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    Kevin McCOY, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00034-COA.
    Court of Appeals of Mississippi.
    April 17, 2007.

      William L. Bambach, attorney for appellant.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. Kevin McCoy was convicted by a jury of sale of cocaine and sentenced by the Lowndes County Circuit Court to life in prison as a habitual offender. Aggrieved, he appeals and asserts (1) that the evidence is insufficient to sustain his conviction, (2) that he suffered ineffective assistance of counsel, (3) that his conviction should be reversed due to prosecutorial misconduct, (4) that the court erred in allowing admission of his prior convictions, (5) that his sentence should be set aside because of the use of a prior conviction that he obtained as a juvenile, (6) that the court erred in refusing to grant McCoy a continuance to obtain private counsel, and (7) that cumulative errors demand a reversal of his conviction.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On March 17, 2004, James Stewart was working as a confidential informant for the Columbus Metro Narcotics Unit. On that day, Stewart and his girlfriend, Wanda Lavendar, met with Agent Eric Lewis and Agent Anita Ray, both of the Narcotics Unit. According to Agent Lewis, Stewart and Lavendar were both searched for contraband. After finding no contraband, the agents outfitted Stewart with a hidden camera to facilitate a controlled buy from McCoy. Stewart was also given two twenty-dollar bills with which to purchase contraband.

¶ 4. After all the pre-buy preparations were done, Stewart and Lavendar went to an OK Foods store in Columbus, Mississippi, where Stewart went to the back of Lavendar’s vehicle to wait for McCoy. Conflicting testimony was presented as to whether the agents were able to observe the controlled buy. Before being approached by McCoy, Stewart was first approached by an individual, “Zeke,” with whom Stewart had some physical contact that is visible on the video footage of the buy. Stewart claims that Zeke was asking him for a cigarette and that they touched hands because he and Zeke were good friends. McCoy approached Stewart after Zeke left, and Stewart purchased cocaine from McCoy, who requested that Stewart place a twenty-dollar bill in the bed of Lavendar’s pick-up truck rather than hand the bill directly to McCoy. After the cocaine purchase, Stewart attempted to purchase marijuana from McCoy with the remaining twenty-dollar bill, but McCoy indicated that he did not have any. After the buy, Stewart and Lavendar went to meet the agents at the post-buy location, where Stewart gave Lewis the purchased cocaine and the remaining twenty-dollar bill. Subsequent tests of the substance indicated that the substance purchased was, in fact, cocaine.

¶ 5. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Siijficiency of the Evidence

¶ 6. When reviewing the sufficiency of the evidence supporting a conviction, we look at all the evidence “in the light most favorable to the verdict.” Champluvier v. State, 942 So.2d 145, 152(¶ 12) (Miss.2006) (quoting Gleeton v. State, 716 So.2d 1083, 1087(¶ 14) (Miss.1998)). Every favorable inference that may be drawn from the evidence is given to the prosecution. Id. We will reverse only when “the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.” Id. (quoting Gleeton, 716 So.2d at 1087(¶ 14)).

¶ 7. After reviewing all the evidence in the light most favorable to the State, we find that reasonable jurors could have found McCoy guilty. Although McCoy complains at length regarding the quality of the videotape that was shown to the jury, we note that the jury was entitled to give the video footage (or lack thereof) whatever weight it believed was proper. Id. Furthermore, McCoy’s trial attorney pointed out the poor quality of the video footage to the jury during her closing remarks and urged the jury to take that into account in determining whether McCoy was guilty. Clearly, the jury was aware of the footage’s flaws and gave it whatever weight the jury believed it deserved.

¶ 8. The video footage was far from the only incriminating evidence presented to the jury. Stewart identified McCoy in court and testified that McCoy was the individual from whom he had purchased cocaine. Although McCoy claims that Stewart’s testimony “was contradictory, conflicting, and lacked credibility, and was itself unsupported by the videotape,” we note that Stewart’s testimony, while containing minor inconsistencies, was largely consistent and was corroborated somewhat by Agent Lewis’ testimony. McCoy’s trial counsel brought Stewart’s credibility and truthfulness into question during cross-examination, and the jury heard all the evidence regarding Stewart’s credibility. As the ultimate trier of fact, the jury was entitled to give whatever weight it deemed appropriate to Stewart’s testimony.

¶ 9. McCoy also points to the fact that Agent Lewis failed to mention Lavendar in the official report he wrote concerning the buy. Agent Lewis was questioned about this omission at trial and explained that he did not mention Lavendar in order to protect her identity and also because “all she was doing was driving the car because he didn’t have a good driver’s license. So in order for us to protect her, I didn’t want to put her in the report.” Clearly, whatever credibility questions this omission raised was pointed out to the jury, which was entitled to give the evidence whatever weight it deemed appropriate.

¶ 10. Finally, McCoy contends that the evidence against him is insufficient because Stewart was allowed to improperly narrate the videotape of the buy. As support, McCoy quotes Berry v. State, 859 So.2d 399, 407(¶35) (Miss.Ct.App.2003), where this Court pointed out the distinction between permissible and impermissible narration of video footage:

[T]his Court finds that Williams’s narration “was used only for the purpose of showing the jury exactly what was taking place-an entirely permissible and helpful activity that is to be distinguished from the circumstances where a witness attempts to place his or her own subjective interpretation of events transpiring in the video based on nothing beyond the witness’s own inspection of the contents of the videotape.” Blue v. State, 825 So.2d 709, 712(¶ 12) (Miss.Ct.App.2002) (citing Potts v. State, 755 So.2d 521 (¶¶ 13-15) (Miss.Ct.App.1999)). In Blue, this Court held that “as long as the witness’s testimony is confined to matters actually perceived firsthand there can be no improper prejudice to the defendant to permit the witness to relate those observations to the jury, during their view of the tape, in order to help the jury reach a better understanding of what the witness contends is transpiring on the tape of the witness’s own personal knowledge.”

Here, Stewart’s testimony was “confined to matters actually perceived first-hand.” Nothing in the record indicates that Stewart’s narration was a “subjective interpretation ... based on nothing beyond [his] own inspection of the contents of the videotape.” In short, Stewart’s narration of the videotape was proper.

¶ 11. While the videotape of the controlled buy in question was not perfect, the evidence was such that a reasonable jury could have found McCoy guilty. Therefore, this contention of error is without merit.

2. Ineffective Assistance of Counsel

¶ 12. McCoy bears the burden of showing that his trial counsel was ineffective. Jones v. State, 920 So.2d 465, 478((¶42) (Miss.2006). To prove ineffective assistance of counsel, McCoy must show (1) that his counsel was deficient, and (2) that the deficiency prejudiced his defense. Id. There is a strong but rebuttable presumption “that counsel’s performance falls within the wide range of reasonable professional assistance.... ” Id. (quoting Rankin v. State, 636 So.2d 652, 656 (Miss.1994)). In order to show prejudice, McCoy “must show that but for his attorney’s errors, there is a reasonable probability that he would have received a different result in the trial court.” Id.

¶ 13. McCoy specifically asserts that his attorney was ineffective for (1) failing to fully examine the admissibility of McCoy’s prior convictions, thus leaving him unable to testify in his own behalf; (2) failing to object to improper conduct by the prosecutor; (3) failing to challenge for cause or use peremptory strikes against various jurors; (4) disclosing confidential information for her own self-interest; and (5) failing to advise McCoy of the effect that his prior convictions would have on his sentencing. For purposes of clarity, we separately address each of these contentions.

Admissibility of Prior Convictions

¶ 14. McCoy contends that his appointed counsel did not fully consider the effect that McCoy’s prior convictions would have on his ability to testify. McCoy intimates that if he had been fully apprised of the effect of his convictions, he might have accepted a guilty plea rather than proceed to trial. The record reveals that McCoy’s attorney had contemplated the admissibility of the convictions for impeachment purposes. Trial counsel did admit, however, that she was surprised and caught off-guard by the judge’s decision, as she believed that the convictions would be inadmissible. While it is clear that trial counsel spent time preparing argument against the admissibility of the convictions, the record before us is silent as to what counsel told McCoy concerning the admissibility of the statements and what impact such communication (or lack thereof) had on McCoy’s decision to proceed to trial. Since the record before us is not ripe for review on this point, we find no merit to this issue, but affirm without prejudice to McCoy’s right to raise this issue in post-conviction proceedings where sufficient evidence might be produced to allow adjudication of this issue.

Failure to Object

¶ 15. McCoy contends that his trial counsel “failed to object to improper leading questions, improper use of video narration, improper comments during voir dire about the video tape and states [sic] improper comments during closing arguments.” McCoy also complains that his trial counsel did not request a continuance after hearing about the presence of Laven-dar at the controlled buy for the first time at trial.

¶ 16. As we have already discussed, Stewart’s narration of the videotape in question was proper. Therefore, counsel was not deficient for failing to object to the narration. McCoy does not specify exactly which “leading questions” his attorney failed to object to. We note that the record reflects that McCoy’s attorney did, in fact, object to the prosecutor’s improper use of leading questions during the trial. In any case, McCoy has alleged no prejudice whatsoever that this particular failure might have caused him.

¶ 17. The improper voir dire referred to by McCoy is the following statement made by the prosecutor:

I’m going to go ahead and tell you in this video that we’re going to play for you, you’re not going to be able to see everything. We’re going to play you the video to corroborate the eyewitness in this case. But in this video, you’re not going to see drugs changing hands. You’re not going to be able to see the actual hand to hand transaction because the camera was positioned such that it wasn’t caught on tape.

McCoy does not elaborate further on how this statement was improper or how it prejudiced the outcome of his trial. We note that, even if we were to find that McCoy’s counsel were deficient for failing to object to the statement, McCoy has failed utterly to show how the statement prejudiced his defense. There is no evidence that the result of the trial would have been any different had McCoy’s attorney objected to the voir dire statements. Therefore, McCoy has failed to meet the second prong of the ineffective assistance of counsel test.

¶ 18. As we discuss below, the prosecutor did make improper remarks during closing argument. Admittedly, these remarks were made without objection from McCoy’s attorney. However, also as we discuss below, we find that the remarks, while improper, did not lead the jury to convict McCoy. While McCoy’s attorney should have objected to these remarks in a timely fashion, McCoy has failed to show how he was , prejudiced by his counsel’s failure to object. As we find below, we believe that the evidence against McCoy was such that the jury would have found him guilty, even had the improper remarks not been made. Therefore, this failure on the part of McCoy’s counsel caused him no prejudice.

¶ 19. As to counsel’s failure to request a continuance after learning of Lavendar’s presence, we note that whether to request a continuance is clearly a decision that falls within the ambit of trial strategy. Furthermore, it is not clear what a continuance would have gained McCoy. Trial counsel was able to question Agent Lewis regarding Lavendar’s presence and minimal involvement in the buy. McCoy does not assert on appeal that La-vendar herself would have been able to provide any more information, nor does McCoy suggest how a continuance would have benefitted his defense. Therefore, any deficiency on the part of trial counsel with respect to requesting a continuance does not rise to the level of ineffective assistance, as McCoy has shown no prejudice.

Failure to Challenge Jurors

¶ 20. McCoy points to the fact that his trial counsel did not strike several jurors who admitted that they had connections to law enforcement. As support, McCoy cites Mhoon v. State, 464 So.2d 77 (Miss.1985), which he claims is factually similar. However, the Mhoon court, which reversed and remanded Mhooris conviction due to the number of law enforcement-related jurors who served on Mhoon’s jury, noted that the circumstances in Mhoon were quite unusual:

In this particular case, however, the sheer number of law enforcement-connected persons in the jury pool, as well as persons selected as jurors, has worked a great hardship on Mhoon.... This Court does not hold that a person engaged in law enforcement, or related by blood or marriage to one engaged in law enforcement, should be per se excluded from jury service. However, in a unique factual situation such as this unusual case, the opportunity for undue influence over the opinions of other jurors was too great a risk.

Id. at 81-82.

¶ 21. In Wilcher v. State, 863 So.2d 719, 755 (¶¶ 133-36) (Miss.2003), the Mississippi Supreme Court faced a situation similar to the one before us. In Wilcher, the appellant asserted ineffective assistance of counsel on the basis that his trial counsel did not use peremptory challenges on various members of the venire who were involved in law enforcement. The court found that Wilcher had failed to prove ineffective assistance of counsel, noting: “ ‘there is no reason why an officer or an officer’s relative should not serve on a jury if otherwise qualified to follow the law and the evidence.’ There is nothing in the record that indicates that those jurors could not have been, or in fact were not, fair and impartial.” Id. at 755 (¶ 135) (citations omitted). Likewise, the jurors in our case indicated that they could be fair and impartial. No evidence has been presented to indicate that any jurors with law enforcement connections were anything other than fair and impartial. In the face of the jurors’ statements that they would be fair and impartial, McCoy’s attorney did not err in not challenging the jurors for cause or in not using peremptory strikes against them. Furthermore, there is no evidence that any deficiency in counsel’s conduct had any impact on McCoy’s defense or the outcome of his trial. Therefore, this contention is also without merit.

Disclosure of Information

¶ 22. McCoy criticizes his attorney for the following communication made to the court prior to trial, outside the presence of the jury:

Yes, Your Honor. And accordingly, my client — there’s also a motion pending to make my client a habitual offender and a habitual life offender in fact. And I believe — two things, Your Honor. I believe that that motion will in all likelihood be successful and make my client subject to life imprisonment for this charge. I also believe that there is a high likelihood that at a[sic] least on any of the remaining charges he could also be convicted. And accordingly, the client has declined the plea bargain against my advice and pushed forward to trial. I wanted to make that part of the record.

¶ 23. We note that McCoy has failed to allege any prejudice stemming from this admission by his trial counsel. The statement was made outside the presence of the jury, with only opposing counsel, the judge, and court staff present. Since the statement was made outside the presence of the jury, the only impact the remarks could have had was on sentencing. Since McCoy was sentenced to a mandatory term of life as a habitual offender, we fail to see how the remarks made to the court had any impact on the result of McCoy’s trial. Therefore, this contention is without merit as well.

Prior Convictions and Sentencing

¶24. As explained further below, we find that McCoy was properly sentenced as a habitual offender to life imprisonment. Therefore, no prejudice occurred due to any deficiency on the part of McCoy’s trial counsel. As the excerpt above indicates, McCoy’s attorney had informed him that the charges against him carried a possible life sentence, but McCoy opted to go to trial regardless of that risk. Because McCoy is unable to show that he suffered any prejudice as a result of his attorney’s actions or inaction, this contention is also without merit.

3. Prosecutorial Misconduct

¶ 25. During Stewart’s cross-examination, McCoy’s attorney brought Stewart’s truthfulness into question and questioned Stewart as to when he got paid for the buy. In an effort to rehabilitate Stewart, the prosecutor initiated the following exchange on re-direct:

Q. You said you were paid after the post-buy meeting. But you weren’t paid until after the officers had the opportunity to view the video, were you?
A. Yes, sir.
Q. Yes, you weren’t paid?
A. Because, see, you get some good videos and you get some bad ones, which on a bad one you can’t get paid because they ain’t got no evidence.
Q. They didn’t pay you just because you told them you made a buy, did they?
A. Right.
Q. They had to view the video and believe you made a buy?
A. Yes, sir.

McCoy contends that “[t]his was an attempt to sway the jury by showing that Stewart’s testimony was believable since the agents found him to be convincing.” Although McCoy claims in his appeal brief that this question occurred during the State’s direct examination of Stewart, this question actually came during the State’s re-direct examination of Stewart. Taken in context, the exchange was an attempt to rehabilitate Stewart and clarify exactly how the controlled buy worked. This questioning by the prosecutor was not improper.

¶26. The prosecutor also asked Agent Lewis about how many times Stewart had made undercover buys, finally asking “Do you use informants 72 times if you have reason to feel they’re not trustworthy?” Before Agent Lewis answered, McCoy’s attorney objected on the ground that the question was an impermissible attempt to bolster Stewart’s credibility. The court agreed that the question was “getting pretty close to it....” Agent Lewis never responded to the question, and the prosecutor moved on to a new area of questioning. Had there been no objection and had the prosecutor not moved on in his questioning, we might find this argument by McCoy more persuasive. As the record stands, the prosecutor’s questions and Agent Lewis’ answers did not constitute an impermissible bolstering of Stewart’s credibility.

¶ 27. McCoy also complains that the prosecutor acted improperly in asking the jury to believe Stewart’s account of the transaction while questioning his credibility. McCoy contends that the State’s position had the effect of “want[ing] the jury to believe that he is a drug user when we evaluate his effectiveness as a confidential informant, but he is not a drug user when we examine his credibility.” A review of the State’s closing argument reveals that the prosecutor, due to Stewart’s impeachment by McCoy’s attorney, took the position of admitting to the jury that Stewart had most likely lied about his own past drug use, but that the jury should believe Stewart regardless because Stewart’s account of events fit with all the other evidence, and also because Stewart had no reason to lie about whether he had purchased cocaine from McCoy. In context, we do not find that this tactic constituted improper conduct by the State.

¶ 28. Finally, McCoy complains about various remarks made by the prosecutor during closing argument. Misconduct during opening statements and closing arguments is reversible when “the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Curry v. State, 939 So.2d 785, 789(¶ 13) (Miss.2006) (quoting Sheppard, v. State, 777 So.2d 659, 661(¶ 7) (Miss.2000)). Any statement made must be “viewed in context, taking into consideration the circumstances of the case.” Id. (citing Haggerty v. Foster, 838 So.2d 948, 962(¶ 41) (Miss.2002)). In order to affirm a conviction despite the presence of an improper remark by a prosecutor, “[i]t must be clear beyond a reasonable doubt, that absent the prosecutor’s comments, the jury could have found the defendant guilty.” Spicer v. State, 921 So.2d 292, 318(¶ 55) (Miss.2006).

¶ 29. In this case, the prosecutor made several improper remarks during closing argument. After summarizing the evidence in favor of McCoy’s guilt on each element of the indictment, the prosecutor stated: “Ladies and Gentlemen of the jury, I submit to you we have proven every one of these things to you beyond a reasonable doubt. And therefore, at this point, this defendant no longer sits in front of you presumed innocent, rather he sits there guilty of the crime for which he is charged.” The prosecutor then concluded his initial closing argument: “This defendant sits before you now a convicted drug dealer, no longer presumed innocent but guilty of selling cocaine.” These remarks were clearly in error and were improper. McCoy was presumed innocent until the moment the jury decided otherwise. Unfortunately, the improper comments from the prosecutor did not end there. During his final closing argument, the prosecutor stated:

You’re told that a man’s future is at stake, asking you to believe that it’s somehow your job to protect this defendant. Ladies and Gentlemen, I suggest to you there is more that [sic] one man’s future at stake. And it is not your job to protect this defendant. If it is your job to protect this defendant, then it is equally your job to protect those of us who live in this community from people who sell drugs.

Although this excerpt would lead one to believe that .defense counsel had suggested to the jury during closing argument that its job was to protect McCoy, a review of the record reveals that no such suggestion was made to the jury by defense counsel. In short, these remarks by the prosecution were made without provocation or justification. Furthermore, the suggestion to the jury that its job was to “protect those of us who live in this community from people who sell drugs,” is clearly improper.

¶ 30. These remarks are similar to other remarks that the Mississippi Supreme Court has repeatedly condemned as improper. See Spicer, 921 So.2d at 317-18 (¶¶ 51-56). In Spicer, the prosecutor made the following remarks during closing argument:

And you see, that’s why now we are afraid to be good neighbors. Acts like that prevent us from being close to people that we even live near. Acts repaid this way are the reasons that we’re strangers with our very next door neighbors. The reason that we don’t allow ourselves to associate or let our children out in the front yard is because this is the way we get repaid.
May I submit to you that it might be payback time? May I submit to you that this might be an opportunity for us to say in George County: We can’t keep you from doing it, but you will pay the price for doing it. And other people are going to know that you paid the price.

Id. at 317(¶ 51). Like McCoy’s attorney, Spicer’s attorney did not object when these remarks were made. The Mississippi Supreme Court found that, despite the impropriety of the prosecutor’s remarks, the misconduct was not reversible error because “if the offending statement is removed from the record it remains clear, beyond a reasonable doubt, that there was sufficient evidence for the jury to find Spicer guilty of capital murder.” Id. at 318 — 19(¶ 56).

¶ 31. As in Spicer, the prosecutor’s statements in this case were improper. Like the Spicer court, we find that the statements “were an attempt to use emotion to overcome possible reluctance in the jury, making a baseless appeal to the jurors that they needed to vote as representatives of the community and not based on the evidence that was before them.” Id. at 318(¶ 56). However, also like the Spicer court, we find that, were we to remove the offending statements, it remains clear, beyond any reasonable doubt, that there was sufficient evidence for the jury to find McCoy guilty of the sale of cocaine. Therefore, this contention is without merit.

A Prior Convictions

¶ 32. Rule 609 of the Mississippi Rules of Evidence governs when pri- or convictions may be used for impeachment purposes. According to the Rule, For the purpose of attacking the credibility of a witness,

(1) evidence that ... (B) a party has been convicted of ... a crime [that is punishable by death or imprisonment in excess of one year] shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party; and
(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment.

M.R.E. 609(a). In determining whether a conviction’s probative value outweighs its prejudicial effect, the following factors are to be considered by the court:

(1) The impeachment value of the prior crime.
(2) The point in time of the conviction and the witness’ subsequent history.
(3) The similarity between the past crime and the charged crime.
(4) The importance of the defendant’s testimony.
(5) The centrality of the credibility issue.

Bush v. State, 895 So.2d 836, 847-48(¶ 29) (Miss.2005) (quoting Peterson v. State, 518 So.2d 632, 637 (Miss.1987)). Each of the factors need not be fully addressed by the court on the record as long as “it is apparent that [it] ... conducted] a substantive balancing test in line with the spirit of Peterson.” Id. at 848(¶ 30). We review a trial court’s decision to allow evidence of prior convictions under an abuse of discretion standard. Witcher, 863 So.2d at 728 (¶¶ 8-10).

¶ 33. McCoy had three prior felony convictions that the court considered at a Peterson hearing outside the presence of the jury. Two of the convictions were for armed robbery, and the last was for possession of cocaine. After hearing arguments from both the State and the defense, the court ruled that the robbery convictions would be admissible for impeachment purposes were McCoy to testify, but that the possession conviction could be referred to only as unnamed “felony,” on account of the similarity between the charge that McCoy was on trial for and the possession conviction. In so ruling, the court specifically addressed the Peterson factors and how they related to McCoy’s convictions. The court also stated that it would give a limiting instruction to the jury explaining that the evidence was “not evidence of guilt of this offense of sale of cocaine. However, they may be used by the jury in assessing the credibility of the defendant as a witness.... ” McCoy contends that the court “failed to properly evaluate and balance how severely the admission of the convictions weighed against McCoy’s ability to present a defense .... ”

¶ 34. The court did not abuse its discretion in ruling that McCoy’s prior convictions would be admissible for impeachment purposes. As the court pointed out, McCoy’s credibility would be “central,” as McCoy’s testimony presumably would be in direct opposition to Stewart’s. Under such circumstances, the court noted that “the credibility issue will be central as to whether the jury is to believe the confidential informant, who has already been questioned about his prior criminal activity....” After taking the Peterson factors into account, we find that the court did not abuse its discretion in finding that the probative value of the prior convictions outweighed their prejudicial effect.

5. Use of Convictions Entered While Juvenile

¶ 35. McCoy contends that the convictions that were used to enhance his status to that of a habitual offender were incurred when he was under the age of eighteen, and that “they should not have been allowed to enhance his sentence as ‘habitual offender.’ This is particularly the case when the offenses occurred prior to when the legislature made 17 and 18-year-olds accountable under Mississippi Code Annotated 1972, as amended Section 43-21-151(2).” McCoy also contends that defense counsel improperly did not inquire as to what McCoy was told about “habitual status” when he received his earlier convictions. The State contends that this argument essentially asks this Court to collaterally attack the validity of McCoy’s prior convictions.

¶ 36. We find no merit to McCoy’s contentions. We note that McCoy has provided no case law to support his assertion that his prior convictions should not have been used to enhance his habitual offender status. Furthermore, a review of the prior convictions used for enhancement shows that McCoy was treated as an adult in those convictions. If McCoy wishes to challenge whether he should have been treated as an adult in the prior convictions, that challenge would constitute a collateral attack on the validity of those judgments. Unless and until McCoy successfully challenges the validity of the prior offenses, his conviction as a habitual offender will stand in this case.

6. Court Inquiry Into Choice of Counsel

¶ 37. McCoy contends that the court erred in not inquiring as to whether he was satisfied with his appointed counsel, in not granting a continuance for McCoy to retain private counsel, and in not informing McCoy of his right to proceed pro se.

¶ 38. The record reveals that, on the morning of trial, McCoy’s appointed counsel informed the court that McCoy had told her that he had retained paid counsel in the form of William Bambach, now McCoy’s appellate counsel. The court gave McCoy’s appointed counsel an opportunity to contact Bambach to see if he was representing McCoy, but she was not able to reach Bambach. The court noted that appointed counsel was the counsel of record for McCoy and that no other counsel had ever made an appearance on behalf of McCoy. Trial then proceeded.

¶ 39. McCoy cites Henley v. State, 729 So.2d 232 (Miss.1998) as support and claims that he was entitled to be informed of his right to represent himself. In Henley, the defendant’s trial lasted two days. Id. at 236(¶ 12). At the end of the first day of the trial, Henley informed the court that he was unhappy with the performance of his court-appointed lawyer, whom he claimed had acted “hostile” to him. Id. Thereafter, the court informed Henley that he was entitled to effective counsel, but not the counsel of his choice, and the court gave Henley the choice of either proceeding pro se with his attorney as a guide or continuing with primary representation provided by the court-appointed attorney. Id. at 236 (¶¶ 15-16). Although the trial court found that Henley was not competent to represent himself, the court allowed Henley to do so after Henley again refused to proceed with his court-appointed attorney. Id. at 236-37(¶ 17). The attorney was ordered to remain in the courtroom as an advisor to Henley. Id. at 237(¶ 17).

¶ 40. The Henley court noted that Henley’s court-appointed attorney was competent, and that Henley’s dispute with the attorney concerned trial strategy rather than a personal conflict. Id. at 23701 21). The Henley court also noted that Henley himself had “expressed a desire to conduct, at least part of, his own defense.” Id. at 237(¶ 20). Under the circumstances, the court found no merit to Henley’s contentions that the trial court erred in allowing Henley to continue pro se with advisement from his court-appointed attorney. Id. at 237-38(¶ 23).

¶ 41. McCoy claims that the trial court in his case should have inquired as to “McCoy’s satisfaction with his appointed counsel” and informed McCoy “that he had the right to represent himself in this trial.” We note that the situation here is notably different from the situation in Henley. In Henley, the defendant indicated dissatisfaction with his appointed counsel and eventually indicated that he would prefer to proceed pro se. By contrast, there is no evidence in the present record that McCoy was dissatisfied with his counsel or that he wished to proceed pro se. The first mention of McCoy’s possible retainment of Bambach was prior to voir dire, when McCoy’s trial counsel told the court: “Mr. McCoy has informed me that Mr. Bam-bach is his attorney and is supposed to be trying this case.” Nothing in the exchange indicated that McCoy was dissatisfied with his appointed attorney. Later, after opening statements had been made, the following exchange occurred outside the presence of the jury:

[BY DEFENSE ATTORNEY]: Your Honor, on behalf of my client, my client has instructed me and asked me to make a motion to the Court for a continuance. My client has advised me that he has retained counsel and that he wishes his — let me be accurate. His family has retained counsel on his behalf. He is asking me to request from the Court a continuance in order to allow his retained counsel to properly appear. I’m making that motion. I’ve advised my client that the Court had advised him yesterday as I did that retained counsel would have to appear today to represent him. But I am making that motion at the request of my—
[BY THE COURT]: Who is this retained counsel?
[BY DEFENSE ATTORNEY]: Allegedly it’s Mr. Bambach, Your Honor.
[BY THE COURT]: Bill Bambach?
[BY DEFENSE ATTORNEY]: Yes, Your Honor. And so I’m making that motion pursuant to my client’s request.
[BY THE COURT]: He has not entered an appearance. He has not—
[BY DEFENSE ATTORNEY]: And he has not contacted me, Your Honor, nor made any written motions. And Your Honor, I advised—
[BY THE COURT]: So he is not this client’s counsel in this ease. And if that is by way of a motion for a continuance, it’s overruled.

¶ 42. After the court pronounced its sentence on McCoy after trial, McCoy asked if he could “say what I got to say.” The court allowed McCoy to speak, and McCoy stated the following: “Well, I mean, what about my lawyer? My paid lawyer couldn’t step in? The information got to me he was denied.” Shortly thereafter, McCoy’s trial counsel stated: “I spoke to Mr. Bambach personally yesterday, and he indicated to me that he in fact — and I explained to Mr. McCoy that [neither] the Court nor myself could mitigate relations between other clients and lawyers. Mr. Bambach explained to me that he had not been retained.” (emphasis added). Therefore, the record indicates that McCoy never indicated, even when given the opportunity to do so posttrial, that he was displeased with the performance of his court-appointed attorney. There is certainly no indication whatsoever in the record that McCoy desired to represent himself rather than proceed with his appointed counsel. Furthermore, the record indicates that Bambach actually had not been retained as McCoy’s counsel for trial.

¶ 43. Under the circumstances, the court did not err in ordering McCoy to proceed to trial with his court-appointed attorney. No other attorney had ever entered an appearance or filed a motion on McCoy’s behalf, and appointed counsel indicated that no other attorney had ever contacted her in regard to McCoy’s representation. The court was not required to question McCoy as to his satisfaction with his appointed counsel in the absence of any indication that McCoy was dissatisfied with his attorney. The court also was not required to inform McCoy of his right to proceed pro se, as McCoy had never indicated any problem with his appointed counsel and had not indicated any desire to proceed pro se.

¶ 44. This contention of error is also without merit.

7. Cumulative Error

¶45. While McCoy was entitled to a fair trial, criminal defendants are not entitled to perfect trials. Wilson v. State, 936 So.2d 357, 365(¶24) (Miss.2006). “However, even though not reversible in themselves, the cumulative impact of non-reversible errors may ... require reversal.” Id. (citing Byrom v. State, 863 So.2d 836, 847 (¶¶ 12-13) (Miss.2003)). Although we have found that conduct by the prosecutor in this case rose to the level of harmless error, we have not found any other errors, harmless or otherwise, that would favor reversal of McCoy’s conviction. Therefore, there is no cumulative error that impacted McCoy’s right to a “fundamentally fair and impartial trial,” and this contention of error is without merit. Byrom, 863 So.2d at 847(¶ 13).

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

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

      . Lavendar had to drive for Stewart because his driver's license had been suspended.

      . Testimony at trial indicated that Stewart made numerous other buys on March 17, 2004, from other individuals.

      .Stewart testified that Zeke passed away some time prior to the trial.

      . During cross-examination, McCoy’s attorney asked Stewart whether he had a history of drug use. Stewart denied ever having used drugs and was then impeached with prior sworn documents where he had indicated a history of illegal drug use.

      . Rule 22(b) of the Mississippi Rules of Appellate Procedure states: “Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record.” (emphasis added). The rule then goes on to indicate that if trial counsel and appellate counsel are different, the failure to raise such an issue on direct appeal waives that issue for consideration through post-conviction proceedings.

      . Rule 609(b) limits the use of convictions that are more than ten years old. McCoy’s convictions do not fall into that category.


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Tyrone SANDERS, Appellant v. Amber C. ROBERTSON and Mississippi Farm Bureau Casualty Insurance Company, Appellees.
    No. 2006-CP-00404-COA.
    Court of Appeals of Mississippi.
    April 17, 2007.

      Tyrone Sanders (Pro Se), for appellant.
    Joseph Blair Lobrano Joe S. Deaton, for appellees.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. Tyrone Sanders, pro se, appeals a judgment of the Circuit Court of Nesho-ba County dismissing his action for damages resulting from an automobile accident. Sanders filed suit against Amber C. Robertson and Farm Bureau Insurance Company. The court dismissed the case because of insufficiency of process and improper service of process. Additionally, the case was dismissed because Mississippi law prohibits direct actions for negligence against insurance companies in automobile collision disputes. Aggrieved, Sanders appeals, asserting that the circuit court erred in dismissing his complaint with prejudice.

¶ 2. We find no error; thus, we affirm the judgment of the circuit court.

FACTS

¶ 3. On September 26, 2002, Sanders and Robertson were involved in a two-car automobile accident in Neshoba County, Mississippi. At the time of the accident Robertson was insured by Mississippi Farm Bureau Casualty Insurance Company (Casualty Insurance). On September 23, 2005, Sanders commenced this action pro se by filing a complaint in the Circuit Court of Neshoba County, claiming that Robertson negligently allowed her vehicle to cross the center-line and collide with his vehicle. Sanders alleges to have suffered neck and back injuries, as well as pain, sleep deprivation and an interrupted sleep pattern as a result of the accident. In addition to punitive damages, Sanders demanded a $45,000 judgment against Robertson and her insurance company.

¶ 4. On September 30, 2005, the Nesho-ba County Circuit Clerk issued a “Notice of Lawsuit and Request for Waiver of Service of Summons” which named Robertson and a Casualty Insurance agent, Michael Vick, as defendants. However, the record indicates that a blank waiver of service of summons was filed on October 4, 2005, and the record contains no documentation proving that either defendant was properly served with process.

¶ 5. On October 28, 2005, Casualty Insurance filed a motion to dismiss on the grounds that it was improperly served and that it was not a proper party to the suit. Sanders responded by filing a “Plaintiffs Motion to Objection” in which he objected to the motion to dismiss and asked the court to “proceed on and disregard the motion To [sic] dismiss.”

¶ 6. On February 3, 2006, the Neshoba County Circuit Court held a hearing on Casualty Insurance’s motion. Sanders failed to appear at the hearing; nevertheless, the judge proceeded, and dismissed the action with prejudice. Following the judge’s order, Sanders sent a letter to the judge explaining that he was not at the hearing because he-was confused as to the date and location of the hearing. Sanders continued to send letters to the circuit judge and to the circuit clerk after the case had been dismissed with prejudice. Sanders filed a notice of appeal on March 3, 2Q06.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. “This Court employs a de novo standard of review of a trial court’s grant or denial of a motion to dismiss.” Spencer v. State, 880 So.2d 1044, 1045(¶6) (Miss.2004).

¶ 8. Sanders contends that he is entitled to relief from the circuit court’s ruling because: (1) he ■ served Robertson with notice of the lawsuit at her job via facsimile, as well as by certified mail at her last known address; (2) 'Robertson is evading service of process; ■ (3) he made a good faith effort to serve Robertson with process; and (4) the hearing was held in Scott County, rather than Neshoba County, which is a more convenient forum for him.

¶ 9. We note that the record fails to confirm that Sanders in fact served Robertson or Casualty Insurance, and Sanders’ statement alone does not satisfy Rule 4(h) of the Mississippi Rules of Civil Procedure, which provides:

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

Although the record contains certified mail receipts for mailings sent by Sanders to the named defendants, we point out that all of the receipts are dated after the case was dismissed by the trial judge. When Sanders filed his complaint on September 23, 2005, the statute of limitations was tolled for 120 days, or until January 20, 2006. At the time of the September 23, 2005 filing, only three days remained before the running of the three-year statute of limitations. Thus, in order to refile Sanders would have had to do so by January 24, 2006, because the statute of limitations resumed running on January 21, 2006. We note that Sanders’ case was not dismissed until February 3, 2006.

¶-10. Furthermore, Rule 4(c) of the Mississippi Rules of Civil Procedure allows three methods of service upon Mississippi residents: (1) process server, (2) sheriff, and (3) first-class mail. Therefore, because Robertson is a Mississippi resident, Sanders could not use certified mail as an initial method of effecting service of process upon her. Triple “C” Transp., Inc. v. Dickens, 870 So.2d 1195, 1198-99(1121) (Miss.2004). Rule 4(c)(3)(B) provides, “[i]f no acknowledgment of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing, service of such summons and complaint may be made in any other manner permitted by this rule.” Therefore, we, find no error in the trial judge’s decision' to dismiss Sanders’ case as there is no record that Sanders properly served Robertson.

¶ 11. Sanders next argues that he made a good faith effort to serve Robertson, but could not do so’because he could not locate her. We find that the record clearly belies this contention. Sanders claimed in his notice of appeal that he had in fact mailed a certified letter to Robertson’s last known address. In addition, Sanders stated that he “served Robertson with notice of the lawsuit” via facsimile to Robertson at her place of employment. The record appears to substantiate Sanders’ claim as it contains what appears to be a fax of the notice of lawsuit and request for waiver of service of summons. Nevertheless, Sanders still failed to properly serve Robertson.

¶ 12. The Mississippi Rules of Civil Procedure do not allow for the use of facsimile transmission to effect service of process. Thus, even if Sanders faxed a notice of lawsuit to Robertson, he still would not have not have been in compliance with Rule 4(h). Moreover, the record indicates that the fax was sent on February 27, 2006, after the case had been dismissed with prejudice. Thus, this Court cannot accept Sanders’ contention that he made a good faith attempt to effectuate service.

¶ 131 As further support for our ruling, we note that Sandei’s filed a “Motion to Enlarge Time” on March 3, 2006, well after the expiration of the 120-day period. The Mississippi Supreme Court has interpreted Rule 4(h) to stand for the proposition that “a plaintiff must serve a defendant with process within 120 days or show good cause why service was not made.” Webster v. Webster, 834 So.2d 26, 27-28(¶ 4) (Miss.2002) (quoting Watters v. Stripling, 675 So.2d 1242, 1243 (Miss.1996)). Thus, if Sanders was in fact having difficulty locating Robertson, it was incumbent upon him to petition the court for an extension of time prior to, rather than after, the expiration of the 120-day period. Since no motion to enlarge time was filed, Sanders relies solely on a finding of good cause to extend the time for service.

¶ 14. Furthermore, the Mississippi Supreme Court has held that “to establish ‘good cause’ the plaintiff must demonstrate ‘at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.’ Id. (quoting Peters v. United States, 9 F.3d 344, 345 (5th Cir.1993)) (emphasis added). Consequently, this Court must deny Sanders’ request that we excuse his errors due to his inexperience with handling legal matters. This Court does not relax the Mississippi Rules of Civil Procedure for pro se plaintiffs. In Perry v. Andy, 858 So.2d 143, 146(¶ 13) (Miss.2003) (citing Ivy v. Merchant, 666 So.2d 445, 449-50 (Miss.1995)), the Mississippi Supreme Court stated, “[p]ro se litigants must be held to substantially the same standards of litigation conduct as members of the bar.” The court also held that, “pro se plaintiffs must strictly comply with Miss. R. Civ. P. 4(h).” Id. at ¶ 14. Therefore, the trial judge properly dismissed Sanders’ case.

¶ 15. Sanders argues that he is entitled to relief because the hearing was held in Scott County as opposed to Neshoba County, where the accident occurred. Rule 2.02 of the Uniform Rules of Circuit and County Court provides:

The court is empowered to hear and determine all motions, appeals or other applications to the court, which the court may hear and determine without a jury, in term or vacation, and may hear or determine the same in any county in the judicial district of the court, or in a county to which venue has been transferred.

(emphasis added).

We point out that Scott County is located in the Eighth Circuit Court District, along with Leake, Newton, and Neshoba counties. Miss.Code Ann. § 9-7-27. There is no merit to this issue.

¶ 16. Sanders also contends that the trial court erred in granting Mississippi Farm Bureau Casualty Insurance Company’s Motion to Dismiss. Despite Sanders’ contention, Mississippi clearly prohibits direct actions against insurance companies. In Ford v. State Farm Ins. Co., 625 So.2d 792, 795 (Miss.1993) (citing Goodin v. Gulf Coast Oil Co., 241 Miss. 862, 133 So.2d 623, 624 (1961)), the Mississippi Supreme Court stated, “[i]n Goo-din, this Court ruled that a direct action could not be brought against an insurance company in Mississippi....” Clearly, there is no merit to Sanders’ contention that his case was dismissed in error.

¶ 17. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT DISMISSING THE ACTION WITH PREJUDICE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Sanders incorrectly named Farm Bureau Insurance Company as the defendant. However, Mississippi Farm Bureau Casualty Insurance Company, the would-be-proper defendant, without admitting that it had been properly served, responded with a motion to dismiss.

      . Although Rule 4(h) provides that a dismissal for failure to serve process within 120 days shall be a dismissál without prejudice, we find that the dismissal with prejudice is harmless error, because, as we later explain, at the time of the dismissal, the statute of limitations had already expired.

      . On December 12, 2005, the court issued a notice setting the hearing for January 6, 2006; however, this hearing was canceled and re-set for February 3, 2006. The court issued a re-notice of hearing reflecting this change. The record contains a certificate of service stating that this re-notice was mailed to Sanders on December 20, 2005.


text:
    Lisa J. CROSS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CA-00425-COA.
    Court of Appeals of Mississippi.
    April 17, 2007.

      Imhotep Alkebu-Lan, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. On April 13, 2005, Lisa J. Cross pleaded guilty to two counts of aggravated assault. She was sentenced to fifteen years with eight suspended and five years of supervised probation on each count, with the sentences to run concurrently. Cross appeals the judgment of the Rankin County Circuit Court dismissing her motion for post-conviction relief (PCR).

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 3. The only error that Cross alleges in her motion for PCR is that her plea was not voluntarily and intelligently made. A guilty plea is binding upon a defendant only when it is voluntarily and intelligently entered. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992) (citing Myers v. State, 583 So.2d 174, 177 (Miss.1991)). In Reeder v. State, 783 So.2d 711, 717(¶ 20) (Miss.2001), the Mississippi Supreme Court stated that:

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

¶ 4. Cross contends that the trial court erred in accepting her guilty plea because she was being treated for several mental illnesses at the time the plea was entered. Cross told the court that she suffers from multiple disorders including manic and clinical depression. However, Cross testified at the hearing that she was not under the influence of any medications, which prompted the court to inquire as to why she was not being treated for these disorders. Cross responded that she has not been prescribed any new medications because she also suffers from agoraphobia, which makes it difficult for her to go to her mental health appointments. The trial judge thoroughly examined Cross and determined that she was competent to enter a guilty plea.

¶ 5. In addition, although it appears from the plea transcript that Cross initially showed some hesitation, the record clearly belies Cross’ allegation that her plea was not voluntary, as the trial court asked her several times if she wished to plead guilty. The record reflects the following:

Q. Did you tell [your attorney] all facts you believe might be necessary for your defense?
A. Yes, sir.
Q. Did your discussions with him include the elements of the crime?
A. Yes, sir, to the best of my knowledge. When I say that, Your Hon- or, bear with me, please, and everyone else here in the courtroom. When I say that, I’m saying specifically this: I’m not going to say that I’m 100 percent clear, but I also feel it, Your Honor, that — actually I don’t feel it, I know it. I don’t leave my home. I feel — I’m innocent.
Q. Well, I’m telling you right now that all I’m discussing is the elements of the crime. I’m ready to go over those and ask you if you understand the elements, but if you are telling me that you are innocent, then I’m not going to take this guilty plea. We will bring the jury back in here and start this trial up.
A. May I add this, Your Honor? I know — I’m ill. As we speak now, I just don’t feel very well. I did have—
Q. Let me ask you something, Ms. Cross. Do you want to plead guilty or do you not want to plead guilty?
[ATTORNEY FOR DEFENDANT]:
Your Honor, may we have a moment?
THE COURT: Sure.
A. Yes, Your Honor, I’m going to enter a guilty plea.
Q. (By the Court) And you are not innocent, are you? You are guilty, aren’t you?
A. I never hit anyone.
Q. Are you telling the Court that you’re freely and voluntarily admitting your guilt to the crimes you are charged with?
A. Yes, sir.
Q. Are you pleading because you are guilty and for no other reason?
A. Yes, sir.

¶ 6. The trial court also inquired into Cross’ mental state by asking her attorney whether he felt that she appreciated the nature and consequences of her actions. The court also asked Cross if she had read and signed the petition to plead guilty. She responded that she had. The court also asked her if everything in the petition was true. Cross responded, “To the best of my knowledge.” The trial judge stated, “You are going to have to read it again, because if it is not, I’m not going to take your guilty plea petition.” Cross then stated that the petition was correct.

¶ 7. We note that Cross’ guilty plea waives her arguments: (1) that “she was not even present due to her mental and physical illness,” (2) that the State could not prove her guilt, and (3) that she repeatedly asserted her innocence. The Mississippi Supreme Court has held that “a valid guilty plea ... admits all elements of a formal criminal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment against a defendant.” Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990).

¶ 8. Procedural bar notwithstanding, the second allegation is clearly contradicted by the record. The record reflects that when asked by the court, “You are saying that you think the State can prove your guilt and you want to take advantage of pleading guilty,” Cross initially responded, “No, sir, that’s not true.” However, after asking the court to repeat its question, she responded, “Yes, sir” when asked whether she did or did not want to plead guilty.

¶ 9. Cross was also provided the opportunity to proceed to trial when the court asked her again whether she still wanted to plead guilty following her apology to the court “for any irritation” she may have caused:

Q. You haven’t irritated me at all. I don’t know why you would make that kind of comment because I haven’t been irritated at anything.
A. No, I’m sorry, Your Honor. I don’t mean to insult. I was just a little confused at first by your questions.
Q. If you think I have been irritated, are you sure you want to go forward with this guilty plea?
A. Oh, yes, sir.
Q. I can assure you I am not irritated, but I want to make sure that you believe that I’m not, and I want to make sure that you want to go forward with the guilty plea.
A. Yes, Your Honor, I do.

¶ 10. Cross was also given the opportunity to withdraw her guilty plea during the sentencing hearing after she told the court that she did not know how the victim received two gashes in her head, because she never hit the victim in the head with a hammer. The record reflects the following:

Q. Are you telling me you want to set your guilty plea aside?
A. I’m not saying that, Your Honor. I am doing my very best, Judge, to—
Q. What you are saying is you want to go ahead and have me sentence you; you don’t want to set that guilty plea aside and have a trial?
A. No, I don’t want to have a trial, Your Honor.

¶ 11. “Great weight is given to statements made under oath and in open court during sentencing.” Gable v. State, 748 So .2d 703, 706(¶ 11) (Miss.1999) (citing Young v. State, 731 So.2d 1120, 1123(¶ 12) (Miss.1999)). Based on our review of plea and sentencing hearings, we find that the trial judge properly accepted Cross’ guilty plea, as it was voluntarily and intelligently given. Therefore, because we cannot discern any merit to the allegation of error, we affirm the judgment of the trial court.

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

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


text:
    PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Appellant, v. Phyllis TRULOVE, Appellee.
    No. 2006-SA-00550-COA.
    Court of Appeals of Mississippi.
    April 17, 2007.
    Mary Margaret Bowers, attorney for appellant.
    W. Howard Gunn, Aberdeen, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. Phyllis Trulove filed an application for duty-related disability benefits with the Public Employees’ Retirement System (PERS). The Disability Appeals Committee and the Board of Trustees denied Trulove’s request on the ground that her disability does not meet the statutory provisions of a duty-related disability. The Hinds County Circuit Court reversed PERS’ decision and granted Trulove duty-related disability benefits. Aggrieved, PERS appeals and asserts that the circuit court erred in finding that Tru-love suffered injuries as a direct result of an accident that occurred during the course of her job duties.

¶2. Finding no error, we affirm the circuit court.

FACTS

¶ 3. At the time of the incident in question Trulove was employed as a Nurse II with the Lowndes County Department of Health. She had been employed with the Mississippi Department of Health for a total of ten and one-half years, previously working as a home health nurse for the Department of Health’s Tombigbee Home Health Agency.

¶ 4. On August 8, 1995, Trulove suffered injuries to her neck and shoulder when she was involved in an automobile accident in Clay County while performing her duties as a visiting home health nurse for the Department of Health. On May 23, 1996, she had magnetic resonance imaging (MRI) of her neck which revealed that she had suffered a herniated disk at the C4-5. On June 4, 1996, she underwent an anteri- or cervical discectomy. She also underwent several years of physical therapy, as well as other pain management procedures, in an effort to alleviate the pain caused by her shoulder injury, all to no avail.

¶ 5. Despite her constant complaints of pain, Trulove returned to work with the Tombigbee Home Health Agency as a medical re-certification nurse, rather than as a visiting nurse, which provided her with a more comfortable work environment. She was subsequently laterally transferred to the Department of Health as a Nurse II, where she worked in a clinic, the position she held at the time of the incident at issue. While working at the clinic, Trulove’s duties included completing paperwork, immunizing babies, giving injections, conducting physicals, and postpartum home visits.

¶ 6. On October 10, 2000, Trulove claims to have suffered a second duty-related injury, which prompted her to file an incident report with the Department the next day. In the incident report, Trulove stated that she was restraining a twelve-year-old boy who was about to receive an injection when she felt a “pop” in her neck which was immediately followed by pain in her head and arms. She also stated that her arm became weak and she released the child. On October 17, 2000, Trulove visited Dr. John D. Davis complaining of pain in her neck and right arm. On December 7, 2000, Trulove underwent surgery to repair a herniated nucleus at the C5-6 to alleviate the severe pain that she was experiencing in her neck and arm. She returned to work following the surgery, under a fifteen pound weight restriction.

¶ 7. On March 19, 2002, she applied for duty-related disability benefits for the October 10, 2000 incident, claiming to have reinjured her neck. Trulove testified before the Disability Appeals Committee that the pop felt like “electricity going through [her] head.” Trulove also testified that the incident on October 10, 2000, aggravated the shoulder injury that she had suffered in the car accident. Prior to the second injury, she underwent surgery in 2001 to repair a partial rotator cuff tear caused by the 1995 car accident.

¶ 8. Trulove further testified that she has pain in her neck and lower back that radiates down to her left leg which causes numbness and tingling. She stated that the pain has become unbearable and it affects every aspect of her daily life. She has been prescribed several pain relievers, but she is allergic to most and others make her drowsy, which causes her apprehension about taking them while performing her job duties. Trulove also testified that as a result of the pain, she lies down six or seven hours a day. She testified that she is in pain twenty-four hours a day, seven days a week. As a result, on March 31, 2002, Trulove terminated her employment with the Department of Health.

¶ 9. Additional facts, as appropriate, will be related during our discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 10. This Court has limited judicial review of an administrative decision of an agency or board and shall uphold the decision of the Board unless its decision: (1) is not supported by substantial evidence, (2) is arbitrary and capricious, (3) is beyond the authority of the Board to make, or (4) violates Trulove’s statutory or constitutional rights. Sprouse v. Miss. Empl. Sec. Comm’n, 639 So.2d 901, 902 (Miss.1994). “There is a rebuttable presumption in favor of a PERS ruling. Neither this Court nor the circuit court is entitled to substitute its own judgment for that of PERS, and it is impermissible for a reviewing court to re-weigh the facts of the case.” Pub. Emples. Ret. Sys. v. Dishmon, 797 So.2d 888, 891(¶9) (Miss.2001) (citing Miss. Pub. Serv. Comm’n v. Merchs. Truck Line, Inc., 598 So.2d 778, 782 (Miss.1992)).

¶ 11. Employees of the State of Mississippi are eligible for regular disability benefits and duty-related benefits. In order to qualify for regular disability benefits an employee must have at least four years of state service. Miss.Code Ann. § 25-11-113(l)(a) (Rev.2006). PERS does not dispute that Trulove is disabled within the meaning of section 25 — 11—113(1)(a), which defines disability as:

the inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment covered by the Public Employees’ Retirement System (Section 25-11-101 et seq.) that is actually offered and is within the same general territorial work area, without material reduction in compensation.

The Disability Appeals Committee found that “it is our unanimous decision that Ms. Trulove does suffer from a disability as defined by the statute and it is our recommendation that she be awarded Regular Disability Benefits.”

¶ 12. However, in order to be eligible for duty-related disability benefits the burden is on Trulove to show that her disability is a direct result of an accident or traumatic event which occurred while she was performing her job duties. Miss.Code Ann. § 25-11-114(6) (Rev.2006). Mississippi Code Annotated section 25-11-114(6) provides, in part:

Regardless of the number of years of creditable service upon the application of a member or employer, any active member who becomes disabled as a direct result of an accident or traumatic event resulting in a physical injury occurring in the line of performance of duty, provided that the medical board or other designated governmental agency after a medical examination certifies that the member is mentally or physically incapacitated for the further performance of duty and the incapacity is likely to be permanent, may be retired by the board of trustees....

(emphasis added).

¶ 13. The issue presented in this case is whether there is sufficient evidence to support the circuit court’s finding that Trulove’s second on-the-job injury was a direct result of an accident that occurred in the line of duty. PERS maintains that its decision to deny Trulove’s request for duty-related benefits is supported by substantial evidence and argues that the circuit court erred in re-weighing the evidence. The record indicates that PERS reached its decision based on its opinion that a question exists as to whether the second accident actually occurred. The Committee held:

Considering all of the medical evidence presented to us and the lack of objective proof of an accident while lifting a child as claimed by Ms. Trulove, we are not persuaded that this claim is a duty related claim. The proof is conflicting. Ms. Trulove claims she felt a “pop” when giving a child an injection, but the only record documenting an alleged accident is one by Dr. Davis reporting that Ms. Trulove injured herself lifting a heavy patient.

¶ 14. We note at the outset that the Committee failed to consider Dr. Davis’ notes in their entirety. The following is an accurate account of Dr. Davis’ findings based on his notes from October 17, 2000:

Ms. Trulove is a 52-year-old right-handed white woman who was in good health until MVA [motor vehicle accident] in 1996[sic]. She suffered a lot of neck pain, and left shoulder pain after that. She subsequently had a C4-5 anterior cervical decompressive discectomy in 1996 and did well until she went back to work two months later. At work, she lifted a very heavy patient and had a recurrence of a lot of her pain. Basically ever since that time, she has been doing poorly. She reports that about six days ago, she was restraining a patient and felt a pop in her neck and her symptoms down her right arm have been worse since that time. She now complains of a host of things including limited flexion of her fingers on the left side, left sided-shoulder blade and elbow discomfort, numbness and tingling going down her left arm to the hand and fingers, involving the third, fourth and fifth digits. She complains of right-sided neck pain and arm pain radiating down the lateral aspect of her arm with numbness and tingling in her second and third digits. She specifically says it does not involve her thumb on the right side. She reports no new bowel or bladder problems, although, she has a longstanding history of stress urinary incontinence.

(emphasis added).

In light of Dr. Davis’ findings, which are a part of the record, we cannot agree with the Committee that “the only record documenting an alleged accident is one by Dr. Davis reporting that Ms. Trulove injured herself lifting a heavy patient.” Additionally, the record contains an incident report completed by Trulove on October 11, 2000, in which she provides a detailed account of the incident. Trulove recounted the following events:

I was ask [sic] to come to [the room of a registered nurse] by [a nurse’s assistant] to help give/hold a patient who needed an injection. Upon entry to her room, she stated that they could not hold this 12 year [old] boy (his mom was big pregnant) so I told them the only way I could help was to sit in [a] chair and let the boy sit in my lap which we did, I wrapped my legs around his legs and my arms around his shoulders and [nurse assistant] held his left arm, mom held his feet and she gave the injection — the boy ended up in [the] floor again. After his injection I stated: my head was hurting and my arms. I sat in [a] chair for a few minutes and told them I was going upstairs. My vision was blurred after I felt a pop in my neck — my head & arms started hurting. I went upstairs and told [a registered nurse] what had happened and I laid my head in my hands, then [another registered nurse] came in I told her & stated my head is hurting can I go home & she replied yes. I went home.

¶ 15; It appears that the Committee did not thoroughly consider Dr. Davis’ notes, and gave no weight to Trulove’s incident report. PERS contends in its brief that the proximate cause of Trulove’s disability is “mainly pain that is the result of degenerative disc disease and a shoulder injury, all that were either caused or aggravated by a 1995 car accident.” It is worth noting that the neck and shoulder injuries which resulted from the 1995 car accident were duty-related in that a vehicle struck Tru-love’s vehicle as she was traveling to a home visit pursuant to her duties as a visiting home health nurse.

¶ 16. By providing the Committee with her medical records and the incident report, Trulove has satisfied her burden of establishing that she is disabled as a result of an on-the-job injury. Thus, PERS’ contention that “the evidence offered in Ms. Trulove’s claim was limited” is clearly contradicted by the record. Despite PERS’ contentions to the contrary, we find that there is substantial evidence that indicates that the injuries that Trulove suffered on October 10, 2000, were the direct result of an accident that occurred in the line of duty. Therefore, we affirm the circuit court on the ground that PERS’s decision was not supported by substantial evidence.

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

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


author: LEE, P.J.,

text:
    ST. DOMINIC-JACKSON MEMORIAL HOSPITAL, Appellant v. MISSISSIPPI STATE DEPARTMENT OF HEALTH and Madison HMA, Inc. d/b/a Madison Regional Medical Center, Appellees.
    No. 2006-SA-00281-COA.
    Court of Appeals of Mississippi.
    April 17, 2007.

      Jonathan R. Werne, Edmund L. Bruni-ni, Jr., Jackson, attorneys for appellant.
    Andy Lowry, Allison C. Simpson, Thomas L. Kirkland, Jr., Ridgeland, Donald E. Eicher, III, Flowood, attorneys for appel-lees.
    Before LEE, P.J., ISHEE and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On December 9, 2004, Madison HMA, Inc., d/b/a Madison County Medical Center (MCMC), filed a certificate of need (CON) application to relocate and replace its entire sixty-seven bed hospital in Canton, Mississippi, to a location off Interstate 55 on the Nissan Parkway (a distance of less than five miles). Madison HMA is a wholly owned subsidiary of Health Management Associates, Inc. (HMA). In its application, Madison HMA sought to completely replace its current 59,930 square foot facility built in 1965 with a 122,000 square foot facility in a more accessible location. The capital expenditure for the project is estimated at $42,133,956. St. Dominic contested the application, asserting that the CON did not meet the criteria set out in the State Health Plan. Further, St. Dominic argues that the project proposed by HMA is not a relocation and replacement but a much bigger project designed to stifle competition in Madison County.

¶ 2. Unlike other recent applications for relocation that were determined to be expansions, Madison HMA is seeking a true relocation. No services will be duplicated. It will move its entire hospital to the Nissan Parkway and close the current location. Since this is a relocation, the criteria under which the State Health Department correctly reviewed the application is that for “Construction, Renovation, Expansion, Capital Improvement, Replacement of Health Care Facilities, and Addition of Hospital Beds.” This section requires documentation of need by, but not limited to, showing licensure and code deficiencies, long-term plans, recommendations of consulting firms, deficiencies cited by accreditation agencies, and, if there is an expansion of emergency facilities, a statement concerning whether the hospital will participate in the statewide trauma system.

¶ 3. After reviewing the application under the above criteria, the State Health Department’s staff concluded that the application was in compliance with the State Health Plan. St. Dominic requested a hearing which was held June 14-16, 2005. At the hearing each party was afforded the opportunity to present evidence and testimony to support its position. Eight witnesses testified and forty-four exhibits were entered into evidence during the three-day hearing. At the conclusion of the hearing, the hearing officer recommended that the application be approved, and, on October 27, 2005, the State Health Officer concurred with the hearing officer’s recommendation and issued the CON. St. Dominic then appealed the decision to the Chancery Court of the First Judicial District of Hinds County. On January 30, 2006, the chancellor affirmed the decision of the State Health Officer granting the CON.

¶ 4. St. Dominic now appeals to this Court the chancellor’s affirmance of the final order of the Mississippi State Department of Health granting a CON to Madison HMA. St. Dominic cites the following issues on appeal: (1) was the Department’s decision to grant the CON on the proposed project supported by substantial evidence; (2) did the application satisfy the applicable specific criteria in the State Health Plan; (3) did the application substantially comply with the applicable general review criteria; (4) was the application in compliance with the four general goals of the State Health Plan; and (5) was there a need for relocation or were the goals of the State Health Plan, specifically that of cost containment, better served by renovation and/or rebuilding at the current location. The five issues cited by St. Dominic are closely related and can be addressed collectively. The only issue to be decided by this Court is whether the Department’s decision was based on substantial evidence. To avoid repetition of facts and issues, all the issues will be discussed under Issue I.

¶ 5. Finding the Department’s decision supported by substantial evidence, we affirm.

STANDARD OF REVIEW

¶ 6. Judicial review of the State Health Officer’s CON order is limited by Mississippi Code Annotated Section 41-7-201(2)(f) (Rev.2005) which provides, in part:

The order shall not be vacated or set aside, either in whole or in part, except for errors of law, unless the court finds that the order of the State Department of Health is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of the statutory authority or jurisdiction of the State Department of Health, or violates any vested constitutional rights of any party involved in the appeal.

¶ 7. This Court assigns great deference to decisions of administrative agencies. Delta Reg’l Med. Ctr. v. Miss. State Dep’t of Health, 759 So.2d 1174, 1176(¶ 12) (Miss.1999) (citing Melody Manor Convalescent Ctr. v. Miss. State Dep’t of Health, 546 So.2d 972, 974 (Miss.1989)). There is a rebuttable presumption in favor of the decision rendered by an agency and the burden of proving to the contrary is on the challenging party. His Way Homes, Inc. v. Miss. Gaming Comm’n, 733 So.2d 764, 767(¶ 9) (Miss.1999). Neither this Court nor the chancery court can “substitute its judgment for that of the agency or reweigh the facts of the case.” Id. at (¶ 10). To be reversed on appeal, an administrative agency’s decision must be demonstrated to be arbitrary and capricious and not based on substantial evidence. Id. at (¶ 9); Cain v. Miss. State Dep’t of Health, 666 So.2d 506, 510 (Miss.1995).

DISCUSSION

I. WAS THE DEPARTMENT’S DECISION TO GRANT THE CON ON THE PROPOSED PROJECT SUPPORTED BY SUBSTANTIAL EVIDENCE

Four Goals of the State Health Plan

¶ 8. Mississippi’s health planning and health regulatory activities have the following purposes: (1) to prevent unnecessary duplication of health resources; (2) to provide cost containment; (3) to improve the health of Mississippi residents; and (4) to increase the accessibility, acceptability, continuity, and quality of health services. 2005 State Health Plan. While all of the stated purposes are important, cost containment and the prevention of unnecessary duplication of health resources are given primary emphasis in the CON process. Id.

¶ 9. The Department determined that Madison HMA does not seek to duplicate any services, thus meeting the first goal of the State Health Plan. MCMC’s existing facilities and services will be completely relocated to the Nissan Parkway, and the current facility will be closed. As to the second goal, the Department found sufficient cost containment. According to the testimony at the hearing, no substantial financial impact on Medicare would occur. Only a minor increase in Medicaid may occur, but it was not enough to warrant opposition by Medicaid to the application. No public funds will be used in the construction of the new facility since HMA is a private, tax-paying entity and is thus providing all the funding for the project. Madison County will receive the benefits of a modern hospital without spending city or county money, and the City of Canton may ultimately see an increase in tax revenue from the upgraded, more attractive facility. St. Dominic argues that since the proposed project costs more than remodeling the old facility, replacement does not sufficiently promote cost containment. However, St. Dominic offered no witnesses at the hearing to testify as to the best measure of cost containment nor did it provide convincing evidence through cross-examination of HMA’s witnesses. After hearing the evidence, the Department agreed with HMA that renovation would be almost as costly as replacement and would be inefficient and ineffective. We find that the Department had substantial evidence to determine the extra costs were necessary because the new facility will provide more comprehensive health services.

¶ 10. As to the third and fourth factors, the Department determined that the replacement facility will enable physicians to do a better job and allow more patients to be treated in a more modern and acceptable facility. Overwhelming evidence was presented at the hearing about the poor condition of MCMC’s current facility. For example, a MCMC physician testified that the patient rooms are extremely small and cramped if the doctor, patient, and caretaker are all in the room. Also, the restrooms and other facilities are not compliant with the Americans with Disabilities Act. Another physician testified that medical care would be more effective if he could keep more patients at MCMC instead of transferring them to other hospitals. The primary reason given for transfers is lack of facilities and lack of services provided by other disciplines, If a renovation is undertaken, the current hospital would be effectively closed during the renovation leaving Madison County without hospital services. In addition, the new facility will use eight of the sixty-seven beds currently in use to establish an intensive care unit to better serve the needs of patients.

¶ 11. As for accessibility, MCMC is currently difficult to access for most patients. From most routes, the current location on Highway 16 requires traveling through downtown Canton through stop lights and over railroad tracks. While just five miles from the current facility, the new location will be more convenient for the residents of Madison County and the people in and north of Canton as it will be located just off Interstate 55. There are several ways to reach the proposed location. Patients on Interstate 55 north or south can take exit 118, and patients coming from Canton can take Highway 22 or Highway 21 which intersects with the Nissan Parkway. Also, Canton has proposed building a road from Highway 51 to Highway 43 which meets right at the Nissan Parkway, and Nissan plans to build a road from Highway 22 to Nissan Drive. Seventy-five percent of the population in MCMC’s primary and secondary service areas will have the same or less drive time to the new facility.

¶ 12. Another important criteria to be considered is indigent care. MCMC treats all residents in the area, particularly low income, racial and ethnic minorities, women, handicapped persons, elderly and others. The Department found that the replacement facility will continue to serve these patients, and it will better serve handicapped patients as it will be ADA compliant. With additional space and a more attractive facility, new physicians can be recruited to offer different specialities. Also, the Department found that the new facility will be more easily accessible to these groups and for those with emergencies to find the hospital. William Truly, a family physician at MCMC, testified that Medicare and Medicaid patients, the majority of his practice, “ought to have an accessibility and availability to the best of care, particularly as it relates to a higher level of care, as it relates to speciality care.” After reviewing the testimony, we find that substantial evidence existed for the Department to conclude that MCMC’s CON application met the four goals of the State Health Plan.

The CON Application

¶ 13. St. Dominic lists four “problems” in the CON application that it argues should have led the Department’s staff to find that the project was not supported by substantial evidence. St. Dominic alleges that the Department recognized the problems from the beginning, and the problems were not corrected or explained in the hearing. We will address each of the alleged problems separately.

¶ 14. First, St. Dominic alleges that the planned capital expenditure on the new hospital facility is excessive when compared with other recent replacement projects and that no justification was given in the application for the excessive cost. The staff analysis compared the MCMC application with two recent hospital replacement projects in Mississippi-Lackey Memorial Hospital in Forest and Newton Regional Hospital in Newton. The Lackey facility was approved in June 2004 and the Newton facility was approved in February 2003. However, the Department concluded that these two projects were smaller, provided different services, and differed in ownership since MCMC is owned by a private corporation. For example, Lackey Hospital’s application was for a smaller critical access hospital which did not have all of the services of a general medical and surgical hospital like MCMC. Also, the Department determined that other factors not considered in the Lackey or Newton applications must be taken into consideration when calculating the costs of the new MCMC facility. The Department found that extra costs associated with electrical services, natural gas services, phones, access roads, and drainage systems would be required for the new facility. Also, the soil at the new location contains Yazoo clay, a common problem in the area, which will require a special foundation. Jackie McGowan, vice-president of facilities, management and planning for River Oaks Health System and construction projection coordinator for HMA, testified that there were no unusual numbers in the cost estimate. From the testimony presented at the hearing, the hearing officer could not find that the costs associated with the project were unreasonable under the circumstances. We find that substantial evidence existed to support the hearing officer’s findings.

¶ 15. The second alleged “problem” is Rachel Pittman’s testimony that the Department could not verify that the financial projections were accurate, and, thus, the financial feasibility of the project could be at issue. A project is financially feasible if the applicant can withstand a loss and become profitable by its second or third year of operation. The Department determined that Madison HMA met this criteria. St. Dominic argues that the Department’s staff noted that MCMC had not identified any method of projection regarding the financial aspects of the project. Pittman is the chief of the division of Health Planning and Resource Development for the Department. She testified to having reviewed hundreds of CON applications in her twenty years at the Department. Pittman testified that not only did her division review the financial projections, but the projections were also reviewed by the Department’s accounting division. The financial projections were found acceptable by both reviewing parties. While Pittman admitted that the methodology of the projections was not expressly stated, we find that the Department was still able to support its findings with substantial evidence. As the hearing officer found, “projections are just that-projections or forecasts of what may happen in the future based on certain facts that are assumed.” The hearing officer went on to state that “[tjhere was no persuasive evidence offered to show that the projections are flawed. They appear on the face to be reasonable under the circumstances.” St. Dominic offered nothing to support its proposition that the financial projections were inaccurate at the hearing. We cannot find the Department’s decision was against the manifest weight of the evidence without any evidence to the contrary.

¶ 16. Third, St. Dominic argues that relocation of Hill-Burton facilities is not recognized as a necessary remedy to aging facilities built under the Hill-Burton program. It also asserts that Pittman performed no independent investigation into the applicant’s assertion that MCMC could not renovate or expand at its present location. We do not dispute that relocation of Hill-Burton facilities may not be a “necessary remedy” in all situations. MCMC presented a valid argument for relocation. MCMC is located on less than nine acres, was built in 1965 under the Hill-Burton program, and has not been renovated except for the addition of an emergency room. St. Dominic’s president, Claude Harbarger, acknowledged the need for replacement or, at the very least, a substantial renovation of MCMC’s facility. The hearing officer found that it would be “highly impractical to demolish MCMC and build a new state-of-the-art hospital on the eight to nine (8-9) acres of available land.” The hearing officer had substantial evidence to justify his ruling. During the time of construction, patients in the Madison County area would be left without a nearby hospital. Given that the hospital would be effectively closed, physicians may choose to move their practices to facilities elsewhere during the renovation. In his own testimony, Harbarger stated that if there was going to be one hospital in Madison County, the Nissan Parkway was an “appropriate” location. The hearing officer found that Harbarger’s testimony further illustrated the appropriateness of the location.

¶ 17. Fourth, St. Dominic argues that Pittman acknowledged that Madison HMA did not consider renovation or replacement of MCMC at the current location. It argues that specific criterion l.a. of the State Health Plan requires that the applicant show a “need” for replacement and that no need exists because renovation can be done at the current location. St. Dominic argues that the current Canton facility could be renovated for less than half of the cost of the proposed project. One basis for this argument is an architectural and engineering study done in 2002 which estimated the cost of renovation to be between $15 and $20 million-less than half of the cost of the current proposed replacement. We find no basis for reliance on this study. Even St. Dominic apparently did not rely on this study since its own estimate of renovation cost for MCMC was over $32, million. The study St. Dominic refers to was based on renovating MCMC into a twenty-two bed critical access hospital. Neil Booth, an electrical engineer with eight years experience in the health care industry, assisted in drafting the 2002 study. At the CON application hearing, Booth denied that the 2002 report addressed the entire facility. He stated, “We’ve not written a report that analyzes what it would take or cost to take care of the entire facility. We’ve never been asked to do that.” We find that the hearing officer correctly chose not to rely on this study but rather to based his decision on the evidence as a whole.

¶ 18. As to the allegation that Madison HMA did not consider renovation, Madison HMA presented several reason why renovation was not practical. For example, renovation would be limited because of land constraints. St. Dominie acknowledges this argument but asserts that it is not valid because the land around the current facility is owned by Madison County and HMA should have approached the county about acquiring the land. We find no authority for St. Dominic’s argument that Madison HMA had a duty to first attempt to purchase adjacent land. Joseph Weaver, Chief Executive Officer of MCMC, testified that the adjacent land was not available, and the hearing officer chose to accept his testimony. Regardless, a large nursing home is located behind MCMC’s present facility, and, even if it could purchase the county owned land, it would own basically two lots separated by the nursing home. Further, renovating does not solve the problem of the current facility being in a poor location. The hearing officer noted that “[p]art of St. Dominic’s opposition to HMA building a hospital on the Nissan Parkway appears to be based on St. Dominic’s belief that St. Dominic possessed a CON for constructing a brand new hospital at St. Catherine’s Village.” While St. Dominic’s CON for this hospital was initially granted, the Hinds County Chancery Court overturned the grant of the CON and the supreme court affirmed. St. Dominic-Madison County Med. Ctr. v. Madison County Med. Ctr., 928 So.2d 822 (Miss.2006). Previously denied CON applications made by St. Dominic are irrelevant to whether or not Madison HMA’s CON was properly granted.

¶ 19. To continue with St. Dominic’s fourth alleged problem — that renovation was not considered as an option — we find that Madison HMA presented ample evidence that the current facility is too outdated to be brought up to current standards. St. Dominic asserts that none of HMA’s witnesses had any construction, architectural, or engineering expertise nor could testify that significant savings would not result from renovation of the present location. Having read the transcript of the hearing proceedings, we cannot agree that witnesses for MCMC were not experts in their fields. Several witnesses’ qualifications have already been discussed, and this Court takes no issue with their qualifications. For example, Noel Falls testified that he had been in the health care industry for thirty-three years and had been in private practice doing market research and regulatory assistance for twenty-five years. Falls also testified that he had written over 500 CON applications and had testified over 250 times as an expert in the areas of health planning, health market research, and the CON process. In his testimony, Falls stated that when MCMC was built the focus was on inpatient procedures. Seventy to .eighty percent of surgeries in modern hospitals are outpatient, and according to Falls’s testimony “one of the limitations now with the current facility is it has essentially no space to stage outpatient care.” Harbar-ger confirmed this change in his testimony that there had been a shift between inpatient and outpatient services, and St. Dominic has made changes to accommodate its patients by recently constructing a new outpatient center.

¶20. Dale Carr, previous department division director of fire safety in construction at the Department, was in charge of ensuring compliance with all codes and standards for renovations and construction of healthcare facilities, including the State Minimum Standards of Operation of Hospitals in Mississippi. He testified that these minimum standards were not in effect forty years ago when MCMC was built. The only reason MCMC is in-compliance with state regulations is because it was grandfathered in. If MCMC were to undertake a major renovation at its current facility, then it would have to comply with the minimum standards, the ADA, the Health Insurance Portability and Accountability Act (HIPAA), and all other current applicable standards. The reason for these regulations should also be given weight: the regulations are in place to provide quality healthcare in a safe environment. Further, Carr testified that it would be a “nightmare to go under a Joint Commission review” for accreditation..by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO).

¶ 21. Jackie McGowan, vice-president of facilities, management, and planning at River Oaks Health Systems and construction project coordinator for HMA, testified that it would not be practical to build on the current site for many reasons. For example, he testified that the limited space at MCMC’s current- facility would cause problems with parking, the hospital would have to be planned around access roads which are required for the nursing home behind the facility, construction would have to be done around a main electrical transition line that runs to a substation at the edge of the property, and water lines would have to be replaced to ensure proper water pressure to a larger facility. McGowan further testified that bringing the current facility up to code with a renovation would be difficult. He stated that “if you’re going to expend a large amount of money into an existing facility, it would be — it would just be easier to build a new one, and start there.” McGowan, as well as other witnesses, testified that the current patient rooms are too small and the only way to expand them would be to tear down the outer walls which are needed for structural support. -Even if the outer walls were left in place and one and a half old rooms were to be combined into one, the structural support columns are aligned in such a manner that combining rooms would leave the columns inside the patients’ rooms.

Conclusion

¶ 22. We find, even in light of the “problems” pointed out by St. Dominic, the Department’s decision was based on substantial evidence. We agree with the chancellor that at the hearing and in its application Madison HMA sufficiently demonstrated the deficiencies in its current location and its reasons for needing a new facility. In addition to demonstrating the current hospital’s deficiencies discussed in this opinion, as well as countless others brought out at the hearing but not discussed herein, Madison HMA provided evidence of its long-term plans and the recommendations of consulting firms regarding the appropriateness of the relocation.

¶ 23. The issues discussed in this opinion represent only a fraction of the reasons given at the hearing why replacement would be a better option than renovation. For example, some of the deficiencies not discussed in this opinion but that were brought out at the hearing include space constraints in the waiting area, ineffective ambulance entrance, inability to accommodate necessary equipment in the operating rooms, undersized patient rooms, shared patient showers, undersized trauma room, water damage, a lack of sprinklers, and the possible existence of asbestos. We find that the Department’s decision that the current location has exceeded its useful life is not against the manifest weight of the evidence nor was its decision that relocation was appropriate arbitrary or capricious.

¶ 24. We find that the Department and the hearing officer had an. overwhelming amount of evidence to find that renovation was not practical. St. Dominic’s failure to produce any substantial evidence supporting its opposition, to the CON application further supports the finding that Madison HMA’s project should be approved.

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

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