author: IRVING, J., GRIFFIS, J.,

text:
    Frank GORDON, Appellant, v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellee.
    No. 2002-CC-01468-COA.
    Court of Appeals of Mississippi.
    Jan. 27, 2004.

      James A. Williams, Brookhaven, attorney for appellant.
    Albert B. White, Madison, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and IRVING, JJ.
   IRVING, J.,

for the Court.

¶ 1. This appeal arises from a decision of the Circuit Court of Lauderdale County affirming the decision of the Board of Review of the Mississippi Employment Security Commission (MESC) denying unemployment benefits to Frank Gordon. Feeling aggrieved, Gordon appeals and assigns as error the determination by the circuit court that substantial evidence exists to support the finding by the MESC that he was terminated because of misconduct as that term is used within the applicable statutes and decisional law.

¶ 2. We find that the decision of the MESC, considered via the appropriate standard of appellate review, lacks eviden-tiary undergirding. Therefore, we reverse and render the decision of the MESC and the order of the trial court affirming the decision and remand the case to the MESC for a determination and an award of unemployment compensation benefits.

FACTS

¶ 3. Frank Gordon was employed by Riley Hospital as a housekeeper from December 6, 2000, to January 23, 2001. On January 23, 2001, Gordon’s supervisor discovered Gordon bringing dirty linen through the clean linen area. The hospital’s policy required that dirty linen be brought through a separate door because clean linen must be kept separate from dirty linen. As a result of this incident, Gordon was terminated from his employment with Riley Hospital.

¶ 4. After Gordon’s termination, he filed for unemployment benefits. The claims examiner initially investigated by interviewing Gordon. The hospital’s representatives were also interviewed. Gordon was disqualified for unemployment benefits on the basis of misconduct. Gordon appealed and after the hearing, the referee made the following findings of fact and opinion:

The claimant worked for Riley Hospital, Meridian, Mississippi, from December 06, 2000, until January 23, 2001, as a housekeeper. He was discharged for violation of company policy and for cursing his supervisor when she confronted him. The claimant transported soiled linen though the clean linen area which is a violation of the infection control policy. The claimant was advised of the employer’s policies at the time that he was hired, and signed a department hazardous materials and waste training record that he received training. The claimant has denied that he had been trained concerning the transportation of soiled linen. However, he did admit that he cursed his supervisor.
$ % ^ 4*
In this case, the referee realizes that there is conflicting testimony. However, more weight is placed on testimony of the employer and certain documents of evidence. The claimant’s actions did rise to the level of misconduct as that term is used in the law. The decision of the claims examiner will be modified as to the beginning date of the disqualification period only.

¶ 5. Gordon appealed to the Board of Review (Board), and the Board affirmed the referee’s decision. Gordon then appealed to the Circuit Court of Lauderdale Country which affirmed the decision of Board of Review of the MESC. Additional pertinent facts will be related during the discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. An appellate court’s review of a decision of the MESC is limited. Booth v. Miss. Employment Sec. Comm’n, 588 So.2d 422, 424 (Miss.1991). “When reviewing a decision of the MESC, this Court must affirm when the decision is supported by substantial evidence.” Reeves v. Miss. Employment Sec. Comm’n, 806 So.2d 1178, 1179(¶ 5) (Miss.Ct.App.2002).

¶ 7. It is well established that this Court will give great deference to an administrative agency’s findings and decisions. Allen v. Miss. Employment Sec. Comm’n, 639 So.2d 904, 906 (Miss.1994)., “We will not reweigh the facts in a given case or attempt to substitute our judgment for the agency’s judgment.” Id. ‘We will overturn an agency’s decision only where the agency’s order: 1) is not supported by substantial evidence; 2) is arbitrary or capricious; 3) is beyond the scope or power granted to the agency; or 4) violates a person’s constitutional rights.” Id. “In any judicial proceedings under this section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” Miss.Code Ann. § 71-5-531 (Rev.2000).

¶ 8. The issue before us is whether Riley Hospital presented substantial, clear and convincing evidence that Gordon was terminated for misconduct as that term is defined in our statutory and decisional law, thereby undergirding the ME SC’s decision to deny unemployment compensation benefits. Stated another way, the issue is whether the decision of the MESC, denying unemployment compensation benefits to Gordon, is arbitrary and capricious and not supported by substantial evidence.

¶ 9. Robin Edwards, Gordon’s supervisor, testified that when she confronted Gordon about bringing the dirty linen through the clean linen door, he said, “I’m tired of the m-f telling me what I can and cannot do. If I want to bring the m- f sheets through here, I will.” Edwards testified that she reported the incident to her supervisor, Roy Childs, that Childs called Gordon into Childs’s office but that she did not go in the office with Gordon. After the office consultation, Childs terminated Gordon.

¶ 10. Edwards also testified that Gordon knew that bringing dirty linen through the door in which clean linen was moved was a violation of the hospital’s policy. When she was asked by the claims referee how Gordon knew it was against the hospital’s policy, Edwards answered, “[bjecause he knew, because he was told the rules and procedures.” The referee then asked Edwards who informed Gordon of the procedures, and she answered, “[wjhere’s that piece of paper? It’s this procedure right here, Kathy Brown.” Pursuant to the referee’s request, Edwards showed the piece of paper to the referee. What was shown was a one-page document entitled “Department Hazardous Materials and Waste Training Record — To be completed before employee’s first work assignment.” The document indicated, by a check in the yes column, that employee training had been provided for a number of things regarding the handling of hazardous materials, but it did not contain any indication that Gordon had been instructed or trained in the handling of dirty linen. This document contained the signature of Gordon as employee and the signature of Cathy Bryant as instructor.

¶ 11. Cathy Bryant did not testify, and neither did Kathy Brown, the person that Edwards identified as having informed Gordon of the rules and procedures relating to the handling of dirty linen. Perhaps, Edwards meant to identify Cathy Bryant, as opposed to Kathy Brown, as the person who informed Gordon of the rules. In any event, as already observed, neither Bryant nor Brown testified. After Edwards produced the “Department Hazardous Materials and Waste Training Record” as proof, which it was not, that Gordon had been instructed on the handling of dirty linen, Curnis Upkins with the Mississippi Hospital Association Diversified Services who was representing the hospital intervened:

Upkins: I’ll show you a copy of one of the manuals that is shown to employees in that infection control area.
Q. (by referee) Did this go along with this?
Upkins: Yes ma’am.
Q. (by the referee) Okay, let the record show that Mr. Upkins has handed me a copy of an Infection control, page 3 of 4, and has highlighted linen, clean linen will not be transported nor moved through the same pass as soiled linen. Is this the copy from the handbook?
Upkins: From the manual, Infection Control Manual.

Gordon, who represented himself in the hearing before the referee, objected to both documents.

¶ 12. Edwards admitted that an employee would not be fired for a single incident of moving dirty linen though the clean linen area. This is what the records shows:

Q. Alright. Is this grounds for automatic termination, to move this clean linen, I mean dirty linen on the clean linen side? I mean is that one thing there, would that be enough to discharge somebody? Ms. Edwards?
A. No, it wouldn’t.
Q. Okay, and did anything else happen on that day that he brought the dirty linen through the clean side?
A. Yes, he was insubordinate toward me.
Q. Okay, And what did he say?
A. He said I’m tired of the m-f-telling me what I can and cannot do. If I want to bring the m- f- sheets through here, I will. And he took it through there anyway, and walked out and slammed the door.
Q. Okay. And did you report this to your supervisor?
A. Yes, I did.
Q. And what was the result of that?
A. He, he.
Q. Who did you report it to?
A. Roy Childs.
Q. And who terminated him?
A. Roy Childs.
* * * *
Q. Okay, had anything like this ever happened before?
A. No, it hadn’t.
Q. Okay, was there anything else that would have brought about his discharge?
A. No.

¶ 13. Besides the statement by Upkins, who was not sworn to give testimony at the hearing, there was no evidence that Gordon had been given a copy of the Infection Control Manual or that he had even seen it before. The one sheet which was extracted from the manual does not bear Gordon’s signature. The “Department Hazardous Materials and Waste Training Record” sheet which Gordon signed does not indicate that any documents were attached to it. It appears to be a complete document in and of itself. Gordon testified that he did not get a copy of the infection control policy.

¶ 14. Gordon also testified that the door, through which he would have normally carried the soiled linen, was locked and that he waited approximately thirty minutes for his supervisor to unlock it. He further testified that he was trained by someone named Fred and that Fred told him that if the dirty linen door was locked, he should take the dirty linen through the other door, the one for the clean finen. Additionally, Gordon testified that “No one ever told me that that was, I wasn’t supposed to go through that door, until that Sunday morning I came in. Alright.” Moreover, he testified that Edwards “came down there hollering, and she was cursing when she came down there.” -He admitted, however, that she was not cursing him. He further admitted that he also cursed but denied that he cursed Edwards. He admitted to saying, “I’ll be damned, just like that, I couldn’t do my work.”

¶ 15. The only reason that was offered during the hearing for Gordon’s termination was the incident concerning the movement of the dirty linen. That explanation was offered at the very beginning of Edwards’s testimony:

Q. And what was the specific incident that happened on the last day he worked to cause his separation?
A. He was, he was bringing dirty linen through the clean side of the laundry, which that’s against the rules and procedures of the hospital.

¶ 16. We perhaps can infer that the verbal altercation between Edwards and Gordon also may have played a part, although no one, not even Edwards, testified that was the reason. She simply testified that the altercation occurred and that she reported it to her supervisor. She was not in the office with Gordon and Childs when Childs terminated Gordon. Gordon testified that Childs did not give him an explanation for the firing, that Childs just said, “well, you’re gone, just like that.” No one testified that the alleged profanity by Gordon was efficacious in bringing about his termination. No evidence was presented regarding the hospital’s policy on profanity if indeed it had one. While there were some statements made by hospital officials during the investigative stage that Gordon was terminated because of his use of profanity toward his supervisor and that use of profanity is grounds for automatic termination, no such testimony was given during the hearing before the referee.

¶ 17. In Wheeler v. Arriola, 408 So.2d 1381 (Miss.1982), our supreme court stated that “conduct may be harmful to [an] employer’s interests and justify the employee’s discharge; nevertheless, it evokes the disqualification for unemployment insurance benefits only if-it is wilful, wanton, or equally culpable.” Id. at 1383 (quoting Jacobs v. Cal. Unemployment Ins. Appeals Bd., 25 Cal.App.3d 1035, 1037, 102 Cal.Rptr. 364, 366 (1972)).

¶ 18. Section 71-5-513 A(l)(b) of the Mississippi Code of 1972, provides that “an individual shall be disqualified for [unemployment] benefits ... for misconduct connected with his work if so found by the commission.” Miss.Code Ann. § 71-5-513 A(l)(b) (Rev.2000).

¶ 19. The Mississippi Supreme Court has defined misconduct as:

conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee ... carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and'showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, [come] within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertence and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion [are] not considered misconduct within the meaning of the statute.

Wheeler, 408 So.2d at 1383. “The employer bears the burden of showing misconduct by clear and convincing evidence.” Trading Post, Inc. v. Nunnery, 731 So.2d 1198, 1202(¶ 15) (Miss.1999).

¶ 20. Based on the facts discussed in the earlier portion of this opinion, we find that the employer, Riley Hospital, failed to demonstrate by substantial, clear and convincing evidence that Gordon was terminated for misconduct in connection with his job. Therefore, we find that the decision of the MESC was arbitrary and capricious, lacking substantial evidentiary anchor.

¶ 21. There was no competent evidence that Gordon was ever told about the prohibition of bringing dirty linen through the clean linen door. The direct evidence offered on this point by the hospital representative, Robin Edwards, was based on her knowledge of a form that had nothing to do with procedures for handling dirty linen. Upkins attempted to fill the gap, but he was not a hospital employee. Moreover, he did not testify as to what Gordon was told about handling dirty linen. He produced a page from the infection control manual which spoke to the procedure for handling dirty linen, but he could only give generic testimony that the manual was “shown to employees in that infection control area.” Moreover, Edwards, the hospital’s representative, admitted that what Gordon did regarding the movement of the dirty linen would not be grounds for dismissal.

¶ 22. As we have already observed, a statement was made during the investigative stage that cursing results in an automatic dismissal. No such statement or testimony to that effect was given at the hearing which forms the evidentiary record for our review. The record of the investigative interview was not made an exhibit to the hearing.

¶ 23. While the referee found that Gordon “was discharged for violation of company policy and for cursing his supervisor when she confronted him,” the record does not support this finding. No one at the hearing testified that Gordon’s cursing his supervisor was the reason for his termination, and the employer’s witness, Edwards, testified that it was not company policy to terminate an employee for a single act of bringing dirty linen through the clean linen door. The Board of Review of the MESC adopted the findings of fact and opinion of the referee. Under our standard of review, we are bound by any factual findings of the Board of Review which, in the absence of fraud, are supported by evidence. Miss.Code Ann. § 71-5-531 (Rev.2000). As there was no evidence adduced at the hearing that Gordon was terminated for violating company policy or cursing his supervisor, we are not bound by that finding of the Board of Review.

¶ 24. At the hearing before the referee, the employer had the burden of proving disqualifying misconduct on Gordon’s part by substantial, clear, and convincing evidence That did not happen as the only reason given at the hearing for terminating Gordon was that he brought dirty linen through the clean linen door, and, as has already been noted, the employer admitted that that conduct was not grounds for termination.

¶ 25. Even if there had been evidence to support the Board of Review’s finding that Gordon was terminated for cursing his supervisor, thereby binding us to accept that fact, we would not find that finding as dispositive of the issue of whether the employer proved by substantial, clear and convincing evidence that Gordon was terminated for disqualifying misconduct.

¶ 26. Again, as we have noted elsewhere in this opinion, the record of the hearing contains not one scintilla of evidence relating to the employer’s policy, if indeed it had one, on the consequences of an employee’s use of profanity in the workplace, directed to a superior or anyone else. Even if there were, the evidence is clear that this was a single, isolated incident of using profanity. Gordon had no prior incidents. Moreover, while the profanity incident was characterized as an act of insubordination, the record does not clearly support that characterization. It is not clear whether Gordon had already moved the dirty linen through the clean linen door when Edwards confronted him. Based on one portion of Edwards’s testimony, one can conclude that he had not already gone through the clean linen door when she confronted him, yet portions of his supervisor’s testimony seem to indicate that she confronted him after discovering that he had already moved the dirty linen. However, whether he had or had not done so is not outcome determinative because again, this would be a single incident of insubordination.

¶ 27. We acknowledge that insubordination does fall within the scope of misconduct as it relates to unemployment compensation cases. Insubordination is defined as “a constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority.” Gore v. Miss. Employment Sec. Comm’n, 592 So.2d 1008, 1010 (Miss.1992) (quoting Sims v. Bd. of Trustees, Holly Springs Mun. Separate Sch. Dist., 414 So.2d 431, 435 (Miss.1982)). “Insubordination may amount to misconduct.” Young v. Miss. Employment Sec. Comm’n, 754 So.2d 464, 466(¶ 7) (Miss.1999).

¶ 28. There is no substantial, clear and convincing evidence that Gordon constantly, continually and intentionally disobeyed a direct order from his supervisor. There is evidence that he may have done so on one occasion, but that one occasion does not rise to the level of insubordination as defined in Gore.

¶ 29. We do not question that the employer had a legitimate basis for terminating Gordon, but a termination for cause does not necessarily mandate that unemployment benefits be denied. Misconduct giving rise to a denial of unemployment compensation benefits must meet the requirements of Wheeler.

¶ 30. Here, it is undisputed that Gordon had been waiting for approximately thirty minutes for the door to be unlocked so that he could move the dirty linen through the proper door. He testified that he was angry for having to wait so long as he had other work that he needed to get done. Under these circumstances, although it is perhaps understandable why he was miffed, there still was no justification for using profanity toward his supervisor. But by the same token, it is more than a stretch to say that what he did in this one single incident was the equivalent of a “willful and wanton disregard of [his] employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee.” Wheeler, 408 So.2d at 1883.

¶ 31. The dissent cites Mississippi Employment Sec. Commission v. Hudson, 757 So.2d 1010 (Miss.Ct.App.2000) in support of its contention that Gordon’s sole, single act of cursing his supervisor rises to the level of a disqualifying act of insubordination and misconduct. With respect, we must say the dissent has misread our holding in Hudson. In Hudson, the employee was denied unemployment benefits “based on her refusal to perform her assigned tasks and for her use of profanity directed towards her team leader and supervisor.” Id. at 1012(¶ 6). The employee repeatedly refused to perform her assigned tasks despite the supervisor’s attempts to teach her how to perform the tasks. Id. at 1014—15(¶ 12).

¶ 32. For the reasons discussed, we reverse and render the decision of the MESC denying unemployment compensation benefits and the order of the trial court affirming the decision of the MESC and remand this case to the MESC for a determination and an award of benefits.

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY IS REVERSED AND RENDERED AND THE CASE IS REMANDED TO THE MISSISSIPPI EMPLOYMENT SECURITY COMMISSION FOR AN AWARD OF BENEFITS.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, MYERS AND CHANDLER, JJ„ CONCUR. GRIFFIS, J„ DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BRIDGES AND LEE, JJ.

GRIFFIS, J.,

Dissenting:

¶ 34. The majority reweighs the evidence and substitutes its judgment for that of the administrative agency, the Mississippi Employment Security Commission (“MESC”). Finding that the decision by the MESC’s Board of Review was proper and neither arbitrary nor capricious, I dissent.

¶ 35. The finding of facts by the board of review is to be considered conclusive “if supported by evidence and in the absence of fraud.” Miss.Code Ann. § 71-5-531 (Rev.2000). Our review is limited to questions of law. Id. The Mississippi Supreme Court explained this standard of review in Allen v. Mississippi Employment Security Commission, 639 So.2d 904, 906 (Miss.1994):

This Court’s standard of review of an administrative agency’s findings and decisions is well established. An agency’s conclusions must remain undisturbed unless the agency’s order 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights. A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise. Lastly, this Court must not reweigh the facts of the case or insert its judgment for that of the agency.

¶ 36. The board of review determined that Gordon’s actions, comments and conduct constituted misconduct. Indeed, Gordon’s violation of his employer’s instructions and policy appears blatant. Although he may have been angry and miffed, he had no excuse for violating the hospital’s policy. The hospital admitted that one incident of moving soiled linen through the clean linen area was not grounds for termination. However, the hospital terminated Gordon for being insubordinate in his response to his supervisor. When he was confronted with his error, Gordon responded with abusive, vulgar and profane language. The board of review found substantial credible evidence to support a conclusion that Gordon made the statement “I’m tired of m-f-telling me what I can and cannot do. If I want to bring the m- f- sheets through here, I will.” The majority refers to this as simply the profanity incident and concludes that this was not misconduct. We must look at both parts of Gordon’s outburst at his supervisor.

¶ 37. First, Gordon’s statement that “I’m tired of m- f- telling me what I can and cannot do” clearly indicated that he neither respected nor intended to follow his employer’s instructions and policy. For a hospital, it is extremely important that the instructions and policy be followed, especially in the area of infection control. It was foreseeable that Gordon’s actions could cause the spread of infection and lead to the further injury or death of patients.

¶ 38. Second, Gordon’s statement to his supervisor that “If I want to bring the m- f- sheets through here, I will” clearly indicated that he had no intention of following his employer’s instruction or policy in the future. This statement can only be characterized as a willful or deliberate refusal to comply with necessary rules and regulations. Indeed, Gordon’s statement blatantly indicated his past and future intent to disregard his employer’s directives. The potential result was a serious risk to the health of the hospital’s patients.

¶ 39. When examined under the definition of misconduct established in Wheeler, Gordon’s actions, comments and conduct, clearly constituted “conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee ... wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer..." Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982).

¶ 40. Furthermore, insubordination is included in the definition of misconduct. Young v. Miss. Emp. Sec. Comm’n, 754 So.2d 464, 466(¶ 7) (Miss.1999). In Mississippi Employment Security Commission v. Hudson, 757 So.2d 1010, 1012(¶ 3) (Miss.Ct.App.2000), we considered whether vulgar and offensive profanity constituted insubordination. This Court affirmatively answered the “question of whether the uttering of vulgar obscenities by an employee directed at their supervisor rises to the level of a disqualifying act of insubordination and misconduct.” Id. at 1014(¶ 12). We reversed the circuit court and reinstated the board of review’s decision to deny benefits. Judge Thomas concluded that “[t]he evidence in this case reveals that Hudson’s utterings are the result of her displeasure with her supervisor’s repeated orders to perform an authorized and reasonable task. We cannot say that such an incident does not rise to the level of a disqualifying act of insubordination and misconduct.” Id.

¶41. Unfortunately, profanity in the workplace is all too common. At one time, profanity toward a supervisor, in and of itself, would be sufficient to find an employee insubordinate. However, the standards of our society have been, and by this decision are further lowered to accept or overlook such outbursts of abusive, vulgar and profane language. Hudson stands for the proposition that profanity in the workplace, coupled with other words or actions, can be sufficient to establish misconduct or insubordination. The only distinction is that there was more than one profanity incident in Hudson. Here, while there was only one incident, the words Gordon chose to use along with the profanity clearly expressed that he did not and would not follow his employer’s policy.

¶ 42. Gordon’s employer chose not to place its patients at risk and terminated Gordon immediately for his misconduct and insubordination. MESC correctly determined that Gordon’s actions, comments and conduct constituted misconduct, which disqualified him from unemployment compensation benefits. Certainly, Gordon’s response to his supervisor’s instruction was insubordinate. Accordingly, I would affirm the decisions of the MESC and the circuit court.

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

      . Childs did not testify at the hearing, and no evidence was offered as to Childs's reason for the termination.


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Floyd HALEY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CA-00397-COA.
    Court of Appeals of Mississippi.
    Jan. 27, 2004.

      M.A. Bass, Jr., attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Floyd Haley filed a pro se motion for post-conviction collateral relief alleging that his conviction and/or sentence was unconstitutional and that he was entitled to relief on the basis of double jeopardy, due process, and ineffective assistance of counsel. The trial judge of the Circuit Court of Copiah County denied Haley’s motion as having no merit. Feeling aggrieved, Haley appeals and argues that the trial court erred in denying his motion.

¶ 2. We find no error; therefore, we affirm the trial court’s denial of post-conviction relief but remand the case for entry of an order correcting and supplementing the record as to post-trial proceedings relating to Haley’s sentence.

FACTS

¶ 3. Haley went to trial on a charge of burglary of a dwelling. The jury found him guilty as charged, and the trial judge sentenced him to sixteen years in the custody of the Mississippi Department of Corrections. Within a week of the conviction, Haley filed a petition to enter a plea of guilty to the same offense. In the petition, the State agreed that it would recommend to the trial judge that Haley receive a reduced sentence of ten years. The trial judge accepted the State’s recommendation and entered an amended sentencing order in which he imposed the reduced sentence.

¶ 4. More than a year after his conviction, Haley filed his pro se motion for post-conviction collateral relief (PCR) based on double jeopardy, a denial of due process, and ineffective assistance of counsel. As to the double jeopardy issue, Haley argued that the trial court “erred in accepting and offering a plea after [he had] already [been] found guilty by a trial jury and sentenced.” Haley’s second argument alleged a denial of due process. He contended that the trial court “erred in convicting [him] when the jury did not prove [sic] beyond a reasonable doubt every element of the crime and thus violated his due process rights as described in the Fourteenth Amendment of the United States Constitution.”

¶ 5. Haley asserted that, at the time of trial, there was no evidence except hearsay statements made by the victim. Moreover, Haley maintained that the State did not prove that he was on the property or anywhere near it, thus the “verdict was against the overwhelming wieght [sic] of the evidence because the State did not prove the [sic] beyond a reasonable doubt that the defendant committed the crime.” In his last argument, Haley asserted that the trial court “erred in convicting [him] of the crime because his legal counsel erred in allowing conviction when he should have asked for a directed verdict because the State failed to prove element [sic] of burglary beyond a reasonable doubt.” Haley concluded his PCR motion by requesting that the trial court “dismiss the full indictment on this petitioner after an eventuary [sic] hearing for the constitutional wrongs and injustice of the illegal conviction in the jury verdict.”

¶ 6. The trial court denied Haley’s motion for PCR without an evidentiary hearing, finding that the motion lacked merit. Haley then filed this appeal.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 7. When reviewing a lower court’s decision to deny a petition for post-conviction relief an appellate court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999) (citing Bank of Miss. v. Southern Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)).

¶ 8. In his appeal to this Court, Haley, represented by counsel, abandons the double jeopardy argument and other contentions made in the trial court and argues claims not presented to the trial court in his PCR motion to support his contention that the trial court erred in not granting his motion. It is well established in Mississippi case law that an appellate court will not consider or review issues that were not raised in the trial court. Crenshaw v. State, 520 So.2d 131, 134 (Miss.1988). A defendant is procedurally barred from raising an objection on appeal that is different than that raised at trial. Jones v. State, 606 So.2d 1051, 1058 (Miss.1992). A trial judge cannot be put in error on a matter which was not presented to him for decision. Logan v. State, 773 So.2d 338, 346 (¶ 29) (Miss.2000).

¶ 9. We find, as urged by the State, that all issues raised by Haley in this appeal are procedurally barred because they were not presented to the trial court in his PCR motion. However, the record sent up with this appeal indicated that Haley might have been twice convicted and twice sentenced for the same crime. To resolve this concern, we requested a supplementation of the record to explain the existence of two separate orders, each of which indicated that Haley had been convicted of burglary and received a sentence for it, one order indicating the sentence was sixteen years and the other order indicating that the sentence was ten years.

¶ 10. The trial court complied with this Court’s request and advised that following Haley’s conviction by the jury and sentence by the court, he filed a motion for a new trial which the State agreed should be granted. The parties then entered into a plea agreement whereby Haley agreed to plead guilty to burglary, and the State agreed to recommend a sentence of ten years. For some inexplicable reason, the motion for a new trial was never filed but was in fact acted upon by the trial court. The petition to plead guilty was filed and made a part of the record. Prior to entering the judgment of conviction and sentence pursuant to the plea of guilty, the trial court inadvertently failed to enter an order granting the motion for a new trial and setting aside the earlier conviction and sentence. Instead, the trial court entered an amended sentencing order which failed to even mention the prior sentencing order.

¶ 11. Consequently, we affirm the trial court’s denial of post-conviction relief, but we remand the case to the trial court for entry of an order consistent with the post-trial proceedings relative to the disposition of the motion for new trial and subsequent order of conviction and sentence.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY DENYING POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED BUT THE CASE IS REMANDED TO THE TRIAL COURT FOR ENTRY OF AN ORDER CONSISTENT WITH THE POST-TRIAL PROCEEDINGS RELATIVE TO THE DISPOSITION OF THE MOTION FOR NEW TRIAL AND SUBSEQUENT ORDER OF CONVICTION AND SENTENCE. COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

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


author: BRIDGES, J.,

text:
    HEAD & ENGQUIST EQUIPMENT, L.L.C., Appellant v. PENELORE CORPORATION, Appellee.
    No. 2003-CA-00027-COA.
    Court of Appeals of Mississippi.
    Feb. 3, 2004.

      Grant M. Fox, Tupelo,John Stewart Tharp, John Allain Viator, attorneys for appellant.
    William C. Spencer, Flowood, Richard Henry Spann, Columbus, attorneys for ap-pellee.
    Before McMILLIN, C.J., BRIDGES, IRVING, and MYERS, JJ.
   BRIDGES, J.,

for the court.

¶ 1. Head & Engquist Equipment, LLC (“Head”), filed suit against Penelore Corporation (“Penelore”), in the 19th Judicial District Court, Parish of East Baton Rouge, Louisiana. In its suit it sought to recover unpaid rental charges owed by Penelore on the rental of excavation equipment. Penelore never appeared nor responded to the pleadings filed in Louisiana; therefore, Head soon received a default judgement against Penelore. Head then registered its judgment in the County Court of Lowndes County, Mississippi, in an attempt to collect. Penelore filed a motion with the county court to vacate the judgement for lack of personal jurisdiction by the courts in Louisiana. The county court granted this motion and vacated the judgment; a decision which was later affirmed by the Circuit Court of Lowndes County, Mississippi. From that decision Head now appeals.

STATEMENT OF THE ISSUES

I. WHETHER THE COUNTY COURT OF LOWNDES COUNTY, MISSISSIPPI, ERRED IN GRANTING DEFENDANT’S MOTION TO VACATE

FACTS

¶ 2. Head is a Louisiana limited liability corporation with its principal place of business in Baton Rouge, Louisiana. Penelore is a Mississippi corporation with its principal place of business in Lowndes County, Mississippi. Penelore has no other contacts or business relationships within Louisiana except the one at issue.

¶ 3. Penelore’s relationship with Head began when James Moore, a Penelore representative, purchased equipment parts from Head at its Baton Rouge location. The purpose of his visit to that location and the circumstances leading up to his introduction to Jeffrey Stringer, a Head equipment rental agent, are in dispute among the parties. Penelore states that Moore, who has since passed away, was there simply to purchase parts which may or may not have been for company use. Penelore also states that through conversations that day between Moore and Head employees it was discovered that Moore, through Penelore, was conducting a project to excavate a sunken steamboat in a Mississippi riverbed in Wilkinson County, Mississippi. Penelore claims it was merely “fortuitous” that Moore discovered that Head leased excavation equipment which Penelore could use on its project. Head, however, supports its claim by stating Moore went to its Baton Rouge location for the purpose of renting excavation equipment. Regardless of how the relationship began, Moore left Head’s location in Baton Rouge with a credit and rental application.

¶ 4. After some alleged phone negotiations between the parties the application was filled out in Mississippi and faxed to Stringer in Louisiana. Therefore, one half of the contract was executed in Mississippi and one half was executed in Louisiana. Penelore then leased a sixty foot boom excavator on a month to month basis. Less that two months after the rental of the machine, it malfunctioned causing Penelore to suffer losses from the delay. Head exchanged the sixty foot machine for a fifty-five foot machine. The lessor/ lessee relationship ended one month after the exchange because Penelore had incurred $23,000 in rental charges and had failed to pay anything on the balance.

¶ 5. Stringer was the salesman assigned the Mississippi sales territory so during the rental period Stringer visited the excavation site a couple of times and called Moore on the telephone several times. Also, during the business relationship between the companies a mechanic from Head traveled to the Mississippi site to service the machine. The terms of the contract between the parties included a “choice of law” clause which stated that Louisiana law would govern and control the document. It also included a provision that the machine would be shipped FOB Baton Rouge, meaning Penelore assumed liability for the machine in Baton Rouge.

ANALYSIS

I. WHETHER THE COUNTY COURT OF LOWNDES COUNTY, MISSISSIPPI, ERRED IN GRANTING DEFENDANT’S MOTION TO VACATE

¶ 6. When reviewing questions concerning jurisdiction, this Court employs a de novo review. This Court is in the same position as the trial court, with all facts set out in the pleadings or exhibits. Sorrells v. R & R Custom Coach Works, Inc., 636 So.2d 668, 670 (Miss.1994). Also, when reviewing a judgment rendered by a “competent jurisdiction in a sister state ... a presumption of validity as to ... [its] assumption of jurisdiction” is given. Galbraith and Dickens Aviation Ins. v. Gulf Coast Aircraft, 396 So.2d 19, 21 (Miss.1981) (citing Marsh v. Luther, 373 So.2d 1039 (Miss.1979)).

A. FULL FAITH AND CREDIT

¶ 7. First of all Head charges this Court to grant full faith and credit to the judgment rendered in Louisiana. Under the United States Constitution, “[f]ull faith and credit shall be given in each state to the public acts, record and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.” U.S. Constitution, art. IV, § 1.

¶ 8. Granting full faith and credit is governed by limitations, primarily “that' full faith and credit does not apply if the rendering court did not have jurisdiction over the parties in the subject matter.” Sollitt v. Robertson, 544 So.2d 1378, 1381 (Miss.1989) (citing Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1020 (5th Cir.1982)). Since the main issue in this case concerns whether or not the Louisiana court had personal jurisdiction over Penelore, this threshold requirement for full faith and credit is not met.

¶ 9. If, after consideration of the elements pertaining to personal jurisdiction it is the determination of this Court that Louisiana did have personal jurisdiction, full faith and credit will be granted. However, if after consideration this Court determines personal jurisdiction did not exist full faith and credit will not be granted.

B. LOUISIANA’S LONG ARM STATUTE AND DUE PROCESS

¶ 10. Louisiana’s long arm statute reads in part:

A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
(1) Transacting any business in this state.
B. In addition to the provisions of Subsection A, a court of this state may-exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

La.R.S. 13:3201 (1991). Head is asserting personal jurisdiction under sections (A)(1) and (B) the “catch all” provision.

¶ 11. A foreign judgment received from a Louisiana court by a Mississippi corporation should be enforced by full faith and credit in Mississippi when the contract was “freely negotiated” with the absence of “fraud, undue influence, or overwhelming bargaining power.” Tel-Com Mgmt, Inc. v. Waveland Resort Inns, Inc., 782 So.2d 149, 151-2 (¶ 7) (Miss.2001). In Cappaert v. Walker, Bordelon, Hamlin, Theriot and Hardy, 680 So.2d 831, 835 (Miss.1996), the Mississippi Supreme Court recognized the constitutional due process standards for personal jurisdiction as set forth by the United States Supreme Court. “A defendant must have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Cappaert, 680 So.2d at 834 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). “A defendant’s contacts with the forum state must be such that he should reasonably anticipate being hauled into court there.” Cappaert, 680 So.2d at 835 (citing World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980)).

I. MINIMUM CONTACTS

¶ 12. Since the long arm statute allows Louisiana to exert personal jurisdiction over anyone doing business within the state, we compare Penelore’s contact to prior decisions under the doing business prong of the Louisiana long arm statute. Under the Louisiana Civil Code, La.R.S. 13:3471(1)(1991), “ ‘[transacting business,’ as used in Subdivision (a), is a term which is much broader than ‘doing business’ as defined by earlier Louisiana cases.... It is intended to mean a single transaction of either interstate or intrastate business, and to be as broad as the phrase ‘engaged in a business activity.’ ”

¶ 13. The Louisiana long arm statute allows the exercise of personal jurisdiction up to the limits of constitutional due process. Fuller v. Am. Recreational Vehicles, 801 So.2d 642, 644 (La.App. 3 Cir.2001). In Fuller, the court laid out United States Supreme Court cases which it believed defined the limits of minimum contact regarding contracts by a nonresident.

A nonresident has the necessary contacts with the forum state where it has a contract with a substantial connection to the forum state. (McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957)). In the specific area of interstate contracts, where a party has reached out beyond its domiciliary state and has created continuing obligations and relationships with citizens of another state, that party is subject to the regulations and sanctions in the other state for the consequences of its actions. Burger King Corp., 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528.

Id. Fuller held that agents of a corporation acting solely in their corporate capacity within Louisiana cannot be subject to personal jurisdiction- in their personal capacity. Id. at 646. The Fuller court also identified a requirement that an individual or corporation must “purposely avail” itself of the privileges of conducting business within the state. Id. at 645 (citing World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980)). Determination of this availment is dependent not upon unilateral activity but the “nature and quality” of the defendant’s actions within the forum state. Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).

¶ 14. Mr. Moore might have gone to Head’s Baton Rouge location for a purpose other than that of renting excavation equipment and may not have gone as an agent for Penelore at all. However, once he began to discuss with Mr. Stringer the requirements and. specifics of renting equipment to such an extent that he left with the necessary paperwork, he became Penelore’s agent transacting business within Louisiana. The future agreement he was contemplating at that time was the month to month rental of equipment. This was not a one time transaction but rather a continuous and ongoing relationship between the two corporations. Moore should have reasonably been aware that any dispute between the corporations regarding this lease would be brought in Louisiana state court.

¶ 15. The lease agreement itself on its second page contains sixteen provisions governing the lessor/lessee relationship. These provisions are in small but legible font. The last line of these provisions is a single sentence that is set apart from the other paragraphs. It reads, “[t]he lease is to take effect in Louisiana and is to be governed and controlled by the laws of that State.” The contract also required the equipment to be shipped FOB Baton Rouge. Penelore as a corporation is expected to read and be aware of such terms within a document and to understand that assuming liability for something while it is en route to Mississippi from Baton Rouge may put it at risk for lawsuits in Louisiana. Requiring it to uphold the terms of a contract it entered into freely even if those terms were not specifically agreed upon by the parties is not unconscionable for as a corporation Penelore is expected to read the fine print. Any corporation entering into such an agreement should reasonably be aware of the potential of a suit being brought in the Louisiana courts.

¶ 16. In our de novo review of the facts and circumstances surrounding Penelore’s contract with Head we find that Penelore did not sufficiently prove it lacked minimum contact with Louisiana as is required to vacate a sister state’s finding of jurisdiction. We find that Penelore did purposely avail itself of the privileges of doing business within the State of Louisiana and that through its .contract, Penelore did have a substantial and ongoing relationship with the state of Louisiana.

II. OFFEND TRADITIONAL NOTIONS OF FAIR PLAY AND SUB- . STANTIAL JUSTICE

¶ 17. In determining the issue of fair play and substantial justice we examine (1) the defendant’s burden; (2) the forum state’s interest in the dispute; (3) the plaintiffs interest in convenient and effective relief; (4) the judicial system’s interest in efficient resolution of controversies; and (5) the states’ shared interest in furthering fundamental social policies. Asahi Metal Indus. Co., Ltd. v.Super. Ct. of Ca., 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); World Wide Volkswagen Corp., 444 U.S. at 292 100 S.Ct. 559.

¶ 18. In considering these issues we do not find that Louisiana’s exercise of personal jurisdiction offends fair play and substantial justice. Allowing a corporation to choose the law it wishes to govern its contracts with other companies and corporations is not substantially unfair. Requiring a Mississippi corporation to travel to Louisiana to defend itself and the interest of Louisiana in resolving the disputes of its corporations is also not substantially unfair. Penelore did not support its claim with a sufficient showing of injustice. Its claim is based on the fact that it had only one isolated contact with Louisiana, Moore’s signing the document in Mississippi and his one initial trip to Louisiana. Those contacts are sufficient to make Penelore’s subjection to personal jurisdiction in Louisiana fair.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY IS REVERSED AND RENDERED, GIVING FULL FAITH AND CREDIT TO THE JUDGMENT OF THE LOUISIANA COURT. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


author: THOMAS, J„

text:
    David Michael RAY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00961-COA.
    Court of Appeals of Mississippi.
    Feb. 3, 2004.

      Allan D. Shackelford, Clarksdale, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   THOMAS, J„

for the Court.

¶ 1. David Michael Ray was convicted in the Circuit Court of Tunica County of grand larceny and was sentenced to five years in the custody of the Mississippi Department of Corrections and ordered to pay a fine of $1,000. Aggrieved, he asserts the following issues on appeal:

I. THE TRIAL COURT ERRED IN REFUSING JURY INSTRUCTION D-2.

II. THE TRIAL COURT ERRED IN FAILING TO GRANT A JUDGMENT NOTWITHSTANDING THE VERDICT.

III. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

Finding no error, we affirm.

FACTS

¶ 2. Deputy Cedric Davis of the Tunica County Sheriffs Department testified that he was traveling south on Old Highway 61 on April 9, 2000, when he noticed an older model Ford LTD pulling a large portable tank on a trailer. Deputy Davis noticed that the trailer did not have a tag or any taillights and that the vehicle was using a tire iron as a pull pin and was leaving a trail of sparks off of the pavement. Deputy Davis and another Tunica County sheriffs deputy pulled the vehicle over and identified the driver of the vehicle as David Michael Ray. An inebriated female, Donna Crosby, was a passenger in the vehicle.

¶ 3. When the deputies inquired where Ray was taking the tank, he stated that he was taking it to DeSoto County for a farmer whose name he could not remember. The deputies then contacted the narcotics unit and inquired about portable tanks in the area. Using information from the narcotics unit, the deputies contacted the manager of a farm owned by Brad Cobb which was located approximately three or four miles from the scene of the stop. The manager of the farm came to the scene and identified the tank as one of his that he had last seen approximately four hours before the stop.

¶ 4. At trial, Donna Crosby testified that earlier in the evening on April 9, she and Ray were at his sister’s house drinking and having a good time when they decided to go to Tunica to gamble. Crosby consumed a large amount of alcohol and testified to remembering almost nothing from her arrival at the casino in Tunica to her arrival in jail. She did recall a light at the time of the stop and seeing something large behind the car that had a sign that read “nonflammable gas.” This object was not attached to the car when they left Ray’s sister’s house. Crosby testified that she did not recall having anything to do with the tank.

¶ 5. Ray testified that while gambling at the Hollywood casino, he met up with an old friend, David Shelton, who has since died of Hodgkin’s disease. Ray testified that he played slots with Shelton, and that Crosby informed them that she was leaving the casino and would meet up with them later. Ray and Shelton then went to the Horseshoe Casino to eat the buffet. Approximately an hour and a half after Crosby left, Ray and Shelton left the casino and traveled down Old Highway 61. They came upon Crosby on the side of the road putting water in the radiator of her Ford LTD. The car was hooked up to a large portable tank on a trailer. Ray testified that he offered to help Crosby and drive the car to a gas station on Old 61. As he did so, he was pulled over by the Tunica County sheriffs deputies. Ray denies having had any knowledge of the theft of the tank.

¶ 6. At the conclusion of the trial, a jury found Ray guilty of grand larceny, and he was sentenced to a term of five years in the custody of the Mississippi Department of Corrections and ordered to pay a fine of $1,000. Ray then perfected an appeal to this Court.

ANALYSIS

I. THE TRIAL COURT ERRED IN REFUSING JURY INSTRUCTION D-2.

¶ 7. Ray asserts that the trial court erred in refusing his jury instruction D-2 which supported his theory of the case. Ray argues that there was no direct evidence as to who stole the tank in regard to who actually carried the tank away from the owner’s possession. According to Ray, the sole inculpatory evidence against him was that he was in possession of recently stolen property. Since his theory was that he came into possession of the tank after someone else had taken it from the rightful owner, Ray tendered an instruction to the court which read as follows:

The Court instructs the jury that unless the State has proven beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence, that the defendant took possession of the anhydrous ammonia tank allegedly stolen or aided or abetted others to do so, at a time that the tank was still in the possession of Brad Cobb or his agents, then you shall find the defendant not guilty.

¶ 8. After Ray tendered the above instruction, the prosecution objected arguing that the instruction was redundant and an incorrect statement of the law. The prosecution argued that circumstantial evidence had already been covered in the jury instructions, and that the instructions already stated that in order to convict Ray of aiding and abetting it must be found that he voluntarily participated in the crime with the intent to violate the law. Ray’s theory of the case was that he was helping Donna Crosby out on the side of the road and had no intent to violate the law. Also, the prosecutor pointed out that the language “at a time that the tank was still in the possession of Brad Cobb or his agents” was an incorrect statement of the law, since a person could aid or abet a grand larceny after possession had already changed hands. The trial court, finding a problem in the wording, agreed with the prosecutor and refused the instruction.

¶ 9. “A defendant is entitled to have jury instructions given presenting his theory of the case, but a proposed instruction can be refused if it incorrectly states the law, is fairly covered elsewhere in other instructions, or is without foundation in the evidence.” Davis v. State, 849 So.2d 1252, 1254 (¶ 9) (Miss.2003) (citing Poole v. State, 826 So.2d 1222, 1230 (Miss.2002); Jones v. State, 797 So.2d 922, 927 (Miss.2001); Adams v. State, 772 So.2d 1010, 1016 (Miss.2000); Higgins v. State, 725 So.2d 220, 223 (Miss.1998)). In the case at bar, Ray’s instruction did not properly state the law, as was noted by both the prosecutor and the trial court. Mississippi Code Annotated Section 97-17-41 (Rev. 2003) does not require “possession by the owner or agent” as Ray proposed in his instruction. Ray’s theory of helping Donna Crosby and having no knowledge or intent regarding the tank was covered by other instructions which clearly stated that the prosecution must prove his intent to violate the law.

¶ 10. This issue is without merit.

II. THE TRIAL COURT ERRED IN FAILING TO GRANT A JUDGMENT NOTWITHSTANDING THE VERDICT.

III. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 11. Ray asserts that the trial court erred in failing to grant his motion for a judgment notwithstanding the verdict. Ray argues that the case against him was purely circumstantial and that the proof was not beyond a reasonable doubt. Merely being in possession of the tank was insufficient for the jury to find him guilty of grand larceny. Ray asserts alternatively that the verdict was against the overwhelming weight of the evidence and that he should at the very least be entitled to a new trial.

¶ 12. A motion for a directed verdict, request for peremptory instruction, and motion for judgment notwithstanding the verdict all challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). “If there is sufficient evidence to support a verdict of guilty, this Court will not reverse.” Meshell v. State, 506 So.2d 989, 990 (Miss.1987). See also Haymond v. State, 478 So.2d 297, 300 (Miss.1985); Fairley v. State, 467 So.2d 894, 902 (Miss.1985). This Court should reverse only where, “with respect to one or more elements of the offense charged, the evidence so considered is such that reasonable and fair minded jurors could only find the accused not guilty.” Alexander v. State, 759 So.2d 411, 421(¶ 23) (Miss.2000) (quoting Gossett v. State, 660 So.2d 1286, 1293 (Miss.1995)).

¶ 13. The standard of review in determining whether a jury verdict is against the overwhelming weight of the evidence is also well settled. “[T]his Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Collins v. State, 757 So.2d 335, 337(¶ 5) (Miss.Ct.App.2000) (quoting Dudley v. State, 719 So.2d 180, 182(¶ 9) (Miss.1998)). On review, the State is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Collins, 757 So.2d at 337(¶ 5) (citing Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992)). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Collins, 757 So.2d at 337(¶ 5) (quoting Dudley, 719 So.2d at 182).

¶ 14. In the case at bar, Ray was stopped while driving a vehicle that was pulling a stolen tank, only several miles away from the farm from which the tank had been stolen. Upon being stopped, Ray attempted to provide an explanation that he was transporting the tank for a farmer in DeSoto County whom he could not name. At trial, his explanation changed to include testimony that he stopped to help Crosby with an overheated vehicle. Crosby was his friend with whom he had ridden to the casino earlier in the evening. Other testimony at trial provided that Crosby was highly intoxicated at the time of the stop, making Ray’s explanation neither reasonable nor credible.

¶ 15. It has been established that “the jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness.” Meshell v. State, 506 So.2d at 991. See also Hilliard v. State, 749 So.2d 1015, 1017(¶9) (Miss.1999); Lewis v. State, 580 So.2d 1279, 1288 (Miss.1991); Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979). As trier of fact, it was the jury’s duty to determine what evidence was to be believed and what evidence was to be disregarded. Mangum v. State, 762 So.2d 337, 347(¶ 36) (Miss.2000).

¶ 16. There is sufficient evidence for a reasonable and fair minded juror to find Ray guilty of the crime with which he was charged. Accepting as true the evidence which supports the verdict, the verdict was not against the overwhelming weight of the evidence. Ray’s assertions of error are without merit.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY OF CONVICTION OF GRAND LARCENY AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SENTENCE TO RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED, FINE OF $1,000 AND FULL RESTITUTION TO VICTIM IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE TUNI-CA COUNTY.

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


author: GRIFFIS, J.,

text:
    Steven R. HEATHERLY a/k/a Steven Heatherly, Appellant, v. STATE of Mississippi, Appellee.
    Nos. 2002-KA-01415-COA, 2002-KA-01408-COA.
    Court of Appeals of Mississippi.
    Feb. 3, 2004.
    See also, 757 So.2d 357, 773 So.2d 405.
    David O. Bell, Oxford, attorney for appellant.
    Office of Attorney General by Deirdre McCrory, Charles W. Maris, attorneys for appellee.
    Before KING, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Steven R. Heatherly appeals two separate convictions by the Circuit Court of Lafayette County. Both appeals were deflected to this Court. While dealing with separate convictions and consecutive sentences, both appeals argue the same issue — whether the trial court abused its discretion in sentencing. Therefore, we consolidate both appeals for review. Finding no error, we affirm.

FACTS

¶ 2. Steven R. Heatherly returns to this Court for his third and fourth appeals. See Heatherly v. State, 773 So.2d 405 (Miss.Ct.App.2000); Heatherly v. State, 757 So.2d 357 (Miss.Ct.App.2000).

¶ 3. On May 22, 1998, Heatherly was indicted for four separate sales of controlled substances; specifically, the: (1) sale of 34.36 grams of marijuana, (2) sale of $320 worth of methamphetamine, (3) sale of less than one ounce of marijuana, and (4) sale of $100 worth of methamphetamine. Heatherly was tried separately on each indictment. The following is a chronology of the trials and resulting sentences.

¶ 4. In January of 1999, Heatherly was convicted of the charge in the first indictment, for the sale of 34.36 grams of marijuana. He was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. On appeal, this Court affirmed this conviction in Heatherly v. State, 757 So.2d 357 (Miss.Ct. App.2000) ("Heatherly I”).

¶ 5. On April 13, 1999, Heatherly was convicted of the charge in the second indictment, for the sale of $320 worth of methamphetamine. He was sentenced to serve thirty years, to run consecutively with the twenty year sentence, and fined $10,000 plus court costs. This appeal is Case No. 02-KA-1415 COA, which we now consider.

¶ 6. Between April and September of 1999, Heatherly was convicted of the charge in the third indictment, for the sale of less than one ounce of marijuana. He was sentenced to serve three years, to run consecutively with the twenty year sentence and the thirty year sentence, for a total of fifty-three years. On appeal, this Court affirmed this conviction and his sentence in Heatherly v. State, 773 So.2d 405 (Miss.Ct.App.2000) (“Heatherly II”).

¶ 7. On September 21, 1999, Heatherly was convicted of the charge in the fourth indictment, for the sale of $100 worth of methamphetamine. He was sentenced to serve thirty years, with ten years suspended, five years’ post-release supervision, to run consecutively with the previous sentences, and fined $1,000 plus court costs. This appeal is Case No.2002-KA-01408 COA, discussed herein.

¶ 8. Circuit Court Judge Kenneth Coleman presided over each trial and sentencing. Heatherly was sentenced to serve four consecutive sentences, totaling seventy-three years.

LEGAL ANALYSIS

1. Case No.2002-KA-H15. Whether the trial court erred in sentencing Heatherly to thirty years for the sale of $320 worth of methamphetamine to run consecutively to his previous twenty year sentence.

¶ 9. We first address Heatherly’s appeal of the thirty year sentence in Case No.2002-KA-01415 COA. Heatherly argues that the court erred in sentencing him to thirty years to run consecutively to his previous twenty year sentence, for a total of fifty years.

¶ 10. As a general rule, “[sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Handford v. State, 736 So.2d 1069(¶ 11) (Miss.Ct.App.1999) (citing Reynolds v. State, 585 So.2d 753, 756 (Miss.1991)). However, where a sentence is “grossly disproportionate” to the crime committed, the sentence is subject to attack on the grounds that it violates the Eighth Amendment prohibition of cruel and unusual punishment. Wallace v. State, 607 So.2d 1184, 1188 (Miss.1992).

¶ 11. Mississippi Code Annotated Section 41-29-139 (Rev.2001) provides in part:

(a) it is unlawful for any person knowingly or intentionally:
(1) To sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance
(b) any person who violates subsection (a) of this section shall be sentenced as follows:
(1) In the case of controlled substances classified in Schedule I or II, as set out in Sections 41-29-113 and 41-29-115 ... such person may, upon conviction be imprisoned for not more than thirty years (30) and shall be fined not less than Five Thousand Dollars ($5,000) nor more than One Million Dollars ($1,000,000), or both.

(emphasis added). Methamphetamine is a Schedule II controlled substance. Miss. Code Ann. Section 41-29-115 (Rev.2001). Accordingly, the sentence was within the legal limit established by Mississippi Code Annotated Section 41-29-139 (Rev.2001).

¶ 12. We are of the opinion that this Court’s prior decision, in Heatherly II, is determinative of this appeal. In Heatherly II, this Court considered Heatherly’s conviction on the sale of marijuana. The circuit judge sentenced Heatherly to serve three years, to run consecutively with the prior twenty and thirty year sentences. The thirty year sentence is now the subject of the current appeal.

¶ 13. In Heatherly II, Heatherly argued that a total sentence of fifty-three years in prison was grossly disproportionate punishment for the controlled substance crimes for which he had been convicted. This Court affirmed the total sentence of fifty-three years and held:

We do not purport to get into the logistics of Heatherly’s earlier indictments and convictions; however, we note that the sentences that he received in both of those instances were based on statutory guidelines as well. The charge that we are looking to here, the sale of less than one ounce of marijuana, is a separate and distinct charge from those previous indictments. There is no evidence in the record and nothing presented by Heath-erly which would indicate to this Court that the instant charge was intended to be a “package deal” so to speak. In other words, we find nothing that would prove that the State offered a plea bargain or any other deal that would give Heatherly only one all-inclusive sentence for all of his controlled substance convictions. In actuality, the fact that Heath-erly is already serving separate sentences for different previous controlled substance convictions indicates to this Court that the State did not intend for the sentence in the instant charge to be merged into his existing sentences which he is now serving, hence the reason the State pursued this charge separately. We find, and Heatherly provides, no association between the charge at issue here and the previous crimes for which Heatherly is already being punished. As such, according to the statute, the sentence received by Heath-erly for the sale of less than one ounce of marijuana is within the law and is far from being grossly disproportionate to the crime.
It is also interesting to note that, as a defendant, with previous multiple convictions for controlled substances, it was well within the court’s discretion to give Heatherly even more than a three year sentence. Miss.Code Ann. § 41-29-147 (Rev.1993). Under the statute, “any person convicted of a second or subsequent offense under this article may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.” Id. Because of this law providing that the trial judge had the power to actually sentence Heatherly to up to six years in prison, we find that Heatherly’s cause here is even more defunct and that his sentence of three years for the crime of the sale .of less than one ounce of marijuana should stand. Heatherly should be grateful that the trial judge did not turn his three year statutory sentence into a six year sentence for repeated offenses. We find that Heatherly simply has no argument on this issue that measures even an ounce of merit.

Heatherly, 773 So.2d at 409 (¶¶ 13-14) (emphasis added). In Heatherly II, this Court considered the thirty year sentence that is now at issue in this appeal, and we determined that the totality of the sentence was not grossly disproportionate to the crime.

¶ 14. In Stromas v. State, 618 So.2d 116, 122 (Miss.1993), the Mississippi Supreme Court considered a similar factual scenario — a thirty year sentence imposed pursuant to Mississippi Code Annotated Section 41-29-139(b)(l) for the sale of only a modest amount of cocaine — and found no error. Although Stromas did not involve a consecutive sentence, it involved a double sentence imposed under the “subsequent offender statute,” Mississippi Code Annotated. Section 41-29-147, that resulted from a single previous drug-related conviction. Id. Stromas was ultimately sentenced to sixty years. The supreme court reasoned:

[Mississippi Code Annotated Section] 41 — 29—139(b)(1) is very broad in its application. The sale or intent to sell any amount of cocaine is covered. Although Stromas sold .only a small amount of cocaine, he received the maximum term penalty, 30 years, but he received less than the maximum total penalty since no fine was imposed.... Although this sentence seems, quite severe, it is not a “grossly disproportionate” sentence for the crimes that Stromas committed. Drug offenses are very serious, and the public has expressed grave concern unth the drug problem. The legislature has responded in kind with stiff penalties for drug-. offenders. It is the legislature’s prerogative, and not this Court’s, to set the length of sentences. Because this sentence was within the statutory guidelines, and because our legislature, as a matter of public policy, has called for, harsh penalties for drug offenders such as Stromas, Solem v. Helm[, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)] is not implicated in this case. Declaring a sentence violative of the Eighth Amendment to the U.S. Constitution carries a heavy burden and only in rare cases should this Court make such a finding.

Stromas, 618 So.2d at 123 (emphasis added).

¶ 15. We. find that the sentence of thirty years was authorized by the statute under which Heatherly was convicted, and the length of the sentence was within the discretion of the trial judge. We also find that the charge and conviction in question was separate and distinct from the other indictments. As we determined in Heatherly II, there is no evidence that this present charge was intended to be a “package deal.” The trial court exercised its discretion to sentence Heatherly independently from his previous conviction. See Erwin v. State, 557 So.2d 799, 803 (Miss.1990) (each sentence is to be imposed without respect to the other).

¶ 16. Accordingly, we find no error in the trial court’s sentencing and find this assignment of error to be without merit.

2. Case No. 02-KA-0H08. Whether the trial court erred in sentencing Heatherly to thirty years with ten years suspended and five years of post-release supervision for the sale of $100 worth of methamphetamine to run consecutively to his previous twenty, thirty, and three year sentences.

¶ 17. Next, we address Heatherly’s appeal of the twenty year sentence in Case No.2002-KA-01408 COA. Heatherly argues that the court erred in sentencing him to twenty additional years to run consecutively to his previous fifty-three year sentence, for a total sentence of seventy-three years. Heatherly again argues that the combined sentence is excessive and constitutes an abuse of the trial court’s discretion.

¶ 18. We will not restate the above discussion. The only difference in this appeal is the addition of the latest thirty year sentence, with ten years suspended. Like above, the sale of $100 worth of methamphetamine was a separate and distinct charge from the previous indictments. We find no association between the charge at issue here and the previous crimes for which Heatherly is already being punished. Therefore, we find that the trial court had the discretion to sentence Heatherly on this conviction independently from his previous convictions. See Erwin v. State, 557 So.2d 799, 803 (Miss.1990) (each sentence is to be imposed without respect to the other).

¶ 19. As such, Heatherl/s sentence of an additional twenty years for the sale of methamphetamine is legal and is not grossly disproportionate to the crime. Miss.Code Ann. Section 41-29-139 (Rev. 2001). See also Handford v. State, 736 So.2d 1069(¶ 11) (Miss.Ct.App.1999) (sentence not subject to appellate review if it is within the limits prescribed by statute.)

¶ 20. We recognize that Heatherly has been sentenced to serve a total of seventy-three years in prison. The circuit judge was clearly familiar with Heatherly and his criminal activities. Indeed, in addition to these convictions, Heatherly had a pending indictment for capital murder. Heatherly’s reputation is that of a habitual criminal. The crimes Heatherly committed were serious, The circuit judge was duty bound to sentence Heatherly, and he did so within the statutory requirements and within his discretion. We will not substitute our discretion for that of the circuit judge. He was present at each of the trials, heard the evidence, considered the significance of the crimes, and entered his judgment consistent with the law. The circuit judge chose not to award Heatherly a volume discount in his sentencing.

¶21. We find that the trial court did not abuse its discretion and find this assignment of error to be without merit.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY IN CAUSE NO. LK98-174 OF CONVICTION OF THE SALE OF METHAMPHETAMINE AND SENTENCE OF THIRTY YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS TO RUN CONSECUTIVELY TO A PREVIOUS TWENTY YEAR SENTENCE AND TO PAY A FINE OF $10,000 IS HEREBY AFFIRMED. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY IN CAUSE NO. LK98-171 OF CONVICTION OF THE SALE OF METHAMPHETAMINE AND SENTENCE OF THIRTY YEARS, TEN YEARS SUSPENDED, FIVE YEARS POST-RELEASE SUPERVISION IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SENTENCE TO RUN CONSECUTIVELY TO PREVIOUS SENTENCES, FINE OF $1,000 AND $100 TO VICTIM’S COMPENSATION FUND IS ALSO HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO LAFAYETTE COUNTY.

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


text:
    Frank HEBERT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-00395-COA.
    Court of Appeals of Mississippi.
    Feb. 3, 2004.

      Frank Hebert and Mary Hebert, appellants, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES, IRVING, and MYERS, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. Frank Hebert was indicted by the grand jury of Lincoln County on the charge of sexual battery in violation of Mississippi Code Annotated section 97-3-95. Frank was convicted and sentenced to serve a term of ninety-three years in the Mississippi Department of Corrections. Frank filed a motion for post-conviction relief which the circuit judge denied for failing to allege with specificity and detail any asserted errors of Mary’s attorney which would result in an ineffective assistance of counsel claim, and for failing to allege with specificity and detail any cause or prejudice which would result in any other claim under the PosWConviction Relief Act. Frank now appeals to this Court. Frank’s issues stated in his brief are listed below verbatim.

STATEMENT OF THE ISSUES

I. WHETHER LOWER COURT ER-RORED [sic] IN DENYING THE APPELLANTS DUE PROCESS OF THE LAW.

II. WHETHER COURT ERRORED [sic] IN DENYING EFFECTIVE ASSISTANCE OF COUNSEL TO CO-APPELLANT AT PRE-TRIAL PROCEEDINGS AND PLEA HEARING.

III. WHETHER COURT ERRORED [sic] IN DENYING APPELLANT EFFECTIVE COUNSEL AND WAS COUNSEL INEFFECTIVE AT PRETRIAL PROCEEDINGS AND HEARING.

FACTS

¶ 2. Frank’s indictment contained eleven individual counts charging him with sexual battery, gratification of lust, exploitation of a child, and conspiracy. Frank entered pleas of guilty on November 28, 2001, and following the plea hearing, the circuit judge sentenced and fined Frank. On December 17, 2002, approximately thirteen months following his plea of guilty, Frank filed his motion for post-conviction relief. The motion claimed issues of ineffective assistance of counsel and involuntary plea. On January 11, 2003, Frank’s motion for post-conviction relief was summarily denied as manifestly without merit. Frank now appeals to this Court.

ANALYSIS

1. WHETHER LOWER COURT ER-RORED [sic] IN DENYING THE APPELLANTS DUE PROCESS OF THE LAW.

¶ 3. Frank assigns as one of his issues that he was denied due process “of the law.” He does not discuss due process nor does he indicate in his brief how his due process rights were violated. Since we have no basis for discussion of either case law or argument, it is impossible for us to address this matter.

II. WHETHER COURT ERRORED [sic] IN DENYING EFFECTIVE ASSISTANCE OF COUNSEL TO CO-APPELLANT AT PRE-TRIAL PROCEEDINGS AND PLEA HEARING.

III, WHETHER COURT ERRORED [sic] IN DENYING APPELLANT EFFECTIVE COUNSEL AND WAS COUNSEL INEFFECTIVE AT PRETRIAL PROCEEDINGS AND HEARING.

¶ 4. Another assignment of error made by Frank is that he received ineffective assistance of counsel in that defense counsel failed to perform an independent investigation of the evidence which the State alleged to have had against Frank. Frank also claims that he was “materially misad-vised as to the duration of his sentence.”

¶ 5. In Burnett v. State, 831 So.2d 1216, 1220(¶ 17) (Miss.Ct.App.2002), the Court states that the judge’s findings concluding the plea was validly made and that counsel was effective will not be set aside unless the findings are clearly erroneous. The Supreme Court of the United States in the case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), clearly set the guidelines for judicial determination of cases involving effective or ineffective assistance of counsel.

¶ 6. There are two components that Frank must prove in order for his claim of ineffective assistance of counsel to prevail and require reversal of his conviction. First, he must show that his “counsel’s performance was deficient.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Second, he must show that the “deficient performance prejudiced the defense.” Id. This requires a showing that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. In regards to this second prong, Frank 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; see Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985); Stringer v. State, 454 So.2d 468, 477 (Miss.1984). Frank must prove both of these elements in order to succeed on his claim. Id. Each case should be decided based on the totality of the circumstances, that is, by looking to the evidence in the entire record. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990); Stringer, 454 So.2d at 476. The standard of performance used is whether counsel provided “reasonably effective assistance.” Leatherwood, 473 So.2d at 968. “There is a strong presumption that counsel’s conduct is within the wide range of reasonable professional conduct.” Id. at 969. Should we find that Frank’s counsel was ineffective, the appropriate remedy is remand for a new trial. Moody v. State, 644 So.2d 451, 456 (Miss.1994).

¶ 7. After reviewing the record, the following was found: First, Frank signed the “Know Your Rights Before Pleading” form under the trustworthiness of an oath under the pain and penalty of perjury, which reflects that he understood he was not eligible for probation in the wake of his plea. Second, the transcript of the plea-qualification hearing reflects the circuit judge was well aware of Frank’s mental and drug related problems. The circuit judge stated: “I order that you [Frank] get whatever psychiatric care that the Department of Corrections has available for you....” Frank answered “no” when asked at the plea-qualification hearing if either he was “under the influence of any drug or alcohol or medicine or narcotic at this time.”

¶ 8. Frank signed a “Petition to Enter Plea of Guilty” on November 27, 2001, which reads in pertinent part, as follows:

I believe that my lawyer is competent and has done all that anyone could do to counsel and assist me, and I am fully satisfied with the advice and help he has given me.

¶ 9. In addition to this, the record reflects the following discussion:

COURT: Has your attorney answered all your questions?
FRANK: Yes, sir.
COURT: Are you satisfied with your attorney’s representation?
FRANK: Yes, sir.

¶ 10. Further, Frank complains about the lack of any pretrial investigation; however, he failed to tell the trial judge and has failed to tell this Court what facts, in mitigation a further investigation would have revealed or uncovered. It follows that Frank has not demonstrated prejudice where, as here, he has not alleged anything that would have lead to a different result.

¶ 11. It is noteworthy that Frank also alleges that he should have been afforded an evidentiary hearing before the circuit judge. A trial court has considerable discretion in determining whether to grant an evidentiary hearing. Meeks v. State, 781 So.2d 109, 114(¶ 14) (Miss.2001). Not every motion for post-conviction relief filed in the trial court must be afforded a full adversarial hearing. Jones v. State, 795 So.2d 589, 590(¶ 3) (Miss.Ct.App.2001). A trial judge may disregard the assertions made by a post-conviction movant where, as here, they are substantially contradicted by the court record of proceedings that led up to the entry of a judgment of guilt. White v. State, 818 So.2d 369, 371(¶ 4) (Miss.Ct.App.2002).

¶ 12. This Court finds that the circuit court properly denied Frank’s motion for post-conviction relief targeting the effectiveness of counsel and narrowly discussing the voluntariness of his plea, as being without merit. -

¶ 13. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS ARE ASSESSED TO LINCOLN COUNTY.

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

      . Appellant makes reference in several parts of his brief to a co-appellant. We assume he is referring to Mary Hebert; however, Mary has not perfected any appeal nor has she filed any appellate brief. Therefore, this Court will make no findings or opinions with respect to Mary Hebert. Since Frank is unauthorized to represent Mary as her attorney and since Mary has not personally filed any briefs or other evidence of appeal, he may not include her in his request for relief.

      . Although Frank's issues concern due process and ineffective assistance of counsel, his brief also contained language concerning involuntary plea and the denial of an evidentia-ry hearing by the circuit court. While this opinion centers around Frank's main issues it also briefly addresses the voluntariness of the plea and also the denial of a hearing (to cover all bases).


text:
    Shekieda S. HARDY, Appellant, v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellee.
    No. 2003-CC-00010-COA.
    Court of Appeals of Mississippi.
    Feb. 3, 2004.

      Shekieda S. Hardy, appellant, pro se.
    Albert B. White, Madison, John Wesley Garrett, Clinton, attorneys for appellee.
    Before KING, P.J., BRIDGES, LEE, and CHANDLER, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. Shekieda Hardy filed for unemployment benefits. The Board of Review for the Mississippi Employment Security Commission found that Hardy had been discharged for misconduct, disqualifying her from benefits. Here on appeal, Hardy argues that this finding is not supported by the evidence. We find substantial evidence to support the decision. Therefore, we affirm.

FACTS

¶ 2. Shekieda Hardy, a security guard, was employed by the Bayou Caddy’s Jubilee Casino (BCJC) for approximately one and one-half years. She was terminated on June 20, 2002, for accepting a gratuity from a patron while on duty. Further, while being escorted from the property, Hardy allegedly made threats. Both of these actions are grounds for termination. Hardy was aware of these policies and the violations were established by both testimony and exhibits.

¶ 3. After Hardy was terminated, she filed for unemployment benefits. A claims examiner investigated and later disqualified Hardy for misconduct based on her violation of BCJC’s policy. Hardy appealed and a hearing was later held. At the hearing, Hardy.and a BCJC representative, Tess Nichols, director of administration, testified and produced documents.

¶ 4. At the conclusion of the hearing, based on testimony and documents, the referee found that Hardy was observed accepting and using a patron’s complimentary deli sandwich ticket as a gratuity, which violated BCJC’s policy. It was noted by the referee that Hardy advised the patron that she could not accept the complimentary ticket, but the patron slipped the ticket under her order, and Hardy later used the complimentary ticket to purchase two sandwiches. The referee concluded that Hardy’s acceptance and use of the complimentary ticket was a violation of BCJC’s policy and constituted misconduct.

¶ 5. Again, Hardy appealed, and after reviewing the record, the Board of Review affirmed the referee’s decision and in doing so adopted the findings and conclusion made by the referee. Hardy appealed to the Circuit Court of Washington County and on December 11, 2002, the circuit court entered an order affirming the decision of the Board of Review. The circuit court found that Hardy was discharged for disqualifying work related misconduct in accepting a gratuity from a patron in the form of a “comp ticket” which security guards were not allowed to do. The circuit judge concluded that based on case authorities BCJC met its burden of proving misconduct by substantial, clear and convincing evidence.

¶ 6. It is from this decision that Hardy now appeals to this Court.

ANALYSIS

¶ 7. The standard of review of administrative agency decisions is “[a]n agency’s conclusions must remain undisturbed unless the agency’s order 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights.” Maxwell v. Miss. Employment Sec. Comm’n, 792 So.2d 1031, 1032(¶ 7) (Miss.Ct.App.2001).

¶ 8. A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise. Lastly, this Court must not reweigh the facts of the case or insert its judgment for that of the agency. Lewis v. Miss. Employment Sec. Comm’n, 767 So.2d 1029(¶ 9) (Miss.Ct.App.2000). Factual findings of the Commission’s Board of Review, if supported by substantial evidence, will be upheld on appeal. Miss.Code Ann. § 71-5-531 (Rev. 2000).

¶ 9. In Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982), the Mississippi Supreme Court defined misconduct in the context of unemployment law as:

conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Aso, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences [sic] and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered “misconduct” within the meaning of the statute.

¶ 10. In the present case, it is clear that the decision of the Board of Review was supported by the evidence and that BCJC met its burden of proving by substantial, clear and convincing evidence that Hardy’s actions constituted misconduct.

¶ 11. This Court having reviewed the record finds that the decision of the MESC was supported by substantial evidence and will not be disturbed.

¶ 12. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT IS AFFIRMED.

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


text:
    James N. JACKSON a/k/a Bilbo, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-00849-COA.
    Court of Appeals of Mississippi.
    Feb. 3, 2004.

      William E. Goodwin, Brookhaven, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES, MYERS, and IRVING, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. James Jackson was convicted in the Circuit Court of Pike County on the charge of aggravated assault in violation of Mississippi Code Annotated section 97-3-7 (Rev.2000). Jackson now appeals to this Court claiming that he received ineffective assistance of counsel when trial counsel failed to file a motion of dismissal for failure to provide a speedy trial.

STATEMENT OF THE ISSUE

WHETHER THE PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

ANALYSIS

¶2. According to the indictment, Jackson committed aggravated assault on or about April 28, 1998. A warrant for his arrest was issued on that same day but he could not be found. Jackson was finally arrested in October of 2001 and the indictment against Jackson was returned on February 21, 2002. A trial on the charges was held on Aprill6, 2002. Jackson claims that his attorney should have moved for a dismissal of the indictment against Jackson on speedy trial grounds. He argues that in light of the fact that more than four years had passed between the date of the offense and the date of the indictment and trial, it was incumbent on trial counsel to file a motion for dismissal and that failure to do so fell below the standard of practice and resulted in Jackson’s basic rights being violated.

¶ 3. The Supreme Court of the United States in the case of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), clearly set the guidelines for judicial determination of cases involving effective or ineffective assistance of counsel.

¶4. There are two components that Jackson must prove in order for his claim of ineffective assistance of counsel to prevail and require reversal of his conviction. First, he must show that his “counsel’s performance was deficient.” Id. Second, he must show the “deficient performance prejudiced the defense.” Id. This requires a showing that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. In regards to this second prong, Jackson 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; see Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985); Stringer v. State, 454 So.2d 468, 477 (Miss.1984). Jackson must prove both of these elements in order to succeed on his claim. Id. Each case should be decided based on the totality of the circumstances, that is, by looking to the evidence in the entire record. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990); Stringer, 454 So.2d at 476. Should we find that Jackson’s counsel was ineffective, the appropriate remedy is remand for a new trial. Moody v. State, 644 So.2d 451, 456 (Miss.1994).

¶ 5. We find that Jackson’s argument has no merit and we believe he is under a misapprehension of when time on the constitutional speedy trial clocks began to run. Jackson is under the impression that time for speedy trial purposes began running at' the time he committed the felony. However, this is simply not the case.

¶ 6. Jackson’s right to a speedy trial is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, Article 3, Section 26 of the Mississippi Constitution of 1890, as well as by statute. See Miss.Code Ann. § 99-17-1 (Rev.2000). When there is an allegation that the right to a speedy trial has been violated, the courts of this State will follow the four-factor analysis set out in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); The Barker test looks at four issues: (1) length of delay; (2) reason for delay; (3) defendant’s assertion of the right to a speedy trial, and (4) prejudice to the defendant by the delay. No single factor is dispositive. Id.; Wiley v. State, 582 So.2d 1008, 1011 (Miss.1991). “The weight given each necessarily turns on the facts and circumstances of each case, the quality of evidence available on each factor, and, in the absence of evidence, identification of the party with the risk of nonpersuasion.” Skaggs v. State, 676 So.2d 897, 900 (Miss.1996); Stogner v. State, 627 So.2d 815, 818 (Miss.1993).

Length of Delay

¶7. Time, for purposes of the speedy trial clause of the Sixth Amendment, the Mississippi Constitution and pursuant to the laws of the State of Mississippi as provided by Mississippi Code Annotated section 99-17-1, does not begin running until an arrest is made or an indictment returned or information filed. Birkley v. State, 750 So.2d 1245, 1249(¶ 11) (Miss.1999); Perry v. State, 419 So.2d 194, 198 (Miss.1982). In the present case, Jackson’s right attached at his arrest. Presumptive prejudice, triggering inquiry into the remaining Barker factors, arises where there has been a delay of eight months or more before trial. Jenkins v. State, 607 So.2d 1137, 1139 (Miss.1992). Approximately one hundred and ninety-seven (197) days elapsed between Jackson’s arrest and trial. This number is well below the statutory limit of 270 days. Aside from the fact that a delay of eight months had not occurred in Jackson’s trial, his attorney obviously recognized that he had no basis for filing such motion.

¶ 8. The greatest part of the “delay” between the commission of the felony and trial was directly and solely the consequence of Jackson’s flight. Had there been a consideration of the Barker factors, the “length of delay” and “reasons for delay” would surely have weighed heavily against Jackson. As for the “demand for trial,” Jackson never made one.

¶ 9. In accordance with the aforementioned facts and caselaw, we find Jackson’s issue is without merit.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THE FIRST EIGHTEEN YEARS TO SERVE AND THE REMAINING TWO YEARS TO BE SERVED ON POST-RELEASE SUPERVISION, FINE OF $5,000, RESTITUTION TO VICTIM FOR MEDICAL EXPENSES, $2,500 TO CRIME VICTIM’S COMPENSATION FUND, AND OTHER FEES IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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