author: CHANDLER, J.,

text:
    Adrian SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CP-00496-COA.
    Court of Appeals of Mississippi.
    March 23, 2004.

      Adrian Smith, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Adrian Smith, pro se, appeals an order of the Circuit Court of Copiah County denying his petition for post-conviction relief. In his appeal, Smith asserts the following errors:

1. WHETHER THE TRIAL COURT ERRED IN ALLOWING SMITH TO ENTER A GUILTY PLEA UNDER THE WRONG STATUTE WHICH RESULTED IN AN EXCESSIVE SENTENCE.

2. WHETHER SMITH RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 2. Finding no merit to Smith’s argument, we affirm the ruling of the trial court.

PROCEDURAL HISTORY AND FACTS

¶ 3. Smith was in jail awaiting trial for armed robbery. On September 19, 2001, Smith abandoned his work detail at the jail. He was apprehended three months later on December 12, 2001. On February 7, 2002, he was indicted for the offense of escape in violation of Mississippi Code Annotated Section 97-9-49(1) (Supp.2001). Smith entered pleas of guilty to armed robbery and escape on March 4, 2002. He was sentenced to serve four years in the custody of the Mississippi Department of Corrections for the armed robbery charge and two years on the escape charge with the sentences to run consecutively.

¶ 4. Approximately a year after the entry of his voluntary pleas of guilty, Smith filed a motion for post-conviction collateral relief seeking to vacate his guilty plea to the escape charge claiming he received ineffective assistance of counsel. In his motion, Smith argued that the two year sentence for escape under 97-9-49(1) was erroneous because his escape was not the result of force or violence. He claimed he simply walked away from the work detail, so he should have been sentenced pursuant to Section 97-9-49(2) which carries a maximum punishment of six months’ imprisonment. The trial court dismissed Smith’s pro se petition for post-conviction relief for failure to provide any basis for the motion.

LAW AND ANALYSIS

1. WHETHER THE TRIAL COURT ERRED IN ALLOWING SMITH TO ENTER A GUILTY PLEA UNDER THE WRONG STATUTE WHICH RESULTED IN A EXCESSIVE SENTENCE.

¶ 5. The Mississippi Uniform Post Conviction Collateral Relief Act provides the exclusive and uniform procedure for the collateral review of convictions and sentences in this state. Walker v. State, 555 So.2d 738, 741 (Miss.1990). Under Mississippi Code Annotated Section 99-39-5 (Supp.2003), a claim for post-conviction relief may be filed by an inmate in custody within three years of (1) a resolution of the direct appeal, or (2) within three years after the time for appeal has expired. Wright v. State, 821 So.2d 141(¶ 3) (Miss.Ct.App.2000). Mississippi Code Annotated Section 97-9-49(1) (Supp.2001), provides:

(1)Whoever escapes or attempts by force or violence to escape from any jail in which he is confined, or from any custody under or by virtue of any process issued under the laws of the State of Mississippi by any court or judge, or from the custody of a sheriff or other peace officer pursuant to lawful arrest, shall, upon conviction, if the confinement or custody is by virtue of an arrest on a charge of felony, or conviction of a felony, be punished by imprisonment in the penitentiary not exceeding five (5) years to commence at the expiration of his former sentence, or, if the confinement or custody is by virtue of an arrest of or charge for or conviction of a misdemean- or, be punished by imprisonment in the county jail not exceeding one (1) year to commence at the expiration of the sentence which the court has imposed or which may be imposed for the crime for which he is charged.
(2) Anyone confined in any jail who is entrusted by any authorized person to leave the jail for any purpose and who willfully fails to return to the jail within the stipulated time, or after the accomplishment of the purpose for which he was entrusted to leave, shall be an escapee and may be punished by the addition of not exceeding six (6) months to his original sentence.

¶ 6. Smith argues that the trial court committed error when it imposed upon him a two year sentence for escape under Mississippi Code Annotated Section 97-9-49(1). Smith asserts that he should have been sentenced under Mississippi Code Annotated Section 97-9^49(2) which carries a maximum sentence of six months’ imprisonment because his escape was not a result of force or violence. Case law defies Smith’s argument.

¶ 7. In Miller v. State, 492 So.2d 978, 981 (Miss.1986), the defendant argued the State must prove “force or violence” as an element of the offense of escape under Section 97-9-49(1). The supreme court held otherwise. Id. “The statute provides for two offenses: escape and attempted escape. First, escape, without adjectival qualification, is made unlawful. Then,.attempts at escape “by force or violence” are made unlawful. The “force or violence” wording in the statute refers only to attempted escape and not to the separate and distinct offense of escape, properly so called.” Id. In Edget v. State, 791 So.2d 311, 312(¶ 5) (Miss.Ct.App.2001), the Court held that Section 97-9-49(1) is applicable to escapees who have not yet been convicted and sentenced.

¶ 8. Smith admits that while incarcerated on a pending felony charge of armed robbery, he walked away from his work detail in order to escape from jail. These facts establish that Smith was guilty of escape under Section 97-9-49(1). The trial court did not err in accepting Smith’s guilty plea under Section 97-9-49(1).

¶ 9. Smith also argues that the armed robbery and escape sentences imposed upon him should have run concurrently because he was a pre-trial detainee at the time of his escape. Smith relies on Williams v. State, 420 So.2d 562, 563 (Miss.1982), in which the Mississippi Supreme Court held that if the defendant escaped prior to his sentencing, he was not subject to any “former sentence” and thus the escape was not within the statute. However, Williams was decided on a different version of the statute which is no longer in existence.

¶ 10. Smith also relies incorrectly on Ward v. State, 708 So.2d 11 (Miss.1998). In Ward, the defendant was given a deal by the sheriff where he would be released from jail in order to participate in an undercover drug deal but was supposed to appear for trial at a designated date. Ward, 708 So.2d at 12(¶ 3). The defendant left the state for four days without permission. He was later apprehended and charged with escape. Id. He pled guilty to escape as well as to the sale of cocaine, the crime for which he was being held at the time he was released to participate in the undercover operation. Id. at (¶ 4). Ward was sentenced to fifteen years for the sale of cocaine and five years on the escape charge. The Mississippi Supreme Court reversed the five-year sentence on the escape conviction because under Mississippi Code Annotated Section 97-9-49(2), six months is the maximum sentence for someone who is allowed to leave custody and fails to return as stipulated. Id. at (¶¶ 12-13). The court stated that if Ward’s escape sentence was valid, “it would necessarily have to run concurrently with Ward’s sentence for sale of cocaine because he was a pretrial detainee with no original sentence at the time of escape.” Id. at (¶ 13).

¶ 11. In Coffey v. State, 856 So.2d 635, 638 (¶ 10) (Miss.Ct.App.2003), this Court found that it was within the discretion of the trial judge to impose concurrent or consecutive sentences on a defendant who had escaped from prison while awaiting charges on aggravated assault and kidnap-ing. The defendant relied on Ward for the authority that a concurrent sentence should be imposed on a pre-trial detainee with no original sentence at the time of escape. This Court expressly rejected this argument and held:

Whether or not a sentence is to be served concurrently or consecutively is clearly within the discretion of the trial judge according to Mississippi Code Annotated. Section 99-19-21(1), which states:
(1) When a person is sentenced to imprisonment on two (2) or more convictions, the imprisonment on the second, or each subsequent conviction shall, in the discretion of the court, commence either at the termination of the imprisonment for the preceding conviction or run concurrently with the preceding conviction.

Coffey, 856 So.2d at (¶ 10). Like the other cases on which Smith relies, Ward is easily distinguishable from the facts in his case. Smith’s argument is without merit.

2. WHETHER SMITH RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 12. Smith argues that he received ineffective assistance of counsel, claiming his attorney failed to inform him that he was pleading guilty under the wrong criminal statute. He alleges this misinformation resulted in a longer prison sentence being imposed on him than was warranted. This Court’s finding that Smith was properly sentenced by the trial court under Section 97-9-49(1) renders his argument meritless.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY SUMMARILY DISMISSING THE MOTION FOR POST CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

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

      . 97-9-49(2) was amended in 2002 and provides that a person shall be subject to the same penalties as subsection one.


source: Caselaw Access Project

license: Public Domain

text:
    Larry BULLINS, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00454-COA.
    Court of Appeals of Mississippi.
    March 23, 2004.

      B. Leon Johnson, Clarksdale, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. On February 4, 2003, Larry Bullins was tried before a Grenada County Circuit Court jury for sale of cocaine and found guilty. Because he was a repeat offender he was sentenced to thirty years without parole. Bullins’ motion for a new trial and his motion for judgment notwithstanding the verdict were denied. He appeals and cites the following errors:

I. DID THE TRIAL COURT ERR IN DENYING BULLINS’ MOTION FOR A NEW TRIAL?

II. DID THE TRIAL COURT ERR IN DENYING BULLINS’ MOTION FOR A DIRECTED VERDICT OR A JNOV?

¶ 2. Finding no merit, we affirm the ruling of the trial court.

FACTS

¶ 3. On July 27, 2000, the North Central Narcotics Task Force and Agent Calvin Jones began an undercover operation to purchase illegal drugs in Grenada, Mississippi. Jones was working undercover with Wayne Haymon, a confidential informant. Before dispatching to the area to make the buy, Jones searched the informant and the car they were using for drugs. Jones also set up camera equipment for recording any drug purchases. Jones and Haymon then proceeded in an unmarked car to Cherry Street in Grenada where they met Bullins. Haymon, who was riding in the passenger seat, asked Bullins for crack cocaine. They discussed the amount of cocaine Haymon wanted to buy. Bullins then walked down the street three houses and returned with what appeared to be two pieces of crack cocaine. Bullins held the substance in his hand and broke one of the pieces. Jones reached over and took two of the pieces from Bullins’ hand in exchange for twenty dollars.

¶ 4. After the transaction was complete, Jones returned to the post-buy location and put the substance in a labeled evidence bag which was sealed and identified by Jones’ initials. Jones gave the evidence bag to Agent Noah Coffee with the North Central Narcotics Task Force. Coffee then placed the evidence in a locker to which only he had a key.

¶ 5. At trial, Agent Jones identified Bul-lins as the person who sold the cocaine. He also identified a plastic bag containing crack cocaine and fleeting images of the substance as shown in a videotape which was played for the jury. The video that was shown to the jury revealed the crack cocaine in Bullins’ hand only briefly. There was no audio of the drug transaction due to low batteries. Jones testified that the videotape was an accurate representation of the cocaine purchase as it had occurred on July 27, 2000. Haymon died prior to trial.

¶ 6. Agent Coffee testified that he took the cocaine to the Mississippi Crime Lab, where it was submitted for scientific identification. Teresia Hickman, a forensic analyst with the Mississippi Crime Lab, testified that she analyzed the substance submitted by Coffee and determined its chemical composition to be crack cocaine. On cross examination, she was asked how many pieces of the substance was shown to be in the bag. She acknowledged that the report indicated only one piece. Hickman admitted that she could not remember how many pieces of cocaine were included in the evidence bag, stating that she merely tested the substance inside and determined that it was cocaine. At the conclusion of the prosecution’s case in chief, the defense moved for a directed verdict which was denied by the court. The defendant called no witnesses. The jury returned a verdict of guilty and Bul-lins was sentenced to thirty years.

I. DID THE TRIAL COURT ERR IN DENYING BULLINS’ MOTION FOR A NEW TRIAL?

¶ 7. A motion for new trial goes to the weight of the evidence. Grant v. State, 762 So.2d 800 (¶ 10) (Miss.Ct.App.2000). The standard of review in determining whether a jury verdict is against the overwhelming weight of the evidence is 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.” Dudley v. State, 719 So.2d 180, 182(¶ 8) (Miss.1998). On review, the State is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” 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.” Dudley, 719 So.2d at 182.

¶ 8. Bullins asserts the verdict was against the overwhelming weight of the evidence and the trial court erred when it failed to grant his motion for a new trial. Bullins argues the video does not show him placing the alleged crack cocaine in Jones’ hand. Bullins also questions the discrepancies between Jones’ testimony that two rocks of cocaine were purchased and the Mississippi Crime Lab’s report which indicated only one rock of crack cocaine was received.

¶ 9. In his testimony, Jones gave an eyewitness account of the drug transaction. He identified Bullins in court as the person to whom he gave twenty dollars in exchange for crack cocaine. There was also a videotape of the transaction.

¶ 10. The State provided credible testimony that the material produced at trial was the same material Jones purchased from Bullins. Through its witnesses, the State showed the chain of custody from the undercover agent Jones to Noah Coffee, the senior agent in the North Central Narcotics Task Force, who placed the evidence into a secure evidence locker at the North Central Narcotics Task Force. The record reflected that the substance submitted to the lab was sealed and marked for identification and showed no signs of tampering. The trial court properly admitted these facts into evidence. Wells v. State, 604 So.2d 271, 277 (Miss.1992).

¶ 11. Accepting as true all evidence favorable to the State, this Court concludes that the evidence supports the jury’s findings. This assignment of error is without merit.

II. DID THE TRIAL COURT ERR IN DENYING BULLINS’ MOTION FOR A DIRECTED VERDICT OR A JNOV?

¶ 12. Bullins contends the evidence is not sufficient to support his conviction. Motions for directed verdict and JNOV involve consideration of the evidence before the court at the time the motions are made. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The same standard is used to review denied motions for both directed verdict and JNOV. These motions implicate the legal sufficiency of the evidence as opposed to the weight of the evidence. See Wetz v. State, 503 So.2d 803, 808 n. 3 (Miss.1987).

¶ 13. The standard for assessing the legal sufficiency of the evidence requires that the judge accept as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawn and to disregard evidence favorable to the defendant. McClain, 625 So.2d at 778. This Court may only reverse if one or more elements of the offense has not been proven, and the evidence is such that reasonable fairminded jurors could only find the accused not guilty. Id.

¶ 14. This Court finds that all of the elements of the offense were proven. The evidence of Bullins’ guilt is overwhelming. This Court affirms the trial court.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF GRENADA COUNTY OF CONVICTION OF THE SALE OF COCAINE AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER IS AFFIRMED. SENTENCE IMPOSED IN THIS CAUSE SHALL RUN CONSECUTIVELY TO ANY SENTENCE PREVIOUSLY IMPOSED. COSTS OF THIS APPEAL ARE ASSESSED TO GRENADA COUNTY.

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


text:
    Corey Dewayne SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00409-COA.
    Court of Appeals of Mississippi.
    March 23, 2004.

      Corey Dewayne Smith, appellant, pro se.
    Tom Sumrall, Gulfport, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Corey Dewayne Smith was convicted of murder in the Circuit Court of the First Judicial District of Harrison County. He was sentenced to life imprisonment. Aggrieved by that decision, he appealed to this Court.

¶ 2. Smith’s appellate counsel, Tom Sum-rall, has filed a brief pursuant to Brown v. State, 799 So.2d 870 (Miss.2001), based on the procedure outlined in Turner v. State, 818 So.2d 1186 (Miss.2001). Appellate counsel for Smith wrote:

Counsel had determined (1) that the defendant is unlikely to prevail on appeal; (2) Counsel has scoured the record thoroughly and determined that there is nothing in the record that might arguably support an appeal and (3) Counsel has advised his client of his light to file a pro se supplemental brief. To elaborate further on his efforts, counsel would show that he did seriously consider presenting the argument that the jury verdict was against the overwhelming weight of the evidence and was not sufficient to support the verdict. However, upon serious reflection, the conclusion was reached that this is a classic case of the jury having all the evidence before it and making an informed decision as to what the facts really are and basing its verdict upon that proposition.

Smith did not file a supplemental brief on his own behalf. The State agrees with the analysis of the evidence by Smith’s counsel that there are no arguable issues that might support an appeal. Smith’s counsel alluded to the following as error which might support an appeal:

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

¶ 3. After carefully reviewing the entire record in the case, this Court finds no error which warrants a reversal. Therefore, we affirm the ruling of the trial court.

FACTS

¶ 4. On January 14, 2001, Smith shot and killed Torey Youngblood outside the Cadillac Club in Gulfport, Mississippi. In the early morning hours, a fight broke out inside the club among various patrons. Security guards attempted to break up the fight by using mace and ordering people to leave the club. Words were exchanged outside the club and the fight erupted again resulting in Youngblood being shot and killed by Smith. Smith does not deny killing Youngblood. Rather, he asserts that he acted in self defense.

¶ 5. Schnell Carney was the first witness to testify for the State. Schnell was at the Cadillac Club on the evening in question. She testified that a fight broke out upstairs in the club and security forced everyone outside. Schnell’s brother, Marvel Spurlock, was involved in the fight inside the club. Schnell left the club with a beer bottle in her hand. After leaving the club, she saw Spurlock arguing with David White. As she approached the two, White warned her against hitting him with the bottle. Leo Carney, Schnell’s husband, overheard White’s comment towards his wife and after an exchange of words, the two began fighting. As the fight ensued, three other people joined the beating of Carney. One of the persons joining in was identified by Schnell as Corey Smith.

¶ 6. Schnell testified that Youngblood pulled Smith off of Carney’s back, and pushed him up against a wall outside of the club. When Youngblood turned his back to Smith in order to help Leo, Smith shot him in the back of the head.

¶ 7. Carney testified that he was involved in the fight outside the Cadillac Club. He said that after Youngblood pulled Smith off him and threw Smith against the wall. Smith drew a gun and shot Young-blood in the back of the head.

¶ 8. Tema Gray testified that Young-blood, Leo Carney and Julius Hobbs went to the Cadillac Club on January 14, 2001. After being forced to leave the club, Gray said he saw Carney being beaten by three people. He said that he and Youngblood went to the aid of their friend. Gray testified that Youngblood pulled Smith off Carney and threw Smith against a wall. Smith then shot Youngblood in the back of the head killing him.

¶ 9. The appellant, Smith, testified on his own behalf and admitted that he was involved in a fight with Carney. Smith said he was scared of the group of people that had gathered outside the club because there were more of Spurlock’s friends than friends of White in the crowd. Smith stated that he told the group of people outside the club that if they jumped him that he would shoot them to protect himself. He testified that somebody hit him from behind and knocked him to the ground. Af-terwards, he alleged a group of people began to stomp and kick.

¶ 10. Smith stated that he fired two shots after coming up off the ground. The first shot did not hit anyone. He denied pressing the gun against Youngblood’s head and shooting him. On cross-examination, Smith admitted that no one involved in the fight had a gun, knife or weapon except him. He also admitted that nobody threatened to harm him in any way. Smith said that he never saw Youngblood hit or kick him during the fight.

I. WAS THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 11. The standard of review in determining whether a jury verdict is against the overwhelming weight of the evidence is 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.” Dudley v. State, 719 So.2d 180, 182(¶ 8) (Miss.1998). On review, the State is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” 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.” Dudley, 719 So.2d at 182 “This Court does not have the task of reweighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Langston v. State, 791 So.2d 273, 280 (¶ 14) (Miss.Ct.App.2001).

¶ 12. After a careful of review of the evidence, this Court finds that the jury’s verdict was not against the overwhelming weight of the evidence. The jury was presented with the evidence and made an informed decision in determining what happened on the night in question. The jury could have accepted Smith’s version of events and found him not guilty by reason of self-defense. The jury was given proper jury instructions on murder and manslaughter. The jury chose to accept the State’s version of events and find Smith guilty of murder.

II. WHETHER APPELLATE COUNSEL FOLLOWED THE CORRECT PROCEDURE IN FILING THE BRIEF PURSUANT TO TURNER.

¶ 13. Smith’s appellate counsel contends that the appeal is largely- frivolous. He filed a brief, alluding to one issue that might support an appeal. In Turner, the court outlined a procedure to follow in cases of frivolous appeals. The Turner requirements are that appellate counsel must: (1) determine that the defendant is “unlikely to prevail on appeal,” (2) file a brief indicating “that he scoured the record thoroughly,” and “refer to anything in the record that might arguably support the appeal,” and (3) advise the client of his right to file a pro se supplemental brief. Turner v. State, 818 So.2d 1186 at (¶ 31).

¶ 14. We find that Smith’s counsel followed the procedure set out in Turner. This Court has conducted an independent review of the record and cannot find any additional issues that might support an appeal.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HARRISON COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


text:
    Laveal McGHEE, Appellant v. Robert JOHNSON, et al., Appellees.
    No. 2002-CP-01891-COA.
    Court of Appeals of Mississippi.
    March 23, 2004.

      Laveal McGhee, appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellees.
    Before KING, P.J., LEE and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Laveal McGhee, an inmate within the Mississippi Department of Corrections, filed a complaint in the Circuit Court of Sunflower County against Robert Johnson, E.L. Sparkman and Lorene Scott alleging that his parole eligibility had been computed incorrectly. At the time the complaint was filed, Robert Johnson was the commissioner of the Mississippi Department of Corrections, E.L. Sparkman was the commissioner of the Mississippi State Penitentiary at Parchman and Lorene Scott was the assistant director of records at Parch-man. On August 30, 2002, the circuit court entered an order requiring the respondents to conduct an investigation of McGhee’s complaint. Following the investigation, a status conference was held and the court ruled McGhee’s parole eligibility date had been properly calculated. Feeling aggrieved, McGhee asserts the following error:

1. IS THE OPINION OF THE MISSISSIPPI ATTORNEY GENERAL, DATED JANUARY 5, 1982, CONCERNING PAROLE ELIGIBILITY FOR PERSONS RECEIVING CONSECUTIVE SENTENCES, THE CONTROLLING AUTHORITY FOR THE COMPUTATION OF PAROLE ELIGIBILITY FOR CONSECUTIVE SENTENCES OF THIRTY-NINE PLUS THIRTY YEARS, RECEIVED BY APPELLANT ON APRIL 28,1982?

¶ 2. Finding no error, we affirm the ruling of the trial court.

FACTS

¶ 3. McGhee pled guilty in 1980 to murder, rape and kidnaping. He was sentenced to life on each charge in the indictment with each sentence to be served consecutively. In 1982, McGhee was re-sentenced to life on the murder conviction, and given a thirty-nine year sentence on the rape charge and a thirty year sentence on the kidnaping charge.

¶ 4. McGhee argues that under the law in effect in 1982, his thirty-nine year sentence and his thirty year sentence should have been combined giving him a sentence of life plus sixty-nine years. He asserts that he should be eligible for parole after serving ten years of the life sentence plus ten years of the sixty-nine year combined sentence. The Mississippi Department of Correction’s sentencing computation requires McGhee to serve thirty years before becoming eligible for parole. McGhee argues that his sentence is contrary to the law set out by the Mississippi Supreme Court.

1. IS THE OPINION OF THE MISSISSIPPI ATTORNEY GENERAL, DATED JANUARY 5, 1982, CONCERNING PAROLE ELIGIBILITY FOR PERSONS RECEIVING CONSECUTIVE SENTENCES, THE CONTROLLING AUTHORITY FOR THE COMPUTATION OF PAROLE ELIGIBILITY FOR CONSECUTIVE SENTENCES OF THIRTY-NINE PLUS THIRTY YEARS, RECEIVED BY APPELLANT ON APRIL 28, 1982?

¶ 5. McGhee argues he is required to serve only ten years of the life sentence, plus ten years of the sixty-nine year combined sentence in order to be eligible for parole. He bases his argument on an attorney general’s opinion issued January 5, 1982, to Parole Board Chairman Charles Jackson. The attorney general’s opinion stated “[a]n offender sentenced to a term of thirty years and thirty years consecutively for a total of sixty years ... is eligible to be considered for parole after serving a minimum of ten years.” McGhee argues the attorney general’s opinion was controlling law at the time of his re-sentencing and imposing a later interpretation of the statute violates the ex post facto laws of the United States and Mississippi Constitutions. The trial judge sentenced McGhee under the following statute:

Every prisoner who has been or may hereafter be convicted of any offense against the State of Mississippi, and is confined in the execution of a judgment of such conviction in the Mississippi State Penitentiary for a definite term or terms of one (1) year or over, or for the term of his or her natural life, whose record of conduct shows that such prisoner has observed the rules of the Penitentiary, and who has served not less than one-fourth (1/4) of the total of such term or terms for which such prisoner was sentenced, or, if sentenced to serve a term or terms of thirty (30) years or more, or, if sentenced for the term of the natural life of such prisoner, has served not less than ten (10) years of such life sentence, may be released on parole as hereinafter provided.

Miss.Code Ann. § 47-7-3(1) (Supp.1982)

¶ 6. McGhee argues the attorney general’s opinion is controlling rather than the statute. This argument is flawed. Mississippi Code Annotated section 4004-03 was enacted in 1942 and the pertinent provisions of the former statute are presently embodied in Mississippi Code Annotated Section 47-7-3 (Supp.2003). Only the administrative interpretation of the law has changed. Taylor v. Miss. State Probation and Parole Bd., 365 So.2d 621, 622 (Miss.1978).

¶ 7. When McGhee was re-sentenced in 1982, section 47-7-3(1) was applicable, notwithstanding the attorney general’s opinion. “An attorney general’s opinion is entitled to careful consideration and regarded as persuasive; however, the opinion is not binding upon the court considering the same question of law.” Blackwell v. Miss. Bd. of Animal Health, 784 So.2d 996, 1000(¶9) (Miss.Ct.App.2001). The Mississippi Supreme Court has held that an “administrative correction of a prior misinterpretation of parole laws as applied to the appellant did not violate the ex post facto clause of the United States or Mississippi Constitutions.” Taylor, 365 So.2d at 622. Therefore, the parole board’s application and interpretation of section 47-7-3, as applied to McGhee’s sentence is proper.

¶ 8. Consecutive sentences with statutory mínimums may not be combined for parole eligibility purposes. Id.; Williams v. Puckett, 624 So.2d 496, 499-500 (Miss.1993); Milam v. State, 578 So.2d 272, 274 (Miss.1991). McGhee will become eligible for parole after serving thirty years.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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


author: LEE, J., IRVING, J.,

text:
    Deborah Stewart WHITE, Appellant, v. Douglas Bryans WHITE, Appellee.
    No. 2003-CA-00171-COA.
    Court of Appeals of Mississippi.
    March 23, 2004.

      Betsy E. Walker, Biloxi, attorney for appellant.
    Harry M. Yoste, Gulfport, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Deborah Stewart White and Douglas Bryans White were married in May 1982, and had two children, Alayne and Ashley, who were age thirteen and age seventeen, respectively, at the time of the trial. Both Douglas and Deborah were college graduates, and, although Deborah did work consistently during the marriage, Douglas was the primary breadwinner for the family. A job transfer for Douglas caused the Whites to move from Georgia to Mississippi in 1998. Douglas left Deborah in December 1999, and filed for divorce in January 2000, on the grounds of irreconcilable differences. Deborah filed her answer on August 11, 2000, and counterclaimed for divorce on the grounds of adultery, habitual cruel and inhuman treatment, or, in the alternative, irreconcilable differences.

¶ 2. A temporary order was entered September 1, 2000, granting Deborah temporary custody of the children and spousal and child support from Douglas. A trial on the matter was held July 9, 2001, after which the chancellor awarded Deborah a divorce on the grounds of habitual cruel and inhuman treatment. The chancellor also awarded both parties joint legal custody, with primary physical custody awarded to Deborah. Douglas was ordered to pay lump sum alimony and child support. The chancellor also awarded Deborah fifty percent of each of Douglas’s financial investments, including his retirement account.

¶ 3. Deborah filed a motion to reconsider on November 29, 2001, which was eventually denied by the chancellor. Aggrieved, Deborah now perfects her appeal to this Court asserting that the chancellor erred in the following ways: (1) by not specifically classifying the parties’ property and assets as marital and non-marital and not setting out specific findings of facts and conclusions of law; (2) by not addressing the National Guard retirement and distributing it properly; (3) by granting the improper amount and type of alimony; (4) by not awarding her attorney’s fees; (5) by not including the 2000 bonus Douglas received as marital property and equitably dividing between them; (6) by not granting her the sum of $990 that was withheld by Douglas from his support payments between April 15, 2001, until June 30, 2001; and (7) by not specifically ordering Douglas to obtain the type of life insurance which would allow the minor children to be made permanent beneficiaries. Finding merit to the second issue, we reverse and remand. In reviewing the remaining issues, we find them to be without merit.

STANDARD OF REVIEW

¶ 4. When reviewing the decisions of a chancellor, this Court applies a limited abuse of discretion standard of review. McNeil v. Hester, 753 So.2d 1057(¶ 21) (Miss.2000). The findings of the chancellor will not be disturbed “unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard.” Id.

DISCUSSION OF ISSUES

I. DID THE CHANCELLOR ERR BY NOT SPECIFICALLY CLASSIFYING THE PARTIES’ PROPERTY AND ASSETS AS MARITAL AND N ON-MARITAL PROPERTY AND BY NOT SPECIFICALLY SETTING OUT SPECIFIC FINDINGS OF FACTS AND CONCLUSIONS OF LAW?

¶ 5. In her next issue, Deborah claims that the chancellor never made a division of the marital and non-marital assets as per required by Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). Deborah also contends that, although the chancellor did make specific rulings and give some justifications for its decision, the rulings were not sufficient to meet the Ferguson standard. However, Deborah does not argue that the property was inequitably divided, just that the chancellor committed reversible error in not enumerating the Ferguson standard. The Ferguson guidelines include:

(1) economic and domestic contributions by each party to the marriage,
(2) expenditures and disposal of the marital assets by each party,
(3) the market value and emotional value of the marital assets,
(4) the value of the nonmarital property,
(5) tax, economic, contractual, and legal consequences of the distribution,
(6) elimination of alimony and other future frictional contact between the parties,
(7) the income and earning capacity of each party, and
(8) any other relevant factor that should be considered in making an equitable distribution.

Id. at 928. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor. Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). In his order, the chancellor clearly articulated his rationale for the equitable division of the marital estate. The parties were married almost twenty years and neither argued that any of their assets should be considered non-marital property. Although the chancellor did not specifically describe the assets as marital, he implicitly did so in trying to equitably divide the assets. The chancellor addressed certain assets that Deborah and Douglas had acquired during their marriage, including a house, cars, retirement, stock options, and debt. We conclude that the chancellor’s ruling on the issue on equitable division of the martial assets was within the court’s authority and discretion to resolve such matters. An abuse of discretion or an application of a clearly erroneous legal standard has not been shown in this matter; thus, this issue is without merit.

II. DID THE CHANCELLOR ERR BY NOT CLASSIFYING THE NATIONAL GUARD RETIREMENT AS MARITAL PROPERTY AND DISTRIBUTING IT ACCORDINGLY?

¶ 6. In this issue, Deborah claims that Douglas’ National Guard retirement should have been included as a marital asset in the chancellor’s Ferguson analysis and, therefore, distributed equitably. In his ruling, the chancellor stated, “I do not recall any proof in the record or how many years he’s been in the Guard or what the retirement, if any, is.... I don’t think with the state of the record, I can make a ruling on that because there’s nothing here.” The chancellor further reiterated this, saying, “I don’t have any idea how many years ... of overlapping marriage and guard time there is, how many year’s he’s got to retire if indeed he can retire. I have no idea of those figures.” According to one of Douglas’ exhibits, he had been in the National Guard for twenty-four years at the time of the trial.

¶ 7. Douglas argues that there was no evidence in the record concerning the retirement and that, since Deborah did not offer any proof on the issue or cross-examine Douglas about the retirement, the chancellor was correct in not classifying and distributing the retirement. Although that may be true, we find that it was incumbent upon Douglas to provide proof when submitting his financial disclosure form. Furthermore, we’ find that it was error for the chancellor not to request said information from Douglas before equitably dividing the parties’ assets. It seems inequitable for Douglas to receive a benefit, the bulk of which was clearly accumulated during the marriage, and for Deborah to receive no benefit. We reverse and remand for further findings on this issue.

III. DID THE CHANCELLOR ERR IN GRANTING THE IMPROPER AMOUNT AND TYPE OF ALIMONY?

¶ 8. In her third argument, Deborah contends that she should have been awarded periodic alimony or, in the alternative, a greater amount of lump sum alimony. The Mississippi Supreme Court has held that an award of alimony is left to the chancellor’s discretion. Voda v. Voda, 731 So.2d 1152(117) (Miss.1999). “In the case of a claimed inadequacy or outright denial of alimony, we will interfere only where the decision is seen as so oppressive, unjust or grossly inadequate as to evidence an abuse of discretion.” Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993); Smith v. Smith, 607 So.2d 122, 126 (Miss.1992). The following factors are to be considered by the chancellor in deciding whether to award alimony: the income and expenses of the parties, the health and earning capacities of the parties, the needs of each party, the obligations and assets of each party, the length of the marriage, the presence or absence of minor children in the home, the age of the parties, the standard of living of the parties during the marriage and at support determination, the tax consequences of the spousal support order, fault or misconduct, wasteful dissipation of assets by either party, and any other equitable factors. Id.

¶ 9. With regards to lump sum alimony, the supreme court has listed several factors to be considered by the chancellor in determining whether to award lump sum alimony: (1) whether the spouse seeking lump sum alimony made a substantial contribution to the potential payor’s accumulation of wealth; (2) length of the marriage; (3) disparity between the separate estates; and (4) whether the spouse seeking lump sum alimony would lack financial security in the absence of an award. Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988). However, the single most important factor is the disparity of the separate estates. Retzer v. Retzer, 578 So.2d 580, 592 (Miss.1990); Cheatham, 537 So.2d at 438.

¶ 10. In his ruling the chancellor did not specifically state that he was following the Armstrong factors. However, the chancellor said, “Now, the purpose for this next award is as follows ...” and went on to address the factors and how he reached his decision. The chancellor determined that Deborah’s net income, including child support, was approximately $3058 per month. As per Deborah’s request, the chancellor awarded her the marital home and required her to assume the mortgage payments. Deborah was also awarded the van, personal property in the house worth approximately $11,500, and jewelry worth approximately $1500. The chancellor also awarded Deborah one-half of Douglas’ 401K, one-half of OpTech stock, one-half of the Putnam Mutual Funds account, and 25% of whatever bonus Douglas receives in 2001. Deborah was ordered to pay the debt on the van and her Citibank debt.

¶ 11. After paying child and spousal support, Douglas’ net income was $3424 per month. Douglas was ordered to keep the children on his health insurance and maintain life insurance with the children as primary beneficiaries. Douglas was also ordered to pay the following debts: the Chris White debt, Memorial Hospital debt, PFCU Visa, PFCU Thrifty, PFCU bill consolidation, Coast Cardiology debt, Capital One, Discover, GC Orthopedic, CPA tax return, and Farmers Bank, which is the loan for the pool.

¶ 12. The chancellor then determined that Deborah was assuming a greater debt than Douglas. After “taking in all those factors” and noting that Deborah needed assistance in caring for the children, that she had been out of the work force for a few years, and that Douglas’ financial means were greater, the chancellor decided to award lump sum alimony rather than permanent alimony. The chancellor then stated, “The purpose of this is to balance the equities because the Wife is taking on a substantially greater debt structure by her own choice. I think in fairness this award must be made.” The lump sum alimony consisted of $350 per month for the first twenty-four months, $250 per month for the next twelve months, $150 per month for the next twelve months, and $100 per month for the next twelve months.

¶ 13. The chancellor, pursuant to the Armstrong and Cheatham factors, determined that Deborah was entitled to receive lump sum alimony. Armstrong, 618 So.2d at 1280; Cheatham, 537 So.2d at 438. We cannot find that the chancellor abused his discretion in awarding the lump sum alimony, nor can we find that the denial of permanent alimony was so oppressive, unjust or grossly inadequate to evidence an abuse of discretion; thus, this issue is without merit.

rv. DID THE CHANCELLOR ERR IN NOT AWARDING DEBORAH HER ATTORNEY’S FEES?

¶ 14. In her next issue, Deborah claims that the chancellor erred in not awarding her attorney’s fees. An award of attorney’s fees is generally left to the discretion of the chancellor. Gray v. Pearson, 797 So.2d 387(¶ 34) (Miss.Ct.App.2001). Furthermore, the chancellor’s findings on the issue of attorney’s fees will not be disturbed unless manifestly wrong. Cumberland v. Cumberland, 564 So.2d 839, 844 (Miss.1990). In McKee v. McKee, 418 So.2d 764, 767 (Miss.1982), the supreme court established certain factors to be considered in making an award of attorneys’ fees, including the financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, the time and labor required, the customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.

¶ 15. Although Deborah claims that she is unable to pay her attorneys’ fees, she offers no proof in the record of her inability to pay them. Furthermore, Deborah fails to present any evidence as to the amount of her attorneys’ fees pursuant to McKee. See Westerburg v. Westerburg, 853 So.2d 826 (Miss.Ct.App.2003); Carpenter v. Carpenter, 519 So.2d 891 (Miss.1988). We may not always agree that a chancellor decided the issues in a manner that we would have. However, our limitation as an appellate court is to determine whether the decisions were within the range of discretion permitted by the evidence and the applicable law. Here, we cannot find that the chancellor abused his discretion in failing to award Deborah her attorney’s fees; thus, this issue is without merit.

V. DID THE CHANCELLOR ERR BY NOT INCLUDING THE 2000 BONUS DOUGLAS RECEIVED AS MARITAL PROPERTY AND EQUITABLY DIVIDING IT AS SUCH?

¶ 16. In this issue, Deborah contends that the chancellor erred in not including Douglas’ 2000 bonus as marital property and equitably dividing it between the parties. At trial, Douglas testified that he did receive a bonus in 2000; however, the details as to the exact amount of the bonus were not clear in the record. On his financial disclosure form, Douglas listed his monthly income under “Salary and Wages, including commissions, bonuses, allowance and overtime.” According to the available pay stubs for 2000 in the record, Douglas received a bonus of $3500 on April 1, 2000. Douglas included this bonus in his income on his joint tax return and, consequently, paid taxes on the amount.

¶ 17. Deborah argues that the 2000 bonus is no different from the 2001 bonus. However, at the time of trial, Douglas had not yet received a 2001 bonus. The chan-eellor determined that Deborah should benefit from the 2001 bonus, if received, for the period of time she was married to Douglas. We fail to see how this bonus, which was probably either used to help pay temporary support to Deborah or to lessen the family debt, should be considered an asset at the time of the divorce and thus divided. We cannot find that there was an abuse of discretion; thus, this issue is without merit.

VI. DID THE CHANCELLOR ERR IN NOT ASSESSING DOUGLAS WITH PAST DUE TEMPORARY SUPPORT?

¶ 18. In this issue, Deborah claims that the chancellor erred in not granting her $990 of temporary support arrearage she alleged was due. According to the temporary order on September 1, 2000, Deborah was awarded $870 per month. However, Deborah claims that there was a verbal agreement between the parties that Douglas would pay $1200 per month until trial. Deborah received $1200 until mid-April 2001, when she received $435, one-half of $870. Douglas continued to pay the $870 per month until the trial in July 2001. In his testimony Douglas was asked why he paid $1200 a month until April 2001. The temporary order stated that Douglas provide health insurance for Deborah and, after stating that it was unavailable, Douglas said: “Our open enrollment to add or change the health insurance was May of this year and effective May 1, I covered her with health insurance and dropped back to the $870. I was paying her more money to try to make up the difference in not being able to provide health insurance at the time.”

¶ 19. The chancellor, upon hearing Deborah’s testimony concerning the verbal agreement, stated that “I will consider it for what it’s worth and give it such weight, worth and credibility as it deserves,” but that he would have to “go on what is the situation now, where’s the money now” with regards to support payments. Obviously, the chancellor did not find that Douglas was in arrears and we fail to do so as well. This issue is without merit.

VII. DID THE CHANCELLOR ERR IN NOT SPECIFICALLY ORDERING DOUGLAS TO OBTAIN THE TYPE LIFE INSURANCE WHICH WOULD ALLOW THE MINOR CHILDREN TO BE MADE PERMANENT BENEFICIARIES?

¶ 20. In her last issue, Deborah argues that the National Guard Servicemen’s Group Life Insurance policy, which Douglas has in effect, is preempted by federal law. The chancellor ordered Douglas to maintain the minor children as permanent beneficiaries on two separate life insurance, policies with Deborah as trustee until the children reach the age of twenty-one. Deborah cites Ridgway v. Ridgway, 454 U.S. 46, 102 S.Ct. 49, 70 L.Ed.2d 39 (1981), for the proposition that Douglas cannot be compelled to make his children the beneficiaries of his SGLI. However, in Ridgway, the husband, after divorce, made his second wife the beneficiary of his SGLI policy and, upon his death, the first wife and the second wife each filed a claim to the policy proceeds. The court held that an insured servicemen’s beneficiary designation under a life policy issued pursuant to SGLI prevails over a constructive trust imposed upon the policy proceeds by a state court decree. Id. at 46, 102 S.Ct. 49. According to the record, Douglas’ minor children were already named as beneficiaries of the SGLI policy prior to the chancellor’s order that he keep the children as such. As Douglas is still alive and has not changed the primary beneficiaries on the policy, we decline to assume that he will do so and, farther, decline to find the chancellor’s actions constituted reversible error.

¶ 21. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE APPELLEE.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS WITH A SEPARATE WRITTEN OPINION JOINED BY BRIDGES AND CHANDLER, JJ.

IRVING, J.,

Concurring:

¶22. I agree with the majority that this case must be reversed and remanded because the chancellor failed to make a determination regarding the status of Douglas’s national guard retirement. The chancellor concluded that he did not have enough evidence before him to make any determination about the guard retirement. Given the fact that one of Douglas’s exhibits showed that he had been in the National Guard for twenty-four years, the chancellor was placed on notice that a major portion of the guard retirement had been accumulated during the course of the marriage. Therefore, I agree with the majority that the chancellor erred in not making any determination regarding the guard retirement.

¶ 23. However, the majority seems to place the responsibility for this error solely upon the chancellor and Douglas, finding that “it was incumbent upon Douglas to provide proof when submitting his financial disclosure form.” That is true, but it is also true that it was incumbent upon Deborah to produce sufficient evidence upon which the chancellor could make thorough and sufficient findings of fact respecting all the issues before the court. Therefore, I write separately to register my view that both parties bear responsibility for the error and that the chancellor should not be put in error when the parties have shirked their responsibility. Nevertheless, since, as previously observed, there was at least one piece of evidence introduced which clearly shows that a substantial portion of the period of the national guard service overlapped the period , of the duration of the marriage, I concur that this case should be reversed for further consideration of the classification and distribution of Douglas’s national guard retirement. Were it not for this one piece of evidence, I would affirm the judgment of the chancellor.

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


author: THOMAS, J.,

text:
    Gilda DAVIS and Joseph Davis, Jr., Appellants v. Mary Patricia SEYMOUR and Jimmie Dale Ziegler, Appellees.
    No. 2002-CP-01647-COA.
    Court of Appeals of Mississippi.
    March 23, 2004.

      Gilda Davis, pro se.
    Joseph Davis, Jr., pro se.
    Peter C. Abide, Biloxi, attorney for ap-pellees.
    Before KING, P.J., THOMAS and MYERS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Gilda and Joseph Davis, acting pro se, appeal the decision of the Harrison County Circuit Court, sitting as an appellate court, which affirmed the grant of summary judgment to Jimmie Dale Ziegler and dismissal of Mary Patricia Seymour, defendants in a civil suit filed by the Davises. The suit stemmed from an automobile accident in 1996. On appeal, the Davises argue a number of points dealing with the factual circumstances of the 1996 accident which are unrelated to the order they are appealing. There is a sufficient record, however, for us to determine the validity of the lower court’s order and we find the judgment of the circuit court was correct and affirm that decision.

FACTS

¶ 2. In September 1996, Gilda Davis and Mary Patricia Seymour were involved in a low-speed automobile accident in Biloxi. Seymour was then sixteen years old and was driving a vehicle owned by her grandfather, Jimmie Dale Ziegler. Ziegler had loaned Seymour the vehicle in order to attend softball practice, from which Seymour was returning at the time of the accident.

¶ 8. On July 1, 1999, the Davises filed a civil complaint in Harrison County Court seeking property and personal injury damages against Seymour, for negligent operation of the vehicle, and Ziegler, for negligent entrustment of the vehicle to Seymour. Personal service was made upon Ziegler and Seymour but no service was made upon Seymour’s parent as required by Rule 4(d)(2)(A) of the Mississippi Rules of Civil Procedure, which states that for unmarried minors over the age of twelve service of process must be made upon both the minor and the parent or guardian to be complete.

¶ 4. Both Seymour and Ziegler answered the complaint immediately. Ziegler also filed a counter-complaint for property damages to his vehicle. Seymour’s answer included the defense of improper service of process as well as a motion to dismiss upon that basis. The motion to dismiss was brought on for hearing in July 2000, without perfection of service ever being made. The appellants, then represented by counsel, noted that Seymour and her mother were living with Ziegler at the time of the accident because Mr. and Mrs. Seymour were then in the process of divorcing. The Davises argued that Ziegler was acting in loco parentis to his granddaughter and the separate service made upon him was sufficient to meet the requirements of Rule 4(d)(2)(A). The Davises cited no authority for this proposition nor was any proof offered that Ziegler was a legal guardian to Seymour. The county court noted that Seymour and her mother were not living with Ziegler at the time process was attempted; the process server had to go to two separate addresses and the Davises had not satisfied the requirement of service upon the parent or guardian of a minor. The motion to dismiss Seymour was granted.

¶ 5. Three months later, Ziegler filed for summary judgment on the claim of negligent entrustment. At the hearing on the matter, Joseph Davis, now acting pro se, questioned both Seymour and Ziegler. The court found he offered no evidence to support the allegations of the complaint and summary judgment was granted. The Davises then sought appellate review in the Harrison County Circuit Court which issued an order affirming the county court’s decision to both dismiss Seymour and grant summary judgment to Ziegler. It is from this order the Davises now appeal to this Court.

ANALYSIS

1. Dismissal of Seymour

¶ 6. As noted above, the appellants address only questions dealing with Seymour’s negligence in the underlying motor vehicle accident, as well as intimating a conspiracy among public officials to protect Seymour from liability because her uncle was a county official at the time of the accident. The Davises make no argument in law or fact on the only question available for appeal, that is, whether or not Seymour’s dismissal from the suit was proper.

¶ 7. The ground for dismissal was that of failure to properly effect service of process upon a minor. As noted above, the Mississippi Rules of Civil Procedure require that, for unmarried minors over the age of twelve, process must be served upon both the minor and the parent. M.R.C.P. 4(d)(2)(A). The Davises did not make any attempt to serve Seymour’s mother, either at the time of service upon Seymour and Ziegler, nor after being noticed of the deficiency in Seymour’s answer and simultaneous motion to dismiss. The argument forwarded at the hearing on the matter, that Ziegler was acting in loco parentis and thus constituted a guardian, was unsupported by authority at the time, remains unaddressed by the appellants and no authority to support that theory was found by this Court in its own review of the law. We conclude that dismissal of Seymour was proper.

2. Summary judgment

¶ 8. The claim against Ziegler was based upon negligent entrustment of his vehicle to his granddaughter. The trial court granted his motion for summary judgment. We apply a de novo standard of review to the grant or denial of motions for summary judgment. Lewallen v. Slawson, 822 So.2d 286, 237(¶6) (Miss.2002).

¶ 9. Tort liability under the theory of negligent entrustment has been defined as follows:

One who supplies directly or through a third person a chattel for use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Savage v. LaGrange, 815 So.2d 485, 492 (¶ 18) (Miss.Ct.App.2002).

¶ 10. As the definition makes clear, negligent entrustment can only arise as a viable claim if Ziegler knew or should have known at the time he allowed Seymour to drive his vehicle that doing so involved an unreasonable risk of harm. The Davises proffered no evidence at the hearing on the motion for summary judgment to support the claim of negligent entrustment. Seymour was driving under a valid license and she did not have a history of prior accidents or moving violations. The Davises did not submit any evidence that would suggest in the least any physical impairment of either a transient or permanent nature which would make Seymour a hazardous driver.

¶ 11. Summary judgment shall be granted when the record fails to contain any genuine issue of material fact in controversy. Lewallen, 822 So.2d at 238. The Davises have long maintained that Seymour was responsible for the accident. No doubt this is a material fact in controversy to them. However, that was not the issue before the court on the motion for summary judgment. The issue upon which the Davises bore the burden of proof was whether or not there was some reason Ziegler should have suspected his granddaughter was an unfit driver. Even if the trial court was to presume that Seymour was an unfit driver, the Davises offered no evidence that Ziegler was or should have been aware of it. There was simply no basis upon which Ziegler could have reasonably concluded Seymour was an unreasonably risky driver to have on the road and therefore should not have allowed her to borrow his vehicle. Lacking any such evidence at all, Seymour cannot be found to have negligently entrusted his vehicle to Seymour. Summary judgment was proper under these circumstances.

¶ 12. On appeal, the Davises allege a number of flaws they feel support their contention that Ziegler was negligent in entrusting a vehicle to Seymour, such as allowing her to drive without corrective lenses and driving without a valid license, the latter being in direct contradiction of the finding made by the trial court from the bench during the summary judgment hearing. We make no finding as to whether these would support a claim of negligent entrustment for the Davises failed to raise any of these matters before the trial court. Having done so, they are not properly before us on appeal. Moreover, no supporting evidence for these allegations has been presented to any court, including this one.

¶ 13. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: SOUTHWICK, P.J.,

text:
    Wayne JORDAN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-02069-COA.
    Court of Appeals of Mississippi.
    March 23, 2004.
    P. Shawn Harris, Forest, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Wayne Jordan was convicted of gratification of lust by a Newton County Circuit Court jury. On appeal, he argues that a statement he gave to two police officers should not have been admitted and that the guilty verdict was against the overwhelming weight of the evidence. We disagree.

¶2. During the night of September 11, 2001, a child was asleep in her bed when she was awakened by Jordan. The child reports that she woke up because Jordan was rubbing and squeezing her vagina with his hand. She moved around in the bed in order to awaken her sister who shared the bed with her. When the second child awoke and saw Jordan with his hand between her sister’s legs, Jordan ran from the room. Both sisters report that Jordan returned to the room and grabbed the first child by her foot and attempted to drag her from the bed. She kicked and struggled against him. Again, Jordan ran from the room. At this point the two girls awakened another sister and had her get in the bed with them. The three girls report that Jordan returned to the room and apologized to the first child for what he had done and told her not to mention his actions to anyone.

¶ 3. The next day, one of the girls reported these encounters to the school counselor. An investigation by the Department of Human Services led to Jordan’s arrest.

¶ 4. Jordan denied that he touched the girl’s vagina. He asserted that he entered the room only to check on the girl’s fingers which had been injured earlier. He said that he touched her on two occasions that night, once when he tripped on the rug with his hand landing on her thigh and again when he entered the room and grabbed her feet to calm her down.

¶ 5. The jury found Jordan guilty of gratification of lust. Jordan appeals.

DISCUSSION

1. Oral statement

¶ 6. Jordan was in custody at the Newton Police Department. A detective advised Jordan of his constitutional rights in the presence of another officer. Jordan acknowledged that he understood the explanation and signed a waiver of rights form. Jordan then gave the officers an oral statement. At trial both officers testified as to the substance of the oral statement, with some slight variations. Neither officer recorded nor made any written notations about the statement.

¶ 7. In his statement, Jordan indicated that he had entered the girls’ room that night to tell them something, tripped against the bed and his hand landed on the child’s thigh. Jordan claims this was inadmissible since no record of the statement had been made by the officers.

¶ 8. A statement by an accused is admissible when he was made aware of his relevant constitutional rights and then subsequently knowingly and intelligently waived those rights prior to making the statement. Moore v. State, 493 So.2d 1301, 1303 (Miss.1986).

¶ 9. The State offered evidence that Jordan made the statement voluntarily with knowledge of his rights. The officers further stated that there were no promises of leniency, threats, or coercive measures to elicit the statement. Jordan does not dispute this. Instead, he seeks a new eviden-tiary rule: out of basic fairness and the ease of doing so, no statement taken from an accused during custodial interrogation is admissible unless it is recorded or written out by the officials who procured it. He acknowledges that this is not now the law.

¶ 10. The present requirement for admissibility is that a statement be given voluntarily without promises, threats, or inducements. Richardson v. State, 722 So.2d 481, 487 (Miss.1998). There are no requirements regarding the form in which the statement must be memorialized. The present rule is sufficiently protective of the interests of fairness and we decline to suggest its alteration.

2. Verdict

¶ 11. Jordan alleges that the evidence was insufficient to permit a guilty verdict. In the precedent on which he most strongly relies, the evidence showed that the defendant playfully pinched a three-year-old child on her bottom and gave her a kiss on the cheek. Bradford v. State, 736 So.2d 464, 467 (Miss.Ct.App.1999). The court found that this evidence was insufficient to show that the defendant’s actions were for the purpose of gratification of lust.

¶ 12. That is hardly our situation. In Bradford the adult and children were in a crowded car and were involved in a game. Several children of varying ages were around when the game was being played. The children were at least awake or able to observe what was happening. In contrast, the evidence supported that Jordan surreptitiously entered the bedroom where the children were sleeping, and touched the body of one of the girls. When he was observed, he ran from the room. He later returned and grabbed the legs of the child, tried to pull her from the bed, then again ran from the room after being observed by others. On his last trip into the bedroom, Jordan apologized and requested that the child tell no one about the activities and promised he would not do it again.

¶ 13. The jury is charged with deciding credibility after evaluating conflicting testimony. Wetz v. State, 503 So.2d 803, 807 (Miss.1987). The jury was able to hear the testimonies of the girls and Jordan. The jury observed their demeanor and presentation of the facts. We find no error in the conclusion reached by the jury.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF NEWTON COUNTY OF CONVICTION OF GRATIFICATION OF LUST AND SENTENCE OF THIRTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NEWTON COUNTY.

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


text:
    Adrian T. TENNER, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CA-01965-COA.
    Court of Appeals of Mississippi.
    March 23, 2004.

      Melvin G. Cooper, Biloxi, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Adrian Tenner entered a guilty plea to a charge of aggravated assault. Subsequently, Tenner petitioned for post-conviction relief. The relief was denied. On appeal, Tenner argues that his plea was not voluntarily or intelligently given and his representation by counsel was ineffective. We find no error and affirm.

¶ 2. In April 2001, Tenner was indicted for aggravated assault. He was tried in October 2001 and found guilty. He was sentenced to twelve years in prison, with four years suspended. Tenner filed a timely motion for a new trial, alleging that the jury verdict was tainted because the jurors were not given food after two requests during deliberation. In May 2002, the court after a hearing ordered a new trial. At the same hearing, Tenner withdrew his not guilty plea and pled guilty. This time he was sentenced to a term of eight years’ imprisonment, with four years suspended.

¶ 3. In January 2003, Tenner filed for post-conviction relief. The trial court denied relief without a hearing. On appeal, Tenner raises two issues. He claims that his guilty plea was coerced and involuntarily and unintelligently entered. He also asserts that his trial counsel was ineffective.

DISCUSSION

1. Guilty Plea

¶ 4. In support of his allegation that his plea was coerced, Tenner relies upon a request that he made to his attorney to have his mother present when the plea agreement was reviewed. He states that he was rushed into a guilty plea when his attorney said that otherwise he would receive the maximum sentence. Tenner offers the affidavits of his mother and himself.

¶ 5. Within this argument, Tenner implies that he was incompetent to make a decision regarding entering a plea. He offers records of attendance in a special education program and of an academic assessment by the Jefferson County School District. The assessment was performed on March 10, 1993, when Tenner was thirteen years old and in the eighth grade. The assessment indicates that Tenner demonstrated significant academic or developmental deficits in the areas of reading, math, English, science, and social studies. The assessment revealed a performance level of less than the third grade, a verbal IQ of 74, a performance IQ of 80, and a full scale IQ of 75. This assessment was performed almost nine years before Tenner entered a guilty plea in May 2002.

¶ 6. A plea is considered “voluntary and intelligent” if the defendant knows the elements of the charge against him, understands the charge’s relation to him, what effect the plea will have, and what sentence the plea may bring. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). The plea petition enumerates the rights that Tenner waived upon signing the plea. This petition was signed and sworn to by Tenner.

¶ 7. At the plea hearing, the trial judge inquired at some length into Tenner’s competency. The judge informed Tenner about the rights he would be waiving if he pled guilty. He was told of the minimum and maximum sentences that could be imposed. Tenner acknowledged that he understood. He stated that he was not under the influence of any type of drug or alcohol and had not been offered anything to plead guilty nor threatened into entering his plea. Statements such as these made in open court under oath are viewed as highly credible. Gable v. State, 748 So.2d 703, 706 (Miss.1999). These statements along with the plea petition contradict Tenner’s claim that his plea was involuntarily and unintelligently entered. We find no error here.

2. Competence

¶ 8. The evidence of Tenner’s lower than average intelligence causes us to address the issue of competency. The competency to enter a plea of guilty is measured by the same standard as assessing competency to stand trial. Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). The State has a duty to show that the defendant has a rational understanding of the charges against him and the ability to assist his lawyer in designing a defense. Id. at 396, 113 S.Ct. 2680.

¶ 9. During the plea colloquy, Tenner assured the judge that he understood the questions. Neither he nor his attorney raised an issue of competency. Tenner’s post-conviction offering of the special education records and assessment from the school district does not create an issue of competency. Magee v. State, 752 So.2d 1100, 1102 (Miss.Ct.App.1999). There is no requirement that a person possess a certain intelligence level as measured by IQ testing or have participated in a certain curriculum in order to enter a guilty plea. Id. Instead, the determination that a plea is offered knowingly and voluntarily is an issue for investigation in each case. We find nothing in the record to indicate that Tenner was incompetent to enter a guilty plea.

3. Ineffective assistance of counsel

¶ 10. In determining whether Tenner received ineffective assistance of counsel, he must demonstrate that his attorney’s performance was defective and that this deficiency deprived him of a fair trial. Moore v. State, 676 So.2d 244, 246 (Miss.1996). We measure any alleged deficiency within the totality of the circumstances. There is a wide area of reasonable professional assistance and it is presumed that the attorney’s conduct was adequate. Id.

¶ 11. Tenner claims that his attorney did not advise him of his plea agreement, spent only three minutes with him before the plea, and coerced him into pleading guilty by failing to allow his mother to participate in discussions. Tenner offers affidavits from his mother and himself that the mother was not allowed to participate. Tenner argues that since his motion for new trial was not contested, he would not have voluntarily pled guilty to an eight year sentence with four years suspended where he had served time prior to and subsequent to trial. We note that his initial sentence required that he serve eight years, and after his guilty plea, that was cut in half to four years.

¶ 12. At the May 2002 plea hearing, Tenner affirmed to the court that he was pleased with his attorney’s representation of his case. He also told the judge that his lawyer had explained all the law related to the aggravated assault offense and any possible defenses. Tenner affirmed that there was no problem with his attorney and that the decision to enter a guilty plea was his.

¶ 13. As to his claims of misunderstanding and coercion, Tenner’s sworn statements in both his petition to enter a guilty plea and during the plea hearing indicate otherwise. For post-conviction relief on an argument such as this, Tenner must provide more than his own pleadings. Vielee v. State, 653 So.2d 920, 922 (Miss.1995). Tenner has not met his burden. The affidavits offered by Tenner and his mother, which assert that the attorney would not permit the mother’s joining the discussion between attorney and client, do not prove constitutional deficiency.

¶ 14. THE JUDGMENT OF THE JEFFERSON COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

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