text:
    Robert W. QUINN and Cherie Quinn, Appellants v. President Broadwater Hotel, LLC, Appellee.
    No. 2006-CA-00090-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.
    Rehearing Denied Sept. 4, 2007.

      William Michael Kulick, Ocean Springs, Robert W. Gambrell, Biloxi, attorneys for appellants.
    David C. Goff, Gulfport, attorney for appellee.
    Before LEE, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. This case comes before the Court from the Circuit Court of Harrison County, Second Judicial District. At the conclusion of a trial on the issue of damages only, the jury awarded $5,000 to Robert Quinn for personal injuries sustained while on the premises of the President Casino Broadwater Resort (President). Thereafter, Mr. Quinn and his wife, Cherie Quinn, filed a motion for an additur or a new trial, which was denied. Aggrieved by the trial court’s decision, the Quinns appeal. They argue that the trial court erred in overruling their motion and urge this Court to grant an additur or, in the alternative, a new trial. Finding no error, we affirm.

FACTS

¶ 2. On October 30, 1998, Mr. Quinn was injured on the premises of the President Casino Broadwater Resort (President) when he stepped into an unobvious hole in the ground. As a result of this incident, Mr. Quinn cut his left leg and tore the anterior cruciate ligament (ACL) in his right knee, which was surgically repaired in December 1998. As a result of his injuries, Mr. Quinn incurred medical bills totaling $27,242, all of which were paid by President.

¶ 3. The Quinns filed a complaint on September 20, 1999. President admitted liability in the case and the matter proceeded to trial as to damages only on September 28, 2004. After a two-day trial, the jury returned a verdict for Mr. Quinn and assessed damages in the amount of $5,000 as compensation for his pain and suffering, and permanent physical limitations including loss of enjoyment of life. The jury found that Mr. Quinn was entitled to no damages for past and future lost earnings and that Mrs. Quinn was entitled to no damages for loss of consortium.

DISCUSSION

¶4. On appeal, the Quinns argue that the jury award of $5,000 was so inadequate as to be against the overwhelming weight of the credible evidence and to indicate that the jury was influenced by prejudice or bias against them. President argues that the jury assessed the weight of the evidence and the credibility of the witnesses and arrived at a reasonable verdict which should not be disturbed on appeal.

¶ 5. The trial judge has the authority to grant an additur pursuant to Mississippi Code Annotated section 11-1-55 which states:

The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for new trial or affirm on direct or cross appeal, upon condition of an addi-tur or remittitur, if the court finds that the damages are excessive or inadequate .for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence. If such additur or remittitur be not accepted then the court may direct a new trial on damages only. If the additur or remittitur is accepted and the other party perfects a direct appeal, then the party accepting the additur or remittitur shall have the right to cross appeal for the purpose of reversing the action of the court in regard to the additur or remittitur.

Miss.Code Ann. § 11-1-55 (Rev.2002).

¶ 6. We review a trial court’s denial of an additur under an abuse of discretion standard of review. Patterson v. Liberty Assocs., L.P., 910 So.2d 1014, 1020(19) (Miss.2004) (citations omitted). The burden of proof lies with the party seeking the additur, who must prove his injuries, loss of income and other damages. Id. (citations omitted). “In determining whether this burden is met, this Court must view the evidence in the light most favorable to the defendant, giving that party all favorable inferences that reasonably may be drawn therefrom.” Rodgers v. Pascagoula Public School Dist., 611 So.2d 942, 945 (Miss.1992) (citations omitted). “It is primarily the province of the jury to determine the amount of damages to be awarded and the award will normally not ‘be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.’ ” Harvey v. Wall, 649 So.2d 184, 187 (Miss.1995) (citing Rodgers, 611 So.2d at 945). “Additurs represent a judicial incursion into the traditional habitat of the jury, and therefore should never be employed without great caution.” Gibbs v. Banks, 527 So.2d 658, 659 (Miss.1988).

¶ 7. The Quinns direct us to prior cases where our reviewing courts have granted an additur in instances where the jury’s monetary award left little or nothing for elements of damage which were uncontested or undisputed by the evidence. See, e.g., Maddox v. Muirhead, 738 So.2d 742, 744-45 (¶¶ 6-11) (Miss.1999) (jury award of $2,900, after reduction for plaintiffs fault, failed to compensate plaintiff for uncontested medical bills and left nothing for pain and suffering); Harvey v. Wall, 649 So.2d 184 (Miss.1995) (additur granted where jury award left under one hundred dollars for uncontradicted elements of pain and suffering and permanent impairment); Rodgers v. Pascagoula Public School Dist., 611 So.2d 942 (Miss.1992) (additur granted where jury returned verdict equal to medical expenses despite uncontradicted proof of pain and suffering and permanent impairment); Pham v. Welter, 542 So.2d 884 (Miss.1989) (additur granted where jury award of $30,000 compensated plaintiff for undisputed medical bills and lost wages in the amount of $28,682, but left only the remainder for pain and suffering and permanent impairment which was supported by ample proof); but see, Depriest v. Barber, 798 So.2d 456, 459(¶ 11) (Miss.1999) (jury award of $3,269.05 for pain and suffering was sufficient and did not require additur).

¶ 8. On the other hand, we note that our supreme court has refused to grant an additur where there is conflicting evidence before the jury concerning the claimed damages. Green v. Grant, 641 So.2d 1203, 1209 (Miss.1994). In Green, the plaintiff claimed that the jury award of $2,000 was against the weight of the evidence and indicated bias on the part of the jury. Id. at 1207. In affirming the trial court’s denial of additur, the supreme court reasoned that “the issue of the extent of Green’s injuries, the reasonableness and necessity of her medical expenses, and the reasonableness and necessity of her lost income were seriously contested.” Id. at 1209. The court held that “[the] conflicting testimony and evidence appeared] to have created an issue on the amount of damages for the jury to decide.” Id.

¶ 9. Turning to the instant case, the jury considered the following elements of damage to determine the amount, if any, to award the Quinns: (1) past and future pain and suffering; (2) physical impairment; (3) loss of enjoyment of life (4) past and future lost earnings; and (5) loss of consortium for Mrs. Quinn.

Pain and Suffering

¶ 10. Mr. Quinn put on proof regarding pain and suffering associated with his injuries. A review of the evidence reveals that, as a result of the incident at President, he sustained a cut to his left leg and a torn ACL in his right knee. Mr. Quinn’s knee was surgically repaired by Dr. Harold Hawkins on or about the first of December 1998. Mr. Quinn testified that he underwent physical therapy for several months which was painful and that it was six months until he was over the pain. He further testified that he could not put any pressure on his right foot for about four months and that he has never walked the same way that he did prior to the accident. However, on cross-examination, President presented Dr. Hawkins’ office record dated February 10, 1999, just over two months after Mr. Quinn’s surgery. Dr. Hawkins’ notes, contained in the office record, stated that “[Mr. Quinn] tends to walk stiff-legged but says he can walk normal when he thinks about it.” The office record further indicated that “other than the physical therapy he needs, he is really at maximum medical improvement here in just over two months.”

Loss of Enjoyment of Life and Loss of Consortium

¶ 11. Mr. Quinn testified as to his loss of enjoyment of life. He stated that for the first year after the accident he “was really bummed out.” He claimed that the accident put strain on his marriage and that intimate relations between him and his wife had suffered as a consequence. He testified that he could no longer perform household activities such as yard work and the like and further that he could no longer engage in recreational activities that he enjoyed prior to the accident. To this end, he claimed that he was physically unable to take his sail boat out and he could no longer play sports with his kids.

¶ 12. Regarding Mrs. Quinn’s loss of consortium, she testified that Mr. Quinn no longer helps with yard work, but he is able to perform household duties such as vacuuming, doing dishes, and making the beds. Mrs. Quinn stated that Mr. Quinn was depressed and difficult to live with, and that they used to go out all the time before the accident, but have ceased to do so since.

Physical impairment

¶ 13. It was established at trial that Mr. Quinn’s knee injury left him with an impaired physical ability as to his right leg. Dr. Hawkins assigned an impairment rating of twenty-four percent to Mr. Quinn’s leg. While the existence of a physical impairment was established, the larger issue is to what extent this impairment affected Mr. Quinn’s capacity to earn.

Past and Future Lost earnings

¶ 14. Mr. Quinn testified that prior to his injury on October 30,1998, he was self-employed in the heating and air conditioning business. He testified that he was illiterate and learned the heating and air conditioning business in a government vocational training program offered in Virginia where he started his own business in 1992. He stated that his wife handled all of the paperwork and he performed all of the physical work. He stated that he and his wife relocated to Mississippi in 1994 where they continued the business until the accident. Mr. Quinn testified that his gross income was around $64,000 in 1994, around $100,000 in both 1996 and 1997, and between $40,000 and $45,000 in 1998.

¶ 15. Mr. Quinn’s tax returns for the years 1992 through 1998 were admitted into evidence. They showed that Mr. Quinn reported earnings each year as follows: 1992-$20,273, 1993-$22,606, 1994-$13,556, 1995-$12,919, 1996-$41,235, 1997-$41,342, 1998-$20,146. The evidence showed that no income was reported from July 1998 through October 1998, the month of the accident. On September 15, 1998, six weeks before the accident, Mr. Quinn went to Memorial Hospital in Gulf-port complaining of kidney pain. The hospital record of his visit reflects that he told hospital personnel that he was unemployed. On October 31, 1998, the day after the accident, Mr. Quinn again told hospital personnel that he was unemployed.

¶ 16. Mr. Quinn offered testimony that he had purchased a sailboat about forty-five days before the accident. He stated that he and his family were planning to go on an extended sailing trip and, at the time of the accident, he had been cutting business back and preparing his boat for the trip.

¶ 17. Sandra Saltarelli, an independent third party witness, testified that she was at a friend’s house in June 1997, and that the Quinns came to the house to do some air conditioning work. She testified that she observed Mrs. Quinn helping Mr. Quinn perform the job. Ms. Saltarelli testified that Mr. Quinn told her that his business was not doing well, that he could not afford to hire anyone else, and that he had bad knees and was not able to work anymore. She testified that she saw Mr. Quinn again at a medical office about two years later, where Mr. Quinn made the comment to her that he was about to have a huge change in lifestyle and expected to get a great deal of money from President.

¶ 18. Two functional capacity evaluations (FCE) were introduced into evidence. The first dated November 29, 2000, indicated that Mr. Quinn could perform medium level work for an eight hour day. A comment to the FCE indicated that Mr. Quinn’s participation was self-limiting stating that “maximum signs of effort were not present when he related he could not lift/pull/carry more weight.” A second FCE was conducted on September 7, 2003. This evaluation indicated that Mr. Quinn could perform sedentary work.

¶ 19. The jury heard expert testimony of two vocational rehabilitation specialists. Tommy Sanders testified on behalf of the Quinns. He stated that, based on the two FCE’s, Mr. Quinn was employable and that there were jobs available to him in the market with starting pay ranging from $5.15 to $7.00 an hour. Leon Tingle was called to testify by President. He stated that Mr. Quinn was employable and that jobs were available to him with starting pay ranging from $5.15 to $8.50 an hour. Mr. Tingle also testified that there were numerous free adult education and vocational training programs available to Mr. Quinn.

¶ 20. The jury also heard expert testimony from economists regarding possible past and future lost earnings. The expert for the Quinns estimated lost earnings to be between $422,101 and $446,245 depending on the wage at which Mr. Quinn would earn, assuming he returned to the workplace. President offered expert testimony to rebut that of the Quinn’s expert in the event that the jury accepted Mr. Quinn’s evidence regarding his physical limitations, and believed that Mr. Quinn had proven some economic loss. The expert for President projected Mr. Quinn’s lost earnings to be between $92,972 and $149,169, assuming Mr. Quinn returned to the workplace. This expert also noted that Mr. Quinn’s tax returns for the years 1992 to 1998 were all filed in the year 2000, a fact admitted by Quinn.

¶ 21. Mr. Quinn testified that he has not returned to work since the date of the injury. He testified that he is physically unable to return to his prior fine of work and that his physical limitations in conjunction with the fact that he is functionally illiterate virtually preclude him from any type of gainful employment.

¶ 22. The jury was allowed to view a surveillance video of Mr. Quinn. The video was recorded on three separate occasions between the time of the injury and the time of trial. The video showed Mr. Quinn walking around town with Mrs. Quinn, driving a car, and showed him sitting and standing as well as kneeling and lying down. Aside from a slight limp, the video demonstrated Mr. Quinn carrying on in his daily life with no apparent problems.

¶ 23. It is well-established in our jurisprudence that the jury is the trier of fact and “[djetermines the weight of the testimony and the credibility of the witnesses at trial and it is the primary province of the jury to determine the amount of damages to award.” Teasley v. Buford, 876 So.2d 1070, 1075(¶ 8) (Miss.2004). In the context of additur and remittitur it is often held that the jury’s determination should remain undisturbed on appeal when there was contradicting evidence presented which supports the jury’s determination. See Patterson v. Liberty Assocs., L.P., 910 So.2d 1014, 1022(¶ 24) (Miss.2005) (“The jury and the judge observed the witnesses and their demeanor-we did not. We refuse to become a thirteenth juror and substitute our judgment for that of the jury when reasonable jurors could differ on the verdict from the evidence presented.”); Odom v. Roberts, 606 So.2d 114, 118 (Miss.1992) (“When testimony is contradicted, this Court will defer to the jury, which determines the weight and worth of testimony and the credibility of the witness at trial.” (citations omitted)). The court in Odom continued that “[where] the testimony at trial is uncontra-dicted, and additionally is ‘inherently probable, reasonable, credible and trustworthy,’ this Court will find that the jury must have accepted the evidence as true.” Odom, 606 So.2d at 118 (citing James v. Mabus, 574 So.2d 596, 600 (Miss.1990)).

¶ 24. In the instant case, we find that the existence and/or the extent of most of Mr. Quinn’s various claimed elements of damage were contradicted by the evidence and disputed by the parties. It was uncontradicted and clearly established that Mr. Quinn suffered a physical impairment and that there was some pain and suffering associated with his injuries. However, beyond this, we find that President introduced contradictory evidence which created an issue for the jury as to the amount of damages to award the Quinns. Additionally, we find that Mr. Quinn’s testimony was contradictory and many of his statements were impeached. Thus, the jury chose to disregard much of his testimony. We find that the jury award of $5,000, though admittedly , small, is not so low as to shock the conscience.

¶ 25. In conclusion, after viewing the evidence in the light most favorable to President together with all inferences that may reasonably be drawn in President’s favor, we find that the jury award finds support in the record, does not indicate bias or prejudice on the part of the jury, and is not against the overwhelming weight of the evidence. The jury was free to, and apparently chose to, resolve any disputes in the evidence in favor of President. Accordingly, we find no abuse of discretion on the part of the trial judge by overruling the Quinn’s motion for additur or a new trial; likewise, we decline to award additur or a new trial on our own accord.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . Medium work is described as exerting up to fifty pounds of force occasionally and/or ten to twenty-five pounds of force frequently.

      . Sedentary work is described as exerting up to ten pounds of force occasionally and/ or a negligible amount of force frequently.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    MAYOR AND BOARD OF ALDERMEN, City of Ridgeland, Mississippi, Shadowood/Wendover Homeowners’ Association And Central Ridgeland Homeowners’ Association, Appellants, v. The ESTATE OF M.A. LEWIS and Richard Wayne Parker, Appellees.
    No. 2005-CC-00361-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.

      Jerry L. Mills, Carolyn B. Mills, James Gabriel, Cassandra Burney Walter, Ridge-land, attorneys for appellants.
    Glenn Gates Taylor, Robert L. Goza, D. James Blackwood, Jr., Christy M. Sparks, Ridgeland, attorneys for appellee.
   ON MOTION FOR REHEARING

MYERS, P.J.,

for the Court.

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn and this opinion is substituted therefor.

¶ 2. At issue in this case is the zoning of a fourteen-acre tract of land located on the corner of Lake Harbor Drive and Pear Orchard Road in Ridgeland, Mississippi. The Estate of M.A. Lewis and Richard Wayne Parker (Lewis-Parker) petitioned the Ridgeland Planning Commission to have this tract of land rezoned from a single-family residential classification (R-2) to a restricted commercial classification (C — 1); however, this petition was denied. Lewis-Parker appealed the Commission’s decision to deny the petition for rezoning to the Mayor and Board of Aldermen of the City of Ridgeland (Mayor and Board of Aldermen), but the petition was denied at this level, as well. On appeal to the Circuit Court of Madison County, the decision to deny the petition for rezoning was reversed. The Mayor and Board of Aldermen, the Shadowood/Wendover Homeowners’ Association, and Central Ridge-land Homeowners’ Association (collectively referred to as the Mayor and Board of Aldermen), now appeal the circuit court’s reversal, raising the following issues:

I. WHETHER THE CIRCUIT COURT SHOULD HAVE REVERSED THE DECISION OF THE MAYOR AND BOARD OF ALDERMEN TO DENY THE REZONING APPLICATION AS ARBITRARY, UNREASONABLE, CAPRICIOUS, AND NOT “FAIRLY DEBATABLE” WHERE THE APPLICANT FOR REZONING FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE A CHANGE IN THE CHARACTER OF THE NEIGHBORHOOD OR A PUBLIC NEED FOR REZONING?
II. WHETHER THE CIRCUIT COURT SHOULD HAVE REVERSED THE DECISION OF THE MAYOR AND BOARD OF ALDERMEN TO DENY THE REZONING APPLICATION AS ARBITRARY, UNREASONABLE, CAPRICIOUS, AND NOT “FAIRLY DEBATABLE” WHERE THE CITY’S COMPREHENSIVE PLAN AND LAND USE MAP DESIGNATED THE SUBJECT PROPERTY FOR RESIDENTIAL USE?
III.WHETHER THE CIRCUIT COURT SUBSTITUTED ITS JUDGMENT FOR THE GOVERNING AUTHORITIES’ IN MAKING A LEGISLATIVE DETERMINATION REGARDING A ZONING MATTER?

¶ 3. Finding a portion of the order of the circuit court to be in error, we reverse in part and render judgment in favor of the Mayor and Board of Aldermen.

STATEMENT OF FACTS

¶ 4. Beginning in early 1999, the Planning Commission began assessing and evaluating the City’s Comprehensive Plan for the purpose of adopting a new zoning plan, scheduled to become effective July 1, 2000. On October 25,1999, Lewis-Parker petitioned the Planning Commission to rezone a parcel of property, located on the corner of Lake Harbor Drive and Pear Orchard Road, from its single-family residential (R-2) designation under the plan then in effect to a restricted commercial (C-l) designation under the proposed plan, with the intention of developing a professional office park. However, the Planning Commission voted unanimously to deny the request and the tract of land retained the R-2 classification.

¶ 5. On November 14, 2000, Lewis-Parker filed its petition to rezone the property at issue from R-2 to C-l with the Mayor and Board of Aldermen. A public hearing on the petition was held on November 28, 2000, and continued on February 6, 2001. At the public hearing held on November 28, 2000, homeowners Cain Baskin, Elton Holloway, Darryl Smith, and David Stutt all testified on their own behalf and on behalf of their respective homeowners’ associations. The homeowners introduced neighborhood petitions and letters from other homeowners in opposition to the rezoning of the Lewis-Parker tract of land. Concerns against rezoning the parcel of property from a residential zone to a commercial zone were voiced by the homeowners regarding the potential for an increase in crime, the potential decrease of their home values, and the resulting increase in traffic and odors. Homeowner Holloway testified in opposition to the Lewis-Parker petition that there was “a lot” of commercial land available between Lake Harbor and County Line Road. Lewis-Parker presented testimony and exhibits in support of granting its petition regarding the changes that had occurred in nearby areas and in support of a public need for the property’s commercialization. At the public hearing that was continued on February 6, 2001, homeowners Cassandra Walter and Alex Moore Ross testified on their own behalf and on behalf of their homeowner associations against the granting of the Lewis-Parker petition to rezone the tract of land to commercial classification. Lewis-Parker presented supplemental evidence in support of the petition for rezoning. At the close of this meeting, over Lewis-Parker’s objections, the Mayor and Board of Aldermen adopted the new Comprehensive Plan and Zoning Ordinance, which once again designated the tract as residential. Lewis-Parker then perfected its appeal of the adoption of the Comprehensive Plan, and a hearing on this matter was held on April 17, 2001.

¶ 6. In the meantime, before the hearing was to take place on April 17, 2001, many compromises between Lewis-Parker and the homeowners were attempted, but few were had. At one such meeting taking place on March 1, 2001, Alderman Gerald Steen asked the parties of Lewis-Parker and their attorneys to leave the meeting, at which time he spoke ex parte with the homeowners. When the parties and representatives of Lewis-Parker reentered the meeting, they were informed that the homeowners had decided not to negotiate unless the Lewis-Parker petition for rezoning was withdrawn. Negotiations between Lewis-Parker and the homeowners, at this point, came to a standstill and the appeal was publicly heard on April 17, 2001.

¶ 7. At the hearing on April 17, 2001, arguments were presented once again by counsel for both Lewis-Parker and the surrounding neighborhood associations. Public comment in opposition to the Lewis-Parker request for rezoning was also accepted from homeowners Cassandra Walters, Ted Chambers, Darryl Smith and Elton Holloway on their own behalf and on behalf of their homeowners’ associations. Lewis-Parker presented evidence of change and public need for ■ commercial land and presented testimony from Urban Planning Consultant Jimmy -Gouras, but the homeowners testified that there was ample commercial land available for development other than the Lewis-Parker parcel. Several aldermen and the mayor commented on the record regarding their positions to rezone the property. At the close of the meeting, the Mayor and Board of Aldermen voted six to one to deny Lewis-Parker’s petition to rezone the tract of land from its designation as R-2 to C-l.

¶ 8. Following the Mayor and Board of Aldermen’s decision to deny Lewis-Parker’s petition to rezone, the matter was appealed to the Circuit Court of Madison County. The circuit court reversed the decision of the Mayor and Board of Aider-men, finding the denial of the Lewis-Parker’s petition to rezone the tract of land from its classification of R-2 to C-l to be arbitrary, capricious, and unsupported by substantial evidence.

LEGAL ANALYSIS

¶ 9. Each of the issues presented on appeal are governed by the same standard of review; therefore, we address all three issues together. A circuit court sitting as an appellate court reviewing a zoning matter is limited in its judicial review and may not perform a de novo review. Broadacres, Inc. v. Hattiesburg, 489 So.2d 501, 503 (Miss.1986); Gillis v. City of McComb, 860 So.2d 833, 835(¶ 5) (Miss.Ct.App.2003). In reviewing a decision of the Mayor and Board of Aldermen, appellate courts “should respect such findings unless they are arbitrary, capricious, and unreasonable.” Board of Aldermen v. Jenkins, 423 So.2d 1323, 1327-28 (Miss.1982). We are to review under the same standard assigned to circuit court review. Appellate courts are to give deference to the zoning decision of the local governing board, as the decision is to be presumed valid. Gil-lis, 860 So.2d at (¶ 5). The burden is upon the party seeking to set aside the decision to show that it was arbitrary, capricious, discriminatory, illegal, not supported by substantial evidence, and not fairly debatable. Id. at (¶ 6). The meaning of the term “fairly debatable” is “the antithesis of arbitrary and capricious.” Id. It follows, then, that “[i]f a decision is one which can be considered fairly debatable, then it cannot be considered arbitrary or capricious.” Id.

¶ 10. It is well-settled that a change in zoning on the subject property can only occur when there has been (1) a mistake in the original zoning, or (2) a substantial change in the character of the neighborhood and a public need for rezoning. Town of Florence v. Sea Lands, Ltd., 759 So.2d 1221, 1223-24(¶ 11) (Miss.2000). No one contends that there is a mistake in the original zoning of the tract at issue in this appeal. Thus, we center our review on whether it is fairly debatable or if substantial evidence supports the finding of the Mayor and Board of Aldermen that there was neither a substantial change in the character of the neighborhood so as to justify rezoning, nor a public need for rezoning the Lewis-Parker tract from its residential classification to a commercial classification. If substantial evidence exists as to either of these issues of the character of the neighborhood or the public need for rezoning, the decision of the circuit court must be reversed and the order of the Mayor and Board of Aider-men must be reinstated.

¶ 11. During the hearings, the Mayor and Board of Aldermen heard testimony and accepted exhibits from Lewis-Parker regarding whether there had been a substantial change in the character of the area surrounding the parcel of property. Lewis-Parker presented their support of the rezoning through the testimony and exhibits introduced by an urban planning expert regarding the recent commercialization of the surrounding areas. Of the seven rezoned tracts of nearby land Lewis-Parker points to in support of its petition, our review determines that only two of these tracts were changed from a residential classification to a commercial classification. As to the other parcels of property that Lewis-Parker rely upon to show a substantial change in the area, two were changed from a single-family residential classification to a townhouse classification, and another two tracts of commercial classification were rezoned for heavier commercial use. The remaining tract example Lewis-Parker presents to show a substantial change in the area was changed from a residential classification to become a storm water relief channel. Thus, only two properties were shown by Lewis-Parker, in support of their position for rezoning, to have been transformed from residential to commercial classification in the recent years leading up to their petition. Based upon this evidence before them, the Mayor and Board of Aldermen found that the surrounding areas had not substantially changed in character so as to warrant a change in the classification of the Lewis-Parker tract of land. While there is no requisite number of rezoned tracts that must be proffered into evidence in order to show a substantial change in zoning in the neighborhood, we cannot say that it was error for the Mayor and Board of Aider-men to decline the petition for rezoning when Lewis-Parker was only able to present evidence of two properties’ rezoning from residential to commercial. Thus, we hold the circuit court in error in finding the decision of the Mayor and Board of Aldermen to be arbitrary and capricious.

¶ 12. A rezoning petitioner must show an existing public need for such rezoning exists, in addition to showing that a substantial change in the character of the neighborhood has occurred. Id. At the April 17, 2001 hearing, testimony was presented by both parties regarding the public need for rezoning the Lewis-Parker tract of land. Evidence was first presented by Lewis-Parker’s urban planning consultant regarding the area’s traffic conditions, changing demographics, and surrounding commercial properties. Then, homeowners, representing themselves and their respective homeowners’ associations, presented neighborhood petitions and testified in strong opposition to any redesignation of the Lewis-Parker property. Homeowners Cassandra Walters, Ted Chambers, Darryl Smith and Elton Holloway on their own behalf and on behalf of their homeowners associations testified that a public need for rezoning the Lewis-Parker property did not exist. Walters testified that “[i]f anyone opens their eyes and looks out the window there are ample vacant commercially zoned lots in the vicinity of the [Lewis-Parker] property.” Holloway pointed out other commercially zoned properties located in the City of Ridgeland, testifying that there was “plenty” of other available commercial property. Also introduced as an exhibit before the Mayor and Board of Aldermen was the City of Ridgeland Comprehensive Use Plan, as adopted in July of 2000, which states, “[t]here is ample land within the current city limits and study areas to satisfy [future commercial] needs, much of which is already zoned for these purposes.” At the close of the hearing, the Mayor and Board of Aider-men sided with the homeowners in opposition to the rezoning.

¶ 13. When assessing the weight that may be given to public opposition to a petition for rezoning, we look for guidance from the Mississippi Supreme Court. In the case of Mayor & Commissioners of Jackson v. Wheatley Place, Inc., 468 So.2d 81, 83 (Miss.1985), our supreme court held that substantial weight could be given to the concerns of its citizenry in determining whether a public need exists for rezoning. The court stated:

It should also be borne in mind, however, that while a duly enacted comprehensive zoning ordinance is not a true protective covenants agreement, it bears some analogy.
Purchasers of small tracts of land invest a substantial portion of their entire lifetime earnings, relying upon a zoning ordinance. Without the assurance of the zoning ordinance, such investments would not be made. On this small area they build their homes, where they expect to spend the most peaceful, restful and enjoyable hours of the day.
Zoning ordinances curb the exodus of city workers to a lot in the distant countryside. Indeed, the protection of zoning ordinances in municipalities, as opposed to no zoning in most county areas, encourage the choice of a city lot rather than a country lot for a home in the first instance. Zoning ordinances make city property more attractive to the prudent investor.
In the absence of agreement between all interested parties, an amendment to a zoning ordinance is not meant to be easy. Otherwise, it would be a meaningless scrap of paper. As former Justice Robertson noted in City of Jackson v. Wilson, 195 So.2d 470 (Miss.[1966]), at 473:
Homeowners are the backbone of any community. They take pride in developing and maintaining attractive homes and yards, and anything that discourages this wholesome attitude on their part hurts the community.

Wheatley Place, 468 So.2d at 83. Undoubtedly, the Mayor and Board of Aldermen gave significant weight to the testimony of the concerned homeowners regarding the rezoning of the nearby Lewis-Parker property from the residential to the commercial classification. We cannot say that giving such weight to the homeowners’ testimony regarding their opposition to a nearby rezoning is error.

¶ 14. Finding that the issues presented by the Lewis-Parker petition to rezone to be fairly debatable, and finding no evidence in the record that the decision to deny the petition was arbitrary, capricious, or unsupported by substantial evidence, we hold that the ruling of the Madison County Circuit Court overreached the applicable standard of appellate review and must be reversed. The Mayor and Board of Aider-men are better situated than are the appellate courts to determine the zoning needs of their city and where the decision is not clearly arbitrary, capricious, or unsupported by substantial evidence, and the issues fairly debatable, we decline to substitute our judgment for that of the local governing body. Accordingly, the decision of the Mayor and Board of Aldermen denying the Lewis-Parker petition for rezoning is reinstated.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. CARLTON, J„ NOT PARTICIPATING.

      . We note that the circuit court's order addressed two issues outside the subject of the issues of this appeal. In addition to addressing the issue of this appeal, the circuit court also ordered the rezoning of municipality-owned property, the Longmeadow Relief Channel and the Storm Detention Area, from a residential zone to a zone for a stormwater relief channel and drainage system. Further, the circuit court ordered that the 2000 Comprehensive Plan be reversed or, in the alterna-five, corrected consistent with the order. Because these two issues are not appealed, we are without jurisdiction to decide the correctness of the circuit court’s ruling.

      . The City of Ridgeland adopts a new Comprehensive Plan pursuant to Mississippi Code Annotated sections 17-1-1 through 17-1-39 (Rev.2003), approximately every ten years.

      . One of the rezoned tracts that was changed from the single-family residential designation to the townhouse residential designation, however, actually developed and remained under the classification of single-family residential.

      . We note, however, that the 2000 Comprehensive Use Plan also acknowledges that additional commercial acreage will be needed in the future.


author: CARLTON, J.,

text:
    Lamar GLADNEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CA-00631-COA.
    Court of Appeals of Mississippi.
    May 8, 2007.
    Rehearing Denied Aug. 28, 2007.

      Sylvia S. Owen, New Albany, attorney for Appellant.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Lamar Gladney was convicted by entering a plea of guilty in the Choctaw County Circuit Court for the crime of armed robbery. On appeal, he argues that his plea was invalid, denial of due process, ineffective assistance of counsel, excessive sentence, and cumulative error. Finding no error, we affirm the denial of Gladney’s motion for post-conviction relief.

FACTS

¶ 2. On January 21, 2003, Gladney was indicted by a Choctaw County grand jury for the crime of armed robbery. Miss. Code Ann. § 97-3-79 (Rev.2006). The indictment resulted from Gladney’s participation in a bank robbery in Ackerman, Mississippi. Gladney entered a guilty plea one month after being indicted. Gladney was seventeen years of age at the time of his conviction. In exchange for his plea, the State recommended that Gladney be imprisoned for thirty years and pay court costs and assessments. Other pending charges were retired to the files in Choctaw County. Counsel for Gladney also secured an agreement with the district attorney for Oktibbeha County to retire an additional charge pending against Gladney. Gladney was sentenced according to the recommendation of the State. He timely filed his motion for post-conviction relief. His appeal has been assigned to this Court.

DISCUSSION

¶ 3. In reviewing a denial of a petition for post-conviction relief, the factual findings of the trial court will be reversed only if they are clearly erroneous. Hannah v. State, 943 So.2d 20, 24(¶ 5) (Miss.2006) (citations omitted). Questions of law are reviewed de novo. Id.

1. Denial of Due Process

¶ 4. In Gladney’s statement of issues, he lists six instances where he argues he was denied due process of law. Each is not expounded upon with a correlating argument but most are included in the other arguments. The six arguments made concerning a denial of due process include: that the indictment failed to set out the judicial district where the crime occurred, excessive sentence because Gladney was influenced by an older co-defendant, failure of the trial judge to consider mitigating factors, such as his age, when sentencing Gladney, that the trial court incorrectly advised Gladney that he could not appeal his sentence, that the trial court incorrectly informed Gladney that he would not be eligible for early release or parole, and that there was an insufficient factual basis for the plea. Here, we address only the validity of the indictment, as the other concerns are addressed in the discussion below.

Validity of Indictment

¶ 5. Gladney argues that the indictment failed to set out the judicial district where the charge originated or where the crime was alleged to have occurred.

¶ 6. Gladney was indicted by a Choctaw County Circuit Court grand jury. The indictment charged in part that Glad-ney committed armed robbery “in Choctaw County Mississippi and within the jurisdiction of this Court” by robbing “Merchants and Farmers Bank located on Highway 15 North in Ackerman, Mississippi....” Gladney does not support his contention beyond the mere allegation of the stated issue. After carefully reviewing the indictment we can find no defect that would have deprived the Choctaw County Circuit Court of jurisdiction over Gladney’s case. Though we have found no defects in the indictment, we note that a valid guilty plea waives all non-jurisdictional defects in an indictment. Roby v. State, 861 So.2d 368, 371(¶ 11) (Miss.Ct.App.2003) (citing Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990)); Richardson v. State, 769 So.2d 230, 233(5) (Miss.Ct.App.2000) (the only deficiency that survives waiver by a guilty plea is not including the essential elements of the crime or lack of jurisdiction).

2. Validity of Plea

¶ 7. Gladney argues that his plea is invalid because he was coerced and misinformed that if he did not enter a guilty plea that a jury would convict him, resulting in life imprisonment. Gladney supports his argument with two affidavits, one from his aunt and the other from his mother. Gladney’s mother and aunt attest that Gladney’s attorney informed him that if he did not enter a guilty plea he would go to trial and receive a sentence of life in prison. The affiants state that Gladney was reluctant to enter a guilty plea but did so at the beckoning of his family. There is also a statement about Gladney being told that the trial judge was in a hurry so Gladney would need to decide quickly whether he wanted to enter his guilty plea. We also address Gladney’s due process arguments that the trial court incorrectly advised him that he could not appeal to the supreme court, incorrectly informed him that he would not be eligible for early release or parole, and that there was an insufficient factual basis for the plea.

¶ 8. In order for a trial court to accept a plea of guilty it must determine that there is a factual basis for the plea and that the defendant is entering the plea voluntarily and intelligently. Bennett v. State, 933 So.2d 930, 940(¶ 24) (Miss.2006) (citing URCCC 3.03(2)). A guilty plea is valid where it is entered into “voluntarily, knowingly, and intelligently, ‘with sufficient awareness of the relevant circumstances and likely consequences.’ ” Bradshaw v. Stumpf, 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). By entering a guilty plea, Gladney confessed to the actions as charged in the indictment and stipulated that the prosecution did not need to advance evidence of guilt. Florida v. Nixon, 543 U.S. 175, 187-88, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (quoting Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)).

¶ 9. Prior to accepting Gladney’s plea, the trial court examined Gladney. Glad-ney communicated to the trial judge that he had read and signed his petition to enter a plea of guilty, and that the statements in the petition were true. Gladney did not include that petition in the record. The trial judge then properly informed Gladney of the constitutional rights that he would waive by entering a guilty plea. The trial judge thoroughly informed him about his right to a jury trial and the presumption of his innocence. The trial judge informed Gladney that, if convicted, the minimum sentence would be three years’ imprisonment and that a jury could fix his sentence at life imprisonment. Gladney was also informed that he would have a right to appeal a conviction by a jury, but that such rights would be waived by entering a plea of guilty. Gladney acknowledged that he understood all of this information and the rights he would waive. The trial judge then heard from the State concerning the factual basis for the crime. The State communicated that it was prepared to prove the following:

on or about the 5th day of December, 2002, in Choctaw County, Mississippi, and within the jurisdiction of this Court, did willfully, unlawfully, and feloniously take against the will of and from the presence of Janet Tanksley and/or Versa Fair certain personal property, to-wit: approximately $16,567 ... the property of Merchants & Farmers Bank located on Highway 15 North in Ackerman, Mississippi, by putting the said Janey Tanksley and Versa Fair in fear of immediate injury to their person by the exhibition of a deadly weapon, a shotgun. ...

The following exchange then took place between the trial judge and Gladney:

BY THE COURT: You have heard what the State intends to prove in the event this case would go to trial. Did you do that? What he just said you did?
BY THE DEFENDANT: Yes, sir.
BY THE COURT: Are you pleading guilty because you are, in fact, guilty of this charge?
BY THE DEFENDANT: Yes, sir.
BY THE COURT: You expect the State to make a recommendation in this matter. Do you understand I don’t have to accept that and may instead impose any sentence the law allows for this? In other words, they are going to make some kind of plea bargain recommendation. Do you understand I don’t have to do, that I could do anything that the law allows?
BY THE DEFENDANT: Yes, sir.
BY THE COURT: Okay. If I sentence you to a term of incarceration because of the nature of the charge, you would not be subject to any early release, probation or parole. Do you understand that?
BY THE DEFENDANT: Yes, sir.

Factual Basis

¶ 10. Gladney relies on caselaw in arguing that the most serious crime for which he could have been convicted was accessory after the fact of armed robbery. Miss.Code Ann. § 97-1-5 (Rev.2000); Harrell v. State, 583 So.2d 963 (Miss.1991). In Harrell, the Mississippi Supreme Court upheld a conviction for the crime of accessory after the fact of robbery where the State had produced legally sufficient evidence to convict Harrell of that charge. Id. at 965. Evidence advanced by the State included that Harrell assisted two “active” robbers of a bank in preparing for the robbery and fleeing after the robbery was accomplished. Id. at 964. The opinion states nothing about Harrell being charged with the crime of armed robbery.

¶ 11. An adequate factual basis for a guilty plea “may be established by the admission of the defendant, but the admission must contain factual statements constituting a crime or be accompanied by independent evidence of guilt.” Hannah v. State, 943 So.2d 20, 27(¶ 16) (Miss.2006) (citing Reynolds v. State, 521 So.2d 914, 917 (Miss.1988)). A factual basis cannot be implied from the fact that a guilty plea was entered by a defendant. Lott v. State, 597 So.2d 627, 628 (Miss.1992) (citation omitted). What is required is “an eviden-tiary foundation in the record which is ‘sufficiently specific to allow the court to determine that the defendant’s conduct was within the ambit of that defined as criminal.’ ” Id. (quoting United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir.1984)).

¶ 12. The essential elements of armed robbery include: “(1) a felonious taking or attempt to take, (2) from the person or from the presence, (3) the personal property of another, (4) against his will, (5) by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon.” Bush v. State, 895 So.2d 836, 843(¶ 15) (Miss.2005) (citing Miss. Code Ann. § 97-3-79 (Rev.2006)). Glad-ney’s admission to accomplishing what the State intended to prove at trial was a sufficient factual basis for the trial judge to accept Gladney’s guilty plea for the crime of armed robbery.

Right to Appeal

¶ 13. Gladney argues that the trial judge misinformed him about his right to appeal his sentence. The specific comment made by the trial judge was that Gladney would have a right to appeal his conviction in the event he was convicted by a jury. The trial judge stated that such rights would be waived if Gladney entered a guilty plea. Both of these statements are correct statements of the law. The trial judge never stated that Gladney would be prohibited from appealing his sentence.

¶ 14. Convictions as a result of a guilty plea are statutorily prohibited from being directly appealed to an appellate court. Miss.Code Ann. § 99-35-101 (Rev. 2000). The proper method of seeking relief is through the Mississippi Uniform Post-Conviction Collateral Relief Act. Miss.Code Ann. § 99-39-1 to -29; Berry v. State, 722 So.2d 706, 707(¶ 5) (Miss.1998). Notwithstanding this jurisdictional bar, certain issues may properly be brought before an appellate court on direct appeal from a conviction resulting from a guilty plea. Id. at 707(¶ 5); see Trotter v. State, 554 So.2d 313 (Miss.1989) (appellate jurisdiction valid in matters involving a direct appeal from a sentence). The trial court did not misinform Gladney concerning his right to appeal his conviction.

Parole Eligibility

¶ 15. Gladney argues that he was denied due process of law when the trial judge told him that he would not be subject to any early release, probation or parole because of the nature of the charge. Gladney relies on easelaw to conclude that he was not prohibited from parole eligibility due to his conviction for armed robbery. Wilson v. Puckett, 721 So.2d 1110 (Miss.1998). In Wilson, the Mississippi Supreme Court affirmed the denial of post-conviction relief and held that inmates “shall not be eligible for an earned time allowance if the inmate has not served the mandatory time required for parole eligibility for conviction of robbery or attempted robbery with a deadly weapon.” Id. at 1112(¶ 7) (citing Miss.Code Ann. § 47-5-139(1)(e)). Gladney can find no support in Wilson due to his ineligibility for parole.

¶ 16. This Court has previously recognized that “Mississippi Code Annotated section 47-7-3(l)(d)(n) (Supp.2003) pertains to convictions for robbery .'.. through the display of a deadly firearm. ...” Thomas v. State, 881 So.2d 912, 916(¶ 11) (Miss.Ct.App.2004). We also recognized that this statute “indeed forecloses armed robbers convicted after October 1, 1994, from parole eligibility.” Id.; see also Garner v. State, 928 So.2d 911, 914(¶ 10) (Miss.Ct.App.2006) (parole ineligibility under Section 47 — 7—3 (1) (d) (ii) (Supp.2006) applied to guilty plea of armed robbery entered in 2001). Failure to inform a criminal defendant entering a guilty plea of parole ineligibility has been held to be reversible error. See Garner v. State, 944 So.2d 934, 937(¶ 6) (Miss.Ct.App.2006) (noting reversal for evidentiary hearing where the trial court had incorrectly advised a defendant that he would be eligible for parole after serving the first ten years of his sentence, when the entire sentence was without parole eligibility pursuant to Section 47 — 7—3(l)(d)(ii).

¶ 17. Gladney entered his guilty plea in February 2003, well after the date when Section 47-7-3(l)(d)(ii) became applicable to persons convicted for armed robbery. The trial judge properly informed Gladney about his ineligibility for parole or early release.

Mistaken Advice from Counsel

¶ 18. Gladney argues that he was misinformed by his attorney about what sentence he would receive if he went to trial. The mistaken advice Gladney claims to have received is that his attorney said he would get life in prison if he opted to proceed with a jury trial.

¶ 19. By Gladney entering his guilty plea, he reaped the benefits of having certain charges retired and escaped the possibility of receiving a sentence of life imprisonment. He confessed in open court that he robbed a bank with a shotgun and that this was the reason he was entering his guilty plea. The affidavits he supplies support only that he was initially reluctant to enter a guilty plea and that his attorney informed him that he would be sentenced to life imprisonment if he proceeded to trial. Life imprisonment was certainly a likely possibility had Gladney been convicted by a jury.

¶ 20. The trial judge ensured that Glad-ney was properly informed about his option to seek a jury trial. Gladney was also informed that, if convicted, his sentence could be anything from three years imprisonment to life imprisonment if so feed by a jury. The trial judge accepted Gladney’s plea of guilty and found that Gladney’s plea was freely and voluntarily given.

¶ 21. The record reflects that the exchange between Gladney and the trial judge corrected any misinformation Glad-ney had previously received. On the record questioning and explanation by the trial judge concerning the defendant’s rights and the consequences of a plea rendered a plea voluntary despite advice by an attorney that was given to the defendant. Richardson v. State, 769 So.2d 230, 234(6) (Miss.Ct.App.2000) (citing Roland v. State, 666 So.2d 747, 750 (Miss.1995); Smith v. State, 636 So.2d 1220, 1225 (Miss.1994)). The decision of the trial court that Gladney entered his plea knowingly and voluntarily was not clearly erroneous. Gladney’s guilty plea meets the constitutional requisites of validity.

3. Effectiveness of Counsel

¶ 22. Gladney argues that his attorney never attempted to interview witnesses and coerced him into entering a guilty plea by stating he would receive life imprisonment if he went to trial. Glad-ney’s argument concerning misinformation by his attorney has previously been addressed. Gladney does not include the identity of any potential witnesses. The only details about which Gladney argues witnesses could have testified include that Gladney did not fire the weapon during the robbery and that Gladney was not “fully involved” in the crime.

¶ 23. We review Gladney’s argument under a two-part inquiry of whether counsel’s performance was deficient, and whether that deficiency resulted in prejudice to Gladney. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This test applies equally to guilty pleas and jury trials. Hannah, 943 So.2d at 24(¶ 6) (citation omitted). Our review is mindful that we must make every effort “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Branch v. State, 882 So.2d 36, 52(¶ 27) (Miss.2004). The services of Glad-ney’s attorney are presumed competent. Id. Gladney has the burden of proving that his attorney’s performance was deficient and prejudicial. Id. (citing Hansen v. State, 649 So.2d 1256, 1258 (Miss.1994)). We consider the “totality of the circumstances” in deciding if counsel’s actions were deficient. Swington v. State, 742 So.2d 1106, 1114(¶ 22) (Miss.1999) (citation omitted).

¶ 24. We do not find that Gladney met his burden on the first prong, that counsel was deficient. Even had Gladney met his burden on the first prong, he has wholly failed to meet his burden on the second prong of Strickland. The second prong of Strickland requires that Gladney show that there “is reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Hannah, 943 So.2d at 24(¶ 6) (Miss.2006) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). This requires Glad-ney to show that there is a reasonable probability that, but for his attorney’s error, he would not have entered, a guilty plea, would have insisted on going to trial, and that the outcome of the trial would have been different. Hannah, 943 So.2d at 24(¶ 7). The focus of our review is “whether the evidence and testimony, if properly investigated and presented, would have changed the outcome had the parties gone forward.” Id. at 25(¶ 9). No argument or evidence has been presented to demonstrate that the integrity of the plea hearing proceeding has been compromised or that would shake our confidence in the outcome of that proceeding.

Jh Legality of Sentence

¶ 25. Gladney argues that his sentence is excessive. He repeats his argument that the greatest crime for which he can be guilty is accessory after the fact to armed robbery. We have already found that argument to be without merit. Glad-ney also argues that the trial judge failed to take into account mitigating factors that Gladney was influenced by the older co-defendant, Gladney’s young age, lack of criminal background, family hardship, lack of victim’s desire that he receive this harsh of a sentence, and Gladney’s admission to the offense which saved the State taxpayers additional time and expenses. However, he fails to provide any evidence to support the validity of these claims. The holdings in Harrell and Wilson, upon which Gladney supports his argument, have already been discussed above, and do not support Gladney’s argument..

¶ 26. The focus of Gladney’s argument seems to be that the trial judge was obligated to consider Gladney’s status as a minor and other alleged mitigating factors. We note that the circuit court had statutory jurisdiction over Gladney’s case because the crime involved a firearm and Gladney was over the age of fifteen. Miss.Code Ann. § 43-21-159(7) (Rev.2000). Due to the nature of the offense, upon Gladney’s conviction by entering his plea of guilty, the circuit court properly sentenced Gladney as if he were an adult. Miss.Code Ann. § 43-21-159(4) (Rev.2000); Strahan v. State, 729 So.2d 800, 809(¶ 39) (Miss.1998). The trial judge was under no obligation to consider Gladney’s age or other possibly mitigating factors.

¶ 27. Gladney was sentenced to a thirty year term of imprisonment in accordance with what the State had recommended, and what Gladney expected the State to recommend. Only a jury could fix Gladney’s sentence to a term of life imprisonment. The trial judge had statutory discretion to sentence Gladney “to a definite term reasonably expected to be less than life.” Cox v. State, 793 So.2d 591, 599(¶ 36) (Miss.2001) (quoting Stewart v. State, 372 So.2d 257, 258-59 (Miss.1979)). In Cox, the supreme court affirmed a sentence of thirty years imprisonment for armed robbery. Id. There, the supreme court noted that absent from the appellant’s contention was evidence that the thirty year sentence was the equivalent of a life sentence. Id. at 599(¶ 36). It is necessary for Gladney to make some showing that his sentence exceeds the limits of Section 97-3-79. Sentencing is within the complete discretion of the trial court and will not be reviewed for error where it is within the statutorily prescribed limits. Isom v. State, 928 So.2d 840, 850(¶ 41) (Miss.2006); Cox, 793 So.2d at 599(¶ 38).

¶ 28. The record reflects that Gladney was well aware of the sentence the trial court would impose upon him as a result of his guilty plea. The record also reflects that the trial judge was aware that Glad-ney was seventeen years of age at the time of his conviction and sentence. Absent some further misconduct, Gladney would have completed his term of imprisonment at the age of forty-seven. The sentence Gladney received does not exceed the statutory maximum sentence allowed and is therefore legal.

5. Cumulative Error

¶29. Gladney argues that even if the individual claims do not constitute error, their cumulative effect deprived him the right to constitutionally fair proceedings. Our analysis of a claim of cumulative error involves cases where we find “harmless error or any error which is not specifically found to be reversible in and of itself....” Powers v. State, 945 So.2d 386(¶ 26) (Miss.2006) (quoting Byrom v. State, 863 So.2d 836, 847 (Miss.2003)). We may also determine on a case by case basis “whether such error or errors, although not reversible when standing alone, may when considered cumulatively require reversal because of the resulting cumulative effect.” Id.

¶ 30. The record and arguments before us demonstrate that Gladney has not been denied any rights or suffered from an unfair conviction or sentence. His arguments are without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.


author: KING, C.J.,

text:
    Lajuane PORTER, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01795-COA.
    Court of Appeals of Mississippi.
    May 8, 2007.
    Rehearing Denied Sept. 4, 2007.

      Lajuane Porter, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. Lajuane Porter appeals the Marshall County Circuit Court’s denial of his petition for post-conviction relief. Porter’s issue on appeal is whether the trial court erred in denying his post conviction ineffective assistance of counsel claim without granting an evidentiary hearing. While finding the trial court followed the incorrect procedure in denying Porter’s claim without an evidentiary hearing, we find this error to be harmless. We affirm the trial court’s decision.

FACTS

¶ 2. On August 21, 2002, Lajuane Porter was convicted of aggravated assault by a jury in Marshall County, Mississippi. He was sentenced to twenty years in the custody of the Mississippi Department of Corrections. Porter filed a direct appeal and on January 6, 2004, this Court affirmed his conviction. See Porter v. State, 869 So.2d 414 (Miss.Ct.App.2004). Porter sought relief through the supreme court by submitting an Application for Leave to File Motion for Post Conviction Collateral Relief. The court granted Porter leave to file his post-conviction relief motion on the sole issue of ineffective assistance of counsel but denied his claim of an excessive sentence, finding this issue to be without merit. Porter subsequently filed his post-conviction relief motion with the circuit court. On August 5, 2005, the trial court denied the petition without a hearing. Porter timely appeals that decision.

STANDARD OF REVIEW

¶ 3. This Court reviews denials of post-conviction relief motions under a clearly erroneous standard. Mosley v. State, 941 So.2d 877, 878(¶ 5) (Miss.Ct.App.2006). The trial court’s factual findings will not be disturbed unless they are proven to be clearly erroneous. Rankins v. State, 839 So.2d 581, 582(¶ 3) (Miss.Ct.App.2003). However, we examine questions of law de novo. Graves v. State, 918 So.2d 791, 792(¶ 3) (Miss.Ct.App.2005).

ANALYSIS

I. Whether the trial court erred in denying Porter’s post conviction ineffective assistance of counsel motion without granting an evidentiary hearing.

¶ 4. Porter challenges the trial court’s summary denial of his post-conviction relief motion. He asserts that the supreme court’s decision, granting him leave to file his post-conviction motion in the trial court, automatically entitled him to an evidentiary hearing. Although the trial court followed the incorrect procedure in denying Porter’s motion without granting an evidentiary hearing, we find the error to be harmless.

¶ 5. On January 6, 2005, this Court affirmed Porter’s conviction of aggravated assault. Porter, pursuant to Mississippi Code Annotated Section 99-39-7 (Supp.2006), filed an application with the supreme court for leave to seek postconviction relief. The supreme court reviews applications for leave pursuant to Mississippi Code Annotated Section 99-39-27(Supp.2006). Under this section, the court may exercise two options when reviewing the petitioner’s application. Mitchell v. State, 809 So.2d 672, 673(¶ 4) (Miss.2002). First, the court may rule on the motion, granting or denying the requested relief, if it plainly appears “from the face of the application, motion, exhibits and the prior record” that the claim survives a procedural bar under Section 99-39-21 and there is a substantial showing that the petitioner has been denied a state or federal right. Id. Second, the court may grant the petitioner’s application to proceed in the trial court for “further proceedings under Sections 99-39-13 through 99-39-23.” Miss.Code Ann. § 99-39-27(7)(b).

¶ 6. In this case, the supreme court did not rule on the merits of Porter’s issue of ineffective assistance of counsel, but granted Porter permission to file his motion in the trial court for further proceedings under Sections 99-39-13 (Supp.2006) through 99-39-23(Supp.2006). The court rejected Porter’s claim of excessive sentence and stated that the claim would not be able to survive because it lacked merit.

¶ 7. Porter argues that once the supreme court granted his request for leave to proceed in the trial court under Section 99 — 39—27(7)(b), he was automatically enti-tied to an evidentiary hearing on the merits of his ineffective assistance of counsel, due to the supreme court’s holding in Hymes, 703 So.2d at 260-61 (¶¶ 10-16).

¶ 8. In Hymes, the court adopted the petitioner’s argument that the supreme court’s grant of an application for leave to proceed in the trial court, under Section 99-39-27(b), creates a prima facie case of the petitioner’s claim. Id. at 261(¶ 14).

¶ 9. Section 99-39-27(7)(b), however, does not require the court to conduct an automatic evidentiary hearing on the merits of the claim. In fact, this Court has consistently held that there is no automatic right to an evidentiary hearing under the Mississippi Uniform Post-Conviction Collateral Relief Act. Hardiman v. State, 904 So.2d 1225, 1228(¶ 7) (Miss.Ct.App.2005). Once a prima facie case is established, the trial court may still proceed under Section 99-39-19 (Supp.2006) and summarily deny a petitioner’s motion if, after the answer has been filed and discovery completed, it appears that no evidentiary hearing is warranted. See Miss.Code Ann. § 99-39-19.

¶ 10. Porter filed his motion in the circuit court, after the supreme court’s grant of leave to proceed. Because the supreme court’s permission to proceed with this matter is a finding of a prima facie case, the trial court should have requested the State to respond, and file its answer and raise all affirmative defenses, pursuant to Section 99-39-13. After doing so, the trial court should have examined the motion under Section 99-39-19, along with the filed answer and any completed discovery, to determine if an evidentiary hearing should be required. The trial court did not do this, but choose rather to summarily deny Porter’s motion under Section 99-39-11 (Supp.2006).

¶ 11. Section 99-39-11 reads in part, as follows:

(2) If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.
(4)This section shall not be applicable where an application for leave to proceed is granted by the Supreme Court under Section 99-39-27.

¶ 12. The trial court erred in using Section 99-39-11 to summarily deny Porter’s motion because the section is not applicable to this proceeding. Mitchell v. State, 809 So.2d 672, 674(¶ 7) (Miss.2002). A court may not use Section 99-39-11 to summarily deny a motion if the supreme court has granted permission to file the motion in the trial courts, pursuant to Section 99-39-27. Hymes, 703 So.2d at 260(¶ 8).

¶ 13. In the absence of a response by the State, or the results of any discovery conducted by Porter, the only evidence in the record supporting his claim is the motion which Porter filed for relief with the supreme court. This Court is therefore limited to this evidence in considering the merits of Porter’s ineffective assistance of counsel claim and in determining whether Porter should have been granted an evi-dentiary hearing.

II. Ineffective Assistance of Counsel

¶ 14. In order to obtain an eviden-tiary hearing on the basis of ineffective assistance of counsel, the petitioner must state a prima facie claim in his petition. Robertson v. State, 669 So.2d 11, 13 (Miss.1996). The petitioner’s motion must allege with specificity and detail that (1) counsel’s performance was defective and (2) the petitioner’s defense was prejudiced by such deficient performance. Strickland v. Washington, 466 U.S. 668, 687-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); McMillian v. State, 774 So.2d 454, 457(¶ 8) (Miss.Ct.App.2000).

¶ 15. There is a rebuttable presumption that counsel’s representation is competent and that the acts in question fall within the “wide range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052, Johns v. State, 926 So.2d 188, 194(¶ 30) (Miss.2006). Petitioners are charged with showing that, but for their counsel’s deficient performance, the trial’s outcome would have been different. Strickland, 466 U.S. at 691-96, 104 S.Ct. 2052. Petitioners carry the burden of proof and this Court will weigh the counsel’s deficiencies under a totality of the circumstances standard. Epps v. State, 926 So.2d 242, 244(¶ 7) (Miss.Ct.App.2005).

a. Failure to conduct an adequate pretrial investigation

¶ 16. Porter alleges his attorney failed to properly a perform pre-trial investigation to determine which witnesses would aid in Porter’s defense. He claims there were witnesses that could have proved his innocence but they were never called. He indicates that if his attorney had investigated the facts of the case, his attorney could have developed a defense to refute the factual scenario presented by the State. He asserts that his attorney never talked with the officers who were responsible for collecting evidence. Finally, Porter claims his attorney failed to present an adequate defense in that he did not investigate the background of the victim, Kirby Cummings, in order to establish that the Cummings was prone to violence.

¶ 17. The Court finds that Porter is unable to satisfy the two-prong test required by Strickland. Porter does not provide any information regarding the witnesses he claims could have aided in his defense, but were not called by counsel. In fact, the record reveals that the defense attorney did attempt to interview a possible rebuttal witness. Out of the presence of the jury, the defense attorney made the following statements.

Defense Attorney: I may have one more witness that I’m trying to get ahold of on something I found out maybe as a rebuttal witness, and I would request that we could take an early lunch—
Court: Okay.
Defense Attorney: — -and maybe work on our jury instructions or whatever. We could make use of the time, but it would help me if I could have that twenty-four minutes to try to do that.
Court: All right.
State: We have — we don’t know — we don’t have the name of this additional witness. If you’ll give it to us, we’ll see if we can help you round them up.
Defense Attorney: Uh-huh. I got people working on it.
State: Who is it? I’d like to know. It hadn’t been discovered so I’d like to know.
Defense Attorney: Well, I want to talk to him before I — that’s right. I mean just like the rebuttal witness you told me this morning you would call, I want to talk to him on something that they found out.
Court: All right.
(After court recessed for lunch and out of presence of jury)
Defense Attorney: What I wanted to do, I do have them looking for, you know, this person. I’d like to interview them briefly. Otherwise, I’m going to rest. I don’t have any — anything else, and I’ve given my [jury] instructions to [the State].

¶ 18. Considering the attorney’s overall performance, the decisions that fall within the realm of trial strategy “cannot give rise to an ineffective assistance of counsel claim.” Jackson v. State, 815 So.2d 1196, 1200(¶ 8) (Miss.2002). These decisions include the counsel’s choice of “whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections” during trial. Cole v. State, 666 So.2d 767, 777 (Miss.1995). Attorneys’ decisions to not call certain witnesses may be excused based on a belief that the information would not be helpful and the belief must be based on “a genuine effort to locate or evaluate the witness, and not on a mistaken legal notion or plain inaction.” Davis v. State, 743 So.2d 326, 339(¶ 22) (Miss.1999).

¶ 19. Porter’s attorney made efforts to contact the possible witness but was unsuccessful. There is no information in the record regarding the identification of this possible witness or what would be the nature of the witness’s testimony. Thus, Porter fails to demonstrate how this possible witness would have aided his defense. Even if this Court finds Porter has successfully fulfilled the first prong of Strickland, he fails to prove the second prong— that his defense was prejudiced by his attorney’s performance.

¶ 20. Both Porter and his wife testified in his defense. Porter testified that, although he knew Cummings through school, Cummings and he had never been friends. He said the victim had a history of “picking” on him and had made threats to him on several occasions. Porter’s wife, Teresa Porter, also testified that her husband informed her of the alleged problems he had with Cummings. Kendrick Rankin, the State’s witness, also testified he knew that Cummings and Porter did not like each other. However, during cross-examination, Rankin revealed that he had no personal knowledge that Cummings disliked Porter.

¶ 21. Porter does not suggest any information that would have been discovered through examination of the potential witness that was not previously addressed in the trial. Porter’s defense attorney took advantage of the opportunity to cross-examine all available witnesses in the trial. We do not find Porter has demonstrated that his defense was prejudiced by his attorney’s alleged deficiencies.

¶ 22. Porter also claims that his attorney failed to investigate the facts of the case, talk to the police, or establish that Cummings had a violent nature. It is noted that effective assistance of counsel requires adequate investigation of the case. Hodges v. State, 912 So.2d 730, 762(¶ 62) (Miss.2005). However, Porter once again fails to assert how his defense was prejudiced by these alleged deficiencies. Porter shot Cummings in the presence of bystanders and Cummings was found to be unarmed. The State presented the uncontradicted testimonies of the eyewitnesses to the shooting. Porter was allowed to testify about Cummings’ violent nature. The police officer who collected evidence, Mike Novay, testified during the trial and Porter was allowed to cross-examine him on the stand. Porter fails to prove his counsel was ineffective as to these issues.

b. Failure to provide sufficient defense by “opening door” to introduction of prior criminal act and failure to make contemporaneous objection to the introduction of that evidence

¶ 23. Porter argues that his counsel failed to provide a sufficient defense by allowing the State to bring his prior misdemeanor simple assault charge before the jury. He also argues that his attorney should have made a contemporaneous objection to the evidence’s introduction in order to preserve the issue on appeal. Porter satisfies the first prong of Strickland. This Court has previously concluded that during the cross-examination of Officer Novay, the defense attorney “opened the door” for the State’s questions regarding the prior criminal charge. Porter, 869 So.2d at 418(¶ 13). We further noted that the defense attorney’s failure to make a contemporaneous objection to the questions regarding the misdemeanor assault resulted in a waiver of the issue of appeal. Id. at 419(¶ 13).

¶ 24. Although Porter is entitled to effective assistance of counsel, he is not entitled to an errorless counsel. Hall v. State, 735 So.2d 1124, 1127(¶ 6) (Miss.Ct.App.1999). Even though Porter may prove his counsel’s performance was deficient, he must show there is a reasonable probability that, but for his attorney’s error, the trial would have resulted in a different outcome. Id. at (¶ 7). The State provided the testimonies of the victim — Kirby Cummings, two eyewitnesses — Kendrick Rankin and Eric Webster, and the investigating officer — Mike Novay. The testimonies reveal Porter shot an unarmed victim several times and left the scene of the crime. None of the witnesses was able to testify from personal knowledge that Cummings had threatened Porter. Witnesses did, however, testify that Porter had previously expressed dislike for Cummings. Porter fails to show that, had the State not introduced his assault charge and his counsel failed to make a contemporaneous objection, the results would have been different. Porter has not proved ineffective assistance of counsel as relating to the above assertions.

¶ 25. We conclude that while the trial court erred in failing to follow the proper procedures to determine whether the need for an evidentiary hearing existed, this error must be considered harmless in light of the specific facts of this case. Porter’s ineffective assistance of counsel claim did not merit an evidentiary hearing. This Court affirms the denial of post-conviction relief.

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

LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.

      . These enumerated sections include, in pertinent part, § 99-39-13 which governs the State's filing of an answer with the trial court and requires that the State respond to all allegations and raise all affirmative defenses as deemed necessary; § 99-39-13 which allows parties to conduct further discovery; § 99-39-17 which governs the expansion of the record before the court considers summary judgment; and § 99-39-19 which provides for an evidentiary hearing or summary judgment after the answers have been filed and discovery is completed. Hymes v. State, 703 So.2d 258, 260(¶ 6) (Miss.1997).


author: IRVING, J.,

text:
    James Franklin PUTNAM, Appellant, v. Christopher B. EPPS, Appellee.
    No. 2006-CP-00595-COA.
    Court of Appeals of Mississippi.
    June 19, 2007.

      James Franklin Putnam, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   MODIFIED OPINION ON MOTION FOR REHEARING

IRVING, J.,

for the Court.

¶ 1. James Franklin Putnam is currently serving a federal sentence in Kentucky. Putnam also has a Mississippi sentence, resulting from a guilty plea, that is running concurrently with the federal sentence. Therefore, Mississippi has a de-tainer on Putnam. On September 21, 2005, Putnam filed a “Petition For Writ of Habeas Corpus,” challenging the Mississippi Department of Corrections’ (MDOC) computation of his time to serve. The Harrison County Circuit Court denied relief after finding that it lacked jurisdiction because Putnam is in federal custody. Aggrieved, Putnam appeals and alleges that the trial court erred in finding that it lacked jurisdiction.

¶ 2. Because Putnam has not exhausted his administrative remedies, we reverse and remand.

FACTS

¶ 3. Sometime in 1997 Putnam pleaded guilty to one count of hostage taking at gunpoint and was sentenced to 280 months in federal custody. In December of 2005, Putnam pled guilty to the charges underlying this appeal and was sentenced to twenty years, said sentence to run concurrently with his federal sentence. Putnam has already filed a motion for post-conviction relief challenging the validity of his guilty plea, the denial of which this Court has affirmed. See Putnam v. State, 877 So.2d 468 (Miss.Ct.App.2003). By contrast, the petition before us challenges the eomputation of Putnam’s time to serve, rather than the validity of his guilty plea.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 4. At the outset, we note that the trial court’s order stated that “[u]pon release from federal custody [Putnam] is to begin serving his [Mississippi sentence].” This statement is inaccurate, as Putnam’s Mississippi sentence is running concurrently with his federal sentence. Therefore, Putnam has already begun serving his Mississippi sentence. Upon release from federal custody, Putnam will serve any time remaining on his Mississippi conviction.

¶ 5. The Mississippi Uniform Post-Conviction Collateral Relief Act “repealed post-conviction use of habeas corpus and implemented a motion framework specifically for post-conviction collateral review of challenges to convictions or sentences, as opposed to pre-conviction challenges.” Edmond v. Miss. Dep’t of Corr., 783 So.2d 675, 677(¶ 8) (Miss.2001) (citations omitted). A petition for habeas corpus is still a viable option in limited circumstances, such as a challenge of the denial of bail pending an appeal, but “purely collateral post-conviction remedies attacking a judgment of conviction or sentence should be sought under authority of the Post-Conviction Collateral Relief Act since that Act, in the pure post-conviction collateral relief sense, is arguably ‘post-conviction habeas corpus renamed.’ ” Walker v. State, 555 So.2d 738, 740-41 (Miss.1990) (quoting James Bell, Habeas Corpus: The “Great Writ” in Mississippi State Courts, 58 Miss. L.J. 25, 28 (1988)). Therefore, we treat Putnam’s writ for habeas corpus as a motion for post-conviction relief.

¶ 6. We find that the trial court erred in finding that it lacks jurisdiction. Mississippi Code Annotated section 99-39-5(1) (Supp.2006) states that “[a]ny prisoner in custody under sentence of a court of record of the State of Mississippi” can bring post-conviction proceedings. The Mississippi Supreme Court has clarified that a prisoner held in another state who, “but for [that] incarceration ... would be subject to imprisonment here,” is “in custody” for purposes of section 99-39-5. Unruh v. Puckett, 716 So.2d 636, 639(¶ 11) (Miss.1998). As in Unruh, “[t]he State of Mississippi has a ‘hold’ on [Putnam] and he will be released to Mississippi immediately following his present incarceration.” Id. Therefore, the court has jurisdiction to hear Putnam’s complaint.

¶ 7. Regardless of the fact that the trial court has jurisdiction, Putnam is procedurally barred from proceeding with his post-conviction relief claim until he exhausts the administrative remedies available through the MDOC. Miss.Code Ann. § 47-5-803(2) (Rev.2004). According to that section, the trial court should give Putnam no more than ninety days to exhaust his remedies. Id.

¶ 8. Therefore, this case is reversed, and remanded to the trial court for a stay of proceedings for not more than ninety days to allow Putnam to exhaust his administrative remedies.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING POST-CONVICTION RELIEF IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. KING, C.J., NOT PARTICIPATING.

      . The previous opinion of the Court is withdrawn and this opinion is substituted. The motion for rehearing is denied.

      . See Putnam v. Hastings, 05-CV-115-DLB (E.D.Ky. May 24, 2005).

      . Putnam cites several issues, but we address only the issue of whether he has exhausted his administrative remedies, as this issue is dis-positive.