author: IRVING, J.,

text:
    Charles CALDWELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00040-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.

      Charles Caldwell, appellant, pro se.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Charles Caldwell appeals the judgment of the Monroe County Circuit Court dismissing his motion for post-conviction relief (PCR). He asserts (1) that his guilty plea was involuntarily made, (2) that he was denied due process of law, (3) that he was denied effective assistance of counsel, and (4) that the trial court erred in refusing to grant his motion for an evidentiary hearing.

¶ 2. We find no merit to the allegations of error; therefore, we affirm the trial court.

FACTS

¶ 3. Caldwell was indicted by a Monroe County grand jury for fondling and three counts of sexual battery of a five-year-old female. On November 12, 2003, Caldwell pleaded guilty to one count of sexual battery. He was sentenced to thirty-five years in the custody of the Mississippi Department of Corrections, with eighteen years suspended and five years of post-release supervision. The charge of fondling and two counts of sexual battery were passed to the files.

¶ 4. On February 23, 2005, Caldwell filed a PCR motion. Affidavits from his mother, father, an aunt, and brothers were attached to the motion.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Involuntary Guilty Plea

¶ 5. A criminal defendant’s guilty plea is binding only when it is entered voluntarily and intelligently. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992).

“It is essential that an accused have knowledge of the critical elements of the charge against him, that he fully understand the charge, how it involves him, the effects of a guilty plea to the charge, and what might happen to him in the sentencing phase as a result of having entered the plea of guilty.”

Reeder v. State, 783 So.2d 711, 717(¶ 20) (Miss.2001) (quoting Smith v. State, 636 So.2d 1220,1225 (Miss.1994)).

¶ 6. Caldwell contends that his guilty plea was involuntarily made because (1) he pleaded guilty after being persuaded by his attorney, (2) his attorney failed to properly investigate the facts surrounding the charges, and (3) his attorney assured him that he would get out of prison within three to four years. As shown by the following exchange, the record clearly belies allegations one and three:

[BY THE COURT]:
Q. Do you understand that by these questions the Court is attempting to determine if the pleas of guilty which you have offered to make will be made by you knowingly, freely, understandingly, and voluntarily?
A. Yes, sir.
Q. Are these pleas of guilty free and voluntary on your part?
A. Yes, sir.
Q. Has anyone threatened you in any way or promised you anything in order to get you to plead guilty to these charges?
A. No, sir.
Q. Do you understand that by pleading guilty to these charges you are giving up or waiving a great number of legal rights that you have as a defendant in a criminal proceeding?
A. Yes, sir.
Q. Do you understand the meaning of the word waive, W-A-I-V-E?
A. Yes, sir.
Q. Do you understand that by pleading guilty to these charges you are waiving your right to be tried before a jury on these charges, to participate in the selection of a jury for the trial of each of the cases? As it turns out, two trials would be required because there are two court files and each of them contain different allegations, different charges. So it would require two juries and two separate trials, and you’re entitled to that. You understand that?
A. Yes, sir.
Q. Do you understand that by pleading guilty to these charges you are waiving the requirement that the State of Mississippi prove each of these charges and each and every element of the crimes charged beyond a reasonable doubt?
A. Yes, sir.
Q. Do you understand that by pleading guilty to these charges you are waiving your right to remain silent?
A. Yes, sir.
Q. Do you understand that if you did go to trial before a jury on either or both of these cases and you exercised your right to remain silent, that is, you did not testify during the trial or trials, no inference or suggestion of your guilt could be drawn from the fact that you did not testify and that I would instruct the jury to that effect if you asked me to do so?
A. Yes, sir.

¶ 7. We also point out the following exchange made during the plea proceedings:

Q. Mr. Caldwell, do you understand the recommendation made by the State?
A. Yes, sir.
Q. Is that the recommendation that you understood the State would make?
A. Yes, sir.
Q. Do you understand that the recommendation is not binding on me, that I could impose the maximum penalty in each of these cases or slightly less than three life imprisonment sentences? Do you understand that?
A. Yes, sir.
Q. Has anyone put any pressure on you, forced you in any way, or told you that you had to plead guilty to these charges?
A. No, sir.

⅝ ⅜: ⅜ ⅝

Q. Mr. Caldwell, are you satisfied with the legal services and the advice given you by your attorney?
A. Yes, sir.
Q. Do you think that he has properly advised you before pleading guilty to these charges and represented your best interest in handling these cases?
A. Yes, sir.
Q. Do you have any questions about what is taking place here?
A. No, sir.
Q. Is there anything about these proceedings that you do not understand?
A. No, sir.

⅜ ⅜ ⅜ ⅜

BY THE COURT: The Court finds this defendant has knowingly, understandingly, freely, and voluntarily entered each of these pleas of guilty, that there is factual basis for those pleas. The pleas are accepted. The defendant is adjudged guilty on his pleas of guilty.
Before I impose sentence, Mr. Caldwell, do you have anything you would like to say?
CALDWELL: No, sir.

¶ 8. The plea transcript does not indicate that Caldwell was informed prior to his plea that he would have to serve his sentence day for day. However, during his sentencing hearing, the following colloquy transpired:

BY THE COURT: Mr. Caldwell, in the case of 02-258, Monroe County Circuit Court in count II of that cause, the Court is going to sentence you to a term of thirty-five years in the custody of the Mississippi Department of Corrections. Based upon the State’s recommendation, I am going to suspend eighteen of those years provided that you do not violate any laws of this state or [of] any other state or of the federal government and specifically conditioned upon you complying with all the terms and conditions of your post-release supervision. That’s going to give you seventeen years to serve. Because our statutes are written the way that they are, it ensures that you’re going to serve that period of time day for day. Mr. Williams, was that explained to him in the plea proceedings?
[ATTORNEY FOR THE DEFENDANT]: Yes, ma’am.

Had counsel’s representation to the court been inaccurate, it is inconceivable to us that Caldwell would not have corrected him. Therefore, we find that Caldwell was fully informed prior to entering his guilty plea that he would have to serve his sentence day for day, notwithstanding his belated allegation that his attorney informed him that he would get out of prison within three to four years. In addition, there is nothing in the record, except Caldwell’s allegations in his PCR motion and the statements of the family-member affiants in their affidavits, that supports Caldwell’s argument that his attorney told him that Caldwell would only serve three to four years.

¶ 9. Based on our review of the transcripts of the plea and sentencing hearings, we find that the trial judge thoroughly examined Caldwell and determined that Caldwell understood the consequences of his guilty plea and that he entered his plea knowingly, voluntarily, and intelligently.

¶ 10. As to Caldwell’s claim that he was pressured into pleading guilty because his attorney failed to investigate the facts surrounding the charges against him or accept the services of a private investigator, we are unable to discern any merit in this allegation. There is no dispute that Caldwell is the person who committed sexual battery upon the minor female, as evidenced by his guilty plea. Further, and most importantly, Caldwell does not inform us of the exculpatory evidence that a private investigator would have been able to uncover. Therefore, there is no merit to Caldwell’s assertion that his counsel’s failure to accept the services of a private investigator, assuming same was offered, somehow forced Caldwell to plead guilty.

2. Ineffective Assistance of Counsel

¶ 11. In order to be successful on an ineffective assistance of counsel claim, Caldwell is required to show not only that his attorney was deficient, but also that he was prejudiced by this deficiency. Strickland v. Washington, 466 U.S. 668, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden is upon Caldwell to show that his attorney’s errors were so serious that he was denied “‘counsel’ guaranteed [to him] by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. The Mississippi Supreme Court has stated that “[Unformed strategic decisions of counsel are given a heavy measure of deference and should not be second guessed.” Powers v. State, 883 So.2d 20, 32(¶ 43) (Miss.2003) (citing Lamb v. Johnson, 179 F.3d 352, 358 (5th Cir.1999)).

¶ 12. We have already discussed in the preceding issue Caldwell’s assertion that certain derelictions on the part of his trial counsel forced him to plead guilty involuntarily. We will not repeat that discussion here. We address only the additional allegation that counsel was ineffective for failing to present witnesses at Caldwell’s sentencing hearing.

¶ 13. Several of Caldwell’s family members presented affidavits in which they claimed that had they been allowed to testify, they would have expressed to the judge, among other things, some of Caldwell’s good character traits. In Wiggins v. Smith, 539 U.S. 510, 533, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), the United States Supreme Court stated:

[i]n finding that [Wiggins’ counsels’] investigation did not meet Strickland’s performance standards, we emphasize that Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing in every case. Both conclusions would interfere with the “constitutionally protected independence of counsel” at the heart Strickland.

¶ 14. We note at the outset that Caldwell had the opportunity on two separate occasions during the sentencing hearing to bring to the court’s attention that witnesses were present to testify on his behalf. The court inquired of Caldwell’s attorney if he or Caldwell desired to make a statement. The attorney and Caldwell each responded that he did not. The court also asked Caldwell if he had any questions that he wanted to ask and informed Caldwell that “now is the time to ask any questions that you might have.” Caldwell answered “no.” As indicated, the court clearly afforded Caldwell an opportunity to raise any questions or concerns that he may have had. It defies reason that Caldwell would decline to tell the court that his lawyer had refused to allow him to present witnesses to speak on his behalf in mitigation of his sentence. However, we also note that based on the submitted affidavits, even if the witnesses had been called to testify, they would not have offered any useful mitigating testimony.

¶ 15. As noted by the trial judge during the plea qualification hearing, Caldwell could have been sentenced to as much as “slightly less than three life sentences.” Caldwell’s sentence of thirty-five years with eighteen years to serve and five years of post-release supervision is considerably less than the maximum sentence that Caldwell could have received. Therefore, it is difficult for this Court to see how Caldwell can argue that he was denied effective assistance of counsel. We find no merit to this issue.

3. Evidentiary Hearing

¶ 16. “The trial court is simply not required to grant an evidentiary hearing on every petition it entertains.” Rowland v. Britt, 867 So.2d 260, 262(¶ 8) (Miss.Ct.App.2003). “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.” Miss.Code Ann. § 99-39-11(2) (Rev.2000). There is nothing in Caldwell’s motion which requires an evidentiary hearing. Therefore, the trial judge did not err in summarily denying Caldwell’s PCR motion.

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

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

      . Circuit Judge Thomas J. Gardner III took Caldwell’s guilty plea.

      . The sentencing hearing was before Circuit Judge Sharion R. Aycock.

      . Caldwell also asserts that counsel's failure in this regard denied him due process of law. Since we address the witness issue during our discussion of the ineffective assistance of counsel claim, we decline to address it as a separate issue.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Donnie Richard COOK, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02138-COA.
    Court of Appeals of Mississippi.
    March 13, 2007.

      Edmund J. Phillips, Jr., attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. On October 11, 2005, Donnie Richard Cook was convicted of willfully, unlawfully and feloniously having in his possession two or more precursor chemicals with the intent to manufacture methamphetamine, a controlled substance, in violation of Mississippi Code Annotated Section 41-29 — 313(l)(a)(I) (Rev.2005). Cook was subsequently sentenced as a habitual offender to a term of thirty years in the custody of the Mississippi Department of Corrections, without the benefit of parole, suspension or reduction of sentence. Cook now appeals and raises the following issues,

I. WHETHER THE TRIAL COURT ERRED IN PERMITTING THE STATE’S EXPERT TO TESTIFY THAT EPHEDRINE AND PSEU-DOEPHEDRINE ARE USED TO MANUFACTURE METHAMPHETAMINE.

II. WHETHER THE VERDICT WAS CONTRARY TO THE LAW AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

III. WHETHER THE COURT ERRED IN OVERRULING THE DEFENDANT’S OBJECTION TO LEADING.

IV. WHETHER THE COURT ERRED IN SUSTAINING THE STATE’S OBJECTION DURING COOK’S CROSS-EXAMINATION OF DEPUTY REN-FROE.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the night of December 15, 2004, Deputies Chris Renfroe, Randy Johnson and Marcus Lingle with the Scott County Sheriffs Office prepared to serve an arrest warrant on Jared Cook, the Defendant’s son, at the home of Bernie Cook, Jared Cook’s grandmother. Lingle and Johnson waited at the front of the house while Renfroe went around to the back of Bernie Cook’s home in an attempt to close off Jared Cook’s escape route in the event he tried to evade capture. Once positioned in the backyard, Renfroe testified he noticed smoke coming from an open window of the house. Approaching the window to investigate, he was initially taken aback by the smell emanating from the window, which he later identified as a typical smell surrounding a methamphetamine lab. After recovering, Renfroe looked through the window and saw Jared Cook, Shelia Matthews and Cook in the room. Renfroe testified that he saw all three individuals leave the room, but added that before Cook ran out he “picked up what [Renfroe] perceived to be a meth lab.” Renfroe described the “meth lab” in further detail, explaining that “it was a plastic container with a tube run[ning] out of it into a glass jar.”

¶ 3. After seeing the three individuals leave the room, Renfroe circled back around to the front of the house where he discovered that Jared Cook had already been arrested. Renfroe informed the other deputies of what he witnessed resulting in the arrest of Matthews and Cook. Following the trio’s arrest, the deputies searched the house. They found a coffee filter in the smoke filled room with an unknown substance on it that would later be identified by the State’s expert, Keith McMahon, as ephedrine pseudoephedrine, as well as other coffee filters with traces of methamphetamine and ephedrine pseu-doephedrine. The deputies then discovered the “meth lab” in the living room. McMahon testified that the plastic bottle contained traces of ephedrine pseu-doephedrine and that liquid from the glass jar was composed of ethyl ether, ethynes and hexanes.

¶4. Matthews, Jared Cook and Cook were indicted on August 1, 2005, for violation of section 41 — 29—313(l)(a)(i), and Matthews and Jared Cook would subsequently plead guilty. Cook’s trial was held on October 11, 2005. He was found to be guilty as charged, and was sentenced on October 13, 2005 as a habitual offender, in accordance with Mississippi Code Annotated Section 99-19-81 (Rev.2000), to a term of thirty years in the custody of the Mississippi Department of Corrections, without the benefit of parole, suspension or reduction of sentence. Following the lower court’s denial of Cook’s motion for a new trial, he perfected his appeal to this Court.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN PERMITTING THE STATE’S EXPERT TO TESTIFY THAT EPHEDRINE AND PSEU-DOEPHEDRINE ARE USED TO MANUFACTURE METHAMPHETAMINE.

¶ 5. Rule 702 of the Mississippi Rules of Evidence states, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, expertise, training, or education, may testify thereto in the form of an opinion or otherwise.” M.R.E. 702. Decisions of the trial court to admit or deny expert testimony are reviewed under the clearly erroneous standard. Winters v. State, 773 So.2d 973(¶ 5) (Miss.Ct.App.2000).

¶ 6. Cook argues that the trial court erred in allowing the State’s expert witness, McMahon, to testify as to what ephedrine and pseudoephedrine were used for in the realm of drug manufacturing. Specifically, Cook’s trial counsel, Jason Mangum, made objections during the following colloquies,

Q. Now can you tell us in the drug manufacturing area what is ephedrine and pseudoephedrine used for?
BY MR. MANGUM: Your Honor, I believe that he hasn’t been qualified as an expert in this area.
BY THE COURT: Well a person can be an expert in more than one area and I think the witness is qualified to give expert opinion regarding the question that’s been asked of him. Overruled.
Q. Can you tell us what the substance in there is and how much of it is there?
A. It was ephedrine pseudoephedrine in the amount of 0.14 grams.
Q. And that substance is used by — that part of the substance is used to manufacture what clandestine operation?
A. To make amphetamine.
BY MR. MANGUM: Your Honor, same objection.
BY THE COURT: Overruled.

¶ 7. In support of his argument, Cook cites Sample v. State, 643 So.2d 524 (Miss.1994) and Walker v. State, 740 So.2d 873 (Miss.1999). However, in both Sample and Walker the testimony of the witnesses in issue was so specialized as to bring it under the category of expert opinion but in neither case were the witnesses qualified as experts. Sample, 643 So.2d at 530; Walker, 740 So.2d at (¶ 34). In contrast, McMahon was offered and accepted, without objection, as an expert in drug analysis and identification. During the voir dire of McMahon, he listed his various qualifications, experience and education pertaining to drug analysis and identification. One such qualification was the successful completion of a training program offered by the Mississippi Crime Laboratory. McMahon stated that the “training included specific reading assignments, one-on-one discussions and the supervising of drugs. Topics covered included instrumentation operation and usage and the physical and chemical properties of various controlled substances.” McMahon’s testimony concerning the knowledge gained through this training.is exactly what was objected to at trial and what is being appealed in the case sub judice. In light of McMahon’s direct testimony on his training of the “chemical properties of various controlled substances,” it was not clearly erroneous for the trial court to allow an expert in the fields of drug analysis and identification to testify as to the chemical make up of methamphetamine. This issue is without merit.

II. WHETHER THE VERDICT WAS CONTRARY TO THE LAW AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 8. “When reviewing a challenge to the weight of the evidence, this Court must determine whether the trial judge abused his discretion in denying a new trial.” Taylor v. State, 672 So.2d 1246, 1256 (Miss.1996). In order for this Court to reverse a trial court’s denial of a motion for new trial, “the verdict must be ‘so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” Dilworth v. State, 909 So.2d 731(¶ 21) (Miss.2005)(quoting Bush v. State, 895 So.2d 836(¶ 18) (Miss.2005)). Additionally, “the evidence should be weighed in the fight most favorable to the verdict.” Dil-worth, 909 So.2d at (¶ 21).

¶ 9. Cook was convicted of possession of precursor chemicals with the intent to manufacture methamphetamine in violation of Mississippi Code Annotated section 41 — 29—313(l)(a)(i) (Rev.2005) which makes it unlawful to “purchase, possess, transfer, manufacture, attempt to manufacture or distribute any two (2) or more of the fisted precursor chemicals or drugs in any amount with the intent to unlawfully manufacture a controlled substance.” Miss. Code Ann. § 41 — 29—313(l)(a)(i). Ether, ephedrine, pseudoephedrine and hexanes are listed as precursor drugs or chemicals. Miss.Code Ann. § 41 — 29—313(l)(b)(i), (v), (iv) and (xxii).

¶ 10. Cook argues that the facts presented at trial did not show that he was in constructive possession of the precursor chemicals in question and cites Kerns v. State, 923 So.2d 210 (Miss.Ct.App.2005), rev’d, 923 So.2d 196 (Miss.2005). In Kerns, Kerns and Howard McKinney were arrested at the scene of a methamphetamine lab in Kerns’s house. Id. at (¶ 2). McKinney was eventually convicted of, among other crimes, possession of precursor chemicals with the intent to manufacture a controlled substance. Id. at (¶ 3). On the sole issue of whether his conviction was against the overwhelming weight of the evidence, this Court reversed the judgment of the Circuit Court of Warren County. Id. at (¶ 4). In so doing, we reasoned that the record only supported a finding that McKinney had constructive possession of only one precursor chemical, rather than the two required by section 41-29-313(l)(a)(i). Not mentioned by Cook during his argument is that in response to the Kerns decision, the State filed a petition for writ of certiorari which was subsequently granted by the supreme court. Kerns v. State, 923 So.2d 196(¶ 3) (Miss.2005). In reversing this Court and affirming the judgment of the Circuit Court of Warren County, the supreme court stated there was a “plethora” of evidence that supported a finding that McKinney was in constructive possession of many precursor chemicals and other essentials needed for the production of methamphetamine. Id. at (¶ 15).

¶ 11. In order to show that Cook was in constructive possession of the precursor chemicals the State does not have to show actual physical possession. Id. at (¶ 11). However, there must be sufficient facts to support a finding that the defendant “was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Id. (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)). Additionally, while a showing of physical proximity between the substance in question and the defendant is essential, it must also be shown that the precursors were subject to the defendant’s “dominion or control” as well as other incriminating facts and circumstances. Id.

¶ 12. In the case sub judice, as was the case in Kerns, the evidence presented to the jury was more than enough to support a finding of constructive possession. Ren-froe testified that the initial smell he encountered when he approached the bedroom window caused him to recoil in order to catch his breath. He testified that from his experience this smell was indicative of the odor surrounding a methamphetamine lab. He further testified that he witnessed Cook exit the smoked filled room carrying a plastic container and glass jar connected by a tube. Renfroe identified this contraption as a methamphetamine lab. Substances contained within these items were later identified by McMahon as ether, ephedrine, pseudoephedrine and hexanes. Additionally, the coffee filters found in the same room in which Cook ran contained methamphetamine and ephedrine pseu-doephedrine. The testimony of Jared Cook also established that Cook was “aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Jared Cook testified that while the methamphetamine lab and other drug paraphernalia was his and he had been manufacturing methamphetamine for three days prior to Cook’s arrival, Cook arrived at the house approximately one hour before the deputies arrested the group. Jared Cook explained that Cook asked if Jared had anymore methamphetamine. When Jared responded that he did not, Cook requested more and was assisting Jared in its manufacture when law enforcement arrived. Weighing all evidence in favor of the verdict, we cannot say that allowing the jury’s verdict to stand would amount to an unconscionable injustice. Therefore, this issue is without merit.

III. WHETHER THE COURT ERRED IN OVERRULING THE DEFENDANT’S OBJECTION TO LEADING.

¶ 13. Our standard of review regarding this issue is clear. The decision of a trial court to allow leading questions will only be overturned if it is determined that the trial court abused his discretion. Brassfield v. State, 905 So.2d 754(¶ 14) (Miss.Ct.App.2004). Furthermore, the trial court’s abuse of discretion must prejudice the complaining party in order to warrant reversal. Palmer v. State, 427 So.2d 111, 115 (Miss.1983). “When error involves the admission or exclusion of evidence, we, sitting as an appellate court, will not reverse unless the error adversely affects a substantial right of a party.” Stallworth v. State, 797 So.2d 905(¶ 8) (Miss.2001).

¶ 14. Cook argues that the trial court erred in overruling his objection that the State was leading Renfroe during the following exchange:

Q. When you arrived at 621 Morton/Rankin Road, did you or on the way prior to arriving, did you talk about the possibility of — uh—needing to cover all the entrances to the house because Jared Cook might run or something?
[DEFENSE]: Your honor, I’m going to object to that.
A. Yes, we did.
BY THE COURT: Overruled.

Cook fails to show how allowing the above question prejudiced his case or adversely affected a substantial right he enjoyed. The question at issue inquired about Ren-froe’s conversation with his fellow deputies regarding the flight risk of someone other than Cook. We fail to see how allowing the State to proceed amounted to an abuse of discretion.

IV. WHETHER THE COURT ERRED IN SUSTAINING THE STATE’S OBJECTION DURING COOK’S CROSS-EXAMINATION OF DEPUTY RENFROE.

¶ 15. Cook’s last argument is that the trial court erred in sustaining the State objection to relevancy concerning the following line of questioning during cross-examination of Renfroe by Cook’s attorney:

Q. Okay. Did you ever present the— the arrest warrant to Jared or Ms. Cook — Ms. Bennie[Bernie] Cook?
A. Uh — Jared Cook.
Q. Okay. Was that prior to his arrest or afterward when you got him down to the station?
A. After.
Q. Okay. Uh — was he allowed to keep a copy of that?
A. Uh — no, sir. It’s all turned over to the jail.
Q. Okay. Now let’s get back to when you actually got out at the — y’all been having trouble with Jared before?
A. Yes, sir.
Q. What — what type of trouble have you had?
BY MR. BROOKS: Your Honor, we’re going to object. That’s not relevant to this case.
BY THE COURT: What you going into?
BY MR. MANGUM: Uh — Judge, I was — I—I can cover that with another witness.
BY THE COURT: Objection’s sustained.

¶ 16. Rule 103 of the Mississippi Rules of Evidence states, in pertinent part,

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

While the trial court attempted to prompt Mangum into a proffer, not only was no offer of proof forthcoming, but the line of questioning was voluntarily abandoned. Notwithstanding the lack of an offer of proof and issue of abandonment, the most logical reason for questioning Renfroe about Jared Cook’s past criminal exploits is to introduce to the jury Jared Cook’s criminal nature in an attempt to impeach his testimony and destroy his credibility. Having no proffer in the record to show otherwise, we must assume this was the intent of Cook’s line of questioning. That being the case, we find that the following colloquy between Mangum and Jared Cook satisfies this intent:

Q. Okay. You’ve been cooking dope there for a while?
A. Yes, sir.
Q. Okay. You’ve been — you’ve been on meth for a while?
A. Yes, sir.
Q. Uh — you—
BY MR. MANGUM: your Honor, just one moment.
Q. I knew I picked this up for a reason. You’ve been convicted of drug-related charges in the past?
A. Uh — I was charged with drug-related charges.
Q. And what charges were those?
A. Man — conspiracy—
BY MR. BROOKS: Your Honor, object to the charges. He can ask him about convictions.
BY THE COURT: Sustained.
Q. Have you ever testified against anybody else in a case — drug case?
A. No, sir.
Q. Have you ever been a confidential informant?
A. Yes, sir.
Q. Okay. Was that to — what was that for? Why did you do that?
A. Drug charges.
Q. On you?
A. Yes, sir.
Q. Okay. So in — in return for getting off these drugs charges, you rolled on somebody else?
A. Yes, sir.
Q. Okay. And that benefitted you?
A. Yes, sir.
Q. Okay. And in this circumstance you cooked the drugs?
A. Yes, sir.
Q. Um — and you got a significantly lower sentence because you pled guilty and offered to testify against him, right?
A. Yes, sir.
Q. Now you were on methadone at the time, weren’t you?
A. Yes, sir.
Q. Uh — does methadone affect you [sic] ability to remember things?
A. De — depends on how much I take.
Q. Okay. Were you — were you on a lot of it during this time?
A. That night I had shot some dilau-dids.
Q. Some what?
A. Dilaudids. I was out of methadone and I shot some dilaudids. That’s the needle they found.

As such, this issue is without merit.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF SCOTT COUNTY OF CONVICTION OF POSSESSION OF PRECURSOR CHEMICALS WITH INTENT TO MANUFACTURE METHAMPHETAMINE AS A HABITUAL OFFENDER AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE BENEFIT OF PAROLE, SUSPENSION OR REDUCTION OF SENTENCE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.

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


author: ROBERTS, J., for the Court.

text:
    Coleman Maddox ALLEN, III, Appellant/Cross-Appellee v. Lesley Melton ALLEN, Appellee/Cross-Appellant.
    No. 2006-CA-00376-COA.
    Court of Appeals of Mississippi.
    March 27, 2007.

      Charles E. Webster, Clarksdale, attorney for appellant.
    James McClure, Sardis, attorney for ap-pellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J., for the Court.

¶ 1. This appeal stems from the grant of Coleman Maddox Allen’s, III, motion for additional visitation and denial of Allen’s subsequent motion for a reduction in child support. Specifically, Allen petitioned the Chancery Court of Coahoma County for an increase in the amount of visitation he enjoyed with his minor son, and a reduction in the amount of child support he was required to pay in the event the court granted his request for increased visitation. At the conclusion of a hearing on the matter, the lower court granted his request for increased visitation, but denied his request for a lowered child support obligation. Unsatisfied with the lower court’s ruling, Allen now appeals and raises the following issue:

I. WHETHER THE CHANCELLOR ERRED IN DENYING HIS REQUEST FOR A REDUCTION IN CHILD SUPPORT.

Finding no error, we affirm on the issue raised by Allen.

¶ 2. Following Allen’s appeal, Lesley Melton Allen, the minor child’s mother, filed her cross-appeal and raised the following issue:

I. WHETHER THE CHANCELLOR ERRED IN INCREASING THE AMOUNT OF VISITATION ALLEN WAS ENTITLED TO.

Finding that Melton’s cross-appeal was untimely filed, we hold that her claim is barred.

FACTS AND PROCEDURAL HISTORY

¶ 3. On July 7, 2003, the parties were granted a divorce on the grounds of irreconcilable differences. As part of their marital settlement agreement, the parties agreed to joint legal custody and that Melton would have primary physical custody of their minor son. Additionally, Allen agreed to visitation with their son every other weekend from 6:00 p.m. Friday until 6:00 p.m. Sunday. Further Allen agreed to pay $550 per month in child support. On July 28, 2003, in response to Melton’s unrealized plans to move from the Tunica area to Destín, Florida, Allen filed a petition for a change in custody, citing Melton’s proposed move as a material change in circumstances adverse to the minor child’s best interests and noncompliance with the settlement agreement with regards to a vehicle the parties once owned. On September 26, 2003, the lower court denied Allen’s petition.

¶4. On June 29, 2004, Allen filed his second motion for modification requesting, among other things, a change in primary physical custody from Melton to himself and, alternatively, a clarification on his visitation rights. Melton responded to Allen’s motion, obviously against any change in custody, and added a counterclaim alleging that Allen routinely harassed her and was behind on various payments required by the settlement agreement. After a hearing on the matter, the Chancery Court of Coahoma County denied all requests, save for a clarification of Allen’s visitation schedule. The court then approved a very detailed schedule that applied from September 1, 2004, through May 12, 2005. The court noted that while the parties had not been able to work together regarding access to them minor child as of yet, it was the court’s hope that at the conclusion of the court-ordered visitation the parties would be able to work out future visitation between themselves.

¶ 5. The lower court’s hopes would not come to fruition. The parties were able to agree on a schedule during the summer of 2005 that approached a “week on/week off’ visitation. However, Melton and Allen were not able to continue to agree on visitation, and on August 26, 2005, Allen filed a motion to set visitation requesting a court-ordered “week on/week off’ schedule. Following Melton’s response, Allen filed a motion to modify his child support obligation on September 27, 2005. He argued that if the lower court granted his motion to set visitation the additional visitation would constitute a material change in circumstances warranting a reduction in the amount of child support he was required to pay Melton. The lower court issued an order for temporary visitation on October 11, 2005, in which it ordered a “week on/week off’ schedule until a hearing could be held in late November. Following a hearing on the matter, the Chancery Court of Coahoma County issued its order on January 27, 2006. The order granted Allen’s request for visitation, ordering visitation between the parties on an alternating weekly basis, but denied Allen’s request for a reduction in child support. Aggrieved by the lower court’s decision, Allen filed his notice of appeal on February 21, 2006, arguing that the court erred in finding that there had been no material change in circumstances warranting a change in Allen’s child support obligation. In turn, Melton filed her notice of cross-appeal on April 3, 2006, arguing that the lower court erred in setting weekly visitation.

STANDARD OF REVIEW [1,2] ¶ 6. In reviewing a chancellor’s ruling concerning domestic relations matters we are limited by our familiar substantial evidence/manifest error rule. Sumrall v. Munguia, 757 So.2d 279(¶ 12) (Miss.2000). Specifically, a chancellor’s findings will not be disturbed absent a finding that they were manifestly wrong, clearly erroneous or an erroneous legal standard was applied. Id.

ANALYSIS

¶ 7. Allen argues that the lower court erred in denying his request for a reduction in child support given the change in visitation from the original divorce decree. A modification of child support is appropriate only if it shown that there has been a substantial or material change in circumstances of the mother, the father or the child or children since the decree sought to be modified. Edmonds v. Edmonds, 935 So.2d 980(¶ 19) (Miss.2006) (citing Caldwell v. Caldwell, 579 So.2d 543, 547 (Miss.1991)). In Caldwell, the supreme court listed those factors to be considered in making a determination that a material change in circumstances has occurred warranting a modification in child support, including: (1) increased needs caused by advanced age and maturity of the children, (2) increase in expenses, and (3) inflation factor. Other factors include (4) the relative financial condition and earning capacity of the parties, (5) the health and special needs of the child, both physical and psychological, (6) the health and special medical needs of the parents, both physical and psychological, (7) the necessary living expenses of the parties, (8) the estimated amount of income taxes the respective parties must pay on their incomes, (9) the free use of a residence, furnishings, and automobile and (10) such other facts and circumstances that bear on the support subject shown by the evidence. Caldwell, 579 So.2d at 547.

¶ 8. It is apparent from a reading of the record that during the hearing on his motions Allen presented virtually no evidence pertaining to the factors above, other than the change in visitation. However, a change in the parties’ visitation schedule alone is not enough for this Court to find that the chancellor abused his discretion or was manifestly wrong in his decision to deny Allen’s request for a reduction in child support. Therefore, this issue is without merit.

CROSS-APPEAL

¶ 9. Melton argues on cross-appeal that the chancellor abused his discretion in granting Allen expanded visitation. However, as her cross-appeal fell outside the requirements of Rule 4 of the Mississippi Rules of Appellate Procedure, her cross-appeal is untimely and not properly before this Court. Rule 4(c) states that a party seeking to cross-appeal must “file a notice within 14 days after the date on which the first notice of appeal was filed.” M.R.A.P. 4(c). Allen filed his notice of appeal on February 21, 2006. Melton followed with her notice of cross-appeal on April 3, 2006, well outside the fourteen day requirement.

¶10. THE JUDGMENT OF THE CHANCERY COURT OF COAHOMA COUNTY IS AFFIRMED ON DIRECT AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE PARTIES.

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

      . The record indicate that Lesley Melton Allen’s maiden name was Melton and in an effort to avoid confusion when referring to the parties individually, the Court will refer to Lesley Melton Allen using her maiden name.


text:
    Robert BOBO, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01998-COA.
    Court of Appeals of Mississippi.
    April 3, 2007.

      Thad Buck, Boston, MA, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. Robert Bobo was convicted of aggravated assault on April 12, 2005, and sentenced to ten years in the custody of the Mississippi Department of Corrections. Aggrieved by the jury’s verdict, Bobo now appeals and raises the following issues:

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT A DIRECTED VERDICT AND OVERRULING BOBO’S MOTION FOR A J.N.O.V.
II. WHETHER THE TRIAL COURT ERRED BY FAILING TO GRANT A NEW TRIAL AS THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 30, 2004, Kevin Adam Henderson, Charles Buchanan and Steven Carpenter were playing video games at Henderson’s home. Henderson testified that while he and the other two men were inside he heard Bobo yelling and cursing outside of the home. Henderson then went outside to his porch and realized that Bobo was calling out Buchanan’s name in an effort to provoke a fight. At this point, according to Henderson’s testimony, Buchanan and Carpenter came out on the porch while Bobo continued to yell. Henderson testified that Tammy Willis was walking on the street behind Bobo and motioned to the group on the porch that Bobo had something behind his back. Henderson repeatedly asked Bobo to leave, but to no avail. Not wanting an altercation to erupt in his front yard, Henderson then asked both Bobo and Buchanan to leave. While Bobo still refused to comply, Buchanan began to walk to his car. Bobo was positioned in front of Buchanan’s car and Henderson testified he warned Buchanan to keep his distance as he made his way to his vehicle.

¶ 3. Heeding Henderson’s advice, Buchanan attempted to stay away from Bobo, but because of Bobo’s position close to Buchanan’s car door, he was forced to come within close proximity to Bobo. Henderson further testified that as Buchanan neared his car, Bobo attacked him from behind and Buchanan responded by punching Bobo. Henderson stated that the pair tripped over a row of crossties that lined the driveway and Buchanan ended up on top of Bobo as they continued to fight. Henderson continued that he did not see a knife, but after seeing blood come from the side of Buchanan’s body Bobo was hitting, he concluded that Bobo must have had a knife. Wanting to break the pair up, Henderson grabbed a nearby shovel and struck one of the crossties. Henderson testified that he held Bobo at shovel-point while Buchanan got up, at which point Bobo returned to his home. Finally, Henderson testified that this was not the first time Bobo had attempted to start a fight with Buchanan, and that there had been several occasions when Buchanan was visiting and Bobo would “call him out.” Buchanan’s and Carpenter’s testimony regarding the event was nearly identical to Henderson’s.

¶4. Dr. Sarah Smeltzer testified that she attended to Buchanan when he arrived at North Mississippi Medical Center in West Point. She testified that Buchanan suffered from ten significant stab wounds, two of which were life threatening. She further testified that the wounds Buchanan received were consistent with the knife found at Bobo’s home.

¶ 5. Tammy Willis lived in between Bobo and Henderson. She was returning from her mother’s house on the other side of Henderson’s home when she saw Henderson, Buchanan and Carpenter arguing with Bobo. She testified that as she walked behind Bobo she noticed that he was holding an opened pocketknife in his right hand behind his back. She stated she attempted to motion to Henderson and the others, but did not say anything out loud out of a fear Bobo would turn on her in retaliation. She also testified that she overheard Bobo yelling “if you step off the porch, I’ll cut your head off.” Finally, she testified that she returned to her home in order to forward her phone calls to her mother’s house, and approximately three minutes later she left her house to return to her mother’s and heard a sound she identified as Henderson hitting a shovel and saw Henderson pointing a shovel down on the ground.

¶ 6. Bobo testified that he acted in self-defense. He stated that he walked to Henderson’s house in order to check on Henderson’s dog, but when he arrived he saw Henderson’s girlfriend, Heather Kim-brough, Buchanan and an individual named Chris Johnson on Henderson’s porch. Bobo testified that when he saw Buchanan, he dropped the golf club he was using as a cane in an effort to indicate he did not want a confrontation. However, Bobo stated that Buchanan got off the porch and came towards his car. Bobo further testified that when Buchanan passed him, Buchanan blind-sided him and knocked him out. According to Bobo’s testimony, when he woke up Buchanan was on top of him hitting him. At this point, according to Bobo, he reached into his pocket, retrieved his pocketknife, opened the pocketknife and stabbed Buchanan a number of times in self-defense. Bobo testified that at no point did he see Henderson, and that Henderson never stopped the fight.

¶ 7. Bobo was indicted on October 7, 2004, on the charge of aggravated assault in violation of Mississippi Code Annotated section 97-3-7. His trial was held on April 11, 2005, and the jury found Bobo guilty as charged. Bobo was subsequently sentenced on April 12, 2005, to ten years in the custody of the Mississippi Department of Corrections followed by five years’ post-release supervision. Bobo then filed his motion for an out-of-time appeal and appointment of counsel on July 18, 2005, stating that his trial counsel neglected to file a timely notice of appeal . The lower court then, sua sponte, set October 3, 2005, to hear Bobo’s, then unfiled, motion for new trial. The day of the hearing, Bobo filed his motions for leave to appeal in forma pauperis, motion for judgment notwithstanding the verdict or, in the alternative, a new trial and notice of appeal. Additionally, on October 3, 2005, the trial court granted Bobo’s motion for leave to appeal in forma pauperis. Bobo’s motion for a new trial was summarily denied on October 12, 2005.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT A DIRECTED VERDICT AND OVERRULING BOBO’S MOTION FOR A J.N.O.V.

¶ 8. Our standard of review for denials of a motion for judgment notwithstanding the verdict and directed verdict is the same. Jefferson v. State, 818 So.2d 1099(¶ 30) (Miss.2002). A judgment notwithstanding the verdict and directed verdict challenge the legal sufficiency of the evidence presented at trial. Id. Under this standard, this Court considers all of the evidence in the light most favorable to the State and gives the State the benefit of all favorable inferences that may be drawn from the evidence. Seeling v. State, 844 So.2d 439(118) (Miss.2003). This Court is “not at liberty to direct that the defendant be discharged short of a conclusion on our part that given the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt the defendant was guilty.” Ashford v. State, 583 So.2d 1279,1281 (Miss.1991).

¶ 9. The issue we are presented with is whether, given the evidence contained in the record, no reasonable juror could find Bobo guilty of aggravated assault beyond a reasonable doubt. Mississippi Code Annotated section 97 — 3—7(2)(b) directs that an individual is guilty of aggravated assault if he “attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm[.]” Miss.Code Ann. § 97-3-7 (Rev.2006). The evidence presented at trial indicated that Bobo walked to Henderson’s house and began to taunt Buchanan. Once Buchanan was outside, Bobo continued his verbal barrage and refused to leave Henderson’s property. With an open pocketknife concealed behind his back, as identified by Willis as she walked home from her mother’s house, Bobo positioned himself in front of Buchanan’s car, and as Buchanan was forced to pass him in an attempt to leave, Bobo struck him from behind. During the ensuing struggle between the two men, Bobo stabbed Buchanan no less than ten times, two of which were identified as life threatening. When viewed in a light most favorable to the State, the evidence, without question, more than satisfies our standard of review.

II. WHETHER THE TRIAL COURT ERRED BY FAILING TO GRANT A NEW TRIAL AS THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 10. The standard of review for denial of a motion for new trial is well-established.

In determining whether a jury verdict is against the overwhelming weight of the evidence this 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. 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. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.

Baker v. State, 802 So.2d 77(¶ 14) (Miss.2001) (citing Dudley v. State, 719 So.2d 180 (¶¶ 7-8) (Miss.1998)).

¶ 11. Accepting the evidence as true which supports the verdict, we cannot say that allowing it to stand would amount to an unconscionable injustice. The evidence showed that Bobo initiated the altercation, struck the first blow and repeatedly stabbed Buchanan. In line with our discussion above, this issue is without merit.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FIVE YEARS’ POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

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

      . The record indicates that the confusion over the timing of Bobo’s post-trial motions and notice of appeal stemmed from a misunderstanding between he and his attorney at trial regarding continued representation post-trial. while Bobo’s appeal would appear to be untimely, we nonetheless rule on its merits as Bobo’s particular situation would fall under Deloach v. State, 890 So.2d 852 (¶¶ 11-16) (Miss.2004).


author: ISHEE, J.,

text:
    Larry WESTBROOK, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01207-COA.
    Court of Appeals of Mississippi.
    April 3, 2007.

      Larry D. Westbrook, Appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. The Circuit Court of Monroe County found Larry Westbrook guilty of the sale of cocaine on June 28, 2004, after West-brook entered a plea of guilty to the charge. The court sentenced him to twenty years in the custody of the Mississippi Department of Corrections with ten years suspended and five years’ post-release supervision. Westbrook filed a motion for post-conviction relief, which the trial court denied. Aggrieved, Westbrook appeals and asserts three issues:

I. Whether his sentence exceeds the statutorily prescribed penalty.
II. Whether Mississippi Code Annotated section 41-29-139 is unconstitutional due to ambiguity.
III. Whether the trial court lacked jurisdiction due to alleged defects in the indictment.

Finding no error, we affirm.

FACTS

¶ 2. On January 29, 2004, a Monroe County grand jury indicted Larry West-brook for the sale of cocaine to Bruce Dodson on or about March 6, 2003. West-brook was represented by counsel and appeared before the Monroe County Circuit Court on June 28, 2004 where he pled guilty to sale of cocaine, as charged in the indictment. The judge sentenced West-brook to twenty years in the custody of the Mississippi Department of Corrections with ten years suspended and five years’ post-release supervision. Westbrook filed a motion for post-conviction relief, which the trial court denied on August 8, 2006. Aggrieved, Westbrook timely filed an appeal on August 14, 2006, which is now before this Court.

ISSUES AND ANALYSIS

I. Whether the sentence exceeds the statutorily prescribed penalty

¶ 3. A sentence that is within the statutory limits is within the complete discretion of the trial court and is not subject to review. Nichols v. State, 826 So.2d 1288, 1290(1110) (Miss.2002). Under Mississippi Code Annotated section 41-29-115(a)(4) (Rev.2005), cocaine is a controlled substance classified in Schedule II. The penalty for selling a Schedule II controlled substance is set out in Mississippi Code Annotated section 41 — 29—139(b)(1) (Rev. 2005). The statute provides for a maximum sentence of thirty years and a fine of one million dollars. Id. It does not require the defendant to sell any minimum amount of the controlled substance, and there is no minimum penalty. Id. However, the penalty for possession of a controlled substance, cited by Westbrook, is found at Mississippi Code Annotated section 41-29-139(c) (Rev.2005).

¶ 4. In the present case, Westbrook was charged with and pled guilty to the sale, not possession, of cocaine. The amount of cocaine, while relevant to a charge of possession, is irrelevant in this case because there is no minimum amount required to be guilty of selling cocaine and to receive a sentence of up to thirty years. The statute does grant an exception to first time offenders who sell small amounts of marijuana. Miss.Code Ann. § 41 — 29—139(b)(1) (Rev.2005). However, Westbrook was not charged with selling marijuana, and he was not a first time offender, as he testified at the plea hearing that he served time for selling cocaine on two prior occasions.

¶ 5. Westbrook faced a possible thirty year sentence for the sale of cocaine. His sentence of twenty years with ten suspended and five years post-release supervision was within the zero to thirty year limits of the statute. Under Nichols, his sentence was within the discretion of the trial court; therefore, this Court may not review it. This issue is without merit.

II. Whether Mississippi Code Annotated section 41-29-139 is unconstitutional due to ambiguity

¶ 6. While Westbrook states that the statute is unconstitutionally ambiguous, he also mentions the doctrines of vagueness and overbreadth. According to the Fifth Circuit, a statute is unconstitutionally vague if its prohibitions are not clearly defined from the standpoint of an ordinary person. J & B Entm’t, Inc. v. City of Jackson, 152 F.3d 362, 367 (5th Cir.1998). A “restriction must be reasonably clear, enabling a citizen to understand what is allowed, and what is not.” Mayor of Clinton v. Welch, 888 So.2d 416, 420(¶ 21) (Miss.2004). Ambiguity is a term of statutory interpretation. When a statute is unambiguous, a court must apply its plain meaning and may not apply principles of statutory interpretation. OXY USA, Inc. v. Mississippi State Tax Comm’n, 757 So.2d 271, 274(¶ 12) (Miss.2000). “There is no occasion to resort to rules of statutory interpretation where the language used by the legislature is plain, unambiguous, and conveys a clear and definite meaning.” Davis v. Pub. Employees’ Ret. Sys., 750 So.2d 1225, 1233(¶ 25) (Miss.1999). Under the doctrine of overbreadth, a government may not proscribe activities subject to regulation with an overly broad statute that invades the area of protected freedoms. Miller v. State, 636 So.2d 391, 395 (Miss.1994) (quoting Zwickler v. Koota, 389 U.S. 241, 249-50, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967)).

¶ 7. Westbrook argues the statute is ambiguous because he believes section 41-29-139(b) conflicts "with section 41-29-139(c), which looks at the amount of the controlled substance and provides for shorter sentences. What Westbrook fails to realize is that he was convicted under the subsection that criminalizes the sale of a controlled substance, while section 41-29-139(c) proscribes possession of a controlled substance. These are two different provisions dealing with two different situations. We do not find them to be ambiguous, as they each clearly state their purpose.

¶ 8. We also do not find the statute to be unconstitutionally vague. Section 41-29-139(b) of Mississippi Code Annotated states that it is a crime sell a controlled substance and that the sentence for conviction of such crime may be up to thirty years. It seems from this that a person of ordinary intelligence would understand by reading this statute that he could face significant prison time for selling cocaine.

¶ 9. Lastly, we find that the statute is not overly broad. The sale of controlled substances does not infringe on any of Westbrook’s constitutionally protected rights. This issue is without merit.

III. Whether the trial court lacked jurisdiction due to alleged defects in the indictment

¶ 10. To support his claim that the trial court lacked jurisdiction, Westbrook alleges the following defects in the indictment: (1) it did not state the judicial district from which it was returned, (2) it was not stamped “filed,” (3) it did not specify the quantity of drugs, (4) it did not state that a duly sworn grand jury returned the indictment, and (5) it did not specify that fifteen members of a grand jury were present.

¶ 11. A valid guilty plea waives all non-jurisdictional defects in an indictment. Reeder v. State, 783 So.2d 711, 720(¶ 36) (Miss.2001) (citing Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990)). Failing to stamp an indictment “filed” is not a jurisdictional defect; furthermore, a party may not raise such an objection for the first time on appeal. Jones v. State, 356 So.2d 1182, 1183 (Miss.1978). Such a claim is procedurally barred. Wilson v. State, 904 So.2d 987, 995-96(¶27) (Miss. 2004). An indictment that does not contain an affidavit stating that fifteen members of the grand jury were present, and that at least twelve concurred, is not defective if the grand jury foreman signed it and the clerk marked it “filed.” Morris v. State, 767 So.2d 255, 259(¶ 7) (Miss.Ct.App.2000) (overruled on other grounds). This operates as legal evidence of the concurrence of twelve or more grand jurors. Id. Also, the supreme court has found that the failure to attach such an affidavit was a non-jurisdictional defect that a defendant waived when he entered a valid guilty plea and did not raise the objection in the lower court. Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990).

¶ 12. Upon reviewing the record, it is clear that Westbrook’s claim of deficiency is without merit. The indictment states it was issued in the Circuit Court of Monroe County. Both the assistant district attorney and the grand jury foreman signed it, and the clerk stamped it “Filed and Recorded” and signed it also. While West-brook correctly states the indictment does not contain the amount of the controlled substance, the amount is irrelevant to his charge. Unlike possession, sale of a controlled substance does not require a specific amount. The indictment also specifies that the jurors were sworn.

¶ 13. Lastly, the indictment is not defective because the foreman did sign it and the clerk did mark it “filed.” As per Morris, this operates as evidence of the concurrence of at least twelve grand jury members. Furthermore, the lack of an affidavit stating that fifteen members were present was a non-jurisdictional defect that Westbrook waived when he entered a valid guilty plea. The issues concerning the alleged defects in the indictment are without merit or are procedurally barred.

¶ 14. Westbrook also claims that his counsel was ineffective because he failed to object to the alleged defects in the indictment. To prevail on a claim of ineffective assistance of counsel, an appellant must show that the performance of his counsel was deficient and that the deficient performance prejudiced the appellant. Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This test also applies when the appellant challenges a guilty plea based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58,106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Under Strickland, the presumption is that counsel’s conduct is reasonable and not deficient. Moody v. State, 644 So.2d 451, 456 (Miss.1994). The claims Westbrook argues to be defects in the indictment are insufficient to show deficiency in his counsel’s performance or prejudice to his case. This issue is without merit.

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

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


author: KING, C. J.,

text:
    Michael BROOKS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-02108-COA.
    Court of Appeals of Mississippi.
    April 3, 2007.

      Michael Brooks, 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. Michael Brooks appeals the Clay County Circuit Court’s denial of his petition for post-conviction relief. On appeal, Brooks asserts six points of error that will be consolidated into the following three issues: (1) whether the trial court erred in accepting Brooks’s guilty plea, (2) whether the trial court erred in dismissing Brooks’s post-conviction ineffective assistance of counsel claim without an evidentiary hearing, and (3) whether the trial court erred in not granting Brooks’s motion for recu-sal. Finding no error in the circuit court’s decision, we affirm.

FACTS

¶2. Michael Brooks was charged with two counts of statutory rape in Clay County, Mississippi. According to the trial court’s findings, Brooks and the district attorney negotiated a plea bargain in which Brooks would plead guilty to one count of statutory rape and the second count would be retired to the court files. Brooks alleges his guilty plea was based on his defense attorney’s promise that he would only serve five years if he pled guilty to one count of statutory rape. Brooks claims that after he entered the guilty plea at the plea hearing, the defense attorney and the district attorney changed the agreement, without Brooks’s consent, and decided Brooks would enter an open plea.

¶ 3. According to the trial court findings, a guilty plea hearing was held in accordance with the Uniform Circuit and County Court Rule 8.04. Brooks was informed of all the rights he would waive as a result of pleading guilty. After being informed of these rights, Brooks entered an open plea and presented mitigation witnesses to the court. At the end of the witnesses’ testimonies, the court sentenced Brooks to twenty years in prison, with five years post release supervision, and retired the second statutory rape count to the files.

¶ 4. On August 23, 2005, Brooks filed a post-conviction relief petition to have his guilty plea withdrawn, alleging that his plea was involuntary and that he received ineffective assistance of counsel. The court dismissed the post-conviction relief motion without granting an evidentiary hearing. After reviewing the record of proceedings in the trial court, coupled with the petition to enter a guilty plea, the plea colloquy, the sentencing order and pleadings, the court found an evidentiary hearing would be unnecessary. From this decision, Brooks files this appeal, raising the following issues:

I. Whether the trial court erred in accepting Brooks’s guilty plea
II. Whether the trial court erred in dismissing Brooks’s ineffective assistance of counsel claim
III. Whether the trial court erred in not granting Brook’s motion for recusal.

Finding no error in the circuit court’s decisions, we affirm.

STANDARD OF REVIEW

¶ 5. 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).

ANALYSIS

I. Whether the trial court erred in accepting Brooks’s guilty plea

¶ 6. This Court will not reverse the trial court’s decision that a valid guilty plea has been entered unless the trial court’s decision was clearly erroneous. Hamlin v. State, 853 So.2d 841, 843(¶ 6) (Miss.Ct.App.2003). A plea is considered “voluntary and intelligent” if the defendant is informed of the nature of the charges against him and the consequences of entering a guilty plea. Id. Brooks has the burden of proving that his guilty plea was involuntary and he must prove this by a preponderance of the evidence. Wilcher v. State, 921 So.2d 400, 401(¶ 3) (Miss.Ct.App.2006).

¶ 7. Brooks argues the trial court should not have accepted his guilty plea. He attempts to support this assertion through many contradictory allegations. Brooks first claims that the trial court erred in accepting his guilty plea because he entered the plea due to the erroneous advice of his counsel. Brooks alleges his counsel promised he would only serve a five-year sentence if he pled guilty to one count of statutory rape. He provides an affidavit from his mother that states she was privy to this conversation. Brooks claims that his plea was not voluntary in that after he informed the court he wished to plead guilty, the court and the defense attorney agreed that Brooks would enter an open plea, resulting in a twenty-five year sentence. Brooks asserts his plea was unknowing because the Court did not inform him that his sentence would include no possibility of parole. As a last resort, Brooks also alleges he informed the court, during the plea hearing, that he did not wish to plead guilty, so the hearing should have been discontinued.

¶ 8. The trial court, after reviewing Brooks’s criminal file, found that Brooks’s counsel and the district attorney negotiated a plea bargain in which Brooks would plead guilty to one count of statutory rape and the second count would be retired to the files. This agreement was set forth in Brooks’s signed and notarized guilty plea petition. This guilty plea petition, unlike the plea-hearing transcript, has been made a part of the appellate record. The plea petition sets out the applicable sentence range for Brooks’s offense and states that the court is not bound by any recommendations of the district attorney. After reviewing the guilty plea petition, we are satisfied that Brooks received adequate notification of the applicable sentencing range. Brooks fails to present evidence that the trial court abused its discretion, and we hold that the trial court did not err in accepting Brooks’s guilty plea.

II. Whether the trial court erred in dismissing Brooks’s ineffective assistance of counsel claim

¶ 9. Brooks challenges the trial court’s decision to dismiss his ineffective assistance of counsel claim without conducting an evidentiary hearing. A trial court has considerable discretion in granting evidentiary hearings for post-conviction relief motions. Riley v. State, 848 So.2d 888, 891(¶ 9) (Miss.Ct.App.2003). A judge may dismiss such motions if “it plainly appears from the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code. Ann. § 99-39-ll(a)(Rev.2000).

¶ 10. Motions arguing ineffective assistance of counsel must allege with specificity and detail that (1) the counsel’s performance was defective and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Robertson v. State, 669 So.2d 11, 12 (Miss.1996). Defendants must prove that, but for the counsel’s deficient performance, the outcome of the proceedings would have been different. Strickland, 466 U.S. at 691-96, 104 S.Ct. 2052. The defendant carries the burden of proof and the court will weigh the counsel’s deficiencies under the totality of the circumstances standard. Epps v. State, 926 So.2d 242, 244(¶ 7) (Miss.Ct.App.2005).

¶ 11. Brooks fails to meet the Strickland requirements in his pleadings of ineffective assistance of counsel, despite the citing of various rules and the inclusion of affidavits. Brooks attempts to satisfy the first prong of Strickland by asserting, in his pleadings, that his counsel was deficient in several ways. Brooks claims his attorney led him to believe he would serve only five years for his guilty plea. Brooks claims that during the plea hearing, his attorney, the district attorney, and the court had an off the record discussion without him, after which his attorney decided Brooks should enter an open plea. Brooks thinks this alone violated his right to assistance of counsel because the defense attorney appeared to be working for the prosecution.

¶ 12. Brooks points to ethical rules he believes his attorney violated during the course of representation, all of which continue to accuse the defense attorney of unprofessional conduct by changing Brooks’s original plea agreement without Brooks’s consent. Brooks points to Rules 1.2 and 1.4 of the Mississippi Rules of Professional Conduct, Rule 8.04 of the Uniform Rules of Circuit and County Court, the United States Constitution and Mississippi law to assist in his arguments. Brooks also presents two affidavits — one from his mother and one from himself— that allege the defense attorney led Brooks to believe he would only serve five years for his guilty plea. The affidavit from his mother reads as follows:

I, Emma Brooks, state I saw Mr. Burdine go into the judge[’]s chambers to discuss the sentence of Michael Brooks, without him present, with Ms. Hayes-Ellis, the District Attorney. When Mr. Burdine came out[,] he changed the plea to open, without discussing this with Michael Brooks. I say these facts in the interest of Justice, without being forced or given any money-
s/ Emma Brooks

¶ 13. The trial judge was well within his discretion in finding that, Brooks pleadings did not allege ineffective assistance of counsel with enough specificity. The trial court was correct in finding the affidavits Brooks presented “did not require further inquiry in the expanded setting of an evi-dentiary hearing.” See Readus v. State, 837 So.2d 209, 213(¶12) (Miss.Ct.App.2003).

¶ 14. Even if this Court made findings that Brooks successfully satisfied the first prong of Strickland, Brooks would still fail the second prong of Strickland which requires that but, for the defense attorney’s performance, the outcome of the proceedings would have been different. In his pleadings to the Court, Brooks openly admitted his guilt to the charged crime of statutory rape. Brooks’s amended brief, filed May 5, 2006, contains the following pertinent sentence: “Brooks does not deny his guilt to this crime[,] yet guilty or not[,] Counsel is obligated to work for his client[’]s best interest [sic] and not cause his client prejudice.” Brooks’s admission of guilt to the crime, along with his signed and notarized guilty plea petition, and the trial court’s findings support the conclusion that the outcome of the proceedings would not have been different, absent the defense counsel’s performance. Brooks failed to satisfy both prongs of Strickland in his post-conviction pleadings and the trial court correctly dismissed this claim without an evidentiary hearing.

III. Whether trial court erred in not granting Brooks’s motion for recu-sal

¶ 15. Brooks asserts the trial court erred in not requiring the trial judge to disqualify himself from the post-conviction proceedings because he was the sitting judge during Brooks’s plea hearing. A judge must recuse himself if, a reasonable person, knowing all the circumstances surrounding the issue in question, would doubt the judge’s impartiality. Freshwater v. State, 794 So.2d 274, 278(¶ 10) (Miss.Ct.App.2001). There is a presumption that a judge is impartial and unbiased in every case before him. Baldwin v. State, 923 So.2d 218, 222(¶16) (Miss.Ct.App. 2005). Brooks' must prove, beyond a reasonable doubt, that the judge was prejudiced or partial against him, in light of the totality of the circumstances. Copeland v. Copeland, 904 So.2d 1066,1071(¶ 16) (Miss.2004).

¶ 16. Brooks fails to present any evidence that the judge was biased because he was the same judge that oversaw the plea hearing. The judge, in his order denying post-conviction relief, presented sound, unbiased reasoning for his decision to summarily dismiss the request for an evidentiary hearing. Absent proof of the judge’s actual partiality or bias, the Court will decline to find the trial court erred in not granting Brooks’s motion to recuse.

¶ 17. THE JUDGMENT OP THE CIRCUIT COURT OF CLAY COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

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

      . An "open plea” of guilty is a plea in which the prosecutor does not make any recommendation regarding sentencing. McNabb v. State, 915 So.2d 478, 480(¶ 9) (Miss.Ct.App. 2005).


author: MYERS, P.J.,

text:
    AIRTRAN, INC., and American Manufacturers Insurance Company, Appellants v. Pamela BYRD, Appellee.
    No. 2006-WC-00674-COA.
    Court of Appeals of Mississippi.
    April 3, 2007.

      W. Bienville Skipper, Jackson, attorney for appellants.
    Floyd J. Logan, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. On July 31, 1999, the claimant, Pamela Byrd, a ticket agent for AirTran at the Gulfport-Biloxi Airport, fell while assisting and loading luggage into the cargo hull of an aircraft. Byrd claimed injuries to the neck, right shoulder, left shoulder, left hip, and lower back and the onset of fibromyalgia and vascular necrosis due to the fall under the Workers’ Compensation Act (Act). Byrd was awarded compensation by the administrative judge for injuries sustained to her neck, right shoulder and lower back. However, her left shoulder and left hip injuries and the conditions of fibromyalgia and vascular necrosis were held not to be compensable under the Act. The employer and carrier, AirTran and American Manufacturers Insurance Company (collectively referred to as “AirTran”) appealed from the order, but the Commission affirmed, adopting the findings of the administrative judge. AirTran appealed the Commission’s decision and the judgment was affirmed by the circuit court. AirTran now requests this Court to review the lower court’s decision (1) finding Byrd’s lower back injuries compensable under the Act and (2) awarding permanent partial disability benefits. Finding no reversible error, we affirm the lower court decision holding Byrd’s lower back condition compensable under the Act and awarding permanent partial disability benefits.

DISCUSSION

I. WHETHER THE COMMISSION’S DECISION FINDING THE CLAIMANT’S LOWER BACK CONDITION COMPENSABLE UNDER THE ACT IS SUPPORTED BY SUBSTANTIAL EVIDENCE?

¶ 2. We are charged with the duty of determining whether the Commission erred in finding that there was substantial evidence showing a causal connection between claimant’s lower back injury and her work injury. We follow the direction of our supreme court in stating our standard of review,

This Court is bound by the decision of the Mississippi Workers’ Compensation Commission if the Commission’s findings of fact are supported by substantial evidence .... Stated differently, this Court will reverse the Commission’s order only if it finds that order clearly erroneous and contrary to the overwhelming weight of the evidence. A finding is clearly erroneous when, although there is some slight evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the Act.

Barber Seafood, Inc. v. Smith, 911 So.2d 454, 461(¶ 27) (Miss.2005) (quoting Harda way Co. v. Bradley, 887 So.2d 798, 795 (Miss.2004) (citations omitted)).

¶ 3. The injured employee bears the general burden of proof of establishing every essential element of his or her claim by a preponderance of the evidence that: an accidental injury occurred arising out of and in the course of employment, a disability is suffered, and a causal connection between the work injury and the claimed disability exists. Bryan Foods, Inc. v. White, 913 So.2d 1003, 1008(¶ 18) (Miss.Ct.App.2005). The causal connection between the claimant’s injury and disability must be proven with competent medical proof and based upon a reasonable degree of medical probability. Harrell v. Time Warner/Capitol Cablevision, 856 So.2d 503, 511(¶ 30) (Miss.Ct.App.2003); Howard Indus. v. Robinson, 846 So.2d 245, 252(¶ 49) (Miss.Ct.App.2002).

¶ 4. AirTran argues that the substantial evidence does not support the Commission’s finding of a work-related lower back injury because none of Byrd’s physicians connected Byrd’s lower back pain with the injuries she sustained in the work accident of July 1999. Byrd, in turn, rebuts Air-Tran’s argument, asserting that the Commission’s decision finding her lower back injuries compensable was supported by substantial evidence. Byrd argues that substantial evidence was before the Commission regarding her lower back injury and, in support of her argument, points to the deposition testimony of her treating physician, Dr. Victor T. Bazzone, the office notes of her internist, Dr. Irene Koskan, and the deposition testimony of her treating physician, Dr. Butler.

¶ 5. We are to consider whether the Commission erred in its evaluation of the medical testimony causally relating Byrd’s lower back condition to her work injury. In making our determination, this Court is to ask the following question: “From the whole of the doctor’s testimony, what is the real substance he stated concerning causal connection?” Dixie Contractors, Inc. v. Ashmore, 349 So.2d 532, 534 (Miss.1977) (quoting 3 A. Larson, The Law of Workmen’s Compensation, § 80.32 (1976)). However, we are mindful that “[t]he compensation process is not a game of ‘say the magic word,’ in which the rights of injured workers should stand or fall on whether a witness happens to choose a form of words prescribed by court or legislature.” Dixie Contractors, Inc., 349 So.2d at 533. “What counts is the real substance of what the witness intended to convey....” Id.

¶ 6. The record reflects that Byrd was first treated by Dr. Koskan shortly after she incurred her work injury, then she was referred to Dr. Bazzone and later treated by Dr. Butler. The administrative judge, in making her decision finding Byrd’s lower back injuries compensable as a work-related injury, summarized several relevant portions of Byrd’s medical records supportive of finding a causal connection. In her summarization, the judge gave specific attention to an office note of Dr. Koskan dated December 2000, which indicated that Byrd complained of low back discomfort. Further, the judge noted that the medical records of Dr. Bazzone indicate that Byrd reported problems in her “lower extremities” following her work injury. In her opinion, the administrative judge discussed the medical records of Dr. Bazzone and stated that Dr. Bazzone related Byrd’s complaints to her sacroiliac joint which he treated with anti-inflammatories. However, we note that in Dr. Bazzone’s deposition, he testified contradictorily that “[w]hen she first came to me, she had no complaints in the low back.” He further stated, “[a]nd we had never studied that, and there was no need to study her low back.” The administrative judge resolved this conflict of Dr. Bazzone’s medical records and deposition testimony in favor of Byrd, and found her lower back injuries to be causally related to her work injury.

¶ 7. Furthermore, the Commission had Dr. Butler’s medical records and deposition testimony before it and found that Dr. James C. Butler’s testimony was “probative and persuasive” in causally relating Byrd’s lower back injury to her fall at work. Our review of the record indicates that Dr. Butler, in two depositions, causally related Byrd’s lower back condition to her work injury. Byrd first presented to Dr. Butler on September 26, 2001, complaining of right shoulder and low back pain attributed to her work injury. In turn, Dr. Butler related the onset of Byrd’s lower back pain to her work injury. AirTran takes issue with the fact that Dr. Butler’s testimony on the matter was based on Byrd’s subjective complaints to him relating her lower back pain to the fall she sustained at work. The argument follows that Dr. Butler’s testimony regarding the causal connection should not be considered because it is based solely on the history Byrd provided to Dr. Butler and not on his treatment of Byrd.

¶ 8. When a physician bases his medical opinion on the subjective complaints of his patient, the patient’s credibility then becomes the issue for determination by the Commission. Barber Seafood, Inc., 911 So.2d at 462 n. 5 (¶ 29). It is not the function of this Court to determine questions of credibility. Id. Here, the Commission relied heavily on the testimony of Dr. Butler in finding Byrd’s lower back injuries to be compensable under the Act. In turn, Dr. Butler admitted to having formed his medical opinion that related the injury to the work accident based on the medical history provided to him by Byrd during treatment. In finding that there was a causal connection between Byrd’s injury suffered at work and her lower back pain, the Commission implicitly found Byrd to be credible. Without indication to the contrary, we cannot overturn the Commission’s finding of credibility.

¶ 9. We cannot reverse a decision of the Commission if there exists substantial supporting evidence. Our examination of the record leads us to the conclusion that the order of the Commission was adequately supported by competent substantial evidence. Dr. Butler specifically related Byrd’s lower back injuries to her work injury and the Commission found this testimony “probable and persuasive” in awarding benefits based on this causation. The testimony of Dr. Butler relating the causation of the injury to the work injury, the medical records of Dr. Bazzone indicating Byrd’s complaints concerning her lower extremities, and the office notes of Dr. Koskan reflecting Byrd’s lower back complaints, taken together by the Commission, serves as substantial evidence in favor of finding Byrd’s lower back injuries compen-sable under the Act. Accordingly, we affirm the finding of Byrd’s lower back injury compensable under the Act.

II. WHETHER THE COMMISSION ERRED AS A MATTER OF LAW IN AWARDING THE CLAIMANT PERMANENT PARTIAL DISABILITY BENEFITS?

¶ 10. The Commission found that Byrd suffered permanent partial disability and a resulting loss of wage earning capacity due to her work-related injuries. In formulating the compensation award, the Commission found Byrd capable of employment in some capacity of sedentary employment at minimum wage. AirTran argues that the Commission erred in crafting the permanent partial disability award because Byrd did not offer proof substantiating her loss of wage earning capacity.

¶ 11. Compensation for a claimant who has suffered a permanent partial unscheduled member injury is controlled by Mississippi Code Annotated section 71 — 3—17(c)(25) (Rev.2000), that reads in pertinent part:

the compensation shall be sixty-six and two-thirds percent (66-2/3%) of the difference between his average weekly wages, subject to the maximum limitations as to weekly benefits as set up in this chapter, and his wage-earning capacity thereafter in the same employment or otherwise....

In determining a claimant’s loss of wage earning capacity, the Commission should take into consideration all of the factual elements presented to it in order to arrive at its conclusion regarding the extent of the claimant’s disability. The Commission considers the employee’s actual wages earned prior to the injury as compared to the employee’s capacity to earn those same wages after the injury, as well as other factors such as the employee’s age, education, training and work experience, and his or her ability to return to the same or other employment. DeLaughter v. South Cent. Tractor Parts, 642 So.2d 375, 379 (Miss.1994).

¶ 12. At the time of the hearing, Byrd was fifty-one years old. The Commission found that Byrd had obtained one year of college education and had been previously certified as a travel agent. Byrd’s treating physicians had restricted Byrd’s return to work and opined that she would only be able to perform light to sedentary physical labor. Further, the Commission noted that AirTran subsequently offered Byrd another position involving sedentary work, but that she refused this position because the job would require a transfer to the Atlanta office. Byrd’s refusal to take the offered position in Atlanta was did not weigh against her, though, in the Commission’s evaluation of her claim of loss of wage earning capacity. Byrd testified regarding her efforts to obtain other employment, providing that she pursued training as a damage estimator for Partnership for Response and Recovery, an organization affiliated with the Federal Emergency Management Agency. Byrd was placed on a call list for qualified estimators, but was never called to report. The Commission, based on the evidence before it, found Byrd capable of employment in some capacity of sedentary employment at minimum wage and awarded her permanent partial disability compensation accordingly.

¶ 13. The Commission’s specialization and experience make it better equipped than we are to analyze and translate evidence of a claimant’s loss of wage earning capacity into findings of fact. We are to defer to the Commission’s findings unless they are clearly erroneous or unsupported by substantial evidence. South Mississippi Electric Power Ass’n v. Graham, 587 So.2d 291, 294 (Miss.1991). We are mindful that the Commission has “considerable discretion and latitude” in determining a claimant’s wage earning capacity. Moore v. Indep. Life & Accident Ins. Co., 788 So.2d 106, 114(¶ 33) (Miss.Ct.App.2001). We find that Byrd’s refusal to relo cate to Atlanta was justifiable in these circumstances and should not weigh against her in determining her loss of wage earning capacity. In light of the evidence of Byrd’s physical condition and wage-loss factors, we find that there is substantial evidence to support the Commission’s finding of permanent partial disability. Therefore, we affirm the decision of the lower court awarding Byrd compensation for permanent partial disability.

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

      . AirTran does not contest the portion of the order awarding workers' compensation benefits for Byrd's injuries to her neck and right shoulder; therefore, our discussion concerning compensability is limited to the lower back injuries.

      . We note that the claimant was found disabled by the Social Security Administration. However, regardless of the Social Security Administration's findings of disability, the claimant still has the duty of proving her claim and making attempts to seek employment to establish her loss of earning capacity. Dulaney v. National Pizza Co., 733 So.2d 301, 304 (¶ 8)’(Miss.Ct.App. 1998).