author: CHANDLER, J.,

text:
    Jeffer R. CLAYTON a/k/a Jeffrey Ray Clayton, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-02210-COA.
    Court of Appeals of Mississippi.
    June 20, 2006.
    Rehearing Denied Oct. 24, 2006.
    Certiorari Denied Jan. 11, 2007.

      Lisa D. Collums, Gulfport, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for áppellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. A Harrison County jury found Jef-fer R. Clayton guilty of armed robbery. The Circuit Court of Harrison County sentenced Clayton to fifteen years in the custody of the Mississippi Department of Corrections as a habitual offender. Clayton appeals, arguing that (1) the trial court erred by denying his motion for a speedy trial; (2) his trial counsel was ineffective for failing to re-assert the speedy trial issue; (3) the trial court erred by denying Clayton’s motion for a JNOV; and (4) the cumulative effect of the errors necessitates reversal. In a pro se supplemental brief, Clayton asserts several other grounds for his ineffective assistance of counsel claim and also argues that he was entitled to a jury instruction on impeachment.

¶2. We find no error and affirm Clayton’s conviction and sentence.

FACTS

¶ 3. Clayton had a savings account at Hancock Bank. As of June 12, 2001, the account had a zero balance. At approximately 9:30 a.m. on June 14, 2001, Clayton entered the Highway 49 branch of Hancock Bank in Gulfport. He waited in line for the next available teller. Khiedrae DeLoach asked if she could help Clayton, who walked to Deloach’s teller window and asked to make a withdrawal from his savings account. Deloach requested identification.

¶ 4. Deloach testified that, at this point, Clayton ordered her to give him money from her drawer and stated that he had a nine millimeter gun. Clayton also pulled up his shirttail and revealed the butt of a gun protruding from his pocket. Frightened, Deloach began collecting money from the drawer. Clayton told her to put it in an envelope. Deloach complied and gave Clayton some money in a white envelope with “Hancock Bank” printed on it. Clayton told Deloach that, if she told anyone about the robbery, he would kill her. Then, Clayton left the bank. Immediately, Deloach informed another teller that she had been robbed. Several bank employees rushed to the window and observed Clayton exiting the parking lot in a black Kia Sportage vehicle.

¶ 5. A bank employee called the police and described the getaway car. Several minutes later, Officers Matt Dailey and Anthony Stewart of the Gulfport Police Department observed a black Kia Spor-tage vehicle stopped at a red light on Highway 49. The officers stopped the vehicle and ordered its four occupants, including Clayton, to exit the vehicle and lie down on the ground. During this process, Officer Stewart observed an envelope with money in it protruding from Clayton’s pants pocket. When Officer Dailey directed Clayton to stand, the envelope fell out of Clayton’s pocket. Officer Dailey secured the envelope. Clayton told Officer Dailey that he had gone into the bank and told the teller that he wanted some money. He also said that the other people in the car were not involved and had not known what was going on.

¶ 6. Police discovered that the envelope taken from Clayton contained $1,510 in cash. The envelope was white with “Hancock Bank” printed on it. Later, bank employees discovered that $1,510 in cash was missing from Deloach’s drawer. No gun was recovered despite searches of Clayton’s person, the Kia Sportage, and the interior of the bank.

¶ 7. Clayton’s version of events differed from that of Deloach. Clayton testified that he had visited the bank in order to make a $1,510 withdrawal from his savings account. Clayton stated that, when De-loach requested identification, he gave her his Social Security number. Then, De-loach counted out $1,510 in cash. She gave it to Clayton in an envelope and he left the bank. Clayton denied that he had brought a gun to the bank or robbed the bank. In closing arguments, Clayton’s counsel argued that Deloach had mistakenly given Clayton the $1,510 without first checking his account balance. Counsel argued that Deloach had lied about the robbery to conceal her mistake.

¶ 8. The jury found Clayton guilty of armed robbery.

LAW AND ANALYSIS

I. WHETHER CLAYTON WAS DENIED HIS RIGHT TO A SPEEDY TRIAL AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND BY ARTICLE 3, SECTION 26 OF THE MISSISSIPPI CONSTITUTION.

¶ 9. Clayton’s trial occurred on May 6 and 7, 2003. On May 1, 2002, Clayton filed a pro se motion to dismiss the ease for lack of a speedy trial or, in the alternative, to be tried immediately. Clayton’s counsel brought the motion forward for hearing on October 22, 2002, arguing that Clayton had been denied his constitutional right to a speedy trial and that the case should be dismissed. Following is a chronology of the events, leading up to the speedy trial hearing:

May 2001 — Clayton, serving a prison sentence for uttering a forgery, was released on earned release supervision.
June 14, 2001 — Clayton was arrested for the armed robbery.
June 15, 2001-Due to Clayton’s arrest, his earned release supervision was administratively revoked and he was sent back to Parchman to serve the duration of his sentence.
September 15, 2001 — A detainer was placed in Clayton’s file concerning the pending armed robbery charge.
November 28, 2001 — Clayton’s file was transferred to the district attorney’s office.
February 18, 2002 — Clayton was indicted for armed robbery.
June 14, 2002 — Clayton’s counsel filed an entry of appearance. Counsel stated that he was appointed in May 2002.
August 3, 2002 — Order entered for Clayton to be transferred to the Harrison County Jail for arraignment on August 19, 2002 and trial on November 12, 2002. The prosecutor stated that the arraignment was originally set for July 1, 2002, but that the date was changed to August 19, 2002 per agreement with Clayton’s counsel so that Clayton would not have to be transferred twice.

¶ 10. At the hearing, Clayton argued that his right to a speedy trial had been violated because he suffered actual prejudice from the delay in bringing him to trial. Specifically, he argued that the delay had hampered his defense by preventing defense counsel from locating alibi witnesses. He also contended that the detainer had negatively affected his conditions of incarceration by depriving him of opportunities for good time, trusty status, and to be transferred to a private facility. The trial court denied the motion. On appeal, Clayton argues that his right to a speedy trial was violated and the court should have dismissed the armed robbery charge.

¶ 11. The Sixth Amendment of the United States Constitution guarantees the right to a speedy trial, which is a fundamental right. State v. Woodall, 801 So.2d 678, 681(¶ 8) (Miss.2001). The speedy trial right attaches when the defendant is accused, that is, “at the time of a formal indictment or information or else the actual restraints imposed by arrest and holding to a criminal charge.” Bailey v. State, 463 So.2d 1059, 1062 (Miss.1985) (quoting Perry v. State, 419 So.2d 194, 198 (Miss.1982)). In assessing the merits of a speedy trial claim, this Court employs the four-factor balancing test from Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The factors to be considered are: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant has asserted his right to a speedy trial; and (4) whether the defendant was prejudiced by the delay. Manix v. State, 895 So.2d 167, 175-76(¶ 16) (Miss. 2005). No one factor is dispositive, and the totality of the circumstances must be considered in determining whether the speedy trial right has been violated. Jefferson v. State, 818 So.2d 1099, 1106(¶ 11) (Miss.2002). On review of the denial of a motion to dismiss for lack of a speedy trial, “[tjhis Court will uphold the trial court’s findings ... where supported by ‘substantial, credible evidence; [but] if no probative evidence supports the trial court’s finding[s] ..., this Court will ordinarily reverse.’ ” Woodall, 801 So.2d at 681 (¶ 7) (quoting Ross v. State, 605 So.2d 17, 21 (Miss.1992)). We will reverse only if the trial court’s findings were clearly erroneous. Id.

A.Length of delay

¶ 12. Any delay of over eight months is presumptively prejudicial and triggers the balancing of the other three Barker factors. Woodall, 801 So.2d at 682(¶ 12). However, the existence of the presumption, without more, cannot serve as the basis for dismissal of the charge against the defendant. Id. Clayton was apprehended on June 14, 2001 for the armed robbery, and a detainer was placed in his file on September 15, 2001. At the time of the speedy trial hearing, his trial was scheduled for November 12, 2002.

¶ 13. The lodging of a detainer against a person otherwise in custody suffices to make the prisoner an accused. Bailey, 463 So.2d at 1062. The delay of over • fourteen months between the placement of the detainer and Clayton’s trial date was presumptively prejudicial, and the trial court correctly conducted a balancing of the other three Barker factors.

B. Reason for delay

¶ 14. The prosecutor explained that there were several reasons for the delay. The police investigation was delayed when the investigating detective left the police force and two other officers took over the investigation. Due to this delay, the investigating officer did not transfer Clayton’s file to the district attorney’s office until November 28, 2001. The district attorney’s office presented the case to the grand jury as soon as was possible given the office’s caseload. Clayton’s case was set for trial on November 12, 2002. The trial court opined that the pre-trial delay in this case was typical for the district due to docket congestion. The court did not clarify whether the reason for the delay was neutral or was charged against Clayton or against the State.

¶ 15. The evidence of the reason for the delay indicates that the State did nothing to purposely delay Clayton’s trial. Rather, the delay was caused by the police department’s personnel change, by the district attorney’s heavy caseload, and by docket congestion. Negligence causing delay weighs slightly against the State. Perry v. State, 637 So.2d 871, 875 (Miss. 1994). And, delay due to docket congestion may be weighed against the State, but not heavily. Adams v. State, 583 So.2d 165, 169 (Miss.1991). Accordingly, the docket congestion and any negligence on the part of the State that contributed to the delay in bringing Clayton to trial weighs slightly against the State. We find that the reason for the delay weighed slightly against the State.

C. Defendant’s assertion of the speedy trial right

¶ 16. While the State bears the burden to bring the defendant to trial, the defendant has some responsibility to assert the speedy trial right. Wiley v. State, 582 So.2d 1008, 1012 (Miss.1991). Almost one year after his arrest, Clayton filed a motion to dismiss for lack of a speedy trial, or in the alternative, to be tried immediately. Our supreme court has held that the defendant’s demand for dismissal or for an instant trial is insufficient to assert the speedy trial right. Perry v. State, 637 So.2d 871, 875 (Miss.1994). Consequently, this factor weighs against Clayton. Id.

D. Prejudice

¶ 17. The length of the delay in this case was presumptively prejudicial to Clayton. As recognized by the trial court, while Clayton made allegations of actual prejudice, there was no evidence that any actual prejudice resulted from the delay. There was no evidence, to support Clayton’s claim of lost witnesses or to support his claim that the delay negatively affected the conditions of his confinement under his previous sentence. This Court “will not infer prejudice to the defense out of the ‘clear blue’ ” and has “remained reluctant to uphold dismissal of charges on speedy trial grounds where the defendant suffered no actual prejudice.” State v. Magnusen, 646 So.2d 1275, 1285 (Miss.1994); Woodall, 801 So.2d at 685(¶ 24). We find that the prejudice factor weighed against Clayton.

E. Conclusion

¶ 18. It is apparent that Clayton suffered presumptively prejudicial delay caused by a personnel change in the police department, by the district attorney’s heavy caseload, and by docket congestion. Clayton did not assert his speedy trial right or show that he incurred any actual prejudice from the delay. Considering the totality of the circumstances, we find that the trial court’s conclusion that Clayton’s right to a speedy trial was not violated was supported by substantial evidence and was not clearly erroneous.

¶ 19. When Clayton obtained a ruling on the speedy trial issue from the trial court, his trial was scheduled for November 12, 2002. Therefore, our review of the trial court’s decision has focused on the delay between the placement of the detain-er and Clayton’s November 12, 2002 trial setting. However, after the trial court denied Clayton’s motion to dismiss, there was an approximate six month delay until Clayton’s trial. The docket sheet reflects that the trial court entered three orders for a continuance during the period between November 12, 2002 and May 6, 2003. Other than the docket sheet, no evidence concerning the delay appears in the record. While Clayton complains of this additional delay on appeal, he did not raise the issue in. the trial court; therefore, this issue is barred from appellate review. Sanders v. State, 678 So.2d 663, 670 (Miss. 1996).

II. WHETHER CLAYTON WAS ENTITLED TO A JURY INSTRUCTION ON IMPEACHMENT OF DE-LOACH’S TESTIMONY.

¶ 20. Clayton argues that a statement which Deloach made to the police five days after the robbery was inconsistent with her trial testimony. In the statement, Deloach averred that Clayton had said he had a nine millimeter gun in his pocket and that he lifted his shirt and revealed “something but [Deloach] did not know what it was.” At the trial, Deloach testified that she had seen the butt of a gun protruding from Clayton’s pocket and that she had known it was a gun from her prior experience with guns. Clayton, pro se, argues that he was entitled to an “impeachment” jury instruction to the effect that Deloach’s prior inconsistent statement to the police could discredit her trial testimony that she had seen a gun.

¶ 21. A party preserves error in the denial of a jury instruction by tendering the instruction to the trial court, suggesting the instruction is correct, and requesting that the court submit the instruction to the jury. Carmichael v. Agur Realty Co., Inc., 574 So.2d 603, 613 (Miss.1990). Clayton never requested an impeachment instruction. Thus, he did not obtain a ruling on the instruction from the trial court and did not preserve this issue for appellate review.

III. WHETHER CLAYTON RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 22. Clayton, with new appellate counsel, argues that his trial counsel’s performance was constitutionally deficient for failure to reassert his right to a speedy trial when his November 12, 2002 trial setting was rescheduled. Clayton raises additional pro se arguments that his counsel was ineffective for failing to secure an impeachment jury instruction, to secure a hearing on the admissibility of his confession, to object to the prosecutor’s closing arguments concerning his prior convictions, and to secure a fair and impartial jury. Clayton argues that he is entitled to a new trial with competent counsel.

¶ 23. It is unusual for this Court to reach the merits of an ineffective assistance of counsel claim on direct appeal. Wilcher v. State, 863 So.2d 776, 825 (¶ 171) (Miss.2003) (quoting Edwards v. State, 797 So.2d 1049, 1060(¶30) (Miss.Ct. App.2001)). The case of Read v. State, 430 So.2d 832, 841 (Miss.1983), established that a defendant may raise the issue of ineffective assistance of counsel on direct appeal, but this Court may determine the merits of the claim only when “(a) ... the record affirmatively shows ineffectiveness of constitutional dimensions, or (b) the parties stipulate that the record is adequate and the Court determines that findings of fact by the trial judge able to consider the demeanor of witnesses, etc. are not needed.” A conclusion that the record affirmatively shows ineffectiveness of constitutional dimensions is equivalent to a finding that the trial court should have declared a mistrial or ordered a new trial sua sponte. Colenburg v. State, 735 So.2d 1099, 1102(¶8) (Miss.Ct.App.1999). If the record cannot support a claim of ineffective assistance of counsel on direct appeal and the ca.se is otherwise affirmed, then the appropriate resolution is to deny relief without prejudice to the defendant’s right to raise the issue via appropriate post-conviction proceedings. Read, 430 So.2d at 841.

¶ 24. In the instant case, the parties have not stipulated to the adequacy of the record. We proceed to determine if the record “affirmatively shows ineffectiveness of constitutional dimensions.” This Court applies the two-prong test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in reviewing claims of ineffective assistance of counsel. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under the first prong of the Strickland test, the defendant must demonstrate that his counsel’s performance was deficient; under the second prong, the defendant must show that the deficiency prejudiced the defense of the case. Foster v. State, 687 So.2d 1124, 1129 (Miss.1996). There is a strong but rebut-table presumption that counsel’s performance fell within the wide range of reasonable professional assistance. Leatherwood v. State, 473 So.2d 964, 969 (Miss.1985). The presumption may be rebutted with a showing that, but for counsel’s deficient performance, a different result would have occurred. Id. at 968. To constitute ineffective assistance, counsel’s errors must have been so serious that they deprived the defendant of a fair trial, one whose result was reliable. Foster, 687 So.2d at 1129.

¶ 25. Our review of the record reveals no ineffectiveness of constitutional dimensions. There is no evidence that counsel was deficient in failing to reassert a speedy trial violation when Clayton’s trial was rescheduled from November 12, 2002 to May 6, 2003. As previously discussed, the record contains no information about this delay that would enable this Court to ascertain whether the delay violated Clayton’s speedy trial right and whether counsel’s failure to reassert a violation was prejudicial.

¶ 26. Clayton also complains that his counsel was deficient in failing to secure a jury instruction on the impeachment of Deloach’s testimony, to secure a hearing on the admissibility of his statement to Officer Dailey, to object during closing arguments, and to secure a fair and impartial jury because one juror worked for Hancock Bank. On this record, counsel’s decisions appear to be within the ambit of reasonable trial strategy that did not deprive Clayton of a fair trial. There is no indication that Clayton’s statement to Officer Dailey should have been excluded from evidence or that, given the other the evidence against Clayton, the exclusion of the statement would have been outcome-determinative. Nor is there any indication that the result .of Clayton’s trial would have been different had counsel requested that a jury instruction on impeachment be given in addition to the general weight and credibility instruction given by the trial court. See Swann v. State, 806 So.2d 1111, 1117(¶ 24) (Miss.2002). And, counsel’s failure to object during closing arguments is presumed to be strategic. Wiley v. State, 517 So.2d 1373, 1380 (Miss.1987). Finally, there is no showing that defense counsel was deficient for failing to use a peremptory strike on the Hancock Bank employee; counsel exhausted all of his peremptory strikes on other jurors. See Le v. State, 913 So.2d 913, 953 (¶ 148) (Miss.2005). Therefore, we deny relief on this issue without prejudice to Clayton’s right to raise it in appropriate post-conviction proceedings.

IV. WHETHER THE TRIAL COURT ERRED BY DENYING CLAYTON’S MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT.

¶ 27. Clayton filed a motion for a JNOV challenging the sufficiency of the evidence. The motion was denied by the trial court. In reviewing the denial of motion for a JNOV, this Court views the evidence in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 843(¶ 16). (Miss.2005). We will affirm if any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. And, “[mjatters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury.” Harveston v. State, 493 So.2d 365, 370 (Miss.1986).

¶ 28. To constitute armed robbery, the defendant must have (1) feloniously taken or attempted to take another’s personal property; (2) from the person or from the presence; (3) against the person’s will; (4) by violence to his person, or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon. Miss. Code Ann. § 97-3-79 (Rev. 2000). Clayton argues that the evidence was insufficient to establish that he exhibited a deadly weapon during the robbery. He points out that Deloach’s testimony was the sole evidence that he had ’á gun, that no gun was recovered though he was detained by police only minutes after the robbery occurred, and that no gun was visible on the videotape of the robbery. Clayton argues that, due to the conflict between Deloach’s statement to police and her trial testimony, Deloach’s testimony was incredible and legally insufficient to establish that he exhibited a gun.

¶ 29. The facts in this case bear similarity to those in Collins v. State, 817 So.2d 644, 658 (¶¶ 44-46) (Miss.Ct.App.2002). In Collins, the two defendants were found guilty of armed robbing a bank. Id. at 649(¶ 6). Though several persons witnessed the robbery, only one eyewitness, a bank teller, stated that she “was almost certain” she had seen one robber with a gun. Id. at 658(¶ 44). At one point, the teller stated that she had been only “ ‘pretty sure there was a gun.’ ” Id. The videotape of the robbery did not show that the robber had a gun, and no gun was recovered during the police investigation. Id. This Court found that the teller’s testimony was sufficient to establish the element of exhibition of a deadly weapon because “a guilty verdict may be based on the uncorroborated testimony of a single witness.” Id. at (¶ 46).

¶ 30. Deloach was an eyewitness to the robbery. As in Collins, the jury was entitled to weigh the credibility of Deloach’s testimony that Clayton exhibited a gun. We find that a reasonable jury could have found from Deloach’s testimony that Clayton exhibited a deadly weapon during the robbery. Though Clayton does not challenge the proof of the other elements of armed robbery, we find that the evidence supporting these elements was sufficient to enable a reasonable jury to return a guilty verdict.

V. WHETHER THE CUMULATIVE ERRORS MANDATE THE REVERSAL OF CLAYTON’S CONVICTION.

¶ 31. Clayton argues that this Court should find that' the individual errors that occurred in this case, when considered in combination, amount to reversible error. Indeed, this Court possesses discretion to determine whether errors found harmless in themselves, “when considered cumulatively[,] require reversal because of the resulting cumulative prejudicial effect.” Glasper v. State, 914 So.2d 708, 729(¶ 46) (Miss.2005) (quoting Byrom v. State, 863 So.2d 836, 847(¶13) (Miss. 2003)). A predicate to the application of cumulative error analysis is our finding that error occurred in the proceedings below. Id. We have found that no error occurred in Clayton’s trial. Therefore, there was no cumulative error.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


source: Caselaw Access Project

author: SOUTHWICK, J.,

license: Public Domain

text:
    PINEY WOODS COUNTRY LIFE SCHOOL, Legion Insurance Company (In Liquidation) and Mississippi Insurance Guaranty Association (as Successor in Interest), Appellants/Cross-Appellees v. Judy Ann YOUNG, Appellee/Cross-Appellant.
    No. 2005-WC-01839-COA.
    Court of Appeals of Mississippi.
    Aug. 8, 2006.
    Rehearing Denied Oct. 24, 2006.
    Certiorari Denied Jan. 4, 2007.

      Robert Lee Grant, attorney for appellant.
    John Hunter Stevens, attorney for ap-pellee.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. Judy Ann Young was awarded workers’ compensation benefits due to an injury sustained while employed at Piney Woods School. Piney Woods appeals the determination of Young’s earning capacity and Young cross-appeals the determination of average weekly wage. We conclude that the entire earnings that the claimant was receiving from her sole employer, though earned in two different positions at Piney Woods, are to be considered in determining her average wages. We reverse and remand on that issue but affirm in all other respects.

FACTS

¶2. Piney Woods maintained workers’ compensation insurance through Legion Insurance Company, which is currently in liquidation. Mississippi Insurance Guaranty Association is party to this suit as Legion’s successor-in interest. Young was employed at Piney Woods School full-time as an assistant director and teacher. Young also worked as a part-time house parent when situations arose requiring her to do so. On January 16, 2002, Young sustained • a work-related injury in the course of her full-time employment position at Piney Woods School. Young reached maximum medical improvement on October 7, 2002.

¶ 3. The Workers’ Compensation Commission calculated Young’s average weekly wage as only her salary for the full-time position. Interpreting court precedents, the Commission determined that it could not include her earnings as a part-time house parent. The Commission also examined various other employment opportunities for Young and determined that her present wage-earning capacity, despite having a college degree, was as a cook. On the first level appeal, the Rankin County Circuit Court affirmed the decision of the Commission.

DISCUSSION

ISSUE 1: Calculating Loss of Earning Capacity

¶ 4. Piney Woods argues that its vocational expert’s testimony was disregarded that Young could be earning much more than her current wages as a cook. The employer also argues that the Commission erred in finding that Young’s post-injury wages as a part-time cook were indicative of her current wage-earning capacity in her usual occupation as teacher and day care director.

¶ 5. We review a decision of the Workers’ Compensation Commission as we do those from other agencies, through an evaluation of whether substantial evidence supports the decision, whether it is arbitrary or capricious in result, whether it-is beyond the power of the Commission, and whether it violated statutory or constitutional rights. URCCC 5.03. A decision is supported by substantial evidence if the order is not “clearly erroneous and contrary to the overwhelming weight of the evidence.” Id. The injury to Young’s back is not a scheduled injury. Compensation for a non-scheduled injury is measured by loss of wage-earning capacity. Georgia Pacific Corp. v. Taplin, 586 So.2d 823, 828 (Miss.1991). Loss of wage-earning capacity takes into account training, education, inability to work, not being hired by other employers, continuance of pain, and other related circumstances, and the decision should be made only after the evidence is considered as a whole. DeLaughter v. South Cent. Tractor Parts, 642 So.2d 375, 379 (Miss.1994)-.

¶ 6. Young had surgery in April 2002 and was released to work with permanent restrictions in July 2002. She reported for work at Piney Woods upon being released, but she was notified that her position had been terminated. Young applied for the pre-school director' position but was not hired. She was never contacted about other positions at Piney Woods. Young did not receive any employment offers from her initial job search and contacted most of the employers suggested by the vocational expert whom Piney Woods’ hired.

¶ 7. Young received a bachelor’s degree in education from Jackson State University but is not certified as a teacher. She has twice failed a teacher certification test. Young is currently employed as a part-time cook, working around nine hours per week at $9.00 per hour with an employer that accommodates her restrictions. Even with this accommodation, Young suffers back pain from standing. She takes medication for back pain and cannot perform basic housework. Young is of the opinion that she is unable to perform any job she held prior to her injury as an assistant manager or other positions that involve stooping, lifting, and standing for long periods of time. Piney Woods’ vocational expert assisted Young with seeking employment and recommended jobs paying between $5.15 per hour to $30,000 per year. Young was not qualified for some of the recommended positions and applied to most of the jobs for which she felt qualified.

¶ 8. Young had been paid $26,368 annually for her full-time position at Piney Woods, which is a weekly wage of about $507. The Commission held that Young was unable to earn more than $241 per week and sustained a loss of wage-earning capacity of $265.88 per week. She was awarded permanent partial disability benefits of $177.25 per week for a maximum of 450 weeks.

¶ 9. The administrative judge, affirmed by the Commission, noted that Piney Woods’ vocational expert’s opinion sustained that Young could earn from $206 to $480 per week. The post-injury earning capacity finding of $241 is consistent with the testimony of Piney Woods’ own expert.

¶ 10. Wé find substantial evidence to support the existence of permanent injury, the level of disability that it caused, and the calculation of earning capacity.

ISSUE 2: Calculation of Average Weekly Wage

¶ 11. Young argues that her former earnings as a part-time employee at Piney Woods should have been included in calculating average weekly wage.

¶ 12. An average weekly wage prior to injury creates the basis to determine compensation for an injured worker. Miss. Code Ann. § 71-3-31 (Rev.2000). This wage calculation is “determined from the earnings of the injured employee 'in the employment in which he was working at the time of the injury_” Id. The Commission adopted the administrative judge’s opinion that the Mississippi Supreme Court has interpreted the word “employment” to refer to a specific job. See Sullivan v. City of Okolona, 370 So.2d 921 (Miss.1979). The Court has cited Sullivan in affirming a decision to limit compensation to what a claimant earned “in the job in which he was working at the time of his injury.” Tripp v. Orkin Amusement Inc., 437 So.2d 1013, 1013 (Miss.1983). No facts are stated in the Tripp opinion. Id. We examine Sullivan closely to determine the significance of its language.

¶ 13. A claimant was injured in the course of employment as a volunteer fireman. Sullivan, 370 So.2d at 924. The claimant was not allowed to calculate wages based upon the compensation a permanent fireman would have been receiving because he had been employed only as a volunteer fireman. Id. The claimant was also prohibited from including wages from the claimant’s regular employment at another company as a presser, since he was not injured while working for that employer. Id. We interpret the decision as prohibiting the inclusion of wages from a separate employer or from jobs not even held in calculating average weekly wage.

¶ 14. The situation in the present case is far removed from Sullivan. Young received wages from the same employer for two different positions. She was effectively employed in both positions, one full-time and the other only as-needed. She was injured while working at the full-time position, and the resulting disability bars her from working in either position. The Commission noted that the present situation could also be distinguished from Sullivan because insurance premiums were probably paid on the actual compensation Young received. There is no explicit statutory language or prior caselaw concerning joining the wages earned from the same employer in different job positions in calculating average weekly wage.

¶ 15. Other jurisdictions have faced this issue. Statutory variations may explain some results, and care must be used in examining other states’ workers’ compensation law. Methods used for calculating average weekly wage in situations where a claimant had multiple employments vary in terminology and in substance. See 5 Lar-SONS, WORKERS’ COMPENSATION LAW, § 93.03[l][a] (2004). Some jurisdictions, including Louisiana, Virginia, and Arkansas, include all earnings from the same employer when calculating a claimant’s wage'basis and do not examine whether the work in the different positions was similar. Id. at § 93.03D[l][a] (collecting cases). At least one jurisdiction has reasoned that earnings for concurrent work for the same employer should be included in wage basis calculation because the liabib ity risk has already been assumed by the sole employer, and is not out of proportion to the industry risk or payroll of that employer. Dinwiddie County School Bd. v. Cole, 258 Va. 430, 520 S.E.2d 650, 652-53 (1999).

¶ 16. The earnings from the same employer in a full-time and in an as-needed position are both paid while the claimant is “in the employment” of the insured employer. Miss.Code Ann. § 71-3-31. In this situation, where a claimant has worked for an employer for fifty-two consecutive weeks prior to injury, and works for this employer in more than one position, the Commission has the means to calculate the wages earned by the claimant from the same employer.

¶ 17. We find nothing in statute or precedent to prevent the inclusion of all wages from the same employer in determining average weekly wage for an injured employer. Whether the other position in which a claimant was not engaged at the moment of injury was one in which the claimant should be considered as being contemporaneously employed needs to be determined as a matter of fact. We are only holding that such other position that actually was simultaneously held with the same employer should be considered in the calculation of average weekly wage. Among the problems with the conclusion reached by the Commission is that if an employee is injured while working in the lesser-paying, part-time position, the benefits received would be dramatically less than if the same injury occurs in the higher-paying, full-time position. Such arbitrariness in result serves no purpose under the workers’ compensation scheme.

¶ 18. The Commission has statutory discretion in determining average weekly wage when the fifty-two week period of employment preceding injury is distorted. Miss.Code Ann. § 71-3-31. The Commission can apply this discretion in determining the amount of additional earnings to account for when calculating average weekly wáge. The objective of the Commission is to produce “results just and fair.” Id. The Supreme Court has explained that these results must be “an honest approximation of [the] claimant’s probable future earning capacity.” Wilson v. Service Broadcasters, Inc. (WDAM), 483 So.2d 1339, 1343 (Miss.1986) (quoting LaRson, Law of WORKMEN’S Compensation § 60.11(d), 10-557 (1985)).

¶ 19. The Commission may take into account other factors as well. In Sullivan, the Supreme Court assumed that insurance premiums were paid based upon the amount of compensation paid to an employee. Sullivan, 370 So.2d at 924. Whether Piney Woods paid premiums on the wages Young earned could also be a consideration in determining Young’s average weekly wage. The combined total of these wages should reflect the earnings from the same employer for the fifty-two week period prior to injury and are subject to the statutory. Miss.Code Ann. § 71-3-31.

¶ 20. The determination of Young’s average weekly wage is reversed and the issue is remanded to the Commission for a determination in accordance with this opinion.

¶ 21. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS AFFIRMED ON DIRECT APPEAL AND IS REVERSED AND REMANDED ON CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANTS/CROSS-APPELLEES AND ONE-HALF TO THE APPEL-LEE/CROSS-APPELLANT.

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


author: ROBERTS, J.,

text:
    Isaac JEWELL, II, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00811-COA.
    Court of Appeals of Mississippi.
    Sept. 26, 2006.
    Certiorari Denied Jan. 4, 2007.

      Isaac Jewell, II, appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

ROBERTS, J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. The Appellee’s motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted therefor.

¶ 2. In the Circuit Court of Lee County on November 17, 2003, Isaac Jewell, II pled guilty to the charge of possession of cocaine with intent to distribute. He was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections, with ten years suspended and five years of post-release supervision.

¶ 3. On January 31, 2004, Jewell filed a motion seeking post-conviction collateral relief, which was denied by the trial court on March 7, 2004. Jewell filed a notice of appeal on April 12, 2004, seeking review of the denial. He now appeals to this Court, arguing (1) ineffective assistance of counsel and (2) that his confession was inadmissible, the search and seizure was illegal and the guilty plea was involuntary.

¶ 4. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. “When reviewing a lower court’s decision to deny a petition for post-conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard is de novo.” Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

ANALYSIS

- ¶ 6. The State asserts that this Court lacks jurisdiction because Jewell’s notice of appeal was filed six days late. A notice of appeal must be filed in the trial court within thirty days of the entry of the order or judgment appealed. M.R.A.P. 4(a). All untimely filed appeals must be dismissed, unless in the interests of justice they should be granted. M.R.A.P. 2. Jewell argues that the “prison mailbox rule” applies; therefore, because he mailed the notice of appeal on March 29, 2004, as indicated in his certificate of service, the notice should be considered timely filed.

¶7. In Sykes v. State, 757 So.2d 997, 1000-1 (¶ 14) (Miss.2000), our supreme court adopted the prison mailbox rule as applies to post-conviction relief as follows:

[w]e hold that a pro se prisoner’s motion for post-conviction relief is delivered for filing under the UPCCRA and the Mississippi Rules of Civil Procedure when the prisoner delivers the papers to prison authorities for mailing. Prison authorities may initiate such procedures as are necessary to document reliably the date of such delivery, by means of a prison mail log of legal mail or other expeditious means. Henceforth, an inmate’s certifícate of service will not suffice as proof.

¶ 8. In Gaston v. State, 817 So.2d 613, 616 (¶ 13) (Miss.Ct.App.2002), this Court applied the mailbox rule to an appeal of the denial of a motion for post-conviction relief. The State is the movant in a request to dismiss for lack of timeliness and, therefore, bears the burden of proof. Id. at (¶ 6). Thus, although the record does not support Jewell’s assertion that the notice was delivered to prison officials within the thirty days, the State has failed to meet its burden of showing that the notice was not timely mailed.

¶ 9. Before moving to the merits of Jewell’s appeal, we take this opportunity to address the State’s argument on motion for rehearing and clarify the State’s burden when requesting this Court to dismiss Jewell’s appeal as an untimely appeal. While we do not wish to unduly burden the State, we reiterate that when seeking dismissal for an untimely appeal, the burden is on the State to prove that the prisoner has, indeed, failed to comply with Rule 4(a) of the Mississippi Rules of Appellate Procedure, taking into consideration the prison mail box rule. Sykes, 757 So.2d at (¶ 14). In accordance with Sykes, such proof must be in the form of a “prison mad log of legal mail,” or some similarly reliable documentation. A self-authenticating certificate from the records custodian pursuant to Mississippi Rules of Evidence 803(10), 902(4), or 902(11) may well suffice. That this burden rests with the State only makes sense. An individual appealing the denial of his post-conviction relief petition is, obviously, a prisoner. As a prisoner, his access to those documents required to excuse his procedural tardiness, as well as his financial resources necessary to acquire those documents, are severely limited. By contrast, the State, through its agency, the Mississippi Department of Corrections, already has possession of those documents that will prove or disprove the prisoner’s assertion that he mailed his appeal to the clerk timely. Given the delay that could occur from the time the prisoner delivers his notice of appeal for mailing to the appropriate prison official and the time said notice is actually filed by the trial court clerk, it is proper that the burden to show the appeal is untimely be on the State. After all, it is the State who seeks to dismiss the prisoner’s appeal for tardiness. We hold that in cases such as Jewell’s, where the appellant’s notice of appeal is filed by the clerk of the trial court within a reasonable time after the expiration of the thirty days allowed by Rule 4(a) of the Mississippi Rules of Appellate Procedure, a rebuttable presumption exists that the appellant’s appeal was timely filed, in accordance with the prison mailbox rule. Therefore, in such cases, if the State requests a dismissal for want of a timely appeal they must successfully rebut the presumption of timeliness with proof of its. absence in the forms discussed supra.

¶ 10. In the case sub judice, we consider the jurisdiction proper and now turn to the merits of Jewell’s appeal.

I. DID JEWELL RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL?

¶ 11. For a defendant to prevail on a claim that his conviction should be reversed due to ineffective assistance of counsel, he must prove that his counsel’s performance was deficient and that he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Defense counsel is presumed competent. Woodward v. State, 843 So.2d 1, 7 (¶ 14) (Miss.2003). “In order to overcome this presumption, the appellant must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Phinisee v. State, 864 So.2d 988, 990 (¶ 9) (Miss.Ct.App.2004). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Jewell must show that his guilty plea was the result of ineffective assistance of counsel, that those errors resulted in his pleading guilty, and that with effective counsel he would not have pled guilty but would have insisted on going to trial. Pleas v. State, 766 So.2d 41, 42 (¶ 7) (Miss.Ct.App.2000).

¶ 12. Jewell argues that his attorney provided deficient assistance because she failed to file a timely motion to suppress prior to his guilty plea. The State responds by arguing that this assertion was not presented to the trial court and is procedurally barred; however, a cursory review of the record indicates that the State is incorrect. Indeed, in his motion for post-conviction relief, Jewell dedicates six paragraphs to this claim.

¶ 13. As an addendum to his brief, Jewell includes a copy of his attorney’s motion to suppress the crack cocaine which was discovered at his girlfriend’s apartment. The motion was filed on November 17, 2003, the day Jewell entered ■ his guilty plea. Importantly, Jewell fails to substantiate his claim that the motion was filed in an untimely manner. The record does not indicate that the motion was untimely filed, and we decline to make an inferential leap that filing the motion earlier would have altered the outcome of' Jewell’s proceedings.

¶ 14. In exchange for his guilty plea, the State retired three charges to Jewell’s file including two counts of possession of marijuana with intent to distribute and two other unidentified charges. Additionally, Jewell received a sentence of ten years in a pending aggravated assault charge which would run concurrently with his sentence for possession. Jewell’s attorney worked with the State to reduce Jewell’s outstanding charges as a result of the plea bargain, and we cannot find that Jewell has sufficiently proven her. performance was deficient. This issue is without merit.

II. WAS JEWELL’S CONFESSION INVOLUNTARY, THE SEARCH AND SEIZURE ILLEGAL AND GUILTY PLEA INVOLUNTARY?

¶ 15. The defendant bears the burden of proving that a guilty plea was involuntary. Barnes v. State, 803 So.2d 1271, 1274 (¶ 10) (Miss.Ct.App.2002). If this burden is not met, the guilty plea must be upheld as knowing, intelligent and voluntary. Id. When properly entered and accepted, “a guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial and the right that the prosecution prove each element of the offense beyond a reasonable doubt.” Jefferson v. State, 556 So.2d 1016, 1019 (Miss. 1989) (footnotes omitted). . Under the rational of Jefferson, if Jewell’s guilty plea was voluntary, it would not be inappropriate to hold-that Jewell waived his right to challenge the admissibility of his confession, as well as evidence obtained in the search. See Young v. State, 859 So.2d 1025, 1028 (¶ 9) (Miss.Ct.App.2003).

¶ 16. “A plea is voluntary if the defendant knows what the elements are of the charge against him including an understanding of the charge and its relation to' him, what effect the plea will have, and what the possible sentence might be because of his plea.” Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991). During the plea hearing, the trial court thoroughly inquired into Jewell’s understanding of the charges and the possible sentences he faced and the effect of the plea bargain. Jewell indicated that he understood the nature of the charges as well as the sentences he faced. Jewell indicated that he understood the consequences of the plea, including that by pleading guilty he waived his right not to incriminate himself, the right to call and confront witnesses, the right to a trial by jury, and the right to have the State formally prove every element of the charge against him. “Solemn declarations in open court [by a defendant] carry a strong presumption of veracity.” Gardner v. State, 531 So.2d 805, 810 (Miss. 1988). As such, the record refutes Jewell’s unsubstantiated assertion that his guilty plea was involuntary.

¶ 17. Finding that Jewell’s confession was voluntarily given, we find that Jewell waived his right to contest the admissibility of evidence seized in the search as well as the admissibility of his confession. See Jefferson, 556 So.2d at 1019; Young, 859 So.2d at 1028 (¶9). This-issue is without merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED $95 TO THE APPELLANT AND THE BALANCE TO LEE COUNTY.

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

      . We are reluctant to attempt to quantify the parameters of what is and what is not a reasonable time for prison officials to take receipt of the prisoner’s legal mail, document that receipt, and the time necessary for the U.S. Postal Service to deliver the mail. In any event, six (6) days, as in Jewell's case, is reasonable.


author: GRIFFIS, J.,

text:
    Alonzo SHORTER, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CA-01458-COA.
    Court of Appeals of Mississippi.
    Jan. 2, 2007.

      William L. Bambach, Columbus, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. Alonzo Shorter appeals the denial of his petition for post-conviction relief. On appeal, he alleges six errors: (1) defective indictment, (2) ineffective assistance of counsel, (3) insufficiency of evidence, (4) improper comments during closing by the prosecutor, (5) involuntary guilty plea due to ineffective assistance of counsel, and (6) cumulative error. We find no error and affirm.

FACTS

¶ 2. Shorter was indicted on two separate counts for the sale of cocaine, in violation of Mississippi Code Annotated Section 41-29-139 (Supp.2002). The indictment in cause number 2002-96 alleged that Shorter sold cocaine on or about July 30, 2002. The indictment in cause number 2002-97 alleged that Shorter sold cocaine on or about July 29, 2002.

¶ 3. Shorter was tried and convicted in cause number 2002-96. On the same day of his sentencing, February 10, 2003, Shorter pled guilty to the charge in cause number 2002-97. ■ Also, on February 10, the court sentenced Shorter to serve twelve years in the custody of the Mississippi Department of Corrections in cause number 2002-96 and twelve years in cause number 2002-97, with the sentences to run concurrently. The court also ordered that Shorter complete the Mississippi Department of Correction’s Alcohol and Drug Treatment Program while incarcerated.

¶ 4. Shorter did not appeal his jury conviction. On June 3, 2005, Shorter filed one petition for post-conviction collateral relief for both convictions. The court denied the petition without an evidentiary hearing.

STANDARD OF REVIEW

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

ANALYSIS

¶ 6. Mississippi Code Annotated Section 99-39-9(2) (Supp.2005) provides that a motion for post-conviction relief shall be limited to a request for relief against one judgment. Additionally, it provides that “if a prisoner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions.” Id.

¶ 7. Shorter was sentenced under two separate judgments. Each judgment sentenced him to a twelve year term, and each judgment provides that the terms are to be served concurrently. Shorter’s petition here attacks both judgments. Because Mississippi Code Annotated Section 99-39-9(2) limits our consideration to one judgment, we will consider the issues that relate to the denial of the petition for post-conviction collateral relief as to the jury trial in cause number 2002-96. Should Shorter seek to attack the merits of the guilty plea, he must file a separate petition for posDconviction collateral relief regarding that judgment.

I. Defective Indictment

¶ 8. For the first time on appeal, Shorter alleges that the indictment was defective. While this Court does not typically consider issues raised initially on appeal, we will address the possible defects in the indictment that may rise to a jurisdictional level. Jurisdictional errors may not be waived by the accused. Carroll v. State, 755 So.2d 483, 487(¶ 9) (Miss.Ct.App. 1999).

¶ 9. Rule 7.06(2) of the Uniform Rules of Circuit and County Court requires that the indictment include “[t]he date on which the indictment was filed in court.” Rule 7.06 also requires that the indictment contain “a plain, concise, and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation” against him.

¶ 10. Shorter complains that the indictment was defective due to the dates contained on the indictment. Shorter argues that the indictment begins with the following language, “In the Circuit Court of Said County, May Term, 2002.” Thus, Shorter claims that he was indicted during the grand jury term in May, which was prior to the date of the offense charged. The State supplemented the record and included the back page of the indictment, where the indictment was stamped filed. Based upon this supplementation, it is clear to this Court that the indictment was filed on December 6, 2002. The indictment was filed over four months after the occurrence of the event. Furthermore, the indictment clearly satisfied Rule 7.06 of the Uniform Circuit and County Court Rules when it included “the date ... the offense was alleged to have been committed.”

¶ 11. Next, Shorter argues that the indictment omitted the amount of cocaine allegedly sold and the amount of money which was received. The, penalty for the sale of cocaine is the same no matter the quantity sold nor the amount of money received. Miss.Code Ann. § 41-29-139(a)(l), (b)(1). Therefore, neither the amount of cocaine sold nor the amount of money received are essential elements of the crime and are not required to be specified in the indictment. Campbell v. State, 878 So.2d 227, 229(¶ 5) (Miss.Ct.App.2004); Williams v. State, 821 So.2d 883, 887(¶ 16) (Miss.Ct.App.2002).

¶ 12. Accordingly, we find that there is no merit to this assignment of error.

II. Ineffective Assistance of Counsel

¶ 13. To prevail on a claim of ineffective assistance of counsel, Shorter must demonstrate that his counsel’s performance was deficient and that this deficiency prejudiced his defense. Strickland v. Washing ton, 466 U.S. 668, 687, 104 S.Ct. 2062, 80 L.Ed.2d 674 (1984). The burden of proof rests with Shorter, and we will measure the alleged deficiency within the totality of circumstances. Hiter v. State, 660 So.2d-961, 965 (Miss.1995); Carney v. State, 525 So.2d 776, 780 (Miss.1988). However, a presumption exists that the attorney’s conduct was adequate. Burns v. State, 813 So.2d 668, 673(¶ 14) (Miss.2001); Stringer v. State, 454 So.2d 468, 477 (Miss.1984).

¶ 14. Shorter alleges a total of six different examples of ineffective assistance of counsel. Four of these are alleged for the first time upon appeal. Normally, these new allegations would be “procedurally barred as never having been presented to the trial court.” Wilder v. State, 793 So.2d 698, 700(¶ 8) (Miss.Ct.App.2001) (citing Gazzier v. State, 744 So.2d 776, 778(¶ 5) (Miss.1999)). However, this Court has long held that fundamental'rights may be excepted from procedural bars. We have also held that ineffective assistance can rise to the level of a violation of the defendant’s fundamental constitutional rights. Bevill v. State, 669 So.2d 14, 17 (Miss. 1996). Therefore, we will address all six allegations of ineffective assistance of counsel.

A Failure to call a vital witness

¶ 15. Shorter argues that his counsel was ineffective because he failed to call Shorter’s brother-in-law, “John,” as a defense witness. The decision of whether or not to call a witness- to the stand falls within the ambit of trial strategy. Scott v. State, 742 So.2d 1190, 1196(¶ 14) (Miss.Ct. App.1999) (citing Cole v. State, 666 So.2d 767, 777 (Miss.1995)). “This Court will only under exceptional circumstances, second guess counsel on matters of trial strategy.” Hill v. State, 850 So.2d 223, 226(¶ 14) (Miss.Ct.App.2003) (citing Marshall v. State, 759 So.2d 511(¶ 11) (Miss.Ct. App.2000)).

¶ 16. Shorter alleges that John would have been able to testify that Prince Odom, the' confidential informant, previously sold drugs to one of Shorter’s relatives. On cross-examination, Odom admitted that he sold drugs. Thus, Shorter established that Odom had previously sold drugs. It would be considered permissible strategy that Shorter’s counsel not attempt to call another witness to establish what the. confidential informant admitted.

¶ 17. Shorter also contends that John would have testified that John drove Shorter’s car on July 30, 2002. Shorter was identified as walking from his mother’s house across the street to Odom’s ear to sell the cocaine. John’s testimony would bring into question whether Shorter was present as Odom alleged. Mattie Allen, Shorter’s mother, testified that John would occasionally drive Shorter’s car.

¶ 18. It was not ineffective assistance of counsel to not call John as a witness. Choosing to call or not to call a witness falls within trial strategy. Scott, 742 So.2d at 1196. We find it permissible not to call this witness, John, since he would not have offered an independent alibi. We find no merit to this assignment of error.

B. Advising Shorter to forego an appeal

¶ 19. Shorter alleged in his petition that his attorney advised him to forego an appeal. There is nothing more in the record to suggest what exactly the attorney advised Shorter to do regarding the appeal, aside from Shorter’s affidavit suggesting that the advice was in error. The advice of counsel could range from advising Shorter that the chances -of winning an appeal were virtually non-existent or that she merely would not handle an appeal. If counsel had permissible reasons for giving advice regarding the decision of whether to appeal or not, then the performance would not be deficient.

¶20. The most important concern is whether Shorter knew that he had an absolute right to an appeal. There have been several ways suggested by the Court to ensure that the defendant be informed of his or her absolute right to appeal. Two of these include: (1) the attorney receiving a writing from the defendant saying not to pursue the appeal even though he has an absolute right to appeal, or (2) the trial court advising the defendant of his right to an appeal at sentencing. Osborn v. State, 695 So.2d 570, 573 (Miss.1997). These are by no means requirements. Instead, these suggestions assist the Court and parties involved in clearing up the matter when dealing with a cold record. Id.

¶ 21. Here, the State points to Shorter’s guilty plea petition, which was signed by Shorter and his attorney, that clearly indicates that Shorter was informed of his right to an appeal. The guilty plea petition stated:

that if I should be convicted after a jury trial, I would have an absolute right to an appeal to the Mississippi Court of Appeals and to the Mississippi Supreme Court with assistance of counsel, and at no cost to me should I be determined to be financially unable to pay for same.

Through the guilty plea petition, we are assured that Shorter was informed of his absolute right to appeal. Therefore, we find this assignment of error to lack merit.

C. Undisclosed self-interest

¶ 22. Shorter argues that his counsel was ineffective because she was trying to prevent herself from being charged with gross incompetency. This alleged fear of incompetency is derived from defense counsel’s statement that had she mistakenly opened the door to her client’s misconduct of selling drugs she would have been ineffective counsel and would have prejudiced her client. Shorter then alleges that the fear of incompetency kept her from effectively representing him at trial.

¶ 28. It appears that defense counsel, as part of her strategy, chose not to bring into question Shorter’s misconduct. She felt that the State was short on evidence and it would be prejudicial to allow the State to use additional evidence of crimes not before the jury. Therefore, it was part of her trial strategy, not fear of incompetency, to prevent any such evidence from being presented. The choice of trial strategy will only under exceptional circumstances be considered ineffective assistance of counsel. Hill, 850 So.2d at 226(¶ 14). It is clear that the actions of defense counsel were not to cover up any kind of incompetency, but merely to keep from opening the door and allowing the prosecution to bring in Shorter’s previous misconduct. Counsel was not deficient under this allegation especially considering the deference given to counsel in regard to strategy decisions. Id. We find no merit to this assignment of error.

D. Ineffective discovery

¶24. Shorter alleges that his defense counsel performed ineffective discovery in that she did not know of evidence regarding the confidential informant. While counsel has a duty to make reasonable investigations, they do not, by any means, have to be completely exhaustive. Wiley v. State, 517 So.2d 1373, 1379 (Miss.1987). Counsel’s decisions in this area along with trial strategy are given a large measure of deference. Id. In Shorter’s brief, he admits that trial counsel was aware of other information about the confidential informant, which she received from another potential witness. This shows that counsel did make at least reasonable investigations as required in Wiley. Therefore, viewed in the deferential light given to trial strategy, defense counsel was not deficient in performing discovery as this error alleges. We find no merit to this assignment of error.

E. Failure to develop entrapment defense

¶ 25. Shorter argues that his counsel was ineffective because she failed to develop an entrapment defense. It is important to note that Shorter does not allege that counsel failed to present any defense, but merely failed to present a specific one. The choice of a trial strategy is largely left in the hands of the defense attorney and as mentioned before this Court gives a large measure of deference to counsel in choosing and performing that strategy. Hill, 850 So.2d at 226(¶ 14). Here, counsel used the defense theory that the confidential informant did not in fact buy the cocaine from Shorter. Instead, counsel appeared to suggest that the informant obtained the cocaine from elsewhere and merely claimed Shorter had sold it to him. This was a reasonable strategic decision by trial counsel and viewed in the deferential light given to trial strategy, defense counsel was not deficient as this error alleges. Id. We find no merit to this assignment of error.

F. Failure to seek appropriate jury instruction on entrapment

¶ 26. Shorter next contends that counsel was ineffective since she did not request a jury instruction regarding entrapment. A jury instruction should be refused by the trial court unless there is an evidentiary basis- for it. Goodnite v. State, 799 So.2d 64, 69(¶24) (Miss.2001). There was no evidentiary basis for requesting such a jury instruction as shown by the record. Defense counsel was not deficient in failing to request an entrapment instruction for which there was no evidentiary basis, since it would be not be granted. We find no merit to this assignment of error.

III. Sufficiency of the Evidence

IV. Improper Closing Argument

V. Cumulative Error

¶ 27. In each of these issues, Shorter alleges that it should be the basis for post-conviction relief. However,' each issue cited should have been dealt with on direct appeal. Post-conviction relief is a limited proceeding where this Court will only review “those objections, defenses, claims, questions, issues or errors which in practical reality could not or should not have been raised at trial or on direct appeal.” Crawford v. State, 867 So.2d 196, 202(¶ 5) (Miss.2003) (citing Cabello v. State, 524 So.2d 313, 323 (Miss.1988)). Furthermore, “claims and theories that could have been but were not presented to the trial court or to this [c]ourt on direct appeal are procedurally barred from being reviewed by this court on post-conviction review.” Crawford, 867 So.2d at 202(¶ 6) (citing Lockett v. State, 614 So.2d 888, 893 (Miss.1992)). Since these errors should have each been brought on direct appeal, they are procedurally barred from being brought in post-conviction relief.

VI. Involuntary guilty plea due to ineffective assistance of counsel

¶28. As previously mentioned, this opinion deals with the merits of jury trial conviction. The request for post-conviction relief on the guilty plea should be brought as a separate motion, since it arose from a judgment separate from that of the jury trial. The motion in regard to the guilty plea has been dismissed.

CONCLUSION

¶ 29. Shorter has alleged numerous errors in his petition for post-conviction relief, which was summarily dismissed without an evidentiary hearing. None of these errors contain any merit. Therefore, the judgment of the circuit court denying post-conviction relief is affirmed.

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

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


author: LEE, P.J., ROBERTS, J.,

text:
    Terry L. EDWARDS a/k/a Terry Lonn Edwards, Jr. A/K/A Terry Lonnie Edwards, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01693-COA.
    Court of Appeals of Mississippi.
    Jan. 9, 2007.
    Terry L. Edwards, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On February 19, 2003, Terry Edwards pled guilty in the Lowndes County Circuit Court to felony DUI, third offense. Edwards was sentenced to five years, with two years to serve in the custody of the Mississippi Department of Corrections and three years on post-release supervision. Edward states that he was released from the MDOC on May 17, 2004, and placed under earned release supervision. On June 16, 2004, Edwards was arrested for aggravated assault and, on August 10, 2004, was indicted for the same crime.

¶ 2. The record contains a discharge certificate stating that, on August 24, 2004, Edwards completed his two-year sentence and would then begin the suspended portion of his sentence.

¶3. On November 19, 2004, Edwards pled guilty to aggravated assault and was sentenced to serve seven years in the custody of the MDOC with five years of post-release supervision. That, same day, after a revocation hearing, Edwards’s three years of post-release supervision from the DUI conviction was revoked. The trial court ordered Edwards to serve those three years consecutively to the aggravated assault sentence.

¶4. Edwards filed a motion for post-conviction relief on June 28, 2005, claiming that his post-release supervision was unlawfully revoked because he had been on earned release supervision. On August 19, 2005, the trial court denied Edwards’s motion. Edward now appeals to this Court asserting the following issues which we cite verbatim:

I.Did the Honorable Judge Lee Howard lack jurisdiction at the time of the revocation hearing?
II. Did the Judge abuse his discretion by revocating [sic] post-release supervision?
III. Was Appellant denied his constitutional right by due process of law?
IV. Was the Appellant denied the right to a fair and impartial revocation hearing?
V. Did the Honorable Judge Kitchens abuse his discretion to deny post-conviction?

¶ 5. As all of Edwards’s issues relate to whether his post-release supervision was unlawfully revoked, we will frame his issues as one.

STANDARD OF REVIEW

¶ 6. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when issues of law are raised the proper standard of review is de novo. Brown v. State, 781 So.2d 595, 598(¶ 6) (Miss.1999).

DISCUSSION

I. WAS EDWARDS’S POST-RELEASE SUPERVISION UNLAWFULLY REVOKED?

¶ 7. Edwards’s main argument is that the trial court could not revoke his post-release supervision because he was on earned release supervision at the time he committed the aggravated assault. As a result, Edwards asks this Court to terminate the sentence of three years.

¶ 8. A similar situation occurred in Grace v. State, 919 So.2d 987 (Miss.Ct.App. 2005), wherein Grace argued that matters pertaining to earned release supervision fall under MDOC’s supervision and not the trial court. Recognizing that, pursuant to Mississippi Code Annotated Section 47-7-37 (Supp.2006), only the court has the authority to revoke probation, this Court stated that “probationers remain under the jurisdiction of the courts until the entire term for which they were sentenced has expired, including any and all portions ordered suspended.” Grace, 919 So.2d at 989(¶ 8). We found that it was immaterial as to whether Grace was under earned release supervision or post-release supervision at the time he violated the terms of his probation. Id. Accordingly, the trial court in the case sub judice properly exercised jurisdiction over Edwards in revoking his post-release supervision. Edwards’s post-release supervision was not unlawfully revoked.

¶ 9. In regards to Edwards’s claim that he was denied due process of law, he fails to articulate a substantive reason in support of this argument. Likewise, Edwards’s claim that he was denied a fair and impartial revocation hearing suffers from the same defect.

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

MYERS, P.J., CHANDLER AND ISHEE, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. ROBERTS, J., DISSENTS WITH A SEPARATE WRITTEN OPINION JOINED BY GRIFFIS AND BARNES, JJ. KING, C.J., AND CARLTON, J., NOT PARTICIPATING.

ROBERTS, J.,

Dissenting.

¶ 11. I dissent. Edwards claims in his motion for post — conviction relief that his post-release supervision was unlawfully revoked by the trial court. After close review of the record, I am inclined to agree. Because post-release supervision cannot be revoked for a violation that occurred before the prisoner was on post-release supervision status, and that is exactly what occurred in this case, I would reverse and render.

¶ 12. A time line of relevant events concerning Edwards unfortunate criminal history is helpful in understanding the determinative issue.

DATE EVENT
February 19, 2003 Judgment of conviction in Cause #2002-0415-CRl based on guilty plea to felony DUI, sentence of five years; two years to serve in custody followed by three years post-release supervision.
May 17, 2004 Edwards released from confinement by the Mississippi Department of Corrections (MDOC) on earned release supervision from his two year custody sentence.
June 16, 2004 Edwards arrested for new aggravated assault charge that occurred June 16, 2004. MDOC revokes his earned release status and returns him to the penitentiary.
August 27, 2004 Edwards is issued his discharge certificate by MDOC from his two year sentence and returned to Lowndes County on the aggravated assault indictment.
November 19, 2004 Edwards pleads guilty to aggravated assault, indictment #2004-382-CR1, and is sentenced to seven years in custody and five years post-release supervision.
November 19, 2004 Edwards post-release supervision in Cause #2002-0415-CRl is revoked by Judge Howard as a result of his guilty plea and Edwards is ordered to serve the three year sentence consecutively to the aggravated assault sentence in Cause #2004-382-CRl.
June 28, 2005 Edwards files a PCR motion in Cause #2005-0007-CVl.
August 19, 2005 Judge Kitchens denies the PCR motions without á hearing.

¶ 13. The majority cites Grace v. State, 919 So.2d 987 (Miss.Ct.App.2005) for support of its contention that a prisoner’s probation, or post-release supervision, may be revoked prior to his release from the initial term of incarceration. I argue that Grace does not stand for that proposition, but that the law of this state requires the inmate to begin his post-release supervision before it may be revoked.

¶ 14. Boston George Grace pled guilty to possession of a controlled substance and on February 18, 2002, was sentenced to serve a term of eight years in prison, with seven suspended, followed by three years of post-release supervision. Id. at (¶ 8). On August 31, 2002, Grace was released under earned-release supervision and assigned to report to Officer Mark Brooks, his earned-release supervising officer, until his post-release supervision began on October 8, 2002. Id. at (¶ 4). On October 1 Brooks informed Grace that he was to report to Officer Jimmy Shows, his post-release supervision supervising officer, but Grace failed to do so. Id. After further attempts to contact Grace, Shows filed a petition on November 6 to revoke Grace’s probation. Id. at (¶ 5). After Grace’s arrest in July 2003 the petition was amended to reflect his failure to report to Shows from October 2002 through June 2003. Id. At his revocation hearing in the Circuit Court of Harrison County, Grace admitted to violating his probation, and the trial court subsequently revoked his probation. Id. On appeal of denial of his petition' for post-conviction relief, Grace argued that his failure to report on October 2, 2002, to Brooks was a violation of his ■ earned-release, and not post-release, supervision. Id. at (¶ 7). Grace continued that the Circuit Court of Harrison County did not have jurisdiction to hear a case that involved revocation of earned-release supervision. Id.

¶ 15. In affirming the lower court, and confirming that Mississippi Code Annotated section 47-7-37 (Rev.2004) grants the courts jurisdiction over’ probationers throughout their sentence, this Court stated,

[rjegardless of whether [Grace] was under earned-or post-release supervision at the time he initially violated probation, Grace admitted to violating his probation in the months that followed, and when he appeared before the Harrison County Circuit Court at his probation revocation hearing in December of 2003, he had not been released from its jurisdiction. Accordingly, the court properly exercised jurisdiction over Grace in revoking his probation.

Id. at (¶ 8) (emphasis added). In holding as such, we were not saying that the courts had the power to revoke probation for acts that occurred before probation began, only that the courts had jurisdiction to revoke probation once the probationer violated the terms of probation. Specifically, in the passage above this Court implied that it did not matter what status Grace was in when he initially missed an appointment with his probation officer, of import was that he did so after his status changed from earned-to post-release supervision. Every meeting he missed from October 8, 2002, to his July 2003 arrest was a violation of Ms post-release supervision. It was these absences that allowed the trial court to revoke Grace’s post-release supervision, not his initial absence on October 1.

¶ 16. Similarly, at the time Edwards’s post-release supervision was revoked it is clear that he was on earned-release supervision, a statutorily different status. Mississippi Code Annotated Section 47-5-138(6) (Rev.2004) states, “[a]ny inmate, who is released before the expiration of his term of sentence under this section, shall be placed under earned-release supervision until the expiration of the term of sentence. The inmate shall retain inmate status and remain under the jurisdiction of the department.” Miss.Code Ann. § 47-5-138(6) (Rev.2004) (emphasis added). The record shows that Edwards was sentenced on February 19, 2003, to two years in the custody of MDOC followed by three years of post-release supervision. On May 17, 2004, Edwards was released and placed under earned-release supervision pursuant to Mississippi Code Annotated Section 47-5-138 (Rev.2004). One month later he was arrested for aggravated assault, and subsequently pled guilty in November 2004. The aggravated assault occurred while Edwards was on earned-release supervision and under the jurisdiction of MDOC as an inmate.

¶ 17. Post-release supervision is a different animal, and in Edwards’s case, had not yet begun. Mississippi Code Annotated Section 47-7-34 (Rev.2004) authorizes a court to impose a term of post-release supervision. If a term of post-release supervision is given,

[fjailure to successfully abide by the terms [set by the court] shall be grounds to terminate the period of post-release supervision and to recommit the defendant to the correctional facility from which he was previously released. Procedures for termination and recommitment shall be conducted in the same manner as procedures for the revocation of probation and imposition of a suspended sentence.

Miss.Code Ann. § 47-7-34(2) (Rev.2004) (emphasis added). Similarly, “[t]he courts ... shall determine the terms and conditions of probation or post-release supervision and may alter or modify, at any time during the period of probation or post-release supervision the conditions.... ” Miss.Code Ann. § 47-7-35 (Rev.2004) (emphasis added). The above passages indicate that the defendant must be on post-release supervision in order to violate the terms of such a status handed down by the trial court.

¶ 18. While not directly on point, Smith v. State, 742 So.2d 1146 (Miss.1999), illustrates this principle. In Smith, the defendant pled guilty to conspiracy to distribute cocaine on May 25, 1995, and was sentenced to twenty years in prison by the Circuit Court of Lowndes County. Smith, 742 So.2d at (¶ 2). However, the trial court suspended the sentence and placed Smith on probation for a period of five years with one condition of his probation being that “[The] Defendant shall hereafter commit no offense against the laws of this or any state of the United States.” Id. Not quite two months later, Smith pled guilty to another offense he committed in August 1994, nine months prior to his May 1995 guilty plea. Id. at (¶ 3). The Circuit Court of Lowndes County, interestingly the same court as in this case, subsequently held a revocation hearing and revoked Smith’s probation and ordered him to serve the entire twenty year sentence. Id. at (¶ 5). Smith then filed his petition for post-conviction relief, which was summarily dismissed. Id. at (¶¶ 6-7). After this Court affirmed the lower courts denial of post-conviction relief, the supreme court reversed and held that a prisoner “cannot violate a condition of probation that does not exist.” Id. at (¶ 11). Specifically, the supreme court stated, “[i]t follows that Richard Smith could not have his probation and suspended sentence revoked for violation of a condition which did not exist, and specifically for something he had already done at the time the probation and suspended sentence were handed- down.” Id.

¶19. As I stated before, the facts of Smith are not directly on point, but the timing of the infraction committed by Smith and Edwards is similar and illustrative of the restrictions placed on the courts by Sections 47-7-34 and 47-7-35. Both defendants violated conditions of their probation/post-release supervision prior to probation/post-release supervision beginning. It goes against logic, and I argue the precedent of Smith, to say that an inmate can violate a condition of a status he is not yet on. Edwards was an inmate at the time he committed aggravated assault, and would not be eligible for post-release supervision for another two months. The record indicates there was some confusion as to this point during the revocation hearing. When defense counsel explained that Edwards was on earned-release, rather than post-release, supervision at the time of the assault the hearing judge stated, “[Edwards] got there and he didn’t serve the whole two years. The penitentiary let him out early on what they call ERS. The date that his foot hit the ground, he is on post-release. Period.” Furthermore, in what amounted to be a feeble attempt to educate the lower court on those mysterious processes MDOC utilizes, Mr. Stafford, an MDOC probation and parole officer present at Edwards’s revocation hearing, had the following colloquy with the court:

BY THE COURT: Now, [Edwards] was on post-release on the date that he got out. It’s called post-release supervision. Not post expiration of sentence or expiration of time that I had to spend in the penitentiary or some other early release program. As soon as he walked out of that penitentiary, he’s on post-release from the date -he gets out. And I’ll ask the Department of Corrections because they’re here. Did I state anything incorrectly?
BY MR. STAFFORD: Can I—
BY THE COURT: He don’t go to prison then, huh?
BY MR STAFFORD: When he’s released on ERS, he is still on inmate status.
BY THE COURT: That’s right.
BY MR. STAFFORD: Until his expiration of sentence on the original charge.
BY THE COURT: But I said he could get post-release when he gets out.
BY MR. STAFFORD: Yes, sir.
BY THE COURT: But he’s violated the terms and conditions of what I told him his post-release was. You mean to tell me I can’t revoke it?
BY MR. STAFFORD: That and of ERS, also.
BY THE COURT: ERS is what y’all have got to do with it.
BY MR. STAFFORD: Right.
BY THE COURT: Post release is what I’m going to do to him. He’s on post-release the day he walks out of my court and the day he walks out of the penitentiary he’s on it.
BY MR. STAFFORD: Yes, sir.

It is apparent that the trial judge believed that if Edwards was physically out of prison he was on post-release supervision. As the discussion supra shows, this is an incorrect statement of the law. Mississippi Code Annotated Section 47-5-138(6) clearly states that while a prisoner is on earned-release supervision he is still an inmate and under the jurisdiction of MDOC. As such, the current state of our law mandates that the revocation of Edwards’s post-release supervision be reversed. I would reverse, render, and order the circuit court to rescind its order revoking Edwards’s post-release supervision in criminal case # 2002-0415-CR1.

GRIFFIS AND BARNES, JJ., JOIN THIS OPINION.


author: KING, C.J.,

text:
    Michelle SULLIVAN and Jeffrey Sullivan, Appellants v. SKATE ZONE, INC., Appellee.
    No. 2005-CA-01797-COA.
    Court of Appeals of Mississippi.
    Jan. 16, 2007.

      Julie Lynn Love, attorney for appellants.
    Jason Richard Bush, Walker (Bill) Jones, Jackson, attorneys for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   KING, C.J.,

for the Court.

¶ 1. Michelle and Jeffrey Sullivan appeal the Lowndes County Circuit Court’s grant of summary judgment in favor of Skate Zone, Inc. in a premises liability action. The Sullivans raise the following issues on appeal, which we quote verbatim:

I. Whether the trial court erred in granting summary judgment because the defendant created the hazardous* condition which caused bodily injury to the plaintiff, Michelle Sullivan, and no proof of actual notice of this particular item being on the floor is required.
II. Whether the trial court erred in granting summary judgment because the defendant expressly admits it failed to warn patrons of a known hazardous condition.
III. Whether the trial court erred in granting summary judgment because the plaintiff proffered evidence the defendant should have known this specific toy was on the rink floor.
IV. Whether the trial court erred in granting summary judgment when there is clear and convincing evidence to support an award of punitive damages.

Finding no error, we affirm the trial court’s grant of summary judgment.

FACTS

¶ 2. On June 5, 2003, Michelle Sullivan and several family members arrived at Skate Zone, a roller skating rink, in Columbus at approximately 7:00 p.m. At approximately 7:35 p.m., Sullivan was backwards skating with her son when she skated over what she believed to be a two-inch plastic toy and fell to the ground. Sullivan instructed her son to dispose of the toy. Sullivan’s sister drove Sullivan to the emergency room at Baptist Golden Triangle Hospital where it was determined that Sullivan had broken her right arm.

¶ 3. On June 11, 2004, Sullivan filed a premises liability lawsuit against Skate Zone. Her husband, Michael, submitted a claim for loss of consortium. On May 2, 2005, Skate Zone filed a motion for summary judgment. The Sullivans responded on May 20, 2005. The trial court heard oral argument on the motion for summary judgment on August 15, 2005 and granted summary judgment without written opinion one week later.

ANALYSIS

¶ 4. This Court employs the de novo standard when reviewing grants of summary judgment. Moss v. Batesville Casket Co., 935 So.2d 393, 398(¶15) (Miss. 2006). The moving party has the burden of establishing through pleadings, depositions, answers to interrogatories, admissions, and affidavits that no genuine issue as to any material fact exists. Id. at (¶ 16). If the movant proves such, he is entitled to summary judgment as a matter of law. Id. However, the evidence must be viewed in the light most favorable to the non-moving party. Id. at (¶ 17).

¶ 5. In order for an invitee to succeed in a premises liability action, the invitee must either prove that a negligent act of the property owner caused the invitee’s injury or that a third party created a dangerous condition of which the property owner knew or should have known. Grammar v. Dollar, 911 So.2d 619, 624(¶ 12) (Miss.Ct.App.2005) (citing Anderson v. B.H. Acquisition Inc., 771 So.2d 914, 918(¶ 8) (Miss.2000)). Sullivan asserts all three basis of premises liability.

I. Whether Skate Zone Caused a Dangerous Condition

¶ 6. Sullivan does not argue that a Skate Zone employee actually caused the toy to be on the skating rink. Rather, she argues that Skate Zone breached its duty of keeping the premises in a reasonably safe condition by failing to prevent the toys distributed in the adjacent arcade from being thrown onto the rink. The thrust of Sullivan’s first argument is that Skate Zone was aware that toys from the arcade could be thrown onto the rink, Skate Zone employed floor guards whose primary responsibility was to inspect the rink and to monitor the activity of patrons, and Skate Zone did not have a floor guard on duty the night of Sullivan’s fall.

¶ 7. Sullivan argues that the case sub judice is identical to the case of Elston v. Circus Circus Miss., Inc., 908 So.2d 771 (Miss.Ct.App.2005). In Elston, the plaintiff slipped in the casino lobby on a puddle of water in the immediate vicinity of some decorative plants near the front desk. El-ston argued that the casino was negligent for either creating the dangerous condition or for having constructive knowledge of the dangerous condition and failing to cure it. The trial court granted summary judgment in favor of the casino. This Court reversed, finding that genuine issues of material fact existed regarding each theory of liability. Regarding the question of whether the casino created the dangerous condition, the Court found that the lobby plants were watered on a regular basis; the casino retained two employees whose sole responsibility it was to canvas the lobby floor twice per hour to ensure that no debris nor spills were present on the lobby floor; and all employees, regardless of job description, were required to clean spills and debris on the lobby floor. The Court found that although the casino had an established procedure for ensuring that the premises ■ were kept in a reasonably safe condition, the casino could not establish that any employee had inspected the lobby floor on the day of Elston’s fall, thereby creating a genuine issue of material fact.

¶ 8. Sullivan equates Skate Zone’s distribution of prizes in the nearby arcade with the casino’s watering of the lobby plants. However, whereas in Elston a jury could have found the puddle on which Elston slipped was caused by a casino employee watering the nearby plants, Sullivan does not even argue that a Skate Zone employee actually caused the' plastic object to be on the skating rink floor. Furthermore, unlike Elston, the testimony of Skate Zone’s manager established that the rink had been inspected less than one hour prior to Sullivan’s fall, and that the manager continued to monitor the floor throughout the skating session.

¶ 9. Sullivan also argues that Skate Zone was negligent for not having a floor guard on duty on the evening of her fall. Property owners owe invitees a duty to keep the premises in a reasonably safe condition but are not insurers of invitees’ safety. Leffler v. Sharp, 891 So.2d 152, 156(1112) (Miss.2004). Skate Zone has a maximum capacity of 1,065 patrons. Elbert Kimbrell, Skate Zone’s general manager, testified that he puts one floor guard on duty per every 200 skaters. On slower nights he serves as a floor guard. Sullivan’s fall occurred on a Monday night when Skate Zone had approximately 77 patrons skating. Kimbrell testified that he monitored the rink from a disc jockey booth that overlooks the rink and did not see any debris on the floor during the time frame in which Sullivan approximated that she fell. Furthermore, Kimbrell testified that he personally inspected the floors at 6:45 p.m., fifteen minutes before Skate Zone reopened for its second session and approximately fifty minutes before Sullivan fell, and testified that the floors were still clean from being dust-mopped after the close of the earlier session.

¶ 10. “The basis of liability is negligence and not injury. Proof merely of the occurrence of a fall on a floor within business premises is insufficient to show negligence on the part of the proprietor.” Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 465(¶ 6) (Miss.Ct.App.2003) (quoting Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916, 917 (Miss.1966)). Sullivan failed to produce any proof that the object which caused her fall was on the rink because of any act or omission of Skate Zone. Summary judgment was properly granted as to this theory of premises liability.

II. Whether Skate Zone failed to warn patrons of a known hazardous condition

¶ 11. As previously stated, Kim-brell expressly testified that he saw no debris on the skating rink prior to Sullivan’s fall. Sullivan did not present proof of any other employee’s knowledge of the plastic object’s presence on the rink. Instead, Sullivan argues that the fact Skate Zone utilizes a floor guard to police the rink and pick up debris evidences the fact that “Skate Zone was clearly on notice the rink floor- is particularly susceptible to these objects being thrown on the floor.” Additionally, Sullivan claims that Kimbrell had actual knowledge of the hazard, citing to the following exchange from his deposition:

Q. Would it be fair to say that anywhere you got your 42-inch rail, it would be possible for a patron to toss a small object of any kind onto that floor, wouldn’t it?
A. Yes, ma’am. It is.
Q. It does happen from time to time, doesn’t it?
A. Yes, ma’am.
Q. It is one of the known hazards of running a skating rink?
A. Yes, ma’am. That’s part of it.

Sullivan misunderstands the second basis for premises liability. The standard is whether the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff. Anderson, 771 So.2d at 918(¶ 8). Sullivan showed no more than it was possible for various objects to find their way onto the skating rink.

¶ 12. Sullivan is essentially presenting the “mode of operation” argument for premises liability which has been previously rejected by this Court. Under the “mode of operation” theory of premises liability, “when an owner of a self-service establishment has actual notice that his mode of operation creates certain risks of harm to customers, and those risks are foreseeable, it is not necessary for the plaintiff to prove notice of the hazard that caused the injury.” Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 466-67(¶ 11) (Miss.Ct.App.2003). In Byrne, the Court concluded that “by accepting Byrne’s argument, we would be subjecting store owners who allow customers to walk around the store with food, toys or other potentially ‘dangerous objects’ to a strict liability standard.” Id. at 467 (¶ 12). This theory is simply- inconsistent with the well-established principle that property owners owe invitees a duty of reasonable care to keep the premises in a reasonably safe condition, not to ensure that the premises are completely risk-free. Id.

¶ 13. The trial court was also correct in granting summary judgment under the actual knowledge theory of premises liability.

III. Whether Skate Zone had constructive knowledge of a dangerous condition.

¶ 14. Constructive knowledge exists where a dangerous condition exists for such a length of time that an, owner exercising reasonable care should be alerted to its presence. Anderson, 771 So.2d at 918(¶ 10) (citing Drennan v. Kroger Co., 672 So.2d 1168, 1170 (Miss.1996)). Sullivan attempted to prove that the plastic object may have been on the rink floor for some time by testifying that the plastic object appeared to be chipped and scuffed. However, Sullivan also testified that she had skated around the rink several times before falling and had not seen the object until after she fell. Sullivan’s son also speculated that the object may have chipped when his mother tripped over it. Also, Skate Zone employees had swept the floor prior to the 7:00 p.m. opening, and Elbert had inspected the rink less than one hour before Sullivan’s fall to ensure no debris was on the rink floor. Elbert also testified that he monitored the floor from the disc jockey booth and saw no debris on the floor. We find a total lack of evidence existed to determine how the plastic object came to be on the skating rink floor or how long it had been there. The trial court was also correct in granting summary judgment under the constructive knowledge theory of premises liability.

¶ 15. Because we find that summary judgment was properly granted, .we decline to address the issue concerning punitive damages.

¶ 16. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . The arcade contains "redemption games” in which a patron receives a certain number of tickets according to how skillfully he has played the game. The patron can then redeem his accumulated tickets for small prizes. Sullivan opines that the small plastic object she tripped on was a prize from the arcade.