author: MYERS, P.J.,

text:
    Phillip SHUMAKER, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KP-00039-COA.
    Court of Appeals of Mississippi.
    May 15, 2007.

      Phillip Shumaker, Appellant, pro se.
    Office of the Attorney General by John R. Henry, Attorney for Appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Phillip Shumaker was indicted on May 6, 2005, in the Circuit Court of Lowndes County for the sale of cocaine. However, at the time of Shumaker’s indictment, he was awaiting trial in Tennessee on unrelated felony charges. Shumaker was later convicted of the charges pending in Tennessee and the State of Mississippi moved to amend the indictment against Shumaker so as to charge him as a habitual offender based upon his three felony convictions in Tennessee. However, the trial court did not grant the State’s motion to amend the indictment at that time. The trial proceeded in Lowndes County on November 29, 2005, and Shumaker was found guilty. Thereafter, Shumaker filed post-trial motions. Before the trial court ruled on Shumaker’s post-trial motions, an order was entered amending the indictment to reflect Shumaker’s habitual offender status. Shumaker was then convicted and sentenced as a habitual offender to serve a term of life in the custody of the Mississippi Department of Corrections (MDOC). By virtue of the habitual offender status, his sentence was ordered to be served without eligibility for parole or probation. Shumaker now appeals to this Court, requesting review of fourteen issues. For the sake of clarity and judicial economy, we have recast and combined several of the issues in our discussion.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN DENYING SHUMAKER’S MOTION TO DISMISS FOR FAILURE TO GRANT A SPEEDY TRIAL?

¶ 2. Shumaker asserts that the trial court erred in denying his motion to dismiss for failure to provide him a speedy trial because the delay violated his rights guaranteed under both federal and state law. The State argues that the trial court properly denied Shumaker’s motion to dismiss for failure to provide a speedy trial based upon its finding that he had not met the initial requirement of showing presumptive prejudice. We are to review trial court decisions to deny motions to dismiss for manifest error. Mitchell v. State, 792 So.2d 192, 213(¶ 80) (Miss.2001).

¶ 3. Both federal and state laws protect a criminal defendant’s right to a speedy trial. When an appellant asserts a violation of his rights under the United States Constitution and under the laws of Mississippi, we are to employ two separate analyses in our review. The right to a speedy trial is guaranteed under federal law by the Sixth Amendment to the United States Constitution and is applicable to the state via the Fourteenth Amendment. Mississippi constitutionally protects the right to a speedy trial and statutorily limits the time in which a defendant must be tried. While the right to a speedy trial is protected both constitutionally and statutorily, “[a]ny inquiry into a violation of the right to a speedy trial must necessarily begin with an analysis of our state statutory right, as the State has the right to craft laws so long as they are not in violation of the minimum standards set by the federal constitution.” Guice v. State, 952 So.2d 129 (¶ 63) (Miss.2007).

¶ 4. Our legislature has limited the time frame for which a criminal defendant must be tried under the “270 day” rule pursuant to Mississippi Code Annotated section 99-17-1. The rule provides that charges under indictments must be tried within the next 270 days after arraignment, unless good cause is shown and a continuance is granted. Shumaker waived arraignment on August 15, 2005, and his trial began 106 days later on November 29, 2005. The elapsed time period, for the purposes of a speedy trial analysis under Mississippi Code Annotated section 99-17-1, falls within the acceptable parameters and does not violate the 270-day rule. Therefore, Shumaker’s assertion of a violation of his right to a speedy trial, pursuant to the laws of Mississippi, fails. A determination of whether an accused has been afforded a speedy trial within the parameters set forth in Mississippi Code Annotated section 99-17-1 requires a stricter analysis than what is constitutionally required. Thus, it follows that if the time period that an accused has had to wait before going to trial is not violative of the mandate of Mississippi Code Annotated section 99-17-1, then a state constitutional violation has not occurred either.

¶ 5. Nevertheless, we proceed with our analysis of Shumaker’s claim that his right to a speedy trial was unconstitutionally denied in violation of the Sixth and Fourteenth Amendments to the United States Constitution. The United States Supreme Court identified four factors courts must use in determining whether a criminal defendant’s right to a speedy trial has been violated pursuant to the Sixth Amendment to the United States Constitution. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). These enumerated factors have been adopted by our courts so that we review on a case-by-case basis “(1) the length of delay, (2) the reasons for the delay, (3) assertion of his right to a speedy trial, and (4) prejudice to the defense.” Sharp v. State, 786 So.2d 372, 380(¶ 15) (Miss.2001).

If 6. Our discussion of whether Shumaker incurred a prejudicial pre-trial delay begins with addressing the first factor of the Barker analysis: the length of the delay. This factor has been described as somewhat of a “triggering mechanism.” Until it is established that there has been some delay which is presumptively prejudicial, there is no need for further analysis of the remaining balancing factors. Barker, 407 U.S. at 530, 92 S.Ct. 2182; Perry v. State, 637 So.2d 871, 874 (Miss.1994). Our supreme court has established that “a delay of eight (8) months or more [between arrest and trial] is presumptively prejudicial.” Reynolds v. State, 784 So.2d 929, 933(¶ 10) (Miss.2001). However, in a situation where the accused is already detained in another jurisdiction, we are to use the date of extradition to determine the time that the constitutional right to a speedy trial attached. Price v. State, 898 So.2d 641, 648(¶ 13) (Miss.2005). An accused’s constitutional right to a speedy trial arises on the date of extradition because this is the time the “actual restraints [are] imposed by the State against [an accused] through an arrest and institution of criminal charges.” Id.

¶ 7. In this case, a warrant was issued by Lowndes County, Mississippi for Shu-maker’s arrest on August 24, 2004 for the sale of cocaine in Mississippi; however, at this time Shumaker was in the custody of Tennessee awaiting trial on other unrelated charges. Mississippi sent an extradition notice to officials in Tennessee and Shumaker waived extradition on June 22, 2005, following his conviction in Tennessee. Shumaker later waived his arraignment on August 15, 2005, and went to trial on November 25, 2005, on the charge of selling cocaine in Mississippi. Only 161 days elapsed between the time of his waiver of extradition and his trial, which is approximately two and one-half months shy of reaching a presumptively prejudicial amount of time. Thus, the delay was not presumptively prejudicial against Shumaker, so that the analysis goes no further. Perry, 637 So.2d at 874.

¶ 8. We find that the delay before Shu-maker’s trial did not amount to a violation of his statutory or his constitutional right to a speedy trial. Accordingly, we find no manifest error in the trial court’s denial of Shumaker’s motion to dismiss based on a violation of his right to a speedy trial. Therefore, we find the trial court did not err on this issue.

II. WHETHER SHUMAKER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 9. Shumaker argues that he received ineffective assistance of counsel due to his lawyer’s failure to file a motion to dismiss the case against him based upon the prejudice resulting from the pre-trial delay. He further asserts that his court-appointed lawyer did not contact him.

¶ 10. When an appellate court is presented with a claim of ineffective assistance of counsel by direct appeal, we are to dismiss the claim without prejudice unless “(1) the record affirmatively show[s] ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101(¶ 5) (Miss.Ct.App.1999) (citing Read v. State, 430 So.2d 832, 841-42 (Miss.1983)).

¶ 11. Our review of the record before us does not find an affirmative showing of ineffectiveness. In fact, the record before us indicates that Shumaker’s claim of ineffective assistance of counsel is likely without merit. The record indicates that Shu-maker filed his own motion to dismiss for failure to provide a speedy trial and the motion was argued by his retained attorney before his trial began. In addition, the record contains an order dated November 8, 2005, allowing his court-appointed attorney to withdraw and substituting another hired attorney to enter the case. Thus, the two issues upon which Shumaker bases his claim would both be without merit. Furthermore, neither of the parties has stipulated so as to allow this Court to make a finding regarding Shumaker’s claim of ineffective assistance. Thus, we find that Shumaker’s claim of ineffective assistance of counsel may be better raised in a motion for post-conviction relief. Therefore, we dismiss this claim without prejudice.

III. WHETHER THE VIDEO EVIDENCE WAS IMPROPERLY ADMITTED?

¶ 12. Shumaker argues, for the first time on appeal, that the video evidence showing the circumstances surrounding the confidential informant’s controlled buy of cocaine from him was erroneously entered into evidence during his trial. He asserts that the video played for the jury was tampered with and fabricated; however, he provides no supporting facts beyond his own assertion. Further, he asserts that the admittance of the video was irrelevant because it failed to show the actual exchange of the cocaine between him and the informant. While the fact that Shumaker did not object to the introduction of the video evidence at trial procedurally bars him from doing so here, we proceed to discuss the merits of his argument, nonetheless.

¶ 13. The standard of review for admission or exclusion of evidence is abuse of discretion. Smith v. State, 839 So.2d 489, 496(¶ 17) (Miss.2003). Trial court decisions in matters regarding the chain of custody of evidence will not be disturbed absent a finding of abuse. Anderson v. State, 904 So.2d 973, 979(¶ 19) (Miss.2004). The “test for the continuous possession [i.e., ‘chain of custody’] of evidence is whether or not there is any indication or reasonable inference of probable tampering with the evidence or substitution of the evidence.” Id. (quoting Gibson v. State, 503 So.2d 230, 234 (Miss.1987)). “ ‘In such matters, the presumption of regularity supports the official acts of public officers,’ and, thus, the burden to produce evidence of a broken chain of custody is on the defendant.” Id. (quoting Nix v. State, 276 So.2d 652, 653 (Miss.1973)).

¶ 14. We can find no evidence in the record, nor in Shumaker’s brief, that supports the assertion that the video evidence was tampered with or fabricated. Further, the admittance of the video into evidence was within the trial court’s discretion. We decline to find that the trial court’s admission of the video evidence against Shumaker was an abuse of discretion. Accordingly, we affirm the decision of the trial court and dismiss Shumaker’s argument concerning the admittance of the video into evidence.

IV. WHETHER THE TRIAL COURT ERRED IN ALLOWING A WITNESS TO TESTIFY?

¶ 15. Shumaker argues that the State’s informant was not credible and impeached himself through lies and falsehoods, and thus the trial court erred in allowing him to testify regarding the drug transaction. We find this issue without merit because, “[w]hen an informant testifies in open court and his background is thoroughly explored, it is up to the jury to assess his credibility.” Mallard v. State, 798 So.2d 539, 543(¶ 12) (Miss.2001). Furthermore, our review of the trial transcript reveals that no objection was made during the trial to the informant’s testimony. Thus, the issue is procedurally barred from our review here.

V. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE COCAINE EVIDENCE TO BE ADMITTED?

¶ 16. Shumaker argues that it was error for the trial court to allow the introduction of the cocaine evidence against him because the State failed to sufficiently prove chain of custody. More specifically, Shumaker argues that the chain of custody was faulty because the Mississippi Bureau of Narcotics did not search the confidential informant’s home before the controlled buy took place. In support of his argument, he intimates that the cocaine which he was convicted of selling to the confidential informant could have been hidden inside the confidential informant’s home before he arrived. Our review of the trial transcript reveals that Shumaker never objected to the introduction of the cocaine evidence at trial or to the demonstration of the chain of custody.

¶ 17. We are to review a trial judge’s decision regarding the relevancy and admissibility of evidence with a great deal of deference to his discretion. Farmer v. State, 770 So.2d 953, 958(¶ 14) (Miss.2000). This Court will not reverse the judge’s ruling unless he abuses his discretion so as to be prejudicial to the accused. Id However, we need not review a complaint of an insufficient demonstration of the chain of custody or the admission of evidence for the first time on review. Johnson v. State, 904 So.2d 162, 170(¶ 23) (Miss.2005). Thus, we are procedurally barred from doing so here.

VI.WHETHER THE STATE COMMITTED REVERSIBLE ERROR DURING ITS CLOSING ARGUMENT BY MAKING IMPROPER REMARKS AND INTRODUCING FACTS NOT PREVIOUSLY INTRODUCED INTO EVIDENCE?

¶ 18. Shumaker claims that the trial judge erred in allowing the prosecutor to label him a “convicted drug dealer” and to argue facts which were not in evidence during the closing argument. He claims that the State’s use of the inflammatory language and the introduction of facts not presented within either party’s case-in-chief during the State’s closing argument stripped away his right to a presumption of innocence and was reversible error. We are to review comments made during closing arguments by determining “whether the natural and probable effect of the improper argument [creates] unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Sheppard v. State, 777 So.2d 659, 661(¶ 7) (Miss.2000).

¶ 19. The prosecutor’s statement during the summation of which Shumaker complains reads in pertinent part,

Ladies and gentlemen, I submit to you we have now proven every one of these things beyond a reasonable doubt, and this defendant no longer sits before you presumed to be innocent, but rather he sits before you a convicted drug dealer, convicted of dealing drugs in Lowndes County, Mississippi.

We first note that Shumaker did not contemporaneously object to the remarks; therefore, his claim is procedurally barred. In order to perfect the issue for appeal, a contemporaneous objection must be made. Otis v. State, 853 So.2d 856, 864(¶ 23) (Miss.Ct.App.2003). Further, we find that this argument made by Shumaker to be without merit.

¶ 20. “It is well-settled that ‘counsel is allowed considerable latitude in the argument of cases and is limited not only to the facts presented in evidence, but also to deduction and conclusions he may reasonably draw therefrom, and the application of the law to the facts.’ ” Sanders v. State, 801 So.2d 694, 704(¶ 39) (Miss.2001) (quoting Wells v. State, 698 So.2d 497, 506 (Miss.1997)). If a prosecutor’s closing argument does not result in “unjust prejudice against the accused as to result in a decision influenced by the prejudice so created, [we] will find it harmless.” Sanders, 801 So.2d at (¶ 39) (citing Wells, 698 So.2d at 507).

¶ 21. Our review of the trial transcript reveals that the trial court did not err in allowing the prosecutor to present his closing argument as he did on behalf of the State. During summation, the State properly argued its theory of the case, applied the law to the facts, and made deductions and conclusions based on the evidence presented. We cannot find that the language implored by the State during summation unjustly prejudiced Shumaker. Therefore, we hold that Shumaker’s argument that the prosecutor’s remarks were reversible error fails, first, because it is procedurally barred, and, second, because the claim is without merit.

VIII. WHETHER THE INDICTMENT AGAINST SHUMAKER WAS PROPERLY AMENDED TO CHANGE SHUMAKER’S STATUS TO A HABITUAL OFFENDER?

¶ 22. Shumaker asserts that he should not have been subject to habitual offender status in his sentencing because the trial court was without authority to allow the amendment, because he was prejudiced by unfair surprise, and because he did not qualify for the status pursuant to Mississippi Code Annotated sections 99-19-81 or 99-19-83. Further, he asserts that his sentence violates his constitutionally protected rights under the Eighth Amendment.

¶ 23. The grand jury initially indicted Shumaker for the sale of cocaine in violation of Mississippi Code Annotated section 41-29-139 (Rev.2005). Following Shumaker’s three felony convictions in Tennessee, the State moved to amend the indictment against Shumaker to change his status to a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2000) on August 15, 2005. The State introduced, as exhibits, three prior Tennessee felony certified convictions in support of its motion to amend the indictment. However, during the pre-trial motion hearings, defense counsel requested that the trial court defer ruling on the motion until sentencing, if events were to proceed to that stage. The trial judge honored the defense’s request, deferring his ruling on the motion to amend the indictment until the sentencing stage. After Shumaker was convicted, the State filed another motion to amend the indictment to include Shumaker’s status as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83; this motion was granted. Shumaker was then sentenced as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 to a term of life in the custody of the MDOC without the possibility of parole or probation.

¶ 24. Shumaker asserts that the trial court was without authority to amend the indictment against him during the sentencing stage of the trial. He argues that the trial court took it upon itself to amend the indictment against him without the authority of the grand jury. We first point out that the trial court did not sua sponte amend the indictment against Shu-maker. Rather, the trial court granted the State’s motion to amend the indictment to change Shumaker’s status to a habitual offender. A trial court is within its power to allow amendments to indictments to include language reflecting an accused’s status as a habitual offender without grand jury action upon proper motion by the State. URCCC 7.09; Owens v. State, 869 So.2d 1047, 1050(¶ 14) (Miss.Ct.App.2004).

¶ 25. “Rule 7.09 of the Uniform Rules of Circuit and County Court ... allows for the amendment of an indictment in order to charge an offender as a habitual offender.” Wilson v. State, 935 So.2d 945, 948(¶ 10) (Miss.2006). However, an indictment may only be amended to change the status of an accused to a habitual offender if he is given a “fair opportunity to present a defense and is not unfairly surprised.” URCCC 7.09. “The test for whether an amendment to the indictment will prejudice the defense is whether the defense as it originally stood would be equally available after the amendment is made.” Eakes v. State, 665 So.2d 852, 859-60 (Miss.1995). Shumaker was given more than three months notice before trial that the State sought to change his status to a habitual offender based upon three prior felony convictions. This amount of forewarning can hardly be said to create an unfair surprise of the State’s intentions to change Shumaker’s status to that of a habitual offender. Furthermore, the amendment of the indictment did not affect his defense during the trial so as to prejudice him because the prior felony convictions were only used to enhance his sentence, not utilized as an underlying element of the charge of selling cocaine. Thus, we cannot say that Shumaker was unfairly surprised or prejudiced in his defense by the motion to amend the indictment.

¶26. Next, we address Shu-maker’s argument that he was “tried” in error as a habitual offender. The purpose of amending an indictment to include the language regarding an accused’s previous convictions is to change the accused’s status during sentencing, not to add an additional element to the charged crime. Wilson, 935 So.2d at (¶ 12). “[P]rior offenses used to charge the defendant as an habitual offender are not substantive elements of the offense charged.” Swington v. State, 742 So.2d 1106, 1118(¶ 44) (Miss.1999). Thus, Shumaker was not “tried” as a habitual offender, rather he was sentenced with this status based on prior felony convictions.

¶ 27. Shumaker argues that he did not qualify as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83, asserting that he only had been previously convicted once before his conviction at issue in this appeal. Our review of the record indicates that Shu-maker’s assertion that he was only convicted once before his conviction in this case is incorrect. The State introduced as exhibits during the motion hearing certified copies of three separate convictions for felonies occurring in Tennessee. While we note that each of the three convictions was based on offenses occurring on the same day, the convictions, nonetheless, were separate convictions arising from different crimes. Separate convictions based upon different crimes, even if the crimes of which a defendant is convicted occurred on the same day, may serve as prior offenses to be considered in sentencing a defendant as a habitual offender. Jones v. State, 878 So.2d 254, 256(¶ 11) (Miss.Ct.App.2004). We, thus, find no error in qualifying Shu-maker as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83.

¶ 28. Lastly, we find that Shu-maker’s assertion, without supporting argument, that his Eighth Amendment rights were violated by his sentence, is without merit. The Eighth Amendment prohibits the sentencing of a criminal defendant to cruel or unusual punishment. The case law of our courts and the courts within our federal district has well established that a sentence of a life term predicated on habitual offender status pursuant to Mississippi Code Annotated section 99-19-83 is constitutionally sound. See McGruder v. Puckett, 954 F.2d 313, 317 (5th Cir.1992); Davis v. State, 724 So.2d 342, 344(¶ 11) (Miss.1998); Bandy v. State, 495 So.2d 486, 492 (Miss.1986); Forkner v. State, 902 So.2d 615, 625 (Miss.Ct.App.2004). Shumaker was sentenced within the mandatory statutory limits of Mississippi Code Annotated section 99-19-83 as a habitual offender.

1129. We find no merit in Shumaker’s argument concerning trial court error in allowing the amendment of the indictment to include language regarding his habitual offender status. Shumaker had sufficient notice regarding his status change in the indictment, and this change did not affect substantial rights; thus, he was not unfairly prejudiced by the amendment. The three previous convictions, properly introduced, qualified Shumaker as a habitual offender and his sentence does not violate the Eighth Amendment. We find the trial court did not err in amending the indictment to change Shumaker’s status to a habitual offender under Mississippi Code Annotated section 99-19-83.

¶ 30. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF THE SALE OF COCAINE AND SENTENCE OF LIFE AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT.

      . Our state constitution requires that an accused be granted "[i]n all prosecutions by indictment or information, a speedy and public trial....” Miss. Const, of 1890, art. 3, § 26.

      . Mississippi Code Annotated section 99-17-1 (Rev.2000) provides that ”[u]nless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.”

      .We note that, in addition to Shumaker’s assertions that his Sixth and Fourteenth Amendment rights were violated under the Constitution, he also asserts a violation of the Equal Protection Clause due to the lack of a speedy trial. We find this argument misplaced, however, as a challenge to the right to a speedy trial under federal law necessarily involves a challenge concerning the Sixth Amendment as compared to a challenge to equal protection under the Fourteenth Amendment.

      . We note that this State does not require the status phase, in which an accused is indicted as a habitual offender, to be conducted prior to the sentencing phase in a case involving the imposition of a life term. Gray v. State, 605 So.2d 791, 794 (Miss.1992).


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    Gregory DUNLAP, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00294-CGA.
    Court of Appeals of Mississippi.
    May 22, 2007.

      Gregory Dunlap, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Gregory Dunlap was convicted of the sale of cocaine pursuant to a guilty plea on July 18, 2005. He filed a post-conviction relief motion pro se, which was denied by the trial court. On appeal, Dunlap asserts the following issues:

I. WHETHER DUNLAP’S GUILTY PLEA WAS INVOLUNTARY OR UNKNOWING DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.
II. WHETHER THE INDICTMENT WAS DEFECTIVE.

¶ 2. Finding no error, we affirm the trial court’s decision.

FACTS

¶ 3. Gregory Dunlap sold 0.21 grams of cocaine for $20 to a confidential informant for the Mississippi Bureau of Narcotics on March 31, 2004, in West Point, Mississippi. The informant was wired and an audio and videotape were made of the transaction. Dunlap was subsequently arrested for the sale of cocaine.

¶ 4. On July 18, 2005, Dunlap filed a sworn petition with the court to enter a guilty plea to one count of the sale of cocaine pursuant to Mississippi Code Annotated Section 41-29-139 (Rev.2004). The petition stated that Dunlap understood the sentencing guidelines to range from zero to thirty years and that his offer was given freely and voluntarily. The petition also stated that Dunlap was satisfied with the assistance provided to him by his legal counsel. Dunlap has an eleventh grade education and a G.E.D.

¶ 5. Upon recommendation from the State, Dunlap was sentenced to twelve years in the custody of the Mississippi Department of Corrections, with five years of post-release supervision and a $5,000 fine. The State also agreed not to prosecute a pending charge for the sale of cocaine against Dunlap that allegedly occurred on December 1, 2004. Dunlap had previously been convicted of selling cocaine in Clay County in 1999.

¶ 6. Dunlap filed a motion for post-conviction relief (PCR), claiming that his guilty plea was given unknowingly and involuntarily due to ineffective assistance of counsel. Dunlap argued that his lawyer did not inform him of the charges against him or of the consequences of pleading guilty to selling cocaine. He also asserted that his lawyer was deficient by not objecting to the indictment, which did not specify the price and weight of the cocaine. The trial court denied the PCR without a hearing, finding that the weight of a controlled substance was only an essential element of the offense in possession cases and not for the sale of cocaine. In addition, the court found that Dunlap was aware of the charge of the sale of cocaine because it was stated in his indictment and also included in his signed and sworn guilty plea petition.

STANDARD OF REVIEW

¶ 7. When reviewing the denial of a motion for post-conviction relief, we will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Pace v. State, 770 So.2d 1052, 1053(¶ 4) (Miss.Ct.App.2000) (citing Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999)).

LAW AND ANALYSIS

I. WHETHER DUNLAP’S GUILTY PLEA WAS INVOLUNTARY AND UNKNOWING DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 8. Dunlap argues that his guilty plea was involuntarily and unknowingly made due to ineffective assistance of counsel. He claims that his attorney did not alert him of any available defenses, such as a faulty indictment, and persuaded him to take a guilty plea which required more prison time than that allowed by the statutory guidelines.

¶ 9. The standard to be applied to an ineffective assistance of counsel claim was set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and is followed by this Court. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, the defendant bears the burden of proof that (1) counsel’s performance was deficient, and (2) that the deficient performance prejudiced the defense. Id. We look at the totality of the circumstances in determining whether counsel was effective. Id. There is a strong but rebuttable presumption that counsel’s performance fell within the wide range of reasonable professional assistance. Id.

A. Faulty Indictment

¶ 10. Dunlap claims that the indictment was insufficient because it did not include the weight and price of the cocaine sold, which he maintains are essential elements of the crime. Because his attorney did not alert him of the deficiency, Dunlap argues that he was denied due process rights and effective assistance of counsel. We disagree.

¶ 11. The plain language of the statute does not include weight and price of the substance as essential elements of the crime. Dunlap was indicted under Section 41-29-139 of the Mississippi Code Annotated, of which part (a)(1) states, “it is unlawful for any person knowingly or intentionally: (1) To sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance.” As the language of the statute makes clear, a person is guilty of sale of a controlled substance if he “knowingly or intentionally ... sells ... a controlled substance.” Id. Neither weight nor price are elements of the crime.

¶ 12. The indictment against Dunlap states in relevant part that “Gregory Dunlap ... did unlawfully, wilfully, and felo-niously, knowingly and intentionally sell a controlled substance, to wit: COCAINE, ... for and in consideration of money, in violation of MCA § 41-29-139....” Therefore, the indictment sufficiently stated the elements of the crime of sale of a controlled substance. Accordingly, Dunlap has failed to show his counsel’s performance was defective, and this assignment of error is without merit.

B. Sentence Beyond Statutory Maximum

¶ 13. Dunlap further asserts that his counsel was ineffective by allowing him to plead to a sentence which went beyond the statutory maximum allowed for the crime. In his petition to plead guilty, Dunlap agreed to a twelve year sentence, with five years of post-release supervision and a $5,000 fine. Dunlap admits that his attorney informed him that under the sentencing guidelines provided by Section 41-29 — 139(b)(1), he could have received up to thirty years in prison for selling cocaine. However, he claims that because the weight of the cocaine was under two grams, he should have been informed of the sentence pertaining to Section 41-29-139(c)(1)(B), which renders a maximum of eight years in prison. We find that the plain language of the applicable statute does not support Dunlap’s argument.

¶ 14. Section 41 — 29—139(b)(1) refers to sentencing guidelines for the sale of cocaine, whereby a person convicted may be imprisoned for no more than thirty years and shall be fined no less than $5,000 and no more than $1 million. Section 41-29-139(c)(1)(B) contains sentencing guidelines for the possession of cocaine, for which a person convicted may serve no less than two years nor more than eight years in prison and receive a fine of not more than $50,000. Dunlap sold cocaine to a confidential informant for the Mississippi Bureau of Narcotics. The sale was captured on video and audiotape and several narcotics officers witnessed the transaction. Dunlap was thereafter indicted for the sale of cocaine. Pursuant to his guilty plea, the trial court sentenced Dunlap to twelve years imprisonment, with five years of post-release supervision and a fine of $5,000. This sentence is well within the guidelines provided by Section 41-29-139(b)(1). Therefore, we find Dunlap’s argument to be without merit.

C. Knowing and Voluntary Guilty Plea

¶ 15. Dunlap claims that due to the alleged faulty indictment and sentencing errors, his guilty plea was made involuntarily and unknowingly. A plea is considered “voluntary and intelligent” if “the defendant is advised about the nature of the charge against him and the consequences of the entry of the plea.” Ward v. State, 879 So.2d 452, 455(¶ 9) (Miss.Ct.App.2003) (citing Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992)). We will not disturb a lower court’s findings on the volun-tariness of a guilty plea unless they are clearly erroneous. Stevenson v. State, 798 So.2d 599, 602(¶ 7) (Miss.Ct.App.2001).

¶ 16. The trial court found from Dunlap’s guilty plea petition that he had entered a knowing and voluntary plea. See Ward, 879 So.2d at 454-55(¶ 7). This finding was not clearly erroneous. In his brief, Dunlap argues that his attorney failed to apprise him of possible defenses to his case, and that he was “tricked” into believing he would receive thirty years in prison if he did not plead guilty. However, Dunlap stated in his sworn and signed guilty plea petition that he understood the charges against him and the consequences of pleading guilty. Dunlap asserted that he was not coerced into pleading guilty and that he was satisfied with his attorney’s assistance. Further, Dunlap acknowledged that the maximum sentence for the crime was thirty years. And, Dunlap agreed that the prosecution would recommend a reduced sentence and would drop a pending drug charge in exchange for his guilty plea. Dunlap further admits that his attorney advised him that if the case was taken to trial, he could have received thirty years in prison pursuant to the statute.

¶ 17. We observe that, considering the fact that the State had an audio and videotape of the purported sale, as well as several witnesses to the transaction, Dunlap was well-advised to accept the plea. Dunlap was also facing another drug sale charge from December 2004 which the State agreed to drop in exchange for the guilty plea from the March 2004 incident, and he had a prior conviction for selling cocaine in 1999. We find nothing in the record to indicate that Dunlap’s guilty plea was given involuntarily or unknowingly. Accordingly, we find all of Dunlap’s assertions of ineffective assistance of counsel to be without merit.

II. WHETHER THE INDICTMENT WAS DEFECTIVE.

¶ 18. Dunlap argues that his indictment was defective because it did not contain the weight and price of the cocaine sold. As we stated above, neither the weight nor the price of the substance are required elements under Section 41-29-139. Therefore, this argument is also without merit, and we affirm the decision of the lower court to deny post-conviction relief.

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

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


text:
    Thomas WHITTEN, Jr., Appellant v. Thomas WHITTEN, Sr., Appellee.
    No. 2005-CA-02031-COA.
    Court of Appeals of Mississippi.
    May 22, 2007.

      William Chad Stelly, attorney for appellant.
    William L. McDonough, Jr., Gulfport, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. After the expiration of the statute of limitations, the Circuit Court of Hancock County dismissed Thomas Whitten, Jr.’s negligence action against his father, Thomas Whitten, Sr., for failure to serve process within 120 days as required by Rule 4(h) of the Mississippi Rules of Civil Procedure. Whitten, Jr. appeals, contending that he showed good cause for the failure to timely serve Whitten, Sr. Alternatively, Whitten, Jr. argues that Whitten, Sr. waived the defenses of insufficiency of process and insufficiency of service of process by participating in the litigation for approximately two years after he initially raised the defense.

¶ 2. We affirm the trial court’s finding that Whitten, Jr. did not show good cause for the failure to serve process within 120 days. Pursuant to East Mississippi State Hospital v. Adams, 947 So.2d 887 (Miss.2007), and MS Credit Center, Inc. v. Horton, 926 So.2d 167 (Miss.2006), we hold that Whitten, Sr. waived the defenses of insufficiency of process and insufficiency of service of process. Therefore, we reverse and remand this case for further proceedings.

FACTS

¶ 3. Whitten, Jr. filed the complaint on September 20, 2001. Whitten, Jr. alleged that, on December 18, 1999, Whitten, Sr. had negligently discharged a shotgun, striking and severely injuring Whitten, Jr. The day the complaint was filed, Whitten, Jr. requested that the Sheriff of Hancock County serve process upon Whitten, Sr. at an address in Kiln, Mississippi. On October 18, 2001, the sheriff returned the summons to the circuit clerk’s office unexecut-ed. The sheriff noted on the summons that Whitten, Sr. “does not live there.”

¶ 4. On March 12, 2002, counsel for Whitten, Jr. sent a letter to the circuit clerk’s office requesting service of process on Whitten, Sr. at an address in Perkin-ston, Mississippi. Whitten, Sr. was no longer at that address. On September 27, 2002, Whitten, Jr. again requested service of process upon Whitten, Sr., this time at an address in Pass Christian. Pursuant to that request, process was served upon "Whitten, Sr. on October 11, 2002.

¶ 5. Whitten, Sr. filed an answer on October 21, 2002. Among other defenses, Whitten, Sr. pled insufficiency of process and insufficiency of service of process pursuant to Rules 12(b)(4) and 12(b)(5). The same day, Whitten, Sr. filed a notice of service of interrogatories and requests for production of documents. Later, the court granted a request by Whitten, Jr. for extra time in which to respond to discovery. On May 1, 2003, Whitten, Jr. noticed the service of discovery responses upon "Whitten, Sr. Whitten, Jr. stated in one of his interrogatory responses that he had been incarcerated for a conviction unrelated to this proceeding since November 8, 2001, and would be released on March 29, 2003.

¶ 6. On June 19, 2003, Whitten, Jr. filed a notice of service of interrogatories and requests for the production of documents upon Whitten, Sr. On July 1, 2003, Whit-ten, Jr. noticed the service of further responses to Whitten, Sr.’s requests for the production of documents. On August 7, 2003, Whitten, Sr. filed discovery responses. A letter dated September 26, 2003, from counsel for Whitten, Jr. to his client indicated that the parties had been discussing settlement. On September 10, 2004, Whitten, Sr. noticed the deposition of Whitten, Jr. to occur on October 28, 2004.

¶ 7. On October 26, 2004, Whitten, Sr. filed a motion to dismiss the case because service was not completed within 120 days of the filing of the complaint as required by Rule 4(h). Whitten, Sr. asserted that there was no good cause for the failure to effect timely service of process. Whitten, Sr. requested that the complaint be dismissed with prejudice due to the expiration of the three-year statute of limitations for negligence prescribed by Mississippi Code Annotated section 15-1-49 (Rev. 2003).

¶8. In response, Whitten, Jr. filed a motion for leave of court to effect service of process outside the 120 day period. Whitten, Jr.’s counsel asserted that he first learned that the sheriff had returned the summons and complaint unexecuted when he followed up on the matter in January 2002. At that point, counsel attempted to contact Whitten, Jr. but was delayed in reaching Whitten, Jr. due to his incarceration. Counsel asserted that, in February 2002, Whitten Jr. provided the Perkinston address for Whitten, Sr. Counsel stated that, contemporaneous with his March 12, 2002, request for service upon Whitten, Sr. at the Perkinston address, counsel sent Whitten, Sr. a copy of the summons and complaint at the Perkinston address via certified mail. Whitten, Sr. signed for the mail on March 19, 2002. Counsel asserted that, on April 26, 2002, and on May 15, 2002, he again requested service of process upon Whitten, Sr. at the Perkinston address. The summons was returned unexecuted because Whitten, Sr. had moved away. Counsel averred that, after further investigation, he obtained the Pass Christian address for Whitten, Sr. and Whitten Sr. was finally served with process on October 11, 2002. Whitten, Jr. argued that Whitten, Sr. had tried to evade service of process, constituting good cause for the delayed service. Whitten, Jr. requested a retroactive grant of additional time to effect service of process.

¶ 9. At a hearing on the motion to dismiss on July 24, 2005, counsel for Whitten, Jr. contended that he had shown good cause for the delay and that Whitten, Sr. had waived his Rule 12(b)(4) and 12(b)(5) defenses due to his participation in the litigation for approximately two years. Whitten, Jr. contended that Whitten, Sr. had been participating in discovery, with the latest development before the motion to dismiss being the parties’ ongoing negotiation of the terms of an agreed-upon order precluding either party’s use of prior statements lost by the insurance carrier. Whitten, Sr. admitted that “there was a fair amount of discovery,” but asserted that dismissal was appropriate because service was not effected within 120 days.

¶ 10. On August 22, 2005, the trial court entered a judgment of dismissal without prejudice for failure to complete service of process within 120 days. The court found that Whitten, Jr. “has failed to show good cause why service of summons and complaint was not completed within 120 days as required by Mississippi Rule of Civil Procedure 4(a) and accordingly the complaint should be dismissed.” The court denied Whitten Jr.’s motion for additional time to effect service of process.

LAW AND ANALYSIS

¶ 11. For clarity, we have reworded Whitten, Jr.’s lengthy statements of his two appellate issues.

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING WHITTEN, JR.’S MOTION FOR LEAVE OF COURT TO EFFECT SERVICE OF SUMMONS AND GRANTING WHITTEN, SR.’S MOTION TO DISMISS PURSUANT TO RULE 4(H) WHERE WHITTEN, JR. SHOWED GOOD CAUSE FOR THE DELAY.

¶ 12. Pursuant to Mississippi Rule of Civil Procedure 4(h), a plaintiff must effect the service of the summons and complaint upon a defendant within 120 days of the filing of the complaint. If service is not effected within the 120 day period and the plaintiff cannot show good cause why such service was not made within that period, the action shall be dismissed without prejudice upon motion or upon the court’s own initiative with notice to the plaintiff. M.R.C.P. 4(h). Also, though filing the complaint tolls the statute of limitations for 120 days, if service is not effected within that time, at the expiration of the 120 day period the statute of limitations again begins to run unless good cause is shown. Holmes v. Coast Transit Authority, 815 So.2d 1183, 1185(¶ 7) (Miss.2002).

¶ 13. In this case, the complaint was filed on September 20, 2001, and the deadline for service of process was January 18, 2002. Service was not effected until October 11, 2002, almost nine months after the expiration of the 120 day deadline but before the expiration of the statute of limitations. Whitten, Jr. argues that he demonstrated good cause for the delay and, therefore, the trial court erred by dismissing the complaint. Whitten, Jr. argues that he showed he was diligent in his efforts to serve Whitten, Sr. and the delayed service was attributable to Whitten, Jr.’s incarceration and Whitten, Sr.’s intentional evasion of service of process through his changes of address.

¶ 14. The trial court expressly found that Whitten, Jr. had failed to show good cause for the delay. The trial court’s finding of fact on the existence of good cause for delayed service of process is subject to deferential review by this Court. Montgomery v. SmithKline Beecham Corp., 910 So.2d 541, 544(¶ 9) (Miss.2005) (citing Rains v. Gardner, 731 So.2d 1192, 1197-98(¶ 19) (Miss.1999)). We will only inquire whether the trial court abused its discretion and whether substantial evidence supported its conclusion. Montgomery, 910 So.2d at 544-45(¶ 9). However, when a decision to grant or deny a motion for extension of time is based on a question of law, our review is de novo. Id. at 545(¶ 9).

¶ 15. The plaintiff bears the burden to demonstrate the existence of good cause for the failure to timely serve process. Id. at 548(¶24). A showing of good cause requires at least as much as would establish excusable neglect, and must be more than “simple inadvertence or mistake of counsel or ignorance of the rules.” Watters v. Stripling, 675 So.2d 1242, 1243 (Miss.1996). “A plaintiff must be diligent in serving process if he is to show good cause in failing to serve process within 120 days.” Bang v. Pittman, 749 So.2d 47, 52(¶ 25) (Miss.1999) (overruled on other grounds). In Holmes, the court stated that good cause may be found when the plaintiffs failure to effect timely service was due to the conduct of a third person, such as the process server, or when the defendant has evaded service of process or has engaged in misleading conduct. Holmes, 815 So.2d at 1186(¶ 12). Holmes expressly held that good faith negotiations between the parties are not good cause that will excuse timely service of process. Id. at 1186(¶ 14). In Montgomery, the court found that the unsuccessful efforts of a newly associated law firm to confer with its clients were insufficient to establish good cause excusing untimely service of process when considered along with the associating firm’s failure to effect timely service. Montgomery, 910 So.2d at 547-48 (¶¶ 21-24). Montgomery also recognized that, if it appears that process cannot be served within the 120 day period, a diligent plaintiff will request additional time to serve process and that such a request supports a later allegation that good cause existed for the failure to effect timely service. Id.

¶ 16. Whitten, Jr. argues that he met his burden to show good cause with his allegations that Whitten, Sr. intentionally evaded service of process and because Whitten, Jr.’s counsel was delayed in conferring with Whitten, Jr., due to Whitten, Jr.’s incarceration. We are mindful that the good cause'inquiry focuses on whether there was good cause for the failure to serve process within the 120 day period; difficulties that may have prevented successful service outside the 120 day deadline are not considered. Id. at 545(¶ 12). Therefore, our review of the trial court’s exercise of discretion in finding Whitten, Jr. failed to show good cause for the delay focuses upon what occurred within the 120 day period.

¶ 17. The record reveals that Whitten, Jr. attempted to serve Whitten, Sr. once during the 120 day period, which began to run on September 20, 2001. The sheriff returned the summons to the clerk of court’s office unexecuted on October 18, 2001. In January 2002, Whitten, Jr.’s counsel first learned that service had not been effected. At that time, Whitten, Jr.’s counsel attempted to contact him to obtain information about Whitten, Sr.’s whereabouts. But, due to Whitten, Jr.’s incarceration, counsel was unable to reach him until February 2002. The 120 day deadline expired on January 18, 2002.

¶ 18. There was no abuse of discretion in the trial court’s finding that Whitten, Jr. had failed to demonstrate good cause for the failure to effect service of process within 120 days. Whitten, Jr. only once attempted to have Whitten, Sr. served in the 120 day period, and his counsel only learned that service had not been effected sometime in January 2002, at least two months after the summons had been returned to the clerk’s office unexecuted and possibly after the expiration of the 120 day deadline on January 18, 2002. If counsel for Whitten, Jr. learned prior to the expiration of the 120 day period that Whitten, Sr. had not been served and then could not locate his client, he would have been diligent in moving for additional time in which to effect service of process. Id. at 545(¶ 14). However, Whitten, Jr. did not request additional time to effect service of process until Whitten, Sr. filed a motion to dismiss almost three years later. Montgomery stressed that a plaintiff should “seek authority for extensions from the court, rather than unilaterally making this decision for himself.” Id. at 545(¶ 13). All the facts pertaining to an evasion of service of process by Whitten, Sr. arose after the expiration of the 120 day deadline. The record substantially supports the trial court’s finding that Whitten, Jr. failed to demonstrate good cause for the untimely service.

II. WHETHER WHITTEN, SR.’S PARTICIPATION IN THE LITIGATION FOR APPROXIMATELY TWO YEARS WAIVED THE DEFENSES OF INSUFFICIENCY OF PROCESS AND INSUFFICIENCY OF SERVICE OF PROCESS.

¶ 19. Alternatively, Whitten, Jr. asserts that Whitten, Sr. waived the defenses of insufficiency of process and insufficiency of service of process by neglecting to pursue those defenses for two years after asserting them in his answer and by participating in the litigation during that time. Indeed, Whitten, Sr. filed his answer on October 21, 2002, asserting, among other defenses, the defenses of insufficiency of process and insufficiency of service of process. For the next two years, Whitten, Sr. participated in discovery. The parties exchanged written discovery requests and written discovery responses, discussed settlement, and Whitten, Sr. noticed Whitten, Jr.’s deposition. Then, on October 26, 2004, after the expiration of the statute of limitations, Whitten, Sr. filed the motion to dismiss asserting untimely service of process.

¶ 20. Our resolution of this issue is governed by MS Credit Center, Inc. v. Horton, 926 So.2d 167 (Miss.2006) and East Mississippi State Hospital v. Adams, 947 So.2d 887 (Miss.2007). In MS Credit Center, the defendants asserted their right to compel arbitration in their answer but then for eight months participated in the litigation by consenting to a scheduling order, engaging in written discovery, and taking the plaintiffs deposition. MS Credit Ctr., 926 So.2d at 180 (¶¶ 41, 43). Then, the defendants filed a motion to compel arbitration. Id. The court held that “ordinarily, neither delay nor participation in the judicial process, standing alone, will constitute a waiver,” but when there is substantial and unreasonable delay in pursuing the right along with active participation in the litigation process, the court “will not hesitate to find a waiver of the right to compel arbitration.” Id. at 180 (¶¶ 41-42). Critically, the court expressed that its holding was not limited to assertion of the right to compel arbitration. Id. at 180(1144). The court stated: “A defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.” Id. The court declined to set a number of days that would constitute unreasonable delay in every case, but did hold that, absent unusual circumstances, an eight-month unjustified delay in the pursuit of any affirmative defense or other right which could serve to terminate the litigation, along with participation, constitutes a waiver as a matter of law. Id. at 181(¶ 45).

¶21. In East Mississippi, the court applied MS Credit Center in holding that the defendants had waived the defenses of insufficiency of process and insufficiency of service of process. East Mississippi, 947 So.2d at 891 (¶¶ 10-11). The defendants had asserted in their responsive pleading that the complaint should be dismissed for insufficiency of process and insufficiency of service of process. Id. at 889(114). After the passage of over two years during which the case proceeded through motions to compel, for status conferences, and additional discovery, the defendants moved to dismiss due to inadequate service and the expiration of the statute of limitations. Id. at 889(¶ 5). The court found that the defendants had waived the defenses of insufficiency of process and insufficiency of service of process by neglecting to pursue them for two years after initially raising them in their answer and by participating actively in the litigation for over two years while never contesting jurisdiction. Id. at 891(¶ 11). The court observed that the defendants had participated fully in discovery and had filed and opposed various motions during the over two-year period.

¶ 22. The facts in this case bear striking similarity to those in East Mississippi. As in East Mississippi, Whitten, Sr. raised the defenses of insufficiency of process and insufficiency of service of process in the responsive pleading but did not pursue those defenses for two years and until the statute of limitations had expired, all the while actively participating in the litigation. Whitten, Sr. contends that his participation in the litigation was not substantial enough to enable this Court to find a waiver. While less occurred in this case than in East Mississippi, Whitten, Sr.’s participation in the litigation closely resembled that found sufficient to support a waiver in MS Credit Center. Whitten, Sr. engaged in written discovery and in settlement negotiations and noticed Whitten, Jr.’s deposition. Whitten, Sr.’s two-year delay in pursuing the affirmative defenses was far longer than the eight-month period held by MS Credit Center to presumptively constitute a waiver when coupled with participation in the litigation. "Whitten, Sr. has provided no justification or asserted any “extreme and unusual circumstances” to explain the two-year delay. "Whitten, Sr. did properly raise the defenses of insufficiency of process and insufficiency of service of process in his answer. M.R.C.P. 12(h). But, "Whitten, Sr. waived those defenses through his participation in the litigation together with his unreasonable two-year delay in pursuing the defenses. For that reason, we reverse and remand this case for further proceedings consistent with this opinion.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . A motion for additional time filed within the 120 day period does not require a showing of good cause and is properly considered under Rule 6(b) governing motions for enlargement of time. Cross Creek Productions v. Scafidi, 911 So.2d 958, 960 (¶¶ 6-7) (Miss.2005).

      . East Mississippi was handed down after the briefing was completed in this case. However, the parties addressed East Mississippi during oral arguments.


author: BARNES, J.,

text:
    Curtis DOSS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00204-COA.
    Court of Appeals of Mississippi.
    May 22, 2007.
    Curtis Doss, Appellant, pro se.
    Office of the Attorney General by Jacob Ray, for Appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Curtis Lance Doss, proceeding pro se, appeals the Circuit Court of Clay County’s dismissal of his motion for post-conviction relief. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Curtis Doss pled guilty to the charge of robbery in violation of Mississippi Code Annotated section 97-3-73 (Rev. 2000) and was sentenced to a term of ten years in the custody of the Mississippi Department of Corrections by order of the Clay County Circuit Court on July 15, 2003. Doss filed a “Motion for PosWCon-viction Collateral Relief’ on October 23, 2004, alleging ineffective assistance of counsel. The trial court dismissed this petition on January 18, 2005, stating that the allegations contained in Doss’s petition “are refuted by the information covered in the Petitioner’s signed, notarized plea petition and during the Petitioner’s plea colloquy.”

¶ 3. Doss subsequently filed a second motion for post-conviction relief on February 22, 2005 in the circuit court. Doss again asserted ineffective assistance of counsel as his grounds for the requested relief and set forth factual allegations identical to those alleged in his first motion. The circuit court dismissed this motion on April 15, 2005, finding Doss’s second request for post-conviction relief to be “frivolous” and stating that “[a]ny subsequent filings of the same nature would also be considered frivolous.” Doss filed a “Motion for Reconsideration” on November 7, 2005, in which Doss requested a reconsideration of the ten-year sentence imposed upon him pursuant to the guilty plea and sentencing order dated July 15, 2003. The circuit court dismissed this motion on January 13, 2006, citing the fact that the “Court has lost jurisdiction as to any aspect of the sentencing of [Doss].” Aggrieved by the court’s refusal to grant any of the requested relief, Doss filed his notice of appeal on January 26, 2006.

DISCUSSION

¶ 4. A trial court’s denial of post-conviction relief will be disturbed only where that court’s decision was clearly erroneous. Kirksey v. State, 728 So.2d 565, 567(¶ 8) (Miss.1999) (citing State v. Tokman, 564 So.2d 1339, 1341 (Miss.1990)). The appropriate standard for questions of law, however, is de novo. Rice v. State, 910 So.2d 1163, 1164(¶ 4) (Miss.Ct.App.2005) (citing Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999)).

¶ 5. In the instant case, Doss does not assert the same basis for relief which he asserted in any of his motions filed with the trial court. In his “Summary of the Argument,” Doss makes the following allegations, which we recite in its entirety because it is the only source of argument contained anywhere in his brief:

The defendant was denied due process of law by the Court not tak[]ing the defendant[’]s testimony and witness’ testimony on the defendant[’]s behalf. The victim also did not point me out in a line up that the Clay County police refused to do.

Even if we were to give Doss the benefit of all reasonable inferences and conclude that the above argument is in effect an allegation that he received ineffective assistance of counsel, as he asserted in both motions for post-conviction relief, we still find Doss’s appeal deficient for two reasons.

¶ 6. First, as to either of Doss’s motions for post-conviction relief, this appeal is untimely. Pursuant to Mississippi Rule of Appellate Procedure 4(a), absent circumstances not applicable to this appeal, Doss had thirty days from the entry of the order in which to file his appeal. That thirty days had expired with respect to both motions for post-conviction relief well before Doss filed his notice of appeal in the instant case. The only order that was entered within thirty days prior to initiation of this appeal was the order dismissing Doss’s motion for reconsideration. Despite the fact that Doss’s “Summary of the Argument,” recited above, clearly does not relate to the relief which Doss requested in the November 7, 2005 motion for reconsideration, the order entered thereto is the only order from which this appeal would be timely. In that motion, Doss requested the circuit court to reconsider his sentence. Citing the fact that Doss “was sentenced during a previous term of court which has since ended,” the circuit court correctly concluded that “it has lost jurisdiction as to any aspect of the sentencing of [Doss].” See Miss.Code Ann. § 47-7-47(2)(a) (Rev. 2004) (setting one year from the date a defendant is placed into the custody of MDOC as the latest date upon which a circuit court may suspend a defendant’s sentence and place him on earned probation). Accordingly, even assuming that this appeal is an appeal from the circuit court’s dismissal of Doss’s motion for reconsideration, we find that the circuit court did not commit clear error nor did the court abuse its discretion in dismissing that motion.

¶ 7. Second, not only does Doss fail to cite any authority in support of his argument, he also fails to set forth any reasoning as to why the trial court erred by not allowing him to testify and by not subjecting him to a police line-up. Moreover, in his “Argument” section of the Appellant’s brief, Doss offers absolutely no support for the assertions included in his “Summary of the Argument.” In fact, Doss’s brief does not even outline which issues he intended to address in his “Argument” section. As an appellate court, we are not required to consider an argument which is not supported by authority. Howard v. State, 945 So.2d 326, 356(¶ 62) (Miss.2006) (citing Bell v. State, 879 So.2d 423, 434 (Miss.2004)). Doss cites no authority, makes no reference to any factual circumstances contained in the record, and makes no meaningful argument in support of his assignment of error. See Randolph v. State, 852 So.2d 547, 558(¶ 30) (Miss.2002) (finding that the Appellant’s “cursory argument without either citing to specific instances in the record of an abuse of discretion by the trial court or without further reason or explanation” amounted to a lack of meaningful argument for appellate review and constituted a waiver of the issue). Accordingly, we find that Doss has waived any issues that may have been properly presented to this Court by virtue of his failure to include meaningful argument and failure to cite any authority.

CONCLUSION

¶ 8. We find that Doss’s appeal is time barred with respect to his motions for post-conviction collateral relief. We further find that the circuit court was not clearly erroneous in dismissing Doss’s “Motion for Reconsideration” of his sentence. Additionally, the failure to cite any authority or make any meaningful argument constitutes a waiver of any issues which may have been properly presented to this Court for our review. Accordingly, we affirm the judgment of the circuit court dismissing Doss’s post-conviction motions.

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

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

      . None of the transcripts from the proceedings on the underlying robbery conviction were included in the record which is before this Court. Doss's "Designation of Records” designated "[a]ll clerks papers, trial transcripts and exhibits filed, taken or offered in this case” as being necessary to be included on appeal. Technically, this designation does not include papers, transcripts, or exhibits which are part of the underlying criminal conviction, as a motion for post-conviction collateral relief is a separate civil action. Nevertheless, were we not affirming on grounds which are in no way dependent on these absent documents, we would order a supplemental record to include such documents.

      . Doss’s “Notice of Appeal” referred to "the Order of this Court entered on July 15, 16, 2003, in the above numbered cause" as being the order which he now appeals. We note that the circuit court's order announcing acceptance of Doss’s guilty plea and sentencing Doss to ten years in the custody of MDOC corresponds to the date referenced in Doss’s "Notice of Appeal.” However, the "above numbered cause” listed on the notice references cause number 2003-287, which corresponds to the cause number for his second motion for post-conviction relief.

      . As previously mentioned, Doss's “Notice of Appeal” references cause number 2003-287. Incidentally, this cause number was assigned to both motions for post-conviction relief, to the reconsideration motion, as well as to all orders dismissing these motions.
      We note that, absent certain circumstances which Doss does not assert in this case, successive motions for post-conviction collateral relief are not allowed. Miss.Code Ann. § 99-39-27(9) (Rev.2000). Because we are affirming the judgment of the circuit court on different grounds, we do not address this issue.


author: CARLTON, J.,

text:
    Charlotte DAVIS, Appellant v. SOUTH SUNFLOWER COUNTY HOSPITAL, Appellee.
    No. 2006-CA-00049-COA.
    Court of Appeals of Mississippi.
    May 22, 2007.
    Brandon Isaac Dorsey, Johnnie E. Walls, Greenville, Attorneys for Appellant.

      Jason Edward Dare, Greenville, L. Carl Hagwood, Jackson, Attorneys for Appel-lee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Charlotte Davis filed a complaint alleging medical malpractice. The Sunflower County Circuit Court dismissed her compliant for failure to timely serve process. Finding no error, we affirm.

FACTS

¶ 2. On November 23, 2003, Davis was admitted to South Sunflower County Hospital for the purpose of child birth. Her subsequent medical malpractice claim was based upon a procedure performed during her November admission. Notice of intent to file suit was sent to the Hospital on November 18, 2004. On January 4, 2005, the Hospital provided Davis its denial of her claim.

¶ 3. On February 18, 2005, Davis filed her action against the Hospital, her physician, and other unknown parties. Summons was issued for each defendant on the day of this filing. The address of the Hospital was correctly identified in her filing. On Thursday, June 16, 2005, 118 days after the compliant was filed, counsel for Davis hand delivered a copy of the compliant, summons and discovery requests to the Sunflower County Sheriffs Department to be served upon the Hospital. The Hospital was not served with process until July 27, 2005. Davis claims that she did not learn of this failure to timely serve the Hospital until July 31.

¶ 4. On August 4, 2005, the Hospital filed a motion to dismiss the complaint, arguing in part that Davis had failed to serve the Hospital within 120 days from the date the complaint was filed. The Sunflower County Circuit Court heard oral arguments on the Hospital’s motion to dismiss. The trial court entered an order granting the Hospital’s motion to dismiss the complaint on December 19, 2005. The trial court also dismissed the action against the physician named in the complaint. The dismissal of the physician was accomplished by the trial court sua sponte because, as of December 19, the physician had not yet been served with process and Davis had not requested an extension.

¶ 5. Aggrieved by the decision of the trial court to dismiss her complaint against the Hospital, Davis timely appealed. Her appeal has been assigned to this Court.

DISCUSSION

¶ 6. The sole issue presented in this appeal is whether Davis adequately demonstrated good cause for the untimely service of process. Davis concedes that she “indirectly failed to serve Appellees with process within the prescribed 120 day period.” However, she argues that this was solely because of the negligence of the process server, the Sunflower County Sheriffs Department. Davis relies on case law in arguing that good cause is likely to be found when failure to complete timely service is the result of the conduct of a third person, typically a process server. Kersh v. Derozier, 851 F.2d 1509 (5th Cir.1988). The relevant issue presented in Kersh concerned what constituted “good cause” for failure to timely serve process under Federal Rule of Civil Procedure 4(j). There, the United Stated Court of Appeals for the Fifth Circuit held that a “district court erred in denying [a defendant’s] motion to dismiss for insufficient service of process” because good cause was not shown where a pro se litigant was ignorant of the requirements under Rule 4(j). Kersh, 851 F.2d at 1512.

¶ 7. In Mississippi, the finding of a trial court concerning whether or not there was good cause for delay in serving process is a discretionary ruling. Montgomery v. SmithKline Beecham Corp., 910 So.2d 541, 544(¶ 9) (Miss.2005); Powe v. Byrd, 892 So.2d 223, 225(¶ 6) (Miss.2004). Such rulings are entitled to a deferential review on appeal. Id. The specific provision at issue is Mississippi Rule of Civil Procedure 4(h), which provides:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

¶ 8. Good cause is established when a plaintiff demonstrates “as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance or the rules usually does not suffice.” Powe, 892 So.2d at 226(¶ 10) (quoting Watters v. Stripling, 675 So.2d 1242, 1243 (Miss.1996) (citation omitted)). In Montgomery, the supreme court stated:

“Good cause” can never be demonstrated where plaintiff has not been diligent in attempting to serve process. Bang v. Pittman, 749 So.2d 47, 52 (Miss.1999). In demonstrating good cause and diligence, a plaintiff must show that he or she has been unable to serve process because the defendant evaded process or engaged in misleading conduct, or for some other acceptable reason, as discussed in [Holmes v. Coast Transit Auth., 815 So.2d 1183, 1186 (Miss.2002) ].

Montgomery, 910 So.2d at 545(¶ 13).

¶ 9. In Powe, the supreme court distinguished from the acceptable reasons mentioned in Holmes a situation where a plaintiff “waited until the last day of the 120 day period to contact the process server, and process was not served.” Powe, 892 So.2d at 226(¶ 9). The supreme court held that the circuit court did not err in holding that Powe failed to show good cause for her delay in serving process because Powe’s actions “do not constitute diligence in effecting service.” Id.

¶ 10. In the present case, the trial court found that Davis violated the 120 day provision of Rule 4 and failed to show good cause for the delay. The trial court stated that Davis could have reasonably foreseen that the sheriffs department would need more than two days to properly serve the Hospital, and that it was unreasonable for Davis to wait until the last minute to attempt service of process. We note that the record does not demonstrate, nor has Davis argued, that the process server was expressly informed that process would need to be served within two days in order to be timely served.

¶ 11. We apply the reasoning in Powe and Montgomery to the present case and find that they support the reasoning of the trial court. We recognize that this holding is an extension of Powe due to Davis delivering process on the 118th day after the complaint was filed, not the last day of the 120 day period as in Powe. However, leaving a process server a two day window to accomplish service of process without receiving some express assurance that process would in fact be served within two days leaves a plaintiff vulnerable to having the complaint dismissed if process is not timely served. The trial court did not commit an abuse of discretion in dismissing the complaint.

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

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


author: LEE, P.J.,

text:
    Sheila TANNER, Appellant v. Windell Ray TANNER, Appellee.
    No. 2006-CA-00423-COA.
    Court of Appeals of Mississippi.
    May 22, 2007.

      Stanley Alex Sorey, Raleigh, attorney for appellant.
    Daniel Dewayne Ware, Magee, attorney for appellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Sheila and Windell Tanner were married on November 28, 1999, and separated on June 7, 2004. One child, Blair Elizabeth Tanner, was born from the union on April 14, 2002. Winded fded his complaint for divorce on June 16, 2004, in the Simpson County Chancery Court. Winded sought a divorce on the grounds of adultery or, in the alternative, irreconcilable differences. Sheila filed her answer and counterclaim, wherein she alleged habitual cruel and inhuman treatment and adultery. A temporary order was entered July 14, 2004, wherein the chancellor granted temporary custody of Blair to Winded. On October 17, 2005, the parties entered an agreed order for divorce on the grounds of irreconcilable differences but submitted the issue of child custody and support to the chancellor.

¶ 2. After a hearing on the matter, the chancellor made an on the record finding in regards to the Albright factors, determining that two factors favored Sheila, two favored Winded and the remaining factors were either equal or did not apply. The chancellor then appointed Bruce Smith as guardian ad litem to review and report on Sheila’s health problems, Windell’s work schedule and anything that might affect the best interest of Blair.

¶ 3. On February 14, 2006, the guardian ad litem filed a report with the court stating that he did not find Sheila’s health problems to be a danger to Blair. The guardian ad litem also found that both parties appeared able to provide for the needs of Blair. On February 16, 2006, the chancellor entered the final judgment of divorce, wherein he awarded the parties joint legal custody with Winded having physical custody of Blair subject to Sheila’s visitation rights.

¶ 4. Aggrieved, Sheila now appeals to this Court asserting that the chancellor’s decision was clearly erroneous considering Windell’s work schedule and in failing to address the findings of the guardian ad litem on the record.

STANDARD OF REVIEW

¶ 5. This Court will not disturb the findings of a chancellor unless we find an abuse of discretion, an erroneous application of law, or manifest error. Andrews v. Williams, 723 So.2d 1175, 1176(¶ 7) (Miss.Ct.App.1998). Thus, if we find substantial evidence in the record to support the chancellor’s findings, we will not reverse. Wilbourne v. Wilbourne, 748 So.2d 184, 186(¶ 3) (Miss.Ct.App.1999).

DISCUSSION

I. WAS THE CHANCELLOR’S DECISION CLEARLY ERRONEOUS CONSIDERING WINDELL’S WORK SCHEDULE?

¶ 6. In her first issue on appeal, Sheila argues that the chancellor failed to consider the best interests of Blair when considering Windell’s work schedule. Sheila contends that because she does not work and Windell does, then it is in the best interest of Blair to grant custody to Sheila. It is well settled that in child custody cases, the polestar consideration is the best interest of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The factors used to determine what is in the “best interest” of a child with regard to custody are: (1) age, health and sex of the child; (2) determination of the parent who had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parents and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of the 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.

¶ 7. An appellate court must find a chancellor in error where the chancellor improperly considers and applies the Al-bright factors. Hollon v. Hollon, 784 So.2d 943, 946(¶ 11) (Miss.2001). In determining whether the chancellor abused his discretion in applying the Albright factors, the appellate court “reviews the evidence and testimony presented at trial under each factor to ensure [the chancellor’s] ruling was supported by record.” Id. at 947(¶ 13).

¶ 8. In weighing the employment factor, the chancellor found the following:

On first glance, you would think that would favor the father, however, the mother does have disability in which she receives a disability check. The fact that she does have that income and the fact that the father’s employment requires him to leave at 4:30 in the morning and take the child somewhere, the Court finds that factor is equal in that he has had the steady employment.

¶ 9. The record supports this determination. Windell had a steady job with hours from 5:00 a.m. until 3:30 p.m. On the way to work, Windell dropped Blair off at his mother’s house, which was next door. His mother, Bobbie, would watch Blair until Windell picked her up after work. On the days Bobbie had to be at work at 3:00 p.m., Windell’s aunt Debbie, who also lived on the same property, would come watch Blair until Windell was off from work. Sheila also testified that even prior to the separation, Sheila would drop Blair off at Bobbie’s house regularly.

¶ 10. Although the chancellor found this factor to equally favor both parties, this factor alone was not determinative of custody. We find substantial evidence to support the chancellor’s finding on this factor and find that the chancellor conducted an on the record finding of all the Albright factors.

II. DID THE CHANCELLOR ERR IN FAILING TO ADDRESS ON THE RECORD THE RECOMMENDATION OF THE GUARDIAN AD LITEM?

¶ 11. In her second and final issue on appeal, Sheila argues that the chancellor erred in failing to address the recommendation of the guardian ad litem on the record. The chancellor found Sheila and Windell equal in regards to the Albright factors but delayed his custody determination pending the guardian ad litem’s report. The only reference to the guardian ad litem’s report is at the beginning of the final judgment of divorce wherein the chancellor says “after considering the report of the Guardian Ad Litem.... Wendell [sic] Tanner ... is awarded physical custody of the parties minor child.... ”

¶ 12. In the recent case of Floyd v. Floyd, 949 So.2d 26, 29 (¶ 8) (Miss.2007), the supreme court reversed because the chancellor failed to include his reasons for rejecting the guardian ad litem’s recommendation. The supreme court found as follows:

This Court has held that a chancellor shall at least include a summary review of the recommendations of the guardian in the court’s findings of fact when the appointment of a guardian is required by law. S.N.C. v. J.R.D., Jr., [755 So.2d 1077, 1082 (Miss.2000) ]. Furthermore, if the court rejects the recommendations of the guardian, the court’s findings must include its reasons for rejecting the guardian’s recommendations. Id. While a chancellor is in no way bound by a guardian’s recommendation, a summary of these recommendations in addi-tdon to his reasons for not adopting the recommendations is required in the chancellor’s findings of fact and conclusions of law. Id., Hensarling v. Hensarling, 824 So.2d 583, 587 (Miss.2002).

Floyd, 949 So.2d 26, 29 (¶ 8).

¶ 13. However, Floyd concerned allegations of child abuse, an instance in which it is mandatory for the chancellor to appoint a guardian ad litem. In this case, the appointment of the guardian ad litem was not required by law but was merely to assist the chancellor. As previously stated, the guardian ad litem’s report found both parties equally capable of caring for Blair. Furthermore, the chancellor did not explicitly reject or disagree with the report. This Court has made it clear that only when the appointment of the guardian is mandatory and the chancellor disagrees with the guardian’s report will we require the chancellor to summarize the guardian’s recommendation and why the chancellor chose to disregard it. See Ponder v. Ponder, 943 So.2d 716, 720(¶ 16) (Miss.Ct.App.2006); Balius v. Gaines, 914 So.2d 300, 305—06(¶ 13) (Miss.Ct.App.2005); Passmore v. Passmore, 820 So.2d 747, 751(¶ 13) (Miss.Ct.App.2002). We find no merit to this issue.

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

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


text:
    Calvin L. REED, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00170-COA.
    Court of Appeals of Mississippi.
    May 22, 2007.
    Leon Johnson, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On January 18, 2006, a jury in the Grenada County Circuit Court convicted Calvin Reed of robbery. Reed was sentenced as a habitual offender to serve a term of life without parole in the custody of the Mississippi Department of Corrections. Reed subsequently filed a motion for judgment notwithstanding the verdict, which was denied by the trial court. Reed now appeals to this Court asserting that the trial court erred in failing to grant his motion for a new trial, motion for a JNOV and motion for a directed verdict.

FACTS

¶2. On April 21, 2004, the Grenada County Police Department received a call in reference to a robbery at the Texaco Gas Mart. The store clerk, Jennifer Lea, testified that around 3:45 a.m. a man approached the counter with some items. As Lea was ringing up these items, the man asked for a pack of Newport cigarettes and a can of Skoal. After asking him if he needed anything else, Lea testified that the man ordered her to open the cash register and give Mm the money. Lea noticed that one of the man’s hands remained in his pocket. The man told Lea not to push the button under the counter and said to her, “Don’t make me hurt you.” Lea emptied the contents of the register into a bag along with the Newport cigarettes, the can of Skoal, potato chips and a purple lighter. The man walked away from the counter with the bag, turned back to look at Lea and told her to go to the back room. Frightened, Lea ran into the back room, locked the door and called the police.

¶ 3. Lea was able to give a description of the man. Lea stated that he had a gold stud in his nose, approximately five teardrop tattoos under his eye and another tattoo on his forehead that resembled devil horns. Lea said he was wearing a blue baseball cap, a blue T-shirt with white writing on it and white pants. The man was also caught on the store’s surveillance camera. Lea was able to identify the man from a photo at the police station.

¶ 4. At the time of the robbery Michael Blakely was standing at the counter of the gas station speaMng with Lea. He noticed a man enter the store, grab a drink and proceed to the counter. Blakely testified that this man said he recognized Blakely from high school and they exchanged names. Blakely stated the man identified himself as Calvin Reed. Blakely then went outside to smoke a cigarette. After a few moments Reed exited the gas station carrying a bag and began to run away from the station. Blakely reentered the store and was informed by Lea that the store had been robbed. Blakely was able to give a description of Reed to the police which resembled Lea’s description.

DISCUSSION OF ISSUES

I. DID THE TRIAL COURT ERR IN FAILING TO GRANT REED A NEW TRIAL?

¶ 5. In his first issue, Reed argues that the trial court erred in failing to grant him a new trial. We note that the record contains no motion for a new trial. The record only contains a motion for a JNOV. However, this motion for a JNOV does state that the verdict “was against the overwhelming weight of the evidence.” The remedy for a verdict that is against the overwhelming weight of the evidence is a new trial and not a JNOV. Regardless of the phrasing of Reed’s posttrial motion, his appellate brief is concerned with the sufficiency of the evidence and not the overwhelming weight. Therefore, we will only discuss his issues concerning the JNOV.

II. DID THE TRIAL COURT ERR IN FAILING TO GRANT HIS MOTION FOR A DIRECTED VERDICT AND MOTION FOR A JNOV?

¶6. In his second and third issues on appeal, Reed argues that the trial court erred in failing to grant a directed verdict and in denying his motion for a JNOV. Our standard of review for denials of a motion for JNOV and directed verdict is the same. Jefferson v. State, 818 So.2d 1099, 1111(¶ 30) (Miss.2002). A JNOV and directed verdict challenge the legal sufficiency of the evidence presented at trial. Id. In reviewing the sufficiency of the evidence, all evidence supporting the guilty verdict is accepted as true, and the State must be given the benefit of all reasonable inferences that can be reasonably drawn from the evidence. Bell v. State, 910 So.2d 640, 646(¶ 16) (Miss.Ct.App.2005). Furthermore, it is well-settled law that the jury determines the credibility of witnesses and resolves conflicts in the evidence. Evans v. State, 725 So.2d 613, 680-81 (¶ 293) (Miss.1997).

¶ 7. Reed’s entire argument concerns the credibility of the witnesses, Lea and Blakely. Reed claims that the witnesses were inconsistent because Lea said Reed did not run out of the store and Blakely saw Reed running out of the store. Actually, the testimony shows that Reed walked, albeit briskly, out of the store and, once outside, began to run. Reed also claims that Lea and Blakely planned the robbery and tried to implicate Reed. However, this accusation is unsupported by the record.

¶ 8. Lea was able to identify Reed as the robber and Blakely corroborated Reed’s presence in the gas station. The jury found the testimony of the State’s witnesses to be more credible and resolved any minor inconsistencies in the evidence in favor of the State. When viewed in the light most favorable to the State, the evidence supports the guilty verdict. We find no merit to this issue.

¶ 9. THE JUDGMENT OF THE GRENADA COUNTY CIRCUIT COURT OF CONVICTION OF ROBBERY AND SENTENCE AS A HABITUAL OFFENDER TO LIFE WITHOUT PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GRENADA COUNTY.

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


author: IRVING, J.,

text:
    Shawn Matthew BUSBY, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00570-COA.
    Court of Appeals of Mississippi.
    May 22, 2007.

      David Clay Vanderburg, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Shawn Matthew Busby was convicted by a jury of kidnapping and was sentenced by the Desoto County Circuit Court to three years in the custody of the Mississippi Department of Corrections. Aggrieved, he appeals and raises a single issue: whether the court erred in refusing to grant his proposed lesser-included offense instruction for domestic violence. Because we find no error in Busby’s conviction and sentence, we affirm.

FACTS

¶ 2. At the time of the incident in question, Busby was separated from his former wife, Maranda Busby. Maranda had moved out of the marital home and was living in a rental home in Olive Branch, Mississippi. On October 8, 2004, around nine o’clock at night, Maranda had returned to her rental home when Busby confronted her outside the house. According to Maranda, “I turned to go towards my door, and he was right behind me, and the next thing I know, we’re in the living room, and we’re struggling.” Maranda testified that the altercation, which involved Busby placing his hand over her mouth and nose, continued up a hallway. Maranda indicated that Busby was forcing her down the hall toward her bedroom. At some point after they fell, Busby picked Maranda up and carried her to her bedroom door. She testified that she then put her hands on the door frame in an attempt to prevent Busby from entering the bedroom.

¶ 8. Maranda stated that after she put her hands on the door to prevent Busby from taking her into the bedroom, Busby then “picked me up and put me on the floor face first, and ... sat on my thighs, and ... pulled my hands behind my back and put handcuffs on me-” The handcuffs were apparently toy handcuffs that belonged to Maranda and Busby’s children. Maranda testified that she began pleading with Busby not to hurt her, and he replied: “I’ve lost everything. I’ve lost my house. I’ve lost my kids. I’ve lost my wife. Why can’t I hurt you?” At that time, Maranda promised to tell Busby whatever he wanted and also promised that she would halt her divorce proceedings and go to counseling. After Maranda stated this, Busby uncuffed her and allowed her to sit up. Shortly thereafter, the phone rang, but stopped ringing before Maranda could answer it. Maranda testified that she was expecting a call from her mother, and that she thought it was her mother who was attempting to call her. Maranda and Busby then went to the living room, where Maranda attempted to get her phone from Busby, who had taken it when he entered the house. Maranda testified that she got the phone, but Busby took it from her and threw it in a chair. Maranda convinced Busby that she needed to call her mother back, and he eventually let her do so. Maranda testified that her mother knew something was wrong due to Maranda’s emotional state during the phone call. When her mother asked if she needed to call the police, Maranda told her yes.

¶ 4. Thereafter, Busby and Maranda argued as to whether he could simply leave her in the house. Busby indicated that he was unwilling to do so because she would call the police if he did so. Maranda testified that Busby sat between her and the door such that she “couldn’t go anywhere.” A short time later, police arrived at the house. Busby informed Maranda, “You better not f-ing tell them that I’m in here.” The police, however, asked Maranda to exit the house. After she did so, she informed the police about Busby’s presence in the house and the fact that he had handcuffed her. She showed the officer the marks on her wrists that the handcuffs had left. The officer called for backup and Busby was eventually removed from the house and arrested. Maranda testified that, throughout the ordeal, she was alternately afraid that Busby was either going to rape her or murder her.

¶ 5. Busby’s account of events varies from Maranda’s. According to the statement that Busby gave to police at the time of the incident, he went to the house only to talk to Maranda, but “she was hysterical. So I put my hand over her mouth and told her to please calm down.” Busby admitted that a physical struggle occurred, and that he had handcuffed Maranda and had sat on her legs, but he testified that he quickly let her up and that they then talked. Busby indicated in his statement that he was about to leave the house when the police arrived at the scene. At trial, Busby testified that Maranda had told him to come over to the house to talk about things that night. Busby further testified that they began arguing once he was there and that he restrained Maranda because she was hitting him and yelling. Busby indicated that the handcuffs were only on Maranda for a very short period of time. Busby also testified about a prior incident where he believes that Maranda attempted to get him into trouble with law enforcement. During cross-examination, Busby admitted that there was nothing in his statement given the night of the incident to indicate that Maranda was hitting him. Busby also admitted during cross-examination that he is six-foot-seven and weighs around 275 pounds.

¶ 6. Busby was indicted on two separate counts arising from the incident with Mar-anda — one for kidnapping, and one for domestic violence. At the close of the State’s case, Busby’s attorney moved to dismiss both counts. Specifically, Busby’s attorney contended that the domestic violence count was a lesser-included offense of kidnapping, and that the State “needs to elect which case they want to proceed on in this.” The court granted the motion to dismiss as to the assault charge, noting: “the actions that would otherwise constitute a simple assault are consumed in the kidnapping charge in that all the actions alleged were, for lack of better terminology, part and parcel of the actions which Mr. Busby took, from the evidence, to commit the crime of kidnapping.”

¶ 7. Additional facts, if necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. Busby’s sole issue on appeal is whether the court should have granted his proposed jury instruction on simple assault/domestic violence. We note at the outset that our analysis of this issue is muddied by inconsistent rulings from the court below. Although the court refused to grant Busby his proposed instruction, the court had already found that domestic violence was a lesser-included offense of Busby’s kidnapping charge when it dismissed count II of the indictment on that ground. We find that the court was in error in doing so, as we explain below.

¶ 9. Mississippi Code Annotated section 97-3-7(3) (Rev.2006) details the crime of domestic violence: “A person is guilty of simple domestic violence who commits simple assault as described in subsection (1) of this section against ... a current or former spouse....” Subsection one of section 97-3-7 reads in part:

A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm....

¶ 10. Kidnapping is prohibited by Mississippi Code Annotated section 97-3-53 (Rev.2006), which states: “Any person who, without lawful authority and with or without intent to secretly confine, shall forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be confined or imprisoned against his or her will.... ” The Mississippi Supreme Court has stated that asportation is not an element of kidnapping in Mississippi: “[Section] 97-3-53 ‘does not require any allegation of transportation of the victim.’ ...” Holly v. State, 671 So.2d 32, 43 (Miss.1996) (quoting Carr v. State, 655 So.2d 824, 849 (Miss.1995)).

¶ 11. The Mississippi Supreme Court has held that:

the “essential elements of a lesser-included offense are among the elements of the superior offense.” State v. Shaw, 880 So.2d 296, 301(¶ 18) (Miss.2004). Stated differently, if an accused is guilty of the offense for which he was indicted, the accused is also guilty of any crime considered to be a lesser-included offense.

Smith v. State, 907 So.2d 292, 295(¶ 16) (Miss.2005) (citing Harper v. State, 478 So.2d 1017, 1021 (Miss.1985)). Therefore, domestic violence is not a lesser-included offense of kidnapping, as the elements of domestic violence are not among the elements of kidnapping. Indeed, the trial court was incorrect in dismissing count II of Busby’s indictment, as the State could validly have prosecuted Busby both for kidnapping and for domestic violence. The facts in this case support both, and the two are independent crimes with distinct elements. However, the court’s error was also clearly in Busby’s favor.

¶ 12. “A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Chandler v. State, 946 So.2d 355, 360(¶ 21) (Miss.2006) (quoting Ladnier v. State, 878 So.2d 926, 931(¶ 20) (Miss.2004)). Regardless of any error on the part of the trial court in interpreting domestic violence as a lesser-included offense of kidnapping, Busby was not entitled to his lesser-included offense instruction because domestic violence is not a lesser-included offense of kidnapping. Therefore, we find no error in the denial of Busby’s proposed instruction.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF KIDNAPPING AND SENTENCE OF A TERM OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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

      . Busby and Maranda were divorced prior to the trial in this case.