author: | .PEATROSS, J.

text:
    STATE of Louisiana, Appellee, v. Billy Oscar MANDOSIA, Appellant.
    No. 36,827-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.

      Louisiana Appellate Project, by J. Wilson Rambo, Paula Corley Marx, Lafayette, for Appellant.
    Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Donna Hall, J. Thomas Butler, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, PEATROSS & MOORE, JJ.
   | .PEATROSS, J.

Defendant, Billy Oscar Mandosia, was charged with two counts of aggravated assault of a peace officer, in violation of La. R.S. 14:37.2. Defendant was tried by a jury and convicted as charged. Subsequently, the State filed an habitual offender bill of information charging Defendant as a second felony offender. The trial court found Defendant to be a second felony habitual offender and sentenced him to ten years at hard labor without the benefit of probation, parole or suspension of sentence. The trial court ordered this sentence to run concurrent with any other sentence Defendant is required to serve. Defendant now appeals his conviction and sentence. For the reasons stated herein, we affirm the conviction of Defendant, but we amend his sentence and, as amended, we affirm.

FACTS

On October 30, 2000, Shreveport police officers Thomas McCarthy and Paul Robinson were working an off-duty night job with the Shreveport Housing Authority (“Housing Authority”) at Wilkinson Terrace Apartments. During the course of the officers’ shift at the Housing Authority, the emergency equipment in their patrol car blew a fuse. The two officers took the car back to the police station and exchanged it for a different patrol car. On the way back to the Housing Authority, the officers tested the lights and sirens on the replacement patrol car to make sure the equipment was working properly; and, at that same time, both officers simultaneously noticed two males traveling on bicycles headed east on Texas Street. The officers observed that the two males increased their speed once the lights and sirens were activated on the patrol car.

| ¡.Immediately after the officers observed the two males on bicycles, a vehicle came screeching into the middle of the intersection on Texas Street. A male, later identified as John Hardwick (“Hardwick”), jumped out of the vehicle and informed the officers that two assailants riding bicycles and wearing Halloween masks had just robbed him at the Hibernia Bank ATM machine at the intersection of Line Avenue and Jordan Street. Hardwick had followed the assailants as they rode their bicycles from Jordan Street to Texas Street.

Officers McCarthy and Robinson immediately began to pursue the two males on bicycles. As the officers approached the two males, they observed that one of them, later identified as Defendant, was pointing a silver object at them. Believing that this object was a gun and concerned about the imminent possibility of being shot, Officer McCarthy instructed Officer Robinson, who was driving, to run Defendant over with the patrol car. Officer Robinson then struck Defendant with the patrol car, running over him and his bicycle. The officers got out of the patrol car to apprehend Defendant, but he had already gotten up and had started running away from the scene. Defendant was ultimately apprehended and a .357 six-shot blue metallic revolver was also recovered.

A jury trial commenced on September 10, 2001. After the prosecutor’s opening statement, Defendant’s attorney moved for a mistrial, arguing that the prosecutor had referred to the allegation of Defendant as a suspect in the armed robbery of Hard-wick and that, since this allegation is | ¡¡inadmissible as evidence of other crimes under La. C.E. art. 404(B), the statement was prejudicial to Defendant. The trial judge denied Defendant’s motion for a mistrial, finding that the State did not make reference to Defendant’s committing the armed robbery, but only referred to Defendant as a person later identified as one of the individuals riding a bicycle. The trial resumed; and, on September 11, 2001, the jury found Defendant guilty as charged.

Since Defendant had a previous conviction for attempted manslaughter and was on parole at the time of the incident on October 30, 2000, the State filed an habitual offender bill of information charging Defendant as a second felony offender. The trial judge found Defendant to be a second felony habitual offender and sentencing was scheduled for January 24, 2002. On January 17, 2002, Defendant filed a motion for new trial, claiming that new evidence had been discovered since the trial which probably would have changed the verdict against him. This motion was subsequently denied by the trial judge who found that Defendant did not state in his motion with any degree of specificity the alleged new evidence and that Defendant’s motion consisted of only “conelusory allegations.”

At the sentencing hearing, Defendant moved for a post-verdict judgment of acquittal, arguing that the State failed to prove its case against Defendant beyond a reasonable doubt. The trial judge denied Defendant’s motion, finding that the jury was justified in the verdict it returned and that there was sufficient evidence to support the conviction. After sentencing, Defendant filed two separate motions to reconsider his sentence, asserting 14that the sentence was excessive in that the trial judge failed to consider certain mitigating factors in the case, such as the lack of premeditation; that Defendant was under the influence of significant mental or emotional distress; and that there were no physical injuries to the police officers. Both motions to reconsider the sentence were denied by the trial judge. This appeal ensued.

On appeal, Defendant raises the following assignments of error (verbatim):

1. The Honorable Trial Court erred in denying Appellant’s Motion for Mistrial;
2. The Honorable Trial Court erred in imposing upon Appellant an excessive sentence;
3. The Honorable Trial Court erred in denying Appellant’s Motion to Reconsider Sentence;
4. The Honorable Trial Court failed to adequately comply with the requirements of L.S.A.-C.Cr.P. Art. 894.1 in fashioning Appellant’s punishment by failing to adequately state for the Record those factors considered in sentencing, the factual basis for those factors considered, and by failing to give adequate consideration and appropriate weight to the presence of certain mitigating circumstances in Appellant’s case; and
5. The Trial Court erred in denying Appellant parole eligibility in the imposition of the ten year hard labor sentence imposed in this case.

DISCUSSION

Motion for Mistrial

Defendant’s motion for a mistrial is based on the prosecution’s opening statement. Defendant contends that the prosecutor, in her .opening statement, referred to Defendant as a robbery suspect. During opening statements, the prosecutor stated,

... they [the police officers] observed two black males on bicycles ride past them on Texas Street. And when they did the [Requipment test [on their patrol car], those two males sped up on those bicycles. Seconds later, the officers received reason to believe that these males were suspects of a robbery, and then they started a pursuit of the suspects on the bicycles.

Defendant argues that a mistrial is warranted under La.C.Cr.P. art. 770 “when certain remarks are considered so prejudicial and potentially damaging to a defendant’s rights that even a jury admonition cannot provide a cure.” He also asserts that La.C.Cr.P. art. 770 mandates a mistrial when a remark or comment is made within the jury’s hearing by the prosecutor during argument and refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.

Defendant further argues that the prosecutor’s statement was not admissible as “other crimes evidence” and that, if the court found that the statement fell under one of the exceptions of admissibility of “other crimes evidence,” the State failed to give the required notice of its intention to use “other crimes evidence in its argument.” La. C.E. art. 404(B); State v. Prieur, 277 So.2d 126 (La.1973). Finally, citing State v. Allen, 26,547 (La.App.2d Cir.12/7/94), 647 So.2d 428, writ denied, 95-0048 (La.5/19/95), 654 So.2d 1352, Defendant contends that a pretrial hearing must be held, at which time the State is required to show that the evidence serves the actual purpose for which it is offered and to prove by clear and convincing evidence that Defendant committed the robbery of Hardwick. We are not persuaded by Defendant’s arguments.

The determination of whether to grant a mistrial rests within the sound discretion of the trial judge, and a denial of a motion for mistrial will [finot be disturbed on appeal absent abuse of that discretion. State v. Hopkins, 626 So.2d 820 (La.App. 2d Cir.1993). In State v. Hopkins, a panel of this court held that a mistrial is a drastic measure which should be ordered only where prejudice suffered by the defendant has deprived him of any reasonable expectation of a fair trial.

La.C.Cr.P. art. 770(2) mandates a mistrial if the district attorney refers to “[a]nother crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.... ” There are exceptions, however, to the prohibition of reference to other crimes. Evidence of other crimes, wrongs or acts is admissible when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. C.E. art. 404(B)(1). This category of evidence is formerly known as the “res gestae,” which is evidence that is admissible because it is so related and intertwined with the charged offense that the State could not have accurately presented its case without reference to it. State v. Brewington, 601 So.2d 656 (La.1992); State v. McKnight, 539 So.2d 952 (La.App. 2d Cir.1989), writ denied, 548 So.2d 322 (La.1989), citing State v. Willis, 510 So.2d 411 (La.App. 2d Cir.1987), unit denied, 534 So.2d 440 (La.1988). This doctrine encompasses “not only spontaneous utterances and declarations made before and after commission of the crime but also testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission of the crime if the continuous chain of events is evident under |7the circumstances.” State v. Molinario, 383 So.2d 345 (La.1980), cert. denied, 449 U.S. 882, 101 S.Ct. 232, 66 L.Ed.2d 106 (1980).

There must be a close connexity between the charged and uncharged conduct to insure that “the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving the immediate context of happenings near in time and place.” State v. Colomb, 98-2813 (La.10/1/99), 747 So.2d 1074, citing State v. Haarala, 398 So.2d 1093 (La.1981). The test of integral act evidence is not simply whether the State might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive its case of narrative momentum and cohesiveness, with power not only to support conclusions, but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. State v. Colomb, supra, quoting from Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). See also State v. Constantine, 364 So.2d 1011 (La.1978); State v. Lincoln, 34,770 (La.App.2d Cir.6/22/01), 794 So.2d 56.

The notice requirements of State v. Prieur, supra, are “not applicable to the evidence of offenses which constitutes an integral part of the act or transaction which is the subject at bar.” State v. Salter, 31,633 (La.App.2d Cir.2/24/99), 733 So.2d 58, writ denied, 99-0990 (La.9/24/99), 747 So.2d 1114. In the instant case, the prosecutor’s statement objected to by Defendant simply sets forth the facts surrounding the occurrence of the | ^charged crime of aggravated assault of a peace officer. The statement was part of the “narrative momentum and cohesiveness” which falls into the exception of admission of “other crimes evidence.” Further, since the exception to La. C.E. art. 404(B)(1) was not an issue in State v. Allen, supra, the holding in State v. Allen, supra, does not apply to the case sub judice, and, thus, the statement here is admissible without having to have a pretrial hearing concerning its admissibility.

During her opening statement, the prosecutor narrated the events of October 30, 2000, and she explained the facts surrounding the charge for which Defendant was being tried. The prosecutor’s reference to Defendant as a robbery suspect is admissible because it is intertwined with the charged offense to such an extent that she could not accurately present her case without the reference. The prosecutor’s statement was an integral part of the narration of events that occurred on October 30, 2000, and it made a complete fact pattern for the jurors, in particular showing them that the police officers had a reason for pursuing the two males on bicycles. Furthermore, the statement made during the prosecutor’s opening statement was not prejudicial to Defendant. This assignment of error is without merit.

Sentence

Defendant’s second, third and fourth assignments of error concerning the issue of his sentence are combined in one argument. Defendant argues that the ten-year sentence imposed on him is excessive. He further contends |flthat the trial judge did not refer to any factors which particularly justify the imposition on him of the maximum sentence. He argues that Louisiana jurisprudence requires a sentence to be vacated and the case remanded for resentencing when the record does not demonstrate adequate compliance with La. C.Cr.P. art. 894.1. He asserts that the record contains an insufficient factual basis or explanation of the sentencing choice of ten years as opposed to a lesser period of incarceration. We find that Defendant’s sentence is not excessive and that the trial judge correctly examined the factors he was required to examine under La.C.Cr.P. art. 894.1.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La.C.Cr.P. art. 894.1. It is the goal of La.C.Cr.P. art. 894.1 to provide a factual basis for the sentence imposed, thus providing a record that will allow for a reasoned review of the sentence. State v. Landos, 419 So.2d 475 (La.1982). The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Scott, 36,763 (La.App.2d Cir.1/29/03), 836 So.2d 1180.

|inThe second prong used to determine if a defendant’s sentence is excessive is to examine whether the sentence imposed is too severe depending on the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864; State v. Richardson, 545 So.2d 714 (La.App. 2d Cir.1989).

A trial court has broad discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of discretion, the reviewing court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Washington, 29,478 (La.App.2d Cir.4/2/97), 691 So.2d 345; State v. Square, 433 So.2d 104 (La.1983). If the record supports the sentence imposed, the appellate court shall not set aside a sentence for excessiveness. State v. Shipp, 30,562 (La.App.2d Cir.4/8/98), 712 So.2d 230, writ denied, 98-1199 (La.9/25/98), 724 So.2d 775. Among the factors to be considered in determining a defendant’s sentence are the defendant’s criminal history [State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980); State v. Jacobs, 493 So.2d 766 (La.App.2d Cir.1986)]; the gravity or dangerousness of the offense [State v. Adams, 493 So.2d 835 (La.App. 2d Cir.1986), writ denied, 496 So.2d 355 (La.1986)]; the viciousness of the crimes [State v. Clark, 499 So.2d 332 (La.App. 4th Cir.1986)]; whether the defendant constitutes an unusual risk of danger to the public [State v. Jett, 419 So.2d 844 (La.1982)]; and defendant’s apparent disregard for the property of others [State v. Parker, 503 So.2d 643 (La.App. 4th Cir.1987)].

Our review of the record in the case sub judice shows an adequate factual basis for the sentence imposed on Defendant. The trial judge only needs to take cognizance of the criteria set forth in La.C.Cr.P. art. 894.1 and the record supports that consideration in the instant case. With the enhanced sentencing from the habitual offender statute, Defendant’s sentence range was two and one half years to ten years, without the benefit of probation or suspension of sentence. Aggravating circumstances exist in this case, including flight from police officers, pointing a firearm at police officers and the commission of this crime while on parole for a conviction of attempted manslaughter, a violent crime, On this record, we do not find | ^constitutional - error. Considering the criminal background of Defendant and the factual circumstances surrounding the commission of the offense, we cannot say that the trial judge abused his discretion in imposing the maximum sentence here, which, under the facts and circumstances of this case, is not constitutionally excessive. The sentence imposed is lawful and neither grossly disproportionate to the severity of the offenses, nor shocking to our sense of justice. The trial judge sentenced Defendant lawfully to ten years at hard labor and Defendant’s second, third and fourth assignments of error have no merit.

Parole Eligibility

Defendant’s final assignment of error concerns his parole eligibility, or lack thereof, under the sentence as imposed. The trial judge sentenced Defendant to serve ten years at hard labor without benefit of probation, parole or suspension of sentence. Defendant argues that the denial of parole eligibility is an error patent and that the sentence imposed on him is illegal in that regard. The State has addressed this argument in its brief, agreeing that:

Neither La. R.S.14:37.2 nor La. R.S. 15:529.1 require the imposition of sentence without benefit of parole. The habitual offender law only requires the imposition of sentence without the benefit of probation or suspension of sentence. Additionally, it appears that this defendant could, at some point in his sentence, be eligible for parole consideration under La. R.S. 15:574.4. Accordingly, the only amendment of this defendant’s sentence that is required, is the removal of that portion of the sentence denying the defendant parole eligibility.

An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence can be considered |13on appeal. La.C.Cr.P. art. 920(2). An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La.C.Cr.P. art. 882. A sentence may be reviewed as to its legality on the application of the defendant or of the state in an appealable case by appeal. Id.

At the time of the commission of the offense, La. R.S. 14:37.2(0) provided, in pertinent part, that:

Whoever commits an aggravated assault with a firearm shall be fined not more than five thousand dollars or imprisoned for not more than five years, with or without hard labor.

Since Defendant was charged as a second felony habitual offender, however, La. R.S. 15:529.1(A)(2)(a) and (G) also apply in the instant case. La. R.S. 15:529.1(A)(2)(a) and (G) provide, in pertinent part, that:

(a) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction;
(G) Any sentence imposed under the provisions of this Section shall be without the benefit of probation or suspension of sentence. (Emphasis Added.)

Defendant’s sentence was illegal in regard to the denial of parole eligibility. As previously mentioned, under La.C.Cr.P. art. 882, this court has the authority to amend the erroneous sentence, making all necessary corrections to make the sentence legal. Defendant’s sentence, therefore, should be amended to delete that portion which denies him eligibility for parole.

^CONCLUSION

For the foregoing reasons, the conviction of Defendant Billy Oscar Mandosia is affirmed. The sentence of Defendant is amended to comply with Louisiana Revised Statutes 14:37.2(0 and 15:529.1(A)(2)(a) and (G) by removing the trial judge’s denial of parole eligibility from Defendant’s sentence. Defendant’s sentence is now ten years at hard labor without the benefit of probation or suspension of sentence. As amended, the sentence of Defendant Billy Oscar Mandosia is affirmed.

AMENDED, AND, AS AMENDED, AFFIRMED.

      . The second bicyclist also began running, and he was never apprehended.

      . Defendant did not argue or brief his third assignment of error concerning the denial of his motion to reconsider sentence, but we will consider this assignment of error as part of Defendant's argument of excessive sentence.

      . The trial court specifically stated that,
      The defendant was found guilty of aggravated assault on a peace officer with a firearm. The facts indicate that the defendant during the course of being pursued by the police took out a weapon and pointed it at him, at a peace officer or police officer. This defendant having a prior conviction for attempted manslaughter, he was on parole at that time for a very violent offense. This Court, after hearing the facts and considering the defendant’s criminal history, believes that the maximum penalty should be imposed.


source: Caselaw Access Project

author: 11 DREW, J. | † STEWART, J.,

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Fredrick SANDERS aka Jerome Williams, Appellant.
    No. 36,941-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2003.

      Charles L. Kincade, Monroe, for Appellant.
    Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Geary Stephen Aycock, Assistant District Attorney, for Appellee.
    Before STEWART, PEATROSS and DREW, JJ.
   11 DREW, J.

A petit jury (10-2) convicted Fredrick Sanders (aka Jerome Williams) of possession of marijuana with intent to distribute, La. R.S. 40:967. The trial court imposed a sentence of eight years at hard labor, to be served consecutively with another sentence, granting the mandatory credit for time served. Sanders appeals his conviction and sentence. We affirm.

FACTS

On September 2, 2001, at approximately 5:10 a.m., Sterlington Police Officer Jason Smalling observed a vehicle speeding and swerving across the center line and fog line of U.S. Hwy. 165 South in Ouachita Parish. The officer made a traffic stop of the car, driven by Dedrick Sanders aka Tyrone Williams (“Dedrick/Tyrone”). At the time of the stop, Dedrick/Tyrone’s twin brother, Frederick Sanders aka Jerome Williams (“Frederick/Jerome”), was a guest passenger in the front seat.

Officer Smalling asked the driver for his license. Dedrick/Tyrone replied that he did not have a valid driver’s license. He gave his name as “Tyrone Williams.” Officer Smalling noticed that the driver exhibited slurred speech and was clearly impaired. There was an open fifth of Hennessy Cognac in one cup holder in the passenger compartment. The officer also noticed a strong odor associated with marijuana. Dedrick/ Tyrone was arrested for DWI under the name “Tyrone

Williams.” While frisking Dedrick/Tyr-one> 0fficer Smalling noticed that a large clear Plastic ba& containing six individually-wrapped bags of marijuana, fell from JgPedrick/Tyrone’s left pant leg. The officer a*so ^ a lender object inside Dedrick/Tyrone’s left front pocket, result-in Smalling s seizure of $610 cash as wel1 as three sbells- the officer Squired as to his employment, De-drick/Tyrone first replied, “No,” then stated that he cut hair. Officer Smalling put the driver into the back of his patrol car, as per agency policy and his practice.

Officer Smalling then requested that Fredrick/Jerome exit the vehicle. In checking for weapons, the defendant was handcuffed for the officer’s safety.

Ouachita Deputy Curtis Dewey and Sterlington Assistant Chief James Laing joined Officer Smalling at the scene. As Smalling was retrieving the open container of cognac from the vehicle, he found a partially-smoked marijuana cigarette in a-cup holder. Both Dedrick/Tyrone and Fredrick/Jerome denied knowledge of the marijuana cigarette. Officer Smalling then placed this defendant, Fredrick/Jerome, under arrest for possession of marijuana. The officer’s actions were confirmed at trial by Assistant Chief Laing. During vehicular inventory, Smalling found a loaded .32 caliber semiautomatic Berretta pistol in plain view on the passenger-side floorboard, directly in front of where Fredrick/Jerome had been seated. |s Again, both defendants denied any knowledge of the firearm. As the officer was placing Frederick/Jerome into the back of his patrol car, Smalling observed two individually-wrapped bags of marijuana fall from the defendant’s left pant leg.

After booking both the defendant and his twin brother under the names of “Jerome Williams” and “Tyrone Williams,” respectively, Officer Smalling later learned their true identities — Fredrick Sanders and Dedrick Sanders.

Dedrick/Tyrone, the driver, pled guilty to possession of marijuana with intent to distribute and was sentenced to five years at hard labor, suspended, and placed on five years supervised probation.

After a jury trial, this defendant, Fredrick Sanders, was found guilty as charged of the same crime, possession of marijuana with intent to distribute. This defendant being a prior felon, the trial court sentenced him to eight years at hard labor, to be served consecutively with any other incarceration time.

DISCUSSION

The defendant argues that no rational trier of fact could have found the defendant guilty of possession of marijuana with intent to distribute, in that:

• the amount of marijuana actually on Fredrick/Dedrick’s person is an amount consistent with personal consumption;
• the jury may have been improperly persuaded to convict the defendant based on the large amount of money and the additional drugs found on the defendant’s brother;
1the jury may have been improperly persuaded to convict the defendant based on the loaded gun found in the vehicle; and
• the only connection between this defendant with the gun, money, and larger amount of drugs is “physical proximity.

The defendant concedes that sufficient evidence existed to find him guilty of simple possession, a misdemeanor.

The state counters that the direct and circumstantial evidence presented at trial clearly supports the defendant’s conviction of possession of marijuana with intent to distribute, in that:

• the jury’s verdict should be given great deference and all evidence should be examined in the light most favorable to the prosecution;
• Sanders wasn’t hitchhiking with a stranger at 12:00 noon — he was cruising with his apparently unemployed (except for dealing dope) twin brother at 5:10 a.m., certainly not a “normal” time to drive around;
• within the passenger compartment of the jointly-occupied vehicle were:
• eight individually-wrapped bags of marijuana (six and two bags, respectively, each bag being packaged exactly the same and each bag being hidden by the twin brothers, in a similar manner),
• a loaded .32 caliber semiautomatic pistol, on the passenger floorboard, chambered and ready for use (noting the routine connexity between drugs and guns ), and
• $610 cash, later found to be laced with marijuana, showing a connexity between this $610 cash cache and the drug trade; • a partially-smoked marijuana cigarette was in plain view between the brothers;
|R» Officer Smalling and Assistant Chief Laing, both experienced law enforcement officers, testified, without contradiction, that in their opinion the eight individually-wrapped bags were packaged in a manner customarily associated with distribution;
• each brother lied to the officer, providing similar abases, further proving their actions were in concert; and
• this defendant’s twin brother pled guilty to the same crime for which this defendant was convicted at jury trial, weakening any theory that these two people might have just been out before dawn smoking weed together.

Applicable Law

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132. This standard, now legislatively embodied in La. C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or re-weigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appebate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

To support a conviction for possession with intent to distribute, the state must prove: (1) possession of the controlled dangerous substance; and (2) intent to distribute it. La. R.S. 40:967(A)(1); State v. Thomas, 32,495 (La.App.2d Cir.10/27/99), 745 So.2d 776, writs denied, 00-1008 (La.11/27/00), 775 So.2d 445, and 00-0242 (La.12/08/00), 775 So.2d 1076.

[./These elements were apparently proven to the jury, the members of which examined the evidence, and observed the only four witnesses presented, all from the state.

Testimony of street value 'and dosage of the drug is also relevant to the issue of intent. State v. Tornabene, 337 So.2d 214 (La.1976); State v. Gladney, 29,791 (La.App.2d Cir.9/24/97), 700 So.2d 575.

Mere possession of marijuana is not evidence of intent to distribute unless the quantity is so large that no other inference is reasonable. State v. Greenway, 422 So.2d 1146 (La.1982).

Application of Law to Facts

This case is largely based upon circumstantial evidence. Factors useful in determining whether circumstantial evidence is sufficient to prove an intent to distribute a controlled dangerous substance include:

(1) whether the defendant ever distributed or attempted to distribute any marijuana;
(2) whether there was marijuana in a form usually associated with marijuana possessed for distribution to others;
(3) whether the amount was such as to create a presumption of an intent to distribute;
(4) expert or other testimony that such an amount as found in the defendant’s possession is inconsistent with personal use only; and
(5) evidence of any paraphernalia, such as Baggies or scales, evidencing an intent to distribute.

State v. Coleman, 552 So.2d 513 (La.App. 2d Cir.1989), citing, State v. House, 325 So.2d 222 (La.1975). The facts proven at trial definitely apply to factors two, four and five.

IsThere were only four witnesses in this two-day trial:

• Officer Smalling, who made the stop and the arrests;
• Assistant Chief Laing, who arrived at the scene later to assist the officer;
• the crime lab chemist, who testified that all eight bags contained marijuana; and
• the canine officer, whose drug detection dog alerted on a bag (one of five) which contained the money, signifying a connexity between the money and marijuana.

Both Officer Smalling and Chief Laing testified that the marijuana seized in this case was in a form usually, but not always, associated with distribution. Defendant argues in brief, incorrectly, that Smalling testified on cross that the two small bags Frederick/Jerome was hiding in the leg of his pants was consistent with personal consumption. His reference was actually to Chief Laing, whose testimony on cross was that Exhibit 6, the partially-burnt marijuana cigarette, was consistent with personal consumption.

The record admittedly instructs us poorly as to the actual amount of drugs involved here. No one testified about the weight of the drugs, just that the packages were “small.” Although conceding that he didn’t keep up with street values, Assistant Chief Laing opined that the approximate street value of the amount of one of the bags of marijuana confiscated from the defendant and his brother would be $20 to $25. Therefore, a combined amount of about $160 to $200 worth of grass was hidden down the pant legs of the two brothers. Another way to look at it is that the $610 residuejbearing9 cash could have represented the illicit fruits of the sale of 20 to 25 bags of weed.

The record indicates that all of the pot was packaged in Baggies, a product ubiquitous to the drug trade. Also, a loaded and chambered firearm was found in plain view on the passenger floor, directly between where a normal guest-passenger’s feet would be placed. Hopefully, this is not ever considered normal in this country.

Certainly a jury could have concluded beyond a reasonable doubt that the defendant intended to distribute the marijuana which he possessed, either directly or as a principal. La.R.S. 14:24.

Viewing the totality of evidence in the light most favorable to the prosecution, all the elements of the crime of possession of marijuana with intent to distribute are present here.

SENTENCING

The eight-year hard labor sentence for this second felony offender is well within the trial court’s sentencing discretion. Sanders faced a maximum exposure of thirty years at hard labor.

Applicable Law

The defendant’s motion to reconsider sentence merely alleged that the sentence was excessive. Under State v. Mims, 619 So.2d 1059 (La.1993), his appeal is therefore limited to the bare claim of excessiveness. Constitutional review turns on whether the sentence is illegal, grossly disproportionate to the severity of |inthe offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992). State v. Barber, 34,832 (La.App.2d Cir.6/20/2001), 793 So.2d 251.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show adequate consideration of the criteria set forth in La.C.Cr.P. art. 894.1. State v. Smith, 433 So.2d 688 (La.1983). Remand is unnecessary when a sufficient factual basis for the sentence is shown. State v. Lanclos, 419 So.2d 475 (La.1982).

The second inquiry requires an examination of the circumstances of the case and the background of the defendant. A sentence is constitutionally excessive if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Richardson, 545 So.2d 714 (La.App. 2d Cir.1989); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864. A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, the reviewing court will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983).

Application of Law to Facts

This record indicates that the trial court ordered a PSI (pre-sentence investigation) report and had an in-depth discussion with the defendant regarding past criminal history. The trial court elicited a factual account Infrom the defendant, relative to circumstances of a previous conviction to a charge of accessory after the fact to armed robbery. The trial court also asked the defendant about three previous charges of battery of a police officer, two charges of disturbing the peace, and a charge of resisting an officer by flight. The court went on to discuss the defendant’s personal background, including his age, family, education and work history, noting that the defendant:

• was 24 years old at sentencing;
• was on parole when he committed this offense;
• had never held a steady job (raising the question of how he supported himself);
• had never supported his dependents; and
• was riding in a vehicle sporting a fresh bullet hole.

The record supports that the trial court gave adequate consideration to the La. C.Cr.P. art. 894.1 guidelines by giving a sufficient factual basis for the sentence.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, the reviewing court will not set aside a sentence as excessive. State v. Square, supra.

The defendant was on parole for the crime of accessory after the fact to armed robbery when he was arrested on this charge. The trial court, after considering the defendant’s criminal history, personal background, and the circumstances regarding the instant case, sentenced him to eight years at hard labor, a sentence reflecting less that 30% of his exposure.

The sentence is just and appropriate for this second felony offender.

| ^DECREE

The defendant’s conviction and sentence are AFFIRMED.

STEWART, J., dissents with written reasons.

| STEWART, J.,

dissents.

I must respectfully dissent. The majority goes to great lengths to ignore both the facts and the law to uphold this conviction for possession of marijuana with intent to distribute. This defendant was found with only two bags of marijuana on his person valued at about $40 or $50. There is no jurisprudence or any reasonable standard that would support any inference that the possession of such a small amount of marijuana alone would rise to any presumption of intent to distribute. In contrast, the other occupant of the car had six bags of marijuana and $610 hidden in his pants legs. It was error for the majority to assign joint possession of the drugs and money to both occupants of the car.

Although the defendant’s brother pled guilty to possession with intent to distribute, that plea in no way attaches constructive possession to the defendant. A person may be in constructive possession of a drug only if it is subject to his dominion and control. Guilty knowledge is an essential element of the crime. The mere presence in an area where drugs are located or the mere association with one possessing drugs does not constitute possession. State v. Toups, 833 So.2d 910 (La.2002); State v. Furgerson, 781 So.2d 1268 (La.App.2d Cir.2001); State v. Harris, 597 So.2d 1105 (La.App. 2d Cir.1992). State v. Dunn, 446 So.2d 829 (La.App. 2d Cir.1984).

The testimony in this case is undisputed that six of the eight bags of marijuana were found concealed in the defendant’s brother’s pants leg. None of the four prosecution witnesses — Officer Smalling, Assistant Chief Laing, the crime lab chemist, or the canine officer — gave testimony that | ^.directly or indirectly proved that the defendant had any dominion or control in this case. In fact, while the defendant’s brother pled guilty, he offered no testimony that implicated the defendant in this crime. Further, there is absolutely no evidence of guilty knowledge by this defendant.

The majority admits that the record is void as to the actual amount of drugs involved in this matter. Additionally, there are no scales, baggies, previous intelligence of sales, or any other indicia of intent to distribute. Moreover, the mere presence of a gun in the car is not an indicia of criminal intent.

The majority also fails to address the fact that where an essential element of the crime is not proven by direct evidence, the rule regarding circumstantial evidence as governed by La.R.S. 15:438 applies, and it states,

The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.

The defendant’s possession of a small amount of marijuana coupled with the presence of a partially smoked joint in the car is highly suggestive that the marijuana in question was for the defendant’s personal use. While this evidence alone supports a conviction of simple possession, it does not support a conviction of possession with intent to distribute. The majority has upheld this conviction simply on the basis of the mere association of this defendant with the codefendant. Consequently, I would reverse and render a verdict for simple possession and remand for resentencing.

      . At any time during the early-morning encounter, assuming a reasonable suspicion of danger, certainly the officer could have frisked either brother for weapons, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). After making an arrest, an officer has the right to much more thoroughly search a defendant and his wing span, or lunge space, for weapons or evidence incident to a (valid) arrest ("SITA"), pursuant to Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). This right to Search Incident To an Arrest has been extended to minor traffic matters, but only if the officer actually makes an arrest. U.S. v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). The scope of this right to a vehicular S.I.T.A. extends to the entire passenger compartment. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

      . One of the realities of today’s commercial drug culture is the presence of weapons. See, State v. Goodwin, 551 So.2d 715 (La.App. 1st Cir.1989).


author: WALLER, J.,

text:
    UNIVERSITY NURSING ASSOCIATES, PLLC and The University of Mississippi Medical Center v. Billie PHILLIPS.
    No. 2001-CA-01375-SCT.
    Supreme Court of Mississippi.
    Feb. 13, 2003.
    Rehearing Denied May 1, 2003.

      Jerrald L. Shivers, M. Curtiss McKee, Jackson, attorneys for appellants.
    Sharon Marie Garner, Mary Marvel Fyke, Jackson, attorneys for appellee.
   WALLER, J.,

for the Court.

¶ 1. This matter involves an appeal from a chancellor’s order denying a motion to compel arbitration and granting an accounting. Finding that the plaintiff has a right to an accounting and that the defendants did not waive their right to arbitrate, we affirm in part; reverse and render in part; and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2. Billie Phillips joined the faculty of the University of Mississippi School of Nursing in November, 1995, and signed an “Employment Contract” with the School of Nursing. In 1998, Anne G. Peirce, the new Dean of the School of Nursing, instituted a policy whereby all employees were required to participate in a faculty practice plan for earning outside income. Phillips was required to sign a separate “Employment Agreement” (“PLLC Employment Agreement”) with University Nursing Associates, PLLC (“the Nursing PLLC”), which addressed the conduct of her duties with the Nursing PLLC. The PLLC Employment Agreement contained an arbitration clause as follows:

16. Arbitration of Disputes: Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction....

The PLLC Employment Agreement is a contract which is separate from her employment contract with the University.

¶ 3. Phillips participated in the Nursing PLLC plan for approximately two years. After her returns from the practice plan were very disproportionate to the amounts she had contributed, she sought an explanation and an accounting from the Dean. The Dean refused to provide an accounting but allowed Phillips an extension of time to renew her PLLC Employment Agreement. Because of her unhappiness with the Nursing PLLC plan, Phillips balked at signing an annual renewal of the PLLC Employment Agreement. She wrote a letter to the Dean of the School of Nursing stating that if she did not receive an accounting she “intendfed] to proceed to file an action requesting an accounting in Chancery Court.” Thereafter, the School of Nursing immediately relieved Phillips of all of her duties, did not offer to renew her contract, and requested Phillips to vacate her office by September 5, 2000.

¶ 4. The University informed Phillips that she had a right to file a grievance concerning its decision. She filed a request to invoke the grievance procedure with the University. According to Phillips, the grievance committee responded that grievances concerning the PLLC Employment Agreement did not fall under the University grievance procedures. The University admitted to informing Phillips that she could file a grievance but denied that it had informed her that the PLLC Employment Agreement did not fall under the University grievance procedures.

¶ 5. On September 15, 2000, Phillips filed a petition for an accounting in the Chancery Court for the First Judicial District of Hinds County, Mississippi. The named respondents were the Nursing PLLC, the University of Mississippi Medical Center and Unacare Health Center. Phillips’ only request for relief was for the respondents “to provide a full and complete accounting of all funds taken in, expended by or otherwise disbursed by the University Nursing Associates, PLLC, or Unacare, relating to wages paid any [University] employees who perform services at the clinic pursuant to a practice plan agreement.” Phillips requested all gross nursing practice receipts, nursing practice business expense deductions and all other related documents such as invoices, receipts, purchase orders, payroll stubs, etc., used in calculating the net earnings of University Nursing Associates, PLLC.

¶6. The University and the Nursing PLLC filed an answer and affirmative defenses on November 9, 2000. In their first affirmative defense, the University and the Nursing PLLC set out that any disputes concerning the agreement were to be settled by arbitration:

1. In paragraph 16 of her employment agreement University Nursing Associates, PLLC, (Exhibit C to the petition), the petition agreed to settle all controversies or claims arising out or relating to the agreement by arbitration.

Phillips filed various discovery requests seeking information consistent with the petition for accounting. The University and the Nursing PLLC filed a response to Phillips’ requests for discovery on December 15, 2000, objecting on the “grounds of relevance and the plaintiffs lack of legal standing to obtain this proprietary information.”

¶ 7. Phillips filed a motion to compel and noticed it for hearing on March 2, 2001. After the chancellor was informed of the arbitration clause, she directed the parties to submit briefs, and after consideration thereof, the chancellor held that the University and the Nursing PLLC did not waive enforcement of the arbitration clause by filing their answer and asserting the arbitration clause as an affirmative defense, but that waiver occurred as a result of the failure of the University and the Nursing PLLC to request arbitration in a timely manner. The petition for accounting was granted. The University and the Nursing PLLC appeal from this order.

DISCUSSION

I. WHETHER PHILLIPS IS ENTITLED TO AN ACCOUNTING.

¶ 8. We have previously defined an accounting as a written financial statement containing all receipts and disbursements:

An accounting is by definition a detailed statement of the debits and credits between parties arising out of a contract or a fiduciary relation. It is a statement in writing of debts and credits or of receipts and payments. Thus an accounting is an act or a system of making up or settling accounts, consisting of a statement of the account with debits and credits arising from the relationship of the parties.

State ex rel. King v. Harvey, 214 So.2d 817, 819 (Miss.1968) (citing Black’s Law Dictionary 34-36 (4th ed.1957)). Also, an accounting implies that one is responsible to another for moneys or other things, either on the score of contract or of some fiduciary relation, of a public or private nature, created by law, or otherwise. 214 So.2d at 819-20; Miller v. Henry, 139 Miss. 651, 103 So. 203 (1925) (quoting Whitwell v. Willard, 42 Mass. (1 Met.) 216).

¶ 9. Although every contractual agreement does not give rise to a fiduciary relationship, in Mississippi, such a relationship may exist under the following circumstances: (1) the activities of the parties go beyond their operating on their own behalf, and the activities for the benefit of both; (2) where the parties have a common interest and profit from the activities of the other; (3) where the parties repose trust in one another; and (4) where one party has dominion or control over the other. Hopewell Enters., Inc. v. Trustmark Nat'l Bank, 680 So.2d 812, 816 (Miss.1996) (quoting Carter Equip. Co. v. John Deere Ind. & Equip. Co., 681 F.2d 386 (5th Cir.1982)).

¶ 10. We find that a fiduciary relationship existed between Phillips, the University and the Nursing PLLC. The un-controverted facts from the face of the pleadings show that Phillips was required by her employment contract to work at a University-operated clinic. According to the employment contract, if Phillips in her capacity as a nurse received earnings from any source other than her salary, she was allowed to keep the first $10,000, and was then required to contribute to the Plan fifty percent of any earnings in excess of $10,000. However, in practice, Phillips was required to contribute all of her nurse-related earnings in excess of $10,000. At the end of the year, she then was given “a return.” In the fiscal year 1998-99, Phillips paid approximately $6,000 to the Plan, meaning that she earned $6,000 from sources other than her regular salary, but only received $767.00, far less than fifty percent, back, without any explanation for the reduction.

¶ 11. This scenario squarely meets the conditions needed for the creation of a fiduciary relationship. (1) The activities of the parties go beyond their operating on their own behalf, and the activities for the benefit of both; and (2) Where the parties have a common interest and profit from the activities of the other. The activities that Phillips was required to perform were to her benefit and that of the University and the Nursing PLLC. She was allowed to keep some of her earnings and was given a return on her contributions. The University and the Nursing PLLC benefit-ted because she was working at a University-sponsored clinic and because Phillips was required to make contributions to the Plan. (3) Where the parties repose trust in one another. The University and the Nursing PLLC did not have to trust Phillips because she was required to perform the activities given her and to contribute her earnings to the Nursing PLLC for its management of her funds. (4) Where one party has dominion or control over the other. The University and the Nursing PLLC definitely exercised dominion and control over Phillips. In fact, when she refused to submit to the Plan’s terms, she was fired.

¶ 12. We have refused to recognize the existence of a fiduciary relationship in cases where the relationship between the two parties was no more than “an arms-length business transaction involving a normal debtor-creditor relationship.” Merchants & Planters Bank of Raymond v. Williamson, 691 So.2d 398, 404 (Miss.1997). The relationship between Phillips, the University and the Nursing PLLC was definitely not an arms-length business transaction. The terms of the contract were non-negotiable. Either Phillips could sign it or leave her employment with the University and the Nursing PLLC.

¶ 13. One of the key elements of a fiduciary relationship is “the fiduciary’s control of the supervised party’s property,” and that “things of value such as land, monies, a business, or other things of value must be possessed or managed by the dominant party.” Arnold v. Erkmann, 934 S.W.2d 621, 629 (Mo.Ct.App.1996). The University and the Nursing PLLC possessed and managed Phillips’ earnings, and she had no say-so in how her earnings were used.

¶ 14. Mississippi chancery courts hold the authority to hear a case for an accounting. Crowe v. Smith, 603 So.2d 301, 307 (Miss.1992); Evans v. Hoye, 101 Miss. 244, 253, 57 So. 805, 806 (1912); see also Miss. Const. art. 6, § 159; Miss.Code Ann. § 9-5-81 (2002). However, the jurisdiction of a court of equity over matters of account rests upon “three grounds, to wit, the need of a discovery, the complicated character of the accounts, and the existence of a fiduciary or trust relation.” Henry v. Donovan, 148 Miss. 278, 114 So. 482, 484 (1927). Therefore, because a fiduciary relationship existed between Phillips, the University, and the Nursing PLLC, and the University and the Nursing PLLC had possession and dominion over Phillips’ earnings and has refused to give Phillips any information about the management of her earnings, the chancellor did not err in concluding that Phillips is entitled to an accounting. See Miller v. Henry, 139 Miss. 651, 103 So. 203 (1925).

II. WHETHER THE UNIVERSITY AND THE NURSING PLLC WAIVED THEIR RIGHT TO ARBITRATION.

¶ 15. The University and the Nursing PLLC contend that accountings are subject to arbitration clauses. The chancellor did not reach this issue because she ruled that the University and the Nursing PLLC (1) did not waive their right to arbitration because of participating in litigation, but, (2) did waive their right to arbitration because of their delay in seeking arbitration. We will now address these rulings.

¶ 16. The grant or denial of a motion to compel arbitration is reviewed de novo. East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (Miss.2002). See also Webb v. Investacorp, Inc., 89 F.3d 252, 256 (5th Cir.1996).

A. WHETHER THE UNIVERSITY AND THE NURSING PLLC ACTIVELY PARTICIPATED IN THE LITIGATION.

¶ 17. A party seeking to invoke arbitration may waive that right if it actively participates in litigation. Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So.2d 908, 914 (Miss.1993) (citing the Federal Arbitration Act which applies to claims arising from interstate commerce); see also Price v. Drexel Burnham Lambert, Inc., 791 F.2d 1156, 1158-59 (5th Cir.1986); Miller Brewing Co. v. Fort Worth Distrib. Co., 781 F.2d 494, 497 (5th Cir.1986). Waiver of arbitration is not a favored finding, and there is a presumption against it; this is particularly true when the party seeking arbitration has included a demand for arbitration in its answer, and the burden of proof then falls even more heavily on the party seeking to prove waiver. Steel Warehouse Co. v. Abalone Shipping Ltd. of Nicosai, 141 F.3d 234, 238 (5th Cir.1998); Miller Brewing, 781 F.2d at 496. We have expressed our intention to uphold arbitration agreements if at all possible under the circumstances. See IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 104 (Miss.1998) (“Articles of agreement to arbitrate ... are to be liberally construed so as to encourage the settlement of disputes and the prevention of litigation, and every reasonable presumption will be indulged in favor of the validity of arbitration agreements.”).

¶ 18. One encyclopedia has opined that serving an answer and filing a motion to dismiss does not constitute a waiver of arbitration by participation in litigation:

Whether participation in an action is a waiver of the right to arbitration depends on whether the participation bespeaks an intention to abandon the right.... It has been held that the service of an answer in an action on the contract does not constitute waiver of the right to arbitration, even though the answer does not set up the arbitration clauses as a defense.... The mere serving of an answer and the making of a motion to dismiss a complaint does not constitute a waiver.

6 C.J.S. Arbitration § 37 (1975).

¶ 19. The Fifth Circuit has held that where the party seeking arbitration has made a timely demand for arbitration at or before the commencement of judicial proceedings in the trial court, the burden of proving waiver falls even more heavily on the shoulders of the party seeking to prove waiver. Tenneco Resins, Inc. v. Davy Int'l AG, 770 F.2d 416, 420 (5th Cir.1985) (quoting Southwest Indus. Imp. & Exp., Inc. v. Wilmod Co., 524 F.2d 468, 470 (5th Cir.1975)); see also General Guar. Ins. Co. v. New Orleans Gen. Agency, Inc., 427 F.2d 924, 929 n. 5 (5th Cir.1970) (“Once the defendant, by answer, has given notice of insisting on arbitration the burden is heavy on the party seeking to prove waiver”).

¶ 20. In a case involving interstate commerce and therefore the Federal Arbitration Act, we have held that a right to arbitrate was waived when the party requesting arbitration had “participated in almost every aspect of litigation” and made “extensive use of various modes of pretrial litigation.” Cox, 619 So.2d at 913 (citing Price v. Drexel Burnham Lambert, Inc., 791 F.2d 1156 (5th Cir.1986) (Right to arbitrate waived by party who had initiated discovery and dispositive motions before demanding arbitration)). In Cox, the party demanding arbitration filed an answer and counterclaim, a motion for summary judgment, argued the motion for summary judgment, requested two continuances, filed an interlocutory appeal, and requested various types of discovery. Cox, 619 So.2d at 914. But see Tenneco Resins, 770 F.2d at 420 (A defendant did not waive arbitration, prior to moving for a stay, by filing an answer, interrogatories and a request for production of documents, moving for a protective order, and agreeing to a joint motion for continuance requesting an extension of the discovery period).

¶ 21. Phillips argues that the University and the Nursing PLLC waived their right to arbitrate because they filed a response to her petition for an accounting and objections to her discovery requests and attended a hearing on her motion to compel. In response, the University and the Nursing PLLC contend that they asserted their right to arbitration in their answer and at the hearing on the motion to compel, and that they therefore did not waive their right to arbitrate.

¶ 22. The chancellor found that the participation by the University and the Nursing PLLC in this litigation did not constitute a waiver of its right to arbitrate. We agree that, under the above-cited precedent, the minimal pretrial activities of the University and the Nursing PLLC did not constitute a waiver of arbitration. The University and the Nursing PLLC did not propound any discovery requests to Phillips. They objected to Phillips’ discovery requests, raised arbitration in their answer, and asserted the right to arbitration at a subsequent hearing on a motion to compel.

¶23. As a practice note, parties desiring to seek arbitration should promptly file and present to the trial court a motion to stay proceedings and a motion to compel arbitration.

B. WHETHER THE ALLEGED DELAY IN DEMANDING ARBITRATION OF THE UNIVERSITY AND THE NURSING PLLC CONSTITUTED A WAIVER OF THEIR RIGHT TO ARBITRATE.

¶ 24. “Congress’ clear intent, in the Arbitration Act, [was] to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Co., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983) (quoted with favor in Miller Brewing, 781 F.2d at 496). In Miller Brewing, Fort Worth Distributing Company first sued Miller Brewing, and then, three and a half years later, after losing in court, sought arbitration. The Fifth Circuit held Miller Brewing could “hardly be seen as moving the parties into arbitration ‘as quickly and easily as possible.’ ” Id. at 497.

¶ 25. Phillips argues that University and the Nursing PLLC waived their right to arbitrate by their delay in asserting their right to arbitration. She contends that the dispute originated in June of 2000 and that the University and the Nursing PLLC “chose to dispute this matter with Phillips outside the arbitration process” by resorting to an internal grievance process. The University and the Nursing PLLC argue that they did not waive arbitration but, rather, timely made their demand.

¶ 26. Phillips initially brought up her dissatisfaction with the University and the Nursing PLLC and her request for an accounting in a letter to the Dean of Nursing on August 11, 2000. Phillips was terminated by letter dated August 31, 2000. On September 15, 2000, Phillips filed the petition for accounting. On November 9, 2000, the University and the Nursing PLLC asserted arbitration as an affirmative defense in their answer, but the issue was not brought before the chancellor until the hearing on the motion to compel in March of 2001. The chancellor found that Phillips was prejudiced as this matter was not expeditiously referred to arbitration.

¶ 27. We disagree with the chancellor’s finding that University and the Nursing PLLC did not “expeditiously” refer the matter to arbitration. The Fifth Circuit has held that a delay of 13 months did not constitute a waiver, Walker v. J.C. Bradford & Co., 938 F.2d 575 (5th Cir.1991), but that a delay of 17 months did constitute a waiver. Price, 791 F.2d at 1160-62. There was no undue delay by the University or the Nursing PLLC in asserting arbitration before the chancellor. We therefore reverse the chancellor’s finding that the delay of the University and the Nursing PLLC in raising arbitration constitutes a waiver of the right to arbitrate.

C. WHETHER THE ACTIONS OF THE UNIVERSITY AND THE NURSING PLLC PREJUDICED PHILLIPS.

¶ 28. ‘Waiver will be found when the party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party.” Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324, 326 (5th Cir.1999); Miller Brewing, 781 F.2d at 497.

¶ 29. The chancellor found that Phillips had been prejudiced by the actions of the University and the Nursing PLLC:

[Phillips] has been relieved from her current position as faculty on the nursing staff, incurred expense in seeking resolution of this matter and much time has past since her original request for information ... Thus, had this matter been expeditiously referred to arbitration the need for terminating Phillips’ contract may have been avoided.

¶ 30. However, according to the Fifth Circuit, “[Prejudice ... refers to the inherent unfairness' — in terms of delay, expense, or damage to a party’s legal position — that occurs when the party’s opponent forces it to litigate an issue and later seeks to arbitrate that same issue.” Subway Equip., 169 F.3d at 327 (citing Doctor’s Associates v. Distajo, 107 F.3d 126, 134 (2d Cir.), cert. denied, 522 U.S. 948, 118 S.Ct. 365, 139 L.Ed.2d 284 (1997)). Phillips made no showing of prejudice due to delay, expense, or damage to her legal position. Furthermore, neither the University nor the Nursing PLLC invoked the judicial proceedings — Phillips did. Finally, because we find that the University and the Nursing PLLC did not substantially participate in litigation and did not cause an undue delay, their actions could not have caused any prejudice to Phillips.

III. WHETHER THE CHANCELLOR ERRED BY NOT HOLDING A HEARING ON THE ISSUE OF PHILLIPS’ RIGHT TO AN ACCOUNTING.

¶ 31. The University and the Nursing PLLC contend that the chancellor erred by summarily ordering an accounting without notice and hearing. We find that the fact that the chancellor did not hold a hearing prior to finding that Phillips was entitled to an accounting does not violate the University or the Nursing PLLC’s right to due process, which provides that a person is entitled to notice and hearing before being deprived of his rights. Cherry v. Bivens, 185 Miss. 329, 187 So. 525, 527 (1939). As the Court has stated:

Under the Constitution of Mississippi, section 24, every person for an injury done him in his lands, goods, person or reputation is entitled to remedy in due course, and by the Mississippi Constitution, as well as the Fourteenth Amendment to the Federal Constitution, ... no person can be deprived of life, liberty or property, except by due process of law.

Id., 187 So. at 527-28. A court must have a hearing if it would be “fundamentally unjust” to take away a citizen’s “valuable rights” without an opportunity to be heard. Id. at 528.

¶ 32. We cannot say that it would be “fundamentally unjust” to require the University and the Nursing PLLC to provide an accounting, or that the University or the Nursing PLLC has been deprived of any of its “valuable rights.” The “valuable' right” involved in this matter is Phillips’ earnings, not the process of an accounting.

¶ 33. Nevertheless, a hearing on a petition for an accounting is not necessary under certain circumstances:

This was an action for an accounting. Midwest alleged that-Goma refused to account for the monthly rentals received from the government agencies and refused to account for additional rent Goma received because of excess milage on the automobiles. Without this information, Midwest could not prove how much money it was owed. Only defendants had this information. Their refusal to provide it totally frustrated Midwest’s attempts to show the amount of money it was owed.
The requirements of due process were met “by the presumption that the refusr al to produce evidence material to the administration of due process was an admission of want of merit in the asserted defense” that no money was owing to Midwest.

Midwest Developers v. Goma Corp., 121 Wis.2d 632, 360 N.W.2d 554, 561 (1984) (quoting Hauer v. Christon, 43 Wis.2d 147, 152, 168 N.W.2d 81, 84 (1969)).

¶ 34. Here, Phillips’ repeated attempts to receive an accounting were met with nothing but adamant refusals even to consider her request. Because her petition for an accounting is meritorious, because the University and the Nursing PLLC have continued to aver that she is not entitled to an accounting, or, worse yet, she does not have standing to request an accounting and that the information she requested was proprietary, and because Phillips cannot acquire the information from any other source, and these things aré shown on the face of the pleadings, no hearing was needed to adjudicate that Phillips was entitled to an accounting.

IV. WHETHER AN ACCOUNTING IS SUBJECT TO ARBITRATION.

¶ 35. We find that the performance of an accounting is not subject to arbitration. An accounting does not involve any dispute except for whether the person seeking an accounting is entitled to one. Here, that dispute has been resolved in favor of Phillips. Now, the University and the Nursing PLLC must produce all information regarding Phillips’ contributions to the plan. This information should, inter alia, include the amounts and dates of Phillips’ contributions, the amounts and dates of reimbursements to Phillips, and the amounts of, dates made, recipients of, and uses of all funds not reimbursed to Phillips. To subject this accounting to arbitration is nonsensical. The University and the Nursing PLLC will have to produce the same information regardless of the forum in which the accounting is made. If a dispute arises during the accounting, however, the chancellor must decide whether that dispute is arbitrable.

CONCLUSION

¶ 36. We affirm the chancellor’s ruling that Phillips is entitled to an accounting. We also affirm the chancellor’s ruling that neither the University nor the Nursing PLLC waived their right to compel arbitration by actively participating in litigation. However, we reverse and render the chancellor’s ruling that the University and the Nursing PLLC waived their right to compel arbitration by waiting to demand arbitration and that Phillips was prejudiced as a result thereof. We remand for an accounting and any further proceedings consistent with this opinion.

¶ 37. AFFIRMED IN PART; REVERSED AND RENDERED IN PART; AND REMANDED.

PITTMAN, C.J., SMITH, P.J., COBB AND CARLSON, JJ„ CONCUR. McRAE, P.J., AND DIAZ, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION. EASLEY AND GRAVES, JJ., CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . The facts were gleaned from the pleadings and exhibits. Relief was granted to Phillips without a hearing, apparently on the chancellor’s own motion.

      . Services under paragraph 2 of the PLLC Employment Agreement were defined as follows:
      "Covered Services” shall mean the providing of nursing, health care, educational and consultation services at the University of Mississippi Medical Center (and its affiliates or approved practice sites and the Veteran’s Administration Medical Center) including services for the production of honoraria, book and copyright royalties, legal fees and non-patient care consultation fees.

      . No separate response was filed by Unacare. Unacare was alleged to be a "division” of the Nursing PLLC. In its answer, the University and the Nursing PLLC admitted that the Nursing PLLC operated Unacare Health Center, but denied that Unacare was a separate entity.

      . The record does not contain a copy of the actual responses to Phillips’ requests for discovery. The responses of the University and the Nursing PLLC were, however, set out in Phillips’ motion to compel discovery.

      . The employment contract provides as follows:
      Net earnings from nursing practice are defined as gross nursing practice receipts less nursing practice business expense deductions allowable under the federal tax code (Schedule C). Such earnings shall include all patient care related income at University of Mississippi Medical Center, affiliated or approved practice sites, and Veterans Affairs Medical Center. Also included is professionally derived income not associated with patient care which includes honoraria, book and copyright royalties, legal fees, and non patient care consultation fees. (Publications written prior to employment date are exempt from practice plan.)

      . Even though the Federal Arbitration Act may not apply to this case (because interstate commerce is not involved), we will follow the case law which interprets the Act because the case law is based on sound principles which are easily transferable to non-interstate commerce litigation. But see Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001) (The FAA has been held applicable to employment contracts even where interstate commerce is not obviously implicated.).

      . We are astounded at the University’s arrogance in stating that Phillips has no right or standing to know what was done with her earnings, and that this information is proprietary.


author: EASLEY, JUSTICE,

text:
    William L. WILEY v. STATE of Mississippi.
    No. 2002-DR-01727-SCT.
    Supreme Court of Mississippi.
    April 17, 2003.

      Robert B. McDuff, Jackson, James McLaughlin, Mark E. Feldman, Timothy C. Hester, Washington, DC, for appellant.
    Office of the Attorney General by Marvin L. White, Jr., for appellee.
   EASLEY, JUSTICE,

FOR THE COURT:

STATEMENT OF THE CASE

¶ 1. William L. Wiley (Wiley) was charged with capital murder in a DeSoto County robbery that left store owner J.B. Turner (Turner) dead and his daughter seriously injured as well as blind. Wiley laid in wait for some time outside the store for Turner and his daughter and then shot and robbed them as they were closing the store. The sawed-off shotgun used in the murder was traced to Wiley, who was arrested and subsequently confessed. Wiley was tried, convicted and sentenced to death in 1982.

¶ 2. On direct appeal his conviction was affirmed by this Court, but the case was remanded for re-sentencing because of comments made by the prosecutor regarding appellate review. Wiley v. State, 449 So.2d 756 (Miss.1984). Wiley was again sentenced to death in 1984, and this Court affirmed the case. Wiley v. State, 484 So.2d 339 (Miss.1986). His petition for rehearing was denied by this Court as was his petition for a writ of certiorari to the United States Supreme Court. Wiley v. Mississippi, 479 U.S. 906, 107 S.Ct. 304, 93 L.Ed.2d 278, reh’g denied, 479 U.S. 999, 107 S.Ct. 604, 93 L.Ed.2d 604 (1986). Thereafter, Wiley filed a petition for post-conviction relief (PCR) that was denied by this Court. Wiley v. State, 517 So.2d 1373 (Miss.1987). His motion for rehearing was denied, and again the United States Supreme Court declined review of the case. Wiley v. Mississippi, 486 U.S. 1036, 108 S.Ct. 2024, 100 L.Ed.2d 610, reh’g denied, 487 U.S. 1246, 109 S.Ct. 6, 101 L.Ed.2d 957 (1988).

¶ 3. Wiley then filed a petition for a writ of habeas corpus that was denied by the United States District Court via unpublished opinion. He appealed to the United States Court of Appeals for the Fifth Circuit which held that Wiley’s death sentence was improper because the sentencing jury was improperly instructed as to the “especially heinous, atrocious or cruel” aggravating circumstance. Wiley v. Puckett, 969 F.2d 86 (5th Cir.1992). This Court remanded for a new sentencing hearing. Wiley v. State, 685 So.2d 802 (Miss.1993). In 1995, Wiley was again sentenced to death. Wiley appealed, and this Court affirmed the case. Wiley v. State, 691 So.2d 959 (Miss.1997), reh’g denied, 693 So.2d 384 (Miss.1997) (motion for substitution of counsel granted), cert. denied, Wiley v. Mississippi, 522 U.S. 886, 118 S.Ct. 219, 139 L.Ed.2d 153 (1997).

¶ 4. Also in 1997, Wiley filed a pro se motion to stay execution and to appoint an attorney in the United States District Court. The district court denied the motion in an unpublished order. He appealed to the Fifth Circuit, which entered an unpublished order staying the execution and remanding the case to the district court. On January 16, 1998, the district court appointed Thomas Levidiotis (Levidiotis) as counsel and ordered the habeas petition be filed within sixty (60) days. Shortly thereafter, Robert McDuff (McDuff), present counsel, filed a motion to vacate the appointment of Levidiotis and substitute himself as counsel without payment which was granted by the district court.

¶ 5. McDuff and Timothy Hester, Brian Miller and Anthony Picarello, Jr., of the Washington, D.C., firm of Covington & Burling, then filed a motion for post-conviction relief on Wiley’s behalf that was denied by this Court in June 1999. Wiley v. State, 750 So.2d 1193 (Miss.1999). His motion for rehearing was denied, and the United States Supreme Court denied certiorari. Wiley v. Mississippi, 530 U.S. 1275, 120 S.Ct. 2742, 147 L.Ed.2d 1007 (2000). Also in June 1999, McDuff and counsel filed a motion for appointment of compensated counsel and funding for litigation expenses, but it was denied by this Court in January 2000. Wiley’s most recent petition for habeas corpus filed in the United States District Court is apparently still pending. Subsequently, he filed the present Application for Leave to file Motion to Vacate Death Sentence.

¶ 6. Wiley is seeking collateral review of the denial of his motion for appointment of compensated counsel and litigation funding, and he is asking for leave to present new claims of ineffective assistance of counsel. We find that Wiley’s claims are without merit, barred by the doctrine of res judicata, procedurally barred as a successive writ under Miss.Code Ann. § 99-39-27(9) (Supp.2002), and time barred pursuant to Miss.Code Ann. § 99-39-5(2). Accordingly, this motion is denied.

ANALYSIS

¶ 7. As Wiley presents substantially similar arguments in both of the first two issues he raises, they are combined for discussion.

I. Whether the Mississippi Supreme Court’s Denial of Funds for an Investigation Violated Wiley’s Rights Under Mississippi Law and the Eighth and Fourteenth Amendments to the United States Constitution.

II. Whether the Denial of Funding Independently Violated Wiley’s Fourteenth Amendment Right to Due Process.

¶ 8. Wiley asserts that his claims are not procedurally barred and meet the requirements for successive post-conviction relief motions under Miss.Code Ann. § 99-39-23(6), which states in relevant part:

The order as provided in subsection (5) of this section or any order dismissing the prisoner’s motion or otherwise denying relief under this chapter is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this chapter.... Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence.

¶ 9. Wiley also cites Miss.Code Ann. § 99-39-27(9), which reiterates the language above with reference to an applicar tion for leave to proceed in the trial court, and Miss.Code Ann. § 99-39-5(1)(a), which states:

(1) Any prisoner in custody under sentence of a court of record of the State of Mississippi who claims:
(a) That the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi;
(e) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;

¶ 10. The State counters that Wiley’s claims are indeed barred. We agree. Wiley has not demonstrated compliance with either exception of an intervening decision or new evidence, nor has he shown that his conviction or sentence is a violation of any constitutional right. Additionally, the State asserts that absent procedural bars Wiley failed to comply with the three-year statute of limitations pursuant to Miss. Code Ann. § 99-39-5(2) as set out at the time of his conviction. The statute was amended in 2000 to provide an exception for capital cases requiring post-conviction filings to be made within one (1) year after conviction. However, a discussion of the merits is included nonetheless.

¶ 11. As stated previously, Wiley’s present counsel, McDuff, filed a motion to vacate the appointment of Levidiotis and substitute himself as counsel “without payment” in the United States District Court in 1998. Present counsel also represented Wiley on his last PCR in this Court, which was denied June 3, 1999. The motion for rehearing was denied February 3, 2000. Wiley centers much of his argument around Jackson v. State, 732 So.2d 187 (Miss.1999), which allowed appointment of counsel and consideration of reasonable litigation expenses. However, the motion in Jackson was granted January 28, 1999, which was prior to the denial of both Wiley’s PCR and his motion for rehearing. Wiley has already raised the argument of this “intervening decision” with this Court via his motion for rehearing and separate motion for appointment of counsel and for litigation expenses; now he is essentially seeking a rehearing of that motion under the guise of a post-conviction claim by combining it with a “new” claim of ineffective assistance of counsel. The State asserts that M.R.A.P. 27(h) prohibits such a rehearing. We agree.

¶ 12. In denying Wiley’s prior motion, by order filed February 3, 2000, this Court said:

Wiley has had the benefit of pro bono counsel during his post-conviction proceedings, and now asks this Court to remand his case to the DeSoto County Circuit Court for appointment of counsel and determination of compensation under Jackson v. State, 732 So.2d 187 (Miss.1999). After due consideration the Court finds that the motion is not well taken and should be denied.

Wiley was at that time and continues to be represented by McDuff and various members of Covington & Burling.

¶ 13. Wiley asserts that he is entitled to funds for “investigation, analysis, and presentation of facts outside of the appellate record,” under Mississippi law as set out in Jackson despite that the right to counsel in post-conviction proceedings is discretionary. He relies on this Court’s comments regarding Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989), in his argument that he is entitled to litigation expenses and compensated counsel. The United States Supreme Court found in Murray that there was no constitutional right to counsel provided by the state in post-conviction proceedings. See also Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). As Murray dealt with a Virginia case, this Court in Jackson found that Mississippi inmates have been unable to obtain counsel or help from institutional lawyers, and that Jackson was entitled to compensated counsel. 732 So.2d at 191. The petitioner in Jackson suffered because of his inability to obtain adequate representation, i.e., his attorney’s failure to file a motion for rehearing. The record indicates that Wiley has been adequately represented by different lawyers at every stage of the process. Furthermore, he is represented by the same counsel who represented him on his last PCR. Surely the assertion is not now that counsel will do a better job the second time around if compensated.

¶ 14. Also, Wiley’s assertion that Jackson required payment of litigation expenses is incorrect as this Court remanded that issue to the trial court for consideration. Additionally, the request for litigation expenses in Jackson was specific as to the hiring of a forensic psychiatrist or psychologist, whereas here Wiley makes a broad prayer for funds without giving any indication the funds are necessary or for what purpose they would be used. In fact, Wiley demonstrates no “new factual, legal, and constitutional grounds that merit vacating Wiley’s death sentence or, in the alternative, granting funds for additional investigation.” There is no right to litigation funds for a fishing expedition, especially when there is no indication of any fish to be caught. This is Wiley’s second post-conyiction petition. He has already been heard on the issues he now seeks to raise yet again.

¶ 15. Notwithstanding the procedural bar, this case is distinguishable from Jackson. There this Court said:

Obtaining qualified substitute counsel willing to proceed pro bono on this type of specialized, complex and time-consuming litigation is almost impossible. This practice ignores the reality that the state post-conviction stage is particularly important in capital cases, and that having the same counsel represent the condemned in appellate proceedings and post-conviction actions prevents counsel from raising the claim of ineffective assistance of trial or appellate counsel at the post-conviction stage. This practice also ignores the reality that indigent death row inmates are simply not able, on their own, to competently engage in this type of litigation. Applications for post-conviction relief often raise issues which require investigation, analysis and presentation of facts outside the appellate record.

Jackson, 732 So.2d at 190. As stated previously, Wiley was able to obtain arguably very “qualified substitute counsel willing to proceed pro bono,” counsel was not the same counsel to represent him at trial or on direct appeal, and he has not raised any issues requiring investigation. Also, this Court’s holding in Jackson does not specifically establish a constitutional right to compensated counsel. As previously set out, the United States Supreme Court held in Murray that there is no constitutional right to counsel in state post-conviction proceedings. As such, there is no liberty interest created and no constitutional violation.

¶ 16. We find that not only are these issue proeedurally barred, but they are also without merit.

III. Whether even a Cursory Investigation, Conducted Without the Benefit of Constitutionally Mandated Funds, Reveals That Counsel was Ineffective.

¶ 17. Wiley raised ineffective assistance of counsel in his previous PCR, and he provides no new evidence that was not or could not have been raised then. In analyzing Wiley’s previous ineffective assistance of counsel claims, this Court found no merit and denied his petition for post-conviction relief.

¶ 18. Wiley asserts that a limited investigation “reveals that Wiley’s trial counsel failed to investigate, identify, or present a substantial volume of evidence that would have been central to any informed decision by the jury regarding the imposition of the death penalty.” Wiley argues that although trial counsel presented 15 witnesses on his behalf during the sentencing trial, their testimony was not sufficient because it was presented in a “cursory and superficial manner.” Wiley cites Collier v. Turpin, 177 F.3d 1184 (11th Cir.1999), for this proposition. Wiley attaches affidavits and sets out the following specific examples:

1. Joe Annie Butler

¶ 19. Joe Annie Butler (Butler), Wiley’s grandmother, raised him and could have testified about his mental and physical deficiencies, his exposure to traumatic events such as the deaths of his brother and grandfather, and his quiet and loving nature. However, the transcript indicates that Wiley’s assertion is without merit. Butler was called as a witness for Wiley and gave specific testimony as to raising Wiley, the grandfather’s death, Wiley’s nature, his schooling, and his work history. The other statements in the affidavit regarding uncorroborated medical conditions, such as Wiley’s hand curling up one time as a child and later returning to normal or the headaches he denied having, do not appear to this Court to add any element of mitigation. Additionally, Dr. Gary Mooers, a professor of social work at the University of Mississippi, testified extensively as to Wiley’s background, including deaths of relatives, abuse as a small child, injuries, schooling, and drug and alcohol use/abuse.

2. Diane Wiley

¶ 20. Diane Wiley (Diane), Wiley’s wife, could have testified as to the deaths of his grandfather and brother, head injuries, attempted suicide, and his qualities as a husband and father. Diane was not called as a witness, however, her affidavit does not establish that she could have provided any relevant testimony not set out by other witnesses. Additionally, Butler’s affidavit indicates that Wiley and Diane had been separated for many years at the time of his arrest.

3. John Thacker

¶ 21. John Thacker (Thacker), Wiley’s lifelong friend and his wife’s uncle, could have testified as to Wiley’s generous and kind character and about the time Wiley “saved my life” by riding up and slowing down Thacker’s runaway horse. Again, Thacker’s affidavit does not establish that he could have provided any relevant testimony not set out by other witnesses.

¶ 22. Wiley asserts “[i]t was objectively deficient for counsel to fail to investigate and present this mitigation evidence, and to rely solely on the testimony of far less important figures such as Wiley’s mother-in-law and several casual acquaintances.” However, the record reflects that among the other witnesses called by the defense were Wiley’s sons, Kelvin and Columbus; a sheriffs department employee who termed Wiley a “model” prisoner; a school employee; two childhood friends; a family friend who had known Wiley since childhood; an administrator; chaplain and records custodian from the Mississippi Department of Corrections; a neuropsychia-trist and a psychologist. Additionally, the record indicates that Wiley’s children lived with his mother-in-law who also testified, a majority of the time after he and Diane separated and that she had known him since he was a child.

¶ 23. Wiley cites cases that found ineffective assistance of counsel for failure to present mitigation evidence of a “nightmarish childhood,” violent and unstable upbringing, head injuries as a child, limited schooling, etc. There is no suggestion that any significant evidence, such as a violent or unstable upbringing, was not introduced. The record reflects that evidence of all of the mitigating factors Wiley alludes to was introduced during the sentencing trial by other witnesses and that there was no need for cumulative testimony.

¶ 24. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Wiley must show (1) a deficiency of counsel’s performance that is (2) sufficient to constitute prejudice to his defense. Additionally, Wiley is not constitutionally entitled to errorless counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.1988). There is also a presumption that counsel’s decision not to call a particular witness is a strategic one. Strickland, 104 S.Ct at 2065-2066. See also Cole v. State, 666 So.2d 767, 777 (Miss.1995). Wiley has not proven his counsel was deficient or that he suffered any prejudice, and the record indicates this issue is without merit.

CONCLUSION

¶ 25. Wiley has had more than one opportunity to present an argument under Jackson, thus defeating any “intervening decision” claim. Additionally, he has not presented any new evidence that was “not reasonably discoverable” at trial or that would have caused a different result if introduced, nor has he provided evidence of any violation of any fundamental rights. Furthermore, Wiley has failed to demonstrate that his claims are not procedurally barred pursuant to Miss.Code Ann. § 99-39-21(6), and he has failed to prove ineffective assistance of counsel. Accordingly, we deny Wiley’s application for post-conviction relief and application for leave to file motion to vacate death sentence.

¶ 26. POST-CONVICTION RELIEF DENIED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB AND GRAVES, JJ., CONCUR. DIAZ AND CARLSON, JJ., NOT PARTICIPATING.