author: CARLTON, J., IRVING, J.,

text:
    The ESTATE OF Charles WHEELER, Deceased. Gary Robberson, Appellant v. Nancy Lena Wheeler Fikes, Rickey Dewayne Fikes and Jewel Wheeler Burton, Appellees.
    No. 2005-CA-01614-COA.
    Court of Appeals of Mississippi.
    June 26, 2007.

      Jak McGee Smith, Tupelo, attorney for appellant.
    C. Michael Malski, attorney for appel-lees.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. This is an appeal concerning whether a grantee of a deed was a bona fide purchaser. The trial court voided the deed to the grantee. Finding no error, we affirm the decision of the chancellor to void the deed.

FACTS

¶ 2. The circumstances from which this litigation derived have already been detailed by this Court. See Robberson v. Burton, 790 So.2d 226 (Miss.Ct.App.2001) (referred to in this opinion as Robberson 1). The relevant facts to the current appeal, and as stated in Robberson 1, include the following:

Claiming to own an undivided one-fourth interest in certain real property, Gary Robberson filed a “Petition for Sale of Land for Partition” against Jewel Wheeler Burton, Ricky Fikes and Nancy Wheeler Fikes in the Chancery Court of Itawamba County, Mississippi. Later, the chancellor granted Robberson leave to add Edsel Burton and Lena Shae Gray as party defendants to his petition for partition. The property which is the subject of this appeal consists of two tracts of land lying in Ita-wamba County. The first tract (Tract I) is made up of twenty-two acres and located on the property is the home of Jewel and Edsel Burton. Tract II consists of twenty-seven acres of farm land. Both tracts were purchased by Jewel Wheeler Burton and her now deceased first husband, Charles Wheeler, in the 1960⅛. Charles executed a will in 1982; he died in 1988. In the will he bequeathed to his wife, Jewel, his share of two acres of the subject property containing their home and surrounding area on which they resided. Also in the will, Charles left equal shares of his interest in the couples’ remaining acreage to his wife and daughter, Nancy, giving Nancy Wheeler a one-fourth interest in the total of Tract I and Tract II, not including the two acres specifically designated to Jewel. That will was never probated.
In 1991, Jewel remarried. Subsequently, she deeded all of her interest in both tracts of land to Lena Shae Gray, Nancy’s daughter and Jewel’s granddaughter. She retained a life estate in the home and the two acres devised to her in the as-yet unprobated will.

Robberson, 790 So.2d at 227-28 (¶¶ 2-3).

¶ 3. Nancy and Fikes were married on February 12, 1995. Nancy executed a deed to Lena Shae Gray on February 17, 1995. This deed conveyed Nancy’s undivided one-fourth interest in the property and reserved a life estate for Nancy. Nancy hid this deed from Fikes but disclosed the deed to her daughter. On, March 13, 1995, Nancy conveyed her one-fourth interest in the entire property to Fikes. On August 28, 1995, Robberson, first cousin of Fikes, acquired a deed from Fikes giving him record title to one-fourth interest in all of the property. The deed from Nancy to her daughter was not recorded until September 19,1995.

¶ 4. In Robberson 1, the chancellor:

confirmed title of the two acres of land and the home located on the subject property in Jewel Wheeler Burton and Edsel Burton with the remainder to Lena Shae Gray. In making this ruling, the chancellor relied on the last will and testament of Charles Wheeler to vest title to this part of the property in Jewel Wheeler Burton. The chancellor went on to state as follows:
An examination of the various other documents which have been introduced into evidence reveals that Gary Robberson owns an undivided one-forth (1/4) interest in the remaining acreage, i.e., the 49 3/4 acres less the home and two (2) acres upon which the home stands. The remaining undivided three-quarters (3/4) interest is owned by Lena Shea Gray, subject to a life estate owned by Jewel Wheeler Burton and Edsel Burton.
The chancellor declined to order the sale of the property and instead ordered that the property, not including the two acres on which the home sits or the home itself, be appraised. The chancellor ordered that once a value is assigned to the property Jewel Wheeler Burton was required to pay Robberson one-fourth of the appraised value of the property. Robberson was thereafter required by the order to convey by deed his one-fourth interest in the property to Jewel for life with the remainder interest to be vested in Lena Shae Gray.

Robberson, 790 So.2d at 227-28(¶ 5).

¶ 5. In Robberson 1, we concluded the following:

In attempting to fashion an equitable remedy, the chancellor erred in confirming title to the property and ordering an appraisal with directions for Jewel to pay Robberson an amount representing one-fourth interest in the real property. Although it was a commendable attempt to resolve this dispute, the statute does not provide for such a remedy. Because the whole property was the proper subject of partition (not diminished by the home and two acres), the chancellor was therefore required to partite the property either in kind or by sale. We agree on the present state of the record title that Lena Shae Gray owns three-fourths of the two tracts of land, subject to a life estate in Jewel and Edsel Burton, and Robberson owns a one-fourth interest in the two tracts of property, just as the chancellor ruled in regard to the land minus the home and two acres. Therefore, we remand this matter to the chancery court for a determination of whether a partition in kind is appropriate or whether a sale and division of the proceeds according to the respective interests of the parties is required.
In order to avoid any potential confusion over the effect of our ruling, we observe that there is, in Mississippi, no statute of limitations on the probate of a will. Further, there is authority for the proposition that one taking title to land with knowledge that an unprobated will exists may not obtain good title as against the named beneficiaries in the will. See Belt v. Adams, 125 Miss. 387, 87 So. 666, 668 (1921) (holding that a purchaser buying with knowledge of a will cannot assert a claim that would defeat the will). Whether these, or other related legal and equitable principles, may ultimately be brought to bear to resolve the title to the house and two acres is a matter that is not before the Court at this time. Those matters can only be litigated after the will of Charles Wheeler is successfully admitted to probate in the county where the land lies. Nothing we have decided in this opinion should be read as an attempt to foreshadow the outcome of future litigation affecting the title to this property flowing from the successful probate of the will, if such event should ever occur.

Id. at (¶¶ 13-14).

¶ 6. The appeal in Robberson 1 was in response to cause number 97-0207 which was initiated on July 1, 1997, by Robber-son seeking partition of the land. That cause was ruled upon by the chancery court on October 8, 1999. Robberson appealed that ruling and received a favorable outcome from this Court as stated above on July 7, 2001. The will of Charles Wheeler was probated on May 14, 2002. The validity of the will was never challenged within the two-year statute of limitations.

¶ 7. There were other actions pending during the time that matter was being appealed. On January 3, 1996, Nancy initiated cause number 96-0002 for the purpose of divorcing Fikes and challenging the validity of the deed executed from Nancy to Fikes and Fikes to Robberson. She voluntarily dismissed that action on February 13,1997. On February 18,1997, cause number 97-0038 was initiated by Nancy for the same purpose of the action which was voluntarily dismissed. Nancy was granted a divorce from Fikes on September 9, 1997. On December 2, 1999, cause number 99-0378 was filed by Rob-berson petitioning the court to quiet title to the land, declare his deed from Fikes valid, void the lis pendens notice that Nancy had filed against the property, and award Robberson damages and costs. A stay of cause numbers 97-0038 and 99-0378 was entered in March 2000, pending the decision of this Court concerning the Robberson 1 appeal. Additional delay may have been due to the numerous recusals filed by chancellors assigned to hear this matter.

¶ 8. On July 13, 2005, an order was entered by Itawamba County Chancellor Talmadge Littlejohn concerning all three of the then pending actions. The chancellor ruled that the deeds from Nancy to Fikes and Fikes to Robberson were void and quieted title to the property against Fikes and Robberson. The chancellor was well aware of this Court’s opinion in Rob-berson 1 but stated that the issue of whether the deed was void had to be resolved before a decision could be made on partitioning the land. We note that Fikes did not appear before the chancery court and failed to file any responses to the pleadings. Fikes is presently incarcerated with the Mississippi Department of Corrections.

¶ 9. Although the chancellor did not specifically state that Robberson was not a bona fide purchaser, we note that this finding was implicit. This implicit finding is evidenced by the chancellor’s discussion of the applicable factors for determining that issue and in his decision to void the deed from Fikes to Robberson. Indeed, the chancellor’s decision to void the deed from Fikes to Robberson demands the conclusion that the chancellor found that Robberson was not a bona fide purchaser for value without any notice of defect. Additional relevant facts are included in the discussion below.

¶ 10. Robberson appealed the decision of the chancery court arguing that he is an innocent purchaser for value without notice of any defect and that the chancellor erred in not confirming Robberson’s interest in the property. His appeal has been assigned to this Court.

DISCUSSION

¶ 11. We will not disturb the chancellor’s findings if they are supported by substantial evidence and are not manifestly wrong or clearly erroneous. Estate of Dykes v. Estate of Williams, 864 So.2d 926, 930(¶ 9) (Miss.2003). Questions of law are reviewed de novo. Id.

1. Sufficiency of Complaint

¶ 12. Robberson argues that Nancy’s complaint does not sufficiently state a cause of action against Robberson that could result in the possibility of Robberson losing a right to the property. He concludes that the decision of the chancellor was not supported by substantial evidence. He cites case law stating that, without evidence to the contrary, a conveyance acknowledging payment of valuable consideration is prima facie evidence that the grantee was a purchaser for valuable consideration. Mills v. Damson Oil Corp. 686 F.2d 1096 (5th Cir.1982).

¶ 13. Nancy, in addition to challenging the validity of the deed Nancy executed to Fikes, also requested that the court declare the deed from Fikes to Robberson void for lack of consideration. The evidence before the court included that Rob-berson paid to Fikes $3,300 for a one-fourth interest in the property. On December 8,1995, five months after receiving the deed from Fikes, Robberson, through his attorney, offered to sell the one-fourth interest to Jewel Burton for the sum of $20,000. The chancellor noted concern regarding the circumstances of Robberson’s actions. Robberson never went to look at the property and “virtually demand[ed]” selling the property back to Burton, who previously held title to the entire property with her husband.

¶ 14. In addition to Nancy’s complaint, Robberson himself requested that the chancellor declare him owner of a one-fourth interest in the land. The very basis of Robberson’s complaint required the chancellor to determine whether Robber-son was in fact the owner of the claimed interest. Having found that the deed from Nancy to Fikes was void, it was necessary and proper for the chancellor to examine whether Robberson had any interest in the property.

2. Validity of Deed

¶ 15. The chancellor’s decision that the deed from Nancy to Fikes was invalid is not challenged on appeal. Robberson relies upon case law in arguing that he was an innocent purchaser of the property and that the chancellor could not legally void the deed from Fikes to Robberson due to the invalidity of the deed to Fikes. Memphis Hardwood Flooring v. Daniel, 771 So.2d 924, 933 (Miss.2000); Collier v. Shell Oil Co., 534 So.2d 1015 (Miss.1988); Giesbrecht v. Smith, 397 So.2d 73, 77 (Miss.1981); Avant v. Whitten, 253 So.2d 394 (Miss.1971) (overruled in part on other grounds). Nancy argues that a voided deed cannot transfer any interest in real estate and that Robberson knew or should have known that the deed to Fikes was not valid.

¶ 16. Robberson argues that this case is analogous to Avant. In Avant, it was conceded that the persons purchasing land from the party that did not hold valid title “were innocent purchasers for value without notice.... ” Avant, 253 So.2d at 396. That case is of no value to the present discussion because whether or not Robber-son was an innocent purchaser for value without notice is the precise issue raised in this appeal.

¶ 17. Robberson also relies upon language in Collier where the Mississippi Supreme Court concluded that certain parties were bona fide purchasers, stating:

Shell and then Amoco are bona fide purchasers for value. At the time they took neither land records nor accessible law gave them notice that McLaurin’s illegitimate heirs had rights in his estate. As such, Shell, and then Amoco, acquired title against the world. Indeed, we have recognized that
every reasonable intendment should be made to support the titles of bona fide purchasers of real property, and that no equity can be any stronger than that of a purchaser who has put himself in peril by purchasing a title for a valuable consideration without notice of any defect in it.
Giesbrecht v. Smith, 397 So.2d 73, 77 (Miss.1981). How much stronger is that equity where the purchasers have relied to their detriment and engaged in ten years of successful drilling operations.

Collier, 534 So.2d at 1018. The holding in Collier and Giesbrecht supports Robber-son’s position if he is found to be a bona fide purchaser of the property. We now address whether Robberson meets the requirements of a bona fide purchaser.

3. Bona Fide Purchaser

¶ 18. Robberson properly acknowledges the requirements for protection as a bona fide purchaser as acquiring land for valuable consideration, in good faith, and without notice of any defect in title. Memphis Hardwood, 771 So.2d at 933(¶ 32). In Memphis Hardwood, a timber company was held to be a bona fide purchaser of timber. We applied the innocent purchaser analysis in a recent case. Wicker v. Harvey, 937 So.2d 983 (Miss.Ct.App.2006). In Wicker, we relied on Memphis Hardwood in stating that a real estate purchaser’s claim to be a bona fide purchaser for value without notice is “an affirmative defense and must be sustained by competent proof.” Id. at 992(¶ 27) (quoting Memphis Hardwood, 771 So.2d at 933(¶ 32)).

¶ 19. Claiming to be an innocent purchaser, Robberson must prove that he gave valuable consideration, the presence of good faith, and absence of notice of the adverse interest. We now address each of these subjects in the present case.

Valuable Consideration

¶ 20. Robberson testified that he paid Fikes $3,300 for the interest in the property, and cites case law to support his conclusion that this was adequate consideration. Buckley v. Garner, 935 So.2d 1030 (Miss.Ct.App.2005) (citing Mills, 686 F.2d 1096 at 1100). Nancy claims that the purchase price was “minimal” but does not expressly challenge that there was a complete lack of consideration for the purchase. Due to the lack of argument on this point, we conclude that the point is conceded that Robberson paid adequate consideration for the interest in the property. We do not reach the issue of whether $3,300 was adequate consideration here.

Good Faith and Absence of Notice

¶ 21. We now recite facts from the record to more fully communicate a concise sequence of events. Evidence was presented that Fikes and Robberson had a close relationship, discussed Nancy’s inheritance, and were both well acquainted with the situation of Nancy’s interest in the property. Robberson testified that he visited Nancy and Fikes as many as four times in a year. At times, Robberson was accompanied by his live-in girlfriend, Cly-tie, and ate dinner at Nancy’s house. Rob-berson and Fikes would spend time together alone and visited a lawyer’s office together.

¶ 22. There was also evidence that Fikes and Nancy had a very tumultuous relationship. Nancy testified that, when she refused to go out with Fikes after being abused, Fikes threatened to burn down her house. When she continued to refuse to go out with Fikes, her house burned down. Nancy suffered from injuries such as a broken cheek and nose in the year prior to Robberson purchasing the property. Nancy also suffered severe bruising that would be readily apparent by sight. Nancy testified that she did press charges against Fikes on one occasion and obtained a peace bond. After Nancy took that action, Fikes approached her at home and ripped out her phone lines to prevent Nancy from calling for help.

¶23. Evidence was presented to support the conclusion that Robberson was aware that Fikes abused Nancy. Fikes would sometimes stay at Robberson’s house when he had a fight with Nancy. Other times, Nancy would stay at the S.A.F.E. shelter to escape the abuse of Fikes. Nancy had confided in Robber-son’s girlfriend that Nancy wanted Lena to have the property and that Nancy was going to sign the property over to Lena. After that, Fikes threatened Nancy not to sign the property over to Lena, and then forced Nancy to sign a deed to him under duress. The evidence is uncontradicted that Nancy signed the deed over to Fikes due to coercion and duress.

¶ 24. Robberson testified that he knew the land he was purchasing from Fikes had recently been conveyed to Fikes by Nancy. Robberson testified that he was not aware that the two were married, and that he did not think it was unusual for Fikes to request $5,000 for a one-fourth interest in property valued at $60,000.

¶ 25. Robberson testified that he conducted a title search that went back fifty years but did not know who transferred the property to Nancy and did not “know those people” reflected in the title search. Nancy’s parents had purchased the land less than fifty years before Robberson’s title search. Less than five months after purchasing the property interest from Fikes, Robberson attempted to sell the property back to Nancy’s mom at a price of over six times what Robberson had paid. The letter he sent to Ms. Jewel Burton acknowledged that Robberson knew both she and Nancy’s daughter, Lena, also held an interest in this property.

¶ 26. Robberson argues that good faith was present in his transaction with Fikes. He argues that the testimony was uncon-tradicted that he had “absolutely no idea of any alleged threats between Ricky Fikes and his wife.” Our analysis is guided by the definition of good faith, defined in part as “absence of intent to defraud or to seek unconscionable advantage.” Black’s Law Dictionary, 701 (7th ed.2000). Notice is charged when:

in respect to a matter in which he has a material interest, a person has knowledge of such facts as to excite the attention of a reasonably prudent man and to put him upon guard and thus to incite him to inquiry, he is chargeable with notice, equivalent in law to knowledge, of all those further relevant facts which such inquiry, if pursued with reasonable diligence, would have disclosed.

Wicker, 937 So.2d at 993(¶ 30) (quoting Crawford v. Brown, 215 Miss. 489, 503, 61 So.2d 344, 350 (1952)); see also Beauchamp v. McLauchlin, 200 Miss. 83, 25 So.2d 771 (1946) (stating that when a purchaser has knowledge of circumstances that would put a prudent person acting in good faith on inquiry, he is chargeable with actual notice of the facts the inquiry would have disclosed).

¶ 27. In the present case, there is evidence to support the conclusion that information was passed between Clytie, Rob-berson, and Fikes, and that Robberson knew Fikes abused Nancy. There was evidence to conclude that a reasonably prudent person with the knowledge Rob-berson possessed about the situation would have further inquired how Fikes obtained the property from Nancy. There is sufficient evidence to support the ruling of the chancellor that a court of equity would protect Nancy’s right to the property. Robberson has failed to meet his burden of proof to demonstrate he acted in good faith and was without notice of an adverse interest in the property.

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

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND BARNES, JJ.

IRVING, J.,

Dissenting.

¶ 29. The majority finds the chancellor must have made an indirect finding that Gary Robberson was not a bona fide purchaser for value without notice. Because I find the evidence wholly insufficient to support such a finding, I respectfully dissent. I would reverse and remand the chancellor’s decision, as I find that the chancellor applied an incorrect legal standard in reaching his decision.

¶ 30. As the majority aptly points out, the chancellor did not specifically find that Robberson had notice of any possible defect in Rickey Dewayne Fikes’s chain of title. More specifically, the chancellor did not find that Robberson knew or should have known that Fikes obtained title to the property from his wife, Nancy Wheeler Fikes, by placing Nancy under fear and duress. Nor did the chancellor specifically find that there were circumstances which placed Robberson on notice of inquiry. Stated another way, the chancellor did not find that Robberson had sufficient knowledge concerning a possible defect in Rickey’s chain of title that would require Rob-berson to conduct further investigation to satisfy himself that Rickey possessed good title. In fact, in the judgment, the chancellor made no findings at all. I quote the final judgment in its entirety:

These matters having been consolidated for trial and having come on for hearing and the Court having considered the pleadings, having heard the evidence, having heard the argument of counsel, and having announced a bench opinion in open Court enters its judgment as follows, to-wit:
I.
That this Court has jurisdiction over the persons and the subject matter of this cause.
II.
The land involved in these consolidated proceedings is described as follows, to-wit:
22 ½ acres, more or less, in the Southwest Quarter of Section 17, Township 11 South, Range 9 East, described as follows: Beginning where Highway 25 Crosses the South boundary line of the Southwest Quarter of Section 17, Township 11 South, Range 8 East, thence East 100 Rods along and with the South boundary line of said section to the Southeast corner of said section, thence North 42 1/5 rods along the East line of said Quarter section to a stake, thence due West 80 Rods to a stake just West of the road (Highway 25), thence Southwest along the meanderings of said Highway to the point of beginning being and situated in Itawamba County, Mississippi. TRACT II:
27 1/4 acres, more or less, in the Northwest Quarter of Section 20, Township 11 South, Range 9 East, described as follows: Beginning at the Northeast corner of said Quarter section and running South 40 Rods, thence West approximately 115 Rods to the East line of the right-of-way of New Highway No. 25, thence North-wardly along the East line of said right-of-way to the North boundary line of said Quarter section, thence East approximately 103 Rods to the point of beginning being and situated in Itawamba County, Mississippi.
III.
That certain deed dated March 13, 1995, made by Nancy Wheeler Fikes to Ricky Dewayne Fikes [sic], which instrument was recorded in the Office of the Chancery Clerk of Itawamba County, Mississippi, in Book 454 at pages 230-231 and that certain deed dated August 28, 1995, made by Ricky D. Fikes [sic] to Gary Edward Robberson, which instrument was recorded in the Office of the Chancery Clerk of Itawamba County, Mississippi, in Book 458 at pages 554-555 are declared and adjudged void and are cancelled and title to the subject property is quieted against Ricky D. Fikes and Gary Edward Robberson.
TV.
All additional relief sought in these consolidated cases, specifically including the partition of the above-described real property is denied and the causes stand dismissed.
V.
The Chancery Clerk of Itawamba County, Mississippi, shall make an appropriate entry of this Judgement in the land records of Itawamba County, Mississippi.
ORDERED, ADJUDGED AND DECREED, THIS 13th DAY OF July, 2005.

¶ 31. Although the chancellor made no findings of fact in his judgment, he did render a bench opinion at the close of the evidence. However, as is evident from the judgment quoted above, the chancellor did not incorporate his bench opinion into his judgment. Nevertheless, I have perused the bench opinion in a fruitless effort to find support for the majority’s position.

¶ 32. In the bench opinion, the chancellor, relying upon Warren v. Brown, 25 Miss. 66 (1852) and Worcester v. Eaton, 13 Mass. 371 (1816), voided the deed from Nancy to Rickey and from Rickey to Robberson. This is what the chancellor said in part:

According to the case of Inhabitance [sic] of Worcester versus Eaton, 13 Mas. R. 376, where it was contended that duress did not affect a bonafided purchaser innocent of the force employed. The courts say, “We know not now [sic] to limit the right of one who is deprived of his estate by violence from reclaiming it into whose hands so ever it may come. The difficulty is as great when one falls under a deed acknowledged by an infant.”
And they go on to quote the Wheeler versus Wheeler case, [in] which is cited the Opinion of Lord Eldon who says, “I should regret that any doubt should be entertained whether it is not competent for a court of equity to take away from third persons the benefits which they have derived from the fraud, imposition or undue influence of others.”
Now, the Court went on finally — without burdening you with all of the statements set forth in it — came ultimately to the conclusion. Justice Yerger delivered the opinion of the Court, and I come to the last part of it. He says, “The record before us contains no suggestion of fraud in the debt which the defendants seek to collect. Was made subsequent to the lease to Mrs. Warren [sic].”
Here, the deed to Mr. Robberson was made subsequent to the deed that Nancy had purportedly given to her husband.
And here’s what the Court said, “Under such circumstances, we think a court of equity will protect her right to the property.”
So, gentlemen, based on the proof before this Court today and these findings of fact that I’ve noted here, this Court finds that this deed is absolutely void and hereby sets it aside. The petition for partition is accordingly dismissed because there is no basis for it, and that is the ruling of this Court.
Mr. Malski, if you would prepare the decree and submit it to Mr. Smith for his approval as to form only and tender it to this Court, the Court will enter the same. With that, Court is adjourned for the day.

¶ 33. It is clear that the chancellor made no finding that Robberson was on notice that Rickey had obtained title to the property by duress. Indeed, it does not appear that the chancellor even considered this aspect of the case, relying instead on the notion that a deed made under duress conveys no title, not even to a bona fide purchaser for value without notice. A review of the chancellor’s bench opinion reveals that the chancellor focused entirely on the issue of duress, not on the issue of a bona fide purchaser for value without notice, although the chancellor was keenly aware that the latter was an issue requiring resolution. By focusing entirely on the duress issue, the chancellor failed to apply the law of this state. Whatever the law may have been in 1852, today the law is that a bona fide purchaser for value without notice takes to the exclusion of an earlier grantee who fails to timely record his deed. West Center Apartments, Ltd. v. Keyes, 371 So.2d 854, 856 (Miss.1979) (citing Mayes v. Thompson, 128 Miss. 561, 91 So. 275 (1922)). For the reasons presented, I dissent.

CHANDLER AND BARNES, JJ., JOIN THIS SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: BARNES, J., ROBERTS, J.,

license: Public Domain

text:
    Steve JEFFERSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00492-COA.
    Court of Appeals of Mississippi.
    June 26, 2007.
    Steve Jefferson, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Steve Jefferson appeals the decision of the Marion County Circuit Court dismissing his petition for post-conviction collateral relief (“PCR”). Proceeding pro se, Jefferson asserts that the trial court committed reversible error by suspending part of his sentence and by sentencing him to house arrest. Additionally, Jefferson argues that he was denied effective assistance of counsel in that Jefferson’s counsel misinformed him of the maximum sentence allowed for the charged crime. We are not persuaded by Jefferson’s assignments of error; however, we find that the trial court committed plain error by sentencing Jefferson to a longer term of imprisonment than allowed by statute. Accordingly, we vacate Jefferson’s sentence and remand for further proceedings consistent with this opinion.

FACTS

¶ 2. Steve Jefferson was indicted on May 5, 2004, by the Marion County Grand Jury for forging and presenting a bank check in the amount of $35 to a local grocery store. On July 8, 2004, Jefferson pled guilty to one count of uttering forgery. The Marion County Circuit Court entered its “Order of Conviction and Sentence” on July 15, 2004. That order provided, in pertinent part, as follows:

THEREFORE, for said offense and on said plea of guilty, and after consideration of a presentence investigation report, it is by the Court ORDERED AND ADJUDGED that the said STEVE JEFFERSON be and he is hereby sentenced to serve FIFTEEN (15) years in the custody of the Mississippi Department of Corrections. The defendant is to be placed immediately in the Therapeutic Community Drug and Alcohol Treatment Program with the Department of Corrections. Once the defendant has successfully completed the aforesaid Program, he is then to be released to serve the remaining balance of his FOUR (4) years in the Intensive Supervision House Arrest Program. Once the defendant has successfully completed the Intensive Supervision House Arrest Program then the remaining ELEVEN (11) years be SUSPENDED, pending successful completion of a FIVE (5) year period of post-release supervision, pursuant to Mississippi Code 47-7-34. The defendant shall receive credit for time served in the county jail on this charge to go towards the four year sentence.

¶ 3. "According to Jefferson, he completed the Therapeutic Community Drug and Alcohol Treatment Program on February 24, 2005, a fact which is not disputed by the State. Jefferson admits further that he violated the terms of the house arrest program on June 15, 2005, although the specifics of that violation are not apparent from the record. In any event, Jefferson was remanded to the custody of MDOC to serve out the remainder of his fifteen-year sentence. Jefferson filed a “Petition for Post-Conviction Collateral Relief to Vacate and Set-Aside Illegal Suspended Sentence” on November 8, 2005. In that petition, Jefferson argued that, because of his prior felony convictions, the circuit court was not authorized to suspend any part of his sentence nor to allow him to serve any portion thereof under house arrest.

¶ 4. While acknowledging that Jefferson’s “sentence ... was illegal to the extent that [Jefferson] was given house arrest and he was not eligible for such program,” the circuit nevertheless summarily dismissed Jefferson’s petition by order filed on November 15, 2005, finding that a defendant is not entitled to relief when he receives a more favorable sentence than the law allows. Aggrieved by the decision of the circuit court, Jefferson filed his “Notice of Appeal,” which was dated January 24, 2006, and stamped filed on February 2, 2006.

STANDARD OF REVIEW

¶ 5. The circuit court dismissed Jefferson’s PCR pursuant to the summary dismissal procedure authorized by Mississippi Code Annotated section 99-39-11(2) (Rev. 2000). In Young v. State, 731 So.2d 1120, 1122 (¶¶ 6-9) (Miss.1999), the Mississippi Supreme Court explained the procedural posture of an appeal from summary dismissal of a motion for post-conviction relief and the standard of review to be applied in such contexts. For purposes of this appeal, we need not recite the supreme court’s entire explanation. Instead, we find sufficient the Young court’s pronouncement that, on review of a PCR summary dismissal, “as in a 12(b)(6) dismissal, this Court reviews the record de novo to determine whether [the appellant] has failed to demonstrate ‘a claim proeedurally alive substantially showing denial of a state or federal right, ... ’ ” Id. at (¶ 9) (citations omitted).

DISCUSSION

¶ 6. Although not asserted by the State nor addressed by either party, we note, as a preliminary matter, that Jefferson’s appeal appears to be untimely, as his “Notice of Appeal” was dated and stamped filed more than two months after the court’s order dismissing Jefferson’s PCR was entered. Rule 4(a) of the Mississippi Rules of Appellate Procedure requires a notice of appeal to be filed within thirty days of entry of the order or judgment appealed from; however, considering the unique circumstances presented by this case, we choose to exercise the discretion vested in us pursuant to Mississippi Rules of Appellate Procedure 2(c) and allow Jefferson’s out-of-time appeal. See Vance v. State, 941 So.2d 225, 227 (¶ 6) (Miss.Ct.App.2006); M.R.A.P. 4 cmt. (¶ 13). Accordingly, we find jurisdiction proper in this case, and we proceed to the merits of Jefferson’s appeal.

¶ 7. Essentially, Jefferson’s appeal raises two distinct issues. The first issue is based on the illegality of his sentence. More specifically, Jefferson asserts that, because of prior felonies on his record of which the trial court was aware, the trial judge was without authority to suspend any portion of his sentence and was without authority to place him under house arrest in lieu of being placed in the custody of MDOC. Second, Jefferson asserts that he received ineffective assistance of counsel when, pri- or to entry of Jefferson’s guilty plea, his trial counsel incorrectly informed him that the maximum possible sentence for uttering forgery was ten years. For reasons that we will briefly discuss below, we find Jefferson’s argument with respect to both issues to be without merit. However, on review of the entire record, we find that the trial court committed plain error by imposing a greater sentence than was authorized by the applicable statute. It is upon this plain error that we base our decision to vacate the judgment of sentence entered below and remand for re-sentencing.

1. Whether Jefferson’s suspended sentence and/or sentence to house arrest was illegal and, if so, whether such illegality constitutes reversible error

¶ 8. To support his contention that the trial judge in this case erred by suspending part of his sentence, Jefferson points to Mississippi Code Annotated section 47-7-33(1) (Rev.2004) which allows a trial court, “except in a case where a death sentence or life imprisonment is the maximum penalty which may be imposed or where the defendant has been convicted of a felony on a previous occasion, ... to suspend the imposition or execution of sentence, and place the defendant on probation .... ” Because of Jefferson’s undisputed prior felony convictions, Jefferson asserts that section 47-7-33(1) precluded the trial judge from suspending any portion of his sentence. Jefferson next argues that his placement in the Intensive Supervision House Arrest Program was illegal pursuant to Mississippi Code Annotated sections 47-5-1001 to 1015 (Rev. 2004). In particular, section 47-5-1003 makes a defendant ineligible for the program where, among other disqualifying bases, “the defendant has been confined for the conviction of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof or has been convicted of a felony involving the use of a deadly weapon.”

¶ 9. In ruling on Jefferson’s PCR, the trial court found that Jefferson’s sentence was illegal based on section 47-5-1003. According to the trial court, that section “sets forth the eligibility requirements for participation in the house arrest program and, based upon the prior felonies reported in [Jefferson’s] pre-sentence report record ..., the Court finds that [Jefferson] was not entitled to be placed on house arrest, his sentence was illegal.” Nevertheless, the trial court dismissed Jefferson’s PCR, reasoning that “[i]t is well-settled in Mississippi that when a Defendant is given an illegal sentence- that is more favorable than what the legal sentence would have been then he/she is not later entitled to relief through a postcon-viction action.” We agree.

¶ 10. Even assuming, without deciding, that the trial judge in this case imposed an illegal sentence upon Jefferson by suspending part of his sentence and/or by sentencing Jefferson to house arrest, we find that such error by the trial court does not require reversal of Jefferson’s conviction or sentence. In Myers v. State, 897 So.2d 198, 201 (¶ 11) (Miss.Ct.App.2004), we considered an argument identical to the one which Jefferson asserts in the instant case. There, the criminal defendant argued that, “because he had prior felonies, the only legal sentence he could have received was thirty years without parole. Therefore, [the defendant] claimfed] that his sentence was unconstitutional and must be set aside.” Id. In finding that the errors urged in Myers did not rise to the level of reversible error, we stated that “a defendant’s fundamental right of freedom from an illegal sentence is violated when the sentence imposes an undue burden on the defendant, such as when the offer induces a plea and the State later seeks to rescind the suspension solely because it was statutorily barred.” Id. at 201 (¶ 12) (citing Graves v. State, 822 So.2d 1089, 1092 (¶ 11) (Miss.Ct.App.2002); Weaver v. State, 785 So.2d 1085, 1088 (¶ 11) (Miss.Ct.App.2001)).

¶ 11. Because the defendant in Myers benefitted from the illegal sentence in that the sentence imposed was more lenient than the sentence to which he was entitled, we held that he did not suffer “any fundamental 'unfairness from the illegal sen-ténce, nor [were] his fundamental fights [ ] violated.” Id. (citing Graves, 822 So.2d at 1091 (¶ 8); McGleachie v. State, 800 So.2d 561 (¶ 4) (Miss.Ct.App.2001); Chancellor v. State, 809 So.2d 700 (¶ 8) (Miss.Ct.App.2001)). Similarly, because Jefferson benefitted from the allegedly illegal sentence imposed by the trial court in the case sub judice, we find any error committed by the trial court in imposing such illegal sentence to be harmless. See Sweat v. State, 912 So.2d 458, 461 (¶ 9) (Miss.2005) (adopting the holdings of this Court in finding that an error in sentencing is harmless error if it results in a more lenient sentence for the defendant); see also Hughery v. State, 915 So.2d 457, 459 (¶ 8) (Miss.Ct.App.2005) (stating that defendant cannot reap the favorable benefits of an illegal sentence and then claim prejudice as a result thereof); Cook v. State, 910 So.2d 745, 747 (¶ 10) (Miss.Ct.App.2005) (holding that “an individual may not plead guilty to a crime, receive a lesser sentence than what is prescribed by statute, and then use the more lenient sentence as a sword to attack the entire sentence as illegal”). Jefferson’s argument to the contrary is without merit.

2. Whether Jefferson received ineffective assistance of counsel

¶ 12. Jefferson claims that his trial counsel misinformed him that the maximum sentence possible for the charge of uttering forgery was ten years in the custody of MDOC. In his “Petition to Enter Plea of Guilty,” Jefferson stated that he knew “the possible sentence is two year(s) minimum to ten years maximum, imprisonment. ...” Furthermore, the transcript of the plea colloquy reflects that the trial judge questioned Jefferson regarding Jefferson’s knowledge of the possible sentence which could be imposed, and Jefferson responded that he knew the maximum possible sentence was ten years’ imprisonment. At the sentencing hearing held one week later, the trial judge sentenced Jefferson to fifteen years in the custody of MDOC. Accordingly, Jefferson asserts that he was prejudiced by his counsel’s failure to inform him of the correct maximum sentence and that, therefore, his guilty plea was not knowingly, voluntarily, and intelligently made. We disagree for one very important reason: Jefferson’s counsel was correct.

¶ 13. A successful claim of ineffective assistance of counsel requires a showing that counsel’s performance was deficient in some respect and that this deficiency caused prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the instant case, Jefferson’s sole claim of deficiency is that his trial counsel misinformed him that the maximum sentence for uttering forgery was ten years when it was actually fifteen years. According to Mississippi Code Annotated section 97-21-59 (Rev.2006), the punishment for uttering forgery is the same as “herein provided for forgery.” The penalty for forgery in effect at the time Jefferson was sentenced is outlined in Mississippi Code Annotated section 97-21-33 (Supp.2003), and provided that “[pjersons convicted of forgery shall be punished by imprisonment in the Penitentiary for a term of not less than two (2) years nor more than ten (10) years....” According to section 97-21-33, Jefferson’s counsel correctly informed Jefferson that the maximum sentence for uttering forgery was ten years imprisonment, and as such, counsel’s performance was not deficient. The trial judge, however, incorrectly imposed a greater sentence upon Jefferson than was allowed by section 97-21-33. Although not raised by Jefferson in either his petition for post-conviction relief or in the appeal before this Court, we find that this error rises to the level of plain error.

3. Whether the trial court’s imposition of a greater sentence than allowed by statute constitutes plain error

¶ 14. Jefferson did not assert error by the trial court in imposing a fifteen year sentence in either his petition for post-conviction relief or in this appeal. In fact, Jefferson apparently asserts the opposite: that the trial judge correctly imposed a fifteen year sentence and that his counsel mistakenly informed him that the maximum sentence was ten years. As discussed above, the version of section 97-21-33 in effect at the time Jefferson was sentenced set the maximum sentence for forgery — and by reference, uttering forgery — at ten years. Despite Jefferson’s failure to raise this issue, we find that the imposition of a greater sentence than allowed by statute amounts to plain error.

¶ 15. Mississippi Rule of Appellate Procedure 28(a)(3) ordinarily restricts our review to those issues raised by the parties on appeal. However, Rule 28(a)(3) provides that “the court may, at its option, notice a plain error not identified or distinctly specified.” In addition, Mississippi Rule of Evidence 103(d) permits review of “plain errors affecting substantial rights although they were not brought to the attention of the court.” “According to the Mississippi Supreme Court, the reviewing court may address issues as plain error ‘when the trial court has impacted upon a fundamental right of the defendant.’ ” Moore v. State, 755 So.2d 1276, 1279 (¶ 9) (Miss.Ct.App.2000) (quoting Berry v. State, 728 So.2d 568, 571 (¶ 6) (Miss.1999)). “The right to be free from an illegal sentence has been found to be fundamental.” Davis v. State, 933 So.2d 1014, 1022 (¶ 32) (Miss.Ct.App.2006) (quoting Ethridge v. State, 800 So.2d 1221 (¶ 7) (Miss.Ct.App.2001)).

¶ 16. Because the circuit court sentenced Jefferson to a greater sentence than was allowed by statute, we find plain error in the sentence imposed by the circuit court. Therefore, we vacate the sentence previously imposed and remand this matter to the Circuit Court of Marion County for a new sentencing hearing at which time the court may impose a sentence not to exceed ten years in accordance with section 97-21-33 of the Mississippi Code.

¶ 17. THE JUDGMENT OF THE MARION COUNTY CIRCUIT COURT DISMISSING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED; THE JUDGMENT OF SENTENCE IN MARION COUNTY CIRCUIT COURT CAUSE NO. K04-0116E IS VACATED AND THIS CAUSE IS REMANDED FOR THE LIMITED PURPOSE OF RE-SENTENCING THE APPELLANT IN ACCORDANCE WITH SECTION 97-21-33 OF THE MISSISSIPPI CODE. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.

KING C.J., LEE AND MYERS P.JJ., IRVING, CHANDLER, ISHEE AND CARLTON, JJ„ CONCUR. ROBERTS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND GRIFFIS, JJ.

ROBERTS, J.,

Specially Concurring:

¶ 18. I concur in the majority’s decision to remand this matter for proper sentencing. I agree that a plain error analysis is justified where one has been convicted of a sentence greater than the law authorizes. I also agree that Jefferson’s ineffective assistance of counsel claim has no merit. In writing separately, I hope to provide the bench and the bar with further guidance regarding other legal deficiencies that appear in Jefferson’s sentence.

¶ 19. First, however, it is important to note that Jefferson committed his act of forgery on June 1, 2003. At that time, the relevant minimum and maximum sentences for that act were two years and fifteen years, respectively. Miss.Code Ann. § 97-21-33 (Rev.2003). During the 2003 legislative session, the Mississippi legislature reduced the maximum sentence from fifteen years to ten years. The new law took effect on July 1, 2003.

¶ 20. The circuit court sentenced Jefferson on July 15, 2004. Therefore, after Jefferson committed his crime, but before he pled guilty and was sentenced, the legislature reduced the maximum sentence from fifteen years to ten years. Under those circumstances, the circuit court may not sentence a defendant to the greater punishment. Daniels v. State, 742 So.2d 1140(¶ 17) (Miss.1999).

¶21. Mississippi’s post-conviction collateral relief act permits a challenge to the conviction on the grounds, among others, that (a) the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi and, (d) the sentence exceeds the maximum authorized by law. Miss.Code Ann. § 99-39-5 (Rev.2000). Jefferson claims a violation based on the first ground, albeit partially on a different basis than I will discuss hereafter. To have a full understanding of the parameters of Jefferson’s sentence as rendered by the circuit court, it is essential to recite the sentencing order in its entirety. It reads as follows:

INTO OPEN COURT on July 8, 2004 came the Assistant District Attorney, who prosecutes for the State of Mississippi, and the defendant STEVE JEFFERSON, personally and represented by counsel HONORABLE MORRIS SWEATT, whereupon the Defendant was lawfully arraigned on a charge in this Court of UTTERING FORGERY. The Court, after full inquiry, determined that Defendant’s plea of guilty complied with all the requirements of Rule 8.04 of the Uniform Rules of Circuit Court, and satisfied all of Defendant’s additional legal and constitutional rights. The plea was accepted and the Court found Defendant guilty of said charge.
THEREFORE, for said offense and on said plea of guilty, and after consideration of a presentence investigation report, it is by the Court ORDERED AND ADJUDGED that the said STEVE JEFFERSON be and he is hereby sentenced to serve FIFTEEN (15) years in the custody of the Mississippi Department of Corrections. The defendant is to be placed immediately in the Therapeutic Community Drug and Alcohol Treatment Program with the Department of Corrections. Once the defendant has successfully completed the aforesaid Program, he is then to be released to serve the remaining balance of his FOUR (⅝) years in the Intensive Supemsion House Arrest Program. Once the defendant has successfully completed the Intensive Supervision House Arrest Program then the remaining ELEVEN (11) years be SUSPENDED, pending successful completion of a FIVE (5) year period of post-release supervision, pursuant to Mississippi Code 47-7-34. The defendant shall receive credit for time served in the county jail on this charge to go towards the four year sentence.
The defendant is hereby ordered to pay a fine of $1000.00, pay an assessment of $1500.00 to Marion County for the Public Defenders Fund, pay restitution of $466.94 to Piggly Wiggly, Nor-thgate Shopping Center, Attn: Pam Warren, Highway 13 North, Columbia, MS 39429 and pay all costs of court herein to be paid at the rate of $50.00 beginning one (1) month after being placed on the Intensive Supervision House Arrest Program. The specific provision of said sentence are fully set forth below:
Any period of incarceration imposed under said sentence is to be served in the custody of the Mississippi Department of Corrections under the provisions of Mississippi Code Section 47-5-138, as amended, and any portion of said sentence that is served under Post-Release Supervision is to be served under the provisions of Section 47-7-34 of the Mississippi Code of 1972, as amended.
Any period of incarceration imposed under said sentence in relation to the Intensive Supervision House Arrest Program is to be served in the custody of the Mississippi Department of Corrections under the provision of Mississippi Code Section 47-5-1001 through 1015, as amended.
IT IS ORDERED AND ADJUDGED that the Defendant shall comply with all terms and conditions of the Intensive Supervision Program as set forth in a separate document signed and agreed to by the Defendant herein. Defendant shall pay the sum of $50.00 per month as an administrative fee while on the Intensive Supervision Program commencing with the first regularly scheduled visit with the Mississippi Department of Corrections. Said fee is in addition to any payments made towards fines, costs and/or restitution.
Failure of the defendant to successfully complete the House Arrest Program, shall constitute a violation of this Order and shall result in the Mississippi Department of Corrections, without further order of this Court, to place the defendant into general population to serve said sentence which will include the remaining portion of the House Arrest Program that has not been served and the suspended portion of the original sentence. If ordered to be again incarcerated the defendant is to be given credit, if any, for time served on House Arrest.
The suspension of any portion of said sentence, whether under Post-Release Supervision, probation or otherwise, shall be subject to the following conditions:
Defendant shall:
(a) Commit no offense against the laws of this or any other state of the United States, or the laws of the United States;
(b) Avoid injurious or vicious habits and persons and places of disreputable or harmful character;
(c) Report to the Field Officer as directed;
(d) Permit the Field Supervisor (Probation officer) to visit the defendant at home or elsewhere;
(e) Work faithfully at suitable employment so far as possible;
(f) Remain within a specified area, to wit: State of Mississippi;
(g) Support his dependants, if any;
(h) Possess or consume no alcoholic beverages or mood altering drugs, and possess no firearm or other deadly weapon;
(i) Pay required fee during each month of probation, by money order, to the Mississippi Department of Corrections;
(j) Submit, as provided in Section 47-5-603 of the Mississippi Code of 1972, to any type of breath, saliva, or urine chemical analysis test, the purpose of which is to detect the possible presence of alcohol or substance prohibited or controlled by any law of the State of Mississippi or the United States, or to tests recommended by his Field Officer;
(k) Participate in any recognized program available and recommended by his Field Officer;
(,l) Defendant shall pay his fines, restitution, assessment and costs at the rate of $50.00 per month[;].
(m) Defendant shall attend Alcoholics Narcotics Anonymous meetings at the direction of his Field Officer;
(n) Defendant may not be out in public after the hours of 11 o’clock p.m. until 6 o’clock a.m., unless it pertains to his employment.
The violation of any one of the above enumerated conditions shall violate the terms and conditions of the defendant’s Posl^Release Supervision and the Court shall have the authority to revoke the defendant from Post-Release Supervision and remand him back into custody of the Mississippi Department of Corrections to serve the revoked portion of his fifteen (15) year sentence.
The Court retains jurisdiction of this matter under Section 47-7-47 of the Mississippi code of 1972, as amended for the time permitted by applicable statutes and for the purpose of entry of any other or further order deemed appropriate herein by the Court should the defendant not qualify for the House Arrest Program, or does not pay monthly on his/her fines, assessment, restitution or costs. This Court shall relinquish any such jurisdiction should the defendant not complete the House Arrest Program and is placed in general population.
IT IS FURTHER ORDERED AND ADJUDGED that the defendant participate in a drug/alcohol program as recommended by the Mississippi Department of Corrections.
IT IS THEREFORE ORDERED AND ADJUDGED that as of this date, the Defendant is an inmate of the Mississippi Department of Corrections and under their supervision, control and custody.
SO ORDERED AND ADJUDGED on this the 15th day of July, 2004.

¶ 22. From the somewhat sparse record we have before us, it appears without question that Jefferson was a prior convicted felon who had served prison time when he stood before the circuit court on July 15, 2004. On October 24, 1990, he was convicted of forgery in the Marion County Circuit Court and was sentenced to five years. In 1993, Jefferson was convicted twice, both before the same court. On July 12,1993 he was convicted of grand larceny, for which he received a five year sentence. On July 30, 1993, he received another felony forgery conviction. Again, he was sentenced to a five year sentence, to run concurrent with the five year sentence for grand larceny. On January 20, 1995, Jefferson received yet another felony forgery conviction — again by the same court. For that conviction, Jefferson was given a twelve year sentence. In 2002, Jefferson was convicted of a felony drug violation in Orlando, Florida and sentenced to two years.

¶23. No where in the plea colloquy does the circuit court ask Jefferson about his prior felony record. It appears that the district attorney chose to nol prosequi other forgery charges as well as a grand larceny charge. Otherwise, Jefferson’s plea was “open” or “blind.” However, at the sentencing hearing on July 15, 2004, the circuit court was quite aware that Jefferson had either five or six prior felony convictions. Neither the district attorney nor Jefferson’s counsel voiced a position regarding their view of an appropriate sentence for Jefferson. At the conclusion of the hearing, the circuit court stated, “You’ll get fifteen years with eleven years under the post-release section. You’ll do the Intensive Drug and Alcohol Program. And then the balance of that on the four years incarceration will be under the house arrest program. That will be the sentence in your case.”

¶ 24. Numerous deficiencies are readily apparent in Jefferson’s sentencing order. Jefferson is a prior convicted felon who has served time. Pursuant to Section 47-7-33, sometimes referred to as the probation statute, if a defendant is a prior convicted felon, a circuit court may not suspend all or part of a sentence and place a defendant on probation. Miss.Code Ann. § 47-7-33 (Rev.2004). Further, Section 47-5-1003(2) of the Mississippi Code prohibits the placement of an offender on house arrest (intensive supervision placement) if he is a prior convicted felon who has served time. Miss.Code Ann. § 47-5-1003(2) (Rev.2004). What is more, the circuit court must find the offender to be “low risk.” Miss.Code Ann. § 47-5-1003(1) (Rev.2004). Needless to say, classification of Jefferson as “low risk” with six prior felony convictions within fourteen years is quite a stretch.

¶ 25. The circuit court was free to utilize Mississippi Code Annotated § 47-7-34 (Rev.2004) if it believed that Jefferson needed an initial sentence of incarceration, suspension of part of his remaining sentence, and placement on post-release supervision. Recently, the supreme court discussed in quite some depth the various sentencing options available to circuit judges in cases such as Jefferson’s. Johnson v. State, 925 So.2d 86 (¶ 39) (Miss.2006).

¶ 26. The majority analyzes Jefferson’s claim that he was illegally sentenced to house arrest and finds it unpersuasive because it is unlawfully lenient. The majority cites relevant case law supporting that claim. With all due respect for the majority, I do not find this authority persuasive nor applicable to Jefferson’s situation.

¶ 27. The circuit court sentenced Jefferson to fifteen years in the custody of the MDOC. Clearly, as above discussed, that sentence was in excess of the maximum sentence permitted by law. The circuit court apparently attempted to utilize the earned probation statute at Mississippi Code Annotated § 47-7-47 (Rev.2004) to retain jurisdiction over Jefferson for the purpose of considering re-sentencing within the twelve months permitted by law. The record contains no order by the circuit court re-sentencing Jefferson under Section 47-7-47.

¶ 28. The circuit court made suspension of eleven years of Jefferson’s sentence contingent upon successful completion of the house arrest program. Then, the circuit court authorized the MDOC to determine if Jefferson successfully completed house arrest. The order specifically provided:

Failure of the defendant to successfully complete the House Arrest Program, shall constitute a violation of this Order and shall result in the Mississippi Department of Corrections, without further order of this Court, to place the defendant into general population to serve said sentence which will include the remaining portion of the House Arrest Program that has not been served and the suspended portion of the original sentence.

Jefferson completed the alcohol and drug treatment portion of his sentence while in actual physical custody of an MDOC facility. Then, the MDOC placed Jefferson on house arrest pursuant to the circuit court’s order. On June 15, 2005, Jefferson violated the conditions of his house arrest. Accordingly, Jefferson is now serving an entire fifteen year unlawful sentence. A persuasive argument exists that the sentence Jefferson actually received was not more lenient than any other lawful sentence he might have received, but was in fact more onerous. Beauty is, indeed, in the eye of the beholder.

¶29. It appears that the circuit court attempted to give the MDOC the authority to revoke Jefferson’s eleven-year sentence suspension if Jefferson violated the terms of his house arrest during the time he was actually serving time in that capacity. This the circuit court cannot do. While on house arrest, Jefferson is an inmate under the exclusive jurisdiction of the department. See Babbitt v. State, 755 So.2d 406 (¶ 11) (Miss.2000). The MDOC’s classification committee, rather than the circuit court, has the sole authority to consider a violation of the rules of the intensive supervision program. Jefferson remains subject to the MDOC classification process until the MDOC officially discharges him from his four-year sentence. Normally, he would receive a discharge certificate from MDOC upon his completion of his four year sentence. Miss.Code Ann. § 47-5-157 (Rev.2004).

¶ 30. Only thereafter, when Jefferson begins his post-release supervision, is he subject to the circuit court’s authority. If he were to then violate any material term of his post-release supervision, the circuit court, after hearing, may revoke all or part of his suspended sentence. According to Mississippi Code Annotated § 47-5-1003(4) of the Mississippi Code, “The courts may not require an offender to complete the intensive supervision program as a condition of probation or post-release supervision.” It appears that this is exactly what the circuit court did in this ease. Jefferson simply cannot violate a condition of his suspended sentence or post-release supervision while he is actively serving his four-year sentence as an inmate. He cannot have his suspended sentence revoked for an act committed before he began his term of post-release supervision. Smith v. State, 742 So.2d 1146 (¶ 11) (Miss.1999). By way of analogy, if Jefferson had received a fifteen-year sentence, eleven years of that sentence suspended based on compliance with five years of post-release supervision, and then, while serving his first four years in custody, attempted escape or received a rule violation report (RVR), the circuit court would have no authority to revoke his suspension since his post-release supervision had not yet begun. The MDOC has exclusive jurisdiction over Jefferson while he is an inmate.

¶ 31. Additionally, the sentencing order provides that, if Jefferson fails “to successfully complete the House Arrest Program” that failure amounts to a violation of the sentencing order. Should that occur, the sentencing order directs the MDOC to “place [Jefferson] into general population to serve said sentence which will include the remaining portion of the House Arrest Program that has not been served and the suspended portion of the original sentence.” Moreover, the order directs the MDOC to do so “without further order of [the circuit court].”

¶ 32. This conditional provision is problematic because the circuit court orders the MDOC to take two steps without a court order. First, the MDOC is to revoke Jefferson’s ISP housing classification. That does not have due process implications. When a prisoner is taken off house arrest and placed in MDOC custody, that prisoner “merely experience^] a change in his housing assignment and classification, which does not require a hearing since it does not involve a liberty interest.” Brown v. Miss. Dep’t of Corr., 906 So.2d 833 (¶ 6) (Miss.Ct.App.2004).

¶ 33. However, the sentencing order also provides that, should Jefferson fail to complete the “House Arrest Program,” he is to serve the suspended portion of his fifteen year sentence. This provision does have due process implications. The procedures for terminating post-release supervision are the same as the procedures for the revocation of probation. Miss.Code Ann. § 47-7-34(2) (Supp.2003); Massingille v. State, 878 So.2d 252 (¶ 7) (Miss.Ct.App.2004). As for the proper procedure incident to revocation of probation, one is entitled to “(a) a preliminary proceeding, in the nature of a probable cause hearing, to be held promptly after a probationer is detained for an alleged parole or probation violation, and (b) a more formal final revocation hearing at which the prisoner is afforded a number of constitutional protections as outlined in [Morrissey v. Brewer, 408 U.S. 471, 487-88, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)].” Rusche v. State, 813 So.2d 787 (¶ 7) (Miss.Ct.App.2002). To summarize, the order contained a provision that would have violated Jefferson’s due process rights.

¶ 34. Finally, we are unable to find any specific statutory authority that would permit a circuit court to order that the MDOC place an offender in a drug or alcohol treatment program and then, upon completion, order him released to ISP status, probation, or post-release supervision. The courts do not manage MDOC inmates or operate the department of corrections. The MDOC commissioner is charged with the specific duty of “accepting adult offenders committed to it by the courts of this state for incarceration, care, custody, treatment, and rehabilitation, and to provide for the care, custody, study, training, supervision, and treatment of adult offenders committed to the department.” Miss. Code Ann. § 47-5-10(a)(b) (Rev.2004) (emphasis added). Further, the commissioner is charged with planning, developing, and coordinating a statewide comprehensive correctional program designed to train and rehabilitate offenders in order to prevent, control and retard recidivism. Not only that, the commissioner is vested with the exclusive authority and responsibility for the management and control of the correctional system and for the proper care, treatment, feeding, clothing, and management of the offenders confined therein. Miss.Code Ann. § 47-5-23 (Rev.2004).

¶ 35. That being said, if a sentencing circuit court is convinced that an offender standing before the court seriously needs assistance with a drug addiction problem to reduce the probability of recidivism, the circuit court may certainly request or recommend to the MDOC that the offender receive short term, long term, or therapeutic drug and alcohol treatment while an inmate. The department should be quite receptive since it also has the statutory duty to cooperate with the courts to assist in fulfilling its responsibilities and duties to its inmates. Miss.Code Ann. § 47-5-10(o) (Rev.2004).

¶ 36. Having said more than enough, I am confident that, on remand, the circuit court can fashion a lawful sentence for Jefferson that serves Jefferson’s individual needs, acts as an effective deterrent for his criminal conduct, and, at the same time, sufficiently protects society’s interests.

CHANDLER AND GRIFFIS, JJ., JOIN THIS OPINION.

      . In his PCR, Jefferson did not specifically reference these provisions in asserting that his sentence to house arrest was illegal. However, the trial judge's determination that Jefferson's sentence to house arrest was illegal, as explained in the summary dismissal of Jefferson’s PCR, was based on section 47-5-1003.

      . As reflected in the portion of the sentencing order contained in paragraph two, above, eleven of those fifteen years were suspended with four years to be served under house arrest

      . Section 97-21-33 was amended effective July 1, 2003, well before Jefferson was sentenced on July 15, 2004. One of the effects of this amendment was to lower the maximum sentence for forgery from fifteen years to ten years. According to our supreme court, "when a statute is amended to provide for a lesser penalty, and the amendment takes effect before sentencing, the trial court must sentence according to the statute as amended.” Daniels v. State, 742 So.2d 1140, 1145 (¶ 17) (Miss.1999).


author: GRIFFIS, J.,

text:
    Billy WELCH, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00057-COA.
    Court of Appeals of Mississippi.
    June 26, 2007.

      Billy Welch, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Billy Welch pled nolo contendere in the Pike County Circuit Court to harboring an escaped prisoner. The trial court sentenced him to serve five years, suspended, in the custody of the Mississippi Department of Corrections. Welch’s probation was revoked, because he was three times in the company of a convicted felon. Welch filed a motion for post-conviction relief, which was denied. He appeals and argues: (1) the indictment was fatally defective “in using a witness statement that was threatened,” (2) the indictment was fatally defective because he was not guilty, (3) his plea was involuntary, and (4) his probation was unlawfully revoked. We find no error and affirm.

STANDARD OF REVIEW

¶ 2. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

I. Was the indictment fatally defective in using a witness statement that was threatened?

II. Was the indictment fatally defective for lack of evidence?

¶ 3. Since both of these issues challenge the sufficiency of the evidence supporting the indictment, we address them together.

¶ 4. Welch argues that he was innocent of harboring escaped prisoner Johnna T. Smith. He also claims that Smith’s statement was insufficient to support the indictment, because she was coerced into giving the statement and has recanted. The State argues that these arguments are waived.

¶ 5. Welch pled nolo contendere. Generally, a nolo plea is not available for felonies in Mississippi. Bruno v. Cook, 224 So.2d 567, 568 (Miss.1969). However, a defendant waives any objections to its use when he (1) knowingly and intelligently requested permission to plead nolo, and (2) understood that the court considered it the equivalent of a guilty plea and could sentence him to the penitentiary. Id. Once accepted, the trial court and this Court will treat it as a guilty plea in the instant case. Id. at 569. The plea waives the “right to contest the truth of the charge,” and the defendant “submits to the. punishment.” Id. Likewise, a guilty plea waives the right to challenge the sufficiency of the evidence. Boddie v. State, 875 So.2d 180, 183(¶ 7) (Miss.2004) (appropriate time to test evidence is at trial); Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989) (guilty plea waives right to trial). Therefore, Welch waived the arguments that the evidence was insufficient to indict him and that he was innocent.

III. Was Welch’s plea voluntary?

¶ 6. Welch argues that his plea was involuntary, because he was not aware of the terms of the probation that the district attorney’s office would recommend. Had Welch been aware, he alleges he would not have pled, because the terms interfered with his prison ministry. The State maintains Welch was aware of his rights and was informed of the terms of the probation.

¶ 7. A plea of guilty is binding only if it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). It is voluntary and intelligent when the defendant is informed of the charges against him and the consequences of his plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992); Vittitoe v. State, 556 So.2d 1062, 1064 (Miss.1990). He must be told that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self incrimination. Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). “A showing that the plea was voluntarily and intelligently made must appear in the record.” URCCC 8.04(A)(3). A plea is involuntary if it is coerced by fear, violence, deception, or improper inducements. Id.

¶ 8. Even though Welch did not have an attorney, the trial court advised him to obtain one. Welch chose to represent himself. The prosecutor told the court what the State could prove if the case went to trial. Welch disagreed, but admitted he harbored Smith for at least one week. The court accepted his plea and the State’s sentencing recommendation. That sentence was five years suspended, and five years of non-reportable probation. After Welch asked how speeding tickets would affect his probation, the following occurred:

BY MR. BYRD [prosecutor]: Yes, sir. On the record, though, again, we would let Mr. Welch know that he would not be allowed to consume alcohol or be in the presence of others who are convicted felons or consume any alcohol and things of that nature. It’s all part of the terms of the probation.
BY MR. WELCH: I don’t accept that. I mean, that wasn’t explained to me. I don’t drink, but some of my friends do.
BY THE COURT: Mr.—
BY MR. WELCH: I do not drink.
BY THE COURT: Mr. Welch, all I can tell you is—
BY MR. WELCH: I plead not guilty.
BY THE COURT: — that he’s going to— he’s going to go over the terms and conditions of your probation.
BY MR. WELCH: Well, I was told it was nonreportable. I’m not going to mess up any more.
BY THE COURT: Well, just don’t mess up. But he’s going to go over the terms and conditions of your probation.
BY MR. WELCH: Yes, sir.
BY THE COURT: And I’ve already found you guilty. Don’t get caught doing any of the things that he tells you not to do.
BY MR. WELCH: That wasn’t the way the DA gave me the deal, now. Now he’s coming up with some new stuff.
BY MR. BYRD: The only recommendation was what was written.
BY THE COURT: You’re not going to have to report, but you’re going to have to behave yourself.
BY MR. WELCH: Yes, sir.
BY THE COURT: All right.
BY MR. WELCH: May I have an input into this? No one ever explained this. I was not supposed to be under any kind of supervision as far as — I mean, I go to casinos. Now, I can get put in jail for going to casinos.
BY THE COURT: That’s right.
BY MR. WELCH: And I don’t want that. I plead not guilty. I’ll go to court. You can reschedule or whatever you want to do, but I’ll plead not guilty.
BY MR. BYRD: On probation—
BY MR. WELCH: I mean, they did not explain that to me. And I put it in my thing that nobody explained it to me. I was supposed, to be [on] unsupervised probation, which if I screw wp I go to — I mean, I don’t drink, but I do go to casinos, and I’m just not going to plead to that.
BY MR. WELCH: Well, they didn’t explain it to me. If they’d explained it to me, if they’d went over what they got to do, I would have been glad to plead not guilty. I told Mr. O’Brien, I said, “I want to plead not guilty if there’s any kind of restriction with the Probation Department.” And he said, “Don’t worry, you just got unsupervised probation. If they can change that to unsupervised probation on where I go or whatever, you know, it’s okay with me. Five years don’t bother me because I’m not going to mess up, but I’ve got friends that drink.
BY MR. WELCH: Can somebody show me — tell me what I’m supposed to do — not do so I’ll—
BY THE COURT: He can tell you, and he will tell you.
BY MR. WELCH: If it’s the same form that I’ve seen on other people[’]s, I don’t agree to that at all. It’s the same form?
BY MR. CURRIE [probation officer]: Yes, sir.
BY MR. WELCH: No guns?
BY MR. CURRIE: Correct.
BY MR. WELCH: No, I can’t accept that. I’ve got guns.
BY MR. WELCH: Yes, sir. But it still was a dirty deal. I mean, the DA’s office, they didn’t tell me what I was getting into. I would have never agreed — I’ve had it on paper in there. I took it to Mr. O’Brien this morning. I said, “Here it is. Me and the Probation Department’s had problems. I will not agree to anything the Probation Department’s got control” — he said, “Don’t worry about that. It’s nonreportable.” Mr. O’Brien told me that today.
BY MR. BYRD: Yes, sir.
BY MR. WELCH: I didn’t know it was going to be restrictions—
BY MR. BYRD: ... Again, the only representation Mr. O’Brien made was that he would be placed on nonreport-ing probation, which is what the Court has done.
BY THE COURT: I went exactly by the recommendation, Mr. Welch.
BY MR. WELCH: I understand that. I understand that. You did exactly-but I wasn’t aware of the little list of things that you can and can’t do.
BY MR. BYRD: Your Honor, and Mr. Welch has been well — he is well aware of the terms of probation because he’s as he said, has had plenty of dealings with the Department of Corrections because of other people that he’s had residing with him and near him on probation. He’s well aware of what they can and cannot do. In fact, if I’m not mistaken, he’s gone numerous times to the Department of Corrections and reported various people, which he was aware, for violating their probation. And while he’s saying now that he doesn’t understand that he would actually be on probation when it was clear that he was on probation, I don’t understand his complaint. But, again, he’s well aware of the terms and conditions of probation because he has — you know, he’s been — quite often has come in and filed complaints against various inmate or former inmates who were on probation as to — you know, in order to try to get them revoked before this Court, and other courts.
BY MR. WELCH: — I was never told what unsupervised probation was. I know what a regular probation was.

(emphasis added).

¶ 9. The record indicates that Welch knew the consequences of his plea. The prosecutor’s office truthfully informed Welch that it would recommend “nonre-portable probation,” and the trial court accepted the recommendation. Welch contradicted himself on whether or not he understood the terms of his probation. He also contradicted himself on whether the terms would have any effect on his decision to plead guilty.

¶ 10. Thus we find that Welch’s plea was voluntarily and knowingly made. He was aware of the terms of the probation and admitted that those terms would not have affected his decision to plead anyway.

¶ 11. This issue has no merit.

IV. Was Welch’s probation unlawfully revoked?

¶ 12. This issue is barred for failure to raise it at the trial court. Billiot v. State, 454 So.2d 445, 465 (Miss.1984).

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

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


author: KING, C.J.,

text:
    David STRACK, Appellant v. Mollie Strack STICKLIN, Niki Lynn Strack Lowrey and Mary Christina Strack, Appellees.
    No. 2005-CA-00269-COA.
    Court of Appeals of Mississippi.
    Aug. 29, 2006.
    Rehearing Denied March 20, 2007.

      Damon Scott Gibson, attorney for appellant.
    Chester D. Nicholson, Gulfport, attorney for appellees.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   KING, C.J.,

for the Court.

¶ 1. David Strack was found in contempt for failure to pay child support and maintain health and life insurance as required by his divorce decree. Aggrieved by this David appeals and raises the following issues on appeal:

1. THE CHANCELLOR’S FINDING OF CONTEMPT IS MANIFESTLY WRONG;
2. THE CHANCELLOR ERRED WHEN HE FAILED TO GIVE DAVID STRACK A CREDIT FOR EACH MONTH THE PLAINTIFFS, MOLLIE, NIKI, AND CHRISSY RESIDED IN HIS MOBILE HOME. THE JUDGMENT OF THE TRIAL COURT RESULTED IN UNJUST ENRICHMENT TO THE PLAINTIFFS;
3. THE CHANCELLOR ERRED IN AWARDING THE PLAINTIFF, MOLLIE, ANY SUMS FOR CHILD SUPPORT AS THE CHILDREN WERE PARTIES AND ERRED IN NOT MAKING AN ALLOCATION OF SUPPORT OWED;
4. THE CHANCELLOR ERRED IN FINDING THAT THE STATUTE OF LIMITATIONS DID NOT APPLY BECAUSE THE CLAIM WAS BROUGHT WITHIN SEVEN YEARS OF THE YOUNGEST CHILD’S EMANCIPATION;
5. THE TRIAL COURT ERRED IN ITS AWARD OF THE MEDICAL BILLS TO MOLLIE BASED ON CHRISSY’S EMANCIPATION; AND
6. THE TRIAL COURT ABUSED ITS DISCRETION IN ITS AWARD OF ATTORNEY’S FEES TO THE PLAINTIFF, MOLLIE STRACK STICKLIN, IN THE AMOUNT OF $7,151.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. David and Mollie were married on December 5, 1970, and had three daughters: Stacy, born February 1, 1972 , Niki, born July 21, 1978, and Chrissy, born May 17, 1980. David and Mollie were divorced on June 8, 1990, in Harrison County, Mississippi. In the divorce, the parties agreed (1) to joint custody, with Mollie having the physical custody, (2) that David would pay “global” or lump sum support of $300 per month, and (3) that David would maintain health and life insurance for the children. At the time of the divorce, David was employed by Mississippi Power Company and maintained health and life insurance for the children through Mississippi Power Company.

¶ 4. In 1996 David resigned his employment with Mississippi Power Company. When he resigned from that position, all health and life insurance policies involving the children ceased. Also in 1996 David married his present wife, Janice Strack, and moved to Hattiesburg.

¶5. In August of 1992, Mollie filed an application for disability benefits with the Social Security Administration on behalf of Chrissy, who was born with birth defects. Chrissy began receiving the benefits in 1992. Sometime after May 2000, Chrissy had to undergo surgery and related care as a result of her birth defects.

¶ 6. Sometime after the divorce, Mollie and the children moved to Hattiesburg and then Seminary. While living in Seminary, Niki gave birth to her first child in January 1995, and was married on October 21, 1995. It is disputed where Mollie, Niki, and Chrissy lived between 1995 and 1997. On November 7, 1997, Mollie married her present husband, James Sticklin. At the time of trial, she lived in Utica.

¶ 7. Sometime in 1997, David’s trailer was moved from Saucier to Seminary and placed on land which he owned. The trailer was occupied by Niki and her family, and Chrissy, who had recently stopped attending school. David was not paid rent for the trailer.

¶ 8. On September 3, 2002, Mollie, Niki, and Chrissy filed a complaint for contempt against David alleging that he failed to make any child support payments, and that he also failed to maintain health and life insurance as ordered on June 8, 1990. A hearing was held on March 11, 2004, in the Harrison County Chancery Court. On November 10, 2004, the court found David in contempt for failure to pay child support, and failure to maintain health and life insurance policies. After giving David credit for two payments totaling $550, the court found that he was $38,750 in arrears, for which the chancellor awarded judgment with an 8% interest rate. As a result of having failed to maintain health insurance, David was required to reimburse Mollie $3,093 for medical expenses incurred for Chrissy’s surgery. David was also ordered to pay $7,151 in attorney’s fees. After hearing David’s motion to reconsider on January 21, 2005, the court reduced the interest rate to 4.5%, and denied the rest of David’s requested relief.

STANDARD OF REVIEW

¶ 9. A chancellor’s decision, particularly in the areas of alimony, divorce, or child support, will not be disturbed on appeal unless his findings are manifestly in error. Lahmann v. Hallmon, 722 So.2d 614, 618(¶ 12) (Miss.1998). However, if the chancellor is manifestly wrong, or applied an erroneous legal standard, we will not hesitate to reverse that decision. Id.

DISCUSSION

1. Was the chancellor’s finding of contempt manifestly wrong?

¶ 10. David first argues that the chancellor erred in finding him in contempt. Civil contempt is a vehicle used to enforce or coerce obedience to a court’s order. Lahmann, 722 So.2d at 620(¶ 19). It is determined on the facts of the case, and is left up to a chancellor’s discretion. Milam v. Milam, 509 So.2d 864, 866 (Miss.1987). In a contempt action involving unpaid child support, when the party entitled to receive support introduces evidence that the party charged with paying has failed to pay, a prima facie case of contempt has been made. Lahmann, 722 So.2d at 620(¶ 19) (citing Guthrie v. Guthrie, 537 So.2d 886, 888 (Miss.1989)). The burden then shifts to the paying party to show, by clear and convincing evidence, an inability to pay or any other defense. Id. (citing Duncan v. Duncan, 417 So.2d 908, 909-10 (Miss.1982)).

¶ 11. The chancellor found that David failed to comply with the divorce decree by failing to pay child support of $800 a month, and by failing to maintain health insurance and life insurance for his children. While David offered proof of two payments of $50 and $500 for child support, he did not offer any proof of his inability to pay. Instead, David testified that he paid cash to Mollie for which she did not give him a receipt. He also testified that Mollie told him that he could cease payments to her after Niki and Chrissy moved into his trailer. Mollie disputed David’s testimony. She specifically denied having received support from David, and that she had agreed that David could cease support payments when Niki and Chrissy moved into his trailer.

¶ 12. The chancellor found the testimony of Mollie to have greater reliability than that of David. A chancellor’s finding on conflicting evidence will not be disturbed on appeal unless it is manifestly wrong. Milam, 509 So.2d at 866. The chancellor found that other than making two payments totaling $550, David had failed to pay any child support to Mollie. Even had the chancellor agreed that David and Mollie had executed an agreement for David to cease support payments, David still had a legal obligation to continue with his monthly support. “The basic right of the minor child to be supported by its parents is not affected by an agreement between the parties with respect to such obligations.... ” Varner v. Varner, 588 So.2d 428, 438 (Miss.1991) (quoting Calton v. Calton, 485 So.2d 309, 310 (Miss.1986)). Because there was no abuse of discretion in the chancellor’s finding, the claim is without merit.

¶ 13. The chancellor also found that when David discontinued his employment with Mississippi Power in 1997, he failed to continue the health and life insurance as ordered in the divorce decree. David offered no proof of any subsequent policies, or of any inability to provide such policies. Thus, there was no abuse of discretion in the chancellor’s finding on this claim. This issue is without merit.

2. The chancellor erred when he faiied to give David Strack a credit for each month the plaintiffs, Mollie, Niki, and Chrissy resided in his mobile home. The judgment of the trial court resulted in unjust enrichment to the plaintiffs.

¶ 14. David argues that the chancellor erred in not giving him-credit from the $38,750 arrearage for the months that he offered proof that Mollie, Niki, and Chrissy lived in his mobile home and he paid the bills. After finding David in willful and contumacious contempt for failing to pay child support, the chancellor did not award David credit for providing housing for Mollie, Niki, and Chrissy. Whether or not a non-custodial parent should be given credit against his/her child support obligation, is a matter left to the sound discretion of the chancellor. Wiles v. Williams, 845 So.2d 709, 712(¶13) (Miss.Ct.App.2003). The testimony was in conflict, and the chancellor found the testimony of Mollie to have greater reliability. Under these facts, this Court cannot say that the chancellor abused his discretion on this issue.

3. The chancellor erred in awarding the plaintiff, Mollie, any sums for child . , support as the children were parties and,erred in not making an allocation of support owed.

¶ 15. Next, David claims that the trial court erred in allocating to Mollie any sums for child support. Child support payments are for the benefit of the child, not the recipient parent. Brown v. Brown, 822 So.2d 1119, 1122(¶ 11) (Miss.Ct.App. 2002). The child’s emancipation does not relieve the parent of the obligation to pay any amounts of vested child support. And notwithstanding the child’s emancipation, the parent may, acting in her continuing fiduciary capacity to the child, bring an action for those vested child support obligations. However, if the supporting parent’s failure to adhere to his financial responsibilities causes the custodial parent to “dip into her own resources beyond what would otherwise be expected of her, she may recover, and retain any amounts so proved.” Varner v. Varner, 588 So.2d 428, 433 (Miss.1991). Any sums that the custodial parent recovers must be paid directly to the child, save only sums that the parent may be able to prove that he or she paid to or for the children during the months and years in issue over and above their own support obligations. Id.

¶ 16. David argues that the trial court erred in allocating an award to Niki and Chrissy past what he claims their emancipation dates were. David claims Niki was emancipated on her wedding date of October 21, 1995. He claims that Chrissy was emancipated by “operation of law” when she quit school and ceased staying with her mother in 1997.

¶ 17. Mississippi Code Annotated Section 93-5-23 (Rev.2004), provides that the duty to provide child support terminates upon the child’s emancipation. It reads in pertinent part:

¶ 18. The duty of support of a child terminates upon the emancipation of the child. The court may determine that emancipation has occurred and no other support obligation exists when the child:

(a)Attains the age of twenty-one (21) years, or
(b) Marries, or
(c) Discontinues full-time enrollment in school and obtains full-time employment prior to attaining the age twenty-one (21) years, or
(d) Voluntarily moves from the home of the custodial parent or guardian and establishes independent living arrangements and obtains full-time employment prior to attaining the age of twenty-one (21) years.

¶ 19. The supreme court has defined emancipation as the “freeing of a child for all period of its minority from its care, custody, control, and service of its parents; the relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent’s legal obligation to support it.” Burt v. Burt, 841 So.2d 108, 111(¶9) (Miss.2001) (quoting Caldwell v. Caldwell, 579 So.2d 543, 549 (Miss.1991)). Occurrence of any one of the statutory events does not automatically mandate emancipation; the statute’s language is permissive and is left to the chancellor’s discretion. See Burt, 841 So.2d at 112(¶ 10).

¶ 20. If David desired to be relieved of his obligation to pay child support, due to the alleged emancipation of the children, it was his responsibility to bring the matter to the attention of the chancellor. Wiles, 845 So.2d at 711-12(¶ 12). Where he failed to seek relief from the court, as opposed to engaging in self help, the decision to apply emancipation retroactively is left to the sound discretion of the chancellor. Houck v. Houck, 812 So.2d 1139, 1143(¶ 12) (Miss.Ct.App.2002). However, it must also be noted that David was paying “global” or lump sum child support. Under this concept, the amount of child support does not automatically reduce as children are emancipated. Instead, it remains constant until the youngest child reaches emancipation. Wiles at 711 — 12(1112). This issue is without merit.

A The chancellor erred in finding that the statute of limitations did not apply because the claim was brought within seven years of the youngest child’s emancipation.

¶ 21. Next, David argues that the chancellor erred in holding him in contempt because the statute of limitations bars Mollie, Niki, and Chrissy from collecting any monies. David cites Mississippi Code Annotated Section 15-1-43 (Rev. 2003) for his contention that Mollie, Niki, and Chrissy’s complaint for contempt should fail because it was brought twelve years after the divorce was rendered. Section 15-1-43 reads:

All actions founded on any judgment or decree rendered by any court of record in this state, shall be brought within seven years next after the rendition of such judgment or decree, and not after, and an execution shall not issue on any judgment or decree after seven years from the date of the judgment or decree.

¶ 22. However, it is clear that the Mississippi Code Annotated Section 15-1-59 (Rev.2003) savings clause applies in child support cases. Wilson v. Wilson, 464 So.2d 496, 498 (Miss.1985). Section 15-1-59 of the code reads:

If any person entitled to bring any of the personal actions mentioned shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the actions within the times in this chapter respectively limited, after his disability shall be removed as provided by law. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.

¶ 23. Under this section, the statute of limitations clearly has not run in this case. The youngest child, Chrissy, was not twenty-one until May 17, 2001. Chrissy had until May 17, 2008,.to bring this action. This issue is without merit.

5. The trial court erred in its award of the medical bills to Mollie based on Chrissy’s emancipation.

¶ 24. This Court’s resolution of issues 3 and 4 leads us to conclude that this issue lacks merit.

6. The trial court abused its discretion in its award of attorney’s fees to the plaintiff, Mollie, in the amount of $7,151.

¶ 25. Finally, David claims that the trial court erred in awarding Mollie attorney’s fees. The award of attorney’s fees is largely within the discretion of the trial court. Robertson v. Robertson, 812 So.2d 998, 1005(¶22) (Miss.Ct.App.2001). In a civil contempt matter, a chancellor has the ability to make the prevailing party whole and reinforce compliance with judicial orders by awarding attorney’s fees. Hinds County Bd. of Sup’rs v. Common Cause of Mississippi, 551 So.2d 107, 125 (Miss.1989). Where attorney’s fees arise out of one party’s intentional misconduct causing the opposing party to needlessly expend money and time, it is not inappropriate to award fees to the wronged party. Mabus v. Mabus, 910 So.2d 486, 489(¶ 8) (Miss.2005).

¶ 26. Because David was found to be in contempt, it was not error for the chancellor to award attorney’s fees. Therefore this issue is also without merit.

¶ 27. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT FINDING DAVID STRACK IN CONTEMPT AND AWARDING AP-PELLEES DELINQUENT CHILD SUPPORT OF $38,750, MEDICAL EXPENSES OF $3,093, AND ATTORNEY’S FEES OF $7,151, WITH INTEREST OF 4.5% IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Because Stacy was emancipated shortly after the divorce, she is not a party in this action,