” Ladner and her husband took the horse home with them, leaving Jordan $1800 richer.

¶ 3. The next day Ladner rode the horse for the first time, and immediately detected that the horse was partly lame. Lad-ner took the horse to be examined at Dixie Equine by Dr. Laurissa Heinz, a veterinarian, who determined that the horse had a lame hind leg, with developing arthritis in the ankle joint. Mr. Ladner called Jordan the next day and tape recorded his conversation with Jordan, who reaffirmed his guarantee that the horse was sold “as is,” and that the horse was sound when he sold it.

ANALYSIS

I. DID THE COURT ERR IN DISMISSING LADNER’S CLAIM FOR BREACH OF AN EXPRESS WARRANTY?

¶ 4. The court held that Ladner had not adduced sufficient proofs at trial to support her claim. Another way to state this is that Ladner failed to make a prima facie case. This Court reviews the dismissal of a claim for failure to make out a prima facie case for manifest error in the face, of substantial evidence to the contrary. Alexander v. Brown, 793 So.2d 601, 603(¶ 6) (Miss.2001). The trial court must consider the evidence fairly, and dismiss a claim if the judge would find for the defendant. Id.

¶ 5. The evidence adduced at trial indicated at most that Jordan had guaranteed the horse “as is,” which is no guarantee at all and may be sufficient to serve as an exclusion of implied warranties under the Uniform Commercial Code (UCC). Considering the evidence, it is impossible for this Court to say that Ladner had met the burden of establishing a prima facie case for an express warranty of fitness for a particular purpose.

II. DID THE COURT ERR IN HOLDING THAT JORDAN HAD TO BE A “MERCHANT WITH RESPECT TO GOODS OF THAT KIND” TO BE LIABLE FOR A BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY?

¶ 6. Mississippi Code Annotated Section 75-2-314 (Rev.2001) states that for a person to be liable under a theory of breach of the implied warranty of merchantability, he must be a merchant with respect to goods of that kind. Since Jordan cannot be considered a merchant with respect to goods of that kind, i.e., horses, and since Ladner effectively concedes this point in her brief, this Court must affirm the court below.

III. DID THE COURT ERR IN HOLDING THAT LADNER HAD NOT BROUGHT A CLAIM BASED ON THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE?

¶ 7. The court held that Ladner had relied solely upon Mississippi Code Annotated Section 75-2-314 (Rev.2001) in her complaint. This decision of the chancellor is properly reviewed for an abuse of discretion. Although Ladner alleged that her claim arose under “Section 75-2-314, et. seq. of the Mississippi Code of 1972, Annotated,” without specifying if the claim was one based on an express or implied warranty of fitness for a particular purpose. The appropriate statute regarding an implied warranty of fitness is found in Mississippi Code Annotated Section 75-2-315 (Rev.2002), and while the most charitable interpretation of Ladner’s complaint would suggest that the words “et seq.” encompassed all of the UCC Article 2 that follows Section 314, it is hardly incumbent upon any court to sua sponte correct the pleadings. Ladner did not ask the court’s leave to amend the pleadings to conform with the facts; consequently, her pleadings must be taken as accurate on their face.

¶ 8. During the trial, Ladner adduced no proof to support a claim based on the implied warranty of fitness for a particular purpose, instead focusing on the theory of an express warranty of fitness for a particular purpose. The court held that Ladner had failed to make a prima facie case supporting a claim on the theory of express warranty. Among the evidence provided was a tape recorded conversation of Jordan and Mr. Ladner discussing the health of the horse. Jordan, who did not know the conversation was being taped, stated that he sold the horse “as is,” and that he guaranteed that it was as sound as when he had owned it. This amounted to no guarantee at all.

¶ 9. Coupled with the lack of guarantee is the fact that the Ladners, who had experience with horses and who were both present at the point of sale did not have a veterinarian examine the horse, nor did they personally ride the horse. According to Ladner’s testimony, as soon as she rode the horse she realized that it was partly lame. Under the UCC, when a buyer refuses to examine the goods prior to use under circumstances where the defect complained of would have been revealed through examination, the implied warranty of fitness for a particular purpose can be deemed waived. Basic Adhesives, Inc. v. Robert Matzkin Co., Inc., 101 Misc.2d 283, 288-291, 420 N.Y.S.2d 983, 985-987 (1979). Since the Ladners twice refused to ride the horse, and did not attempt to assess the horse’s fitness for riding, and subsequently discovered the defect immediately upon riding the horse, there can be no doubt that combined with Jordan’s non-guarantee the events at the point of sale negated the implied warranty of fitness for a particular purpose.

¶ 10. For the foregoing reasons, we affirm the decision of the court below.

¶11. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THE APPEAL ARE CHARGED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, MYERS, AND CHANDLER, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. BRANTLEY, J., NOT PARTICIPATING.


author: BRANTLEY, J.,

text:
    Anthony WATSON, Appellant, v. Margaret JOHNSON, Appellee.
    No. 2001-CA-01400-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.
    Rehearing Denied March 18, 2003.
    Certiorari Denied June 26, 2003.

      Jonathan B. Fairbank, Jackson, attorney for appellant.
    William C. Griffin, Juliette Veronica Wilson, Jackson, attorneys for appellee.
    Before KING, P.J., IRVING, and BRANTLEY, JJ.
   BRANTLEY, J.,

for the court.

¶ 1. Anthony Watson sued Margaret Johnson for damages arising from an automobile accident. The Hinds County Circuit Court entered an order for summary judgment in favor of Johnson. Watson appeals to this Court asserting that the trial court erred in its grant of summary judgment. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. The evidence is uncontradicted that Anthony Watson and Margaret Johnson were involved in a collision of their motor vehicles on April 26, 1995. On April 23, 1998, Watson filed a complaint, maintaining that the accident was caused by Johnson’s negligence and that, as a result, he was injured. Watson particularly sought compensation for past and future medical expenses incurred to treat the injury, for physical pain and suffering, for mental pain and suffering, for property damage to his automobile, and for loss of enjoyment of life. On September 21, 1998, Johnson countered denying any negligence in the matter and stated that she was without sufficient knowledge to form a belief as to the truth of Watson’s allegation that he was injured or suffered any damages. At this time, Johnson also filed interrogatories and requests for production of documents.

¶ 3. Watson did not respond to Johnson’s interrogatories and requests for production of documents and on January 13,1999, Johnson filed a motion to compel discovery, which was granted in an order dated March 8, 1999, wherein, the court ordered Watson to respond to discovery by March 18, 1999. After an agreed extension between the parties, on March 26,1999, Watson replied to the interrogatories and provided medical records.

¶ 4. In his answers, he specifically stated how the accident occurred, listed damages and injuries, particularly claiming compensatory damages for pain and suffering in his lower back, neck, and both legs from the aggravation of existing injuries, for costs and repairs of his automobile, for mental suffering and exacerbation of his depression, and for past and future medical expenses. Watson further stated that the persons listed in the police report, his parents and children, and his physicians could bear witness to the allegations in his complaint. In addition, Watson stated that his medical providers could bear witness to the expenses that he has incurred in the treatment of his injuries, but that due to his pre-existing injuries he was segregating those expenses relating to this collision and would supplement his answer in a timely manner. He did not list or identify the medical providers or the individuals listed in the police report. As to Johnson’s request for a list of Watson’s expert witnesses, Watson stated that he “has not yet decided those persons he will call to render expert testimony at trial.”

¶ 5. In response to the request for documents, Watson produced medical records dating from 1992 to 1997. The records that pre-date the accident are related to treatment for injuries from a slip and fall accident which occurred on May 20, 1992, and an accident which occurred on July 7, 1992, where Watson’s automobile was rear-ended by a city bus. The records that post-date the accident specifically note that the treatment and accompanying bills pertain to a work-related accident which occurred on May 20, 1992. The records do not state that the treatment or bills relate to the accident in question. There is no indication from the medical records that Watson had been treated or diagnosed for injuries resulting from the April 1995 accident.

¶ 6. As a result, on April 12, 1999, Johnson inquired by letter into the omission of any medical providers for the claimed injuries of the accident in question. On April 15, 1999, via hand delivery, Watson’s counsel forwarded medical documents and a letter to the defense stating that all medical records in his possession concerning Watson had been submitted. The attached second set of produced records were identical to the documents previously produced.

¶ 7. Subsequently, on July 16, 1999, Johnson filed a motion to dismiss or in the alternative for summary judgment. In the motion, Johnson requested that the case be either dismissed for failure to comply with the court’s order compelling discovery or, alternatively, that summary judgment be granted because no genuine issue of material fact existed. This motion is noted in the index, but does not appear in the record. In response, Watson stated that he intended to introduce testimony of Dr. Pierre, his treating chiropractor, to testify as to the culpability of the various accidents in producing Watson’s back pain. He further claimed that the produced medical records support his claim that preexisting injuries were aggravated and that the medical records created a factual issue as to whether the treatment after the accident related to those prior accidents or to the accident in question. He also claimed that his testimony is credible and that he will testify at trial that the accident aggravated his injuries.

¶ 8. On October 8, 1999, in a brief order, the trial court denied Johnson’s motion to dismiss or in the alternative summary judgment. A transcript of the hearing does not appear in the record and the circuit court did not give a detailed reasoning for its decision. Subsequently, on December 13,1999, the trial court determined that the dispute was appropriate for mediation and therefore, entered an order of referral requiring the parties to complete the mediation in good faith by January 30, 2000. An order was later granted to continue the completion of mediation. The first session of mediation occurred on June 14, 2002. After approximately one hour had passed, the mediator ended the session when Watson abruptly left the room because of an illness. There is no transcript available of the meeting. A second session was scheduled for July 17, 2000, but according to Johnson, Watson stated that he would only attend the session if negotiations began at $1,000,000. When these terms were rejected by Johnson, Watson refused to participate. The mediator then concluded that scheduling any future mediation sessions would be pointless.

¶ 9. On August 4, 2000, Johnson properly noticed Watson for a deposition on September 13, 2000, and stated that the set date would not be changed unless Watson gave a precise alternate date. On the morning of the deposition, Watson’s counsel informed Johnson that Watson would not be able to attend the deposition because Watson was “hearing too many voices in his head.” Johnson’s counsel informed Watson’s counsel that he was going to proceed regardless of Watson’s attendance. Watson’s counsel appeared for the deposition without him and a record was made of his absence.

¶ 10. Consequently, on January 17, 2001, Johnson filed a renewed motion for summary judgment or, in the alternative, motion for dismissal for failure to appear at a deposition or to compel appearance at a deposition or, in the alternative, a motion for sanctions for failure to appear at a court ordered mediation. Johnson, moved for summary judgment on the grounds that no genuine issue of material fact existed as to Watson’s claims that he sustained injuries and/or any measure of damages whatsoever. In particular, Johnson contended that, notwithstanding the court’s order compelling discovery and mediation, to date no credible evidence had been proffered to support Watson’s claims that he sustained any measure of damages whatsoever in the accident from which this lawsuit arises.

¶ 11. In response, Watson stated that he would present evidence that the exhibits dated 1995 to 1997 are for the treatment of the aggravation of his back condition and that when competent to testify he would present evidence as to his pain, suffering and mental anguish and property damage. Furthermore, Watson stated that he would still be able to produce testimony that the accident happened, that Johnson’s negligence contributed to the accident, and that he suffered some injury as a result. Watson also readily agreed to appear at another scheduled deposition.

¶ 12. On April 10, 2001, a final judgment of dismissal with prejudice was entered. Wherein, the court stated that after considering the pleadings, evidence, and arguments of counsel, summary judgment was appropriate as a matter of law. No other details were given for the ruling and no record was made of the motion hearing. Following this order, Watson filed a motion to reconsider on April 20, 2001, and on August 7, 2001, an order was entered denying the motion to reconsider after considering the pleadings and the arguments. Thereafter, Watson filed his notice of appeal on August 29, 2001, of the summary judgment and the order denying the motion to reconsider.

ANALYSIS

¶ 13. The lower court is vested with the discretion to grant a summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Collier v. Trustmark Nat’l Bank, 678 So.2d 698, 695 (Miss.1996); M.R.C.P. 56. The standard of review on appeal when a trial judge grants a motion for summary judgment allows this Court to review the record de novo to determine if there was error on the part of the trial judge in granting the motion. Id. In a motion for summary judgment, the movant and non-movant maintain burdens of production paralleling their burdens of proof at trial. Id. at 696.

¶ 14. In a negligent action, the plaintiff bears the burden of producing evidence sufficient to establish the traditional elements of duty, breach of duty, proximate cause and injury. May v. V.F.W. Post No. 2539, 577 So.2d 372, 875 (Miss.1991). Therefore, when summary judgment is sought by the defendant, the court must determine whether the plaintiff has produced supportive evidence of significant and probative value; this evidence must show injury, that the defendant breached the standard of care and that such breach was the proximate cause of her injury. Palmer v. Anderson Infirmary Benev. Ass’n., 656 So.2d 790, 794 (Miss.1995).

¶ 15. These thoughts in mind, we turn to apply the law regarding Johnson’s alleged liability to the facts before us, viewed most favorably to Watson. In the present case, Johnson asserted that no evidence was submitted to support the damage element of the negligence action. The other elements of negligence were not targeted by Johnson’s renewed motion for summary judgment. Therefore, we specifically look to the record to see if there was a basis from which a jury could reasonably conclude that damages existed as a result of the accident in question.

¶ 16. As stated, Watson’s answer to interrogatories include contentions of how the accident occurred and the alleged compensatory damages, such as aggravation of existing injuries, costs of repairs of his automobile, pain and suffering, mental suffering and aggravation of his depression, and past and future medical expenses. He further stated that his medical providers could bear witness to the expenses that he has assumed in the treatment of injuries, that his parents and children are personal witnesses to his pain, suffering, and depression, and that the witnesses listed on the police report had knowledge pertaining to the accident. Watson also stated that he would supplement his answers in several areas. In particular, he stated that as to the medical bills he still was segregating those expenses related to the collision in question and those expenses that were due to pre-existing injuries. He further stated that he had not yet determined those persons he will call to render expert testimony at trial.

¶ 17. In addition, in Watson’s response to Johnson’s first motion for summary judgment, Watson stated that he intended to call Dr. Pierre, his chiropractor, to testify as to the culpability of the various accidents in regard to Watson’s back pain. He also claimed that the medical records supported his claim that pre-existing injuries were aggravated and created a factual issue as to whether treatment which occurred after the accident related to those prior accidents or to the accident in question.

¶ 18. As stated, Watson claims that these sworn statements in his answers are sufficient to create an issue as to whether he sustained any damages. “To have power to generate a genuine issue of material fact,” the “affidavit or otherwise” (e.g., depositions and answers to interrogatories) must: (1) be sworn; (2) be made upon personal knowledge; and (3) show that the party providing the factual evidence is competent to testify. Magee v. Transcontinental Gas Pipe Line Corp., 551 So.2d 182, 186 (Miss.1989). In the present case, Watson’s answers to interrogatories are sworn, made upon personal knowledge, and Watson appeared to be competent at the time his answers were submitted. However, the Mississippi Supreme Court in Travis v. Stewart, 680 So.2d 214 (Miss.1996), in dealing with the issue of the proof necessary to support a summary judgment, stated that bare assertions are simply not enough to avoid summary judgment. The non-movant may not rest upon allegations or denials in his pleadings. Travis, 680 So.2d at 218. A non-moving party must show more than a mere scintilla of colorable evidence, i.e., they must produce evidence upon which a fair-minded jury could find for them. Van v. Grand Casinos of Mississippi, Inc., 767 So.2d 1014, 1018(¶ 7) (Miss.2000). Unsubstantiated assertions are not enough. Id.

¶ 19. We now look to see if Watson presented any evidence to support the above assertions. As to the property damage claim, Watson only asserted that the right front of his vehicle was damaged and that he would “timely” provide the monetary amount. Watson never supplemented his answer. He also never provided any photographic evidence of the claimed property damage. He further never provided his own opinion or another’s as to the value of the automobile prior to the accident or an opinion of the value of the automobile after the accident. More importantly, there were no bills of repair submitted, no affidavits provided from mechanics who repaired the vehicle, and no affidavits provided from the witnesses fist-ed on the police report stating that there was visible automobile damage. In addition, he never provided any information concerning repairs and that the repairs, if any, were reasonable and necessary.

¶ 20. As to the personal injury claim, Watson did not provide any medical evidence that he suffered personal injuries from the accident in question other than a series of medical bills that he reported to be related to the accident. However, after review, each record states that the treatment was for an injury that occurred in 1992, three years before the accident in question. No diagnosis of any claimed injury to his body as a result of the accident by any medical provider was presented either in the records post dating the accident or by affidavit at the time of the renewed summary judgment hearing. Furthermore, no affidavits were presented from any witnesses that Watson sustained any injuries whatsoever to support his assertions. Although, he stated in his response to Johnson’s first motion for summary judgment, that his chiropractor, Dr. Pierre, would testify as to the bills relating to the 1995 accident in question, no testimony from Dr. Pierre was ever presented. In addition, Watson never supplemented his answers as to his personal injury claims as he stated he would in March of 1999.

¶ 21. We also note that although it does not appear in the record that a trial date had been set or that a discovery schedule had been given, the trial judge did grant an order to compel discovery in March of 1999 and entered an order in December of 1999 to seek and complete mediation in good faith. In addition, as of January 17, 2001, Watson still had not supplemented his answers or provided the required proof to substantiate his claims of property damages and personal injuries. Watson also never sought a continuance to obtain evidence that would substantiate his claims of damages and injuries.

¶ 22. Watson was required to bring any information he could attain to the court’s attention prior to the summary judgment hearing. Watson also had an obligation to present the type of evidence that would support his assertions before the hearing on the renewed summary judgment motion since it appears to have been readily available. Since he did not, we must presume any evidence that he failed to present was detrimental to his case. Herrington v. Leaf River Forest Products, Inc., 733 So.2d 774, 779(¶ 19) (Miss.1999). The time when Watson could have submitted evidence to support his claim is past. As the Supreme Court has stated before, the hearing on a summary judgment motion is the flashpoint when the plaintiffs proof is evaluated. Brewton v. Reichhold Chemicals, Inc., 707 So.2d 618, 620(¶ 6) (Miss.1998). Since Watson failed to provide the lower court with sufficient evidence to support his claim at the hearing, there were no factual questions in issue over which reasonable jurors could disagree.

¶ 23. Furthermore, regarding summary judgments, the Mississippi Supreme Court has stated:

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is “entitled to judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Galloway v. Travelers Ins. Co., 515 So.2d 678, 683 (Miss.1987).

¶ 24. In the present case, we conclude that according to the record Watson was given ample time to present any evidence substantiating his claims of damages and personal injuries and that in that time period he failed to bring forward any significant probative evidence demonstrating the existence of a triable issue of fact as to the claims of damages or injuries to meet his burden. See Phillips v. Hull, 516 So.2d 488, 491 (Miss.1987). Watson had a duty to be more diligent and his unsubstantiated assertions were not enough to prevent summary judgment. Therefore, we find that the trial judge did not err in finding that summary judgment was appropriate, and accordingly, we affirm the decision of the trial court.

¶ 25. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND CHANDLER, JJ., CONCUR.


author: SOUTHWICK, P.J.,

text:
    John S. PARISIE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01432-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.
    Rehearing Denied Feb. 18, 2003.
    Certiorari Denied June 26, 2003.

      John S. Parisie, pro se, appellant.
    John W. Chapman, Brandon, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES . and MYERS, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. John Parisie was convicted in the Rankin County Circuit Court on charges of armed robbery, aggravated assault on a law enforcement officer, and possession of a firearm by a felon. He was sentenced to life imprisonment. On appeal, Parisie argues that his restricted access to a law library, numerous procedural errors regarding discovery and his indictment, and errors by the trial court regarding eviden-tiary matters and jury instructions denied him a fair trial. He also contends that the weight and sufficiency of the evidence do not support his conviction. We find no merit to these arguments and affirm.

FACTS

¶ 2. On November 15, 2000, John Parisie entered an auto parts store in Pearl. He walked directly to the service counter and demanded money. The employees surrendered a bank bag containing $175 as Pari-sie exhibited a handgun. Exiting the store, Parisie walked across the parking lot of the adjacent business to a hill where his truck was parked. The store manager noted the direction of Parisie’s escape and followed him in his own truck in order to obtain Parisie’s license plate number. Returning to the crime scene, the manager reported this information to law enforcement.

¶ 3. Scott Walters, a deputy with the Rankin County Sheriffs Department, responded to a “be on the lookout” alert. He saw Parisie’s truck and attempted to pull the suspect over. Parisie sped away. A high speed chase ensued. As Parisie attempted to execute a sharp turn into an elementary school parking lot, Walters saw him raise a gun over the seat as if to fire back at his pursuer. Walters accelerated, ramming Parisie’s truck. The vehicles came to rest alongside one another after spinning from the impact. Parisie shouted obscene threats at Walters as each man attempted to draw his weapon. However, with law enforcement converging on the scene, Parisie resumed his efforts at escape, this time using the interstate highway westbound towards Jackson.

¶ 4. Police set a roadblock at an upcoming exit in order to trap Parisie, whose flight now reached speeds in excess of one-hundred miles per hour. Parisie’s truck left the road approximately 500 yards short of the roadblock. Parisie jumped from his vehicle and proceeded on foot. Officers swarmed to the area. Parisie turned, crouched in a shooter’s stance, and fired at Sergeant Timothy Sarrett, who had just arrived in his marked vehicle. Sarrett ducked beneath his dashboard as Parisie’s bullet struck the hood just below the windshield. As Parisie fled, police gunfire erupted. Parisie was injured in the arm and leg. When he was finally subdued, Parisie muttered to Deputy Walters that he should have known better than to commit a robbery in Rankin County-

¶ 5. Parisie was tried and convicted on a variety of offenses in August 2001.

DISCUSSION

1. Access to the law library

¶ 6. In a pre-trial hearing, Parisie petitioned the lower court to allow him to represent himself. The lower court granted Parisie’s request and appointed the public defender to act as an “advisor” and assist Parisie with procedure and protocol. The trial judge advised Parisie that in allowing him to proceed pro se, the court would not allow Parisie to seek the assistance of counsel once the trial had begun. In a later hearing, the trial court granted Parisie five hours weekly access to the law library to prepare his defense. This access was to be determined at the sheriffs discretion.

¶ 7. Parisie was allowed five hours of law library access during the first week, three hours the second, and approximately one hour in the library for the following two weeks. From May 9 to his trial on August 20, Parisie was denied access. The record suggests that Parisie sought enforcement of the order, and in the final pre-trial hearing, the lower court responded to Par-isie’s contention by stating: “Well, all I can tell you, Mr. Parisie, is I ordered it. It’s up to the Sheriff to honor that order, and the order is in place, and the Sheriff told me that he considered you an escape risk, and, you know, I can’t — I don’t know what to do about it.”

¶8. On appeal, Parisie contends that the lower court’s order granting law library access created a reasonable expectation of such access. Parisie further argues that the lower court’s refusal to allow him the option to substitute counsel mid-trial necessitated his preparing a defense, with “access to the courts,” and, by extension, the law library.

¶ 9. Before trial, the State provided Parisie with case law demonstrating that law library access is not a fundamental constitutional right afforded criminal defendants. Degrate v. Godwin, 84 F.3d 768, 769 (5th Cir.1996). A prisoner is entitled either to access to the courts to prepare and file meaningful legal documents or adequate assistance from persons legally trained. Id. (citing Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)). If he receives either, his rights have been upheld. Here, Parisie had the public defender as an adviser and to assist on matters that Parisie could not handle. When law library access was limited then denied, the lawyer was an alternative.

¶ 10. Parisie argues that in Degrate, the defendant accepted, then dismissed, his court-appointed counsel. By contrast, Parisie maintained self-representation throughout the course of the proceedings below. We do not find the holding in Degrate to apply only in the limited circumstance of a criminal defendant who terminates an existing relationship with appointed counsel and then acts pro se. Indeed, Degrate addresses any situation in which the prisoner “knowingly and voluntarily waives appointed representation by counsel in a criminal proceeding.” Id. This includes situations such as Parisie’s, where counsel never held primary responsibility for the accused’s defense.

¶ 11. The Mississippi Supreme Court has addressed the question on facts even closer to our own. Evans v. State, 725 So.2d 613 (Miss.1997). In Evans, the defendant acted pro se, with appointed counsel acting in an advisor role. Id. at 704. Over Evans’ objections, the trial court denied law library access, ordering the delegation of research tasks to the attorney. Id. The court found that this appointment of counsel satisfied the Bounds • requirement for meaningful access to the courts. Id.

¶ 12. As in Evans, Parisie was provided access to counsel and thereby to the courts. Even in a standby role, professional legal assistance appointed to criminal defendants provides meaningful access to those resources necessary to mount a defense. We do not find that Parisie’s constitutional rights were violated.

2. Discovery

¶ 13. Parisie submits that he was denied access to information on excessive force claims against the officers involved as well as the video records from participating officers’ vehicles. This allegedly denied him the opportunity to put forward his theory of the case — that law enforcement unlawfully fired upon him without threat or provocation, and that he was never in possession of a weapon. He argued that the gun found near his side at his arrest was “planted” by one of the deputies. Under this theory, Parisie contends, he could not be guilty of any of the charges against him.

¶ 14. The process due a criminal defendant is blocked if the State suppresses, either knowingly or inadvertently, evidence favorable and material to the defendant’s guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, Parisie paints with too broad a brush. The Supreme Court has refined the Brady requirements. Most notably, the Court adopted a materiality standard for Brady violations. United States v. Agurs, 427 U.S. 97, 114, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Accordingly, no Brady violation exists where the evidence in question would not raise a reasonable doubt about guilt under the circumstances. Id. In addition, a defendant’s Brady rights cannot be violated unless the omission of evidence creates a “reasonable probability” of changing that case’s outcome. Holland v. State, 705 So.2d 307, 331 (Miss.1997) (citing United States v. Bagley, 473 U.S. 667, 684, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).

¶ 15. As to the records of excessive force by the officers involved, the prosecution stated that it had no such information. Even had such existed, we find no benefit that Parisie would have gained from it at trial. He was convicted for armed robbery, aggravated assault on a police officer, and possession of a firearm. Parisie’s factual argument is that even though the evidence is undisputed that he had at extraordinary speed attempted to elude those who chased him after an armed robbery, though he was finally forced to leave his vehicle and, as some testimony showed, though he then fired on the officers, that excessive force by an officer would have justified his firing at them without criminal liability. We do not find that a history of excessive force by an officer would have deflected the charges against Parisie. He did not argue that he was trying to surrender and the officers fired anyway, or in other respects a right of self defense arose during or immediately after the chase because of conduct by the officers. Therefore, the failure of the State to provide Parisie with information is not violative of his Brady rights.

¶ 16. Similarly, we find Parisie’s argument to be unpersuasive that the police video would likely demonstrate the bad acts of his pursuers. Parisie was entitled to any exculpatory evidence tending to support his defense. Todd v. State, 806 So.2d 1086, 1091 (Miss.2001). He was allowed to view one police video of the event.

¶ 17. A four-part test assists in determining whether Brady violations have occurred.

a. that the State possessed evidence favorable to the defendant (including impeachment evidence); b. that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence; c. that the prosecution suppressed the favorable evidence; and d. that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.

Todd, 806 So.2d at 1092. Applying this test, we cannot find that Parisie’s claims constitute infringements on his fundamental rights under Brady.

¶ 18. The only other significant claim concerned news coverage. Parisie sought film from area news stations which might have justified a change of venue. The court granted Parisie’s request, but ensuing confusion about who would prepare the subpoenas for the pro se defendant resulted in their late issuance, four days before trial. Parisie argues that by that time, it was too late to submit a motion to change venue. We agree, but we note that Parisie was not prohibited from filing his motion earlier. Parisie was continually warned that trial preparation would encounter extra hurdles without an attorney. Parisie shoulders the responsibility for any failure to obtain a change of venue.

¶ 19. These discovery issues did not implicate Parisie’s rights. We find them insufficient to overturn the jury’s verdict.

S. Indictment

¶ 20. Parisie offers several challenges based on his indictment. We will consider each claim.

¶ 21. Parisie submits that the counts of the indictment failed to track the statutory language, and are therefore fatally defective.

It is not essential, in an indictment for a statutory crime, that the exact descriptive language of the statute be used. Equivalent words of substantially the same meaning as those of the statute may be substituted. Where the language used in the indictment is sufficiently specific to give notice of the act made unlawful, and exclusive enough to prevent its application to other acts, it is sufficient.

Madere v. State, 794 So.2d 200, 212 (Miss.2001). What remains of Parisie’s argument is whether the actual elements of the offenses charged, which are required in the indictment, were improperly omitted. Hennington v. State, 702 So.2d 403, 407 (Miss.1997).

¶ 22. In Count I of the indictment, the armed robbery charge, Parisie notes the absence of the words “deadly weapon,” the language set out in Miss. Code Ann. § 97-3-79 (Rev.2000). Count I did state that Parisie had used a handgun. We find this an adequate substitute for the phrase “deadly weapon.” The essential statutory elements were satisfied in Count I.

¶ 23. Similarly, Parisie challenges the failure of Count III of the indictment to mirror the statute:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily .injury to another, or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm....

Miss.Code Ann. § 97-3-7(2) (Rev.2000). Count III states that Parisie “did unlawfully, feloniously, purposely and knowingly, cause or attempt to cause serious bodily injury to Officer Tim Sarrett shooting a handgun at the said Officer Sarrett....” Parisie argues that this fails to track either the reckless indifference language of subsection (a) or the deadly weapon language of subpart (b). We have previously addressed the deadly weapon claim above, noting the sufficiency of “handgun” for purposes of Parisie’s indictment. We further point out that section 97-3-7(2)(a) is written in the disjunctive; either an accused acted purposely and knowingly or he acted recklessly with indifference to the value of human life. By failing to include the recklessness language in the indictment, the State did not err. It was, however, limiting itself to proving that Parisie had acted purposefully as opposed to recklessly. The State then proved such intent, inferentially.

¶ 24. Parisie builds on his previous arguments by attacking the jury instructions offered by the trial court. Parisie suggests that the judge, by instructing the jury with reference to a “deadly weapon,” impermissibly amended the indictment to include previously “missing” elements. We have already stated that since a handgun is a deadly weapon, the references are interchangeable.

¶ 25. Parisie’s final contention regarding his indictment is that the lower court’s failure to try him during the term in which the indictment was returned justifies dismissal of it. Parisie relies on pre 1976 statutory language and ease law which held that “capital” cases must be tried during the term in which the indictment is shown, absent good cause. Miss. Code Ann. § 2518 (1942); King v. State, 251 Miss. 161, 168 So.2d 637 (1964). This has been superseded by a statute requiring that trial be held within 270 days. Miss.Code Ann. § 99-17-1 (Rev.2000). No argument that the trial violated this statute was made.

Jp. Continuance

¶ 26. Parisie claims that the lower court erred in denying him a continu-anee. He reincorporates his earlier arguments, particularly as to law library access and discovery. We have addressed those issues in full. Granting or denying a continuance is within the sound discretion of the trial court. Wilson v. State, 716 So.2d 1096, 1097 (Miss.1998). We cannot find that the trial court abused its discretion here.

5.Evidence

¶ 27. Parisie argues that his gun was improperly admitted into evidence. The record reflects that when the State offered the gun into evidence, the lower court encouraged Parisie to object. Parisie initially declined to do so, and the judge ordered the evidence admitted. As the exhibit was marked, Parisie apparently rethought his position and interposed an objection. Generally, the failure to object contemporaneously serves to waive a defendant’s right to raise the issue on appeal. Smith v. State, 797 So.2d 854, 856 (Miss.2001). However, Parisie objected before the evidence was presented to the jury or commented on by a witness. We consider the issue.

¶ 28. Parisie’s claim of inadmissibility concerned the “chain of custody” of the gun. The trial court responded by stating, “I think this officer has testified that he retrieved it at the scene, and it’s the weapon that he retrieved. And it’s been in the custody of Pearl P.D. since then. So Pm going to overrule your objection.” Admissibility of evidence is entrusted to the discretion of the lower court. Spann v. State, 771 So.2d 883, 893 (Miss.2000). When reviewing questions of the chain of custody, the focus should be whether there is any positive indication of tampering with or substitution of the evidence. Id. at 894. The trial court implicitly found no such indication.

¶ 29. On appeal, Parisie describes discrepancies purportedly based on the failure of the chain of custody. Indeed, he sets forth rather succinctly the chain, from the gun’s recovery by Deputy Walters through its testing at the Mississippi Crime Lab. Of particular interest to Pari-sie is his inability to question two of the custodians: Officer Weibe, who was given the gun by Chief Slade until Investigator Seal arrived at the crime scene, and Betty Dedeaux, a crime lab technician who handled the evidence at one point in the investigation.

¶ 30. Regardless of these individuals not being made available, the record indicates sufficient evidence to justify the lower court in allowing the evidence. There was no suggestion that the handgun offered into evidence at trial had been substituted or tampered with in any way.

6. Jury instruction

¶ 31. Parisie submits that the lower court erred in allowing a “flight instruction” to the jury.

¶ 32. A flight instruction is proper where “the defendant’s flight (1) is unexplained and (2) where the circumstance of that flight has considerable probative value.” Austin v. State, 784 So.2d 186, 194 (Miss.2001). Here, the trial court found such an instruction was appropriate. Parisie suggests that his testimony would have advanced an alternative sufficient to explain his flight. That was certainly his prerogative, one he chose not to exercise during trial. We find that the trial court properly applied the threshold test in allowing the flight instruction. This argument holds no merit.

7. Weight and sufficiency of the evidence

¶ 33. Finally, Parisie contends that the trial court erred in denying his motion for a directed verdict and that the jury’s verdict was against the overwhelming weight of the evidence.

¶ 34. A motion for a directed verdict as well as a motion for a judgment notwithstanding the verdict, challenges the evidence’s sufficiency. Franklin v. State, 676 So.2d 287, 288 (Miss.1996). In reviewing the challenge, the court must consider all evidence in a light favorable to the State, discarding all evidence favoring the defendant. Taylor v. State, 656 So.2d 104, 107 (Miss.1995). We may reverse the lower court only if, after reviewing the evidence in this way, we are convinced that no reasonable, hypothetical juror would find guilt. Tait v. State, 669 So.2d 85, 88 (Miss.1996). We find it eminently reasonable for the jury to find guilt.

¶ 35. As to Parisie’s request for a new trial, we will affirm the lower court’s order denying it unless the overwhelming weight of the evidence renders the verdict an “unconscionable injustice.” Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). Here the evidence was substantial and persuasive. The trial court was well within its authority in denying Parisie a new trial.

¶ 36. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF CONVICTION OF COUNT I: ARMED ROBBERY, COUNT III: AGGRAVATED ASSAULT ON A LAW ENFORCEMENT OFFICER, AND COUNT IV: POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF THREE CONSECUTIVE LIFE SENTENCES WITHOUT THE POSSIBILITY OF PAROLE IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS IS HEREBY AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER and BRANTLEY, JJ., CONCUR.


author: KING, P.J.,

text:
    Willie Earl RILEY a/k/a Willie E. Riley, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01291-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.
    Certiorari Denied June 26, 2003.

      Willie Earl Riley, Pro Se, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
   ON MOTION FOR CLARIFICATION OR CORRECTION OF OPINION

KING, P.J.,

for the court.

¶ 1. The motion for clarification or correction of opinion is granted and the original opinion of this Court is withdrawn and this opinion is substituted therefor.

¶ 2. Willie Earl Riley, pro se, appeals an order of the Circuit Court of Holmes County, Mississippi denying his petition for post-conviction relief. Aggrieved, Riley perfected this appeal raising the following issues as error:

I. WHETHER THE TRIAL COURT ERRED IN ACCEPTING THE GUILTY PLEA OF RILEY AND IN DENYING HIM AN EVIDENTIA-RY HEARING.
II. WHETHER RILEY WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. On February 16, 1999, Riley was indicted for the crime of murder in violation of Miss.Code Ann. section 97-3-19(l)(a) for shooting his girlfriend. Riley entered a plea of guilty to the alleged offense before the trial judge on March 22, 2000, and was sentenced to serve a term of life in the custody of the Mississippi Department of Corrections. On July 12, 2001, Riley filed a motion for an evidentia-ry hearing and summary judgment based upon a claim of ineffective assistance of counsel. There were no affidavits in support of any of Riley’s allegations other than his own. The circuit court denied the motion in an order filed August 8, 2001. Riley appeals to this Court the circuit court’s dismissal of his motion for eviden-tiary hearing and summary judgment.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN ACCEPTING THE GUILTY PLEA OP RILEY AND IN DENYING HIM AN EVIDENTIARY HEARING.

¶ 4. In his first argument of this assignment of error, Riley asserts that the trial court erred in accepting his alleged involuntary guilty plea. He claims that he involuntarily pled because his counsel induced him to enter the plea. He further claims that this inducement resulted in the court imposing an illegal sentence. In determining whether the entry of a plea of guilty was properly accepted by the trial court, we are bound by the rule that the plea must be entered voluntarily and intelligently. Goss v. State, 730 So.2d 568, 573(¶ 20) (Miss.1998). In order for a plea to be voluntary, the plea must be “one in which the defendant was advised about the nature of the crime charged against him and the consequences of the guilty plea.” Stovall v. State, 770 So.2d 1019, 1020-21(¶ 7) (Miss.Ct.App.2000). After a careful review of the plea hearing, we find that Riley was thoroughly questioned on the record by the trial judge regarding Riley’s understanding of the crime charged, the applicable sentencing, and the waiver of his constitutional rights. Confirming his understanding and intention to plead guilty, Riley stated that he had obtained a GED and could read and write, that he was thirty-four years old at the time of the plea, that he was aware of the charges and the applicable sentence, and that he understood his petition to enter a guilty plea. Riley also advised the court that he was not under the influence of any drugs or alcohol. In addition, Riley affirmatively responded that no one forced, coerced, or intimidated him to enter the guilty plea and that he was satisfied with the advice and counsel of his attorney.

¶ 5. The testimony at the plea hearing clearly showed that Riley’s plea was voluntarily entered before the court. Review of the entire record did not expose any fact that would call into question the findings of the trial court. Riley had a rational mind and was in complete understanding of every matter that he was advised of by the court. More importantly, there was no indication that he was induced to enter the plea. Riley also presented no evidence to show that the court was aware of this alleged inducement. Without more, Riley’s sworn statements made during the plea hearing must be presumed to be valid and, as such, those contrary assertions contained in his motion are considered merely a sham. Taylor v. State, 682 So.2d 359, 364 (Miss.1996).

¶ 6. As to Riley’s claim that the court illegally sentenced him, he asserts that “the imposition of a life sentence is within the sole province of the jury and absent a jury recommendation of life imprisonment, the trial judge must sentence the defendant to a reasonable term expected to be less than life.” He further claims that he was a first time offender and that a life sentence without parole could not be imposed upon a first time offender as a matter of law. He contends that the court lacked authority to impose such a sentence on a first time offender for a violation of Miss.Code Ann. section 97-3-19(l)(a) and that the court further lacked the authority to delete the parole provisions pursuant to Miss.Code Ann. section 47-7-3(1), unless the appellant was properly adjudicated under mandatory provisions as an habitual criminal, which he claims he was not.

¶ 7. We must first note that upon review, the trial court did not delete any parole provisions. Riley was sentenced to a term of life, not a term of life without parole. Second, he was not adjudicated to be a habitual offender. More importantly, Mississippi Code Annotated § 97-3-21(Rev.2000) provides “[ejvery person who shall be convicted of murder shall be sentenced by the court to imprisonment for life in the State Penitentiary.” Riley signed a petition to enter a guilty plea and did not present his case before a jury. Therefore, he was not entitled to a jury imposed sentence as asserted in his claim. Absent a jury trial, life was the only sentence available for his plea to the murder charge. Therefore, we find that the trial judge was authorized to impose such a sentence on Riley where he voluntarily entered a guilty plea to the court. Thus, we find no error in that the court properly accepted the plea and appropriately sentenced Riley.

¶ 8. In the next argument of this assignment of error, Riley asserts that the circuit court erred in denying his motion for an evidentiary hearing based on his ineffective assistance of counsel claim. He alleges that after his counsel informed him that the State would introduce an NCIC report and attempt to prosecute him as an habitual offender, he notified his counsel that this was his first crime and that the person in the NCIC report was a different person. He now argues that his counsel failed to investigate his status and that this failure induced him into entering the plea which resulted in an “illegal sentence.” According to a review of the record, we find that these assertions are contrary to Riley’s testimony to the court at the plea hearing. At the plea hearing, Riley claimed that he voluntarily entered the plea, that he was not influenced, or coerced to enter the plea, and that he was satisfied with his counsel’s performance. The Mississippi Supreme Court has held that no evidentiary hearing is necessary when the testimony from the plea hearing is opposite the allegations for post-conviction relief. Taylor v. State, 682 So.2d 359, 364 (Miss.1996).

¶ 9. In addition, a trial court has considerable discretion in determining whether to grant an evidentiary hearing. Meeks v. State, 781 So.2d 109, 114(¶ 14) (Miss.2001). According to Miss.Code Ann. § 99-39-11 (Rev.2000), “if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal.” Miss.Code Ann. § 99-39-11 (Rev.2000). Furthermore this Court has stated,

when the prima facie showing that is a necessary prerequisite to an evidentiary hearing consists solely of the assertions of the movant himself, the trial court may disregard such assertions when they are substantially contradicted by the court record of the proceedings that led up to the entry of the judgment of guilt.

Wilson v. State, 760 So.2d 862, 864(¶ 5) (Miss.Ct.App.2000).

¶ 10. In the present case, Riley has presented no evidence beyond his mere assertions and, as stated, the transcript of the plea acceptance hearing substantially contradicts these assertions. The trial judge, after his review of the petition to enter a guilty plea and the court file, clearly acted within his authority to rule on Riley’s motion without an evidentiary hearing and did not abuse his discretion in relying on Riley’s sworn testimony. Simpson v. State, 678 So.2d 712, 716 (Miss.1996); Mowdy v. State, 638 So.2d 738, 743 (Miss.1994). Therefore, this assignment of error is without merit.

II. WHETHER RILEY WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

¶ 11. Riley asserts that his counsel advised him that the State would introduce an NCIC report and submit that he was an habitual offender. Riley also asserts that he replied to his counsel that he was a first time offender and that the individual in the NCIC report was a different person. Riley claims in this assignment of error that his counsel failed to investigate his assertion that he was not an habitual offender and that as a result he was induced into entering the guilty plea.

¶ 12. In order to prevail on the issue of ineffective assistance of counsel, the petitioner has the burden of proof to show (1) that the performance of counsel was deficient and (2) that the defendant was prejudiced by counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The conduct of counsel is presumed to have been effective, although that presumption may be rebutted. Id. Therefore, our review'of counsel’s performance is deferential as we look to the totality of the circumstances. Gilley v. State, 748 So.2d 123, 129(¶20) (Miss.1999).

¶ 13. Upon review, there is no indication in the record that the performance of trial counsel fell below the standards set forth in Strickland. At the plea hearing, Riley confirmed that he was satisfied with his counsel’s performance. Furthermore, the instant appeal is devoid of a demonstrative showing that his counsel’s performance fell below an objective standard of reasonable professional service. He only alleges that his counsel informed him that he “could get more time if he presented his case before a jury.”

¶ 14. Specifically, as to his claim that his attorney faded to investigate his claim, Riley only provides his birth certificate and the NCIC report and states that the compared dates of birth are different and that the full names are different. Riley provides nothing other than his assertion that his counsel did not perform his duties. Even if the information is accepted as true, at trial the State could have argued that Riley was the same person, falling under one of the given abases on the NCIC report.

¶ 15. As to his claim that his counsel induced him into entering the plea, Riley provides nothing to indicate that he was induced. One role of an attorney is to explain the options the client has and then to pursue the options the client wants to take. In Blanch v. State, 760 So.2d 820, 825(¶ 11) (Miss.Ct.App.2000), this Court stated that it could not find fault when an attorney had a candid discussion with his client where the attorney encouraged the client to plead guilty. Again, even if Riley’s claim is taken as true, the information and the advice that his counsel 'provided does not rise to the level of ineffective assistance. The attorney’s representation would have been deficient if the attorney had not discussed this with his client. See Id. Furthermore, Riley also confirmed that he was totally satisfied in all respects with the representation of his attorney. Thus, it is not the attorney’s fault Riley decided pleading guilty would better serve his interests than a trial would.

¶ 16. In summary, Riley’s claims are to the contrary of his sworn statements in both his petition to enter a guilty plea and those given during the plea colloquy. More importantly, Riley presented no evidence to support these claims. Riley was also appropriately sentenced. Therefore, looking at the totality of circumstances, we find that the counsel’s performance was effective. Gilley v. State, 748 So.2d 128, 129(¶ 20) (Miss.1999). Thus, this assignment of error is without merit.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF HOLMES COUNTY DENYING MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HOLMES COUNTY.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, AND CHANDLER, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.


author: GRIFFIS, J.,

text:
    Sherry Rena (Cosby) Surrette BRATCHER, Appellant, v. Kevin Lorenzo SURRETTE, Appellee.
    No. 2002-CA-00201-COA.
    Court of Appeals of Mississippi.
    June 24, 2003.

      John Thomas Lamar, Senatobia, attorney for appellant.
    Gerald W. Chatham, Hernando, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   GRIFFIS, J.,

for the court.

¶ 1. Sherry Bratcher petitioned the trial court for modification of Kevin Surrette’s visitation with the couple’s minor child. She asserted that Surrette had sexually molested their child. The chancellor found that sexual abuse had not been proven by a preponderance of the evidence and refused to restrict Surrette’s visitation with the child. Ms. Bratcher has perfected her appeal asserting the chancellor’s decision was manifestly wrong. Finding no error, we affirm.

FACTS

¶ 2. In July of 2000, Sherry Bratcher and Kevin Surrette were awarded a divorce by the Chancery Court of the Second Judicial District of Panola County. The divorce decree awarded Ms. Bratcher the primary care and custody of the couple’s minor child, a four-year-old boy. Surrette was granted specified visitation with the child which included every other weekend.

¶ 3. On September 17, 2000, the child returned from a weekend visit with his father. The child told his stepfather, E.J. Bratcher, that he needed to use the bathroom. His stepfather observed some strange behavior from the child when he went to wipe his bottom, which he relayed to the child’s mother. Ms. Bratcher questioned the child who told her that when his father wiped him, “it hurt really, really, really bad.” He told his mother that it hurt inside and outside and that his father, “scratched his booty with his fingernail.”

¶ 4. The next day, Ms. Bratcher took the child to see Dr. Smoot for an examination. Dr. Smoot examined the child and found an anal tear. Dr. Smoot then contacted the Department of Human Services (DHS) and Jean Rogers from DHS came to the Bratcher home and began an investigation.

¶ 5. Based on this, Ms. Bratcher filed a petition to modify visitation and asked the court to restrict Surrette’s visitation until further orders of the court. The chancery court entered a temporary order that required supervised visitation pending a hearing on the matter.

¶ 6. At trial, E.J. Bratcher testified that on the night in question the child came home from visitation with his father and went to the bathroom. He said the child called him to come and help clean his bottom. He testified the child, “normally pulls himself off the commode and leans forward so I can help him wipe his booty and he didn’t.” He said the child bent over and had “both hands on his butt cheeks and was pulling his butt cheeks apart, and it just kind of shocked me....” He testified that he told his wife about the incident.

¶ 7. Ms. Bratcher testified that she questioned the child about the incident and asked him where he learned this behavior. She testified the child said it was something his father wanted him to do. She also testified the child said that it hurt when his father wiped his bottom and that it was different from when other people wipe it. Ms. Bratcher testified the child told her, “it hurts inside and outside, Mommy, inside and outside, and he scratched my booty with his fingernail.” She also testified that the child had a small abrasion on his rectum when he was a baby and that the child had constipation off and on like all young children have.

¶ 8. Dr. Margaret Akin at the Rape Crisis Center in Memphis testified. Ms. Bratcher took the child to the Center based on DHS’s recommendation. Dr. Akin examined the child and found a “partially healed laceration of the anus.” She also testified the child’s bottom funneled toward the anus, rather than staying relatively flat. Dr. Akin testified this was not a definite causal connection, but was associated with child abuse. She also stated constipation could be a cause of a rectal tear, but her findings were consistent with the history given to her by the child.

¶ 9. Mr. Paul Davey, a psychotherapist and counselor, testified that the child told Davey that his father had “hurt his booty.” On another occasion, he said the child told Davey his father had asked him to “tickle his wee-wee.” Davey also testified the child did not appear to have been “coached.”

¶ 10. Surrette testified in his defense and stated that sexual abuse never occurred. He also testified he believed this anal tear was caused by the child’s history of constipation. He testified extensively about the child’s problems with constipation stating that he passed “big stools,” which were too big for a small child. He also said the child would go two or three days without having a bowel movement. He said that almost every weekend he was with the child he had to give him a laxative. Surrette also testified there were times when the child would sit on the commode and scream in pain. He testified he was extremely close with his son and that his son was “a gift from God and I treat him that way. We have the best relationship I can imagine.”

¶ 11. The chancellor also heard testimony from two individuals who supervised visitation. Both testified that Surrette had a loving relationship with his son. Both stated they never saw any behavior to indicate the child should not have overnight visits with his father. Additionally, they both testified about the child’s problems with constipation.

¶ 12. The chancellor cited Mississippi law in his ruling which stated that in order to restrict visitation of a non-custodial parent, there must be sufficient evidence that a particular restriction is necessary to avoid harm to the child. The chancellor found the evidence before the court was clearly insufficient and fell short of the burden of proof which is preponderance of the evidence. The chancellor denied Ms. Bratcher’s request for modification and reinstated the custody arrangement in the divorce decree.

STANDARD OF REVIEW

¶ 13. Our scope of review in domestic matters is limited. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Denson v. George, 642 So.2d 909, 913 (Miss.1994). This is particularly true “in the areas of divorce and child support.” Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989).’ This Court is not called upon or permitted to substitute its collective judgment for that of the chancellor. Richardson v. Riley, 355 So.2d 667, 668-69 (Miss.1978). A conclusion that we might have decided the case differently, standing alone, is not a basis to disturb the result. Id.

ANALYSIS OF LAW

I. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION BY DENYING MS. BRATCHER’S PETITION TO MODIFY VISITATION?

¶ 14. In cases where the terms of visitation are at issue, our familiar change in circumstances rule has no application. Cox v. Moulds, 490 So.2d 866, 869 (Miss.1986). This is true because the court is not being asked to change the permanent custody of the child. Id.; Sistrunk v. McKenzie, 455 So.2d 768, 770 (Miss.1984). In Cox, the supreme court stated:

All that need be shown is that there is a prior decree providing for reasonable visitation rights which isn’t working and that it is in the best interest of the children as fostering a positive and harmonious relationship between them and their divorced parents to have custody provisions made specific rather than flexible and attendantly vague.

Cox, 490 So.2d at 869.

¶ 15. Ms. Bratcher argues that above all else, the court must first protect the child with regard to custody and visitation and that it failed to do so. She asserts that compelling evidence was presented during trial that showed the child was “placed in harm’s way” by returning him to unsupervised visitation with his father and that it was improper for the chancellor to question the credibility of the child. She also cites Lewis v. Butler, 794 So.2d 1015, 1018(¶ 16) (Miss.2001), which states that evidence of improper sexual advances toward a child is justification for denying visitation to the perpetrator.

¶ 16. The chancellor, by his presence in the courtroom, is best equipped to listen to the witnesses, observe their demeanor, and determine the credibility of the witnesses and what weight ought to be ascribed to the evidence given by those witnesses. Murphy v. Murphy, 631 So.2d 812, 815 (Miss.1994). When conflicting testimony on the same issue is presented, the chancellor sitting as trier of fact must determine which version he finds more credible. Id. “The weight and worth of a witness’s testimony [is] solely for the chancellor to determine.” Doe v. Doe, 644 So.2d 1199, 1207 (Miss.1994) (citing Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987)). In cases such as this, the determination of whether the child suffered from sexual abuse is a question of fact to be decided by the chancellor. Id.

¶ 17. In the case sub judice the chancellor made the following findings of fact:

Despite the mother’s representations to the contrary, this child has a history of constipation and bowel movement problems far in excess of the typical child. These problems have required medication and physician examinations virtually since his birth. Rectal tears have been found on the child even in his diaper stage as reflected in the DHS, that is the Department of Human Services of Panola County file, which was admitted into evidence. Physicians have found these rectal tears to be consistent with the child’s constipation.

¶ 18. He further noted that after one particular incident when the child returned from a supervised visit, Ms. Bratcher found blood in his underwear and called DHS, which promptly investigated. When the child was asked about the blood he said, “Daddy hurt my booty again.” DHS determined that during the period in question, there was no opportunity for Surette to molest the child and the result of the bleeding was from constipation. The chancellor found “this puts the credibility of the child in question.”

¶ 19. The chancellor determined that sexual molestation would justify a restriction, but found that based upon the testimony, “there is clearly insufficient evidence in order for this court to make that ruling.”

¶ 20. As stated earlier, the determination of whether the child was sexually abused by his father is a question of fact to be decided by the chancellor. He found that substantial evidence showed the child’s problems with constipation and painful bowel movements could have caused his injury, and the evidence submitted by Ms. Bratcher was insufficient to rebut this possibility. The chancellor had the opportunity to view the witnesses’ demeanor and to determine whether the charges were true. In these types of cases in which one side alleges misconduct while the other denies any wrongdoing, the determination of the worth and credibility of the witnesses is solely for the chancellor. This Court cannot reverse unless we determine the findings of the chancellor were not supported by substantial evidence, an abuse of discretion existed, or the chancellor was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. While this Court may have found differently if we were the trier of fact, we will not reverse such findings if there was substantial evidence supporting the chancellor.

¶ 21. After careful review of the record, we find substantial evidence existed to deny Ms. Bratcher’s petition to modify visitation and that no abuse of discretion existed on the part of the chancellor. This Court affirms the chancellor’s order.

¶ 22. THE JUDGMENT OF THE CHANCERY COURT OF PANOLA COUNTY IS AFFIRMED. COSTS ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND CHANDLER, JJ., CONCUR.


author: THOMAS, J.,

text:
    Barry R. ARTZ, Appellant, v. Shannon C. ARTZ, Appellee.
    No. 2002-CA-00199-COA.
    Court of Appeals of Mississippi.
    June 24, 2003.

      P. Nelson Smith, attorney for appellant.
    Carrie A. Jourdan, Columbus, attorney for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the court.

¶ 1. Barry Artz and Shannon Artz received a final order granting a divorce in the Chancery Court of Lowndes County. The parties agreed to the divorce on the grounds of irreconcilable differences. In the final order the chancellor ordered a property distribution in which Shannon received monies which Barry claim were non-marital assets. Aggrieved he asserts the following:

I. IT WAS ERROR FOR THE TRIAL COURT TO AWARD SHANNON ARTZ $33,000 OUT OF THE $100,000 WHICH WAS NON MARITAL PROPERTY OF BARRY ARTZ.

FACTS

¶ 2. Shannon Artz and Barry Artz separated in June of 2000. Subsequently, both parties filed for divorce on the grounds of irreconcilable differences. They submitted the issues of custody of the child, child support, and property distribution to the court. The chancellor issued an opinion on May 23, 2001, which is the basis for this appeal.

¶3. The chancellor determined some cash assets to be marital property and distributed these assets accordingly. The assets in question derived from a gift from Barry’s grandmother and aunt which was deposited into a joint account from which marital expenses were paid. At trial Barry stated that he was free to use the money for what he chose.

I. WAS IT ERROR FOR THE TRIAL COURT TO AWARD SHANNON ARTZ $83,000 OUT OF THE $100,000 WHICH WAS NON-MARITAL PROPERTY OF BARRY ARTZ?

¶ 4. Barry asserts that the money, given to him as a gift from his grandmother and aunt, should have been classified as separate property. He asserts this even though the funds were placed in a joint account used for marital expenses.

¶ 5. This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Turpin v. Turpin, 699 So.2d 560, 564 (Miss.1997). In a determination of the division of marital property, both spouses’ contributions during the marriage should be thoroughly evaluated by the chancellor. Chamblee v. Chamblee, 637 So.2d 850, 865 (Miss.1994). In order to divide the marital assets, the chancery court must first determine which assets are marital and which assets are non-marital. Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994). Marital property is “any and all property acquired or accumulated during the marriage.” Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). “Assets acquired or accumulated during the course of the marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Id. at 914. The Mississippi Supreme Court has held that when non-marital property is commingled with marital property the property can lose its characterization as such and become marital property subject to equitable distribution unless there is evidence of an agreement to the contrary. See Heigle v. Heigle, 654 So.2d 895, 897 (Miss.1995); Johnson v. Johnson, 650 So.2d 1281, 1286 (Miss.1994). Thompson v. Thompson, 815 So.2d 466, 470(¶ 15) (Miss.Ct.App.2002).

¶ 6. The funds given to Barry may have been intended to be separate but they were deposited in the joint account and used for marital purposes, thus converting non-marital to marital property. Traxler v. Traxler, 730 So.2d 1098, 1103(¶25) (Miss.1998); Johnson, 650 So.2d at 1286 (Miss.1994). The determination by the chancellor was within that court’s sound discretion and the correct legal standard was applied. This issue is without merit.

¶ 7. THE JUDGMENT OF THE LOWNDES COUNTY CHANCERY COURT IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. ALL COSTS OF THIS APPEAL ARE ASSESSED AGAINST THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, MYERS, CHANDLER and GRIFFIS, JJ., concur. IRVING, J., dissents without separate written opinion.


text:
    Shannon V. GARDNER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00327-COA.
    Court of Appeals of Mississippi.
    June 24, 2003.
    Shannon Y. Gardner, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MCMILLIN, C.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the court.

¶ 1. Shannon Gardner pled guilty to escape and burglary and was sentenced to nine years in prison to run consecutively to his previous sentence for burglary. Aggrieved, he asserts the following issues:

I. THE CIRCUIT COURT’S DISMISSAL IS A DENIAL OF JUSTICE AND VIOLATES THE RIGHTS OF PETITIONER.

II. PETITIONER RECEIVED AN UNCONSTITUTIONAL SENTENCE.

III. PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

IV. PETITIONER IS FULLY ENTITLED TO THIS APPEAL REGARDLESS OF TIME LIMITATIONS DUE TO CONSTITUTIONAL GROUNDS ASSERTED.

Finding no error, we affirm.

FACTS

¶ 2. Shannon Gardner pled guilty to burglary and was serving a five year sentence in the Neshoba County Jail. Gardner signed a voluntary waiver and consent for work assignment and was assigned to a road crew. On June 11, 1996, Gardner fled from the road crew. During his escape he burglarized a dwelling to obtain clothes and a firearm. On June 12, 1996, Gardner was apprehended by authorities and placed back in custody.

¶ 3. On July 11, 1996, Gardner pled guilty to one count of burglary and one count of felony escape. He was sentenced to serve six years for the burglary and three years for the escape, for a total of nine years in the custody of the Mississippi Department of Corrections. Gardner subsequently filed a motion for post-conviction relief on November 21, 20'01.

ANALYSIS

¶ 4. “When reviewing a lower court’s decision to deny a petition for post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised, the applicable standard of review is de novo.” Graves v. State, 822 So.2d 1089, 1090(¶ 4) (Miss.Ct.App.2002) (citing Pickett v. State, 751 So.2d 1031, 1032(¶8) (Miss.1999); Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999)).

¶5. Gardner asserts a number of issues in this appeal. All are time barred and procedurally barred according to Miss. Code Ann. § 99-39-5(2) (Supp.2002), which allows a three year window in which to file an appeal. Gardner’s motion for post-conviction relief was filed well beyond the three year limitations period, and there are no exceptions which would extend this period. Miss.Code Ann. § 99-39-5(2) (Supp.2002). Petitioner’s pro se status and ignorance of the law alone are wholly insufficient to establish cause. Culberson v. State, 612 So.2d 342, 346-47 (Miss.1992).

¶ 6. If the appellant did not present to the trial court the proposition that his sentence was unconstitutional, he may not assert that allegation on appeal, and it is procedurally barred. Reed v. State, 536 So.2d 1336, 1339 (Miss.1988); Ivory v. State, 840 So.2d 755, 758-759 (¶ 9) (Miss.App.2003). Without waiving this procedural bar, we address Gardner’s claim that he received an unconstitutional sentence.

¶ 7. Gardner asserts that his sentence is unconstitutional and cites Miss. Code Ann. § 97-9^19 as his authority. The statute limits the sentence a prisoner can receive to six months added to the sentence for which he/she is already serving. Gardner contends that his sentence of three years was well over the allowed sentence of the statute. Gardner fails to note that he pled guilty to Miss.Code Ann. § 97-9-45, which refers to prisoners sentenced to the Mississippi Department of Corrections and allows a maximum sentence of five years. Under this statute, Gardner’s sentence is well within the prescribed court discretion. Although Gardner was in custody and working for Nesho-ba County at the time of his escape, his original sentence of burglary requires imprisonment in the “Penitentiary.” Miss. Code Ann. § 97-17-23 (Supp.2002). “Whenever the term ‘penitentiary’ or ‘state penitentiary’ appears in the laws of the State of Mississippi, it shall mean any facility under the jurisdiction of the Department of Corrections.” Miss.Code Ann. § 47-5-3 (Supp.2002). “Commitment to any institution or facility within the jurisdiction of the department shall be to the department, not to a particular institution or facility.” Miss.Code Ann. § 47-5-110 (Rev.2002). Work programs are authorized by Miss.Code Ann. § 47-5^451 (Rev.2002) for state inmates in custody of a county. The Mississippi Department of Corrections recommends rules and regulations concerning the participation of state inmates in the program. Miss.Code Ann. § 47-5-451 (Rev.2002).

¶ 8. Miss.Code Ann. § 97-9-45 states:

Any convict who is entrusted to leave the boundaries of confinement by authorities of the Mississippi Department of Corrections or by the governor, and who wilfully fails to return within the stipulated time, or after the accomplishment of the purpose for which he was entrusted to leave, shall be considered an escapee and subject to prosecution under this section.

Miss.Code Ann. § 97-9-45 (Rev.2002). Gardner was properly charged under § 97-9-45 and entered a plea of guilty. The sentence he received is well within the maximum prescribed by the statute.

¶ 9. THE JUDGMENT OP THE CIRCUIT COURT OF NESHOBA COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.