text:
    Craig L. BOOKER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CA-00268-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.

      Charles E. Miller, McComb, attorney for appellant.
    Office of the Attorney General, by Billy L. Gore, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES And GRIFFIS, JJ.
   BRIDGES, J.,

for the court.

¶ 1. Following indictments by the grand jury of Hinds County, Craig L. Booker pled guilty to four counts of armed robbery and one count of strong armed robbery. Booker was sentenced to thirty years on each count of armed robbery, and sentenced to five years on the strong armed robbery conviction, all to run concurrently. Booker had a pending federal court charge of which he advised the court and the court ordered the state sentences to run consecutively with the anticipated sentence on the charge pending in the United States District Court.

¶ 2. Booker timely filed his motion for post-conviction relief. Following an evi-dentiary hearing, Booker’s petition was denied. He now files his appeal therefrom.

STATEMENT OF ISSUES

I. WHETHER THE PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

II. WHETHER THE TRIAL COURT IMPOSED AN EXCESSIVE AND DISPROPORTIONATE SENTENCE ON THE DEFENDANT.

III. WHETHER DEFENDANT’S PLEA WAS KNOWINGLY, FREELY, INTELLIGENTLY, AND VOLUNTARILY MADE.

ANALYSIS

I. WHETHER THE PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL?

¶ 3. Booker argues that he received ineffective assistance of counsel since he was not satisfied with his pleas and his sentence was disproportionate to the sentence given to an accomplice. Booker asserts that he stated in his sentencing hearing that he was dissatisfied with the representation provided by counsel, that counsel knew little about the charges facing him, and that counsel never discussed with him anything regarding defense strategies or the prospect of going to trial. .Booker further claims that defense counsel’s main purpose was only to steer him into pleading guilty to the charges.

¶ 4. First and foremost, the State argues that all claims introduced by the petitioner were refuted by the hearing and the findings of the trial judge. The State, in defending this first allegation, mentions the Strickland standard for determination of ineffective assistance of counsel though they cite Brooks v. State, 573 So.2d 1350, 1353 (Miss.1990), which also outlines the standard. The State’s final argument is that there is no indication in the record other than the allegations of Booker that the performance of defense counsel fell below these standards. In fact, the record supports the exact opposite of Booker’s allegations. Booker was well aware of both the maximum and minimum sentences for the crimes charged and that there was a potential for him to receive four consecutive life sentences plus an additional fifteen years. Booker’s attorney negotiated an agreement with the prosecution limiting Booker’s sentence to only thirty years for each armed robbery and five years for the strong armed robbery, both to run concurrently; a good deal compared to what he could have received. Booker complained that his attorney did not file any motions, did not discuss any defense strategies, and did not review any discovery information, however, Booker failed to provide affidavits of record attesting to the necessity of any motions, the existence of any defenses, or the availability of any worthwhile discovery left undiscovered. As for the coerced confession, Booker freely admitted he never told his lawyer that his interrogators allegedly told Booker that if he signed the confession, “they would go easy on him.” This amounts to client nonfeasance, which has nothing to do with defense counsel. Lastly, even during his plea-qualification hearing, Booker told the circuit judge, under oath, that his lawyer did a “good job” on the sentencing aspect of his case and that he was satisfied with the services provided by his attorney.

¶ 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. There are two components that Booker must prove in order for his claim of ineffective assistance of counsel to prevail and require reversal of his conviction. First, Booker must show that his “counsel’s performance was deficient.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Second, Booker 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, Booker 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, (Miss.1984). Booker 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 Booker’s counsel was ineffective, the appropriate remedy is remand for a new trail. Moody v. State, 644 So.2d 451, 456 (Miss.1994).

¶ 6. While the record shows that defense counsel was present at the time of the plea acceptance hearing and the circuit judge’s interrogation, there is no evidence which would tend to advance Booker’s theory that his attorney was deficient or that he forced Booker to plead guilty. There is nothing in the record to indicate that Booker’s attorney did anything more than be available to his client and advise him on the ramifications of pleading guilty versus pleading not guilty and taking his chances at trial. There is no evidence of any such injustice. Lastly, there is nothing in the record that even hints that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. Therefore, Booker has failed to prove at least the second element of the Strickland test, a test in which he must prove both elements in order to prevail on his claim of ineffective assistance of counsel.

¶ 7. Again, the plea hearing transcript negates Booker’s assertions against his attorney. After stating that he was not satisfied with his attorney, Booker was asked by the circuit judge to explain why he was dissatisfied. Booker responded that his attorney knew nothing of the case. After explaining that Booker’s attorney negotiated for a lesser sentence, the circuit judge again asked if Booker was satisfied and this time he responded that he was satisfied with his attorney. As such, we accept the truth to be the version told by Booker in open court under oath rather than the version in Booker’s brief.

II. WHETHER THE TRIAL COURT IMPOSED AN EXCESSIVE AND DISPROPORTIONATE SENTENCE ON THE DEFENDANT?

¶ 8. Another argument presented by Booker was that his sentence was excessive. However, in her opinion and order, Judge Green specifically noted that “all sentences were within the allowable statutory máximums.” Booker was involved in five robberies, and he received less time for all five than he would have received for just one.

¶ 9. The court, in Johnson v. State, 461 So.2d 1288, 1292 (Miss.1984), addresses the issue of an excessive or disproportionate sentence by stating “that a trial court will not be held in error or held to have abused its judicial discretion if the sentence imposed is within the limits fixed by statute.” Again, Judge Green specifically noted, in her opinion/order that “all sentences were within the allowable statutory máximums.” Booker received a sentence of thirty years when there was a potential for the imposition of four consecutive life sentences, plus an additional fifteen years. There is also nothing in the record that would indicate that the sentencing judge unlawfully enhanced the sentence of Booker over Smith.

¶ 10. Additionally, Booker complains that his sentence was disproportionate to the sentence imposed on an accomplice, Jawara Smith. There are no statutes or case law stating that a defendant must receive a sentence proportionate to a sentence imposed on an accomplice. As stated in her memorandum opinion and order, Judge Green explained that sentences between co-defendants are, often times, different. Also, the recommendations in regards to sentencing come from the district attorney’s office, and each judge makes an independent determination as to what the sentence should be. The duty of this Court is not to determine the working mind of the sentencing judge or to determine the reasons why the judge gave that sentence to Booker.

¶ 11. This Court is also aware of the gravity of the offenses with which Booker was charged. Armed robbery as well as strong armed robbery are both serious offenses. Booker was not only involved in one, he was in fact involved in no fewer than five robberies.

¶ 12. In conclusion, the sentences imposed on Booker were neither disproportionate nor excessive. There are a number of factors stated in the record that were taken,into consideration by the sentencing judge, primarily; (1) the number of charges; (2) Booker’s prior criminal record; (3) the seriousness of the offenses; (4) the role of Jawara Smith; (5) Booker’s alleged role; and (5) the recommendations given by the prosecution. After considering these factors, coupled with the fact that the sentences were indeed within the allowable statutory máximums, Booker’s claim that his sentences were disproportionate and excessive are totally without merit.

III. WHETHER DE FENDANT’S PLEA WAS KNOWINGLY, FREELY, INTELLIGENTLY AND VOLUNTARILY MADE?

¶ 13. Lastly, Booker argues that, but for the ill-informed advice of counsel, he may have taken advantage of the constitutional guarantee of a trial by jury and could have been found guilty of a lesser-included charge. Therefore, he was prejudiced.

¶ 14. In defending this claim the State argues that Booker never raised the issue of voluntariness in his petition for post-conviction relief.

¶ 15. In Brady v. U.S., 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the court stated that a guilty plea can only be entered by “one fully aware of the direct consequences.” However, the Court stated in Ballanger v. State, 667 So.2d 1242, 1256 (Miss.1995) that an “assertion on appeal of grounds for an objection which was not the assertion at trial is not an issue properly preserved on appeal.” In his petition for post-conviction relief, Booker never raised the issue of voluntariness nor was it presented during the evi-dentiary hearing. The circuit judge, while finding the pleas were both knowing and intelligent, never specifically addressed the issue of traditional voluntariness. Therefore, as a reviewing tribunal, we should not address it here.

¶ 16. In conclusion, Booker has given this Court no plausible evidence on which we may rely to overturn the decision of the trial judge to accept Booker’s plea. The credible evidence before us, including the transcript of the plea hearing, points to the inescapable fact that Booker made his decision to plead guilty on his own, without coercion and without misrepresentation. We do not believe that Booker has met his very heavy burden of proof to show that he did not understand what he was agreeing to or that he was pressured or intimidated into executing the petitions for guilty pleas.

¶ 17. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS HEREBY AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT.

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


source: Caselaw Access Project

author: CHANDLER, J., MYERS, J., BRIDGES, J.,

license: Public Domain

text:
    Nancy ELLIS, Appellant v. John ELLIS, Appellee.
    No. 2001-CA-00713-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.

      T. Swayze Alford, Oxford, for appellant.
    Will R. Ford, New Albany, for appellee.
   CHANDLER, J.,

for the Court:

¶ 1. Nancy and John Ellis were divorced in 1998. The court granted physical custody of their one child to Nancy with legal custody shared between the parents. The court also established a visitation schedule. The following year, both parties petitioned for contempt and for modification of custody. The chancellor found Nancy in contempt and ordered her to pay attorney’s fees and to comply with the revised visitation schedule. Feeling aggrieved by the chancellor’s ruling, Nancy filed this appeal asserting the following five issues:

I. DID THE CHANCELLOR ERR IN FINDING NANCY IN CONTEMPT OF THE COURT’S VISITATION ORDER?
II. DID THE CHANCELLOR ERR IN NOT RESTRICTING JOHN’S VISITATION RIGHTS?
III. DID THE CHANCELLOR ERR IN RESTRICTING NANCY’S CONTACT WITH THE CHILD DURING THE CHILD’S VISITATION WITH JOHN?
IV. DID THE CHANCELLOR ERR IN HOLDING THAT NANCY COULD NOT SCHEDULE ANY EVENTS FOR THE CHILD DURING JOHN’S VISITATION?
V. DID THE CHANCELLOR ERR IN REFUSING TO MODIFY THE SUMMER VISITATION SCHEDULE DUE TO ITS CONFLICTING LANGUAGE?

Upon review of the record and legal precedent, we affirm as to Issues I, II, III, and IV, and remand in part as to Issue V.

FACTS

¶ 2. On October 21, 1998, John and Nancy Ellis were granted a divorce in the Union County Chancery Court on the grounds of irreconcilable differences. The judgment granted the parties joint legal custody and Nancy primary physical custody of their only child. John received certain visitation privileges, including five weeks during the summer, every other weekend and holidays on alternating years.

¶ 3. On October 25, 1999, Nancy filed a complaint for contempt stating that John had failed to pay certain bills. Nancy also moved for a modification in the visitation order. Two days later, John filed a petition for contempt asking the court to hold Nancy in contempt for her intentional and repeated interference with his visitation rights. John claimed he had missed twenty days of visitation due to Nancy’s interference. He moved the court to allow him to make up all missed visits and asked for attorney’s fees. He further sought physical custody of the minor child.

¶4. John testified to several occasions where Nancy had failed to properly comply with the visitation order by failing to provide the child for visitation at the proper time or not at all. Based on this evidence, the court entered an emergency order on October 26, 1999, ordering Nancy to provide the child for weekend visitation. As required by the order, Officer Bill Long testified that he went to Nancy’s home to obtain the child. Long stated that Nancy was uncooperative by refusing to disclose the child’s location.

¶ 5. John also reported several incidences during his visitation time with his child that Nancy physically or telephoni-eally interfered with the visit. He claimed that these interruptions created tension and caused the child to become upset. He testified to one occasion when visiting with the child, Nancy approached and whispered something in the child’s ear. John stated that the child instantly began crying and exclaimed that she wanted to go home with her mother. Dr. Sam Pace, John’s brother-in-law, stated he witnessed an incident during the Christmas holidays when Nancy telephoned the child. Pace testified that prior to the call the child was affectionate and happy; however, immediately after the call she became upset and unresponsive. He testified that this was a regular occurrence during John’s visitation with his daughter.

¶ 6. John also complained of Nancy’s refusal to include him in the decision making for their daughter. He testified that without his knowledge or consent Nancy removed their daughter from private school and placed her in home school. He also indicated that Nancy would refuse to disclose where the child was attending summer camp.

¶ 7. Nancy admitted that she had withheld some of John’s visitation but argued that she was justified in her action. Nancy testified to the stress and trauma the child was experiencing due to the visitations. She stated that the child would beg Nancy to not force her to go and that she would cry herself to sleep at night prior to going to visit her father.

¶ 8. She presented testimony from a psychologist, Dr. Roger Bennett, who after several counseling sessions with the child concluded that she showed signs of trauma and stress. He said her condition was directly attributed to the visitations with John. He based his opinion on the child’s reaction to talking about her father. On several occasions the child said she did not want to go visit John. During Dr. Bennett’s sessions, he engaged the child in sentence completions which yielded the following results:

Most of all, I want not to go mth my dad.
I hate I don’t hate my dad but I don’t really like him.
I wish I could stop going with my dad.

¶ 9. John also presented testimony from a psychologist, Dr. Joe Morris, who after assessing the child concluded that she suffered from depression and recommended she attend counseling. He said the depression was not created by the visitations with her father, but arose from the conflicts between the parents and the lack of access she had with her father. He also stated that in his opinion the child suffers from parental alienation syndrome. He based his opinion upon John’s reports that the child shows a disregard for John while in the presence of her mother. He also stated that the child’s drawings of her family in which she excludes her father from the picture is a classic sign of the syndrome.

¶ 10. Nancy testified that she was justified in refusing visitation because of her concerns about the conditions to which the child was apparently exposed to during John’s care. Nancy said the child would come home with reports of John making her sleep in the same bed with him, leaving the door open while she was taking a bath, using the bathroom while she was bathing, and pulling off the road and threatening her. In one of the child’s counseling sessions she indicated in a sentence completion exercise that she hated to take baths.

¶ 11. John testified that on a couple of occasions while visiting his sister, he and his daughter slept in one bed due to the lack of available beds. However, he stated that he never made her sleep in the same bed with him at his home because she had her own bedroom. John also testified that he did make her leave the bathroom door open while she was taking a bath because the bathroom has no ventilation, and that on occasion he has come into the bathroom only to grab a hairbrush or other paraphernalia. Despite Nancy’s complaints of mistreatment, both psychologists found no signs of abuse by John.

¶ 12. Nancy testified that she felt justified in withholding visitation considering the child’s strong animosity toward her father. She contributed much of the child’s reluctance to go to visit John to the fact that John would not take their daughter to many of the child’s activities. The child also indicated in one of her counseling sessions with Dr. Bennett that her father would not take her to cheerleading practices.

¶ 13. John agreed that his daughter showed signs of resentment toward him, but he attributed the behavior to Nancy’s turning the child against him. He also admitted to not taking the child to some of her activities. He justified this by stating that he thought his daughter was involved in too many activities. He also said that many times he had already made plans prior to learning of his daughter’s scheduled events.

¶ 14. The chancellor, after analyzing numerous exhibits and hearing fifteen witnesses which created more than a thousand pages of transcript, rendered his decision on April 8, 2001. The chancellor held that John was not in contempt of court for failure to pay bills, concluding that John was not provided with the bills until after Nancy filed her complaint. The chancellor denied John’s request for a change of physical custody, and denied Nancy’s request for modification of the visitation order.

¶ 15. The chancellor found Nancy in contempt of court for her failure to abide by prior orders with respect to John’s visitation rights. The court entered a revised visitation schedule which allows John to make up twenty days of missed visitation during the summer. The court ordered Nancy to avoid scheduling any events or causing any events to be scheduled for the minor child during John’s visitation periods. He also held that Nancy was not to interfere with the visitation rights of John by telephoning or personally contacting the child during John’s weekend visitations. Nancy is allowed personal and telephone contact with the child during the extended visitation only if absolutely necessary. The court ordered Nancy to exchange information concerning the health, education and welfare of the child. Finally, the court awarded John attorney’s fees in the amount of $4,500. From the judgment, Nancy has perfected her appeal.

LAW AND ANALYSIS

I. DID THE CHANCELLOR ERR IN FINDING NANCY IN CONTEMPT OF THE COURT’S VISITATION ORDER?

¶ 16. “Contempt matters are committed to the substantial discretion of the trial court which, by institutional circumstance and both temporal and visual proximity, is infinitely more competent to decide the matter than we are.” Varner v. Varner, 666 So.2d 493, 496 (Miss.1995). If the “contemnor has willfully and deliberately ignored the order of the court,” then the finding of contempt is proper. Goodson v. Goodson, 816 So.2d, 420, 422(¶ 3) (Miss.Ct.App.2002). “This Court will not reverse a contempt citation where the chancellor’s findings are supported by substantial credible evidence.” Id.

¶ 17. The chancellor found Nancy to be in contempt because she deliberately interfered with the court’s visitation schedule. The court stated that Nancy on numerous occasions failed to provide the child for weekend visitation, that she intentionally scheduled events during John’s visitation weekends, and that when she did make the child available for visits she often contacted the child personally or by telephone causing stress between John and their daughter. On appeal Nancy argued that she was justified in interfering with the court ordered visitation because she was only following the advice given to her by the child’s psychologist.

¶ 18. The Mississippi Supreme Court has consistently held that the inquiry in a contempt proceeding is limited to “whether or not the order was violated, whether or not it was possible to carry out the order of the court, and if it was possible, whether or not such violation was an intentional and willful refusal to abide by the order of the court.” Ladner v. Ladner, 206 So.2d 620, 623 (Miss.1968) (overruled on other grounds Bubac v. Boston, 600 So.2d 951 (Miss.1992)). The only defenses to a contempt violation include an inability to comply with the court order, McCracking v. McCracking, 805 So.2d 586, 589(¶ 6) (Miss.Ct.App.2002), or that the court order was unclear, Davis v. Davis, 829 So.2d 712, 714(¶ 9) (Miss.Ct.App.2002). In the case at bar, there is nothing within the record to indicate that the parties were unable to comply with the order or that its provisions were unclear.

¶ 19. The fact that such order is erroneous or irregular or improvidently rendered does not justify a person in failing to abide by its terms. Ladner, 206 So.2d at 623 (citing Griffith, Mississippi Chancery Practice § 668 (2d ed.1950)). Therefore, there is no defense for a contempt citation that the contemnor “does not agree with the previous order and considers the order of the court decree to be wrong, even though, his motives in so doing are based upon pure moral sentiment.” Ladner, 206 So.2d at 623.

¶ 20. In Ladner, the trial court held the custodial parent in contempt for willfully failing to carry out the visitation order. Id. at 622. The father argued that he was justified in denying visitation to the mother considering he feared she would abuse the children. Id. He presented evidence that the mother had previously threatened to kill the children using various weapons; and that she had beaten the children severely during the marriage. Id. The Mississippi Supreme Court affirmed the trial court’s decision stating that a contemnor should take the lawful steps, as by appeal, to have the decree or order vacated or corrected. Id. at 623.

¶ 21. Although Nancy claims she was following the advice of Dr. Bennett, she still willfully and intentionally disobeyed the court’s visitation order. We are of the opinion that the chancellor was correct in holding Nancy in contempt.

¶ 22. Nancy argues that the court erred in awarding John attorney’s fees. In contempt proceedings, “a chancellor has the authority to make the prevailing party whole by awarding attorney’s fees.” Creel v. Cornacchione, 831 So.2d 1179, 1183-1184(¶ 18) (Miss.Ct.App.2002). “The award of attorney’s fees is largely within the sound discretion of the chancellor.” Id. The chancellor ruled in favor of John who was the prevailing party. Therefore, we cannot say that the chancellor abused his discretion in awarding attorney’s fees in this matter.

II. DID THE CHANCELLOR ERR IN NOT RESTRICTING JOHN’S VISITATION RIGHTS?

¶ 23. Nancy argues on appeal that the chancellor erred by ordering no restrictions or supervision relative to John’s visitations. There was conflicting testimony as to why it would be in the best interest of the child that the father’s visitation schedule be restricted or supervised. The chancellor determined these issues of fact in favor of John based on the evidence before the court.

¶ 24. “On visitation issues, as with other issues concerning children, the chancery court enjoys a large amount of discretion in making its determination of what is in the best interest of the child.” Clark v. Myrick, 523 So.2d 79, 82 (Miss.1988). “When the chancellor determines visitation, he must keep the best interest of the child as his paramount concern while always being attentive to the rights of the non-custodial parent, recognizing the need to maintain a healthy, loving relationship between the non-custodial parent and his child.” Harrington v. Harrington, 648 So.2d 543, 545 (Miss.1994). “This Court will not reverse a chancellor’s findings of fact so long as they are supported by substantial evidence in the record.” Id.

¶ 25. When modifying a visitation order, it must be shown that the prior decree for reasonable visitation is not working and that a modification is in the best interest of the child. Suess v. Suess, 718 So.2d 1126, 1130(¶ 15) (Miss.1998). Nancy stated that under Suess the visitation order should be modified considering Dr. Bennett’s advice that the visitations are harmful to the child, the child’s reports of mistreatment while on visitation, John’s refusal to allow their daughter to participate in many of her activities while in his care and the child’s strong resentment toward going to visitation.

¶ 26. In McCracking v. McCracking, 776 So.2d 691, 694(¶ 11) (Miss.Ct.App.2000), the chancellor modified a visitation order by restricting visitation to only weekends. After hearing testimony from the guardian ad litem and the court-appointed psychologist, the chancellor determined that the midweek overnight visitation was detrimental to the emotional well-being of the child. Id. This Court held “that a visitation schedule that adversely affects a child’s emotional stability is one that is not working within the meaning of Suess.” Id.

¶ 27. Unlike McCracking, the chancellor in the case at bar was not convinced by Dr. Bennett’s testimony that the visitation order was detrimental to the emotional stability of the child. Dr. Morris’s assessment revealed that the child suffered from parental alienation syndrome due to Nancy’s continuous intrusion into the child’s relationship with her father. The expert testimony in this case created a question of fact as to what was in the best interest of the child.

It is well-settled law that the weight to be accorded expert opinion evidence is solely within the discretion of the judge sitting without a jury. While he may not arbitrarily fail to consider such testimony, he is not bound to accept it. In the ultimate analysis, the trier of fact is the final arbiter as between experts whose opinions may differ as to precise causes....

Newsom v. Newsom, 557 So.2d 511, 515 (Miss.1990) (citing Pittman v. Gilmore, 556 F.2d 1259 (5th Cir.1977)). He found Nancy’s complaints of mistreatment unsubstantiated, by the evidence.

¶ 28. Nancy also argues that the visitation decree should be modified considering John will not allow the child to participate in many of her activities. The Mississippi Supreme Court has emphasized the importance of the non-custodial parent’s autonomy during visitation. Cox v. Moulds, 490 So.2d 866, 870 (Miss.1986). The court stated that absent extraordinary circumstances, the “non-custodial parent will during the periods of visitation have broad authority and discretion with respect to the place and manner of the exercise of same, subject only to the time constrictions found reasonable and placed in the decree.” Id. The court reasoned that by giving freedom to the non-custodial parent it encourages a close, affectionate parent-child relationship. Id.

¶ 29. Nancy also expressed that the visitation order should be modified considering the child’s dislike for going to visitation. The Mississippi Supreme Court has affirmatively stated that it is “not bound by the wishes of a child as to the visitation rights of the parents.” Ross v. Segrest, 421 So.2d 1234, 1236 (Miss.1982). “While there is nothing wrong with the children being heard regarding their wishes, our law proceeds on the assumption that they are nevertheless children and, thus, more interested in the desire of the moment than in considering the long range needs for the development of a healthy relationship with both parents where that is possible.” Cox, 490 So.2d at 869.

III. DID THE CHANCELLOR ERR IN RESTRICTING NANCY’S CONTACT WITH THE CHILD DURING THE CHILD’S VISITATION WITH JOHN?

IV. DID THE CHANCELLOR ERR IN HOLDING THAT NANCY COULD NOT SCHEDULE ANY EVENTS FOR THE CHILD DURING JOHN’S VISITATION?

¶ 30. We will examine these two issues together. They both refer to restrictions placed upon Nancy during John’s visitation period. The chancellor ordered Nancy to stop making contact with the child during John’s visitation period, and to stop scheduling events for their daughter during the time she is to be with John. Nancy argues that preventing access to her daughter will have a detrimental effect upon the child. She also contends that she has no control over when events are to be scheduled.

¶31. As discussed in the previous issue, the Mississippi Supreme Court has recognized that by giving the non-custodial parent much latitude in how they spend time with the child during visitation will help foster a close, affectionate relationship with the child. Cox, 490 So.2d at 870. In the case at bar, the chancellor found sufficient evidence to indicate that Nancy’s interference with John visitation was hindering his ability to nurture a close, affectionate relationship with his daughter.

¶ 32. For many of the same considerations discussed in the previous issue, we find a claim that the chancellor acted with manifest error to lack merit. This ruling gives the father the freedom to determine how he and his daughter should spend their time together thereby enhancing that affectionate parent-child relationship.

V. DID THE CHANCELLOR ERR IN REFUSING TO MODIFY THE SUMMER VISITATION SCHEDULE DUE TO ITS CONFLICTING LANGUAGE?

¶ 33. Prior to the judgement, John and Nancy agreed to a divorce, child custody, child support and division of property rights. The only remaining issue for the court to resolve was John’s visitation rights during certain holidays and summer vacation. In his decree, the chancellor granted John summer visitation on the following basis:

John Ellis will have the minor child with him five (5) weeks during the summer being in odd numbered years from June 1st through June 14th, July 1st through July 14th, August 1st through August 7th, and in even numbered years from June 14th through June 31st, July 14th through July 31st, and August 1st through August 7th. All visitations during this summer period shall commence at 8:00 a.m. and at 6:00 p.m.

¶ 34. Nancy argues that on even numbered years John is granted an extra week due to the fact that there are more than twenty-eight days in each month. She asserts that due to the conflicting language of the decree the order should be modified.

¶ 35. “To be enforceable a final decree should be sufficiently definite.... [I]t is imperative that the decree be certain, clear, understandable, and subject to comprehension and enforcement. The lack of any one of these elements may result in confusion and subsequent litigation for purposes of interpretation.” N. Shelton Hand, Jr., Mississippi Divorce, Alimony and Child Custody § 10-11, 252-253 (5th ed.1998).

¶ 36. After careful review of the record, this Court determines that John will gain five extra days of visitation during the summer months in even years. This contradicts the chancellor’s earlier provision that John would receive five weeks of visitation each year during the summer months. In sum, the chancellor’s determination is unclear. This Court therefore remands this particular matter for clarification.

¶ 37. THE JUDGMENT OF THE UNION COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. COSTS OF THIS APPEAL ARE ASSESSED NINETY PERCENT TO THE APPELLANT AND TEN PERCENT TO THE APPELLEE.

KING AND SOUTHWICK, P. JJ., THOMAS AND IRVING, JJ., CONCUR. BRIDGES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY LEE AND MYERS, JJ. MYERS, J., DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY LEE AND GRIFFIS, JJ. McMILLIN, C.J., NOT PARTICIPATING.

MYERS, J.,

dissenting in part:

¶ 38. I respectfully dissent to Part Y of the Court’s opinion. The chancellor gives specific dates that John Ellis will have the child with him. I interpret the term “five weeks” as surplusage. Thus, we should read the decree as we would read a contract or a statute, where specific terms are given greater weight than general ones. John should have the child on the dates specified, regardless of whether or not they add up to be exactly thirty-five days.

LEE AND GRIFFIS, JJ., JOIN THIS . SEPARATE OPINION.

BRIDGES, J.,

concurring in part, dissenting in part:

¶ 39. I also am of the opinion that the majority reaches a wrong decision with respect to visitation, Part V, and, as a result, I also dissent and join and expand the enumerated reasons for unjustness by Judge Myers in his dissent. However, I concur with all other parts of the majority opinion.

¶ 40. I disagree with the majority when it determines that John would gain five extra days of visitation during the summer months in his even years of visitation. When Nancy exercises her visitation during the alternating summer, she gains the same five days (during the same period), so that neither has any more summer visitation than the other at the end of a two year period of time. The chancellor surely considered this when he so adjudicated the visitation. At least we must assume this. The chancellor’s decree would then be sufficiently definite, clear, understandable and subject to comprehension and enforcement as set forth in Shelton Hand, Mississippi Divorce, Alimony and Child Custody, §§ 10-11, 252-53 (5th ed.1998). Further, I do not find in the record of this case where the chancellor was at all concerned with establishing a visitation schedule based upon a twenty-eight day per month calculation.

¶ 41. A much more serious deficiency in the final order or decree was that of failing to order what year this visitation period would commence. The chancellor’s intention for such beginning apparently was the next summer, or summer of 1999, and if the parties have operated and complied in such a manner, then that has been established, and as such, been cured.

¶ 42. This Court and the Mississippi Supreme Court endeavor to affirm the orders and decrees of chancellors whenever possible unless the chancellor’s findings of fact are “manifestly wrong,” unsupported by substantial credible evidence, or “clearly erroneous.” Mississippi State Department of Human Services v. Barnett, 633 So.2d 430, 434 (Miss.1993). In my opinion, none of those circumstances apply here.

¶ 43. Therefore, I would affirm the chancellor as to this and all other matters.

LEE AND MYERS, JJ., JOIN THIS SEPARATE OPINION.

      . "Parental Alienation Syndrome (PAS) is a disorder that arises primarily in the context of child custody disputes. Its primary manifestation is a child’s campaign of denigration against one parent without justification. It results from a combination of the programming parent's indoctrinations and the child’s own contributions to the vilification of the target parent. PAS refers only to situations in which parental programming is combined with the child's own disparagement of the vilified parent.” Barbara Bevando Sobal, William M. Hilton, Article 13(B) of the Hague Convention Treaty: Does It Create A Loophole For Parental Alienation Syndrome?, 19 GPSolo 16, 16 (2002).

      . June only has thirty days in the calendar year.


author: BRIDGES, J.,

text:
    Donnie SINGLETON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00761-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.

      Donnie Singleton (Pro se), attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   BRIDGES, J.,

for the court:

¶ 1. On June 28, 1995, following indictments by the grand jury, Donnie Singleton pled guilty to three counts of altered money orders with intent to utter. Singleton was sentenced to eight years on each charge with those sentences to run concurrently with each other and to run consecutively with the sentence that he was already serving. At the time Singleton’s guilty pleas were entered, he was serving consecutive sentences of thirty-five years, five years, and one year and there were no motions that followed the plea hearing. On April 12, 2002, Singleton filed a motion for post conviction relief, in Sunflower County, nearly seven years after the entry of his guilty pleas. The Circuit Court denied the motion as time-barred. Hé now files his appeal thereof.

¶ 2. The appellant asserts that the Circuit Court of Sunflower County lacked jurisdiction to prosecute him because he was found in possession of U.S. Postal Service money orders and he should have been tried in federal court. Next, Singleton asserts ineffective assistance of counsel for failure to object to the proceedings and to the indictment. Lastly, Singleton asserts that since he is raising “constitutional” issues, his motion for post-conviction relief is not time-barred.

¶ 3. The State asserts that Singleton’s merely raising an ineffective assistance of counsel claim is insufficient to surmount the procedural bar of the statute of limitations. Second, the State asserts that Singleton failed to assert any statutory exception which might allow him to overcome the time bar.

STATEMENT OF ISSUES

I. WHETHER THE CIRCUIT COURT OF SUNFLOWER COUNTY HAD JURISDICTION TO PROSECUTE THE APPELLANT.

II. WHETHER THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

III. WHETHER THE APPELLANT’S MOTION FOR POST CONVICTION RELIEF WAS TIMED-BARRED PURSUANT TO MISS. CODE ANN. § 99-39-5(2).

STANDARD OF REVIEW

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

ANALYSIS

¶ 5. Singleton claims that the trial judge erred in finding that his claims of lack of jurisdiction and ineffective assistance of counsel during his guilty pleas way back in 1995 were time-barred. He asserts that his case was not time-barred from review because he was raising constitutional issues. Concerning the jurisdictional issue, this claim has absolutely no merit. The six count indictment was returned in state court, and the Circuit Court of Sunflower County had jurisdiction to entertain Singleton’s pleas of guilty to three of the six counts.

¶ 6. In the case of Luckett v. State, 582 So.2d 428, 430 (Miss.1991), where Issue V was “whether appellant was subjected to ineffective assistance of counsel,” the court stated:

Issue Numbers II, III, IV and V are timed barred. Miss.Code Ann. § 99-39-5(2) (Supp.1990). Individuals (as Luck-ett) convicted prior to April 17, 1984, had three (3) years from April 17, 1984, to file their petition for post-conviction relief. Freelon v. State, 569 So.2d 1168 (Miss.1990); Odom v. State, 483 So.2d 343 (Miss.1986). Luckett’s application was filed more than nine years subsequent to the entry of his guilty pleas. No appeal or other pleadings for relief was filed by him prior to the application presented, and no exceptions to this procedural bar are applicable.

See also Bevill v. State, 669 So.2d 14, 17 (Miss.1996), (defendant’s merely raising ineffective assistance of counsel claim was insufficient to surmount procedural bar to his untimely post conviction petition). However, “errors affecting fundamental constitutional rights may be excepted from procedural bars which would otherwise prohibit their consideration.” Bevill, 669 So.2d at 17. See, e.g., Luckett v. State, 582 So.2d 428 (Miss.1991) (denial of due process in sentencing merited exception from the three year time limit of Miss.Code Ann. § 99-39-5); Smith v. State, 477 So.2d 191 (Miss.1985) (denial of due process in sentencing merited exception from the rule that questions not raised in the trial court cannot be raised for the first time on appeal).

¶ 7. As Singleton originally pled guilty in 1995 and this action was not filed until 2002, the first thing this Court must address is whether this action is time-barred by post-conviction statues. Section 99-39-5(2) of the Mississippi Code Annotated states:

A motion for relief under this chapter shall be made within three (3) years after the time in which the prisoner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction.

Miss.Code Ann. § 99-39-5(2) (Rev.2000). In Odom v. State, 483 So.2d 343, 344 (Miss.1986), we find the following language: “those individuals convicted after April 17, 1984, generally have three (3) years in which to file a petition for relief as provided for in the UPCCRA. Miss.Code Ann. § 99-39-5(2) (Supp.1985).” However, there are several instances in which a case is exempted from this deadline and they are; (1) when an intervening decision has been handed down by the Supreme Court of the State of Mississippi or the United States and would adversely affect the conviction; (2) the prisoner has new evidence which would have been conclusive if offered at trial; (3) where a prisoner claims his sentence has expired; (4) or when a prisoner’s probation, parole, or conditional release has been revoked. Miss.Code Ann. § 99-39-5(2) (Rev.2000).

¶ 8. Singleton, therefore, would have had three years from June 28,1995, in which to file a timely petition for post-conviction relief, making June 28, 1998, the last date in which a post-conviction petition could be filed. Singleton filed the current petition in 2002, four years after the three year statutory period had expired. Furthermore, Singleton’s petition does not include any of the instances in which his ease would have been exempted for this deadline. Because of this, Singleton’s petition in this case is barred by the statute of limitations, and the other issues he brings here are barred as well.

¶ 9. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT DISMISSING WITH PREJUDICE THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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


author: LEE, J.,

text:
    Dave HOUSTON, Jr. and Paul D. Houston, a/k/a Donnell, Appellants, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00365-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.

      Dave Houston, Jr., and Paul D. Houston (Pro Se), attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   LEE, J.,

for the court.

¶ 1. Brothers Dave and Paul Houston were teenagers in August 1996 when they held up a Subway restaurant. Both subsequently pled guilty to charges of armed robbery and kidnaping. Dave was sentenced to sixteen years, with eleven years to serve and five years suspended, and Paul was sentenced to fifteen years with ten years to serve and five suspended. The Houstons filed a joint motion for reconsideration of sentence in February 2002, and the motion was denied. In the motion, the Houstons claimed that, according to their sentencing order, they were entitled to have their sentences reduced, terminated or reconsidered due to language which states that the last five years of their sentences would be suspended “until the Court in term time, or the Judge in vacation, shall alter, extend, terminate or direct the enforcement of the above sentence.” In denying the motion, the judge explained:

The phrase “alter, extend, terminate, or direct the enforcement of the above sentence” refers to this Court’s power to require the Defendants/Movants to serve all or part of the suspended portions of their sentences in the physical custody of the Mississippi Department of Correction in the event that they might violate the conditions set by their Sentencing Orders. This phrase has no relevance to the portion of their Sentencing Orders requiring them to serve the first eleven (11) years of their sixteen (16) years [sic] sentences in the physical custody of the Mississippi Department of Corrections.

¶ 2. First, we find that review of the Houstons’s motion for reconsideration of sentence falls under Miss.Code Ann. § 99-39-5 concerning post-conviction relief and, thus, is barred by the three-year statute of limitations. Procedural bar notwithstanding, we also find that the Houstons were not entitled to an evidentiary hearing as their issue did not involve questions of fact, but mere interpretation of their sentencing order. See Williams v. State, 752 So.2d 410(¶ 13) (Miss.Ct.App.1999).

¶ 3. As the trial judge pointed out, the Houstons fail to recognize that the provision at issue applies to conditions regarding suspension of their sentences and does not concern their alleged right to have the judge review and possibly alter or terminate their sentences. We find no abuse of discretion in the trial court’s decision on this issue.

¶ 4. THE JUDGMENT OF THE COA-HOMA COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS ARE ASSESSED TO COAHOMA COUNTY.

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


author: KING, P.J.,

text:
    Paul A. FARRISH, Appellant v. STATE of Mississippi, Appellee.
    No. 2001-KA-01433-COA.
    Court of Appeals of Mississippi.
    March 25, 2003.

      William Joseph Barnett, Jackson, for appellant.
    Office of the Attorney General by Billy L. Gore, for appellee.
   KING, P.J.,

FOR THE COURT:

¶ 1. Paul A. Farrish was convicted in the Copiah County Circuit Court of statutory rape. He appeals, asserting that the circuit court erred in: (1) allowing the introduction of evidence of prior bad acts which the circuit court had previously found to be inadmissible, (2) denying his motion for a continuance, and (3) denying his motion for a JNOV or, in the alternative, a new trial. Finding no error, we affirm.

FACTS

¶ 2. Farrish was thirty-eight years old at the time of the trial. The victim, PN, was fifteen years-old, and in the eighth grade, at the time of the trial. She met Farrish through her step-father and Farrish’s daughter, who was her friend. She testified to a sexual relationship with Farrish that commenced in October of 2000 and ended in January 2001, when Farrish was arrested. Farrish denied having sex with her. Both Farrish and PN testified that they loved each other and were planning to marry.

ANALYSIS

1. INTRODUCTION OF EVIDENCE GOING TO PRIOR BAD ACTS

¶ 3. Farrish was charged with committing statutory rape “on or about the 31st day of January, 2001.” Approximately one month prior to that date, Farrish was arrested and charged with contributing to the delinquency of a minor. The record is not clear as to the ultimate disposition of that charge; however, as a result of the charge, a municipal court had entered an order prohibiting Farrish from having any contact with the victim.

¶ 4. After jury selection, but before any witnesses were called, Farrish requested a ruling on a pre-trial motion by which he sought to suppress any evidence regarding the municipal court order. While the record does not disclose that Farrish was ever actually held in contempt of the municipal court order, the State sought to introduce testimony that he had in fact violated it. The circuit court conducted an analysis of this evidence under M.R.E. 403 and 404, and held it to be more prejudicial than probative. Despite the circuit court’s order, precluding reference to the municipal court order, the State elicited testimony during its cross-examination of Farrish and through a rebuttal witness that a contempt of court affidavit was filed against Farrish for failure to refrain from contact with the victim.

¶ 5. On direct examination Farrish had denied improper contact with the victim, inferring that he had been given permission to see her. Likewise during cross-examination, Farrish denied knowledge of any prohibition against his contact with the victim. He specifically disavowed having been instructed by the municipal court judge to refrain from contact with the victim. It should be noted that no objection was lodged when the State asked Farrish about the existence of an order to refrain from contact with the victim.

¶ 6. In rebuttal, the State elicited very specific information from Officer Crisler about the court order directing Farrish to refrain from contact with the victim, and the affidavit which charged him with a violation of that order. After Officer Cris-ler testified to the substance of the contempt affidavit, it was entered into evidence with no objection from Farrish.

¶ 7. Where a party has agreed to the admission of evidence, he will not generally be heard to object to the admission of that evidence on appeal. Sanders v. State, 786 So.2d 1078(¶ 10) (Miss.Ct.App.2001).

¶ 8. It must also be noted that Farrish placed these matters before the trial court when (1) he claimed to have permission to see the victim, and (2) he denied any improper contact with the victim. Where the defendant opens the door to discussion of any issue, he cannot complain when the State takes up the discussion. Caston v. State, 823 So.2d 473 (¶ 101) (Miss.2002).

2. DENIAL OF FARRISH’S MOTION FOR A CONTINUANCE

¶ 9. Farrish changed counsel approximately two weeks prior to trial. His trial counsel filed a motion for continuance on July 19, 2001. While the record does not disclose that Farrish ever obtained a ruling on this motion, in his brief he contends that while the pre-trial hearing was not recorded and transcribed, the circuit court denied the motion. In its brief, the State contends this issue should be procedurally barred. See, e.g., Oby v. State, 827 So.2d 731, 733(¶ 2) (Miss.Ct.App.2002).

¶ 10. We decline to apply an issue bar, as the record appears to show that some unspecified motions were brought up in a pre-trial hearing which took place approximately a week and a half prior to the trial. Nevertheless, it is incumbent upon a movant requesting a continuance to set forth with specificity the reasons why additional time is necessary to prepare for trial. Lenard v. State, 812 So.2d 1097, 1100(¶ 4) (Miss.Ct.App.2002). In this case, neither the record nor the briefs makes any showing as to what witnesses, other evidence, or defenses Farrish sought to present, and for which he had inadequate time to prepare. The decision of whether to grant a motion for a continuance is left to the discretion of the trial court. Bridges v. State, 826 So.2d 750, 753(¶ 4) (Miss.Ct.App.2002). In this case, there is no showing that the circuit court erred in denying the continuance.

3. MOTION FOR A JNOV OR IN THE ALTERNATIVE A NEW TRIAL

¶ 11. Once a jury has returned a verdict of guilty, that verdict should only be disturbed upon a finding that under the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty. Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983). In this case, the victim testified as to the sexual acts. Medical evidence confirmed she had been sexually active at some point in her life. School records confirmed that she had been absent at times when sexual encounters were alleged to have occurred. Witnesses confirmed that PN had been to Farrish’s home on several occasions. Farrish, himself, admitted that he and the victim planned to marry and had undergone blood tests to obtain a marriage license. The testimony of a rape victim, which is not shown to be incredible and unworthy of belief, is without more, sufficient to maintain a conviction of rape. Armstead v. State, 716 So.2d 576(¶ 9) (Miss.1998). The victim’s testimony was not incredible and unworthy of belief and was therefore sufficient to support a jury verdict of guilty. In this case, the evidence was sufficient, and the JNOV was properly denied.

¶ 12. A circuit court’s denial of a motion for a new trial will not be disturbed unless an appellate court finds that allowing it to stand would “sanction an unconscionable injustice.” Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983). The record does not show that any injustice occurred in this case. The circuit court did not err in denying the motion for a new trial.

¶ 13. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT OF CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS SUSPENDED ON POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: McMILLIN, C.J.,

text:
    Arthur Dean SPEARMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CP-00540-COA.
    Court of Appeals of Mississippi.
    March 25, 2003.

      Arthur Dean Spearman, appellant pro se.
    Office of the Attorney General by Billy L. Gore, for appellee.
    Before McMILLIN, C.J., THOMAS, and CHANDLER, JJ.
   McMILLIN, C.J.,

FOR THE COURT:

¶ 1. Arthur Spearman has appealed pro se from a judgment denying his petition for post-conviction relief. Spearman originally pled guilty to one count of automobile burglary and one count of escape. He filed his petition in the circuit court within the time permitted by law and, in the petition, complained that (a) he received ineffective assistance of counsel, (b) the indictment to which he pled was defective in some unexplained way, and (c) that either the statutes defining the crimes for which he was charged or the statute under which he was sentenced was unconstitutional. The circuit court denied Spearman any relief without conducting a hearing on the allegations contained in the petition.

¶ 2. Dissatisfied with that result, Spearman has now appealed. In his brief to this Court, Spearman raises four issues: (a) ineffective assistance of counsel, (b) that he was coerced into entering a guilty plea to the two charges, (c) that the indictment was defective, and (d) that he was subjected to a vindictive prosecution. We conclude that the claim of coercion is, in fact, nothing more than one facet of Spear-man’s ineffective assistance of counsel claim. The claim of an unwarranted prosecution brought purely in a vindictive spirit by the prosecutor is plainly a new issue that may not be raised for the first time on appeal. Wright v. White, 693 So.2d 898, 903(¶ 6) (Miss.1997) We, thus, find ourselves confined to consideration of the remaining three issues presented by Spear-man at the trial level and raised once again in this appeal.

¶ 3. The issue actually presented in this appeal involves the question of whether the trial court acted properly in dismissing Spearman’s motion without a hearing, thus denying him the opportunity to present proof of the facts charged in Ms motion.

¶ 4. It is the obligation of the movant, in bringing a proceeding under Mississippi’s Post-Conviction Collateral Relief Act, to set forth with some measure of particularity the alleged facts which, if proven to the satisfaction of the court, would demonstrate the movant’s entitlement to relief. Miss.Code Ann. § 99-39-9(1) (Rev.2000); Woodward v. State, 635 So.2d 805, 808 (Miss.1993); Foster v. State, 687 So.2d 1124, 1141 (Miss.1996). Not only must such facts be pled, the movant must additionally either (a) swear on his oath to the accuracy of those facts that are within his personal knowledge, or (b) satisfactorily demonstrate to the court, by supporting affidavit or other appropriate means, how the movant intends to prove those facts not personally known to him if given the opportumty. Miss.Code Ann. § 99-39-9(1)(d)-(e) (Rev.2000).

¶ 5. Section 99-39-11 permits the circuit court to dismiss the motion “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief_” Miss.Code Ann. § 99-39-11(2) (Rev.2000). That is what occurred in the case now before us, and our review of the record on appeal leaves us convinced that this ruling was not erroneous.

¶6. The only specific facts alleged in support of the conclusory allegations of Spearman’s motion are contained in a brief recital of his version of the events relating to the alleged crimes. He claims that he was walking in the area of a recent vehicle burglary when he was informed by an investigating officer that a witness had identified him as the person breaking into the vehicle. Though he was subsequently handcuffed and placed in the back of the officer’s squad car, Spearman demes that he was placed under arrest. As a result, he contends that he was free to depart the scene — which he did while the officer was not looking by rolling down the back window of the vehicle and fleeing the area on foot. Thus, he contends, there is no basis for either the burglary charge or the escape charge.

¶ 7. There is nothing in that recitation of alleged facts surrounding the crime itself that would either (a) demonstrate the ineffectiveness of defense counsel’s representation, (b) illuminate any alleged defect in the indictment, or (c) establish the unconstitutionality of the statutes under which Spearman was charged and sentenced. We observe from our review of the circuit court’s judgment dismissing Spearman’s post-conviction relief motion that it appears that Spearman, in fact, waived formal indictment and pled guilty to an information filed by the office of the district attorney. Such a practice is permitted in this State under provisions contained in our state constitution. Miss. Const. art. 3, § 27; see McCullen v. State, 786 So.2d 1069, 1073(¶5) (Miss.Ct.App.2001). Our independent review of the formal information charging Spearman did not reveal any fundamental defects on the face of that instrument that would warrant our attention as plain error.

¶ 8. Broad allegations of defects in the manner in which a criminal proceeding was handled, unsupported by any purported facts outlining with some reasonable measure of specificity the nature of the actual errors committed, are not sufficient to require the trial court to conduct a hearing on the motion.

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

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


text:
    Eddie CAPNORD, Appellant v. STATE of Mississippi, Appellee.
    No. 2001-CP-01992-COA.
    Court of Appeals of Mississippi.
    March 25, 2003.

      Eddie Capnord, appellant pro se.
    Office of the Attorney General by Jean Smith Vaughan, for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   McMILLIN, C.J.,

FOR THE COURT:

¶ 1. Eddie Capnord, indicted for murder, entered a plea of guilty to the lesser offense of manslaughter as a part of a plea agreement reached between Capnord and the prosecuting attorney’s office. Capnord was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections. Approximately one year after his plea was accepted and the resulting judgment of sentence was entered, Capnord filed a motion for post-conviction relief. In that motion, Capnord alleged that a defect in the indictment deprived the Leflore County Circuit Court of jurisdiction to sentence him. He also claimed that he received ineffective assistance of counsel in the period leading up to his decision to enter a guilty plea. The trial court dismissed Capnord’s motion without hearing and he has appealed that decision to this Court. We affirm.

¶ 2. The language of the indictment that relates to Capnord’s complaint reads as follows:

That EDDIE CAPNORD, on or about the 6th day of February, 2000, in Le-flore County, Mississippi, did unlawfully, wilfully, feloniously, and of his malice aforethought, kill and murder Cassandra “Renee” White, a human being.

¶ 3. Capnord’s assertion in his motion was that the indictment was fatally defective because it failed to inform him as to which of three statutory definitions of murder the State intended to charge. He points out that Section 97-3-19 of the Mississippi Code defines the crime of murder as encompassing three different homicides; namely, (a) a killing done with deliberate design to effect death, (b) a killing resulting from an eminently dangerous act evincing a depraved heart, and (c) a killing perpetrated in the commission of certain enumerated felonies. Miss.Code Ann. § 97-3-19 (Rev.2000). He contends that the failure of the indictment to more specifically inform him of the nature of the State’s theory of the case renders the indictment fatally insufficient to support a charge of murder.

¶ 4. Capnord’s argument in this regard is without merit. Section 99-7-37 declares that “it shall be sufficient to charge in an indictment for murder, that the defendant did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased.” Miss.Code Ann. § 99-7-37 (Rev. 2000). The Mississippi Supreme Court has specifically upheld the validity of a murder indictment containing nothing more than the statutory charging language. Talbert v. State, 172 Miss. 243, 159 So. 549, 551 (1935).

¶ 5. Capnord attempts, in his brief, to mount a second attack on the indictment. That second attack is based on the assertion that Leflore County is composed of two separate judicial districts and the indictment fails to specify in which district the crime was committed. There is no necessity to undertake an analysis of Capnord’s legal argument in support of this claim. This is a new issue not presented to the trial court for resolution and, thus, may not be raised for the first time on appeal. Denson v. State, 746 So.2d 927 (¶ 17) (Miss.Ct.App.1999). More to the point, there is simply no factual basis for such a claim. Leflore County is not, as are some of the counties of this State, composed of two separate judicial districts for the holding of circuit and chancery court.

¶ 6. Capnord’s assertion before this Court that he received ineffective assistance of counsel consists of two separate propositions. First, he alleges that defense counsel was ineffective for his failure to demur or otherwise interpose an appropriate objection to the fatally-flawed indictment. As we have already determined, the indictment was not flawed in the manner asserted by Capnord. Therefore, simple logic demonstrates that the failure to protest the form of the indictment when no protest was warranted does not establish defective performance by defense counsel.

¶ 7. Additionally, Capnord asserts for the first time in his brief to this Court that his attorney secretly told him in advance of the plea hearing that, if he would plead guilty, he (defense counsel) could assure him that he would only be sentenced to ten years. According to Cap-nord’s allegation, his attorney instructed him to lie when the circuit court inquired if he had been promised anything in exchange for his plea. This Court sits to review alleged errors committed at the trial level and not to adjudicate the merits of claims not previously presented to the trial court for resolution. Id. Whether Capnord, having properly raised the issue in his motion to the Leflore County Circuit Court, could have persuaded that court to pursue the matter to an evidentiary hearing will never be known. The claim, attempted to be asserted for the first time on appeal before this Court, is procedurally barred. Id.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE COUNTY.

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


text:
    Troy T. REDMOND, Appellant v. J.D. BREAKFIELD, Appellee.
    No. 2001-CP-01324-COA.
    Court of Appeals of Mississippi.
    March 25, 2003.

      Troy T. Redmond, appellant pro se.
    James R. Hayden, Hattiesburg, for ap-pellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   McMILLIN, C.J.,

FOR THE COURT:

¶ 1. Troy Redmond brought suit against J.D. Breakfield and Rita K. Jackson for damages resulting from an automobile accident that occurred in Covington County on December 5, 1996. Redmond sued on behalf of himself and his daughter, Allagra Redmond, both of whom were in Redmond’s vehicle at the time of the accident. Redmond alleged that Breakfield was negligent in the operation of truck and that his negligence caused the accident and the resulting injuries to Redmond and his daughter. Redmond’s claim against Rita Jackson was based on the fact that she was the owner of the truck driven by Breakfield and on an allegation of negligent entrustment.

¶ 2. Although the record is not entirely clear on the matter, it appears that the claim against Jackson was resolved prior to trial and the case proceeded to trial solely against Breakfield. The jury returned a verdict in Breakfield’s favor. Redmond has now appealed from this adverse verdict and asserts three issues; namely, (a) that the jury’s verdict was against the weight of the evidence, (b) that the trial court erred in refusing to permit the jury to consider the official police report of the accident, and (c) that the trial judge erred by instructing the jury on the issue of whether Redmond was driving at an excessive rate of speed at the time of the accident. We find no merit in any of these issues and affirm.

¶ 3. We observe that, though originally represented by counsel, Redmond ultimately proceeded to represent himself at trial and appears pro se in this appeal. While it is beyond dispute that a litigant such as Redmond has the right to represent himself in a civil action such as this, we have serious reservations regarding the propriety of Redmond serving as counsel for his daughter at trial. That issue, however, appears to have been rendered moot by the fact that there is no indication in this record that an attempt was made to perfect an appeal on behalf of the daughter.

¶ 4. The motor vehicle accident forming the basis for this suit occurred at the intersection of Highways 35 and 49. Breakfield was in the process of returning from Choctaw County to his home in Cov-ington County in a newly-purchased truck intended for use in his business. He was traveling on Highway 35 which ran in a generally east and west direction at the point in Covington County where it intersected with Highway 49. Redmond was traveling north on 49 in the process of returning from a trip to New Orleans to pick up his daughter for a visit. There is no dispute that Highway 49 was the through highway at the intersection and that Breakfield, in approaching the intersection on Highway 35, was faced with a stop sign requiring him to stop before attempting to cross over Highway 49 and continue on his way.

¶ 5. The only witnesses testifying to the circumstances of the accident were Redmond and Breakfield. Redmond claimed that he was traveling at or below the legal speed limit when Breakfield unexpectedly drove his truck into the intersection. Redmond testified that, at the point that Breakfield entered the intersection, it was impossible for him to avoid a collision and that he swerved to the left in the belief that hitting Breakfield’s truck on an angle would minimize any possible injury to himself and his daughter. Breakfield, for his part, testified that he came to a complete stop at the stop sign and looked for oncoming traffic before entering the intersection. He claimed to have seen no traffic coming from the south before beginning to cross Highway 49 and said he had only the briefest advance warning before Redmond’s vehicle struck him. There was testimony tending to show that Redmond had not applied his brakes before striking Breakfield’s truck.

¶ 6. Both parties concede that the applicable rule of the road determining their competing responsibilities in the situation was the following passage found in Section 63-3-805 of the Mississippi Code:

The driver of a vehicle shall stop as required by this chapter at the entrance to a through highway and shall yield the right-of-way to other vehicles which have entered the intersection from said through highway or which are approaching so closely on said through highway as to constitute an immediate hazard. However, said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on said through highway shall yield the right-of-way to the vehicle so proceeding into or across the through highway.

Miss. Code Ann. § 63-3-805 (Rev.1996).

¶ 7. Redmond, in support of his contention that the verdict was against the weight of the evidence, seems to contend that the uncontradicted proof that he was traveling on the through highway at the time of the accident necessarily establishes Breakfield’s negligence for the accident. We find this to be an incorrect analysis of the law and the facts. There is contradictory evidence in the record as to whether Redmond, while traveling on the through highway, had approached so close to the intersection that he constituted an immediate hazard to Breakfield. Breakfield claimed that he stopped and made the necessary observations before entering the intersection. The clear implication of Breakfield’s testimony is that Redmond was traveling at a high rate of speed that caused him to enter the intersection and strike Breakfield’s truck and that Break-field had entered the intersection only after he determined that no approaching vehicle posed an immediate hazard. Thus, it was Redmond’s failure to approach the intersection with the necessary caution (including, necessarily, at a diminished rate of speed) to observe vehicles — such as Breakfield’s — already in the process of crossing over the through highway.

¶ 8. Certainly, Redmond’s version of events differed from Breakfield’s. However, Breakfield’s testimony was not substantially impeached, nor was it shown that any of the uncontradicted physical evidence rendered his version of events unlikely or implausible. In such a circumstance, in the face of differing versions of the facts presented by competing parties to the litigation, it is the duty of the jury sitting as finders of fact to assess the credibility of the witnesses and determine what weight and worth to give any particular element of the evidence. Upchurch ex rel. Upchurch v. Rotenberry, 761 So.2d 199 (¶ 22) (Miss.2000).

¶ 9. Unless it can be demonstrated that the jury abandoned its duty to act as the disinterested finders of fact and, instead, decided the case based on bias, passion, or prejudice, an appellate court asked to review the jury’s verdict is not permitted to substitute its own judgment for that of the jury. Bridges v. Kitchings, 820 So.2d 42 (¶ 37) (Miss.Ct.App.2002). Rather, we are obligated to afford substantial deference to the jury’s findings of fact. Booker ex rel. Certain Underwriters at Lloyd’s of London v. Pettey, 770 So.2d 39 (¶ 21) (Miss.2000).

¶ 10. It is evident from the jury’s verdict that the members of the jury panel found Breakfield a more credible witness than it did Redmond. We do not find the evidence in support of Redmond’s version of the accident — limited essentially to Redmond’s own testimony and nothing more— to be so compelling or persuasive as to convince us that the jury was motivated by improper bias, passion or prejudice in deciding against Redmond in the face of overwhelming evidence to the contrary. In that circumstance, we have no other option under the law except to affirm the jury verdict.

¶ 11. Redmond’s claim that the trial court improperly excluded evidence in the form of the police accident report is simply incorrect. The accident report, at Redmond’s request, was admitted as Exhibit P-20. Redmond, during his cross-examination of Breakfield, attempted to elicit from Breakfield an admission that the accident report assigned fault for the accident to Breakfield. The trial court sustained an objection on the ground that the reporting officer’s opinion, not based on any eyewitness observation, had no relevance. Breakfield’s counsel’s actual objection was that the inquiry was improper as having no basis in fact since the accident report did not contain any evidence of the investigating officer’s opinion on the question of fault. Our review of the report convinces us that Breakfield’s counsel was correct and that the report does not purport to assign blame for the accident. In all events, the document speaks for itself and the fact remains that the report in its entirety was available to the jury which was free to gather whatever information from it that the jury deemed helpful. We find no error as to this issue.

¶ 12. Breakfield had requested a jury instruction stating that, (a) if the jury concluded that Redmond did not have his vehicle under proper control at the time of the accident and was traveling at an inappropriately high rate of speed, and, (b) if the jury found these factors to be the sole cause of the accident, then their obligation was to find for Breakfield. At the conference on instructions, Redmond objected to the instruction on the basis that it was not supported by any evidence. Though proceeding pro se, there is no doubt that Redmond raised a proper objection. Jones v. State, 797 So.2d 922 (¶ 16) (Miss.2001).

¶ 13. The trial court, in ruling on Redmond’s objection, determined that he was correct insofar as he contended that there was no evidence in the record indicating that he did not have his vehicle under proper control. However, the court determined that there was evidence that, if found credible by the jury, would reasonably support the proposition that Redmond may have been operating his vehicle at a rate of speed that was unreasonably dangerous in the circumstances immediately preceding the collision. The court appropriately modified the instruction to reflect that ruling and it was given in modified form without further objection from Redmond.

¶ 14. We conclude that the trial court’s analysis of the evidence was correct. Breakfield’s testimony that Redmond’s vehicle was not in sight just moments before the collision would clearly support an inference by the jury that Redmond was only able to cover such a large distance in so short a time by traveling at a hazardously high rate of speed. Additionally, Breakfield made reference to the degree of damage inflicted on his truck as evidence tending to show that Redmond’s vehicle must have been traveling at a relatively high rate of speed at impact. We find this evidence of Redmond’s possible excessive speed to be enough to support an inference that this was the cause of the collision. In that circumstance, it was certainly proper for the trial court to instruct the jury on what result such a factual determination ought to have on the verdict to be returned. Copeland v. City of Jackson, 548 So.2d 970, 973 (Miss.1989).

¶ 15. We observe that the trial court, on Redmond’s motion, granted leave for him to appeal the adverse verdict in forma pauperis. The right to appeal a civil case informa pauperis applies in only very limited circumstances as set out m M.L.B. v. S.L.J. 519 U.S. 102, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). A personal injury action arising out of a vehicular accident is not, in our view, one of those narrowly-defined cases. We once again extend a note of caution to trial judges as to the propriety of permitting in forma pauperis appeals in cases where it is plainly inappropriate. Slaydon v. Hansford, 830 So.2d 686, 689(¶ 8) (Miss.Ct.App.2002). In view of the fact that no party with standing to do so has raised the issue before this Court, however, we decline to re-tax the costs of the appeal at this late hour on our own motion.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF COVINGTON COUNTY IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO COVINGTON COUNTY.

KING AND SOUTHWICK, P. JJ„ BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ„ CONCUR.


author: THOMAS, J.,

text:
    CITY OF NEWTON, Appellant v. Bernice LOFTON, Appellee.
    No. 2001-CA-01919-COA.
    Court of Appeals of Mississippi.
    March 25, 2003.

      Jay R. McLemore, Ridgeland, Diane V. Pradat, Jackson, for appellant.
    P. Shawn Harris, for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

FOR THE COURT:

¶ 1. The City of Newton was found 95% negligent by failing to warn and protect Bernice Lofton, who was an invitee, against dangers present at the construction site near Newton Middle School in Newton, Mississippi. Aggrieved, the City of Newton asserts the following on appeal:

I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN MISAPPLYING THE RELEVANT PORTIONS OF THE MISSISSIPPI TORT CLAIMS ACT.
II. THE TRIAL COURT ERRED IN FAILING TO PROPERLY ASSESS CONTRIBUTORY NEGLIGENCE.
III. THE TRIAL COURT ERRED IN AWARDING AN UNREASONABLE AMOUNT OF DAMAGES.

Finding no error, we affirm.

FACTS

¶ 2. On March 26, 1999, a junior-senior prom was held in the gymnasium of Newton Middle School in Newton, Mississippi, a municipal corporation. On said evening Bernice Lofton accompanied by her daughter, Teresa Hart, and her son-in-law, Allen Hart, traversed to the school gymnasium with the intentions of seeing Bernice Lof-ton’s granddaughter as she participated in the “lead out”. This is a processional at the prom wherein all of the participants parade in their gowns. Lofton and her party parked their vehicle in a parking lot to the rear of the gymnasium and began to walk a path across a grassy area near the gymnasium. In order to get to the gymnasium Lofton had to negotiate her way through a construction site, where the City was attempting to improve visibility for drivers. Lofton in attempting to step up the curb, which was recently constructed, apparently tripped and fell, breaking her ankle. Lofton sustained a compound fracture to her leg and incurred medical expenses totaling $18,135.

¶ 3. Witnesses present at the time of the injury and others present shortly after the injury occurred testified that there was an absence of warning signs and that the construction on the curb was not completed and, if completed, it was not satisfactory. Witnesses not present at the time of the accident, but active participants in the construction of the curb as well as the safety of the work site were presented. Numerous State witnesses, who personally worked at the site during construction, testified to the completion of the project, one stating he personally “packed the dirt” at the edge of the curb so as to provide a level amalgamation of the ground with the curb. These witnesses testified as to the completion of the construction and the complete absence of hazards from the construction as well as to the safety warnings that were present when they left the construction site earlier that same day.

¶ 4. Lofton was treated for her injury and endured three hospital stays and years of rehabilitation to retain use of her leg. She had surgery and pins and screws were required to hold the ankle in place. Due to the extreme pain caused from the injury, Lofton is unable to take part in normal day to day activities. She was awarded $ 155,054.25, which was nine times her medical expenses minus five percent, her percentage of contributory negligence.

ANALYSIS

I. DID THE TRIAL COURT ERR AS A MATTER OF LAW BY MISAPPLYING THE RELEVANT PORTIONS OF THE MISSISSIPPI TORT CLAIMS ACT?

¶ 5. The City of Newton contends that the trial court misapplied the law to the facts of this case erroneously determining that the City of Newton was not immune from liability under Miss.Code Ann. § 11^46-9(l)(v) and (l)(w).

¶ 6. This case was brought under this state’s Tort Claims Act, which permits negligence actions against state agencies under certain conditions that include the requirement that, if the matter comes to trial, it will be conducted as a bench trial. Simpson v. City of Pickens, 761 So.2d 855, 860(¶ 15) (Miss.2000). In that situation, the trial court sits as finder of fact and, when the court’s factual determinations are challenged on appeal, the reviewing court must consider the entire record and is obligated to affirm where there is substantial evidence in the record to support the trial court’s findings. Ezell v. Williams, 724 So.2d 396, 397(¶4) (Miss.1998); Mississippi State Hosp. v. Wood, 823 So.2d 598, 601(¶ 7) (Miss.Ct.App.2002). The findings of the trial judge will not be disturbed unless the judge “abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Stanton v. Delta Regional Medical Center, 802 So.2d 142, 146(¶ 6) (Miss.Ct.App.2001).

¶ 7. The standard of review for a judgment entered following a bench trial is well settled. “A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor,” and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence. City of Jackson v. Perry, 764 So.2d 373, 376(¶ 9) (Miss.2000) (citing Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993); Sweet Home Water & Sewer Ass’n v. Lexington Estates, Ltd., 613 So.2d 864, 872 (Miss.1993); Allied Steel Corp. v. Cooper, 607 So.2d 113, 119 (Miss.1992)). This Court reviews errors of law, which include the proper application of the Mississippi Tort Claims Act, de novo. Perry, 764 So.2d at 376 (citing Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991)); Maldonado v. Kelly, 768 So.2d 906, 908(¶ 4) (Miss.2000).

¶ 8. The trial court determined that the pertinent sections of the Mississippi Code were § ll-46-9(l)(v) and (w). These sections are used to determine liability exemptions of governmental entities and its employees acting within the scope of their duties. The Code states as follows:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be hable for any claim:
(v) Arising out of an injury caused by a dangerous condition on the property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care;
(w) Arising out of the absence, condition, malfunction or removal by third parties of any sign, signal, warning device, illumination device, guardrail or median barrier, unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice.

Mississippi Code Ann. § 11-46-9(1)(v) and (w) (Rev.2002). The trial court used the statute to determine, based on the facts of the case, if the statute provided immunity for the City of Newton. After weighing all the evidence, the trial court determined that Lofton’s injury was caused by the negligence of the City of Newton, by failing to warn and protect Lofton, who was an invitee, against the dangers present on said construction site. The trial court, sitting as the jury, determined that the condition was not open and obvious which is required for immunity to apply. The City of Newton failed to have present warning devices surrounding said construction site, which, if present, could have alerted Lof-ton to the danger.

¶ 9. The trial court considered between the application of a pure comparative negligence standard as used in Tharp v. Bunge Corp., 641 So.2d 20 (Miss.1994) or the open and obvious standard codified under subdivision (v) of § 11-46-9(1) of the Mississippi Code. The trial court found that the condition was not obvious and was not readily apparent to Bernice Lofton, therefore the City of Newton does not receive immunity protection under the statute. The trial court further opined that comparative negligence determinations were proper after immunity was denied to City of Newton based on the open and obvious standard.

¶ 10. Our Mississippi Supreme Court sets forth the premise that there may be more than one proximate cause to a negligent act. See King v. Dudley, 286 So.2d 814, 817 (Miss.1973); Braswell v. Economy Supply Co., 281 So.2d 669, 676 (Miss.1973). The defendant may be negligent, but so too may be the plaintiff. Then, our comparative law applies. Our supreme court has held that the so called “open and obvious” defense is no longer an absolute bar to recovery, and to now apply our true comparative negligence doctrine. Tharp v. Bunge Corp., 641 So.2d 20, 25 (Miss.1994); King v. Kroger Co., 787 So.2d 677, 681(¶ 9) (Miss.Ct.App.2001). The applicability of the Tharp holding to a city’s immunity under § 11-46-9(1)(v) need not be considered here, since the trial court made a reasonable fact finding that this condition was not an obvious one.

¶ 11. The trial court applied the correct legal standard and absent a showing that the findings of the trial court were manifestly wrong, clearly erroneous or that the trial court abused its discretion, we will not disturb the trial court’s findings. This issue is without merit.

II. DID THE TRIAL COURT ERR IN FAILING TO PROPERLY ASSESS CONTRIBUTORY NEGLIGENCE?

¶ 12. The City of Newton argues that even if it was not entitled to immunity, the trial court erred in its allocation of only 5% comparative negligence to Lofton.

¶ 13. We review the factual determinations made by a trial judge sitting without a jury using the substantial evidence standard. Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So.2d 200, 204(¶ 15) (Miss.1998).

¶ 14. This contest of the correct percentage of negligence is attributable purely to the factual underpinnings of this case. Here, the trial judge heard testimony from both sides. The trial judge found that both parties were negligent. When a trial judge sits without a jury, this Court will not disturb his factual determination where there is substantial evidence in the record to support those findings. Corry v. State, 710 So.2d 853, 856(¶ 11) (Miss.1998) (citing Yarbrough v. Camphor, 645 So.2d 867, 869 (Miss.1994)). We hold that there is substantial evidence to support the trial judge’s findings.

III. DID THE TRIAL COURT ERR IN AWARDING AN UNREASONABLE AMOUNT OF DAMAGES?

¶ 15. The City of Newton argues the trial court erred in awarding Lofton damages nine times the amount of her medical expenses. They further contend that Lofton had the burden of proving her damages and that she failed to show evidence that would warrant an award of nine times her medical expenses.

¶ 16. Considering the evidence the trial judge had available in awarding damages, the damages award is not “so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.” Harvey v. Wall, 649 So.2d 184, 187 (Miss.1995).

¶ 17. The determination of damages must be a process which is particular to the facts of the case; there is no fixed rule. The trial court takes into account: amount of physical injury, mental and physical pain, present and future pain and disability, temporary and permanent disability, medical expenses, loss of wages and wage earning capacity, sex, age, and health of the injured. Woods v. Nichols, 416 So.2d 659, 671 (Miss.1982). The City of Newton argues that since the medical expenses were $18,135, nine times this number is automatically too much, but the City of Newton fails to cite case law supporting its claim. The trial court set out in detail the reasons for the award. The trial court did not abuse its discretion.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF NEWTON COUNTY IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

GRIFFIS, J., NOT PARTICIPATING.