author: GRIFFIS, J., for the court.

text:
    Gregory Paxton PAYTON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00347-COA.
    Court of Appeals of Mississippi.
    May 6, 2003.

      Gregory Paxton Payton (pro se), attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   GRIFFIS, J., for the court.

¶ 1. Gregory Paxton Payton petitioned the Harrison County Circuit Court for post-conviction relief. The circuit court denied the petition, and Payton appealed asserting several assignments of error. We find no error and affirm.

¶ 2. Payton was indicted for rape in June of 1989. After a trial on the merits, Pay-ton was convicted and sentenced to serve a term of thirty-five years. On appeal, the Mississippi Supreme Court affirmed the conviction and sentence imposed. Payton v. State, 610 So.2d 389 (Miss.1992).

¶ 3. Payton then filed his petition for post-conviction relief. The circuit court denied the petition, and he appealed. The supreme court reversed the decision on the grounds that Payton’s attorney rendered ineffective assistance of counsel by failing to investigate the facts and circumstances of the case. Payton v. State, 708 So.2d 559, 560(¶ 1) (Miss.1998). Payton’s conviction and sentence were vacated, and the ease was remanded for a new trial. Id.

¶ 4. After remand, Payton pled guilty and the State recommended that he receive a sentence of thirty-five years’ imprisonment, with fifteen years suspended and five years’ probation. The circuit court accepted the plea and the State’s sentencing recommendation. Payton was subsequently released on probation.

¶ 5. In 2001, Payton was convicted of two counts of indecent exposure. On June 4, 2001, the circuit court held a revocation hearing. Payton admitted that he had been convicted of indecent exposure, and the court addressed the fact that Payton had failed to register as a sex offender. The circuit court revoked Payton’s probation based on the two convictions of indecent exposure, instead of the failure to register as a sex offender. The court held that the convictions proved, by a preponderance of the evidence, that Payton had violated the terms of his probation, which required him to refrain from committing any crime. Payton’s probation was revoked.

¶ 6. On September 24, 2001, Payton filed another petition for post-conviction relief. He asked the court to vacate his guilty plea on the crime of rape and the thirty-five year sentence. The petition was denied, resulting in this appeal.

Legal Analysis

I. Whether Payton’s guilty plea was made voluntarily and knowingly.

¶ 7. A plea is considered “voluntary and intelligent” if the defendant is advised about the nature of the charge against him and the consequences of the entry of the plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). The defendant must be instructed that a guilty plea waives his rights to a jury trial, to confront adverse witnesses, and to protection against self-incrimination. Id.

¶ 8. To succeed in his petition, the defendant bears the burden of proving by a preponderance of the evidence that he is entitled to post-conviction relief. McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989). “Once the trial judge has determined at a preliminary hearing that a confession is admissible, the defendant/appellant has a heavy burden in attempting to reverse that decision on appeal.” Sills v. State, 634 So.2d 124, 126 (Miss.1994) (quoting Frost v. State, 483 So.2d 1345, 1350 (Miss.1986)). “Such findings are treated as findings of fact made by a trial judge sitting without a jury as in any other context. As long as the trial judge applied the correct legal standards, his decision will not be reversed on appeal unless it is manifestly in error, or is contrary to the overwhelming weight of the evidence.” Foster v. State, 639 So.2d 1263, 1281 (Miss.1994).

¶ 9. Payton claims that the only reason he pled guilty was because his attorney erroneously advised him to do so. Payton argues that because his attorney failed to tell him that the State was going to give him a thirty-five year sentence, with fifteen years suspended, twenty years to serve and five years on probation, this amounted to an involuntary guilty plea.

¶ 10. We find no merit in this argument. Indeed, the argument contradicts the lengthy and explicit record of the guilty plea. First, in his petition to enter a plea of guilty, Payton set forth that: (1) his attorney had counseled and advised him on the nature of the charge, on any and all lesser-included charges, and on all possible defenses; (2) he understood his constitutional rights, and he understood that if he pled guilty he would waive his constitutional rights as enumerated; (3) he understood the range of sentences he could receive if he pled guilty; (4) he knew that the sentence was in the discretion of the court, but that the district attorney would recommend a sentence of thirty-five years, with all but twenty years suspended and five years’ probation; and (5) that he believed his lawyer had done all that anyone could do to assist him and that he was satisfied with his lawyer.

¶ 11. Second, the circuit judge gave a very careful and detailed explanation to Payton about what exactly was involved if he pled guilty to rape. The court asked Payton if he had read and signed the petition to enter a guilty plea. Payton replied that he had and acknowledged that it was true and correct. Payton acknowledged that he fully understood all of his constitutional rights. Payton stated that his attorney had reviewed the petition with him and had explained his rights to him, to his satisfaction. Payton told the court he could read and write. Payton acknowledged that his plea was offered freely and voluntarily without any threat or promise having been made to him. Payton acknowledged that he understood that the court could sentence him to a maximum term of imprisonment of one day less than life and a fine of $10,000. Payton understood that, although a sentencing recommendation would be made, the court was not bound to follow the recommendation. Payton then explained the circumstances surrounding the crime, apologized and asked the court to follow the State’s sentencing recommendation. The prosecutor then made the agreed upon recommendation and told Payton that if his probation were revoked, he would be required to serve the remainder of the thirty-five year sentence. Payton acknowledged his understanding.

¶ 12. Finally, the circuit judge was astonished that Payton would enter a plea after he had received a successful determination on his appeal to the Mississippi Supreme Court. The judge made a determined effort to ensure Payton’s plea was voluntarily and knowingly made. Indeed, the following exchange occurred between the judge and Payton:

THE COURT: I’m really surprised you’re entering this plea of guilty. I was really surprised last week when I found out this motion was being put back on the docket. Why are you entering this plea? Are you entering the plea simply because you feel like the time you already have in the system you’ll be getting out soon, and that is the only reason?
PAYTON: Yes, Your Honor.
THE COURT: Do you understand — I mean, I’ll accept your plea for whatever reason you want to do it. Do you understand if you are actually revoked while on probation, if I follow that recommendation, you’ll wind up serving the remaining portion of that thirty-five year sentence?
PAYTON: Yes, Your Honor.
THE COURT: Are you willing to take that chance?
PAYTON: Well, Your honor, I believe that if I’m let out in society that I can live my life according to the standards of society.
THE COURT: If you go to trial and you’re found not guilty, you don’t have to worry about anybody looking over your shoulder. And you’re willing to waive your right to a jury trial now after having, on your own, filed your pro se motion for post-conviction collateral relief and getting the Supreme Court to overturn your conviction after they had affirmed the decision?
PAYTON: Well, Your Honor, I don’t want to go through the same thing twice, so — I wouldn’t want to take that chance.

¶ 13. The record is clear that the circuit judge fully explained to Payton the nature of the charges and the consequences of his guilty plea. In fact, because of the circumstances, the circuit judge took extra precaution to make sure that Payton fully understood the ramifications of pleading guilty to the charge of rape. Therefore, we conclude that the circuit court did not commit error in denying relief on this assignment of error.

II. Whether Payton is being unlawfully held in custody.

¶ 14. Payton contends that his five year sentence of probation was illegal. We find this issue is procedurally barred. Miss.Code Ann. § 99-39-21(1) (Rev.2000), in pertinent part, provides “[failure by a prisoner to raise objections, defenses, claims, questions, issues, or errors either in fact or in law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred.... ” Because Payton did not raise this issue at the time he was sentenced, he waived its consideration on a motion for post-conviction relief or an appeal from the denial therefrom.

¶ 15. Furthermore, this assignment of error lacks merit. Payton contends that he was sentenced to serve time in custody followed by a period of post-release supervision. He argues that because he was released from custody it was illegal for him to have been required to comply with the court ordered probation. As a general rule, a sentence imposed will not be disturbed on appeal as long as it does not exceed the maximum term allowed by statute. Corley v. State, 536 So.2d 1314, 1319 (Miss.1988). The sentence imposed was within the statutory limit. Miss.Code Ann. § 97-3-71 (Rev. 2000). Statutes governing parole contain no mandatory language, but instead employ the permissive term “may” rather than the term “shall.” Thus, prisoners have no constitutionally recognized liberty interest in parole. Vice v. State, 679 So.2d 205, 208 (Miss.1996). Additionally, Mississippi law provides for the imposition of up to five years’ post-release supervision following time in the custody of the Department of Corrections. Miss.Code Ann. § 47-7-37 (Rev.2000). Payton failed to establish that he is being held unlawfully in custody. Accordingly, this assignment of error is without merit.

III. Whether Payton’s attorney rendered ineffective assistance.

¶ 16. “To establish ineffective assistance of counsel, the client must prove that his counsel’s performance was deficient and that the deficiency prejudiced the defense of the case.” Sharp v. State, 786 So.2d 372, 374(¶25) (Miss.2001) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Defense counsel is presumed competent and the burden of proving both elements of this test rests with the defendant. Hansen v. State, 649 So.2d 1256, 1258 (Miss.1994).

¶ 17. Payton argues that his counsel was ineffective because of threats and promises made in order to force Pay-ton to plead guilty. Payton also claims that his attorney was ineffective because he failed to pursue the “bond issue.” Mississippi law creates a strong presumption “that trial counsel’s conduct is within the wide range of reasonable conduct and that decisions made by trial counsel are strategic.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995). We find that this claim is not substantiated in the record. Having twice appealed to the supreme court, once successfully, Payton was aware of his rights and would not allow himself to be “threatened” into a guilty plea. In his petition to enter a plea of guilty and in open court, Payton stated that he was satisfied with the assistance and counsel his attorney provided. Furthermore, we do not believe that whether or not Payton received a second hearing on the issue of a bond rises to the level of prejudice to the defense of his case. Payton has faded to satisfy both prongs of the Strickland test and his arguments are without merit.

IV. Whether the State violated Pay-ton’s plea agreement.

¶ 18. Payton next argues that he was not required to register as a sex offender under the plea agreement. Any person, residing in this state, who has been convicted of any sex offense must register with the Mississippi Department of Public Safety. Miss.Code Ann. § 45-33-25 (Supp.2002). Payton asserts that the sentencing judge ordered that he did not have to comply with sex offender registration. Neither the record nor the court’s order substantiate this statement. Indeed, there is no evidence that would indicate that any such statement was made or instruction was ever given by the judge. Payton also contends that his counsel told him that the prosecutor and the judge agreed that he would not have to register as a sex offender. Payton has failed to attach an affidavit to that effect from his counsel as required under Miss.Code Ann. § 99—39—9(1)(e) (Supp.2002).

¶ 19. It is fundamental that this Court will only consider facts found within the trial record. Colenburg v. State, 735 So.2d 1099(¶ 6) (Miss.Ct.App.1999). This Court does not rely on assertions made in briefs, but only on facts preserved within a record certified by law. Henderson v. State, 783 So.2d 769(¶ 4) (Miss.Ct.App.2001). Accordingly, this assignment of error is without merit.

V. Whether Payton’s probation was unlawfully revoked.

¶ 20. Payton further complains that his probation was unlawfully revoked, claiming that he was not aware of the date of his revocation hearing until he was taken to the hearing and, thus, had no opportunity to prepare. He does not dispute, however, that he signed a waiver to preliminary probation revocation hearing and that, in this document, he was informed of the violation alleged. Payton contends that he could have produced documents at the healing that would have “helped” him in his case. However, Payton fails to identify the documents or to provide them in support of his motion. Additionally, he claims that the documents dealt with whether he was required to register as a sex offender. The court declined to use the charge of failure to properly register as a sex offender as a basis for Payton’s revocation. Clearly, these documents would have had no effect on the outcome of the hearing.

¶ 21. Payton also contends that, had he known he was going to go before the court for revocation hearing, he would have had legal counsel represent him at the hearing, although there is no right to have counsel present at a revocation hearing. Moreover, the record reflects he had not hired an attorney to represent him at the hearing.

¶ 22. The minimum due process requirements applicable to probation revocation hearings were set forth by the United States Supreme Court in Gagnon v. Scarpelli 411 U.S. 778, 781-82, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and were incorporated into Mississippi law through Miss.Code Ann. § 47-7-37 (Rev.2000). These requirements are: (1) written notice of the claimed violations of probation; (2) disclosure to the probationer of the evidence against him; (3) an opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses (unless the hearing officer finds good cause for not allowing such confrontation); (5) a neutral and detached hearing body or officer; and (6) a written statement by the fact finder as to the evidence relied on and reasons for revoking the probation.

¶ 23. We find that Payton was accorded the minimum due process requirements to which he was entitled at his revocation hearing. He signed the waiver of preliminary hearing on April 3, 2001, which contained the charges against him. His revocation hearing was not held until June 4, 2001, some two months later. It was in June that he was brought before the court, the evidence against him was presented and he was given the opportunity to be heard on the matter. At this revocation hearing, Payton was afforded all due process rights to which he was entitled. This claim for relief is without merit.

VI. Whether Payton’s sentence was illegal because the term imposed potentially requires him to remain in custody longer than his statistical life expectancy, whether it is in contradiction with Goss v. State, or whether it is indefinite.

¶ 24. As stated earlier, this issue is procedurally barred under Miss.Code Ann. § 99-39-21 (Rev.2000.) Payton did not raise these issues at the time he was sentenced; therefore, he has waived them for consideration on a post-conviction motion or an appeal. However, this Court finds that, even if the claim was not barred procedurally, it lacks merit.

¶ 25. First, Payton argues that this sentence exceeds his life expectancy. This claim is based on Stewart v. State, 372 So.2d 257 (Miss.1979), and Lee v. State, 322 So.2d 751 (Miss.1975). In these cases the supreme court has held that in certain situations, including rape cases, a trial court may not sentence a defendant to a term of years which is tantamount to a life sentence. In this case, Payton was originally convicted of rape in 1990, and at that time received a sentence of thirty-five years. In 1998, the supreme court reversed the lower court’s denial of Payton’s request for post-conviction relief and remanded the case for a new trial. Payton thereafter pled guilty to rape in October of 1998 and received his current sentence of thirty-five years in prison, with fifteen years suspended. Payton was thirty-three years old when he was sentenced in 1998. Payton claims that at that time, his life expectancy was sixty-eight years. Payton argues that because thirty-three plus thirty-five is equal to sixty-eight, this sentence exceeds his life expectancy. There is, however, one flaw in Payton’s argument. At the time of his sentencing, he had already served and received credit for eight and a half years in prison. Therefore, Payton would be fifty-nine and a half years of age on his actual date of release.

¶26. Payton further submits that his sentence is in direct contrast to the holding in Goss v. State, 721 So.2d 144 (Miss.1998). However, the portion of the Goss opinion to which Payton refers has been expressly overruled in the case of Carter v. State, 754 So.2d 1207 (Miss.2000). In Pay-ton’s brief he quotes the following section from Goss, “the sentence in its totality violates the limits imposed by the statutes and offends the intent of the legislature in restricting the duration of punishment imposed by the courts.” Goss, 721 So.2d at 145(¶ 6). In Carter, the supreme court quoted this exact portion and stated that it “is incorrect and is therefore overruled.” Carter, 754 So.2d at 1210(¶ 8).

¶ 27. Finally, Payton argues that his sentence is indefinite due to the fact that a portion of it was suspended. We find that Payton’s sentence represents the proper application of Miss.Code Ann. § 47-7-33 (Rev.2000). Therefore, this issue lacks merit.

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

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


source: Caselaw Access Project

author: McMILLIN, C.J., for the court.

license: Public Domain

text:
    Deandre RISER a/k/a Kenny Lee, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01822-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.

      Wesley Thomas Evans, Canton, attorney for appellant.
    Office of the Attorney General, by Deirdre McCrory, attorney for appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   McMILLIN, C.J., for the court.

¶ 1. Deandre Riser a/k/a Kenny Lee (hereafter “Riser”) was found guilty by a Madison County jury of one count of murder and four counts of aggravated assault. He was sentenced to life imprisonment on the murder conviction and twenty years on each aggravated assault conviction, the assault sentences to be served consecutively to each other and consecutively to the murder sentence. Originally, Riser had been indicted upon the murder charge only. Two weeks prior to his trial date, the grand jury returned a new indictment which included the murder charge as well as the four aggravated assault charges. On appeal Riser asserts that the trial court should have quashed the indictment or granted his motion for severance of the various counts. In the alternative Riser claims that, conceding the propriety of the multiple count indictment and the court’s authority to try all counts in a single proceeding, the trial court abused its discretion in refusing his motion for a continuance.

I.

Facts

¶ 2. We deal primarily with procedural questions in this appeal, rendering it unnecessary to give a lengthy recitation of the facts of the case. It is enough to say that the State presented evidence showing that Riser entered a business establishment in Canton known as Leroy’s Club and, without apparent provocation, purposely shot five patrons inside the club. One shooting victim was fatally wounded.

II.

Multi-Count Indictment

¶ 3. Originally, Riser was indicted only on a murder charge involving the deceased victim. That indictment was handed down by the grand jury in 1998. A trial date was ultimately set for June 11, 2001. In May 2001, a different grand jury returned a new indictment charging Riser with one count of murder, being the same charge in the original indictment, together with four additional counts, each one for aggravated assault against the remaining four victims who survived the shooting.

¶4. Defense counsel filed a motion to quash the indictment on the grounds that the multi-count indictment was prejudicial to Riser’s right to a fair trial for several reasons, including an assertion that the crimes were unrelated and, therefore, did not fit into the narrowly-defined circumstance where such an indictment is proper. The motion was denied and the case proceeded to trial on the original trial date.

¶ 5. Riser argues first that the trial court committed reversible error by not granting severance of the multi-count indictment that was issued just prior to trial. Historically, multi-count indictments were prohibited in Mississippi by decisions of the Mississippi Supreme Court such as Stinson v. State, 443 So.2d 869, 873 (Miss.1983). However, in 1986 the Legislature adopted a multi-count indictment statute and the Mississippi Supreme Court subsequently adopted a procedural rule allowing such indictments in language that essentially tracked the statute. Miss.Code Ann. § 99-7-2 (Rev.2000); URCCC 7.07. The critical element of the statute and the rule is that such indictments are authorized only when the alleged crimes arise out of the same transaction or are parts of a common scheme.

¶ 6. When a multi-count indictment has been returned and the defendant requests severance, the trial court is required to conduct a hearing. Corley v. State, 584 So.2d 769, 772 (Miss.1991). The State bears the burden at that hearing of demonstrating that the alleged offenses do indeed arise out of the same transaction or are parts of a common scheme. Corley, 584 So.2d at 772. The defense “may rebut by showing that the offenses were separate and distinct acts or transactions.” Id. The trial court is admonished to consider the time period between the offenses, whether evidence proving each offense would be admissible to prove the other counts, and whether the offenses are interwoven. Id. When these factors are properly considered, this Court will give deference to the trial court’s findings when challenged on appeal, employing an abuse of discretion standard. Id.

¶7. The trial judge, in ruling on the motion in this case, recognized that the offenses occurred at the same place. It was also brought to his attention that the entire incident was over in a matter of minutes. The trial judge commented on the difficulty presented if the fact witnesses were allowed only to testify to a specific charge since the offenses were so interrelated that telling the story of what happened would be much harder if the offenses were severed. Riser did not make a showing of how each offense was separate and distinct. In this situation, we are unable to discover reversible error in the trial court’s ruling.

III.

Denial of a Continuance

¶ 8. On appeal, Riser alternatively contends that, even if it was permissible to try him on all counts in one trial, the Court erred in denying his request for a continuance and forcing him to go to trial so soon after the new indictment was issued. The denial of a continuance is not an issue that may be reviewed for error on appeal when the matter is not assigned as a ground for a new trial in an appropriate post-trial motion. Crawford v. State, 787 So.2d 1236, 1242 (¶ 25) (Miss.2001). In Riser’s motion filed after the guilty verdicts were returned, his only assertions are that the verdict was against the overwhelming weight of the evidence and that the verdict was contrary to the applicable law and the evidence. The trial court judge cannot be put in error on that which he did not have an opportunity to pass upon its validity. Id.

¶ 9. Though this procedural bar may appear harsh at first glance, we observe that, at the time a continuance motion is made before trial commences, there necessarily must be some measure of conjecture or speculation as to the extent the defendant would, in fact, be prejudiced by being forced to trial at a time when he contended that he was not prepared. However, after the trial is concluded, issues regarding prejudice arising from being forced to trial too early could be expected to be more apparent and could be demonstrated with a measure of certainty that simply would not be available before trial commenced. Requiring the matter to be raised once again gives the trial court an opportunity to reconsider its earlier ruling after becoming armed with actual knowledge about how the trial actually progressed and what problems the defense encountered because of lack of time to adequately prepare. That would appear to be an entirely reasonable requirement, having the potential to avoid the waste of judicial resources involved in requiring an appellate court to consider an issue based on information that was not available to the trial court when it considered the issue for the first time. We find this issue proee-durally barred because it was not raised before the trial court in a new trial motion.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF COUNT I MURDER AND SENTENCE OF LIFE IMPRISONMENT; COUNTS II, III, IV, AND V OF CONVICTIONS OF AGGRAVATED ASSAULT AND SENTENCES OF TWENTY (20) YEARS EACH WITH THESE SENTENCES TO RUN CONSECUTIVELY TO EACH OTHER, AND CONSECUTIVELY TO COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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


author: BRIDGES, J., for the court.

text:
    In the Matter of the ESTATE OF Dale Clayton YOUNT, Deceased. Debi Yount, Individually as Heir-at-Law and Wrongful Death Beneficiary of Dale Clayton Yount, Deceased, and as Administratrix of Estate of Dale Clayton Yount, and Dale Landon Yount, Minor Heir-at-Law and Wrongful Death Beneficiary of Dale Clayton Yount, By and Through Debi Yount, his Natural Mother and Legal Guardian, Appellant, v. Emmitt McKnight, Potential Heir-at-Law and Wrongful Death Beneficiary of Dale Clayton Yount, Deceased, Appellee.
    No. 2002-CA-00771-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.
    Ken R. Adcock, Jackson, Mark D. Morrison, Grenada, attorneys for appellant.
    Beverly Davis Buskirk, Oxford, James P. Johnstone, D. Scott Yeoman, Pontotoc, Grady F. Tollison, Oxford, attorneys for appellee.
    Before SOUTHWICK, P.J., BRIDGES and CHANDLER, JJ.
   BRIDGES, J., for the court.

¶ 1. This appeal arises from a wrongful death action filed by Debi Yount, following the death of her son, Dale Clayton Yount, who was involved in a fatal automobile accident in July 1996, in Jackson, Mississippi. In February 1997, Debi Yount filed suit against several entities on account of the wrongful death of her son, Dale Clayton Yount. A settlement was reached between the parties, in which, it was agreed that the sum of $450,000 would be paid to the wrongful death beneficiaries of Dale Clayton Yount in satisfaction of all wrongful death claims.

¶ 2. After the court approved the aforementioned settlement, Debi Yount petitioned the Chancery Court of the First Judicial District of Hinds County, Mississippi, for a determination of wrongful death beneficiaries and for authority to settle the estate’s wrongful death claim in July 2001. Following a publication of a notice in a newspaper in Pontotoc County, Mississippi, Emmitt McKnight, half-brother of Dale Clayton Yount, made a claim to a portion of the settlement proceeds.

¶ 3. In April 2001, following hearings before the chancellor and after consideration of briefs submitted by counsel, the chancellor rendered an opinion and order, wherein she found that Emmitt McKnight was entitled to a one-third share of the wrongful death settlement proceeds. Debi Yount now appeals to this Court.

STATEMENT OF THE ISSUE

WHETHER AN ADOPTED CHILD IS AN HEIR-AT-LAW AND WRONGFUL DEATH BENEFICIARY OF HIS DECEASED NATURAL HALF-BROTHER SO AS TO ENTITLE HIM TO A PORTION OF THE SETTLEMENT PROCEEDS AS A WRONGFUL DEATH BENEFICIARY.

FACTS

¶ 4. Emmitt McKnight was born to June Yount McKnight and Dale Frank Yount in 1973. However, June and Dale Frank Yount divorced in 1974, due to an alleged affair between June and Lloyd McKnight. After the divorce, June and Lloyd McKnight married, and in 1975, Lloyd McKnight adopted Emmitt, when he was approximately two years of age.

¶ 5. Also in 1975, Dale Frank Yount married Debi Yount, and they had two sons, Dale Clayton Yount and Dale Landon Yount. Dale Frank Yount died in 1993. Neither son had ever known of the existence of Emmitt McKnight and the last time Debi and Dale Frank Yount saw or heard anything about Emmitt was at the time of his adoption. In July 1996, Dale Clayton Yount died as a result of an automobile accident, in which his vehicle was hit by a drunk driver, Sharon L. Mix-on. Mixon was insured by Allstate Insurance Company. A settlement was reached between Allstate Insurance Company, the insurance companies providing liability for the establishments which served Mixon alcoholic beverages prior to the accident, and the estate of the decedent, Dale Clayton Yount. This settlement was later approved by the chancellor of the First Judicial District of Hinds County.

¶ 6. Pursuant to applicable statutes and court rules, notice was published to any and all unknown heirs of Dale Clayton Yount. Prior to publication, the adminis-tratrix attempted to locate Emmitt McKnight in the Pontotoc telephone directory. However, there was no listing for either Lloyd, June or Emmitt McKnight. Although the publication in Hinds County was legally sufficient, the chancellor required a continuance of the matter to allow for publication to Emmitt McKnight in Pontotoc County. In response to the publication in a Pontotoc County newspaper, McKnight surfaced and asserted that he was a statutory wrongful death beneficiary of Dale Clayton Yount.

¶ 7. At a hearing in November 2001, the court issued an order pursuant to the request of Debi Yount requiring a scientific determination of paternity be made by tissue and blood samples taken from Emmitt McKnight and the body of Dale Frank Yount, deceased. Pursuant to the court’s instruction, tissue and blood samples were obtained from McKnight and the body of Dale Frank Yount. At the time of the final hearing before the court in December 2001, the results of the laboratory tests could not exclude Dale Frank Yount as the biological father of McKnight. The chancellor concluded that Emmitt McKnight, as the half-brother of the deceased, was a statutory heir at law and wrongful death beneficiary of Dale Clayton Yount and as such, was entitled to a one-third portion of his half brother’s estate.

ANALYSIS

WHETHER AN ADOPTED CHILD IS AN HEIR-AT-LAW AND WRONGFUL DEATH BENEFICIARY OF HIS DECEASED NATURAL HALF-BROTHER SO AS TO ENTITLE HIM TO A PORTION OF THE SETTLEMENT PROCEEDS AS A WRONGFUL DEATH BENEFICIARY.

¶ 8. Whether Emmitt McKnight is an heir at law and statutory wrongful death beneficiary of Dale Clayton Yount is a question of law, and we review questions of law de novo. Estate of Jones v. Howell, 687 So.2d 1171, 1174 (Miss.1996).

¶ 9. Yount argues, and unfortunately misinterprets the case law in Mississippi, that McKnight’s claim to a portion of the estate of his deceased half brother is extinguished because of McKnight’s adoption. However, as stated in Alack v. Phelps, an adopted child has full rights to inherit from his natural family, just as if there had been no adoption. Alack v. Phelps, 230 So.2d 789, 792 (Miss.1970). The applicable law is sufficiently stated in Alack and reads as follows: “ki the absence of a statute to the contrary, although the child inherits from the adoptive parent, he still inherits from or through his blood relatives, or his natural parents.” Alack, 230 So.2d at 793. Another case that applies the law concerning this issue is Sledge v. Floyd, 139 Miss. 398, 104 So. 163, 164 (Miss.1925), and even though the adoption section of our code was amended in 1958 (after Sledge), the right of inheritance remains the same. The court, in Sledge, held:

We see no reason why a child adopted by another should not continue to inherit from its blood relations in the absence of a statute or decree specifically providing to the contrary. Where a child is adopted, and by such adoption made an heir-at-law of the adopting parents, and receives from the adopting parents property by reason of the artificial relationship, and such adopted child dies without children or descendants, the property would go back to the channel from whence it came, and its blood relations would not inherit such property received by virtue of such adoption proceedings. But nothing in the adoption proceedings themselves nor in the statutes authorizing them deprives a child of the right to inherit from its blood relatives. We do not think the statute intended to deprive children of their right to inherit from their natural parents and blood relatives. To do so would raise grave questions where a child having expectations should be adopted against its consent or without its power to consent during the tender years of minority and thus be deprived of benefits.

Sledge, 139 Miss. at 398, 104 So. at 165 (cited by Alack v. Phelps, 230 So.2d 789, 792 (Miss.1970); Warren v. Foster, 450 So.2d 786, 788 (Miss.1984)).

¶ 10. Mississippi statutes and the cases mentioned above allow adopted children to inherit from their natural families in order to protect minor children from losing their birthright without consent or knowledge. The tendency of the courts is to construe adoption statutes so as to benefit the child. Alack, 230 So.2d at 792-93. Dale Clayton Yount and Emmitt McKnight are natural siblings, albeit half-blood. They have a parent in common, their father, and pursuant to Miss. Code Ann. § 11-7-13, “there shall not be, in any case, a distinction between the kindred of the whole and half blood of equal degree.” Miss.Code Ann. § 11-7-13 (Supp.2002). Therefore, Emmitt McKnight, as the natural half-brother, is a statutory heir-at-law and wrongful death beneficiary of Dale Clayton Yount, deceased, and is entitled to a one-third portion of his half-brother’s estate.

¶11. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: THOMAS, J., for the court.

text:
    Bradley D. JACKSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00192-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.

      Rebecca G. Taylor, Jackson, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before McMILLIN, C.J., THOMAS, LEE and IRVING, JJ.
   THOMAS, J., for the court.

¶ 1. Bradley Jackson was convicted of two counts of burglary under Mississippi Code Annotated § 97-17-33. Aggrieved he asserts the following:

I. PROBABLE CAUSE DID NOT EXIST FOR JACKSON’S ARREST.
II. THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

Finding no error, we affirm.

FACTS

¶ 2. On April 5, 2001, Bradley Jackson was spotted on Trey Norton’s family’s porch by the neighbor across the street, Philip Smith. Smith testified that he witnessed someone on a bicycle put on white gloves and go into the Norton’s vehicles. He then witnessed the same person go around the house and onto the Norton’s porch. Smith then called the police and informed them of what was occurring.

¶ 3. Brookhaven police officer Clinton Earls received a call from the police dispatcher that a white male wearing white gloves was breaking into vehicles. Officer Earls drove to Rogers Circle to investigate at which point he saw Jackson just two houses down from the Norton residence. After stopping Jackson to question him, Earls discovered that Jackson was in possession of a pair of white socks and a hammer with “Trey” burned into the handle. Trey Norton identified the hammer as being his. Jackson was arrested and charged with two counts of burglary.

¶ 4. Smith testified that he witnessed Jackson stop his bicycle at the front of the Norton’s home and put on gloves. He then stated that Jackson burglarized the Norton’s pickup truck and then the Norton’s jeep.

I. DID PROBABLE CAUSE EXIST FOR JACKSON’S ARREST?

¶ 5. Jackson argues that Officer Earls lacked sufficient probable cause to arrest him on April 5, 2001.

¶ 6. To make an arrest without a warrant, an officer must have probable cause that an offense has been committed. The probable cause is “determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act. The determination depends upon the particular evidence and circumstances of the individual cases.” Smith v. State, 386 So.2d 1117, 1119 (Miss.1980). Yet even before an arrest, officers have a right to investigate. Linson v. State, 799 So.2d 890, 893(¶ 7) (Miss.Ct.App.2001).

¶ 7. Officer Earls was told by the dispatcher that a man fitting Jackson’s description was in the same area just minutes before he found Jackson and the time was around three a.m. It was at this point that the officer stopped Jackson to ask him some questions and he discovered that Jackson had white socks in his pocket and a hammer, both of which were included in the description of the burglar.

¶ 8. Law enforcement officers may make an investigative stop, which is a detention of a person short of an arrest. McCray v. State, 486 So.2d 1247, 1249 (Miss.1986). Such a stop may be made even where officers have no probable cause to make an arrest, so long as they have “a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony ... or ‘some objective manifestation that the person stopped is, or is about to be engaged in criminal activity McCray, 486 So.2d at 1249-50. In addition, “an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest.” Estes v. State, 533 So.2d 437, 441 (Miss.1988) (quoting Griffin v. State, 339 So.2d 550, 553 (Miss.1976)).

¶ 9. Furthermore, this issue was never raised at trial. The failure to raise an issue at trial waives the right to argue the issue on appeal except in rare cases where a fundamental constitutional right is involved. Maston v. State, 750 So.2d 1234, 1237 (¶ 14) (Miss.1999).

¶ 10. It is quite clear from the facts that the arrest was a lawful one based upon witness information and officer corroboration. This issue is without merit.

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

¶ 11. Jackson argues that the jury verdict was against the overwhelming weight of the evidence because the State failed to prove that Jackson intended to commit a crime even if he did break into the vehicles. Furthermore Jackson asserts a different reason for breaking into the Norton’s vehicles than to take property, he was looking for a phone. He claims that since this is the reason for his breaking into the Norton’s vehicles and the State did not prove otherwise then no intent to steal was present.

¶ 12. 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). “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). The law provides:

Jurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. They may believe or disbelieve, accept or reject the utterances of any witness. No formula dictates the manner in which jurors resolve conflicting testimony into finding of fact sufficient to support their verdict. That resolution results from the jurors hearing and observing the witnesses as they testify, augmented by the composite reasoning of twelve individuals sworn to return a true verdict. A reviewing court cannot and need not determine with exactitude which witness or what testimony the jury believed or disbelieved in arriving at its verdict. It is enough that the conflicting evidence presented a factual dispute for jury resolution.

Id. (citing Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)). We see no basis for doubting the verdict. This issue is without merit.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY OF CONVICTION OF TWO COUNTS OF BURGLARY OF AN AUTOMOBILE AND SENTENCE OF SEVEN YEARS ON EACH COUNT TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THE LAST SEVEN YEARS SUSPENDED AND FIVE YEARS PROBATION AND FINE OF $3,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED AGAINST LINCOLN COUNTY.

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


author: LEE, J., for the court.

text:
    Christopher L. SMITH a/k/a Christopher Smith, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01111-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.

      Christopher L. Smith (pro se), attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   LEE, J., for the court.

¶ 1. Appellant Christopher Smith was indicted and convicted of possession of cocaine. He was sentenced to serve twelve years’ imprisonment and pay a $1,500 fine. Smith filed a motion for post-conviction relief arguing that his attorney misinformed him as to the maximum sentence he would get if he went to trial and that, consequently, his guilty plea was not entered into intelligently. The Leake County Circuit Court dismissed his motion, and Smith appeals to this Court arguing again that his guilty plea was not voluntarily nor intelligently given, that his counsel was ineffective, that the search of his person was illegal, and that the evidence was insufficient to support the verdict. We review Smith’s arguments and find no merit; thus, we affirm.

DISCUSSION OF THE ISSUES

I. WAS THE APPELLANT’S GUILTY PLEA VOLUNTARILY AND INTELLIGENTLY ENTERED AND WAS HIS COUNSEL EFFECTIVE?

¶ 2. Smith first argues that he did not voluntarily and intelligently enter his guilty plea due to the ineffectiveness of his counsel. “Our standard of review pertaining to voluntariness of guilty pleas is well settled: ‘this Court will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous.’ In order to meet constitutional standards, a guilty plea must be freely and voluntarily entered.” Pleas v. State, 766 So.2d 41(¶ 4) (Miss.Ct.App.2000). Regarding effectiveness of counsel, we apply the test set forth in Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) which requires that we determine whether counsel’s overall performance was deficient and whether or not the deficient performance, if any, prejudiced the defense. The burden of proof is on the defendant to prove both prongs, and the adequacy of counsel’s performance as to its deficiency and prejudicial effect should be measured by a totality of the circumstances. Ratliff v. State, 752 So.2d 416(¶ 6) (Miss.Ct.App.1999). However, there is a strong, yet rebuttable, presumption that the actions by the defense counsel were reasonable and strategic. Id.

¶ 3. Smith argues that had his attorney correctly informed him of the nature of the charge and possible penalty, he would have insisted on going to trial rather than plead guilty. Rule 8.04(3) of the Uniform Rules of Circuit and County Court Practice states:

Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.

Additionally, URCCC 8.04(4) states that when the defendant is arraigned and wishes to plead guilty to the offense charged, it is the duty of the trial court to address the defendant personally and to inquire and determine that he is competent to understand the nature of the charge; that he understands the nature and consequences of the plea, including the maximum and minimum penalties provided by law; and that he understands that by pleading guilty he waives his constitutional rights of trial by jury, the right to confront and cross-examine adverse witnesses, and the right against self-incrimination. Further, if he is not represented by an attorney, he must be advised that he has the right to an attorney at every stage of the proceeding and that one will be appointed to represent him if he is indigent. Id.

¶ 4. In our review of the record, we note that at the January 2000 plea hearing, the judge thoroughly questioned Smith in compliance with Rule 8.04(4), and Smith affirmed to the court that he was pleased with his attorney’s representation of his case. Smith also told the judge that he understood the charge, the minimum and maximum punishment, his constitutional rights, and he was not threatened or intimidated into pleading guilty. We find no evidence that the court erred in accepting Smith’s guilty plea, and we find no evidence whatsoever that the attorney’s performance was deficient as to cause Smith to suffer prejudice. This issue has no merit.

II. WAS THE SEARCH OF THE APPELLANT’S PERSON ILLEGAL?

¶ 5. Smith also argues that the police officer’s search of his pants pocket violated his Fourth Amendment right against illegal search and seizure. In King v. State, 738 So.2d 240(¶ 4) (Miss.1999), the supreme court noted that the defendant’s post-conviction relief application raised constitutional claims, including illegal search and seizure. However, the court stated that King’s valid guilty plea constituted a waiver of these constitutional rights, and by pleading guilty King voluntarily gave up his right to make this constitutional challenge. Id. at (¶ 5). In accordance with King, we find Smith to be barred from raising this issue on appeal, since his guilty plea acted to waive his right to challenge this issue.

IV. WAS THE EVIDENCE SUFFICIENT TO SUPPORT THE VERDICT?

¶ 6. Smith finally argues that the evidence was insufficient to convict him. In Swift v. State, 815 So.2d 1230(¶ 13)(Miss.Ct.App.2001), this Court stated:

The law is well settled that when properly entered and accepted, “[a] guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial and the right that the prosecution prove each element of the offense beyond a reasonable doubt.”

Since Smith pleaded guilty, he waived his opportunity for a jury to review the sufficiency of evidence in his case; thus, we decline to review, as well.

¶ 7. Our standard of review concerning post-conviction relief states: “Upon review of a trial 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.” Carr v. State, 806 So.2d 319(¶ 10) (Miss.Ct.App.2001). We have found no clear error in the judge’s dismissal of Smith’s motion for post-conviction relief; thus, we affirm.

¶ 8. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT OF DISMISSAL OF THE APPELLANT’S MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO LEAKE COUNTY.

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


text:
    Randy Glenn CLAIR, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00679-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.
    Edward D. Lancaster, Houston, attorney for appellant.

      Office of the Attorney General, by W. Glenn Watts, attorney for appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   LEE, J., for the court.

PROCEDURAL HISTORY

¶ 1. On March 22, 2002, a jury in the Circuit Court of Chickasaw County found Randy Glenn Clair guilty of one count of manufacture of a controlled substance, methamphetamine, and one count of possession of a controlled substance, methamphetamine. Clair was sentenced to thirty years with fifteen years suspended for the manufacture count and eight years for the possession count, with the sentences to run concurrently and in the custody of the Mississippi Department of Corrections. From this conviction, Clair appeals to this Court asserting the following issues: (1) the lower court erred in denying Clair’s motion to suppress evidence; (2) the lower court erred by not allowing the jurors to take the complete indictment into the jury room for their deliberation; and (3) the lower court erred in admitting jury instructions from the prosecution five minutes prior to submitting the instructions to the jury.

FACTS

¶ 2. On April 7, 2001, Randy Clair attempted to evade a nighttime roadblock set up in Chickasaw County. According to the officers at the roadblock, Clair slowed down as he approached the roadblock. Clair then turned off his headlights, turned his car around, and sped off in the other direction. The police then chased Clair back to his house, where Clair proceeded to get out of the car and go into his house. One of the officers saw Clair toss items from his car and, once he went into the house, toss items from there as well. The police also noted the strong smell of ether around the residence and the car. One of the officers noticed cans of ether, glass containers, and hoses, among other items, in the back of Clair’s car in plain view. There was also a cooler in the back of the car containing more ether and glass jars filled with liquids. Numerous cans of ether were also lying in the yard. The officers, after seeing these chemicals, suspected that a crystal methamphetamine lab was on the premises.

¶ 3. At that point Clair was handcuffed and told that there was probable cause for a search of his residence and surroundings for methamphetamine. Clair was then instructed that they could wait for a search warrant or Clair could consent to the search. Clair signed a consent form. Although a sheriff testified that he told Clair that they would search his house and the premises, the search consent form is blank as to the specific search area. The house, a shed, and the yard were searched. Among the items found were pseu-doephedrine pills, lithium batteries, scales, rock salt, bottles of “Heet,” a jar with cold pills soaking in alcohol, a pipe for inhaling methamphetamine, baggies containing small amounts of methamphetamine, a gallon sprayer containing anhydrous ammonia, sulfuric acid, coffee filters with traces of methamphetamine, and denatured alcohol.

DISCUSSION OF ISSUES

I. DID THE LOWER COURT ERR IN DENYING CLAIR’S MOTION TO SUPPRESS EVIDENCE?

¶ 4. In determining whether evidence should be suppressed, a trial court’s findings of fact are not disturbed on appeal absent a finding that the “trial judge applied an incorrect legal standard, committed manifest error, or made a decision contrary to the overwhelming weight of the evidence.” Taylor v. State, 733 So.2d 251(¶ 18) (Miss.1999).

¶ 5. With his first issue, Clair contends that the lower court should have granted his motion to suppress all evidence found during the search of his residence and surrounding area. Specifically, Clair claims that he did not voluntarily consent to the search of his residence and any evidence obtained should be excluded as the result of an illegal search. Clair also believes that the consent to search form, which he erroneously refers to as a search warrant, was not specific as to what area was to be searched.

¶6. The United States Supreme Court has stated that when determining whether consent to a warrantless search was given voluntarily, the totality of the circumstances must be examined. Schneckloth v. Bustamante, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The Mississippi Supreme Court later adopted that standard saying that:

As a consequence of adopting the volun-tariness for consent searches, the [United States Supreme] Court concluded that “while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.” That is, consent may be established without showing that the police warned the consenting party of his Fourth Amendment rights or that he was otherwise aware of those rights.

Jackson v. State, 418 So.2d 827, 830 (Miss.1982).

¶ 7. From the record, we find that the lower court committed no error in denying Clair’s motion to suppress the evidence obtained in the search of his home and premises. There was ample testimony from law enforcement officers to show Clair consented to the search. Although he was handcuffed, Clair verbally consented to the search while in the presence of two officers. Clair was informed that there was enough probable cause for the officers to obtain a search warrant, but that obtaining the search warrant would take a while. One of the officers testified to telling Clair that his house and the premises would be searched. There was no evidence of any threats or coercion by the officers in obtaining Clair’s consent to search. The trial judge found that Clair understood that he had the right to refuse the search, that Clair was not under duress to permit the search, and that the consent to search was voluntarily given. We can find no error in the trial judge’s findings on this particular issue.

II. DID THE LOWER COURT ERR BY NOT ALLOWING THE JURY TO TAKE THE COMPLETE INDICTMENT INTO THE JURY ROOM FOR DELIBERATION?

¶ 8. With his second issue, Clair contends that a copy of the complete indictment should have been allowed into the jury deliberation. Clair claims that, because the trial judge allowed part of the indictment concerning a possible sentence to be redacted and because there is no supporting law for this omission, his conviction should be reversed. According to the record, the trial judge wanted the statement concerning sentencing to be omitted from the indictment because the penalty should have nothing to do with what the jury is deciding. The trial judge said that “the jury is to decide whether or not he’s guilty or innocent ... the matter of punishment is up to the Court within the parameters as set by the legislature, and it’s not to even be of any concern of the jury as to what the possible penalty is.” The trial judge offered to let the indictment into the jury room, but the appellant only wanted the complete indictment. We fail to see how the lack of a supporting case for this act by the judge would warrant a reversal. We also fail to see any prejudice resulting from the failure of the jury to have a copy of the indictment in the deliberation room. This issue is without merit.

III. DID THE LOWER COURT ERR IN ADMITTING A JURY INSTRUCTION FROM THE PROSECUTION FIVE MINUTES PRIOR TO SUBMITTING THE INSTRUCTIONS TO THE JURY?

¶ 9. With his last issue, Clair claims that Rule 3.07 of the Mississippi Rules of Uniform Circuit and County Court practice was violated because jury instruction S-5 was not given to the defense over twenty four hours in advance. However, Clair offers no authority or separate argument in his brief as to the effect of the violation of Rule 3.07.

¶ 10. The Mississippi Supreme Court has held that absent prejudice to the defendant, the court’s failure to require the State to pre-file its jury instructions is harmless error. Carter v. State, 493 So.2d 327, 330-31 (Miss.1986). As Clair does not offer any proof of prejudice resulting from the late instruction, we find no merit to this issue.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF CHICKASAW COUNTY OF CONVICTION OF COUNT I, MANUFACTURE OF A CONTROLLED SUBSTANCE AND SENTENCE OF THIRTY YEARS WITH FIFTEEN SUSPENDED AND COUNT II, POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCE OF EIGHT YEARS, SAID SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS OF POST-RELEASE SUPERVISION, PAY FINE OF $2,000 AND $100 TO THE VICTIM’S COMPENSATION FUND, IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO CHICKASAW COUNTY.

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


author: MYERS, J., for the court.

text:
    Patrick BALL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00069-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.

      Thomas E. Schwartz, Hattiesburg, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, P.J., MYERS and GRIFFIS, JJ.
   MYERS, J., for the court.

¶ 1. Patrick Ball was convicted in the Circuit Court of Marion County of aggravated assault and was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections. Aggrieved by the judgment, Ball perfected an appeal to this Court.

Issues

I. DID THE COURT ERR IN OVERRULING THE DEFENSE’S MOTION FOR MISTRIAL WHEN THE COURT ALLOWED TESTIMONY CONCERNING OTHER WRONG OR CRIMINAL ACTS TO BE CONSIDERED BY THE JURY?

II. DID THE COURT COMMIT REVERSIBLE ERROR IN FAILING TO DIRECT A VERDICT IN FAVOR OF THE DEFENDANT AS THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

III. DID THE JURY DELIBERATIONS OF TWENTY-SIX MINUTES DENY THE DEFENDANT OF A FAIR AND SPEEDY TRIAL?

Facts and Procedural History

¶ 2. On April 11, 2000, Kenyon Howard and Michael Oatis were riding motor scooters through the streets of Columbia, Mississippi. As they were riding, they came upon Patrick Ball, Shaun Norris, and an unidentified individual. Ball fired a gun at Howard. Howard tried to evade, but a bullet struck him in the back of his left arm and passed through the arm without striking a bone. There was some evidence presented to suggest that Howard and Ball belonged to different gangs and that the shooting could have been gang-related.

¶ 8. In his defense, Ball presented the testimony of Norris, who stated that he was standing beside Ball when he heard the gunfire, and that Ball did not have a gun.

Legal Analysis

I. DID THE COURT ERR IN OVERRULING THE DEFENSE’S MOTION FOR MISTRIAL WHEN THE COURT ALLOWED TESTIMONY CONCERNING OTHER WRONG OR CRIMINAL ACTS TO BE CONSIDERED BY THE JURY?

¶ 4. This issue springs from Oatis’s testimony on direct examination:

Q: What happened at that túne, Michael?
A: When I got around the corner, I saw some guys were standing up there. They ran in the alley.
Q: What corner are we talking about?
A: Ms. Jeanette’s corner, right there at the stop sign. I didn’t think nothing of it. I’m thinking, you know, somebody selling dope or something like that, he ran up in the alley....

¶ 5. Before cross-examination, a bench conference was held. At this conference, Ball’s attorney objected to the testimony under Rule 404(b) of the Mississippi Rules of Evidence, and moved for a mistrial. The trial judge overruled the objection and denied the motion.

¶ 6. Rule 404(b) prohibits evidence of other crimes, wrongs, or acts from being used “to prove the character of a person in order to show that he acted in conformity therewith.” Oatis did not state that Ball or his two companions had been convicted of a drug crime or of any other crime. He did not state that Ball had engaged in drug deals in the past. The testimony that spurred the objection was merely Oatis saying what he thought he saw.

¶ 7. We pause here to state that even if the trial judge wrongly admitted such testimony, we do not find that the objection was timely. Rule 103(a)(1) of the Rules of Evidence calls for a timely objection to appear on the record stating the specific ground of the objection if not apparent from context. Although we have no way to determine how much time passed between Oatis’s uttering the words of which Ball complains and the objection, a full six pages in the transcript fall between the testimony and the objection. Such a delay stretches the limit of “timely.”

II. DID THE COURT COMMIT REVERSIBLE ERROR IN FAILING TO DIRECT A VERDICT IN FAVOR OF THE DEFENDANT AS THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 8. Ball argues that the trial judge should have directed a verdict. He claims that the State’s version of events consisted of biased testimony of the victim and impeached testimony of a witness. The only credible evidence, according to Ball, was that of his own witness.

¶ 9. While Ball couches his argument in terms of weight of the evidence, he means to challenge the sufficiency of the evidence. Craig v. State, 777 So.2d 677, 680(¶ 8) (Miss.Ct.App.2000) (“ Weight’ implicates the denial of a motion for new trial and ‘sufficiency’ implicates the denial of motions for directed verdict, peremptory instruction and judgment notwithstanding the verdict.”). Any issues of witness bias or witness impeachment do not go to the sufficiency of the evidence, but to the weight the jury gives the evidence. Bennett v. State, 757 So.2d 1074, 1077(¶ 9) (Miss.Ct.App.2000).

¶ 10. When we review the question of whether the evidence was sufficient to sustain the verdict, we must view the evidence in the light most favorable to the verdict. “We are authorized to set aside a jury’s verdict only if we are convinced that, as to one of the essential elements of the crime, the State’s proof was so deficient that a reasonable and fair-minded juror could only find the defendant not guilty.” Byars v. State, 835 So.2d 965, 970(¶ 13) (Miss.Ct.App.2003) (citing Bradford v. State, 736 So.2d 464(¶ 6) (Miss.Ct.App.1999)).

¶ 11. Ball was charged with aggravated assault. Section 97-3-7 of the Mississippi Code Annotated (Rev.2000) defines that crime as:

(a) attempt[ing] to cause serious bodily injury to another, or caus[ing] such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempting] to cause or purposely or knowingly causing] bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm....

¶ 12. We find that the evidence was sufficient to find Ball guilty of aggravated assault. Two eyewitnesses identified Ball. They stated he pointed a handgun in their direction and fired several times. One of the witnesses, Howard, was injured as a result. This situation falls squarely under the description of “attempting to cause ... bodily injury to another with a deadly weapon.... ” Id. The State’s evidence was sufficient for reasonable jurors to find Ball guilty of aggravated assault.

III. DID THE JURY DELIBERATIONS OF TWENTY-SIX MINUTES DENY THE DEFENDANT OF A FAIR AND SPEEDY TRIAL?

¶ 13. Ball argues that the jury deliberated in haste and therefore did not subject the evidence to fair and impartial analysis. We find two fatal errors in this issue.

¶ 14. First, there was no objection on the record when the trial court received the verdict. As stated in our analysis of Ball’s first issue, Rule 103(a)(1) of the Mississippi Rules of Evidence calls for a timely objection to appear on the record. Ball has not preserved this issue for appeal.

¶ 15. Secondly, even if the issue were perfected, Ball fails to cite any authority for his argument. Where a party cites no legal authority, we will not consider the argument. Ekornes-Duncan v. Rankin Med. Ctr., 808 So.2d 955, 960(¶ 18) (Miss.2002). As we stated, this is fatal to this issue. Id.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND IF GRANTED EARLY RELEASE PAY OLD FINES OF $3,681.90 TO COLUMBIA MUNICIPAL COURT AND $2,669 TO MARION COUNTY JUSTICE COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.

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

      . While Ball argues that the testimony of Oa-tis was impeached, we note the weight of any impeachment value given to inconsistent testimony and prior statements is the province of the jury. Moore v. State, 773 So.2d 984, 987-87(¶ 8) (Miss.Ct.App.2000). It is not up to him or us to determine that the weight of impeachment testimony was enough to discredit Oatis.


author: IRVING, J., for the court.

text:
    Stanley WOODSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-00056-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.

      Gail P. Thompson, Oxford, attorney for appellant.
    Office of the Attorney General, by Scott Stuart, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES, IRVING and GRIFFIS, JJ.
   IRVING, J., for the court.

¶ 1. Stanley Woodson was convicted in the Circuit Court of Lafayette County of aggravated assault against his brother-in-law and sentenced to a term of fifteen years in the custody of the Mississippi Department of Corrections. Aggrieved by the judgment below, Woodson has appealed and presents three issues: (1) whether he received ineffective assistance of counsel, (2) whether the court erred in denying his motion to dismiss based upon a speedy trial violation under the Sixth Amendment, (3) whether the cumulative effect of the errors deprived him of a fundamentally fair trial, and (4) whether the verdict of the jury is against the overwhelming weight of the evidence.

¶ 2. We discern no error; therefore, we affirm.

FACTS

¶ 3. On or about April 8, 1997, Stanley Woodson went to Abtco, a manufacturing plant in Holly Springs, Marshall County, Mississippi. Ricky Nunnally, the brother of Woodson’s wife, worked at Abtco. Wood-son carried a bat and pistol with him.

¶ 4. Nunnally was on the back of a truck cutting steel with a torch when someone exclaimed, “Watch out!” Nunnally turned and saw Stanley Woodson holding a gun and a baseball bat. Woodson swung the bat at Nunnally who moved to avoid its contact. Trying to escape, Nunnally jumped off his truck and ran away from Woodson. Woodson fired several shots at Nunnally before Nunnally was hit. Nun-nally, being shot in the leg and in the foot, fell to the ground and broke his ankle. Shortly after this incident, Woodson was arrested and charged with aggravated assault.

¶ 5. A day before this incident, Nunnally and Woodson had gotten into a confrontation at the house of Nunnally’s younger sister. Woodson had been arguing with Woodson’s wife before this confrontation occurred. Nunnally had hit Woodson in the head with a foreign object and caused him to bleed.

¶ 6. On May 20,1999, Woodson was tried and convicted of aggravated assault.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Ineffective Assistance of Counsel

¶ 7. Woodson claims he was denied effective assistance of counsel. He argues that his attorney only gave him short briefings about his case. Woodson also complains that counsel failed to find pictures or produce witnesses that would have ensured him a fair trial. Woodson’s theory was that he was afraid for his life because Nunnally had struck him the day before the shooting. Therefore, he explains, these pictures and witnesses would verify and prove that he had been assaulted by Nunnally, thereby illuminating his state of mind.

¶ 8. Our standard of review for a claim of ineffective assistance of counsel is a two-part test: the defendant must prove, under the totality of the circumstances, that (1) his attorney's performance was deficient and (2) the deficiency deprived the defendant of a fair trial. Jackson v. State, 815 So.2d 1196, 1200(¶ 8) (Miss.2002) (citing Hiter v. State, 660 So.2d 961, 965 (Miss.1995)). This review is highly deferential to the attorney, with a strong presumption that the attorney’s conduct fell within the wide range of reasonable professional assistance. Id. With respect to the overall performance of the attorney, “counsel's choice of whether to file certain motions, call witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy” and cannot give rise to an ineffective assistance of counsel claim. Id. (citing Cole v. State, 666 So.2d 767, 777 (Miss.1995)).

¶ 9. A defendant claiming ineffective assistance of counsel has the burden of proving not only that counsel’s performance was deficient, but also that he was prejudiced thereby. Id. at 1200(¶ 9) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Additionally, the defendant must show that there is a reasonable probability that, but for his attorney’s errors, he would have received a different result in the trial court. Id. (citing Nicolaou v. State, 612 So.2d 1080, 1086 (Miss.1992)). Finally, the court must then determine whether counsel’s performance was both deficient and prejudicial based upon the totality of the circumstances. Id. (citing Carney v. State, 525 So.2d 776, 780 (Miss.1988)).

¶ 10. We find no merit in Wood-son’s contentions. Woodson first fails to show that the meetings between him and his counsel were not sufficient to prepare for his trial. Woodson also does not identify what pictures were not retrieved or what witnesses were not subpoenaed. He merely proclaims that this evidence could have substantiated Nunnally’s assault upon him and Woodson’s state of mind during the shooting. Moreover, on the facts of this case, we fail to see how Woodson’s state of mind at the time of the shooting could cause a different result. Woodson sought Nunnally out for the attack.

¶ 11. This Court finds that Woodson’s counsel provided effective and adequate representation. Defense counsel put on evidence that Nunnally struck Woodson the day before the shooting and caused Woodson to bleed profusely inside his car. Woodson’s attorney also put on evidence that Woodson was afraid for his life when he came to Nunnally’s job before the shooting. Defense counsel called Police Chief Jimmy Howell who testified that Woodson claimed to have found a threatening note at his home the day before April 8, 1997, and that Woodson suspected that Nunnally authored it. The point which Woodson claims his attorney failed to establish by the use of pictures and witnesses who were not called to testify was in fact established by the testimony of the witnesses that defense counsel did present. We therefore find that Wood-son’s argument on this issue fails.

2. Speedy Trial

¶ 12. Woodson argues that he was denied the right to a speedy trial. He explains that he was arrested April 8, 1997, and tried on May 20, 1999, which was three years and seven months after his arrest. Therefore, Woodson contends that the State was in clear violation of his constitutional protection under the Sixth Amendment.

¶ 13. We find that Woodson’s speedy trial claim was not preserved for appellate review since this issue was not raised either before trial or in the post-trial/pre-notice of appeal filings. The following filings illustrate this fact. The jury convicted Woodson on May 25, 1999, and the trial judge entered a judgment of conviction on the same date. On May 27, 1999, three filings occurred. Woodson’s trial counsel filed a motion for judgment of acquittal or in the alternative, for a new trial; the trial judge filed an order overruling Woodson’s motion, and Woodson filed his notice of appeal.

¶ 14. We have thoroughly examined the record and can find no place where the speedy trial claim was raised prior to trial. Woodson’s trial counsel, who filed the notice of appeal, did not raise the issue in his post-trial motion.

¶ 15. On January 24, 2000, approximately eight months after Woodson was sentenced, Woodson filed a pro se motion to dismiss in which the speedy trial issue was raised for the first time. In his motion, Woodson sought to have the charges dismissed even though he had already been convicted of them. On February 1, 2000, the trial judge overruled Woodson’s motion.

¶ 16. Notwithstanding the trial court’s ruling on Woodson’s motion to dismiss, we find that the trial court lacked jurisdiction to do so. Since Woodson had already filed his notice of appeal at the time that he filed his motion to dismiss, as well as at the time that the trial court ruled on the motion, jurisdiction of this matter no longer reposed in the trial court. In other words, Woodson’s notice of appeal divested the trial court of further jurisdiction in the matter. See Cannaday v. State, 455 So.2d 713, 725-26 (Miss.1984); Edmonds v. Delta Democrat Pub. Co., 221 Miss. 785, 787, 75 So.2d 73, 74 (1954).

¶ 17. Even though we find that Woodson is procedurally barred from raising this issue on appeal, we address it briefly. Woodson asserts that the delay in prosecution prejudiced him because (1) pictures of the injuries that Nunnally inflicted upon him the day before he assaulted Nunnally were lost, and (2) witnesses failed to be called to testify on his behalf as to his state of mind during his April 8, 1997 confrontation with Nunnally. “Generally, proof of prejudice entails the loss of evidence, death of witnesses, or staleness of an investigation. The possibility of impairment of the defense is the most serious consideration in determining whether the defendant has suffered prejudices as a result of delay.” Sharp v. State, 786 So.2d 372, 381(¶ 19) (Miss.2001).

¶ 18. Here, Woodson’s claims are not persuasive because during the trial he presented evidence which confirmed both the injuries that he received in the confrontation with Nunnally and his state of mind as a result of his prior confrontation with Nunnally. The evidence, about which Woodson complains he was unable to present, was cumulative to the evidence which he did present. We can discern no prejudice under these circumstances. Therefore, it necessarily follows that Woodson’s Sixth Amendment right to a speedy trial was not violated since there can be no violation in the absence of prejudice.

3. Cumulative Effect of Errors lNew Trial

¶ 19. In his final assignment of error, Woodson argues that the cumulative effect of errors committed in the trial court deprived him of a fundamental right to a fair trial and that the verdict was against the overwhelming weight of the evidence. We address each in turn.

¶ 20. While Woodson contends that the cumulative effect of the alleged errors robbed him of a fair trial, he offers no authority in support of his contention. Generally, a failure to cite authority in support of an argument advanced constitutes a procedural bar, and the court is under no obligation to address the issue. McClain v. State, 625 So.2d 774, 781 (Miss.1993). Although we are under no obligation to address this issue, we address it just to say that the claim is wholly without merit. ‘Where there is no reversible error in any part, [there can be] no reversible error to the whole.” Doss v. State, 709 So.2d 369, 401 (Miss.1996) (citing McFee v. State, 511 So.2d 130, 136 (Miss.1987)). We have not found error, much less reversible error. Woodson’s claim of prejudicial cumulative error is without merit.

¶21. Lastly, Woodson contends that the verdict is against the overwhelming weight of the evidence. However, he fails to demonstrate how the verdict is against the overwhelming weight of the evidence. He only reasserts the alleged deficiencies by his attorney and the unfairness of being denied a speedy trial. It is sufficient to say, without again detailing the evidence adduced at trial, that the State met its burden of proof and that the verdict is fully supported by the evidence. This assignment of error is void of merit.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAY $2,000 IN RESTITUTION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARSHALL COUNTY.

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

      . Although Woodson says in his brief that three years and seven months elapsed between the date of his arrest and trial, our calculation reveals that it was only two years, one month, and twelve days.


text:
    Janice STEWART, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01485-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.

      Janice Stewart (pro se), attorney for appellant.
    Office of the Attorney General, by Jeffrey A. Klingfuss, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES, IRVING and GRIFFIS, JJ.
   IRVING, J., for the court.

¶ 1. Janice Stewart pleaded guilty to charges of capital rape and child pornography in the Circuit Court of Itawamba County. She later filed a motion for post-conviction relief which was denied by the circuit court.

¶ 2. Stewart, acting pro se, has perfected this appeal in which she fails to state any issues, or even generally suggest, the errors that the trial judge allegedly committed. However, in the summary of her argument, she complains primarily of not being informed, prior to her • pleading guilty, that she would not be eligible for parole or meritorious time, and in her conclusion, she requests that she be allowed meritorious time, a reduction in her sentence, or a modification of her sentence to have the sentences run concurrently with, not consecutive to, her federal sentence.

¶ 3. We have considered Stewart’s arguments and assertions but find no basis for reversing the trial court. Consequently, we affirm the trial court’s judgment.

FACTS

¶ 4. Following Stewart’s plea of guilty, the trial judge sentenced her on the rape and child pornography charges to thirty and twenty years, respectively, in the custody of the Mississippi Department of Corrections. However, twenty of the thirty years for the rape charge and ten of the twenty years for the child pornography charge were suspended, and the sentences were run concurrently but consecutively to a federal sentence that she received.

¶ 5. In her PCR motion, Stewart did not specifically allege ineffective assistance of counsel. However, she alleged facts which would support such an allegation. She alleged that her attorney did not advise her that she, as a sex offender, would be ineligible for parole, earned time, or meritorious time. She also alleged that her attorney did not present mitigating evidence at the sentencing hearing and that she should have been appointed two attorneys since she was charged with a capital crime. Lastly, Stewart asked that her sentence be run concurrently with her federal sentence.

¶ 6. In dismissing Stewart’s PCR motion, the trial judge found that Stewart did not argue the voluntary, knowing, or intelligent nature of her guilty pleas. The trial judge also found that there was no requirement that he appoint two attorneys for a capital rape defendant. The trial judge further found that he did not have the authority to reduce or modify Stewart’s sentence, as the sentence was a lawfully imposed sentence that Stewart has already begun serving. Finally, the trial judge concluded that Stewart’s ineffective assistance of counsel claim was without merit based on her statements at her plea hearing. At the plea hearing, Stewart, upon inquiry by the trial court, stated that she was content with her legal representation and felt that her appointed attorney had adequately represented her interests.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 7. Stewart contends that she was not advised by the trial court or her trial attorney that she, as a sex offender, would be ineligible for parole, earned time, and meritorious time and that, because she was unaware of her ineligibility, she should be allowed consideration for these privileges. She also contends that her trial attorney told her family in January 1999 that she would only have to serve two or three more years.

¶ 8. However, Stewart does not contend that her plea was involuntary or that her trial attorney ever told her anything about parole, earned time or meritorious time, nor does she contend that the statement, allegedly made to her family, was ever made to her. Further, she does not contend that her attorney’s alleged representation to her family induced her to plead guilty. In fact, she does not even allege that the statement was made prior to her entering her guilty plea. Based on the phraseology used, it seems more likely that the statement, if made at all, was made sometime after Stewart had begun serving her time. Moreover, Stewart does not allege in her PCR motion, as she does in her appellate brief, that her trial attorney made the statement regarding how much time she would have to serve. Consequently, this issue is procedurally barred since it is being raised for the first time on appeal. Jones v. State, 606 So.2d 1051, 1058 (Miss.1992). Notwithstanding the procedural bar, we discuss it briefly.

¶ 9. A plea of guilty is not binding upon a criminal defendant unless it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). “A plea is voluntary and intelligent only where the defendant is advised concerning the nature and consequences of the plea.” Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). “Specifically, the defendant must be told that a guilty plea involves a waiver to the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self-incrimination.” Id. The trial judge should inquire and determine that the accused understands the maximum and minimum penalties to which he may be sentenced. Id.

It will not be suggested by anybody that, before accepting a plea of guilty to an offense with respect to which parole is a possibility the judge must determine whether the defendant understands the nature of parole, his eligibility therefor, and the circumstances in which it may thereafter be granted. The reason is, of course, that eligibility for parole is not a “consequence” of a plea of guilty, but a matter of legislative grace. It is equally true that non-eligibility for parole is not a consequence of a plea of guilty.

Ware v. State, 379 So.2d 904, 907 (Miss.1980).

¶ 10. Our supreme court has held that a defendant who alleges that his plea is not voluntary because of his reliance on his attorney’s faulty advice regarding the possibility of parole, is entitled to an eviden-tiary hearing on the question of voluntariness. Washington v. State, 620 So.2d 966, 967 (Miss.1993). In Washington, the appellant alleged that his attorney led him to believe that he would be eligible for parole in six years and three months when in fact he had to serve a mandatory ten years. Id. at 966. The State in Washington argued that the mandatory ten years to be served was not a “consequence” of which the appellant needed to be informed in order to plead voluntarily. Id. at 970. The supreme court held that the appellant should have been given a chance to present his involuntariness claim at a hearing. Id. Additionally, the supreme court held that the issue was not whether [the appellant] was sufficiently advised on his parole eligibility, but “whether he was apprised of the mandatory sentence without parole consideration.” Id.

¶ 11. However, in the case sub judice, Stewart, unlike the defendant in Washington, does not argue that her guilty pleas were involuntary or that she relied on mistaken advice from her attorney regarding parole eligibility, earned or meritorious time. Stewart simply asserts that she was unaware of her ineligibility for parole, earned time, and meritorious time. Being unaware is not synonymous with ill or erroneous advice. A defendant does not possess a constitutional right to full parole information at or before his guilty plea. Ware, 379 So.2d at 907. A trial judge is not required to inform a defendant of the defendant’s ineligibility for parole. Id.

¶ 12. At no point within the record does Stewart argue that her guilty pleas were involuntary or unintelligently made. Moreover, at her plea hearing, Stewart responded affirmatively that her guilty pleas were intelligent and voluntary. The trial judge informed Stewart of the constitutional rights that she was waiving, as well as the crimes with which she was charged and the mandatory maximum and minimum sentence she would receive for those crimes. Stewart then admitted that she committed the crimes of capital rape and child pornography.

¶ 13. Furthermore, at the plea hearing when Stewart was questioned about whether she was satisfied with the legal services rendered by her trial attorney and whether she was properly advised before pleading guilty, she responded affirmatively. Stewart presents no affidavits other than her own concerning what advice she did or did not receive from her trial attorney. It would have been an easy matter to get an affidavit from members of her family who were allegedly told by her attorney that she would have to serve only two or three more years.

¶ 14. Since Stewart does not assert that knowledge of her ineligibility regarding parole, earned or meritorious time would have caused her not to plead guilty, this Court cannot find reversible error. Accordingly, the trial court properly dismissed Stewart’s PCR motion for lack of merit.

¶ 15. There is no basis for us to address Stewart’s request that she be granted a reduction of her state sentences or in the alternative a modification of her sentence to have it run concurrently with her five-year federal sentence. She has not pointed us to any error on the trial court’s part in denying the request, and we can find none. “When a person is sentenced to imprisonment on two 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.” Miss.Code Ann. § 99-19-21(1) (Rev.2000). We find no abuse of discretion in Stewart’s sentencing. Thus this issue is without merit.

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

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


text:
    Bernard CARTER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00068-COA.
    Court of Appeals of Mississippi.
    May 13, 2003.

      Charles E. Lawrence, Hattiesburg, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before KING, P.J., MYERS and GRIFFIS, JJ.
   MYERS, J., for the court.

¶ 1. Bernard Carter was tried by a jury and sentenced to life in prison for the murder of Curtis Jackson by the Circuit Court of Marion County. Aggrieved by this judgment, Carter appeals to this Court, asserting:

I. THE PROSECUTION FAILED TO PROVE GUILT OF MURDER AGAINST THE DEFENDANT BEYOND A REASONABLE DOUBT.
II. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO PROVE THE ELEMENT OF DELIBERATE DESIGN.

Facts

¶ 2. On May 13, 2000, Carter got into an argument with Curtis Jackson concerning Carter’s current girlfriend. The confrontation resolved without any violence, but apparently Carter’s temper did not subside.

¶3. Later that day, Carter found a handgun and told witnesses that he was going to “get” Jackson. Carter drove to Reginald Young’s house and shot Jackson while Jackson was in the driveway talking on a cordless phone. Jackson did not have a weapon.

¶ 4. At trial, Carter claimed he fired in self-defense, but the jury returned a verdict of guilty on the charge of deliberate design murder.

Legal Analysis

I. DID THE PROSECUTION FAIL TO PROVE GUILT OF MURDER AGAINST THE DEFENDANT BEYOND A REASONABLE DOUBT?

¶ 5. Carter argues that the evidence did not support the jury’s verdict of guilty.

In reviewing a challenge to the sufficiency of the evidence, this Court is obligated to view the evidence in the light most favorable to sustaining the conviction. We are authorized to set aside a jury’s verdict only if we are convinced that, as to one of the essential elements of the crime, the State’s proof was so deficient that a reasonable and fair-minded juror could only find the defendant not guilty.

Byars v. State, 835 So.2d 965, 970(¶ 13) (Miss.Ct.App.2003) (citing Bradford v. State, 736 So.2d 464(¶ 6) (Miss.Ct.App.1999)). We find there was sufficient evidence to support the verdict.

¶ 6. Deliberate design murder has the following elements: (1) the killing of a human being; (2) without the authority of law; (3) and done with deliberate design to effect the death of a human being. Miss. Code Ann. § 97-8-19(l)(a) (Rev.2000). Four eyewitnesses testified they saw Carter point a gun and fire at Jackson. They testified that Jackson was unarmed and made no gestures to suggest that he had a weapon or that he intended any harm to Carter. Witnesses also testified that Carter, after the first confrontation of the day, acquired a gun and made purposeful efforts to locate Jackson. From this evidence, a jury could reasonably have found that Carter had a deliberate design to Ml Jackson and that he carried out that plan.

II. DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO PROVE THE ELEMENT OF DELIBERATE DESIGN?

¶ 7. After the trial, Carter filed a motion with the trial court for a new trial, claiming that the verdict was against the overwhelming weight of the evidence. On appeal, he elaborates and states his belief that the State failed to prove the “deliberate design” element of deliberate design murder.

¶ 8. Our standard of review limits us to reversing a circuit judge’s decision to deny a motion for a new trial only when there is manifest error. Windham v. State, 800 So.2d 1257, 1264(¶ 19) (Miss.Ct.App.2001). If there was any error in the trial judge’s decision, it did not rise to manifest error.

¶ 9. The Mississippi Supreme Court has held “deliberate design” as used in “deliberate design murder” to be synonymous with “malice aforethought,” “premeditated,” and the “intent to kill.” Hawthorne v. State, 835 So.2d 14, 19-20 (¶¶ 21-22) (Miss.2003) (citations omitted). A more thorough definition has been expressed as “full awareness of what one is doing; it generally implies careful and unhurried consideration of the consequences along with calculation, planning and contemplation.” Windham v. State, 520 So.2d 123, 126 (Miss.1987).

¶ 10. Carter had a verbal altercation with Jackson earlier in the day on the day of Jackson’s death. After Jackson left the scene, Carter sought him out, and learned that Jackson was at the house of his friend, Reginald Young. After finding a gun, Carter drove to Young’s house and again exchanged words with Jackson. Jackson went into the house for a few minutes and came out with a telephone to his ear. Carter then shot Jackson. The effort Carter put forth in locating Jackson and obtaining a gun shows a deliberate plan to kill Jackson. The jury must apparently have thought so since it also had the option of finding Carter either guilty of manslaughter or not guilty of Jackson’s homicide. We hold that the State adequately proved the “deliberate design” element of deliberate design murder.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.

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