text:
    ONE 1970 MERCURY COUGAR, VIN# 0F9111545940, One 1992 Ford Mustang, VIN# FACP44E4NF173360, One Ford Mustang and $355.00 U.S. Currency, Appellants v. TUNICA COUNTY, Mississippi, Appellee.
    No. 2005-CP-00175-COA.
    Court of Appeals of Mississippi.
    Aug. 22, 2006.

      Willie Hampton, Appellant, pro se.
    Charles Buckley Graves, Tunica, attorney for appellee.
   ROBERTS, J.,

for the Court.

¶ 1. This appeal follows Willie Hampton’s arrest and Tunica County’s efforts to acquire portions of Hampton’s property through forfeiture. Tunica County filed the forfeiture action at issue nine days after Hampton was arrested. Nearly five years later, the Tunica County Circuit Court awarded Tunica County the property it sought. Aggrieved, Hampton appeals pro se and raises numerous issues. For brevity’s sake, we reduce those issues to the following one:

I. WAS THE FORFEITURE PROCEEDING INSTITUTED WITHIN THE PROPER TIME AS SPECIFIED BY MISSISSIPPI CODE ANNOTATED § 41-29-177.

Finding that the circuit court erred, we reverse and remand this matter to the circuit court for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 21, 2000, federal and state law enforcement agencies arrested Willie Hampton at his home and charged him with violations of Mississippi’s controlled substance laws. The Tunica County Sheriffs Department (the County) seized portions of Hampton’s personal property. In particular, the County seized a 1970 Mercury Cougar, two Ford Mustangs, and $355.

¶ 3. Nine days later, the County filed a complaint for forfeiture in the Tunica County Circuit Court and then served Hampton with process. Attorney David G. Hill entered a formal appearance as Hampton’s counsel in the forfeiture action. On October 18, 2000, Hampton filed a notice of deposition. Hampton intended to depose Deputy Sheriff Jerome Hudson on October 26, 2000. On the date set for deposition, Deputy Hudson did not attend.

¶ 4. Hampton finally filed his answer to the County’s complaint on November 1, 2000. Additionally, Hampton filed a motion for contempt along with his answer. Hampton remained determined to depose Deputy Hudson. On November 13, 2000, Hampton filed a motion to compel Deputy Hudson’s attendance at a deposition. On November 15, 2000, Hampton filed a second notice of deposition by which he again stated his intent to depose Deputy Hudson. Hampton sought to depose Deputy Hudson on November 16th.

¶ 5. The County took steps to prevent Hampton from deposing Deputy Hudson at that time. To that end, the same day that Hampton filed his second notice of deposition, the County filed a motion for stay of discovery. The County asked the circuit court to stay discovery because of Deputy Hudson’s participation in Hampton’s federal narcotics case that led to the County’s forfeiture action. On November 30, 2000, the circuit court entered an order and granted the County’s motion to stay discovery. By that order, the circuit court stayed all discovery until the federal district court adjudicated Hampton’s then pending criminal and civil cases.

¶ 6. According to the record, nothing happened in the County’s forfeiture proceeding until December 17, 2001. It appears that Hampton was a federal inmate as of that date, as indicated by his listed address at the federal penitentiary in Lompoc, California. In any event, on December 17, 2001, Hampton acted pro se and filed a document entitled “Replevin.” We interpret Hampton’s “Replevin” document as his claim that the seized property was not subject to a narcotics forfeiture and that the circuit court should dismiss Tunica County’s forfeiture petition. However, the “replevin” filing did not request a prompt hearing on the forfeiture action.

¶ 7. After December 17, 2001, there is another large gap in the record; this gap lasted three years. The record shows no activity regarding Tunica County’s forfeiture proceeding from December 17, 2001 until December 20, 2004. On December 20, 2004, Hampton filed a change of address with the circuit clerk. By his new address in the Victorville Unit B-3, Ade-lanto, California, and his prisoner number, it is clear that Hampton was a federal inmate at that time.

¶ 8. Additionally, the County filed a new petition for forfeiture in the same cause number on December 20, 2004, though the record does not contain an order by which the circuit court granted leave to allow the County to amend its prior petition. Regardless, in the County’s second petition for forfeiture, the County submitted that the circuit court should dismiss Hampton’s replevin claim and notified Hampton that a hearing on its forfeiture action would take place at 2:00 p.m. on February 24, 2005.

¶ 9. On December 30, 2004, Hampton’s counsel, David G. Hill, sent the County’s attorney a letter and stated that he no longer represented Hampton. However, the record does not contain an order that relieved Hill from his responsibilities as counsel of record for Hampton. After-wards, the record indicates that Hampton literally inundated the court file with pro se pleadings, such as entries of appearance, a writ of ad testificandum, notices of interrogatories, and a motion for extension of time for the forfeiture hearing.

¶ 10. On January 31, 2005, Hampton filed a pro se pleading titled “notice of ex parte expeditious motion show cause why action should not be dismissed re failure to prosecuted.” In that pleading, Hampton claimed that the delayed resolution of the forfeiture proceedings resulted in a violation of his “speedy trial” rights. That pleading was Hampton’s first demand that the circuit court speedily conclude that forfeiture action. On February 18, 2005, the circuit clerk filed a document titled “clerk’s motion to dismiss for want of prosecution.” The circuit court never ruled on that motion.

¶ 11. Apparently the circuit court conducted a hearing in Hampton’s absence on February 24, 2005. The circuit court did not make a record of that hearing. In any event, the circuit court entered an order on March 8, 2005, and held that the property at issue be forfeited to Tunica County. Hampton appeals.

STANDARD OF REVIEW

¶ 12. “The appropriate standard of review in forfeiture cases is the familiar substantial evidence/clearly erroneous test.” Galloway v. City of New Albany, 735 So.2d 407(¶ 15) (Miss.1999). “This Court will not disturb a circuit court’s findings unless it has applied an erroneous legal standard to decide the question of fact.” Id.

ANALYSIS

¶ 13. The County filed its complaint for forfeiture nine days after Hampton was arrested. Pursuant to Section 41-29-177(1):

Except as otherwise provided in Section 41-29-176, Mississippi Code of 1972, when any property, other than a controlled substance, raw material or paraphernalia, is seized under the Uniform Controlled Substances Law, proceedings under this section shall be instituted within thirty (30) days from the date of seizure or the subject property shall be immediately returned to the party from whom seized.

Miss.Code Ann. § 41-29-177(1) (Rev.2005). There can be no doubt that the County filed its complaint timely. Accordingly, whether the County filed its complaint in a timely manner is not the issue we must resolve. Rather, the central issue in this case is whether the County’s delay in prosecuting a timely filed forfeiture action constitutes a denial of Hampton’s due process rights.

¶ 14. After the County served Hampton with process, the County took no action until it requested a stay of discovery eight months later. Mississippi Code Annotated Section 41-29-179(1) (Rev.2005) provides, “upon the request by the Bureau of Narcotics, local law enforcement agency or the owner of the property, the court may postpone said forfeiture hearing date to a date past the time any criminal action is pending against said owner.”

¶ 15. While there is no Mississippi case law on this issue, practically speaking the issue arises not infrequently. Where forfeiture must be initiated while criminal proceedings are concurrently taking place, a criminal defendant has an incentive to use civil discovery tools to question law enforcement personnel regarding the details of their criminal eases. Likewise, a defendant’s Fifth Amendment rights in criminal proceedings can be implicated in concurrent civil proceedings. Therefore, it is not unusual for civil forfeiture actions to be continued until after the underlying criminal proceedings are concluded. See, e.g. Escamilla v. Tri-City Metro Drug Task Force, 100 Wash.App. 742, 999 P.2d 625, 630 (2000); State, v. Nourallah, 726 So.2d 923, 924 (La.App.Ct.1998). Nevertheless, a continued forfeiture action must be timely concluded, and an unreasonable delay will constitute a denial of due process. Id. at 925-926.

¶ 16. In determining whether a delay constitutes a denial of due process, other jurisdictions have adopted the federal standard as to the reasonableness of delay. See, e.g. State v. One Thousand Nine Hundred Forty Seven Dollars, 255 Neb. 290, 583 N.W.2d 611, 617 (1988); Escamilla, 999 P.2d at 630; Commonwealth v. Two Parcels of Land, 48 Mass.App.Ct. 693, 724 N.E.2d 739, 746 (2000). These cases adopted the federal test as to whether a delay constitutes a denial of due process as set forth in United States v. Eight Thousand Eight Hundred and Fifty Dollars in United States Currency, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983). In that case, the Supreme Court adopted the Barker v. Wingo factors as the appropriate test to determine whether a delay in initiating forfeiture proceedings constitutes a Fourteenth Amendment violation. The factors are the length of delay, the reason for the delay, the claimant’s assertion of his rights, and prejudice to the defendant.

¶ 17. In this case, the circuit court stayed the civil proceedings until after resolution of the federal criminal proceedings. However, the record is silent as to when the criminal proceedings concluded. Approximately a year after the circuit court stayed discovery, Hampton filed a replevin pleading. At that time, it appears that Hampton was a federal inmate housed in the federal penitentiary in Lompoc, California. A lapse of three years followed. That lapse ended on December 20, 2004, when Hampton filed a change of address with the circuit clerk and the County filed a second petition for forfeiture. Only then did Tunica County file a notice of hearing for February 24, 2005. The County offers no explanation for this delay in either the record or its brief.

¶ 18. Certainly the length of delay is substantial. However, the record is silent as to the reason for the delay. Hampton failed to assert any claim for a speedy resolution until January 31, 2005. Of the four factors from Barker, the most critical factor is prejudice to the accused. Jones v. Greene, 946 S.W.2d 817, 826 (Tenn.Ct.App.1996). The most critical aspect to prejudice is the ability to defend against the claim. Id. A delay may be considered harmless without a showing of actual prejudice. Id. However, as with the reason for the delay, the record is simply silent as to how the delay prejudiced Hampton’s ability to defend the action.

¶ 19. We reverse and remand in order to allow the parties to present a record that would allow analysis by this Court under the Barker standards. On remand, Tunica County will have an opportunity to explain the delay and Hampton will have an opportunity to explain why he did not request a hearing for three years. Hampton would also have an opportunity to detail just what actual prejudice he may have suffered.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY GRANTING THE FORFEITURE OF ONE 1970 MERCURY COUGAR, ONE 1992 FORD MUSTANG, ONE FORD MUSTANG AND $355 IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TUNICA COUNTY.

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

      . Based on the record, particularly some of the exhibits and documents Hampton filed with his pleadings, it appears that Hampton was indicted in Case No. 2:00CR094 for numerous serious narcotics offenses and then tried and convicted in January of 2001. Nothing appears in the record regarding any appeal, reversal, retrial or subsequent federal criminal proceedings.

      . That document contains a typographical error that reflects the hearing date as February 24, 2004, rather than the correct date of February 24, 2005.

      . It’s likely that Hampton was absent because he was an incarcerated in California as a federal inmate. The record does not disclose whether the circuit court attempted to have federal authorities return Hampton to Tunica County so that he could be present for the hearing.

      . 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).


source: Caselaw Access Project

author: SOUTHWICK, J.,

license: Public Domain

text:
    Douglas JONES, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01702-COA.
    Court of Appeals of Mississippi.
    Aug. 22, 2006.

      Douglas Jones, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. Douglas Jones pled guilty to the crime of sexual battery in 2004. The next year he filed for post-conviction relief. He claims that his plea was not voluntarily and knowingly entered. We agree that there is some question as to whether he knowingly entered his plea. We remand for a hearing.

FACTS

¶ 2. On April 10, 2003, Jones was indicted by a Marshall County grand jury for the crime of sexual battery of a minor under the age of fourteen. The victim was his then-ten-year-old biological daughter. She said that Jones had raped her. The victim’s mother took the victim to a physician due to worrisome symptoms. A physician confirmed that the victim had contracted a sexually transmitted disease. Jones suffered from this sexually transmitted disease at the time of the incident. On May 19, 2004, Jones pled guilty to sexual battery. The circuit court accepted Jones’s guilty plea and sentenced Jones in accordance with the recommendation of the prosecution. Jones was sentenced to twenty years imprisonment, fifteen years suspended, three years of post-release supervision, registration as a sex offender, and court costs.

¶ 3. On May 13, 2005, a little less than a year later, Jones filed for post-conviction relief. His claims concern what he was told at the guilty plea hearing, what he otherwise knew concerning his rights, and the details of the charged crime. The trial judge found that the motion should be disposed of without requiring a response from the State or having a hearing. All relief was denied. Jones’s appeal has been deflected to this Court.

DISCUSSION

ISSUE 1: Validity of Guilty Plea

¶4. Jones argues that his guilty plea was not voluntarily, knowingly, and intelligently entered because he was not informed of the elements of the charge. Before we review the evidence, we will seek clarity in understanding what the constitutional requirements for a plea entail.

¶ 5. A guilty plea is not valid unless it is made “with sufficient awareness of the relevant circumstances and likely consequences.” Bradshaw v. Stumpf, 545 U.S. 175, 125 S.Ct. 2398, 2405, 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)). The “Constitution insists” that a plea be entered in this manner because a defendant, by pleading guilty, foregoes fundamental constitutional guarantees. United States v. Ruiz, 536 U.S. 622, 629, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002).

¶ 6. The objective of this standard is to satisfy the due process requirement that a defendant receive “real notice of the true nature of the charge against him.” Bousley v. United States, 523 U.S. 614, 618, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859 (1941)). At the hearing accepting a guilty plea, a trial court must assure itself that a defendant understands the nature and elements of the crime for which he is admitting guilt. Stumpf 125 S.Ct. at 2405 (citing Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976)). A court accepting a guilty plea does not have to explain the crime’s elements to the defendant on the record, as it is also sufficient if “the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel.” Stumpf, 125 S.Ct. at 2405.

¶ 7. In Stumpf, the defendant’s attorneys made a representation on the record that they explained the elements of the crime to the defendant. Id. The defendant then confirmed that what the attorneys had said was true. Id. The Supreme Court opinion is not explicit that this was done in open court instead of in writing, but the district court opinion described the plea hearing in detail. The district judge “engaged petitioner and his attorneys in a colloquy” that evoked assurances by the attorneys that they had informed the accused of the elements of the offense and his defenses. Stumpf v. Anderson, No.C-1-96-668, 2001 WL 242585, at *15 (S.D.Ohio Feb.7, 2001). The Court of Appeals opinion determined that these assurances were inadequate:

[The defendant’s] attorneys represented to the court that they had explained to Stumpf the elements of the crime, their own arguments to the court during the plea colloquy and the evidentiary hearing to establish a factual basis for the plea refute the typical presumption that defense counsel have fully and adequately explained all elements of a crime to a client before he pleads guilty. Indeed, defense counsel’s representations to the court either betray their own ignorance of the intent element of aggravated murder, or represent a woefully inadequate understanding of the meaning of a guilty plea. Finally, the plea colloquy itself, along with Stumpfs statements to the court through all stages of the proceedings, demonstrates Stumpfs unwillingness to admit to intent.

Stumpf v. Mitchell, 367 F.3d 594, 601 (6th Cir.2004), rev’d sub nom. Bradshaw v. Stumpf, 545 U.S. 175, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005). The circuit court found that despite the assurances by counsel that their client knew the nature and elements of the charge, other comments by them “betrayed” those assurances.

¶ 8. With this background, the Supreme Court in Sfoimpf made these relevant comments:

In Stumpfs plea hearing, his attorneys represented on the record that they had explained to their client the elements of the aggravated murder charge; Stumpf himself then confirmed that this representation was true.... While the court taking a defendant’s plea is responsible for ensuring “a record adequate for any review that may be later sought,” Boy- kin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), we have never held that the judge must himself explain the elements of each charge to the defendant on the record. Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel. Cf. Henderson, supra, at 647, 96 S.Ct. 2253 (granting relief to a defendant unaware of the elements of his crime, but distinguishing that case from others where “the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused”). Where a defendant is represented by competent counsel, the court usually may rely on that counsel’s assurance that the defendant has been properly informed of the nature and elements of the charge to which he is pleading guilty.

Stumpf, 125 S.Ct. at 2405-06.

¶ 9. Stumpf requires an affirmative showing on the record that either counsel or the trial judge explained the elements of the crime to the defendant. The trial judge’s explanation will naturally appear in any transcript of the hearing. In Stumpf itself, counsel’s assertions that the crime was explained to the accused were also orally made at the hearing and transcribed. As we will explain, our issue is whether other means of making an affirmative representation will suffice.

¶ 10. At Jones’s guilty plea hearing, the trial judge did not explain the elements of the offense. The prosecutor was not asked to summarize the evidence that would be shown or otherwise give a factual basis for the offense. The indictment specifies the victim, the date the incident took place, the elements of the indicted charge, and the minimum and maximum penalties for the crime.

¶ 11. The petition Jones filed to enter his guilty plea contains the following relevant language:

I plead guilty to the charge(s) of Sexual Battery as set forth in the indictment in this cause number.
My lawyer had advised me of the nature of the charge(s) and the possible defenses that I may have to the charges(s). I understand that by pleading guilty I am admitting that I did commit the crime charged in the indictment....
My lawyer has advised me of the elements of the charge to which I am pleading. I submit that all the elements are proven by [the] true facts. Therefore, I am guilty and ask the Court to accept my plea of guilty.

¶ 12. The judge when accepting the plea examined Jones to ensure that he had reviewed the petition to plead guilty with his attorney and that the signature on the petition was authentic. The court neither referred to the elements of the crime nor asked counsel whether he had explained the elements to Jones. The court made reference to the petition and the petition made reference to the indictment, but there was never any specific assurance that the elements of the crime were explained to Jones. The petition does not summarize the elements of the crime.

¶ 13. The last page of the petition Jones filed was signed by Jones and his counsel. The signature of Jones appears below the phrase, “Signed by me in the presence of my lawyer, this the _ day of May, 2004.” The signature of counsel appears after the following statement:

A^ attorney for this Defendant, I certify that I have on the above date discussed all the contents of the foregoing petition with said defendant and I am satisfied that the defendant fully understands the same and that the defendant executes said petition knowingly and voluntarily.

Though the form petition was not sworn to and subscribed before a notary public, Jones was under oath when he told the court that he signed the petition and agreed with its contents. So this incorporation of the assertions in the petition into Jones’s sworn statements at the hearing makes the petition effectively sworn. The plea petition is the only evidence in this record that Jones received an explanation of the nature and elements of the charge, but it does not list the elements.

¶ 14. Our question then is whether this “record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel.” Stumpf, 125 S.Ct at 2405. More specifically, may “counsel’s assurance that the defendant has been properly informed of the nature and elements of the charge to which he is pleading guilty” (id. at 2406) be shown by form language in a plea petition, that is not confirmed by questioning in the hearing and appears on a petition in which the elements of the offense are not stated?

¶ 15. The Mississippi Supreme Court has yet to consider the effect of Stumpfi The Court has analyzed the authority on which Stumpf relied, Henderson v. Morgan, in holding that before a guilty plea can be valid, the defendant must know the elements of the crime. There are expert commentators on criminal procedure who found Henderson lacking in clarity in resolving the twin issues of which elements were critical and the necessary manner of notifying a defendant of these critical elements. WhITEBREAD & SLOBOGIN, CRIMINAL PROCEdure, 641-42 (1993). Stumpfi may have sought to remove some of the ambiguities.

¶ 16. Shortly after Henderson, the Mississippi Supreme Court held that in order for a guilty plea to be valid, it is essential “that an accused have knowledge of the critical elements of the charge.... ” Gilliard v. State, 462 So.2d 710, 712 (Miss.1985) (citing Henderson, 426 U.S. 637, 96 S.Ct. 2253). In Gilliard, the defendant entered a guilty plea and the trial court orally reiterated all of the elements of the crime to ensure the defendant understood the crime for which he was admitting guilt. Gilliard, 462 So.2d at 712-13. That sort of compliance with the requirements did not occur here.

¶ 17. The Mississippi Supreme Court has also upheld a guilty plea when the information that' was filed specified the elements of the crime and the defendant signed a petition that restated the charges in the information and certified that the defendant received a copy of the information. Gaskin v. State, 618 So.2d 103, 107 (Miss.1993). The Court, after quoting language in Gilliard which relied on Henderson, stated that the objective of ensuring a defendant is explained the elements of a crime prior to entering a guilty plea is to ensure “an intelligent assessment by the defendant of: (1) whether he has in fact done anything wrong under the law, and (2) the likelihood that he stands to be convicted if he exercises his right to a jury trial.” Gaskin, 618 So.2d at 107. The Court held that failure of the trial court to advise the defendant of the elements was harmless error where the defendant was advised by other sources about the critical elements of the crime. Id. at 108. These facts are similar to those at Jones’s guilty plea hearing, but the Gaskin decision did not have the benefit of the Stumpfi requirement that the “record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant” by his counsel or by the court. Stumpf, 125 S.Ct. at 2405-06.

¶ 18. The Court has followed a rule that “the failure of the trial court to advise the defendant of the elements of the charge may be harmless error if it can be shown that prior to the plea the defendant had been advised through other sources of the critical elements of the crime with which he is charged.” Carter v. State, 775 So.2d 91, 97 (Miss.1999) (citing Gaskin v. State, 618 So.2d 103, 107 (Miss.1993)). In Carter, a guilty plea was accepted and Carter appealed his conviction arguing ineffective assistance of counsel and that there was not a sufficient factual basis to support the crime. The Court found that Carter understood the charges against him and relied on the facts that the original indictment and subsequent information outlined the elements of the crime. Carter, 775 So.2d at 91. Carter testified that he and his attorney, William Bambach, had fully discussed the situation, and Bambach himself testified that he had fully discussed all of the factors of the case with Carter. Id. at 97-98. The Court also noted that “in some case, the charging papers may be sufficient to inform the defendant of the elements of the crime with which he is charged.” Id.

¶ 19. We find these precedents, all of which predate Stumpf, to be of limited application to the issue before us. We cannot conclude, based on the emphasis in Stumpf that the record should affirmatively reflect the defendant’s knowledge, that it is sufficient that the boilerplate language in a plea petition include a statement that the elements of the offense were explained to the accused, especially when the elements are not set out on the petition and the assurance is just one of many on the form. The United States Supreme Court was not adding a requirement of notice of the elements of the offense to a meaningless checklist, compliance to be noted in any manner no matter how subjectively uncertain. Stumpf requires a reliable indication that the defendant has had the elements of his offense explained. To the extent standard forms are used for guilty pleas, the trial judges who take the pleas should assure that the record at the hearing reveals the accuracy of a form statement that the elements were explained. The forms to some extent are a back-up to matters that a trial judge might overlook. Stumpf is not the first judicial precedent to imply that the judge taking the guilty plea also needs a checklist to assist in questioning the accused. On that checklist should be assurances on the elements of the offense.

¶ 20. Our view of the importance of Stumpf suggests that we are finding two tiers to the requirements of notice at a guilty plea hearing. Certain knowledge must be clearly explained at the hearing— the record must “accurately reflect” the accused’s knowledge. Other matters such as the minimum and maximum sentences for an offense might be proved in lesser ways. We do not find it advisable to address all the implications of our interpretation of Stumpf The state supreme court will make the binding interpretations, so restraint at this intermediate court is always in order. We are holding that since the United States Supreme Court has focused on the accuracy of the record in the explanations given a defendant on the specific elements of what the State has accused him or her of doing, that we will require the same heightened focus by the trial judge.

¶ 21. Not addressed directly by the motion but which we raise as a simple matter of the due process requirements related to the preceding principles is that, a factual basis for the crime must be presented in some manner at a guilty plea hearing. This hearing did not include any explanation by anyone as to the facts underlying the crime. In order for a plea to be accepted, the record must contain “enough that the court may say with confidence the prosecution could prove the accused guilty of the crime charged.” Corley v. State, 585 So.2d 765, 767 (Miss.1991).

¶ 22. We elaborated on our understanding of the “factual basis” requirement:

Uniform Circuit and County Court Rule 8.04(A)(3) requires that a court determine that “there is a factual basis for the plea.” Mississippi case law does not require that a defendant admit every aspect of a charge against him. Instead, a guilty plea may be considered valid even though the defendant makes only a “bare admission of guilt,” so long as the trial court delves beyond that admission and determines for itself that there is substantial evidence that the defendant actually committed the crimes charged. Gaskin v. State, 618 So.2d 103, 106 (Miss.1993).

Ray v. State, 876 So.2d 1032, 1035 (Miss. Ct.App.2004). The factual basis can come from an “independent evidentiary suggestion of guilt.” Id.

¶ 23. The motion for relief was denied simply on the pleadings. We reverse and remand for a hearing as to whether Jones actually had the elements of the offense explained to him prior to the time that he pled guilty, and whether there was a factual basis for the plea.

ISSUE 2: Proper Indictment

¶ 24. Jones challenges the indictment as not properly establishing the elements of his offense. Jones was indicted for the crime of sexual battery. Miss. Code Ann. § 97-3-95(l)(d) (Rev.2000). A person is guilty under this section if he engages in sexual penetration with a child under the age of fourteen, if the accused person is twenty-four or more months older than the child. Id. Jones argues that the indictment should have stated that the penetration was knowingly or intentionally committed. Sexual battery is not a specific intent crime and thus the indictment need not refer to a specific intent. Johnson v. State, 626 So.2d 631, 632 (Miss. 1993). The indictment is valid.

ISSUE 3: Other alleged defects in guilty plea

¶ 25. Jones alleges that his counsel was ineffective, that parole eligibility was mis-described, and he was not told the sentence range for the offense and of his right against self-incrimination.

¶ 26. The record better reflects that Jones was notified of the minimum and maximum sentence for the indicted charge than it does that he knew the elements of the offense. Unlike the conclusory statement in the petition that “my lawyer has advised me of the elements of the charge,” the petition stated that the maximum punishment for the offense was life imprisonment and the minimum was twenty years. Jones, at the guilty plea hearing, was told by the trial judge that if he went to trial he had the right not to testify; if he instead pled guilty, the right against self-incrimination would be one of the rights that he would be waiving. Jones stated that he understood.

¶ 27. There is no indication at the guilty plea hearing nor in the motion filed for post-conviction relief that Jones was misguided regarding his eligibility for parole. The plea petition makes generic references to parole, and sets out that depending on the crime and the dates of the offense, parole may not be available. The plea petition states that “if I am sentenced for a sex crime, I will not be released on parole until I have been examined by a psychiatrist.” Moreover, we do not find that he made this argument below. Jones may not raise on appeal an issue not presented to the trial court. Foster v. State, 716 So.2d 538, 540 (Miss.1998).

¶ 28. The issue of effectiveness of counsel’s assistance is raised simply by general allegations of steps that the counsel should have taken for a more thorough investigation. Since we are ordering a hearing on remand, such issues may be addressed at that time.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY IS REVERSED AND THE CAUSE IS REMANDED FOR A HEARING. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARSHALL COUNTY.

LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, ISHEE AND ROBERTS, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY. IRVING AND BARNES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.


author: KING, C. J.,

text:
    Robert C. SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01461-COA.
    Court of Appeals of Mississippi.
    Aug. 29, 2006.
    Michael Duane Mitchell, attorney for appellant.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   KING, C. J.,

for the Court.

¶ 1. On January 23, 2003, Robert C. Smith was found guilty by a Jones County Circuit Court jury of sale of a controlled substance. Smith was sentenced to a term of twenty-five years, with ten years to serve in the custody of the Mississippi Department of Corrections and fifteen years suspended. Smith appeals raising only the issues of sufficiency and weight of the evidence. Finding no error, we affirm the decision of the Jones County Circuit Court.

FACTS

¶ 2. On September 1, 2000, Karla McMa-han, a Laurel Police Department undercover officer, was driving around the area of Brown Street and Johnson Circle in Laurel, Mississippi. The truck which McMahan drove was rigged with two audio/video cameras. McMahan testified that she heard a whistle come from a group of men loitering around a store. She stopped the truck as Smith approached. Smith asked McMahan what she was looking for. McMahan indicated that she wished to purchase forty dollars worth of crack cocaine. Smith instructed McMa-han to drive around the block and return. McMahan complied and when she returned, Smith gave her .10 grams of crack cocaine in exchange for forty dollars. The transaction was captured on video. Smith was arrested three months later, in order to not give away McMahan’s identity.

ANALYSIS

¶ 3. In reviewing a challenge to the sufficiency of the evidence, this Court must determine whether any reasonable juror could have found that the State proved each element of the crime charged beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We will reverse a verdict based on a challenge to the weight of the evidence only when the verdict is so overwhelmingly against the weight of the evidence that allowing it to stand would sanction an unconscionable injustice. Id. (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)).

¶ 4. Smith was indicted under Mississippi Code Annotated § 41-29-139(a), which prohibits any person from knowingly and intentionally selling a controlled substance. At trial, McMahan and Layne Bounds, Sergeant of the Narcotics Division, identified Smith as the individual who sold McMahan crack cocaine on September 1, 2000. Jamie Johnson, a drug analyst at the Mississippi Crime Lab, testified that the substance purchased from Smith was .10 grams of crack cocaine. Also, the videotape depicting the transaction was played for the jury.

¶ 5. Smith’s only contention on appeal is that the man in the videotape did not look like the defendant on the day of trial. Smith argues that the man shown on the videotape was nearly one hundred pounds heavier than Smith, and that the man shown on the videotape had a beard, which Smith did not have on the day of trial. However, both McMahan and Bounds testified that they noticed that the defendant had lost a significant amount of weight and was clean shaven at trial, but still positively identified Smith as the man who sold McMahan the crack cocaine. Although McMahan had never seen Smith prior to the purchase, Bounds knew Smith prior to his arrest.

¶ 6. The State provided evidence on every element of the crime charged. Witness credibility is an issue to be resolved by the finder of fact. Price v. State, 898 So.2d 641, 652(¶ 25) (Miss.2005). In the case sub judice, the jury heard the testimony of two police officers who identified Smith as the person who sold McMahan crack cocaine. The jury also viewed a videotape of the transaction. Clearly, the jury resolved the issue of witness credibility in favor of the State. Accordingly, we find that the jury’s verdict was not against the overwhelming weight of the evidence.

¶ 7. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT OF CONVICTION OF SALE OF A CONTROLLED SUBSTANCE AND SENTENCE OF TWENTY-FIVE YEARS WITH TEN TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND THE REMAINING FIFTEEN YEARS SUSPENDED UPON SUCCESSFUL COMPLETION OF SERVICE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


author: CHANDLER, J.,

text:
    Carla Ann Crenshaw STREET, Appellant v. Stephen Edward STREET, Appellee.
    No. 2004-CA-02501-COA.
    Court of Appeals of Mississippi.
    Aug. 29, 2006.

      Anna Claire Ward, William R. Wright, W. Benton Gregg, Jackson, attorneys for appellant.
    Benny McCalip “Mac” May, Jackson, attorney for appellee.
    Before MYERS, P.J., IRVING, CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Carla Ann Crenshaw Street and Stephen Edward Street were divorced on the ground of irreconcilable differences in the Chancery Court of Madison County. The chancellor entered a final judgment of divorce on August 16, 2004. As part of that judgment, the chancellor awarded primary physical and legal custody of the Streets’ two children to Carla and ordered Stephen to pay $500 per month in alimony. On October 25, 2004, the chancellor granted Stephen’s motion for reconsideration and, on December 9, 2004, entered an amended judgment awarding primary physical and legal custody to Stephen and revoking Carla’s alimony award.

¶ 2. Carla appeals, arguing that the chancellor erred (1) by hearing Stephen’s motion for reconsideration because it was untimely filed; (2) by conducting an erroneous Albright analysis that placed inordinate emphasis on one factor; and (3) by revoking Carla’s award of alimony.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. The Streets were married on June 25, 1988, and both embarked on careers as church pastors. They lived in.a house in Madison, Mississippi. The Streets had twin boys, Ragan Crenshaw Street and Riley Stratton Street, who were born on September 24, 1998. The Streets constructively separated after they had a physical altercation on August 10, 2003, and Carla filed a complaint for divorce on September 8, 2003. Stephen moved out of the marital domicile in December 2003. At that time, the twins were five years old.

¶ 5. A guardian ad litem was appointed in December 2003. As reflected by a series of agreed orders, the parties agreed temporarily to share joint physical and legal custody of the twins until the divorce hearing. On May 14, 2004, Stephen filed a counterclaim for divorce and custody. On June 7, 2004, Stephen filed a petition for emergency temporary relief, alleging that Carla had moved Paul Zinn, Sr., into the marital home, and that Zinn was an unre-covered alcoholic with a violent criminal past. Stephen prayed for sole legal and physical custody of the twins. On June 16, 2004, an agreed order was entered providing for joint custody, but restricting Carla from exposing the children to Zinn during her visitation.

¶ 6. The divorce hearing occurred on June 23, 2004. At the hearing, it was established that Carla had met Zinn at a church dinner at the end of April 2004. At that time, Zinn was participating in inpatient treatment for alcoholism. Carla embarked on a sexual relationship with Zinn and spent portions of the weekend of April 30, 2004, in a hotel room with Zinn. At that time, Zinn was temporarily absent from the treatment center on a weekend pass. After the weekend, Zinn was discharged from treatment for violating a policy against romantic relationships. Carla testified that, because Zinn had nowhere to live, she allowed him to move into the marital domicile. Zinn sometimes slept in Carla’s bedroom during Carla’s visitation with the twins. In May 2004, Carla became engaged to be married to Zinn. Around June 13, 2004, Carla and Zinn traveled to Wisconsin to visit Zinn’s family. While there, Zinn was arrested pursuant to a warrant for failure to pay child support. Carla testified that she had broken off her relationship with Zinn due to his incarceration in Wisconsin.

¶ 7. In a June 2004 deposition, Zinn admitted that he was an alcoholic and had consumed one six-pack of beer per day and one pint of whiskey per week since being discharged from treatment. He was unemployed. He further admitted that, during his lifetime, he had been arrested ten to twelve times, including four times in the past five years. He stated that he had spent approximately five years imprisoned for various crimes. He admitted that one of his prison sentences was extended by five months because he had gotten into fights. He further admitted to having hit a former girlfriend during a domestic quarrel.

¶ 8. After weighing the Albright factors, the chancellor awarded legal and physical custody of the children to Carla, with visitation for Stephen. The chancellor’s award was based, in part, on the guardian ad litem’s identification of Carla as the person with the best parenting skills and on the cessation of Carla’s relationship with Zinn. The chancellor strongly admonished Carla never to allow Zinn in the presence of the children and never to have any overnight male visitors during her time with the children. As Carla was the custodial parent, the chancellor awarded the marital domicile to Carla in the property division. The chancellor ordered Stephen to pay Carla $662 per month in child support and $500 per month in alimony.

¶ 9. On July 20, 2004, Stephen filed a motion for reconsideration. On July 30, 2004, he filed a motion for a new trial along with the affidavit of one of Carla’s neighbors stating that it appeared that Zinn had resumed living with Carla and the children at the marital domicile. On August 16, 2004, the court entered a final judgment of divorce setting out its holdings from the bench opinion. On August 19, 2004, the chancellor, finding that irreparable harm could result if the children remained in Carla’s care, awarded full temporary custody to Stephen.

¶ 10. A hearing occurred on October 25, 2004. At the hearing, it was stipulated that Zinn had resumed living at the marital domicile. Zinn admitted that, since his return to Mississippi, he had been arrested and charged with public drunkenness. Carla admitted that Zinn had been living with her since July 2004. Carla testified that she had allowed Zinn to return in violation of the court order because of her and Zinn’s financial situation, because she, Zinn, and the children had formed a loving family, and because she thought the chancellor’s judgment was based on false information about Zinn, She testified that it would be unfair if the chancellor made her “choose between the kids and Zinn” by granting her custody conditional on keeping Zinn away from the children. Carla stated that she could “probably” abide by such a ruling, but would seek to have it overturned.

¶ 11. The chancellor granted Stephen’s motion for reconsideration, and, on December 9, 2004, entered a judgment amending the prior order of divorce. In the amended judgment, the chancellor reconsidered her Albright analysis and awarded physical and legal custody to Stephen, with Carla to have daytime visitation on two days per week and on certain holidays. The daytime visitation was to continue until such time when Carla could demonstrate that she was willing and able to provide a safe environment for the children for overnight visitation. Because Stephen was to be the custodial parent, the chancellor awarded him the marital domicile and ordered Carla to pay him $276 per month in child support. The chancellor revoked the prior award of alimony to Carla.

STANDARD OF REVIEW

¶ 12. This Court adheres to a limited standard of review in domestic relations matters. Pearson v. Pearson, 761 So.2d 157, 162(1114) (Miss.2000). When the chancellor’s findings are supported by substantial evidence, we will not reverse unless the chancellor abused her discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Chapel v. Chapel, 876 So.2d 290, 292(¶ 8) (Miss.2004). We may disturb a chancellor’s findings of fact only when there is no substantial, credible evidence in the record to support those findings. Copeland v. Copeland, 904 So.2d 1066, 1074(¶ 30) (Miss.2004). Moreover, we view the facts of a divorce decree in the light most favorable to the appellee. Fisher v. Fisher, 771 So.2d 364, 367(¶ 8) (Miss.2000).

LAW AND ANALYSIS

I. WHETHER THE CHANCELLOR ERRED IN HEARING STEPHEN’S UNTIMELY FILED MOTION FOR RECONSIDERATION.

¶ 13. Carla argues that the chancellor erred by considering Stephen’s motion for reconsideration because it was untimely filed. This assignment of error necessitates a discussion of the procedural history of this case subsequent to the divorce hearing. On June 23, 2004, the day of the hearing, the chancellor rendered a bench opinion and indicated that a final judgment would be forthcoming. On July 20, 2004, Stephen filed a “Motion for Reconsideration.” This motion requested reconsideration of the bench opinion based on the facts adduced at the hearing. On July 30, 2004, Stephen filed a “Motion for a New Trial” requesting the opportunity to present evidence that Zinn had returned to Carla’s home after the hearing. On August 16, 2004, the chancellor entered a final judgment that adhered to its bench opinion. The same day, Stephen filed a petition for contempt, modification, and emergency temporary relief based on Zinn’s return. Thereafter, the chancellor granted temporary custody to Stephen.

¶ 14. Stephen brought his motions on for hearing on October 25, 2004. The chancellor stated that she was granting Stephen’s motion for reconsideration and that she would hear the evidence concerning Zinn’s return. Three witnesses testified on behalf of Carla, including Zinn, Carla, and a witness attesting to Zinn’s character. On December 9, 2004, the chancellor entered an “Amended Judgment” revising her original findings of fact and conclusions of law.

¶ 15. A motion for reconsideration requesting a change in the result of a bench trial has been deemed to be a motion to alter or amend the judgment pursuant to Mississippi Rule of Civil Procedure 59(e). In re Estate of Stewart, 732 So.2d 255, 257(¶ 8) (Miss.1999). Carla asserts that the amended judgment was the product of the chancellor’s grant of Stephen’s motion for reconsideration, which she contends was untimely filed under Rule 59(e). However, the conduct of the October 25, 2004 hearing indicates that the chancellor also granted Stephen’s Rule 59(a) motion for a new trial because the chancellor reopened the judgment, took additional testimony and then entered an amended judgment with revised findings of fact and conclusions of law. See M.R.C.P. 59(a) (“[o]n a motion for a new trial in an action without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make findings and conclusions, and direct the entry of a new judgment”).

¶ 16. The timing of post-trial motions under Rule 59(a) and Rule 59(e) is the same; such motions must be made “not later than ten days after the entry of judgment.” M.R.C.P. 59(b); 59(e). Both Stephen’s Rule 59(e) motion for reconsideration and his Rule 59(a) motion for a new trial were filed after the chancellor’s bench opinion but before the final judgment was entered. Carla argues that Stephen’s motion for reconsideration was untimely under Rule 59(e) because it was filed before the final judgment was entered rather than within ten days after the entry of the final judgment. For that reason, she contends that the motion should not have been considered by the chancellor.

¶ 17. It appears that the question of whether a Rule 59(e) motion is timely if filed before the entry of a final judgment is one of first impression in Mississippi. However, “[t]he Mississippi Rules of Civil Procedure are patterned after the Federal Rules of Civil Procedure, and we have looked to the federal interpretations of our state counterparts as persuasive authority.” Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1215(¶ 32) (Miss.2001). Federal authority is settled that a Rule 59 motion is timely though filed after the court makes findings of fact but before the entry of a final judgment. See 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 2812 at 82 n. 44 (1973).

¶ 18. As previously stated, the timing of a Rule 59(e) motion to alter or amend a judgment and a Rule 59(a) motion for a new trial is identical; both motions must be made “not later than ten days after the entry of judgment.” M.R.C.P. 59(b); 59(e). In Hilst v. Bowen, 874 F.2d 725, 726 (10th Cir.1989), the Tenth Circuit observed that “courts and commentators generally agree that this ten-day limit sets only a maximum period and does not preclude a party from making a Rule 59 motion before a formal judgment has been entered.” The Hilst court found that the appellant’s motion for reconsideration was timely though made after the lower court rendered a memorandum and order but before the court entered a final judgment. Id. In concluding that a motion for a new trial filed before entry of judgment was timely, the Fifth Circuit stated that “[the] language [of Rule 59(b) ] does not explicitly require that a motion for new trial be made after judgment is entered, and it has not been interpreted to include this requirement.” Greater Houston Ch. of the ACLU v. Eckels, 755 F.2d 426, 427 (5th Cir.1985); see also McCulloch Motors Corp. v. Oregon Saw Chain Corp., 245 F.Supp. 851, 853 (S.D.Cal.1963) (finding that, by the rule’s use of the words “shall” and “not later than,” the ten days after the entry of judgment established an outside, not an inside, limit for the timing of a motion for a new trial). Based on this authority, we find that Stephen’s Rule 59(e) motion was timely filed after the chancellor’s rendition of her bench opinion, though before the final judgment was entered.

II. THE CHANCELLOR’S ALBRIGHT ANALYSIS WAS ERRONEOUS AND PLACED INORDINATE EMPHASIS ON ONE FACTOR, ALLOWING THAT ONE FACTOR TO INAPPROPRIATELY SKEW THE CUSTODY AWARD.

¶ 19. In the amended judgment, the chancellor reconsidered several of the Al-bright factors and concluded that the best interest of the children required Stephen to have primary custody of Ragan and Riley. Carla argues that the chancellor placed undue weight on her relationship with Zinn. She contends that the chancellor should have weighed several Albright factors in her favor and should have awarded her primary custody of the children.

¶ 20. The polestar consideration in child custody cases is the best interest and welfare of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). In order to arrive at a custody arrangement that is in the child’s best interest, the chancellor must make specific findings on each of the factors listed in Albright: (1) age, health and sex of the child; (2) determination of the parent that had the continuity of care prior to the separation; (3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of parent and child; (7) moral fitness of the parents; (8) the home, school and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Id.

¶ 21. On review of the chancellor’s custody award, this Court looks to the evidence and testimony regarding each Al-bright factor to determine whether the chancellor’s ruling was supported by the record. Hollon v. Hollon, 784 So.2d 943, 947(¶ 13) (Miss.2001). Because the chancellor was in the best position to evaluate the factors pertaining to the best interest of the child, we will not substitute our judgment for that of the chancellor. Copeland, 904 So.2d at 1074(¶ 30). We may reverse only if the chancellor’s findings were not supported by substantial evidence, were manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id.

Age, health, and sex of the children

¶ 22. The chancellor found that Ragan and Riley were both healthy, active, male five-year-olds at the time of the trial, and that this factor did not weigh in favor of either party. Carla argues that, under the tender years doctrine, the chancellor should have found that this factor favored her as the boys’ mother.

¶ 23. The tender years doctrine is not a rule, but merely a presumption that, “in all cases where any child is of such tender age as to require the mother’s care for its physical welfare, it should be awarded to her custody, at least until it reaches that age and maturity where it can be equally well cared for by other persons.” Law v. Page, 618 So.2d 96, 101 (Miss.1993) (citing Johns v. Johns, 57 Miss. 530 (1879)). Though the tender years doctrine has been weakened, it is still a viable consideration in custody determinations. Copeland, 904 So.2d at 1075(¶ 35). But, while the tender years presumption is an important consideration in determining custody, it is only one factor out of many in determining the custody arrangement that is in the best interest and welfare of the child. Id.

¶ 24. The chancellor discussed the tender years doctrine and found that there was no compelling reason to favor Carla. Indeed, the record showed that both parents actively cared for Ragan and Riley, and that Stephen was adept at caring for the boys’ physical needs. It is apparent from the evidence that, at age five, the boys were not especially dependent on their mother for their physical welfare. Therefore, we find that the chancellor’s decision was not manifestly erroneous. As in Copeland, we note the practical consideration that Ragan and Riley are now over seven years old and the tender years doctrine would no longer apply. Id.; Gutierrez v. Bucci, 827 So.2d 27, 31(¶ 17) (Miss. Ct.App.2002).

Continuity of care

¶25. The chancellor found that Carla had provided the majority of the children’s care before the parties separated and that this factor slightly favored her. Carla does not take issue with this finding.

Best parenting skills

¶ 26. In her bench opinion, the chancellor found that Carla had the best parenting skills based on the report of the guardian ad litem and the testimony. But in the amended judgment, the chancellor found that she had erroneously placed too much weight on the guardian ad litem’s report. On re-examination of the evidence, the chancellor found that Carla had exhibited bad judgment and poor parenting skills by becoming romantically involved with a practicing alcoholic and moving him into her home. The chancellor found that this factor favored Stephen.

¶ 27. Carla argues that the chancellor erred by placing weight on Carla’s decision to become involved with Zinn because that decision impacted Carla’s personal life and was not indicative of her skills as a parent. We disagree. Certainly, Carla’s decision to move Zinn into her children’s home was a decision that necessitated an exercise of parental judgment. The record fully supports the chancellor’s finding that this exercise of parental judgment was a poor one. In her final report, the guardian ad litem opined that Zinn presented a clear and present risk to the children, and that Carla had exhibited a “total lack of judgment” in moving Zinn into her home. The guardian ad litem stated that Carla “adamantly and repeatedly refused to place her children’s best interest ahead of her relationship with this man.” The guardian ad litem further stated that she had favored Carla as the custodial parent until Carla became involved with Zinn in May 2006. Subsequent to that date, the guardian ad litem believed that Stephen would be the better custodial parent.

¶ 28. The chancellor’s weighing of this factor in favor of Stephen was supported by substantial evidence.

Which parent has the willingness and capacity to provide primary child care

¶ 29. In her bench opinion, the chancellor found that this factor slightly favored Carla. But in the amended judgment, the chancellor found that this factor favored Stephen because

there is a question as to whether [Carla] has a willingness to care for the minor children. It appears to this [e]ourt that [Carla] has put Mr. Zinn before the welfare of her children and may be willing to sacrifice her minor children for him. At trial, there was some testimony that [Carla] had made a comment to the effect that God may have called her to offer up her children like Abraham offered up Isaac. The [c]ourt did not place much stock in her statement during the original hearing. [Carla’s] testimony at the hearing on the motion for reconsideration has caused this [c]ourt to place more weight on the comment. [Carla] testified that she allowed Mr. Zinn to move back into her home as soon as he was released from jail in Wisconsin, and that she had done this despite of [sic] the [c]ourt’s order prohibiting her [from] exercising] visitation in the presence of Mr. Zinn. [Carla] further testified that she did not know if she could abide by any order from this [c]ourt directing her not to bring the children in contact with Mr. Zinn.

¶ 30. The evidence cited in the chancellor’s consideration of this factor was supported by the record. Carla contends that the chancellor erroneously overlooked her capacity to care for the children due to her work schedule as a public schoolteacher. We find that, in light of the evidence concerning Carla’s questionable willingness to care for the children, the chancellor did not manifestly err in finding that this factor favored Stephen.

Employment of the parent and responsibility of that employment

¶ 31. The evidence established that Stephen’s job required him to occasionally travel, while Carla’s teaching job allowed her work schedule to coincide with the time the boys would be in school. Stephen testified that the boys stayed with his parents when he traveled, or that he brought them along on trips. The chancellor found that this factor favored Carla, and this finding is not challenged on appeal. Stability of home environment and employment of each parent

¶ 32. At the time of the trial, Stephen worked as a pastor, a job which he had held for several years. Carla had recently lost her job as a pastor and obtained a new job as a schoolteacher. In her bench opinion, the chancellor found that this factor weighed equally between the parties because both parents’ employment seemed to be stable. But in the amended judgment, the chancellor re-examined the evidence and found that this factor favored Stephen due to his much longer continuity of employment. In her amended judgment, the chancellor had the power to reconsider her earlier findings. M.R.C.P. 59(a). The finding that Stephen’s employment was more stable was supported by the evidence that Carla had recently lost her long-term employment and had entered a new field of employment.

Moral fitness of the parents

¶ 33. In her bench opinion, the chancellor weighed this factor equally between Stephen and Carla because, after their separation, both had begun relationships with persons of the opposite sex. Carla became involved with Zinn, and Stephen admitted that he had become romantically involved with a woman whom he had exposed to the children. However, Stephen denied ever having had sexual relations with the woman and denied that she had ever spent the night with him. Based on this evidence, in combination with the fact that Carla had commenced a sexual relationship with Zinn and was co-habitating with him in the presence of the children, the chancellor reconsidered her findings and weighed this factor in favor of Stephen.

¶ 34. In her argument that this factor should not have weighed for Stephen, Carla cites evidence of Stephen’s moral unfitness including: that Stephen told Carla that he had romantic feelings for the neighbor, that he once left the children and another child alone in the house; that he exhibited a pattern of lying and manipulation; that he had spanked the children out of anger, and that he had once physically abused Carla in front of the children. We find that the chancellor acted within her discretion in placing more weight upon Carla’s adulterous relationship with Zinn and her ongoing co-habitation with him than upon the evidence surrounding Stephen’s morally unfit behavior. The chancellor’s weighing of this factor in favor of Stephen was supported by substantial evidence.

Conclusion

¶ 35. The chancellor found that the other Albright factors either weighed equally for both parties or were irrelevant due to the children’s age; these findings were not challenged on appeal. Of the factors found to favor either party, the chancellor found that the continuity of care and employment factor favored Carla, while the parenting skills, willingness and capacity, stability, and moral fitness factors favored Stephen. Though the primary reason for the chancellor’s custody determination was Carla’s conduct surrounding Zinn, under these particular facts, that conduct was relevant to the chancellor’s analysis of several of the Al-bright factors. We find that the chancellor carefully weighed each Albright factor and properly exercised her discretion in determining that awarding primary custody to Stephen was in the children’s best interest.

III. IN THE AMENDED FINAL JUDGMENT, THE CHANCELLOR ERRED IN REVOKING CARLA’S AWARD OF ALIMONY.

¶ 36. In the original judgment, the chancellor concluded her property division by awarding Carla $500 per month in periodic alimony. The chancellor’s amended judgment adjusted the property division and revoked the alimony award. Carla argues that the chancellor erred by altering the alimony award without considering the factors from Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).

¶ 37. As the chancellor revoked her earlier decision to award alimony, we do not review the propriety of the initial alimony award. Rather, we review the chancellor’s ultimate decision to deny alimony. The decision to award alimony is largely within the chancellor’s discretion. Gray v. Gray, 562 So.2d 79, 83 (Miss.1990). To determine whether to award permanent periodic alimony, the chancellor must consider the twelve factors enumerated in Armstrong: (1) the parties’ income and expenses; (2) the parties’ health and earning capacities; (3) each party’s needs; (4) each party’s obligations and assets; (5) the length of the marriage; (6) the presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care; (7) the parties’ age; (8) the parties’ standard of living, both during the marriage and at the time of the support determination; (9) the tax consequences of the spousal support order; (10) fault or misconduct; (11) wasteful dissipation of assets by either party; and (12) any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support. Armstrong, 618 So.2d at 1280. In determining the alimony award, the chancellor should consider the wife’s reasonable needs and the husband’s right to lead as normal a life as possible with a decent standard of living. Gray, 562 So.2d at 88.

¶ 38. The record reveals that the chancellor considered the Armstrong factors in rendering her initial alimony award to Carla. The chancellor found that both parties were in good health, had doctorate degrees, and had equal earning capacity. Carla’s adjusted gross income was $1,379.98 per month, and Stephen’s adjusted gross income was $3,311.18 per month. Beginning in September 2004, Carla’s pay would increase to $30,000 per year. The chancellor found from Carla’s Rule 8.05 financial statement that, with the award of the marital domicile to Carla and Carla’s childcare expenses, Carla would be unable to maintain herself and the children in their standard of living without an alimony award. In the amended judgment, the chancellor awarded the marital domicile to Stephen in light of her decision to award primary custody of the children to Stephen. The chancellor further found that, under the revised property division, Carla had sufficient income for her maintenance and support without alimony.

¶ 39. On review of a chancellor’s decision regarding alimony, the lack of an on-the-record Armstrong analysis does not warrant reversal unless “the failure to make specific findings of fact and conclusions of law constitutes manifest error.” Godwin v. Godwin, 758 So.2d 384, 387(¶ 11) (Miss.1999). While the chancellor performed an on-the-record Armstrong analysis in her original judgment, the chancellor did not perform a second on-the-record balancing of the factors in her decision to deny alimony. Nonetheless, the original and amended judgments enable our meaningful review of the chancellor’s decision. According to the chancellor’s bench opinion, Carla’s education level and earning potential were equal to Stephen’s, but Carla’s lower paying teaching job enabled her to spend time with the children during her exercise of primary custody. The amended judgment divested Carla of primary custody and the financial responsibilities of the mortgage, home maintenance, and childcare that she was burdened with under the original judgment. It is readily apparent from the original judgment that those financial burdens were the primary reasons for the chancellor’s initial alimony award, and from the amended judgment that the removal of those financial burdens was the primary reason for the denial of alimony. We find no manifest error in the chancellor’s decision.

¶ 40. THE JUDGMENT OF THE CHANCERY COURT OF MADISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . While it was undisputed that the Streets had a physical altercation in front of the children that incited their separation, police reports and the testimony of the parties conflicted as to the level of Stephen’s fault in the incident.