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

text:
    Clenard CASTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01398-COA.
    Court of Appeals of Mississippi.
    Feb. 13, 2007.

      Clenard Caston, Appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
   MYERS, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On August 21, 2002, in the Pike County Circuit Court, Clenard Caston entered a guilty plea to one count of vehicular homicide (count one) and two counts of aggravated assault (counts two and three). Caston was sentenced to serve a term of twenty-five years on the vehicular homicide count and twenty years on each of the two aggravated assault counts. The sentences in all three counts were ordered to run consecutively. The trial court ordered Caston into the custody of the Mississippi Department of Corrections to serve twelve and one-half years on count one and ten years on each of counts two and three, with the remaining twelve and one-half years on count one and ten years on each of counts two and three to be served under post-release supervision. Caston was also ordered to complete an alcohol and drug rehabilitation program and to pay a $5,000 fíne, restitution, attorneys’ fees and court costs.

¶ 2. Caston filed a motion for post-conviction relief, seeking to have his judgment and sentence vacated; however, the trial court denied Caston’s motion. Aggrieved, Caston now appeals to this Court arguing that the circuit court erred in denying his motion for post-conviction relief. On appeal, Caston raises the following issues:

I. NECESSITY OF AN EVIDEN-TIARY HEARING

II. DEFECTIVE INDICTMENT

III. INEFFECTIVE ASSISTANCE OF COUNSEL

IV. INVOLUNTARY PLEA

¶ 3. Finding no error, we affirm the denial of Caston’s petition for post-conviction relief.

STANDARD OF REVIEW

¶ 4. 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; however, questions of law are reviewed de novo. Buck v. State, 838 So.2d 256, 258(116) (Miss.2003). Under article 3, section 27 of the Mississippi Constitution and pursuant to Mississippi Code Annotated section 99-7-1 (Rev. 2006), the circuit court obtains subject matter jurisdiction over a criminal offense when the defendant is served with an indictment issued by the grand jury. When an indictment is challenged as defective, the jurisdiction, of the circuit court to hear the matter and impose a sentence is called into question. The decision of whether a circuit court had proper jurisdiction to hear a particular matter is a question of law and is, therefore, reviewed de novo. Jensen v. State, 798 So.2d 383, 385(¶ 6) (Miss.2001).

DISCUSSION

I. NECESSITY OF AN EVIDEN-TIARY HEARING

¶ 5. Caston asserts that the circuit court erred in denying his motion to vacate the judgment and sentence without first holding an evidentiary hearing on the issues of (1) defective indictment, (2) ineffective assistance of counsel, and (3) involuntary plea. In order to have obtained the right to an evidentiary hearing on the merits of his defective indictment, ineffective assistance of counsel, and involuntary plea claims, Caston was required to establish a prima facie case of each allegation in his motion to the circuit court. Robertson v. State, 669 So.2d 11, 13 (Miss.1996). When a motion for post-conviction relief is filed, the trial judge is obligated to review the motion, all files, records, transcripts, and correspondence relating to the judgment. Miss.Code Ann. § 99-39-11(1) (Rev.2000); Cole v. State, 608 So.2d 1313, 1325 (Miss. 1992). If upon such review it is clear that there is no entitlement to relief, the judge may enter an order dismissing the action. Miss.Code Ann. § 99-39-11(2) (Rev.2000); Cole, 608 So.2d at 1324. “We adhere to the principle that a post-conviction relief petition which meets basic pleading requirements is sufficient to mandate an evi-dentiary hearing unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Robertson, 669 So.2d at 13 (quoting Harveston v. State, 597 So.2d 641, 643 (Miss.1992)). A post-conviction claim for relief is properly dismissed without the benefit of an evidentia-ry hearing where it is manifestly without merit. Id. (citing Sanders v. State, 440 So.2d 278, 284 (Miss.1983)). Therefore, our review of the circuit court’s decision to deny Caston’s motion to vacate the judgment and sentence without first holding an evidentiary hearing is dependent upon whether Caston supported his various claims with a prima facie case, made upon the face of his petition, or whether the court correctly determined that Caston had produced no set of facts in support of his claim that would entitle him to relief.

II. DEFECTIVE INDICTMENT

¶ 6. Caston argues that the prosecutor’s failure to include the word “serious” as a modifier for the phrase “bodily injury,” denied him actual notice of whether he was being charged with the felony crime of aggravated assault under Mississippi Code section 97-3-7(2) or the misdemeanor crime of simple assault under Mississippi Code section 97-3-7(1) (Rev.2006). Caston argues that the indictment’s ambiguity prevented him from being fully apprised of the charges he was facing, and more precisely, the minimum and maximum penalties that the charges carried, when he entered his guilty plea.

¶ 7. The crux of this case is centered around Caston’s argument that the prosecutor’s failure to include, in counts two and three of the indictment, the word “serious” as a modifier for the phrase “bodily injury” constitutes a failure to charge a crime under subsection (a) of the aggravated assault statute, Mississippi Code Annotated section 97-3-7(2) (Rev.2006). In support of his position, Caston cites Hawthorne v. State, 751 So.2d 1090, 1094(¶ 19) (Miss.Ct. App.1999), for the proposition that the absence of the word “serious” from the phrase “serious bodily injury” in the aggravated assault count results in the omission of an essential element of the offense and renders the indictment fatally defective. The Hawthorne decision relied heavily on Peterson v. State, 671 So.2d 647, 653 (Miss.1996), in which a five-to-four majority of our supreme court held that an indictment must set forth every essential element of an offense with precision and certainty or every fact which is an element of a prima facie case of guilt.

¶ 8. Justice Pittman, joined by Justices Roberts, Smith, and Mills, penned a fervent dissent to the Peterson majority holding in which he exposed the majority’s reliance on cases which were decided prior to the 1979 enactment of the Uniform Rules of Circuit Court, now the Uniform Rules of Circuit and County Court. Peterson, 671 So.2d at 660 (Pittman, J. dissenting) (quoting Harden v. State, 465 So.2d 321, 324 (Miss.1985)); See Love v. State, 211 Miss. 606, 611, 52 So.2d 470, 472 (1951). The majority of this Court is in agreement with Justice Pittman’s dissent that the Peterson majority applied in error the strict standard of review under which the sufficiency of indictments were analyzed prior to the enactment of the Rules. Justice Pittman’s dissent went on to reiterate our supreme court’s holding in Harden, that since the adoption of the Rules “all questions regarding the sufficiency of indictments have been determined by reference to Rule 2.05,” now URCCC 7.06.

¶ 9. Under the Rules, the standard under which the sufficiency of an indictment is analyzed is decidedly less stringent. The post-rules standard requires only that the indictment include the seven enumerated items of Rule 7.06 and provide the defendant with actual notice of the crime charged so that “from a fair reading of the indictment taken as a whole the nature of the charges against the accused are clear.” Id. at 661 (quoting Henderson v. State, 445 So.2d 1364, 1368 (Miss.1984)). The Rule makes clear that “[fjormal and technical words are not necessary ... if the offense can be substantially described without them.” Wilson v. State, 815 So.2d 439, 443(¶ 10) (Miss.Ct. App.2002). This post-rules standard for determining the sufficiency of indictments has, with the exception of the holdings of Peterson and Hawthorne, been repeatedly followed by our supreme court, most recently in Spears v. State, 942 So.2d 772, 774(¶ 9) (Miss.2006), and by this Court, most recently in Wilson, 815 So.2d at 443(¶ 10) (citing Harbin v. State, 478 So.2d 796, 799 (Miss.1985)).

¶ 10. Although the law may have differed in former days, it is clear that our starting point today for determining the validity of an indictment is Rule 7.06 of the Uniform Rules of Circuit and County Court. See Harbin, 478 So.2d at 798-99. Rule 7.06 provides as follows:

The indictment upon which the defendant is to be tried shall be 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. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them. An indictment shall also include the following:
1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment is brought;
5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and
7. The words “against the peace and dignity of the state.”
The court on motion of the defendant may strike from the indictment any sur-plusage, including unnecessary allegations or aliases.
[Adopted effective May 1, 1995; amended August 26,1999.]

URCCC 7.06.

¶ 11. The indictment against Caston, quoted verbatim, reads as follows:

STATE OF MISSISSIPPI VERSUS CLENARD CASTON CAUSE NUMBER 02-070-KB INDICTMENT FOR THE OFFENSE OF VEHICULAR HOMICIDE AND AGGRAVATED ASSAULT (TWO COUNTS)
THE STATE OF MISSISSIPPI, FOURTEENTH JUDICIAL DISTRICT COUNTY OF PIKE
IN THE CIRCUIT COURT OF SAID COUNTY, JANUARY TERM, 2002
The Grand Jurors of the State of Mississippi, taken from the body of good and lawful citizens of said county, elected, summoned, empaneled, sworn and charged to inquire in and for the body of the county aforesaid, at the term aforesaid of the court aforesaid, in the name and by the authority of the State of Mississippi, upon their oaths present that Clenard Caston, late of county aforesaid, on or about the 3rd day of February, 2002, in Pike County, Mississippi, and within the jurisdiction of this court, did unlawfully and feloniously, while operating a motor vehicle in a negligent manner, cause death of James R. Howell, a human being, at a time when he, the said Clenard Caston, was operating his vehicle under the influence of a drug or controlled substance, the possession of which is unlawful under the Mississippi Controlled Substance Law, contrary to and in violation of Section 63 — 11—80(l)(d) and 63-11-30(5) of the Mississippi Code of 1972, this being count one of the indictment;
COUNT TWO
and that on or about the 3rd day of February, 2002, in Pike County, Mississippi, and within the jurisdiction of this court, the said Clenard Caston did wil-fully, unlawfully and recklessly under circumstances manifesting extreme indifference to the value of human life, cause bodily injury to James Ross Howell, Jr., contrary to and in violation of Section 97-3-7(2) (a) of the Mississippi Code of 1972, this being count two of the indictment;
COUNT THREE
and that on or about the 3rd day of February, 2002, in Pike County, Mississippi, and within the jurisdiction of this court, the said Clenard Caston did wil-fully, unlawfully and recklessly under circumstances manifesting extreme indifference to the value of human life, cause bodily injury to Matthew Howell, contrary to and in violation of Section 97-3-7(2) (a) of the Mississippi Code of 1972, this being count three of the indictment; all of said conduct alleged and set fourth in counts one, two, and three of this indictment having been then and there been based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, and against the peace and dignity of the State of Mississippi.
Endorsed: A True Bill
[Signature of the Foreperson j FOREPERSON OF THE GRAND JURY
[Signature of the ADA ] ASSISTANT DISTRICT ATTORNEY

(emphasis added).

¶ 12. When the indictment against Ca-ston is reviewed under our post-rules standard, it is clear that the indictment is legally sufficient. Each of the enumerated items of Rule 7.06 can be found within the indictment as well as a plain and concise statement of the facts notifying Caston that he is being charged with one count of vehicular homicide and two counts of aggravated assault arising out of his unlawful and felonious, negligent and reckless, operation of a motor vehicle under the influence of a controlled substance, on or about February 3, 2002.

¶ 13. First, the caption at the top of the indictment reads: “INDICTMENT FOR THE OFFENSE OF VEHICULAR HOMICIDE AND AGGRAVATED ASSAULT (TWO COUNTS).” As our supreme court has previously held, “Aggravated assault has an easily ascertainable statutory definition;” therefore, the caption provided Caston with reasonable notice of the charges he was facing. Harbin, 478 So.2d at 798 (citing Jones v. State, 461 So.2d 686, 692-94 (Miss.1984)). Second, counts two and three contain the language “under circumstances manifesting extreme indifference to the value of human life.” This language is found only within the aggravated assault statute, Mississippi Code section 97-3-7(2), and is not contained within the simple assault statute, Mississippi Code section 97-3-7(1). Third and most importantly, counts two and three specifically charge Caston under Mississippi Code section 97-3-7(2)(a), a specific subsection of the code outlining the crime of aggravated assault. In Roberson v. State, 595 So.2d 1310, 1318 (Miss. 1992), our supreme court found that an indictment which had been amended to include the specific subsection under which the accused was being charged sufficiently provided actual notice of that crime. Here, as in the case of Roberson, the inclusion of the specific subsection under which the accused was being charged provided actual notice to the defendant sufficient to satisfy the post-rules standard. Finally, the indictment does not reference the misdemeanor charge of simple assault by title or citation to the code, and there is simply no support for Caston’s argument that when he entered his guilty plea, he had no way of knowing whether he was being charged with felony aggravated assault or misdemeanor simple assault.

¶ 14. Based upon our review of the indictment, we find the requirements of Rule 7.06 to have been met, and that Ca-ston was, at a minimum, given fair notice of the crimes with which he was charged. Accordingly, the indictment is sufficient under our post-rales Henderson precedent. This Court’s pivotal consideration when considering the validity of an indictment on appeal, “is whether the defendant was prejudiced in the preparation of his defense.” Wilson, 815 So.2d at 443(¶ 11) (quoting Gray v. State, 728 So.2d 36 (¶ 171) (Miss.1998)). We do not find that, in this case, the failure to include the word “serious” prejudiced Caston’s defense in any way. Caston was represented by competent counsel and entered a plea of guilty to the crimes of vehicular homicide and two counts of aggravated assault. According to the written judgment of the circuit court, Caston, at his plea hearing, stated under oath that he understood the charges against him, that he had been advised as to the minimum and maximum penalties carried by the charges, and that he was entering the plea voluntarily because he was guilty and for no other reason. Here, there is no doubt that Caston understood the charges against him and what he was expected to defend. He voluntarily chose to plead guilty to the charges against him, and only after receiving an unsatisfactory sentence does he now seek to challenge the sufficiency of the indictment. We are unpersuaded by Caston’s argument, and find this issue is without merit.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

IV. INVOLUNTARY PLEA

¶ 15. Caston claims that his counsel provided erroneous advice rising to the level of ineffective assistance of counsel, when his attorney advised him to accept a guilty plea under an indictment which faded to include the word “serious” as a modifier for the phrase bodily injury. He argues that the defective indictment, combined with the erroneous advice of his counsel, rendered his plea involuntary. The validity of these claims are wholly dependent upon a finding by this Court that the indictment against Caston was defective. Since we have already determined that the indictment against Caston was in no way defective, we find both issues raised by Caston meritless.

CONCLUSION

¶ 16. We hold that the circuit judge acted well within his discretion when he dismissed Caston’s claim for post-conviction collateral relief, without the benefit of an evidentiary hearing, where it was clear upon the face of the motion that Caston’s claims were manifestly without merit. The indictment against Caston was sufficient under Rule 7.06 of the Uniform Rules of Circuit and County Court, his counsel was not deficient, and his plea was voluntary. The judgment of the circuit court is, therefore, affirmed.

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

CHANDLER, BARNES, ISHEE AND CARLTON, JJ„ CONCUR. GRIFFIS, J., CONCURS IN RESULT ONLY. ROBERTS, J., CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS AND BARNES, JJ. LEE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY KING, C.J. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

ROBERTS, J.,

concurring:

¶ 18. While I agree with the majority, I feel it necessary to write separately to express my opinion why Caston waived any technical deficiency of the language in the indictment by not objecting prior to acceptance of his guilty plea.

¶ 19. A review of the record and applicable law evinces that Caston’s indictment was well within the requirements of Rule 7.06 of the Uniform Rules of Circuit and County Court and in line with the most recent decisions of this Court and the supreme court on the matter. However, I argue that not only was Caston’s indictment entirely sufficient, but that he waived his right to challenge its sufficiency by failing to object before he entered his guilty plea. The supreme court has held that challenges to the substantive sufficiency of an indictment are not waivable, and may be first raised at anytime, including on appeal. Hodges v. State, 912 So.2d 730(¶ 96) (Miss.2005). Furthermore, the supreme court has held “in order for an indictment to be sufficient, it must contain the essential elements of the crime charged.” Peterson v. State, 671 So.2d 647, 652-53 (Miss.1996). However, this practice, especially in the case of a knowingly and intelligently made guilty plea to an indictment that fully notifies the defendant of the nature and cause of the accusation against him, deserves review.

¶ 20. “Whatever may have been the law in former days, our starting point today for consideration of a question such as this, [whether an indictment is substantively insufficient] is Rule 2.05, Uniform Criminal Rules of Circuit Court Practice [now 7.06].” Harbin v. State, 478 So.2d 796, 798 (Miss.1985). This sentiment was recently echoed in Spears v. State, 942 So.2d 772(¶ 6) (Miss.2006). In Spears, the supreme court reversed an opinion of this Court with regard to the classification of an amendment to an indictment. Spears, 942 So.2d at (¶ 14). Spears was indicted for burglariously attempting to break and enter a dwelling house, but during the trial the State moved to amend the indictment to change the language from “attempt to break and enter” to “break and enter.” Spears v. State, 942 So.2d 812(¶ 4) (Miss Ct.App.2005), rev’d, 942 So.2d 772 (Miss. 2006). On appeal to this Court, Spears argued that by allowing the amendment he was prejudiced as his defense was that he was innocent of the crime charged, attempted breaking and entering, because he actually completed the underlying crime. Id. at (¶ 8). We reasoned that by allowing the amendment' the State was permitted to make a substantive change to the indictment by changing the crime under which Spears was indicted which denied him a defense under the original indicted crime of attempt. Id. at (¶¶ 7-9). In reversing this Court, the supreme court stated that Rule 7.06 “provides what is required to be provided in an indictment” and reading Spears’s indictment as a whole it was apparent that he was “fully notified by the indictment of the nature and cause of the accusation as required pursuant to Rule 7.06.... ” Spears, 942 So.2d at (¶¶ 7, 9). While a small majority of the supreme court has rejected the notion that compliance with Rule 7.06 does not require a’ listing of all essential elements within an indictment, see Peterson, 671 So.2d at 653, a plain reading of the rule indicates otherwise. However, in consideration of the appropriate standard when judging the sufficiency of an indictment, the Peterson court stated,

the appropriate inquiry has not changed, rather it remains whether the indictment alleges the essential elements of the crime for which the defendant is charged by containing “a plain, concise and definite written statement of the essential facts constituting the offense charged and ... fully (notifying) the defendant of the nature and cause of the accusation against him.”

Id. at 654 (quoting Hines v. State, 472 so 2d. 386, 390 (Miss.1985)). This statement is more in line with the requirements of Rule 7.06 as the rule does not require, explicitly or implicitly, a specific listing of the statutory elements of the specific crime charged. All that is necessary, in addition to the seven enumerated requirements, is “a plain, concise and definite written statement of the essential facts constituting the offense charged [that] ... shall fully notify the defendant of the nature and cause of the accusation.” URCCC 7.06 (emphasis added). As such, the word “serious” should not be viewed as a lack of substantive sufficiency in Ca-ston’s indictment, but rather a “formal or technical- word[ ] ... not necessary in an indictment” and without which Caston’s alleged crime could still be “substantially described.” Id. Therefore, as the lack of the word “serious” in Caston’s indictment is not required by any reasonable reading of Rule 7.06, such a defect is not substantive, and, as such, Caston waived his right to challenge the sufficiency of his indictment on appeal by failing to object at the trial level. This is particularly so, and on point with Spears, when the indictment contained in its heading in all capital letters “AGGRAVATED ASSAULT (TWO COUNTS)”; the words “in violation of Section 97-3-7(2)(a)” — the aggravated assault statute, and language found only in the aggravated assault statute — “recklessly under circumstances manifesting extreme indifference to the value of human life.”

¶ 21. The changes to our state’s constitution over the last two centuries also show a growing intention to allow prosecution without indictment under certain circumstances. With the enactment of the Mississippi Constitution of 1817 what was then article 1, section 12 read as follows, “No person shall, for any indictable offense, be proceeded against criminally by information, except in cases arising in the land or naval forces, or the military, when in actual service, or by leave of the court for misdemeanor in office.” Miss. Const, art. 1, § 12 (1817). As times changed, this language was amended to read,

No person shall, for any indictable offense, be proceeded against criminally by information, except in cases arising in the land or naval forces, or the militia, when in actual service, or by leave of the Court, for misdemeanor in office; Provided, That the Legislature, in cases of petit larceny, assaults, assault and battery, affray, riot, unlawful assembly, drunkenness, vagrancy, and other misdemeanors of like character, may dispense with an inquest of a Grand Jury, and may authorize prosecutions before Justices of the Peace, or such other inferior Court or Courts as may be established by the Legislature; and the proceedings in such cases shall be regulated by law.

Miss. Const, art. 1, § 31 (1868). The language and placement of this section was again changed to read,

No person shall, for any indictable offense, be proceeded against criminally by information, except in cases arising in the land or naval forces, or the military, when in actual service, or by leave of the court for misdemeanor in office; but the legislature, in cases not punishable by death or by imprisonment in the penitentiary, may dispense with the inquest of the grand jury, and may authorize prosecutions before justices of the peace, or such other inferior court or courts as may be established, and the proceedings in such cases shall be regulated by law.

Miss. Const, art. 3, § 27 (1942). Finally, effective December 22, 1978, the people spoke and altered section 27 to read “No person shall, for any indictable offense, be proceeded against criminally by information, except in cases arising in the land or naval forces, or the military when in actual service, or by leave of the court for misdemeanor in office or where a defendant represented by counsel by sworn statement waives indictment. ...” Miss. Const, art. 3, § 27 (Rev.2005) (emphasis added). It seems quite logical to me that if an indictment may be waived in its entirety by a defendant, a defendant’s right to challenge a defect in an indictment of a type not specifically required by Rule 7.06 is also waived. Furthermore, the requirement in common law that a legally sufficient indictment contain every “essential element” of the felony predates the 1977 amendment. See Watson v. State, 291 So.2d 741, 743 (Miss.1974); Everett v. State, 248 So.2d 439, 441 (Miss.1971); Love v. State, 211 Miss. 606, 611, 52 So.2d 470, 472 (1951); May v. State, 209 Miss. 579, 584, 47 So.2d 887 (1950). What may have been the law prior to the 1977 amendment and adoption of Rule 7.06 is, quite simply, not the law today. The consequences of deciding otherwise are quite profound. For instance, if no waiver applies the trial judge has the affirmative solemn duty in every felony plea or felony trial, without prompting by either the State or defense counsel, to meticulously review the language in the indictment, many of which.may be several pages in length and contain multiple counts, for the lack of a single word that the appellate courts of this state have deemed vital as an “essential element.” I submit the supreme court got it right when it said, “[TJhe ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his defense.” Medina v. State, 688 So.2d 727, 730 (Miss.1996). In situations such as Ca-ston’s, it cannot, with a straight face, be legitimately argued that the lack of the word “serious” in his indictment prejudiced his ability to prepare a defense.

¶22. That the absence of “serious” from an indictment should not be an un-waivable defect is especially so under the case sub judice as Caston arguably knowingly and intelligently pled guilty. At every plea hearing the defendant is questioned regarding his understanding of the charges against him, the elements of the criminal offense he is pleading to, the underlying facts justifying acceptance of the plea as well as advised of the consequences of such a plea. Almost without exception, each defendant has already received discovery from the State and generally knows what evidence supporting conviction the State has against him. To say, after the defendant had been so questioned and advised, that he may then challenge his conviction, without properly preserving such a challenge at the trial court, based upon the lack of a single, technical term in the charging instrument is, in my humble opinion, quite ridiculous. It is a ‘gotcha game’ in which appellate courts should not participate.

¶ 23. Taken to its extreme, a conniving defense attorney, no doubt with his client’s best interests at heart, may notice a defect in an indictment such as the failure to contain the word “serious” but refrain from objecting. Hoping for an acquittal but after his client is found guilty by a jury and the trial court denies his motion for a new trial, the defendant can then raise, for the first time on appeal, that his indictment is fatally defective. Since jeopardy attaches in a jury trial once the jury has been empaneled and sworn in, see Wheeler v. State, 826 So.2d 731(¶26) (Miss.2002), the defendant, who voiced no objection to the sufficiency of his indictment to the trial court and was found guilty by the jury, will be discharged.

¶ 24. As long as the indictment can be seen as objectively providing the defendant full notice of the nature and cause of the accusation against him with sufficient facts stating the offense, waiver should follow. As stated by Justice Pittman, “This Court should realistically deal with real problems, not create technical questions to peruse. We should note the obvious and not play T gotcha games’ with the trial court.” Peterson, 671 So.2d at 661 (Pittman, J., dissenting, joined by Roberts, Smith and Mills, JJ.).

¶25. The dissent authored by Judge Lee argues that we are bound by the precedent established in Hawthorne v. State, 751 So.2d 1090 (Miss.Ct.App.1999). While the doctrine of stare decisis is of the utmost importance to the efficiency and integrity of the judicial system, our conelu-sions of law cannot be immune from review. We, as an appellate court, must be willing to examine our historical jurisprudence for those rules of law that have changed with the times, that no longer makes sense or were wrongly decided. As indicated in the majority’s analysis of those cases relied on in Hawthorne, our decision in that case that the trial judge erred by allowing an amendment to the indictment to include the word “serious” is but one example. As such, and in complete agreement with the majority, I must concur.

GRIFFIS AND BARNES, JJ., JOIN THIS OPINION.

LEE, P.J.,

dissenting:

¶26. With respect to the majority, I must dissent. The law is clear that upon entering a guilty plea two matters are not waived for appellate purposes: (1) failure to charge a necessary element of the crime and (2) lack of subject matter jurisdiction. Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). In Hawthorne v. State, 751 So.2d 1090, 1094(¶ 19) (Miss.Ct.App.1999), this Court found that the absence of the word “serious” from the indictment omitted an essential element of aggravated assault. I did not participate in the Hawthorne decision; however, had I done so, I would have joined the dissent. Regardless, Hawthorne is now the law.

¶ 27. Notwithstanding, the majority and concurring opinion would have us disregard Hawthorne and focus instead on Uniform Circuit and County Court Rule 7.06 which states that “formal and technical words are not necessary in an indictment, if the offense can be substantially described without them.” The concurring opinion also cites to Hawthorne as a correct statement of the law but chooses to ignore its dictates, instead urging this Court to condone what amounts to inept work by prosecutors. The majority relies heavily on the dissent in Peterson v. State, 671 So.2d 647, 653 (Miss.1996), to support its position that a looser standard should be used when reviewing sufficiency of indictments, namely Rule 7.06. However, this Court should not be in the habit of relying upon dissents, however fervent they may be, to bolster a position that may have no other legal support. Furthermore, the majority also appeals to our conscience by urging that a reversal would create a miscarriage of justice and raise doubts about the judicial system in the minds of the citizens over what it deems a “technicality.” More doubts would be raised about the judicial system if courts regularly disregarded the law in order to garner public affection. While oft heard the cry of politicians and the general public for judges who follow the law, instead of those who create their own version of the law, and otherwise labeling those who do not follow the law as “activist” judges, though not armed with any statistics on the matter, I rather suspect they really mean just the opposite.

¶ 28. Our legislature and supreme court create laws in Mississippi. We, as an intermediate appellate court, follow those laws. Until the legislature or the supreme court rules differently, we must follow Hawthorne, like it or not. It is not our prerogative to do otherwise. Therefore, I dissent.

KING, C.J., joins this opinion.

IRVING, J.,

dissenting:

¶ 29. I cannot agree with the majority that counts two and three of the indictment were sufficient to charge Caston with aggravated assault, and I agree with Judge Lee that the majority’s decision is diametrical to our holding in Hawthorne v. State, 751 So.2d 1090 (Miss.Ct.App.1999). But more importantly, today’s decision conflicts with the pronouncement of our supreme court in Peterson v. State, 671 So.2d 647 (Miss.1996) that the indictment must state the essential elements of the crime. Therefore, I dissent. However, I write separately rather than join Judge Lee’s dissent, because I cannot assert as he did that had I participated in Hawthorne, I would have joined the dissent. In my judgment, joining the dissent in Hawthorne is the equivalent of joining the majority here. In both instances Mississippi Supreme Court precedent is not followed, as we are duty bound to do. I also write because I think it is important to address a matter that is not discussed in either the majority opinion, concurring opinion, or the dissent: the fact that the omission of the word “serious” in the indictment transforms the charge from aggravated assault to simple assault. I discuss these matters in turn, beginning first with the Peterson precedent.

¶ 30. Peterson makes clear that Rule 7.06 of the Uniform Rules of Circuit and County Court, formerly Rule 2.05 of the Uniform Criminal Rules of Circuit Court Practice, does not supplant the body of case law which existed prior to its promulgation: “Rule 2.05 cannot be considered apart from the fundamental principle preceding it, that the essential elements of the offense must be alleged in order for an indictment to be sufficient.” Peterson, 671 So.2d at 655.

¶ 31. At another point in Peterson, the court said:

“This Court adopted the Uniform Criminal Rules of Circuit Court Practice (hereinafter ‘the Uniform Criminal Rules’) in 1979. A relevant inquiry exists as to whether the adoption of the Uniform Criminal Rules has in any way attenuated the requirements for the sufficiency of an indictment. We hold that it has not.”

Id. at 653.

The court then quoted rule 2.05 which is identical to Rule 7.06 of the Uniform Rules of Circuit and County Court. In discussing the requirement of the rule that the indictment provide “a plain, concise and definite written statement of the essential facts constituting the offense,” the court noted that “lack of consent,” which is an element of the crime of sexual battery, is also “an essential fact necessary to constitute the crime of sexual battery.” Id. at 655. It seems to me that equating an “essential element of a crime” with “an essential fact necessary to constitute the crime” compels the conclusion that an indictment cannot state sufficient facts to constitute a crime without, at the same time, stating all of the essential elements of the crime.

¶ 32. Peterson also contains this pertinent illumination of the issue before us:

Subsequent to the adoption of the Uniform Criminal Rules, this Court has referenced Rule 2.05 in determining the sufficiency of indictments. See Holloman v. State, 656 So.2d 1134, 1139 (Miss.1995); Roberson v. State, 595 So.2d 1310, 1318 (Miss.1992); Armstead v. State of Mississippi, 503 So.2d 281, 283 (Miss.1987); Hines v. State, 472 So.2d at 390; Harden v. State of Mississippi 465 So.2d 321, 324 (Miss.1985). Following these cases, the appropriate inquiry has not changed, rather it remains whether the indictment alleges the essential elements of the crime for which the defendant is charged by containing “a plain, concise and definite written statement of the essential facts constituting the offense charged and ... fully (notifying) the defendant of the nature and cause of the accusation against him.” Hines v. State, 472 So.2d at 390 (quoting Unif.Crim. R. Cir. Ct. Prac. 2.05) (Emphasis added).

Peterson, 671 So.2d at 654 (first emphasis added).

¶ 33. A careful review of counts one and two of the indictment reveals the absence of any language remotely informing Ca-ston that he caused serious bodily injury to his victims. The gravamen of counts one and two of the indictment is that Ca-ston “wilfully, unlawfully and recklessly under circumstances manifesting extreme indifference to the value of human life, cause[d] bodily injury to” an individual. Caston was indicted under Mississippi Code Annotated section 97-3-7(2)(a) which provides that “[a] person is guilty of aggravated assault if he attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” With the omission of the word “serious,” the indictment cannot, and does not, describe any crime greater than simple assault. Mississippi Code Annotated section 97-3-7(l)(a) provides that “[a] person is guilty of simple assault if he attempts to cause or purposely, knowingly or recklessly causes bodily injury to another....” It does not matter that Caston caused the injury while driving an automobile while under the influence of a drug or controlled substance. That does not necessarily make the injury serious. There have been many automobile accidents in which the occupants have been injured only slightly, and in some instances, not at all.

¶ 34. The majority finds that the title of the indictment: “Indictment for the offense of Vehicular Homicide and Aggravated Assault (Two Counts),” “provided Caston with reasonable notice of the charges he was facing.” I find this conclusion interesting inasmuch as Rule 7.06, upon which the majority also relies to find that the indictment was sufficient, prescribes what must be in the body, not the title, of an indictment. If the body of the indictment had described a serious bodily injury to the. victims without actually employing the word “serious,” then perhaps the title of the indictment, coupled with the reference to the code section under which Caston was indicted, would have been sufficient. See Peterson, 671 So.2d at 654 (construing Hines v. State, 472 So.2d 386 (Miss.1985)). However, this is not the case. The indictment does not describe the nature or the extent of the injury in any respect. The indictment as written did not inform Caston as to whether he was to defend against a slight scratch to the victim’s finger or a more serious life-threatening injury. Clearly this failure to describe the injury could affect how he might defend against the charge. For example, if the injury was a slight scratch on the finger, no expert would have been needed to prove that the injury was not serious, and therefore insufficient to support the charge of aggravated assault. On the other hand, if the indictment had charged a laceration to the forehead or puncture wounds to the body, Caston may have chosen to hire an expert to try and prove that the wounds, while appearing to be serious, in fact were not.

¶ 35. In conclusion, since Peterson has not been overruled by our supreme court, we are duty bound to follow it. Peterson clearly holds that an indictment must state the essential elements of the crime. Therefore, the phrase “serious bodily injury” is required to be in Caston’s indictment to make the charge of aggravated assault. “Serious” is more than a technical word, because without it the charge is nothing more than simple assault. I would reverse and remand Caston’s conviction in counts two and three. I do not think it matters that Caston pleaded guilty to these two counts. He did not waive his right to challenge his conviction, because “[a] plea of guilty does not waive (1) the failure of an indictment to charge a criminal offense or, more specifically, to charge an essential element of a criminal offense, and a plea of guilty does not waive (2) subject matter jurisdiction.” Kincaid v. State, 711 So.2d 873, 877(¶ 20) (Miss.1998) (quoting Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989)).

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

      . "A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life....”

      . While the record shows that Caston designated a copy of the plea colloquy as part of the record on this appeal, such was not provided to this Court.

      . This principle was affirmed in Hennington v. State, 702 So.2d 403, 407(¶ 14) (Miss.1997).


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Thomas L. ROBERSON, Appellant v. Jerry Darlene ROBERSON, Appellee.
    No. 2005-CA-01402-COA.
    Court of Appeals of Mississippi.
    Feb. 20, 2007.

      Henry Palmer, attorney for appellant.
    William B. Jacob, Joseph A. Kieronski, Daniel P. Self, Meridian, attorneys for ap-pellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

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

¶ 2. Thomas and Jerry Roberson were married in Lauderdale County in August of 1975. The parties had two children born of the marriage, both of whom were emancipated at the time of trial. They lived in various residences within Lauder-dale County until 1982, when they became home owners of what the parties affectionately call “the old house.” The old house was owned by Thomas’s father at the time of the marriage, but was deeded to Thomas in 1982, in exchange for a house trailer. In 1985, the parties moved to Kemper County so Thomas could manage a private hunting reserve owned by Magnolia Steel. As part of the benefits of his new position, Magnolia Steel furnished the parties a house on the reserve. Thomas and Jerry lived there until their separation in 1998. After their separation, Jerry moved to Noxubee County to live at her mother’s house. Shortly after this, Thomas moved back to the old house.

¶ 3. On July 13, 2001, Jerry filed her complaint for divorce in the Kemper County Chancery Court on the grounds of irreconcilable differences, habitual cruel and inhuman treatment, adultery, and desertion. After the initial rounds of discovery, both parties filed their joint consent for divorce on November 5, 2002, on the sole ground of irreconcilable differences. Within the consent for divorce, the parties agreed to a division of the majority of their assets and stipulated that Thomas would receive most of the marital property, and placed before the court certain remaining issues, to include alimony, whether Jerry would have an equitable interest in the old house, and what the specific equitable division of their property would be.

¶ 4. After a trial on said issues in the Chancery Court of Kemper County, the lower court issued its final judgment of divorce on June 29, 2005. In the judgment, the chancellor granted the parties a divorce on the ground of irreconcilable differences; ordered that Jerry was the exclusive owner of an 8.6 acre vacant parcel in Noxubee County; ordered that Thomas was the exclusive owner of all other marital property, to include the old house; ordered Thomas to pay Jerry $27,200, which represented her share of the marital property in regards to the chancellor’s equitable division; and awarded Jerry periodic alimony in the amount of $375 per month. Aggrieved, Thomas appeals asserting the following issues, which we state verbatim:

(1) The Chancellor was in error in awarding periodic alimony based on Thomas Roberson’s unemployment and that his only income amounted to unemployment compensation of $880.00 [sic] per month at the time of trial.
(2) The Chancellor was in error in awarding periodic alimony without an on the record consideration of the “Armstrong” factors. -

Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. When reviewing a chancellor’s grant of divorce, this Court must view the facts of the decree in a light most favorable to the appellee and may disturb the chancellor’s decision only if this Court finds that it was manifestly wrong or unsupported by substantial evidence. Davis v:Davis, 832 So.2d 492, 495(¶10) (Miss. 2002). Furthermore, an award of alimony is left to the discretion of the chancellor and will not be overturned unless granting alimony constitutes manifest error or the chancellor abused his discretion. Voda v. Voda, 731 So.2d 1152, 1154(¶7) (Miss. 1999).

DISCUSSION

I. DID THE CHANCELLOR MAKE AN ON-THE-RECORD REVIEW OF THE ARMSTRONG FACTORS BEFORE AWARDING ALIMONY?

¶ 6. When considering an award • of alimony, the chancellor is to consider the following factors: income and expenses of the parties; health and earning capacities of the parties; needs of each party; obligations and assets of each party; length of the marriage; presence or absence of minor children in the home; age of the parties; standard of living of the parties during the marriage and at support determination; tax consequences of the spousal support order; fault or misconduct; wasteful dissipation of assets by either party; and any other equitable factors. Holley v. Holley, 892 So.2d 183, 185(¶ 6) (Miss.2004) (citing Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993)). When an award of alimony is appealed, we presume the chancellor considered all factors in making his decision. Holcombe v. Holcombe, 813 So.2d 700, 704(¶ 12) (Miss. 2002). When the chancellor fails to address all factors on-the-record, we are not required to remand the case, and should not, so long as all facts are available to us so as to allow an equitable determination to be made. Id. Thus, a lack of an on-the-record consideration of the Armstrong factors by a chancellor in making his determination of the appropriateness of an alimony award will only be reversed if, after a review of all facts and application of the Armstrong factors, it appears that the chancellor’s failure to make findings of fact and corresponding conclusions of law constitutes manifest error. See Godwin v. Godwin, 758 So.2d 384, 387(¶ 11) (Miss. 1999) (quoting Selman v. Selman, 722 So.2d 547, 554(¶ 30) (Miss.1998)); see also Thompson v. Thompson, 816 So.2d 417, 420(¶ 9) (Miss.Ct.App.2002). Given this legal framework, Thomas’s first issue would only have merit if the record lacked those facts that would allow this Court to determine if Jerry’s award of alimony was inequitable. After a close and thorough review of the record before us, we find that this is not the case. A discussion of the Armstrong factors as they apply to the facts of this case is warranted.

1. Income and expenses of the parties.

¶ 7. Thomas testified that his income at the time of the trial was $840 per month, which represented his unemployment benefits, giving him a net monthly income of $756. His most recent 8.05 financial statement listed his monthly expenses at $1,707.56. Jerry’s 8.05 financial statement indicates that her net monthly income at the time of trial was $1,057.50, while her monthly expenses amounted to $1,054.29.

2. Health and earning capacities of the parties

¶ 8. Thomas testified that he was in good health and there was no indication in the record that Jerry had any adverse health concerns. Thomas completed high school, but there was no testimony as to the extent of Jerry’s education. Jerry did testify that she has worked in the food services industry as a cook and cashier for the past eleven years. Though he was unemployed at the time of trial, Thomas testified that he had an earning capacity of thirty thousand dollars and had always been able to find a job in the past. Additionally, testimony indicated that Thomas was a skilled carpenter and tradesman.

3. Needs of each party

¶ 9. Other than the financial needs each party identified on their respective 8.05 financial statements, no special needs are apparent.

4. Obligations and assets of each party.

¶ 10. The Roberson’s assets at the time of the trial included: 8.6 acres of undeveloped land, the old house, a 1994 Ford Explorer, a 1965 Ford Mustang, a 1999 Chevy PU, a 1997 Ford Ranger, a trailer, a flat bed trailer, a Ford PU, ten head of cattle, a Bailaras tractor, a portable saw mill, four horses, a stock combo trailer, a 4-wheeler, and several guns. Though some of the assets listed above were exempted from consideration towards the parties’ marital assets, the remaining assets were valued by the lower court at $69,900. The lower court divided these assets equitably, as detailed above.

¶ 11. Jerry’s liabilities included a credit card account with a then current balance of $1,700, and a personal loan from her mother in the amount of $444. Thomas’s liabilities included two credit card accounts totaling $585.50. Liability for these amounts remained with Jerry or Thomas, respectively.

5. Length of the marriage

¶ 12. The parties were married for over twenty-nine years.

6. Presence or absence of minor children in the home.

¶ 13. The parties’ children were emancipated at the time of the trial.

7. Age of the parties

¶ 14. At the time of the trial, Thomas was fifty-three years old and Jerry was fifty years old.

8. Standard of living of the parties during marriage and at support determination

¶ 15. The parties maintained a middle-class standard of living.

9. Tax consequences of the spousal support order

¶ 16. Both parties would be responsible for their tax obligations, and Jerry’s taxable income would be increased by the amount of the alimony award, namely $875 per month, or $4,500 for the year.

10. Fault or misconduct

¶ 17. The parties were granted a divorce on the ground of irreconcilable differences.

11. Wasteful dissipation of assets by either party

¶ 18. There was no testimony or other evidence to suggest waste on the part of either party.

12. Other equitable factors

¶ 19. The record suggests no other relevant factors for consideration.

¶ 20. At the close of trial, Thomas was awarded virtually all- marital property, to include the parties’ former home. Jerry was awarded an 8.6 acre parcel in Noxub-ee County. This division was agreed upon by Thomas and Jerry. Once the chancellor valued all marital property, he arrived at a total value of $69,900. This left a deficit for Jerry which was resolved by a judgment in the amount of $27,200 for Jerry. Considering the factors discussed above, to include the length of the marriage, the disparity in earning capacities of the parties, Jerry’s age, and her work experience and prospects, as well as the fact that, as a result of the divorce, she has no home of her own and will be forced to live within, and at the mercy of, her parent’s generosity, we find that the chancellor neither abused his discretion nor committed error in awarding Jerry monthly alimony without an on the record consideration of the Armstrong factors.

II. DID THE CHANCELLOR ERR IN AWARDING JERRY ALIMONY WHEN, AT THE TIME OF TRIAL, THOMAS’S ONLY INCOME WAS UNEMPLOYMENT COMPENSATION OF $840 PER MONTH?

¶ 21. If, after an equitable distribution of all marital property, and giving consideration to each party’s non-marital assets, one party is left with a deficit, then the prospect of alimony should be entertained. Kilpatrick v. Kilpatrick, 732 So.2d 876, 880(¶ 16) (Miss.1999). This equitable distribution of marital property does not mandate an equal division. Voda, 731 So.2d at 1157(¶ 28). When considering alimony, the amount “is largely left to the sole discretion of the chancellor.” Johnson v. Johnson, 877 So.2d 485, 495(¶ 43) (Miss.Ct.App.2003). The chancellor’s discretion notwithstanding, alimony “should be reasonable in amount commiserate with the [payee’s] accustomed standard of living minus [the payee’s] own resources, and considering the ability of [the payor] to pay.” Id. (quoting Gray v. Gray, 562 So.2d 79, 83 (Miss.1990)).

¶ 22. We find it interesting to note that at the time of trial Thomas’s attorney commented that Thomas expected to have a job in September and advocated an increase in his monthly obligation to spread out the $27,200 award. Specifically, Thomas’s attorney stated,

[B]ut we would be willing to commit, you know, [Thomas] feels good about that, be willing to commit to, say, add three hundred dollars to the alimony award of three seventy-five to make it a total of six seventy-five, I’ll even say seven hundred dollars even, to begin September 1st ... I think he doesn’t have a job, anticipates one, and what he thinks he may be making, he would commit to obligate himself to seven hundred dollars per month beginning September the 1st. That would be three hundred and seventy-five towards your alimony award, and then three hundred and twenty-five towards the equitable division you’ve given.

¶ 23. While the marital division was numerically equal, in awarding periodic alimony the chancellor obviously decided that Jerry was left with an equitable deficit. After reviewing the record in light of Armstrong, we agree. The $375 per month award is not excessive and will assist Jerry in maintaining the standard of living she was accustomed to during the parties’ long marriage. Also, in this instance, the fact that Thomas was unemployed at the time of the trial is of no consequence. The record indicates that Thomas never had any problem finding employment, and was able to move from job to job with relative ease. Thomas testified that he was a skilled carpenter and had always been able to find a job in the past, even working for himself at one point after the parties separated. Given the facts in the record, we find that the lower court did not abuse its discretion in either awarding alimony in the amount of $375 per month or evaluating Thomas’s “ability to pay” the alimony.

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

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

      . While reversal is not required based solely on the lack of an on-the-record consideration of the Armstrong factors, the Godwin court did identify the difficulties such a failure creates for this Court in reviewing the appropriateness of an award of alimony. See Godwin, 758 So.2d at 387(¶ 11). When a lower court fails to utilize those factors which our supreme court laid out in Armstrong, it amounts to a disservice to this Court and the parties involved.


text:
    Rickey JONES, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00469-COA.
    Court of Appeals of Mississippi.
    Feb. 20, 2007.
    Rickey Jones, Appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On September 13, 2004, Rickey Jones pled guilty in the Madison County Circuit Court to three counts of armed robbery. Jones was then sentenced to served three concurrent thirty year sentences with twelve years suspended and eighteen years to serve in the custody of the Mississippi Department of Corrections. On January 27, 2006, Jones filed a motion for post-conviction relief alleging that his guilty plea was not voluntary and that his trial counsel was ineffective. The trial court dismissed Jones’s petition. Jones now appeals to this Court asserting that the trial court erred in dismissing his motion for post-conviction relief.

STANDARD OF REVIEW

¶2. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 8) (Miss.Ct.App.2002). However, when issues of law are raised the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

DISCUSSION

I. DID THE TRIAL COURT ERR IN DENYING JONES’S MOTION FOR RELIEF?

¶ 3. In his sole issue on appeal Jones argues that the trial court erred in denying his motion for post-conviction relief. Specifically, Jones claims that his plea was entered into involuntarily and his attorney was ineffective. According to Mississippi Code Annotated Section 99-39-11(2) (Rev.2000) a lower court may summarily dismiss a motion for post-conviction relief if “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief....” It is well settled that solemn declarations in court carry a strong presumption of verity. Gable v. State, 748 So.2d 703, 706(¶ 11) (Miss.1999). This presumption has been held to apply to plea petitions. See Ward v. State, 879 So.2d 452 (Miss.Ct.App.2003). To survive summary dismissal, a collateral attack on a facially correct plea must include supporting affidavits of other persons. Baker v. State, 358 So.2d 401, 403 (Miss.1978). Furthermore, Jones must allege “facts which require further inquiry in the expanded setting of an evidentiary hearing.” Myers v. State, 583 So.2d 174, 175 (Miss. 1991).

¶ 4. Jones states that his trial attorney, Ken McNees, informed him that he had spoken to both the trial judge and the district attorney concerning Jones’s plea agreement. McNees told Jones that they had agreed to a sentence of twenty years with eight suspended and twelve to serve. Jones also avers that McNees told him that if he proceeded to trial and was found guilty, he would be sentenced to life. Jones claims that McNees told him to say “no” when the trial court asked him if he had been promised or induced to enter a guilty plea, otherwise the trial court would not accept his guilty plea. Jones’s mother was present during this conversation and her affidavit supporting Jones’s contention is attached to the record.

¶ 5. However, although the plea colloquy is not included in the record, a copy of a petition to enter guilty plea signed by Jones states that Jones understood his rights, the maximum and minimum sentence, and was pleased with McNees’s representation. Jones does state that the recommendation by the district attorney was written in the petition as twenty years with eight suspended and twelve to serve, but was later changed to reflect the actual sentence Jones received. After reviewing the petition, it is clear that some of the numbers were changed but it is unclear when they were changed, by whom they were changed or what the numbers were prior to the change.

¶ 6. Jones relies upon Readus v. State, 837 So.2d 209 (Miss.Ct.App.2003), wherein this Court reversed and remanded for an evidentiary hearing to determine the merits of Readus’s allegations of involuntary plea and ineffective assistance of counsel. Readus claimed that he pled guilty because of his trial counsel’s promise of a lesser sentence than what he received. Readus submitted his mother’s affidavit supporting Readus’s claim that he expected a more lenient sentence. Id. at 214(¶ 14). See also Myers, 583 So.2d at 178.

¶ 7. For the foregoing reasons we find that Jones’s post-conviction relief motion was sufficient to withstand dismissal and we reverse and remand for an evidentiary hearing.

¶ 8. For Jones to successfully prove ineffective assistance of counsel, he must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As Jones’s claim of ineffective assistance of counsel is directly related to whether Jones in fact entered his plea voluntarily or involuntarily, we also find that this issue requires an evidentiary hearing.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF DISMISSAL OF THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED AND REMANDED FOR AN EVIDENTIARY HEARING ON THE ISSUES OF INVOLUNTARY PLEA AND INEFFECTIVE ASSISTANCE OF COUNSEL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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

      . We take judicial notice that Mr. McNees passed away on February 20, 2005.


author: IRVING, J.,

text:
    DOUGLAS PARKER ELECTRIC, INC., A Mississippi Corporation, Appellant v. MISSISSIPPI DESIGN AND DEVELOPMENT CORPORATION, A Mississippi Corporation, Appellee.
    No. 2006-CA-00285-COA.
    Court of Appeals of Mississippi.
    Feb. 20, 2007.

      John G. McDonnell, Biloxi, attorney for appellant.
    William Alex Brady, Gulfport, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court.

¶ 1. This appeal arises out of a suit filed by Douglas Parker Electric, Inc. (Parker) against Mississippi Design and Development Corp. (MD & D). The Harrison County Circuit Court granted MD & D’s motion for summary judgment. Aggrieved, Parker appeals and asserts that the court erred in finding that the relationship between Parker and MD & D was one based on a contract rather than on an open account, in finding that no genuine issues of material fact exist, and in finding that the statute of limitations had run on Parker’s claims.

¶ 2. Finding error, we reverse and remand for further proceedings consistent with this opinion.

FACTS

¶ 3. MD & D hired Parker to do electrical work on the Monte Carlo Casino barge, which was owned by Allen Paulson. Paul-son had hired MD & D to repair the barge after it was damaged in Hurricane Georges. At some point, MD & D indicated to Parker that it was necessary to pump water out of the barge to keep the barge from sinking. Parker offered to do the work. MD & D did not tell Parker not to do the work, but did inform Parker that it would not be paid immediately. Parker and MD & D dispute when Parker was to be paid, if at all. MD & D claims that it told Parker that it could do the work, and MD & D would submit the invoices for the work to the insurance company. MD & D maintains that it told Parker it would be paid only if the insurance company decided to pay for the work. Otherwise, according to MD & D, the understanding was that Parker would not be paid. By contrast, Parker maintains that it was told that it would be paid from the proceeds of the sale of the barge.

¶ 4. Parker completed pumping the water from the barge in late September 2000. Parker maintains that after it submitted its invoices, totaling $126,850, it kept in touch with MD & D regarding the sale of the barge, and MD & D continually reassured Parker that it would pay Parker when the barge was sold. In July 2003, MD & D informed Parker that the barge had been sold, and MD & D had been paid what was owed to it in real property, instead of being paid in cash. According to Parker, MD & D told Parker at that time that it would not be paid for the work. On July 21, 2003, Parker’s attorneys mailed MD & D a demand letter for payment, to which MD & D apparently never responded. On September 23, 2003, Parker filed suit to collect against MD & D.

¶ 5. MD & D claims that it submitted the invoices to the insurance company, as it had promised to do, although MD & D also claims that it informed Parker that the amount of the invoices were very high and that it doubted the insurance company would pay such a large amount. MD & D maintains that the insurance company refused to pay the invoices and, pursuant to its agreement with Parker, MD & D refused to pay Parker for its work. MD & D also claims that the work claimed on the invoices was not actually done.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Open Account

¶ 7. In its first contention of error, Parker claims that the trial court erred in ruling that its agreement with MD & D was in the nature of an oral contract rather than an open account.

¶ 8. We find that the court did not err in characterizing the agreement between Parker and MD & D as an oral contract rather than an open account. The Mississippi Supreme Court has defined an “open account” as “an account based on continuing transactions between the parties which have not closed or been settled.” Franklin Collection Serv. v. Stewart, 863 So.2d 925, 930(¶ 14) (Miss.2003) (citing Westinghouse Credit Corp. v. Moore & McCalib, Inc., 361 So.2d 990, 992 (Miss.1978)). In McLain v. W. Side Bone & Joint Ctr., 656 So.2d 119, 123 (Miss.1995) (citations omitted), the Mississippi Supreme Court noted that an open account must contain a “final and certain agreement on price.” In Motive Parts Warehouse, Inc. v. D & H Auto Parts Co., 464 So.2d 1162, 1166 (Miss.1985) (quoting 1 Am.Jur.2d Accounts and Accounting § 4), the Mississippi Supreme Court noted that an open account “results where the parties intend that ... the account shall be kept open and subject to a shifting balance as additional related entries of debits or credits are made, until it shall suit the convenience of either party to settle and close the account....”

¶ 9. Here, there is scant evidence to indicate that there was any discussion of the price of Parker’s services, let alone a “final and certain agreement on price.” Rather, it seems that the assumption was that the work would be done at Parker’s standard rate that it had been charging MD & D for Parker’s other work. Furthermore, there was no running balance of credits and debits, nor was payment due at the convenience of either party. Instead, Parker understood that it would be paid when the barge was sold. Given the facts of this case, the court did not err in finding that the agreement between the parties was in the nature of an oral contract rather than an open account.

2. Summary Judgment

¶ 10. Parker claims that there are genuine issues of material fact sufficient to overcome summary judgment. After reviewing the record, we agree.

¶ 11. We apply a “de novo standard of review when examining a trial court’s grant or denial of summary judgment.” Flores v. Elmer, 938 So.2d 824, 826(¶ 7) (Miss.2006). We review the evidence in the light most favorable to Parker, the non-moving party. Id. “All that is needed for [Parker] to survive a motion for summary judgment is to demonstrate that a genuine issue of material fact exists.” Id. (citations omitted).

¶ 12. In entering summary judgment against Parker, the court appears to have simply adopted MD & D’s account of events as true and ignored Parker’s version of events. The affidavit submitted by Charles Parker, II, who gave the affidavit as an officer and shareholder of Parker, states:

In February, 1999, MD & D asked me if I would inspect the hull and pump the water from the hull of the Monte Carlo Casino barge accumulated after Hurricane Georges in September, 1998 to keep the Barge afloat. I informed MD & D that I was able to perform such work, but that it would require many hours of labor and many men to assist me. MD & D informed me that the work had to be completed prior to the sale of the Barge, and that I would be paid from the proceeds of the sale.
After having completed all the work that I was hired to do, I submitted the invoices. I was told by MD & D that the sale of the Barge was then pending, and that I would be paid as soon as it was sold. At no time was there ever an agreement that insurance proceeds would pay for my services. At all times herein, the agreement was that I would be paid as soon as the Barge was sold. I attempted to contact MD & D numerous times to inquire about the status of the sale of the Barge. I was assured the Barge was being actively marketed,

(emphasis added).

¶ 13. With all due respect to the court below, “[credibility determination^, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.” Garner v. Hickman, 733 So.2d 191, 194(¶12) (Miss.1999) (quoting Benjamin v. Hooper Elec. Supply Co., 568 So.2d 1182, 1187 (Miss.1990)). There was no way for the court in this case to rule as it did without impermissibly weighing the evidence and making credibility determinations, as the court essentially adopted one party’s version of events as true and dismissed the other party’s version entirely.

¶ 14. There is a genuine issue of material fact in this case as to whether Parker was told that it would be paid if the insurance company agreed to pay, or whether Parker was told that it would be paid when the barge was sold. Therefore, the trial court erred in granting summary judgment.

3. Statute of Limitations

¶ 15. The court found that Parker’s suit was filed outside the expiration of the statute of limitations, on the theory that the statute began to run when Parker completed its work and could theoretically request payment from MD & D.

¶ 16. Essentially, the sale of the barge was a condition that triggered MD & D’s obligation to pay Parker. In Anderson v. Lancaster, 215 Miss. 179, 181-82, 60 So.2d 595, 597 (1952) (citations omitted), the Mississippi Supreme Court discussed the effect of such a condition on the statute of limitations: “Where a right of action depends on the happening of an event in the future, ... the cause of action accrues, and the statute of limitations begins to run only at the time when the event happens.” In other words, if payment was dependent on the condition that the barge was sold, Parker’s cause of action did not accrue, and the statute of limitations did not begin to run, until the barge was sold. Therefore, based on Parker’s version of events, the statute of limitations did not begin to run until the sale of the barge, apparently some time in 2003, placing Parker’s suit well within the statute of limitations.

¶ 17. As argument below, MD & D contended that the sale of the barge could not operate as a condition for payment, because MD & D did not actually own the barge. It is unclear to this Court why the actual ownership of the barge prevents the sale from operating as a condition precedent to MD & D’s obligation to pay Parker. From Parker’s version of events, MD & D apparently informed Parker that it would be paid when there was money to do so, ie., when the barge was sold. Clearly, if Parker’s statement of events is true, then Parker’s cause of action arose when the barge was sold, because the condition precedent to Parker’s payment had been fulfilled only at that time. A genuine issue of material fact, sufficient to overcome summary judgment, exists as to whether Parker was told that it would be paid when the barge was sold.

¶ 18. In Harrison Enters., Inc. v. Trilogy Commc’ns, Inc., 818 So.2d 1088, 1096 (¶¶ 35-37) (Miss.2002), in a somewhat factually similar scenario, the Mississippi Supreme Court found that the doctrine of equitable estoppel operated to toll the statute of limitations. Harrison involved a suit on an open account where one party, Trilogy, had attempted repeatedly to recover its debt from Harrison Enterprises, which continually asked Trilogy for more time and promised to pay later. Id. at 1091 (¶¶ 5-10). In finding that equitable estoppel applied, the court noted:

The stated purpose behind the statute [of limitations] is to discourage lawsuits. Further, it is to reward the vigilant, not the negligent. It is to prevent false and stale claims. None of these concerns are exemplified here. Trilogy was trying to solve this problem without resorting to a lawsuit. Trilogy was vigilant in pursuing this debt, relying on the continual reassurances by Harrison Enterprises. This claim is neither false nor stale. Evidence has not been lost, memories have not faded, witnesses are available and the facts are readily capable of production.

Id. at 1096(¶ 35) (emphasis added).

¶ 19. Equitable estoppel applies when (1) one party is induced by another to delay filing a complaint, (2) resulting in the running of the statute of limitations, and (3) the other party “knew or had reason to know that such consequences would follow.” Id. at 1095(¶ 31) (citing PMZ Oil Co. v. Lucroy, 449 So.2d 201, 206 (Miss.1984)). Like Trilogy, Parker’s version of events indicates that it did not file suit because of regular reassurances from MD & D that the barge would be sold and Parker would be paid when that happened. Like Harrison Enterprises, taking Parker’s facts as true, MD & D knew or should have known that its actions would cause Parker to delay filing suit. Therefore, taking Parker’s version of events as true, as we must for purposes of summary judgment, there is also a genuine issue of material fact as to whether equitable es-toppel acts to toll the statute of limitations in this case.

¶ 20. There are genuine issues of material fact regarding the statute of limitations, and the court erred in granting summary judgment on the basis of the statute.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . An open account is a form of oral contract. McArthur v. Acme Mech. Contractors, Inc., 336 So.2d 1306, 1308 (Miss.1976).


author: CARLTON, J.,

text:
    Jeromaine Kentory BARNES a/k/a Jeromaine Barnes, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01203-COA.
    Court of Appeals of Mississippi.
    Feb. 20, 2007.

      Jeromaine Kentory Barnes. Appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., GRIFFIS, ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. This case comes before the Court on appeal from the June 16, 2006 judgment of the Circuit Court of Attala County dismissing Jeromaine Barnes’s motion for post-conviction relief. We affirm the dismissal.

FACTS

¶2. On August 22, 2002, Barnes appeared before the Circuit Court of Grenada County and entered a plea of guilty to the charge of aggravated assault in violation of Mississippi Code Annotated Section 97-3-7(2) (Rev.2006). He was sentenced to seventeen years in the custody of the Mississippi Department of Corrections, with twelve years to serve and five years suspended. As part of his sentence, he was also placed on five years of supervised probation upon his release.

¶ 3. Barnes first filed a motion for post-conviction relief and a brief in support thereof with the Circuit Court of Attala County in 2006. On June 16, 2006, without holding an evidentiary hearing, the trial court signed an order summarily dismissing Barnes’s motion as being without merit.

¶ 4. Barnes argues on appeal that the trial court erred in dismissing his motion without holding an evidentiary hearing. He also maintains that the indictment charging him was defective, and that he received constitutionally ineffective assistance of counsel.

DISCUSSION

¶ 5. “In reviewing a trial court’s decision to deny a motion for post-conviction relief the standard 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) (citing Kirksey v. State, 728 So.2d 565, 567(8) (Miss.1999)).

¶ 6. A motion for post-conviction relief must be filed within three years of the judgment of conviction entered pursuant to a guilty plea. Miss.Code Ann. § 99-39-5(2) (Supp.2006). There are several statutorily enumerated exceptions which are not subject to the time bar. Id. (exceptions include intervening decision, newly discovered evidence, and expired sentence or unlawful revocation of parole, probation, or conditional relief). None of Barnes’s claims fall within the enumerated exceptions and none were asserted in his appellate brief. Also recognized as an exception to the time bar are claims in which fundamental constitutional rights are involved. Maston v. State, 750 So.2d 1234, 1237(14) (Miss.1999).

¶ 7. Barnes claims that he received constitutionally ineffective assistance of counsel. Our Supreme Court held in Ma-ston that it “[h]as never held that merely raising a claim of ineffective assistance of counsel is sufficient to surmount the procedural bar.” Id. (citing Bevill v. State, 669 So.2d 14, 17 (Miss.1996)). Furthermore, the Mississippi Supreme Court has held that the mandatory three-year period of limitation for post-conviction relief claims encompasses claims of ineffective assistance of counsel. Kirk v. State, 798 So.2d 345, 346(6) (Miss.2000); (citing Luckett v. State, 582 So.2d 428, 430 (Miss.1991)). Accordingly, this Court finds that Barnes’s claim of ineffective assistance of counsel is without merit because it is not sufficient to overcome the bar imposed by the period of limitation.

¶ 8. Claims alleging defective indictment are also barred when a motion for post-conviction relief is not filed within the three-year time limitation. Kelly v. State, 797 So.2d 1003, 1005(4) (Miss.2001); see also Campbell v. State, 611 So.2d 209, 210 (Miss.1992) (appellant’s claims of defective indictment, ineffective assistance, denial of due process and equal protection, and involuntary plea were barred where motion was filed after the three-year period). Consequently, Barnes’s claim of defective indictment is also time-barred.

¶ 9. We find that Barnes’s motion for post-conviction relief was time-barred as it was filed outside of the mandatory three-year statute of limitations imposed by Mississippi Code Annotated section 99-39-5(2). Barnes’s plea of guilty was entered on August 22, 2002. Thus, he had until August 22, 2005 to timely file his petition for post-conviction relief. Barnes waited until 2006 to file his motion for post-conviction relief, well after his deadline. Finding that no statutory exceptions apply and that the bar is not surmounted by a fundamental constitutional right, we conclude that Barnes’s motion was time-barred.

¶ 10. A trial court is permitted to summarily dismiss a motion for post-conviction relief if it is ascertainable on the face of the motion that the petitioner is not entitled to any relief. Miss.Code Ann. § 99-39-11(2) (Rev.2000); Steen v. State, 748 So.2d 156, 159(12) (Miss.1999) (time-barred motion failed on its face to show entitlement to relief; dismissal affirmed). As previously determined, Barnes’s motion was time-barred. Consequently, the motion failed to show on its face that Barnes was entitled to any relief, and the trial court did not err in dismissing the motion without holding an evidentiary hearing.

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

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


author: SEE, Justice.

text:
    McKAY BUILDING COMPANY, INC., Bob McKay, Donna Mitchell, and Randy Maxwell v. Joseph G. JULIANO and Mariana Juliano.
    1041720.
    Supreme Court of Alabama.
    July 21, 2006.

      A. Joe Peddy and Steven M. Brom of Smith, Spires & Peddy, P.C., Birmingham, for appellants.
    Jasper P. Juliano and J. Alex Wyatt III of Parsons, Lee & Juliano, P.C., Birmingham, for appellee.
   SEE, Justice.

McKay Building Company, Inc., Bob McKay, Donna Mitchell, and Randy Maxwell appeal from the trial court’s order denying their motion to compel arbitration and to stay the proceedings pending arbitration. We reverse and remand.

I. Facts and Procedural History

On September 27, 2002, Joseph G. Juli-ano and Mariana Juliano signed a contract with McKay Building Company, Inc., an Alabama corporation, to remodel portions of the Julianos’ house, including the kitchen. The Julianos contend that someone represented to them that the electrical wiring in the house was defective and needed to be replaced. Thus, the Julianos contracted with McKay Building to perform that additional electrical work in connection with the remodeling job. However, when they perceived that they may have been misled regarding alleged defects in the electric wiring in the house, the Julianos stopped McKay Building from completing the renovation.

On October 1, 2004, the Julianos sued McKay Building, Bob McKay, Donna Mitchell, and Randy Maxwell, alleging fraud, breach of contract, negligence, wantonness, and conspiracy, all arising out of the remodeling job. The agreement that the Julianos and McKay Building signed for the remodeling job contained an arbitration agreement. McKay Building and the other defendants moved the trial court to stay the proceedings in the trial court and to compel arbitration. In support of their motion and as evidence that the transaction affected interstate commerce, McKay Building and the other defendants submitted an affidavit of Bob McKay. In his affidavit, Bob McKay stated, among other things, that the renovation of the Julianos’ kitchen required the use of “lumber that frequently comes from Oregon and other states outside of Alabama.”

In opposition to the motion to compel arbitration, the Julianos argued that Bob McKay’s affidavit was insufficient to establish that the transaction, i.e., the remodeling project, involved interstate commerce. In response, McKay Building and the other defendants submitted a supplemental affidavit of Bob McKay. In the supplemental affidavit, Bob McKay stated that the recessed lighting fixtures that were to be used in the renovation were manufactured in Massachusetts.

The trial court denied the motion to stay the proceedings and to compel arbitration. McKay Building, McKay, Mitchell, and Maxwell appeal.

II. Standard of Review

We review the trial court’s grant or denial of a motion to compel arbitration de novo. Bowen v. Security Pest Control, Inc., 879 So.2d 1139, 1141 (Ala.2003). Initially, the party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction involving interstate commerce. Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1132 (Ala.2003). The moving party “ ‘ “must produce some evidence which tends to establish its claim.” ’ ” Wolff Motor Co. v. White, 869 So.2d 1129, 1131 (Ala.2003)(quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 (Ala.1995), quoting in turn In re American Freight Sys., Inc., 164 B.R. 341, 345 (D.Kan.1994)). Once the moving party has supported his or her motion to compel arbitration, the nonmovant then has the burden to present evidence tending to show that the arbitration agreement is invalid or inapplicable to the case. Polaris, 879 So.2d at 1132.

III. Analysis

The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., provides in relevant part that “[a] written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable.... ” 9 U.S.C. § 2. The FAA is applicable if (1) a written contract calling for arbitration exists and (2) the transaction at issue involves interstate commerce. The parties in this case do not dispute that a written contract calling for arbitration exists. The parties disagree only as to whether the transaction at issue involves interstate commerce.

The FAA “provides for ‘the enforcement of arbitration agreements within the full reach of the Commerce Clause.’” Citizens Bank v. Alafabco, Inc., 589 U.S. 52, 56, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003). The Supreme Court of the United States has held that Congress’s Commerce Clause power may reach a transaction even if the individual transaction at issue does not have a “substantial effect” on interstate commerce if “in the aggregate the economic activity in question would represent ‘a general practice ... subject to federal control.’” 539 U.S. at 56-57, 123 S.Ct. 2037 (quoting Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236, 68 S.Ct. 996, 92 L.Ed. 1328 (1948)). Thus, the FAA is applicable to transactions (1) that use the channels of interstate commerce, (2) that involve the instrumentalities of interstate commerce, or persons or things in interstate commerce, or (3) that involve general activities having a substantial effect on interstate commerce. See Wolff Motor Co., 869 So.2d at 1132 (identifying three broad categories of activity Congress can regulate under its commerce power). Evidence that a party to a transaction does business outside of Alabama or that it regularly deals in interstate commerce is sufficient to demonstrate that the transaction involves interstate commerce. See Wolff Motor Co., 869 So.2d at 1133-34, 1133 n. 4 (stating in a footnote that any of the reasons set forth in Alafabco — or that the parties regularly deal in interstate commerce as in Wolff Motor Co. — standing alone is sufficient for the application of the FAA and pointing out that the Supreme Court of the United States in Alafabco held that the FAA applied to the transaction there because a party in that case was doing business throughout the southeastern United States).

The Julianos argue that McKay Building and the other defendants failed to present any evidence indicating that the contract between the Julianos and McKay Building actually involves interstate commerce. The Julianos argue that McKay’s assertion in his affidavit that lumber that was to be used for the renovation frequently comes from outside Alabama is insufficient to prove that this transaction involves interstate commerce. Because McKay Building did not install the light fixtures it says were manufactured in Massachusetts or offer evidence indicating that those light fixtures were actually ordered for the Julianos’ remodeling project, the Julianos also argue that the fact that the light fixtures were manufactured in Massachusetts is irrelevant. In sum, the Julia-nos argue that the evidence presented by McKay Building and the other defendants in the form of McKay’s affidavits does not prove the actual installation in the Julia-nos’ kitchen of materials that traveled in the channels of interstate commerce.

The Julianos cite Huntsville Utilities v. Consolidated Construction Co., 876 So.2d 450 (Ala.2003), in support of their argument that McKay Building and the other defendants offered insufficient evidence to show that the transaction involved interstate commerce. In Huntsville, the mov-ant submitted affidavits and various invoices from out-of-state vendors in support of its motion to compel arbitration. 876 So.2d at 452. In that case, we noted that after the United States Supreme Court’s decision in Citizens Bank v. Alafabco, Inc., supra, we no longer require that an individual transaction involve a “substantial effect” on interstate commerce. 876 So.2d at 454. Instead, we noted, the FAA is triggered if the transaction affects interstate commerce or “ ‘if in the aggregate the economic activity in question would represent “a general practice ... subject to federal control.” ’ ” 876 So.2d at 454-55 (quoting Alafabco, 589 U.S. at 57, 123 S.Ct. 2037, quoting in turn Mandeville Island Farms, 334 U.S. at 236, 68 S.Ct. 996). In Huntsville Utilities, we noted that the evidence that a transaction affected interstate commerce — invoices reflecting suppliers from outside of Alabama — left little doubt that it did. 876 So.2d at 455. Thus, in that case, we reversed the trial court’s order denying the motion to compel arbitration. Id.

The Julianos mistakenly rely on our application of the facts in Huntsville Utilities to narrowly construe the applicability of the FAA. As we stated in Huntsville Utilities and in Wolff Motor Co., the movant need not prove that the individual transaction at issue substantially affects interstate commerce. Huntsville Utilities, 876 So.2d at 454; Wolff Motor Co., 869 So.2d at 1133. In fact, the FAA can be applicable in a case “without showing any specific effect upon interstate commerce.” Alafabco, 539 U.S. at 56-57, 123 S.Ct. 2037.

We also note that the burden on McKay Building and the other defendants is to provide “ ‘ “some evidence which tends to establish its claim.” ’ ” Wolff Motor Co., 869 So.2d at 1131 (quoting Jim Burke Auto., 674 So.2d at 1265 (emphasis added) ). McKay Building and the other defendants presented sufficient evidence tending to establish that it used the channels of interstate commerce in performing its remodeling business. See Wolff Motor Co., 869 So.2d at 1132 (stating that Congress can regulate activities that involve the use of the channels of interstate commerce). They submitted affidavits stating (1) that the framing of the Julianos’ new kitchen required the use of lumber that frequently comes from Oregon and other states outside Alabama and (2) that the renovation called for the installation of recessed light fixtures that are manufactured in Massachusetts. Both statements tend to establish that McKay Building deals with out-of-state vendors and, thus, that it uses the channels of interstate commerce to perform its remodeling business.

When McKay Building and the other defendants submitted Bob McKay’s affidavits, they made a prima facie showing that the transaction involved interstate commerce. The burden then shifted to the Julianos to produce evidence indicating that the arbitration agreement is invalid or that it is inapplicable. Polaris, 879 So.2d at 1132. The Julianos did not produce any such evidence. Therefore, we find that the evidence presented tends to establish that the transaction in this case involves interstate commerce, and we hold that the FAA applies.

IV. Conclusion

The trial court erred in denying the defendants’ motion to compel arbitration and to stay the proceedings; therefore, we reverse the trial court’s order and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

NABERS, C.J., and STUART and BOLIN, JJ., concur.

HARWOOD, J., concurs in the result.

      . The Julianos alleged that one of "the defendants” told them about the defective wiring. The defendants in the trial court were McKay Building, Bob McKay, Donna Mitchell, Randy Maxwell, FC Johnson Electric Co., Inc., and Randy Johnson. Neither the Julianos' complaint nor their brief to this Court specifies who they contend made those representations.

      . The record does not indicate Donna Mitchell’s or Randy Maxwell’s relationship to McKay Building or Bob McKay. However, all four parties are represented by the same counsel, jointly moved to compel arbitration, and jointly appeal. In addition, the appellants' brief refers to McKay Building, McKay, Mitchell, and Maxwell collectively as "McKay Building.” The Julianos do not argue or provide any facts indicating that we should analyze the issue before us differently with respect to the different defendants; thus, we do not.

      . As noted in note 1, the Julianos also sued FC Johnson Electric Co., Inc., and Randy Johnson. However, those defendants do not appear to have moved for arbitration nor are they parties to this appeal. Thus, our references in this opinion to "McKay Building and the other defendants” does not include FC Johnson Electric or Randy Johnson.