author: DICKINSON, Justice, RANDOLPH, Justice, CARLSON, Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Connie Glen WILKERSON.
    No. 2002-JP-02105-SCT.
    Supreme Court of Mississippi.
    July 1, 2004.

      Luther T. Brantley, III, attorney for appellant.
    Stephen Crampton, Michael J. Deprimo, Tupelo, attorneys for appellee.
   DICKINSON, Justice,

for the Court.

¶ 1. In the case before us, the Mississippi Commission on Judicial Performance asks us to sanction a judge for his extrajudicial public statements of his views on the rights of gays and lesbians. We decline to do so and dismiss the Commission’s complaint. This is a case of first impression.

FACTS

¶ 2. After reading an article about certain states which have chosen to extend to homosexual partners the same right to sue previously reserved for spouses and family members, George County Justice Court Judge Connie Glen Wilkerson felt compelled to make known his disagreement with those states, and his views on homosexuality in general. The judge sent a letter to the editor of his local weekly newspaper, The George County Times, which he signed “Connie Glenn Wilkerson” and stamped “Bro. Connie G. Wilkerson.” The letter provided his home address and telephone number, and provided no reference to his official capacity as a judge.

¶ 3. Declaring that his views were based on his Christian beliefs, and upon Biblical principles, the judge opined that homosexuals belong in mental institutions. The letter was published on March 28, 2002.

¶ 4. On April 9, 2002, a reporter from a radio network called the judge at home to discuss the letter. The judge contends that the reporter encouraged him to repeat his views on the legislation and homosexuality and that the conversation was aired without his permission.

¶ 5. In the interview he referred to homosexuality as an “illness” which merited treatment, rather than punishment. He faults the radio network for awing the recorded statements which the radio station “unfairly interspersed” with comments from known homosexual activists.

¶ 6. In response to a complaint filed by Lambda Legal, the Mississippi Commission on Judicial Performance charged the Judge with:

1. “willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute,” in violation of Article 6, § 177A of the Mississippi Constitution of 1890;
2. breach of Canons 1, 2A, 3A(1), 4A and 5A of the Code of Judicial Conduct of Mississippi (hereinafter the “Code”) for his conduct in writing the letter; and
3. violation of Canons 1, 2A, 3B(2), (5) and (9) and 4A and 4B of the Code.

¶ 7. The sole issue before us is whether the judge’s right to send the letter and make the statements are protected by the First Amendment to the United States Constitution.

¶ 8. To be sure, we affirm our reverence for the judicial oath of office and the Canons which govern judicial conduct. This certainly includes Canon 4A(1), which requires judges to “conduct all extra-judicial activities so that they do not cast doubt on the judge’s capacity to act impartially as a judge.”

¶ 9. Today’s decision does not void, amend or diminish any of the Canons found in our Code of Judicial Conduct, nor does it bring into question the validity of any of our firmly held beliefs regarding a judge’s obligation to foster respect for, and bring honor to, the judiciary and to the legal profession, generally.

¶ 10. Nevertheless, because we are convinced that the statements made by the judge in this case constitute religious and politieal/public issue speech specially protected by the First Amendment and because we are further persuaded that in some cases (including the case sub judi-ce), forced concealment of views on political/public issues serves to further no compelling governmental, public or judicial interest, we are compelled to reject the recommendation of the Commission and hold that — under the particular facts of this case — sanctions are constitutionally impermissible.

ANALYSIS

¶ 11. Article 6, Section 177A of the Mississippi Constitution charges the Commission with the responsibility of making recommendations to the Supreme Court for discipline of judges, including public censure. In practice, the Commission investigates complaints filed against judges, and makes its recommendations to the Supreme Court in the form of a findings of fact, conclusions of law, and recommendations.

¶ 12. According to the Commission Findings of Fact, Conclusions of Law and Recommendation in this case, the offending statement attributed to the judge was contained in a letter to the editor of The George County Times. The letter stated, in part;

... the California legislature enacted a law granting gay partners the same right to sue as spouses or family members .... In my opinion, gays and lesbians should be put in some type of mental institute instead of having-a law like this passed for them....

¶ 13. This statement, according to the Commission, violates Canon 4(A)(1) and, therefore, constitutes “willful misconduct in office” and “conduct prejudicial to the administration of justice which brings the judicial office into disrepute.”

¶ 14. The rules (or Canons) of conduct which govern judges in Mississippi are found in the Mississippi Code of Judicial Conduct (“MCJC”). On April 4, 2002, This Court revised the MCJC, replacing the previous code which had been in effect since 1995. According to the Commission’s Findings, the judge in this case “wrote a letter and sent same to the editor of The George County Times newspaper which was published on March 28, 2002.” Thus, the letter complained of predates the promulgation of Canon 4(A)(1), and is not subject to it. Nevertheless, the Commission found that the judge “violated Canon 4(A)(1) in allowing his extra-judicial conduct to cast a reasonable doubt on the judge’s capacity to act impartially as a judge.”

¶ 15. One might think that, since the judge’s letter was not subject to review under Canon 4(A)(1), the inquiry concerning the letter should now end. However, this Court is the ultimate trier of fact, and is charged with the obligation to conduct an independent inquiry in judicial misconduct proceedings. Miss. Comm’n on Judicial Performance v. Fletcher, 686 So.2d 1075, 1078 (Miss.1996). In fulfilling that responsibility, this Court must determine whether the judge’s statements in the letter and subsequent interview with a reporter, violated the Canons, irrespective of the Commission’s Findings.

¶ 16. On March 28, 2002 (the date the letter was published), the only Canon which would apply to the statement in the letter was Canon. 2(A) of the Code provided:

A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

¶ 17. In its complaint against the judge, the Commission charges a violation of this Canon. Therefore, the statement in the letter should be analyzed under this previous Canon.

¶ 18. On April 4, 2002, new Canons (including Canon 4(A)(1)) were adopted and became applicable. Shortly thereafter, the judge repeated the statement in an interview on public radio. Thus, the radio interview should be analyzed under Canon 4(A)(1). However, since both canons must be analyzed under the “strict scrutiny” test as discussed supra, we will make no distinction, and refer to both canons as the “Canon.”

THE CONSTITUTIONAL ISSUES

¶ 19. The Canons which guide the conduct of our judges are a necessary and critical part of our judicial system. Disregard for the Canons leads inexorably to disrespect for the judiciary. We regard as a primary obligation of this Court the vigilant promotion of judicial ethics, which can only be accomplished by strict enforcement of the Canons. However, this Court clearly may not impose sanctions for violation of a Canon where doing so would infringe on rights guaranteed under the First Amendment, including the freedom of speech. ¶ Clearly, the government may — in certain circumstances — restrict the freedom of speech. When it proposes to do so, however, it must have a good reason. There are several different classifications of speech which, because of their various levels of importance to society, enjoy different levels of constitutional protection. As the levels of importance increase, the government’s burden to justify the restriction becomes more difficult. For in-stance, “commercial speech,” which usually involves advertising products for sale, may not be restricted unless the government can demonstrate a “substantial interest” to be achieved in the regulation. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n., 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). The state’s burden in meeting the “substantial interest” test for commercial speech is not as difficult as the “compelling state interest” test required for political/public issue, or religious speech.

Political/Public Issue Speech.

¶ 20. The United States Supreme Court has held and “frequently reaffirmed that speech on political views and public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983) (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913, 102 S.Ct. 3409, 3425, 73 L.Ed.2d 1215 (1982); Carey v. Brown, 447 U.S. 455, 467, 100 S.Ct. 2286, 2293, 65 L.Ed.2d 263 (1980)).

¶ 21. Where the government seeks to restrain political/public issue speech, it must withstand “strict scrutiny,” which requires the government to demonstrate that the restraint “is (1) narrowly tailored to serve (2) a compelling state interest.” Republican Party of Minnesota v. White, 536 U.S. 765, 774-75, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) (emphasis added). A prior restraint is narrowly tailored where “it does not ‘unnecessarily circumscrib[e] protected expression’.” Id. (quoting Brown v. Hartlage, 456 U.S. 45, 54, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982)).

¶ 22. Obviously, the state will have more difficulty demonstrating a “compelling state interest” (as required for political/public issue speech), than a “substantial interest” (as required for commercial speech). It is therefore important in the first instance to determine the category of speech the government seeks to restrain.

Gay Rights is a political/public issue.

¶ 23. It is hardly debatable that the extension of certain rights to gays and lesbians has become an important political public issue. Numerous states, including Mississippi, have passed laws prohibiting the marriage of gay partners. See Miss. Code Ann. § 93-1-1(2). Some state officials have openly defied the laws of their respective states and allowed gay couples to marry. There is even a movement to amend the United States Constitution to define marriage as a union between a man and a woman. Lambda Legal, the organization which filed the complaint in the case sub judice, is a political organization which works to establish and increase the rights for gays and lesbians. Thus, the case before us unquestionably involves political/public interest speech. In applying the requirements of the Constitution to the facts of this case, we will first look to other jurisdictions for guidance.

¶ 24. In a case with similar facts, justice of the peace James Scott was disturbed about what he considered to be “injustice” in the administration of the judicial system in his county. Scott v. Flowers, 910 F.2d 201 (5th Cir.1990). Judge Scott wrote an open letter to county officials in which he accused the “county court at law court and the district attorney’s office” of “adversely affect[ing] justice in [his] county.” Id. at 203. The judge’s letter was “circulated to the local press” and attracted a great deal of attention from citizens, judges and eventually the Texas Commission on Judicial Performance, which issued Judge Scott a public reprimand. Id. at 204. The Texas Commission justified the reprimand by holding that Judge Scott’s conduct served only to “cast public discredit upon the judiciary.” The Texas Commission ordered Judge Scott to show more restraint in future oral and written communications. Id.

¶ 25. Judge Scott filed suit, challenging the Commission’s reprimand as an unconstitutional restraint of his freedom of speech, guaranteed by the First Amendment to the United States Constitution. The United States District Court granted summary judgment to the Texas Commission. The United States Court of Appeals for the Fifth Circuit reversed, holding that the reprimand violated Judge Scott’s First Amendment rights. The following excerpt from Scott is particularly applicable and instructive:

[W]e have recognized that the state may restrict the speech of elected judges in ways that it may not restrict the speech of other elected officials. In Morial v. Judiciary Comm’n of La., 565 F.2d 295, 301 (5th Cir.1977) (en banc), cert. denied, 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395 (1978)), we upheld a state statute requiring judges to resign from the bench before declaring their candidacy for an elective non-judicial office and explained that the state may regulate the speech of judges in order to preserve the impartiality of the judicial branch....
We were careful to note, however, that our holding in Morial was a narrow one, turning on the fact that the resign-to-run statute, and restrictions on judicial campaign promises, were fairly limited intrusions into the political speech of elected judges. That is, “Louisiana’s resign-to-run requirement does not burden the plaintiffs right to vote for the candidate of his choice or to make statements regarding his private opinions on public issues outside a campaign context; nor does it penalize his belief in any particular idea. These are core first amendment values.” Id. at 301 (emphasis added).
Unlike the statute upheld in Mortal, the reprimand of Scott does infringe upon the right “to make statements ... on public issues outside a campaign context” and thus touches upon “core first amendment values.” Accordingly, the Commission must carry a very difficult burden in order to demonstrate that its concededly legitimate interest in protecting the efficiency and impartiality of the state judicial system outweighs Scott’s first amendment rights.
We conclude that the Commission has failed to carry that burden. Neither in its brief nor at oral argument was the Commission able to explain precisely how Scott’s public criticisms would impede the goals of promoting an efficient and impartial judiciary, and we are unpersuaded that they would have such a detrimental effect. Instead, we believe that those interests are ill served by casting a cloak of secrecy around the operations of the courts, and that by bringing to light an alleged unfairness in the judicial system, Scott in fact furthered the very goals that the Commission wishes to promote.

Scott, 910 F.2d at 212-13 (emphasis added).

¶ 26. The Scott court pointed out that, although the courts at one time condoned the right of the state as an employer to restrict free speech,

the Court has [since] rejected that approach in favor of one recognizing that public employees do not shed constitutional protection when they enter the workplace but nevertheless balances those employees’ rights against the “interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

Id. at 210, citing Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968).

¶ 27. In another case involving a judge who made a speech at a pro-life rally, the Supreme Court of Washington stated that “[a] judge does not surrender First Amendment rights upon becoming a member of the judiciary,” and “[i]f a person does not completely surrender his or her right to freedom of speech upon becoming a candidate, then we cannot expect the candidate to do so once elected to judicial office.” In re Sanders, 135 Wash.2d 175, 188-89, 955 P.2d 369, 375 (1998).

¶ 28. Here, Judge Wilkerson expressed his views on a political/public interest issue — the rights of gays and lesbians. We therefore may not impose sanctions unless we conclude, under the specific facts of this case, that the restraint the Commission seeks to enforce is “narrowly tailored” to achieve a “compelling state interest.” It seems to us difficult to conclude that discussion of the rights of gays poses more of a threat to judicial integrity than Judge Scott’s direct criticism of the judicial system itself. Stated another way, we find the integrity of the judiciary less threatened by Judge Wilkerson’s statements about gays than by Judge Scott’s constitutionally-protected statements which directly criticized the integrity of the judiciary.

Religious Speech.

¶ 29. We also face the question of whether the judge’s statements were protected religious speech. Private religious speech is as fully protected under the First Amendment as secular private expression. Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995), citing Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993); Board of Ed. of Westside Community Schools (Dist.66) v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990); Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981); Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981).

¶ 30. The Supreme Court has further stated: “Indeed, in Anglo-American history, at least, government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince.” Pinette, 515 U.S. at 760, 115 S.Ct. at 2446.

¶ 31. In the case sub judice, Judge Wilkerson framed and supported his opinion and statements with his personal religious beliefs. His letter published in The George County Times, stated that his “reason for responding” to the story about the California Legislature was “the last verse of chapter one of the book of Romans in our HOLY BIBLE.” He went further to state that “[y]ou need to know as I know that God in Heaven is not pleased with this, and I am sounding the alarm that I, for one, am against it and want our LORD to see and hear me say I am against it.”

¶ 32. In his radio interview with PRM, Judge Wilkerson stated that he signed his letter as a “Christian man.” When the radio announcer observed that Judge Wilkerson based his views on “deeply held religious beliefs,” Judge Wilkerson responded:

Here’s where I’m coming from. Now if the Holy Bible’s true, the King James Bible, which as a Christian man, I’d say every word from Genesis to Revelation is true, then God didn’t put up with it in Sodom and Gomorrah, and that’s the part that worries me, you know.

¶ 33. There are millions of citizens who believe Judge Wilkerson’s religious views are exactly correct. There are still millions more who find his views insulting. Whether he is right is not the issue here. It is, rather, whether this Court can— consistent with the First Amendment— prevent Judge Wilkerson from publicly stating these religious views. We hold that, under the facts of this case, we cannot.

Prior Restraint.

¶ 34. The Canon, as applied to Judge Wilkerson in this case, constitutes a prior restraint on his right to publicly state his political and religious views. There is a heavy presumption that every prior restraint on protected speech is unconstitutional. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448 (1975).

¶ 35. The Supreme Court of Appeals of West Virginia, facing a similar constitutional question, clearly defined the issue before us:

Admittedly, the Judge’s comments created a storm of controversy and were not appreciated by many of the listeners, but it is in that context that the First Amendment plays its most important function. See Waters v. Churchill, 511 U.S. 661, 672, 114 S.Ct. 1878, 1886, 128 L.Ed.2d 686, 697 (1994), quoting Cohen v. California, 403 U.S. 15,24-25,91 S.Ct. 1780, 1788 29 L.Ed.2d 284, 293 (1971) (“The First Amendment demands a tolerance of ‘verbal tumult, discord, and even offensive utterance, ‘as’ necessary side effects of ... the process of open debate’ ”); Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896 93 L.Ed. 1331, 1134 (1949) (“A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging”). The comments of the Judge cannot be construed as a physical or otherwise improper threat against the targets. The Judge’s commentary thus clearly falls within protected speech and need not be punished in order to maintain the purposes of the judicial canons. As often proved in this State, judges (like anyone else) have a right to be obnoxious in their public expression. They may continue to offend, so long as they refrain from violating specific provision of the Code or some other law. While offensive expression may rise questions about the speaker’s temperament and discretion, the Constitution requires that those questions must be answered by the public through the ballot box and not be this Court through disciplinary proceedings. The Special Judicial Hearing Board correctly recommended the dismissal of this complaint.

In re Hey, 192 W.Va. 221, 452 S.E.2d 24, 33-34 (1994) (bracketed material & emphasis added).

Achieving a Compelling Governmental Interest.

¶ 36. As already stated, the state’s burden here is to demonstrate that a “compelling state interest” will be achieved by applying the Canon to sanction judges who speak their views about gay rights. Even our Founders were well aware that the government cannot always be trusted to accurately discern what is, and is not, a compelling state interest. Indeed, the primary reason we have the First Amendment to our Constitution is that our Founders did not trust the government to always protect the rights of the people against the powers of the government. Many states refused to ratify the Constitution without a Bill of Rights, granting the citizens protection from the government. Perhaps Justice Stevens said it best when he declared for the Court: “The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.” 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503, 116 S.Ct. 1495, 1508, 134 L.Ed.2d 711 (1996).

¶ 37. Judge Wilkerson challenged the Commission to articulate the “compelling state interest” in sanctioning judges who announce their private views on gay rights. The Commission’s only attempt to do so was in its brief filed with this Court, wherein it pointed out that impartiality of the judiciary is a compelling state interest, and that “impartiality” means “the lack of bias for or against (sic) either party to the proceeding.”

¶ 38. We agree that the Commission articulated a compelling state interest: “impartiality of the judiciary.” However, the task is not finished. Having articulated a “compelling state interest,” the Commission must next demonstrate how preventing judges from announcing their views on gay rights will serve to achieve that “compelling state interest.” This it never did. Instead, it equated “impartiality of the judiciary” with “the appearance of impartiality of the judiciary.”

¶ 39. No credible person could dispute that having impartial judges is a compelling state interest. But “impartiality” is not the same as the “appearance of impartiality.” We find no compelling state interest in requiring a partial judge to keep quiet about his prejudice so that he or she will appear impartial.

¶ 40. Whatever state interest the Commission may find in preventing judges from announcing their private views on gay rights would conflict with, and be outweighed by, the more compelling state interest of providing an impartial court for all litigants, including gays and lesbians. Allowing — that is to say, forcing — judges to conceal their prejudice against gays and lesbians would surely lead to trials with unsuspecting gays or lesbians appearing before a partial judge. Unaware of the prejudice and not knowing that they should seek recusal, this surely would not work to provide a fair and impartial court to those litigants.

Recusal.

¶ 41. We feel obliged to point out that, having publicly expressed his view that “gays and lesbians should be put in some type of mental institute,” Judge Wilkerson will doubtless face a recusal motion from every gay and lesbian citizen who visits his court. We can predict that the rationale for the motions will be that Judge Wilkerson is prejudiced against gays and lesbians, and he has a preconceived belief that their mental capacity as a class of people is inferior to society in general. Judge Wilkerson, on the other hand, may believe he can be fair to gays and lesbians in his court. Thus, in publicly announcing views which — although constitutionally allowed— nevertheless cast doubt on his impartiality, Judge Wilkerson has created a paradox for himself. Even if he feels it is his duty to refuse to recuse; yet, should he deny the recusal motions, he faces a substantial risk of future complaints with the Commission. We express no opinion here as to the outcome of such complaints, as the issue is not before us today.

CONCLUSION

¶ 42. We endorse the Canons, and we certainly endorse the promotion of an impartial judiciary. We also find, however, that the objects of judicial prejudice are entitled to seek a level playing field through recusal motions, and citizens who disagree with a judge’s views are entitled to voice their disagreement at the ballot box. These legitimate interests are frustrated when prejudice is hidden.

¶ 43. There is an old Malayan proverb which states: “Don’t think there are no crocodiles because the water is calm.” This teaching is applicable to the case sub judice, because Commission urges us to “calm the waters” when, as the guardians of this state’s judicial system, we should be helping our citizens to spot the crocodiles.

¶ 44. For the reasons stated herein, we find the judge may not be sanctioned for his statements which are protected by the First Amendment to the United States Constitution. We reject the Commission’s findings and recommendation, and we finally dismiss the Commission’s complaint and this case with prejudice.

¶ 45. DISMISSED WITH PREJUDICE.

SMITH, C.J., WALLER, P.J., EASLEY AND RANDOLPH, JJ., CONCUR. RANDOLPH, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, P.J., EASLEY AND DICKINSON, JJ. CARLSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J. COBB, P.J., AND DIAZ, J., NOT PARTICIPATING.

RANDOLPH, Justice,

specially concurring.

¶ 46. Today this Court is faced with a conflict between the First Amendment right to free speech and our Code of Judicial Conduct. When such conflict arises, certainly the fundamental constitutional right must prevail. That said, I am compelled to write.

¶ 47. We know and accept that our body of law is structured in a hierarchy. First and foremost, there is the U.S. Constitution followed by the Mississippi Constitution. Next comes the statutes as passed by our legislative body, and finally the rules of court and rules of conduct. Limitations provided in the Code of Judicial Conduct cannot trump the dearly held and protected rights guaranteed by our U.S. and Mississippi Constitutions.

¶ 48. Second, no matter how outrageous some may find the comments at issue here, we should not forget that content-based restrictions on speech are generally abhorred under our jurisprudence. In a concurring opinion for the Supreme Court, Justice Kennedy noted:

“[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972). See also Ragland, 481 U.S., at 229-230, 107 S.Ct., at 1727-1728 (citing Mosley); Regan v. Time, Inc., 468 U.S. 641, 648-649, 104 S.Ct. 3262, 3266-3267, 82 L.Ed.2d 487 (1984) (“Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment”).

Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd., 502 U.S. 105, 126, 112 S.Ct. 501, 514, 116 L.Ed.2d 476 (1991) (Kennedy, J., concurring).

¶ 49. Accordingly, I agree with the majority.

SMITH, C.J., WALLER, P.J., EASLEY AND DICKINSON, JJ., JOIN THIS OPINION.

CARLSON, Justice,

dissenting.

¶ 50. Because the majority fails to sanction a judge who freely chose to write a letter to the editor for publication in the local George County newspaper, and then later chose to submit to an interview with a reporter from Mississippi Public Radio (PRM), all to express his views on homosexuality, and evidently for no apparent reason other than he just felt like it, I must respectfully, but yet vigorously dissent.

¶ 51. One point must be made unmistakably clear at the outset. This is not a gay-rights case.

¶ 52. Not one word contained in the majority opinion or this dissent in any way infers that this is about gay-rights, or that any justice on this Court is attempting to take a stand on this highly emotionally-charged international social/religious issue. What this case is about is the obligation of this Court in behalf of our citizens to demand of our judges at every level in our Mississippi court system, including the members of this Court, exemplary conduct which is above and beyond that expected of other citizens in our society.

¶ 53. The majority concludes that the statements made by the judge were protected religious and political/public speech under the First Amendment to the United States Constitution. Therefore, the majority holds that the Canons found in the Code of Judicial Conduct (the “Code”) may not be enforced based on this judge’s actions. Because I would find that this speech is not protected because it does not meet the requirements of the two-prong test set out in Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), I would sanction the judge for his letter to the editor and his statements made to the press.

¶ 54. The findings and conclusions of the Commission on Judicial Performance are considered de novo by this Court. Miss. Comm’n on Judicial Performance v. Boykin, 763 So.2d 872, 874 (Miss.2000) (citing Miss. Comm’n on Judicial Performance v. Gunn, 614 So.2d 387, 389 (Miss.1993)). The Commission’s findings based on clear and convincing evidence are given “great deference.” Id. However, this Court is obligated to conduct an independent inquiry. Miss. Comm’n on Judicial Performance v. Neal, 774 So.2d 414, 416 (Miss.2000). Even though we consider the Commission’s findings, they are not binding and additional sanctions may be imposed. Miss. Comm’n on Judicial Performance v. Whitten, 687 So.2d 744, 746 (Miss.1997).

¶ 55. The primary purpose of judicial sanctions is not punishment of the individual judge but “to restore and maintain the dignity and honor of the judicial office and to protect the public against future excesses.” Miss. Comm’n on Judicial Performance v. Guest, 717 So.2d 325 (Miss 1998) (citing In re Harned, 357 N.W.2d 300, 302 (Iowa 1984)). This Court has also discerned that “the official integrity of the justice court judges is vitally important, for it is on that level that most citizens have their only experience with the judiciary.” Guest, 717 So.2d at 329 (citing Gunn, 614 So.2d at 389; In re Garner, 466 So.2d 884, 887 (Miss.1985)). “It is imperative for justice court judges to conduct themselves with the utmost diligence in order to uphold the public’s confidence.” Guest, 717 So.2d at 329 (citing Whitten, 687 So.2d at 748 (quoting Gunn, 614 So.2d at 389-90)).

¶ 56. An understanding of the Code of Judicial Conduct is properly guided by the first two introductory Canons. Although the Code was substantially revised on April 4, 2002, both Canon 1 and Canon 2 are virtually unchanged. Canon 1 requires that “A Judge Should Uphold the Integrity and Independence of the Judiciary” and commands that:

[a]n independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

Canon 2 charges all judges to avoid impropriety and the appearance of impropriety in all activities. Most important is the charge for judges to respect and comply with the law and conduct themselves in a manner that promotes public confidence in the integrity and impartiality of the judiciary. The Commentary to Canon 2A embodies the admonition that:

[p]ublic confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and do so freely and willingly.

(emphasis added).

¶ 57. Canon 4A(1), as amended on April 4, 2002, is entitled “A Judge May Engage in Activities to Improve the Law, the Legal System, and the Administration of Justice” and mandates that judges conduct their extrajudicial activities as to minimize the risk of conflict with their judicial obligations. A judge’s conduct must not cast reasonable doubt on the judge’s capacity to act impartially as a judge. The comment to Canon 4A was amended to further explain:

Expressions of bias or prejudice by a judge, even outside the judge’s judicial activities may cast reasonable doubt on the judge’s capacity to act impartially as a judge. Expressions which may do so include jokes or other remarks demeaning individuals on the basis of their race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status.

While only recently amended to specifically mention expressions relating to race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, the purpose and mandate of the Code has not changed. Even though the language is new, the Code has always prohibited statements such as these because they justify a public perception of judicial bias. Even prior to the revisions, such statements were condemned in Canon 2A by the requirement that judges conduct themselves “at all times in a manner that promotes public confidence in the integrity of and impartiality of the judiciary.” Miss. Code of Jud. Conduct, Canon 2A (1999). Likewise, prior to the revisions, Canon 5 mandated that judges regulate their extrajudicial activities, including writing and public speaking, so as to minimize the risk of conflict with their judicial duties. Miss. Code of Jud. Conduct, Canon 5 (1999).

¶ 58. With this forethought, the Commission charged the Judge with “willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute,” in violation of Article 6, § 177A of the Mississippi Constitution of 1890. Additionally, the Commission charged him with breach of Canons 1, 2A, 3A(1), 4A and 5A of the Code for his conduct in writing the letter. Further, the Commission charged that the Judge’s conduct and comments during the radio interview violated Canons 1, 2A, 3B(2), (5) and (9) and 4A and 4B of the Code.

¶ 59. Even when not on the bench or acting in an official capacity, a judge’s actions may be sanctionable under Section 177A. Miss. Comm’n on Judicial Performance v. Thomas, 549 So.2d 962, 965 (Miss.1989). At all times, a judge is required to respect and comply with the law in a manner which promotes public confidence in the integrity of the judiciary. Id. (citing In re Gorby, 176 W.Va. 11, 339 S.E.2d 697 (1985)). A judge cannot wear one face as a judicial officer and another as a private citizen, since the citizenry will always appraise the integrity, independence and impartiality of the judiciary by what they see in all public and private activities of our judges. This Court has previously disciplined judges for personal activities. Miss. Comm’n on Judicial Performance v. Thomas, 722 So.2d 629 (Miss.1998); Miss. Comm’n on Judicial Performance v. McRae, 700 So.2d 1331 (Miss.1997); Miss. Comm’n on Judicial Performance v. Whitten, 687 So.2d 744 (Miss.1997). We have indicated that the case for sanction may be stronger if a judge makes comments or slurs against a particular group such as derogatory racial remarks. Guest, 717 So.2d at 332-33.

¶ 60. Other courts and judicial disciplinary groups have sanctioned judges for improper actions and comments made within as well as outside the judicial office and capacity. A California judge was sanctioned for comments made on the bench about minority groups. Gonzalez v. Comm’n on Judicial Performance, 33 Cal.3d 359, 188 Cal.Rptr. 880, 657 P.2d 372 (1983). Although the judge maintained his remarks were made in jest and assured that he always remained fair and impartial, the Commission found that subjective intent was irrelevant. A judge undertakes the “obligation to conduct himself at all times in a manner that promotes public confidence and esteem for the judiciary.” Id. Even when friends or associates may know the purpose of the conduct “such facially blatant ethnic slurs as those Judge Gonzalez uttered from the bench are apt to offend minority members not familiar with petitioner’s view and may be construed by the public at large as highly demeaning to minorities.” Id. A New York judge was also censured for derogatory racial remarks. In re Agresta, 64 N.Y.2d 327, 486 N.Y.S.2d 886, 476 N.E.2d 285 (1985). High standards of conduct are necessary to preserve the integrity of the judiciary; therefore, it is improper for a judge to make remarks of a racist nature even when the remarks are made out of court. Id. A Florida judge was also disciplined after his “imprudent” remarks were published in a newspaper. In re Removal of a Chief Judge, 592 So.2d 671 (Fla.1992). In an interview, the judge communicated his views on interracial dating and marriage, the effect of integration on crime in the public schools, the provocative manner of dress of female students, the prevalence of blacks on welfare and in the criminal justice system, and the propriety of making racial slurs and telling racial jokes in private. His statements were described as:

freely given to a newspaper reporter, [and] have been read by a significant portion of the community as affirmatively embracing and endorsing discriminatory stereotypes that are inimical to the laws of this state, the interests of the judiciary, and the oft-stated policies of this Court, we conclude that his actions have significantly eroded his ability to work effectively with all segments of the community in administering the courts.

Id. at 672-73.

¶ 61. The judge in today’s case wrote the following unsolicited letter to his local newspaper:

March 23, 2002
Dear Editor:
I got sick on my stomach today as I read the (AP) news story on the Dog attach [sic] on the front page of THE MISSISSIPPI PRESS and had to respond!
AMERICA IS IN TROUBLE!
I never thought that we would see the day when such would be here in AMERICA.
The last verse of chapter one of the book of Romans in our HOLY BIBLE is my reason for responding and sounding the alarm to this. You need to know as I know that GOD in Heaven is not pleased with this and I am sounding the alarm that I for one am against it and want our LORD to see and here [sic] me say I am against it.
I am sorry that the California Legislature enacted a law granting gay partners the same right to sue as spouses or family members. Also, that Hawaii and Vermont have enacted such a law too. In my opinion gays and lesbians should be put in some type of a mental institute instead of having a law like this passed for them.
I don,t[sic] know but I believe if we vote for folks that are for this we will have to stand in thh[the] judgement of GOD the same as them.
I am thankful for our Legislators and pray for wisdom for them, on such unbelievable legislation as this.
May GOD bless each one of them in JESUS CHRIST NAME I pray!
Thank you for printing this,
Connie Glen Wilkerson
Bro. Connie C. Wilkerson
[stamped]

¶ 62. Additionally, in the case sub judi-ce, the judge evidently takes the position that PRM was only interested in his views on homosexuality in his capacity as a private citizen. However, during the PRM interview he was referred to as “judge” 14 times, and there were constant questions raised as to how his personal views might affect the fairness of his courtroom proceedings. Here are excerpts from the transcript of the PRM interview with the judge:

PRM News Announcement, April 10, 2002
ANNOUNCER: Judge wrote the letter to the editor of George County Times, saying, America is in trouble, that he was sick to his stomach after reading about a law passed in California, Vermont and Hawaii to grant gay partners the same rights as spouses or family members. But [he] said he had a hard time accepting such rights for homosexuals.
JUDGE: Course, us country boys hadn’t been there, you know. I never run into nothing like that. That’s always hearsay to us, you know, we can’t believe it.
ANNOUNCER: Judge points out that he did not sign the letter as a judge.
JUDGE: I just signed it as a red blooded American, you know, Christian man. The Christian people need to take a stand as well as anybody else, you know.
ANNOUNCER: But Judge thinks his comments are separate from his role as a judge.
JUDGE: I’m not talking about it as a judge, you know. I try to be just as fair as I can in the courtroom. In fact, I’d say I’m overly fair, you know. You might could run that by people in George County.
ANNOUNCER: And Judge says he’s not trying to punish homosexuals by suggesting that they belong in [mental] institutions.
JUDGE: As far as I know, a person like that’s sick, you know. I wouldn’t want to punish a fellow for being sick. I’d want to do something for him, help him in some way, you know. That’s where I’m coming from. But I don’t think he ought to have a right — extra — you know, extraordinary rights.
ANNOUNCER: Judge bases his views on deeply held religious beliefs.
JUDGE: Here’s where I’m coming from. Now, if the Holy Bible’s true, the King James Bible, which as a Christian man, I’d say every word from Genesis to Revelation is true, then God. didn’t put up with it in Sodom and Gomorrah, and that’s the part that worries me, you know.
ANNOUNCER: But Judge says he means no harm to anyone.
JUDGE: God bless you, brother. I’m sorry, you know, that if I’ve caused anybody any hard feelings, you know, but I think in this country we need to be able to express ourselves, you know. I don’t care who he is or what he is, you know, but — and when we can’t do it we’re really in trouble, you know.

¶ 63. I focus only on the written statements and verbal remarks the judge make regarding his opinion that a certain segment of our society was sick and needed to be placed in mental institutions. There can be no doubt that the judge in today’s case made demeaning remarks in a public letter and a public interview expressing bias or prejudice against a targeted sector of the population which includes individuals who may be expected to come before his court. Even without the recent language found in the amendment to Canon 4(A), both his letter and comments during the telephone interview cast doubt on his ability to act impartially. The majority goes so far as to admit this fact. The majority acknowledges that in “publically announcing [his] views [on homosexuality],” the judge “nevertheless cast[s] doubt on his impartiality.” Maj. opi. ¶ 41. To declare publicly that all persons of this class are mentally ill must at the very least cast doubt on his ability to hear their testimony without a strong, negative preconceived notion of their credibility and I thus must express earnest disagreement with his decision to make these comments in such a public way. His decision reflects poorly on him. He was not conducting himself with the utmost diligence to uphold public confidence. Instead, his actions were irresponsible. When assuming his position as justice court judge, he vowed to accept the burden of discretion in public speech necessary to promote the public’s perception of his impartiality.

¶ 64. His off the bench, but highly public conduct, implies an inability to fairly hear all segments of the community. In so stating, I emphasize that in my humble opinion, whether sanctions are proper does not depend on his religious beliefs. Instead, our focus should be on the effects of his comments about a particular segment of our society, and the impact of these comments on a reasonable, knowledgeable observer. While the judge seems to have attempted to ensure that his comments were made outside of his official capacity by merely signing his name as Brother rather than Judge, such distinctions are useless where the statements suggest partiality.

¶ 65. Judges, like all other citizens, have the right to hold and express political and religious opinions. In our Judeo-Christian society, most judges are highly respected members of various churches and synagogues, and we have every right to openly express our religious views and live according to our faith. Judges also have unique duties to assure fairness and public confidence in the fairness of our courts. Judges’ rights to free expression must constantly be weighed against public confidence in an impartial and independent judiciary. Although limits on extra-judicial speech can be unconstitutional under the First Amendment, the Florida Supreme Court has noted:

Judges serve on the bench in order to further the interests of justice, not their own personal interests. [A judge] must be willing to forego many of the financial and political activities that otherwise might be available to him. If an individual is unwilling to forego such opportunities, he should not be a judge.

In re DeFoor, 494 So.2d 1121, 1123 (Fla.1986). The Code of Judicial Conduct recognizes this tension and seeks a balance between the competing interests of judicial accountability and the rights of judges as citizens.

¶ 66. The right to speak on issues of public concern is at the core of those freedoms guaranteed by the First Amendment. As such, the constitutionality of content based restrictions must be reviewed with strict scrutiny. The charges before us are certainly based on the content of the judge’s statements. Under a strict scrutiny analysis, the restriction must be narrowly tailored to serve a compelling state interest and must not unnecessarily circumscribe protected expression. Republican Party of Minn. v. White, 536 U.S. 765, 774-75, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002).

¶ 67. Canon 4A(1) plainly serves a compelling interest in promoting impartiality and the appearance of impartiality in our courts. While the Supreme Court in White criticized the Eighth Circuit and the state for failing to define impartiality in the court of appeals opinion and the briefs, it acknowledged that the fundamental meaning and most often use of “impartiality” is the lack of bias for or against either party to proceedings.

One meaning of “impartiality” in the judicial context — and of course its root meaning — is the lack of bias for or against either party to the proceedings. Impartiality in this sense assures equal application of the law. That is, it guarantees a party that the judge who hears the case will apply the law to him in the same way he applies it to any other party. This is the traditional sense in which the term is used....

White, 536 U.S. at 775-76, 122 S.Ct. 2528 (emphasis in original). The Court also recognized that the term can be used to mean a lack of preconception in favor of or against a particular legal view. Justice Scalia for the majority characterized impartiality as so defined as neither compelling, possible, nor desirable, since judges, who must be learned in the law will inevitably form preconceptions as to the law. Id. at 777-78, 122 S.Ct. 2528. A third definition would be “open-mindedness,” or a willingness, regardless of preconceptions, to remain open to persuasion when issues are presented in a pending case. The Court did not go on to consider whether this was a sufficiently compelling interest, finding that this was not the purpose of the clause then under consideration. Id. at 778, 122 S.Ct. 2528.

¶ 68. Canon 4A(1) places a very narrow restriction on judges’ speech and conduct. It requires simply and clearly that they conduct their activities off the bench so as to avoid reasonable doubt as to their impartiality. It includes no attempt to otherwise restrict judges’ expression of social or political views. Indeed, it must be read with Canon 4B which expressly recognizes that judges may speak, write, lecture and teach concerning the law, the legal system, the administration of justice and non-legal subjects. The Commentary to 4B expressly recognizes that as persons specially learned in the law, judges are in a unique position to contribute to improvement of the law, “including revisions of substantive and procedural law.” I am satisfied, and would so hold, that Canon 4A(1) is narrowly drafted to satisfy a compelling state interest in promoting impartiality and the appearance of impartiality in the judiciary.

¶ 69. If the judge now before this Court had done no more than express his views on statutes concerning same-sex partners and legislation regulating their activities or their rights, the analysis could stop here. As earlier mentioned, Canon 4B expressly recognizes the unique value of judges contributing to improvements of the law and the legal system and acknowledges their freedom to speak out in these areas. However, when the judge in today’s case stated that certain individuals in our society were sick and that they all needed to be indiscriminately placed in mental institutions, he crossed over the line!

¶ 70. The Fifth Circuit has held that the state cannot permissibly sanction judges who publish their views on public policies and matters of public concern, particularly where they address the administration of justice, even where they are critical of the officials charged with the administration of policies. Scott v. Flowers, 910 F.2d 201 (5th Cir.1990). The majority concludes that the facts of the case sub judice are similar to those in Scott. In Scott, the Fifth Circuit reviewed the actions of a justice of the peace after he wrote an open letter to the county officials voicing his concerns of what he believed to be an injustice in the administration of the county court system. After the letter was circulated to the local press, the judge was publicly reprimanded by the Texas Commission on Judicial Conduct. The judge then filed suit against the Commission alleging this censure violated his First Amendment right of free speech. The United States District Court for the Southern District of Texas granted summary judgment in favor of the Commission, and the judge appealed to the Fifth Circuit. The Fifth Circuit held:

In Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), the Court enunciated the two-step inquiry to be used in evaluating claims of- first amendment violations by public employees. First, the court must determine, in light of the “content, form, and context” of the speech in question, see Moore v. City of Kilgore, 877 F.2d 364, 369 (5th Cir.), cert. denied, 493 U.S. 1003, 110 S.Ct. 562, 107 L.Ed.2d 557 (1989), whether it addresses a “matter of legitimate public concern.” Pickering, 391 U.S. at 571, 88 S.Ct. at 1736.
* * *
If the court determines that the employee’s speech addresses a matter of public concern, it then must balance the employee’s first amendment rights against the governmental employer’s countervailing interest in promoting the efficient performance of its normal functions. In assessing the strength of the governmental interest, the court should consider such factors as “whether the statement impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.” Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 2899, 97 L.Ed.2d 315 (citing Pickering, 391 U.S. at 570-73, 88 S.Ct. at 1735-37).

910 F.2d at 210-11. Distinguishing the status of an elected judge from that of other public employees whose public statements may interfere with the management of their agencies, the Fifth Circuit stated:

We begin by noting that the state’s interest in suppressing Scott’s criticism is much weaker than in the typical public employee situation, as Scott was not, in the traditional sense of that term, a public employee .... Scott was not hired by a government employer. Instead, he was an elected official, chosen directly by the voters of his justice precinct, and, at least in ordinary circumstances, removable only by them.
As such, it was not unexpected that Scott not only would exercise independent judgment in the cases brought before him but would be willing to speak out against what he perceived to be serious defects in the administration of justice in his county. Thus, the state cannot justify the reprimand of Scott, as it could the discipline of an ordinary government employee, on the ground that it was necessary to preserve coworker harmony or office discipline.

Id. at 211-212 (internal footnote omitted & emphasis in original).

¶ 71. Finding these two cases to be similar, the majority concludes that it is more reprehensible to question the practice of the court’s judiciary system than it is to state that a certain group of individuals should be institutionalized, thus creating a known bias in one’s courtroom.

¶ 72. The Fifth Circuit had no difficulty concluding the judge’s letter addressed matters of legitimate public concern. His criticisms did not concern his own employment conditions, but dealt with the administration of the county justice system, a matter about which the Fifth Circuit found the judge likely to have well-informed opinions. In addressing the second prong, the Fifth Circuit noted that because the justice of the peace was an elected official, he was not a traditional public employee. The Fifth Circuit held the Commission failed to carry its burden in demonstrating “that its concededly legitimate interest in protecting the efficiency and impartiality of the state judicial system outweighjed] [the judge’s] first amendment rights.” 910 F.2d at 212. Therefore, the Fifth Circuit held that the Commission could not constitutionally reprimand the justice of the peace for making public statements critical to the justice court system.

¶ 73. I find the facts of the case sub judice distinguishable from Scott. Although speech of today’s judge was supposedly directed to state legislation regarding same sex partnership, he also did not hide his views on his opinions of the homosexual population as a whole. I do not agree that this type of speech — the judge’s personal views regarding all homosexuals — relates to political and social community concerns. However, even if the judge’s speech is found to relate to political and social community concerns, this type of speech fails the second prong by “imped[ing] the performance of the speaker’s duties.”

¶ 74. In a well reasoned opinion, the Supreme Court of Washington held that clear and convincing proof to restrict a judge’s speech did not exist where a Supreme Court Justice spoke publicly at a right-to-life rally, identifying himself with the anti-abortion cause. In re Sanders, 135 Wash.2d 175, 955 P.2d 369 (1998). However, that court recognized that judges’ right to speak out was not without limitation.

A judge’s right of free speech is subject to limitation by the Canons of Judicial Conduct. However, those limitations must not be interpreted in the individual case to go so far as to permit sanctioning speech and conduct that does not clearly and convincingly lead to the conclusion that the words and actions call into question the integrity and impartiality of the judge.

Id. at 377.

¶ 75. However, the judge in the case sub judice did more than express his views on the administration of justice or a matter of public interest. His declaration that “gays and lesbians should be put in some type of a mental institution,” and that “a person like that is sick,” clearly and convincingly leading the public to conclude that he entertains a bias against an entire class of individuals and precipitating a reasonable fear that their pleas, arguments and testimony before his court will not be considered with the impartiality demanded of a judge. His statements taken as a whole are more akin to that made by Judge Kinsey in Florida who, during her campaign for the office issued numerous statements showing a bias in favor of law enforcement officers and promising favorable treatment toward police and victims appearing before her court. The Florida Supreme Court, looking at these statements as violative of their “pledges and promises” clause (corresponding to Canon 5A(3)(d)(i) of the Mississippi Code of Judicial Conduct), found that analysis under Republican Party of Minn. v. White leaves room for state sanctions in the interest of assuring an impartial judiciary. In re Kinsey, 842 So.2d 77 (Fla.2003).

¶ 76. In making statements, while holding judicial office, declaring that all citizens of a particular class are mentally ill and should be placed in mental institutions, the judge now before us has transgressed the protection of First Amendment which preserves the rights of all citizens to speak out on matters of public concern. Although the Code of Judicial Conduct recognizes that judges have the right to speak out on these issues and are uniquely placed to contribute to education and reform of the law and public policy, that right must be exercised without raising in the minds of reasonable people the belief that judges entertain prejudices which will substantially impair their impartiality. Finding that the evidence here is clear and convincing that the judge’s intemperate statements casts doubt on his impartiality, contrary to the mandate of Canons 2A and 4A(1), I would find that the judge should be sanctioned.

¶ 77. While I know that it is not the intent of my learned colleagues in the majority to erode our Code of Judicial Conduct, I fervently believe that today’s majority decision does just that. In my almost twenty-two years as a judge, I have always firmly believed that the cornerstone of our judicial code was the already quoted commentary to Canon 2 of the former Code. I repeat it here for emphasis:

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so fi-eely and willingly.

(emphasis added).

¶ 78. Because I believe that this important tenet for daily judicial living, on and off the bench, has been severely undermined by today’s decision, I must most respectfully, but vigorously, dissent.

GRAVES, J., JOINS THIS OPINION.

      . Also at issue is Article 3, Section 13, of the Mississippi Constitution., which declares: "The freedom of speech and of the press shall be held sacred; ...” However, since the constitutional analysis of the Mississippi provision would be no different from an analysis of the provision found in the United States Constitution, we restrict our analysis in this case to applicable law interpreting the United States Constitution.

      . According to Fletcher, this Court gives great weight to the findings of the Commission, which has observed the demeanor of the witnesses, including the judge charged with the offense. Nevertheless, this Court is the trier of fact and ultimately bears the sole responsibility and duty to impose sanctions, where appropriate.

      . In 1892, while serving as a Justice on the Massachusetts Supreme Judicial Court, Oliver Wendell Holmes, writing for the court, held that the City of New Bedford could 'suspend'' the constitutional rights of its police officers by preventing political speech. He stated, “The [policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892). This notion has long since been abandoned.

      . In the context of this case, the difference between "impartiality” and "the appearance of impartiality” is that "impartiality” means a judge is fair and impartial to all; whereas “the appearance of impartiality” means the judge is not, but appears to be.

      . During the pendency of this case, the network changed its name to Mississippi Public Broadcasting.

      . We emphasize to the reader that this quoted canon is contained in the former Code of Judicial Conduct, which was applicable at least to the judge’s actions when he wrote the letter which was later published in the local newspaper on March 28, 2002. The current Code of Judicial Conduct, adopted April 4, 2002, contains gender-neutral language.

      . Although the judge submitted to the telephone interview on April 9, 2002, prior to traveling to Jackson to a judges' seminar where, ironically, the new Code of Judicial Conduct adopted by this Court just 5 days earlier was to be discussed, the interview was not aired by PRM until the next day.


source: Caselaw Access Project

author: KING, P.J.,

license: Public Domain

text:
    Leslie J. CORTEZ, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01374-COA.
    Court of Appeals of Mississippi.
    Dec. 2, 2003.
    Rehearing Denied Jan. 27, 2004.
    Certiorari Denied July 6, 2004.

      Dan Duggan, Jr., Brandon, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., IRVING, and GRIFFIS, JJ.
   KING, P.J.,

for the Court.

¶ 1. Leslie J. Cortez was convicted in the Circuit Court of Rankin County of burglary of a dwelling. Aggrieved by his conviction and sentence, Cortez appeals and states his issues as follows:

I. Whether the trial court erred in denying Cortez’s motion for a directed verdict and motion for a new trial
II. Whether the Court committed reversible error when it failed to suppress evidence of the gloves

FACTS

¶ 2. On October 17, 2000, the residence of Kelly Ainsworth in Braxton, Mississippi was burglarized. Ainsworth testified that around 8:00 that morning, she secured the lock and dead bolt on the door of her mobile home before leaving for work. She testified that the back door was likewise secured.

¶ 3. Don Storment was the neighbor and landlord of Ainsworth. His home was located about 100 yards behind and to the right of Ainsworth’s home. Sometime during the mid-afternoon while taking a break from raking leaves in his yard Storment noticed a vehicle pull into Ainsworth’s driveway, and then heard her dogs start barking. Storment ran into his house got his revolver and ran across his open pasture towards Ainsworth’s home. Storment approximated the distance to be about 100 yards across the open pasture and about another 50 yards down Ainsworth’s driveway.

¶ 4. While at the end of the driveway, Storment saw a man run from a red Chevrolet pick-up truck parked in the driveway of Ainsworth’s home. Storment saw the man open the door and enter the trailer. Upon arrival at the trailer, Storment called out to the man and asked his identity and purpose there. According to Storment, after about 15-20 seconds a man emerged from the house. The man did not identify himself but was later identified as Cortez. Cortez said that Ainsworth had contacted him about putting skirting around the porch. Cortez stated that he worked for a construction company and asked Storment what time the woman would be home. When asked by Storment how he had gotten into the trailer, Cortez said that Ains-worth had left it unlocked.

¶ 5. Storment called Ainsworth and asked if she was expecting someone to come and look at her trailer. Ainsworth responded “no,” after which Storment called the sheriffs department, reported the incident and gave a description of Cortez, and the truck he was driving. Ains-worth left work and met Storment at the courthouse in Brandon. A sheriffs deputy then followed them to Ainsworth’s home. Ainsworth discovered that there was a torn place in the metal sheeting framing the front door; however, the dead bolt was still in place. Answorth testified that upon entering her home that her kittens were running around outside of the room in which she kept them enclosed, and the drawers in her bedroom chest had been rifled through and the clothing was disarrayed. However, Answorth noticed nothing missing or stolen from her residence.

¶ 6. Ater Storment’s call to the sheriffs department, a sheriffs deputy recognized the description of the truck as one owned by Leslie Cortez. Cortez was found and informed that he was the focus of a criminal investigation and given the Miranda warnings. He then admitted being inside of Ainsworth’s trailer. Cortez claimed to have knocked on the door looking for work and to have entered only after being bidden to do so.

¶ 7. Ainsworth testified that she was too frightened to stay alone, and did not return to her residence until the morning of October 24th. Upon returning to her home, Ainsworth noticed a pair of work gloves in the closet. She testified that they were not her gloves, and that they were not there on the morning of October 17th when she left for work. Ainsworth reported finding the gloves to the sheriffs office, and an investigator came and collected them as evidence. No forensic tests were conducted on the gloves.

¶ 8. At trial, Cortez called no witnesses and did not testify himself. Cortez was convicted by a jury on July 16, 2002, and sentenced to twenty-five years in the custody of the Mississippi Department of Corrections. Cortez was adjudged to be a habitual offender under Mississippi Code Annotated Section 99-19-81, and is therefore ineligible for parole.

ISSUES AND ANALYSIS

I.

Whether the trial court erred in denying Cortez’s motion for a directed verdict, judgment notwithstanding the verdict, and motion for a new trial

¶ 9. Cortez asserts that the evidence does not support a conviction for burglary, and that at most the evidence supports a conviction for trespass. He contends that the trial court erred in denying his motions for directed verdict, judgment notwithstanding the verdict, and for a new trial. Cortez submits that there was no forensic evidence to link him to prying open the front door, the gloves, or to the disarrayed clothing. Cortez further contends that the State’s case did not satisfy the elements of a burglary charge according to Mississippi Code Annotated Section 97-17-23 (Rev. 2000) He asserts that while the State may have proven the first element of burglary, the physical act of entry, he contends that the State did not prove the second element of the crime, “intent to commit a crime therein.” Cortez, through his statement to the deputy at the time of his arrest, claimed that he was at Ains-worth’s trailer solely for the purpose of looking for work.

¶ 10. The standard of review for a motion for a directed verdict and judgment notwithstanding the verdict is the same. In a criminal case this Court set the standard of review as follows:

Once the jury has returned a guilty verdict this Court is not at liberty to direct that the defendant be found not guilty unless viewed in the light most favorable to the verdict no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty. Conners v. State, 822 So.2d 290, 293(¶ 6) (Miss.2001). This Court must consider as true all evidence consistent with the Defendant’s guilt and the State must be given the benefit of all favorable infer-enees. McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 11. When considering the denial of a motion for a directed verdict, the evidence is viewed in the light most favorable to the State, and all evidence supporting a guilty verdict is accepted as true, and the prosecution must be given the benefit of all favorable inferences that can be reasonably drawn from the evidence. Nelson v. State, 839 So.2d 584, 586(¶ 3) (Miss.Ct.App.2003).

¶ 12. The State seldom has direct and positive testimony expressly showing the specific intent of an intruder at the time he unlawfully breaks into a dwelling house; however, such testimony is not essential to establish the intent to commit a crime. Dixon v. State, 240 So.2d 289, 290 (Miss.1970). “Some presumptions are to be indulged in against one who enters a building unbidden, at a late hour of night, else the burglar caught without boot might escape the penalties of the law.” Dixon v. State, 240 So.2d 289, 290 (Miss.1970), citing State v. Worthen, 111 Iowa 267, 82 N.W. 910, 911 (1900). “Intent is an emotional operation of the mind, and it is usually shown by acts and declarations of the defendant coupled with facts and circumstances surrounding him at the time. Defendant’s intention is manifested largely by the things he does.” Dixon, 240 So.2d at 290, citing Newburn v. State, 205 So.2d 260, 265 (Miss.1967).

¶ 13. It is well established in Mississippi that a jury, as the finder of fact, is entitled to consider not only facts as testified to by witnesses, but all inferences that may be reasonably and logically deduced from the facts and evidence. Pryor v. State, 349 So.2d 1063, 1064 (Miss.1977).

¶ 14. A motion for a new trial concerns the weight of the relevant evidence. Conners v. State, 822 So.2d 290, 293(¶ 6) (Miss.2001). Motions for new trial rest in the sound discretion of the trial court, and should not be granted except to prevent an unconscionable injustice. Id.

¶ 15. First, we will address Cortez’s motion for a directed verdict. At the close of the State’s case the defendant asked the court to direct a verdict for trespassing. The trial court denied that motion after which the defendant rested his case. When considering the denial of a directed verdict, this Court reviews the evidence as it existed when that motion was last made. Because the defendant offered no evidence, we consider the record as it existed at the end of the State’s case in chief. In his motion Cortez asserted that the State could not prove beyond a reasonable doubt that he pried open the door, and there was no indication that anything was stolen or removed from the house. Cortez argued that because he had no larcenous intent when he entered Ains-worth’s residence that at most he was guilty of trespass.

¶ 16. The crime of burglary requires proof of (1) an unauthorized entry (or breaking), and (2) the intent to commit a crime after the unauthorized entry. Miss.Code Ann. § 97-17-23 (Rev.2000). Each element of burglary must be proven at trial. Hunter v. State, 684 So.2d 625(¶ 24) (Miss.1996). Where the underlying crime is not completed, the State has to offer sufficient facts to establish the necessary intent. Anderson v. State, 749 So.2d 283, 286(¶ 14) (Miss.Ct.App.1999).

¶ 17. The element of unauthorized entry was established through the testimony of Ainsworth, Storment and Deputy McBroome. Ainsworth testified to having secured the locks on her home pri- or to going to work, that she had not invited Cortez to, or into, her home for any purpose and that an interior door, which was kept closed, had been opened and her kittens released from their enclosure.

¶ 18. Storment testified to having seen Cortez pull into Ainsworth’s driveway, to seeing Cortez entering and exiting Ains-worth’s home and that upon inquiry, Cortez stated that Ainsworth had asked him to do some work, and left the door unlocked.

¶ 19. Deputy McBroome testified that Cortez admitted to being in Ainsworth’s house, that Cortez claimed to have been there looking for work and that Cortez claimed to have entered Ainsworth’s home only after being invited to do so.

¶ 20. The intent to commit a crime after the unauthorized entry was established by the testimony of Ainsworth. Ainsworth testified that she was unable to identify any particular items as having been stolen but noticed that the drawers to her chest had been rifled and were in disarray.

¶ 21. The State offered substantial evidence on each of the elements of burglary. Accordingly, we note no merit to this issue.

¶ 22. With regards to the denial of his requested JNOV, Cortez argues the same points as on the motion for directed verdict. As with the motion for directed verdict, the evidence must be considered in the light most favorable to the State, including giving it the benefit of all reasonable inferences which may be drawn from the facts. Nelson v. State, 839 So.2d 584, 586(113) (Miss.Ct.App.2003). If after doing so the record contains substantial credible evidence to support the jury verdict of guilty, the motion for JNOV should not be granted. James v. State, 777 So.2d 682, 689(¶ 18) (Miss.Ct.App.2000). If on the other hand the record lacks substantial credible evidence to support the verdict, it is an abuse of discretion to not grant a JNOV.

¶ 23. The facts are set forth above and offer substantial credible evidence upon which a jury could, and did, base a verdict of guilty to burglary. There is accordingly no merit to this issue.

¶ 24. As noted, the request for a new trial asks the court to hold that the verdict was contrary to the overwhelming weight of the evidence. Crowley v. State, 791 So.2d 249, 253(¶ 15) (Miss.Ct.App.2000), citing Lane v. State, 562 So.2d 1235, 1237 (Miss.1990). When a motion for a new trial is made, the court must accept as true all evidence which favors the verdict. Youngblood v. State, 759 So.2d 479, 483(¶ 17) (Miss.Ct.App.2000), citing Veal v. State, 585 So.2d 693, 695 (Miss.1991). The grant or denial of a motion for a new trial rests within the sound discretion of the court. Conners v. State, 822 So.2d 290, 293(¶ 6) (Miss.2001). That discretion should only be used to avoid an unconscionable injustice. Id. Unless the reviewing court upon an examination of that evidence finds it so lacking that to allow the verdict to stand would sanction an unconscionable justice, the motion for a new trial should be denied. McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 25. There was no abuse of discretion in the denial of Cortez’s motion for a new trial.

II.

Whether the Court committed reversible error when it failed to suppress evidence of the gloves.

¶ 26. Cortez contends that the trial court committed reversible error by not suppressing the gloves which Ainsworth found in her closet after returning to her home on October 24th. He also objects to the method the State used to introduce the gloves to the jury. Cortez argues that under Mississippi Rule of Evidence 403 that the probative value of the gloves was outweighed by their prejudicial effect.

¶ 27. The admission or exclusion of evidence rests in the sound discretion of the trial judge. Conners v. State, 822 So.2d 290, 293(¶ 6) (Miss.2001). This remains true even in the face of a Mississippi Rules of Evidence 403 probative versus prejudicial weighing. When the trial court determines that a Rule 403 factor substantially outweighs probative value, it is still within its discretion to determine whether to exclude the evidence, since Rule 403 states not that the evidence must be excluded in such cases, but rather that it may be excluded. Due to this discretion vested in the trial court, our task as an appellate court reviewing a Rule 403 determination is not to engage anew in the Rule 403 balancing process. We are simply to determine whether the trial court abused its discretion in weighing the factors and admitting or excluding the evidence. Gen. Motors Corp. v. Jackson, 636 So.2d 310, 314 (Miss.1992).

¶ 28. Cortez argues that there was no forensic or testimonial evidence which linked the gloves to the burglary, and their discovery a week after the burglary was too remote and rendered them irrelevant. Cortez also suggests that a picture which showed the gloves by the pry markings on the door, rather than in the closet where they were found, was unduly prejudicial, and was a basis for their suppression.

¶ 29. Ainsworth testified that she found the gloves in her closet a week after the burglary and the gloves did not belong to her. This testimony, while not connecting the gloves to Cortez, was sufficient to suggest it was more probable than not that a burglary had occurred. Under these facts the trial judge did not abuse his discretion. Accordingly, this issue is found to be without merit.

¶ 30. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A DWELLING, AS AN HABITUAL OFFENDER AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS PROCEEDING ARE TAXED TO RANKIN COUNTY.

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

      . Mississippi Code Annotated Section 97-17-23 (Rev.2000) Burglary; Breaking and entering inhabited dwelling. Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit a crime therein, shall be punished by imprisonment in the Penitentiary not less than three (3) years nor more than twenty-five (25) years.


author: CHANDLER, J.,

text:
    Richard C. RAY, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CP-00170-COA.
    Court of Appeals of Mississippi.
    June 1, 2004.

      Richard C. Ray, appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Richard Ray filed a motion for post-conviction collateral relief on July 19, 2002. The circuit court dismissed the petition without an evidentiary hearing on December 20, 2002. Feeling aggrieved, Richard appeals and cites the following errors:

1. THE TRIAL JUDGE ERRED IN ACCEPTING RICHARD’S GUILTY PLEA OF ARMED ROBBERY.

2. WHETHER RICHARD’S GUILTY PLEA WAS INVOLUNTARY.

3. WHETHER RICHARD RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

4. WHETHER THE POLICE EXHIBITED BIAS AND PREJUDICE TOWARDS RICHARD AND WHETHER THE POLICE WITHHELD HIS VOLUNTARY CONFESSION FROM DISCOVERY.

FACTS

¶ 2. On or about February 6, 1999, Richard Ray and his brother, Anthony Ray, stole a car in Grenada, Mississippi. The brothers traveled north to Panola County and decided to rob the Standard Grocery Store. Richard entered the store with a gun and demanded all of the money in the cash register. The owner, Patsy Mur-phree, complied with Richard’s command. The brothers were subsequently arrested in Memphis, Tennessee and each brother confessed to the crime.

¶ 3. Richard and Anthony were indicted on July 8, 1999, for the felonies of conspiracy and armed robbery. On August 5, 1999, Richard appeared before the Circuit Court of Panola County and petitioned the court to accept his plea of guilty to the charge of armed robbery. In exchange for Richard’s plea, the State agreed to dismiss the conspiracy count, and to recommend a total sentence of thirty years, with fourteen to serve and sixteen to be suspended.

¶ 4. Richard was placed under oath prior to responding to the circuit court’s questions. Richard testified that no one had promised him leniency if he entered a plea of guilty, and that no one had coerced or intimidated him in order to force him to plead guilty. Richard admitted that he had forcibly taken the sum of two hundred dollars from Murphree by putting her in fear of immediate bodily injury through the exhibition of a deadly weapon, specifically a handgun.

¶ 5. The prosecutor stated the evidence would show that Richard committed armed robbery after he entered the Standard Grocery Store, exhibited a handgun, and ordered Murphree to give him the money in the cash drawer. The State would also prove that Richard was subsequently arrested in Memphis, Tennessee and that he confessed the Panola County robbery to the police. The State also alleged there was evidence that Richard had admitted his guilt of the robbery to two other persons who were not involved in law enforcement. Murphree was also prepared to identify Richard as the person who robbed her.

¶ 6. The trial court asked Richard whether he heard the prosecutor’s statement of what evidence the State possessed of his guilt, and whether he agreed with that evidence, to which Richard responded affirmatively. Murphree then testified to Richard’s actions -and the effect they had on her.

¶ 7. Richard was also asked by the trial judge whether he was satisfied with his attorney’s representation. Richard responded in the affirmative. After Richard was given a thirty-year sentence for armed robbery, Richard decided to deny that he was in possession of a handgun during the robbery. Richard told the court that he only had a piece of aluminum in his hand during the robbery.

¶ 8. The trial judge then instructed Richard to take the witness stand. Richard denied that he possessed a firearm during the robbery. However, Richard admitted that when he held the piece of aluminum in his hand during the robbery that he intended to make Murphree believe he was armed with a weapon.

¶ 9. The prosecution was then instructed by the court to read Richard’s confession where he admitted to having possessed a gun during the robbery. Afterwards, Richard testified that he made up that part of his confession in order to keep his friends from being arrested. However, Richard did admit numerous times during the questioning that it was his intention to make Murphree believe he was armed and would hurt her if she did not give him the money.

¶ 10. The circuit court then accepted the prisoner’s guilty plea and sentenced him to a total sentence of thirty years, with fourteen to serve and sixteen to be suspended. Richard filed a motion for post-conviction relief which was denied by the circuit court.

1. THE TRIAL JUDGE ERRED IN ACCEPTING RICHARD’S GUILTY PLEA OF ARMED ROBBERY

¶ 11. The United States Supreme Court in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), held that “[wjhere a plea of guilty has been intelligently and voluntarily entered, it is sufficient to undergird an unassailable final judgment of conviction.”

¶ 12. Uniform Circuit and County Court Rule 8.04(A)(8) requires that a court determine that “there is a factual basis for the plea.” Mississippi case law does not require that a defendant admit every aspect of a charge against him. Instead, a guilty plea may be considered valid even though the defendant makes only a “bare admission of guilt,” so long as the trial court delves beyond that admission and determines for itself that there is substantial evidence that the defendant actually committed the crimes charged. Gaskin v. State, 618 So.2d 103, 106 (Miss.1993). In some cases, it is not necessary for a defendant to admit guilt in order for a guilty plea to be accepted by the trial court. Corley v. State, 585 So.2d 765, 767 (Miss.1991). A defendant’s guilty plea is sufficient if it is a voluntary and knowledgeable plea with an “independent evi-dentiary suggestion of guilt.” Reynolds v. State, 521 So.2d 914, 917 (Miss.1988). Therefore, a court may accept a plea if the court is satisfied that there is evidence such that the State, if so required, could prove the defendant’s guilt of the crime charged. Corley v. State, 585 So.2d at 767 (citing U.S. v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989)).

¶ 13. The record does not suggest that Richard'was offered any hope of reward for entering his plea of guilty, or that he was coerced, threatened or intimidated into making it. To the contrary, the circuit court interrogated Richard thoroughly and carefully explained to him all of the constitutional protections available to him as well as the ramifications- of entering a guilty plea. Afterwards, Richard was sentenced to serve thirty years in the custody of the Mississippi Department of Corrections, with fourteen years to serve and sixteen years to be suspended.

¶ 14. Immediately following the imposition of the prison sentence, Richard denied that he possessed a handgun during the robbery. The trial judge instructed Richard to take the witness stand in order to question him concerning the handgun. Richard testified that he did not possess a handgun and told the court that he had made the story up in order to keep his Mends from getting arrested. However, Richard did admit that he intended to put the store clerk in fear by allegedly exhibiting a piece of aluminum. Richard also admitted upon further questioning that he intended to rob the store when he entered it. Therefore, it was not necessary that Richard admit to specifically possessing a handgun during the robbery because the State had already established an abundance of independent evidence of guilt to support the plea bargain. Reynolds, 521 So.2d at 917.

¶ 15. This Court finds that Richard’s guilty plea was accepted by the trial court after Richard’s sentence was imposed upon him. Richard denied the use of a handgun in the robbery only after it became apparent that a thirty-year sentence would be imposed upon him. See Corley, 585 So.2d at 766 (“no law requires that the accused admit his guilt before the court may accept his plea”); Reynolds, 521 So.2d at 917 (Miss.1988) (“admission of guilt is not a constitutional requisite of an enforceable plea”). Richard was also represented by counsel at the plea hearing. At no time during the proceedings did Richard express a desire to withdraw his guilty plea or a desire to demand a trial on the merits.

¶ 16. There was an abundance of evidence that supported the charge of armed robbery by the exhibition of a deadly weapon. The State provided Richard’s confession to the court where he admitted to possessing a handgun during the robbery. The victim also testified at the plea hearing that Richard possessed a gun during the robbery. There were two other witnesses who were available to testify that Richard admitted to robbing the store with a handgun if the case had gone to trial. Therefore, Richard’s guilty plea is valid notwithstanding his denial of the possession of a handgun.

2. WHETHER RICHARD’S GUILTY PLEA WAS INVOLUNTARY.

¶ 17. The standard of review pertaining to voluntariness of guilty pleas is well settled: “[t]his Court will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous.” House v. State, 754 So.2d 1147, 1152 (¶ 22) (Miss.1999). “The burden of proving that a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence.” Terry v. State, 839 So.2d 543, 545(¶ 7) (Miss.Ct.App.2002). A plea is considered “voluntary and intelligent” only if the defendant is advised about the nature of the charge against him and the consequences of the entry of the plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992).

¶ 18. The record does not support Richard’s claim that his guilty plea was involuntary. The transcript from Richard’s plea hearing clearly shows that he was informed of his constitutional rights and those he was waiving by pleading guilty. The transcript also shows that Richard was told the maximum sentences that he could receive for the crimes with which he was charged. Richard affirmed to the judge that he was satisfied with the advice and counsel of his attorney. “Great weight is given to statements made under oath and in open court during sentencing.” Gable v. State, 748 So.2d 703, 706 (¶ 11) (Miss.1999) (quoting Young v. State, 731 So.2d 1120, 1123(¶ 12) (Miss.1994)). Richard also signed a petition to plead guilty. Even though other defendants were present at the same time Richard was pleading guilty, Richard was adequately informed of the implications of his guilty plea. Richard has not met his burden of proof.

3. WHETHER RICHARD RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 19. Richard also claims that he did not receive effective assistance of counsel. He argues that his lawyer forced him to enter a plea of guilty to armed robbery. He claims that his lawyer did not inform him of what exactly constitutes a deadly weapon under the law. When evaluating claims of ineffective assistance of counsel, this Court applies the standard set out in Strickland v. Washington, 466 U.S. 668, 680, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under this standard, the claimant must show (1) that counsel’s performance was deficient and (2) that the deficient performance was prejudicial to the defendant in the sense that it undermined confidence in the outcome. Wilson v. State, 577 So.2d 394, 396 (Miss.1991).

¶ 20. Richard must show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. When a defendant enters a plea on the advice of counsel, the attorney’s performance is deemed “deficient” for purposes of the Strickland standard if it falls below “the range of competence demanded of attorneys in criminal cases.” Wilson, 577 So.2d at 396 (quoting Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). A defendant who pleads guilty to a crime is “prejudiced” by his counsel’s erroneous advice if “he would have insisted on going to trial if he had been correctly informed.” Wilson, 577 So.2d at 396.

¶ 21. There is no indication in the record other than the allegations made by Richard in his brief that his attorney’s performance was ineffective. The trial judge asked Richard specifically if he had been coerced or threatened into pleading guilty, and Richard answered in the negative. We hold that Richard has failed to meet his statutory burden of proof required to establish a prima facie showing. Richard has failed to show deficient performance. This issue is without merit.

4. WHETHER THE POLICE EXHIBITED BIAS AND PREJUDICE TOWARDS RICHARD AND WHETHER THE POLICE WITHHELD HIS VOLUNTARY CONFESSION FROM DISCOVERY.

¶ 22. Richard claims the State failed to disclose exculpatory information contained in his first confession given to the police following his arrest. Richard also claims that law enforcement exhibited bias and prejudice towards him which resulted in him not receiving a fair trial. None of the allegations asserted by Richard are supported by the record transcript. Richard provides no affidavits to support or substantiate the allegations. After a careful examination, we find that the claims included in Richard’s post-conviction motion were either waived by his valid guilty plea or contradicted by the record. As a result, we affirm the trial court’s dismissal of Richard’s post-conviction relief.

¶ 23. THE JUDGMENT OF THE PA-NOLA COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

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