author: LEON A. CANNIZZARO, JR., Judge. GORBATY, J.,

text:
    DALI PAINTING & CONTRACTORS, INC. v. BARBARA ENTERPRISES, INC. and Tara Omeallie.
    No. 2005-CA-1022.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 11, 2007.
    Rehearing Denied Aug. 2, 2007.

      Dean J. Favret, Anthony J. Russo, Angela C. Imbornone, Favret, Demarest, Russo & Lutkewitte, New Orleans, LA, for Plaintiff, Dali Painting & Contractors, Inc.
    Daniel R. Martiny, Martiny & Associates, LLC, Metairie, LA, for Defendant, Barbara Enterprises, Inc.
    (Court composed of Judge JAMES F. McKAY, III, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

| Barbara Enterprises, Inc. (hereinafter “BEI”), appeals a judgment of the First City Court in favor of the plaintiff, Dali Painting & Contractors, Inc. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. and Mrs. Charles Ward owned the property at 1201 Napoleon Avenue. The Wards contracted with BEI to renovate the property. The Wards consulted with Mr. Kamal Dali of Dali Painting & Contractors, Inc. (hereinafter “Dali” or “Mr. Dali”), on a price for exterior painting of the house. After the parties agreed on the job specifications and the price, the Wards sent the proposal to BEI requesting that Dali be incorporated as a subcontractor. After the exterior painting began, BEI further contracted with Dali to paint the interior and trim work in the house.

According to Mr. Ward’s trial testimony, the experience with Dali was nothing short of a nightmare. Improper caulking was used on exterior windows Land walls, poor surface preparation and inadequate primer resulted in paint failure, and an inferior refinishing process ruined 100-year-old natural woodwork.

As a result of the poor workmanship, several other contractors were used to redo the work or to attempt to repair damage caused by Dali.

Conversely, Mr. Dali testified at trial that his experience with Mr. Ward was nothing short of a nightmare — there was simply no pleasing Mr. Ward. The exterior color selected by Mr. Ward was changed after one-third of the job was completed. Further, the reason the interior trim did not meet Mr. Ward’s approval was because Mr. Ward would not approve the method Mr. Dali wished to use to strip the wood because of the additional cost. Mr. Dali testified that there were many types of wood used in the house; over the years some of the baseboards had been repaired with multiple types of wood. Mr. Dali explained that the different types of wood prevented a similar or consistent appearance. Additionally, even after sanding, the old layers of varnish on the doorframes and baseboards prevented proper absorption of the new varnish, resulting in a mottled appearance.

Dali filed suit in First City Court alleging that BEI still owed $13,984.00 for the work it had performed. BEI filed an answer alleging breach of contract by Dali, and a reconventional demand for additional costs it incurred as a result of Dali’s incomplete and defective work. Following a trial, the court found in favor of Dali in the amount of $13,035.00, and dismissed BEI’s reconventional demand. This appeal followed.

I..¿DISCUSSION

The first assignment of error is two-fold. The first issue raised by the assignment concerns reasons for judgment by the trial court. BEI urges this Court to either disregard or strike the reasons for judgment entered onto the trial court minutes on February 23, 2004, despite the fact that they were signed December 22, 2003, the same date as the Judgment. Counsel for BEI argues that these Reasons for Judgment were not contained in the record on either January 14, 2004, the date he filed his petition for appeal, or on January 24, 2004, the date the trial judge signed the order granting the appeal. Thus, because the trial court was divested of jurisdiction once the order granting the appeal was signed, it was improper to enter Reasons for Judgment on February 23. See La.Code Civ. Proc. art. 2088.

We find Power Marketing Direct v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662, on point. In that case, the Court of Appeal, Second Circuit, reasoned that a per cu-riam entered after an appeal was granted was allowable because it simply amplified the trial court’s oral reasons for judgment.

Louisiana Code of Civil Procedure 2088 provides in pertinent part that the jurisdiction of the trial court is divested once the motion for appeal is granted. However, the trial court maintains jurisdiction for limited purposes. One such purpose is to “[cjorrect any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132.” La.Code Civ. Proc. art. 2088(4). Article 2132 provides in part: “A record on appeal which is incorrect or contains 1¿misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, ..., by the trial court.” La.Code Civ. Proc. art. 2132 (emphasis added.)

We find the entering of the reasons for judgment on February 23, 2004, is permissible for the purpose of correcting an incomplete record as provided by La.Code Civ. Proc. art. 2132.

In the second part of its first assignment of error, BEI argues that the trial court erred in granting judgment in favor of Dali because it is contradicted by objective evidence and by the inconsistencies in testimony offered by witnesses for Dali. BEI concedes that the proper standard of review is the manifest error standard set forth in Rosell v. ESCO, 549 So.2d 840 (La.1989).

Our reading of the transcript reveals a swearing contest, with each side contradicting the testimony of the other. The trial court judge rendered her judgment based on her observation of the witnesses, finding Mr. Dali to be more credible. The manifest error standard of review does not permit a reviewing court to upset reasonable evaluations of credibility and reasonable inferences of fact, where the record merely demonstrates conflicting testimony as to the facts at issue. Elevating Boats, Inc. v. Parish of Plaquemines, 06-1208, p. 6 (La.App. 4 Cir. 2/14/07), 953 So.2d 826, 830. As such, we are required to accept Mr. Dali’s version of how the events transpired during the course of the project.

| ¡According to Mr. Dali’s testimony, Mr. Ward was almost impossible to please despite Mr. Dali’s great effort to accommodate Mr. Ward’s wishes. Mr. Dali also testified that many of the problems on the job were not caused by his workers, but rather by other subcontractors working around him. For example, Mr. Dali testified that his workers did not ruin the finish of the newly restored floors with their drop cloths and tape. Rather, another subcontractor had used duct tape to hold down floor covers for their work, and when the duct tape was removed, the floor surface was damaged. Mr. Dali also testified about other workers scratching or marking the newly painted walls, causing Mr. Dali to have to come behind them and retouch those areas.

The record contains evidence of three contracts entered into by the parties. The first was for painting the exterior of the house at 1201 Napoleon. The parties agreed on a price of $11,900.00 to complete the project. A second contract was entered into for the painting of the interior of the house, including the woodwork, at a price of $19,900.00. At some point, the parties agreed that Mr. Dali would stop his attempts to finish the woodwork to Mr. Ward’s satisfaction and another painting contractor would do the work. The cost to Mr. Ward to hire another painter was $7,500.00, an amount Mr. Dali agreed to subtract from the previously agreed to contract price. The last contract entered into was for Mr. Dali to paint the garage at a cost of $2,200.00. The total of the three contracts, minus the aforementioned $7,500.00, was $26,500.00.

| fiBEI submitted proof that it paid Mr. Dali a total of $20,905.33, including a copy of a cancelled check in the amount of $5,350.00. Mr. Dali acknowledged that he had received that check but claimed it was for material and labor costs relating to the installation and painting of weatherboards, which was not in dispute. As such, Mr. Dali testified that he did not include the labor and materials costs for that work in the itemization of the amounts that he alleged were due him from BEI. Additionally, Mr. Dali testified that BEI owed him additional amounts for extra shutters ($150.00), carpentry repairs ($450.00), and extra paint color selection by the Wards ($500.00). In support of his testimony, Mr. Dali submitted copies of invoices for this work. Although this work was not detailed in any of the contracts entered into by the parties, there is evidentiary proof that the work was performed. Considering the evidence and Mr. Dali’s testimony, we cannot say the trial judge was clearly wrong in awarding Dali $13,035.00 as the outstanding balance for the work performed pursuant to the contracts.

In its last assignment of error, BEI asserts that the trial court erred in dismissing its reconventional demand for damages incurred by BEI due to Dali’s failure to complete work in a timely and satisfactory manner. Again, this Court must defer to the factual findings of the trial court that any additional costs incurred by BEI were not the fault of Dali.

Further, BEI contends in brief that it presented uncontroverted evidence that it lost approximately $39,000.00 because Mr. Ward and the financing bank withheld these funds. This total included the amounts Mr. Ward testified at trial |7that he had to pay Keith Guy, a renovation specialist, to complete the interior punch list and the interior woodwork, $9,000.00 and $17,000.00, respectively, as well as other costs incurred by BEI to finish the work under the contracts. However, the only objective evidence in the record is a proposal from Keith Guy indicating that he would charge $4,670.00 for work on the exterior of the house to touch up shutters and mildewed window glazing. There is no evidence that this work was actually performed. Additionally, the trial court determined that Mr. Dali’s testimony was the more credible concerning the work performed on both the exterior and interi- or of the house. Thus, we find no error in the trial court’s dismissal of the reconven-tional demand.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

GORBATY, J., dissents with reasons.

GORBATY, J.,

dissenting.

liAs Stated in the majority opinion, the total cost of the three contracts entered into between BEI and Dali Painting was $26,500.00, allowing for the discount of $7,500.00 agreed to between the parties. The record also contains evidence that BEI paid Mr. Dali $20,905.33. Mr. Dali also submitted invoices for additional amounts owed to him for carpentry repairs ($450.00) and extra paint color selection by the Wards ($500.00). I agree with the majority on these findings.

However, I do not agree that the record contains proof of any further amounts due to Mr. Dali, other than Mr. Dali’s own self-serving testimony. Accordingly, by my calculations, Mr. Dali is owed an additional $6,544.67, not the $13,035.00 awarded by the trial court. Therefore, I respectfully dissent.

      . The interior trim consisted of the wood molding around the ceilings, floors, doors and entrances.

      . Mr. Ward went through the interior of the house and made a list of the things that he found were not satisfactorily performed by Dali and wanted Mr. Guy to correct. The list included work on the ceilings, caulking around the wood moldings throughout the interior of the house, and repairs to the custom made wallpaper that Dali’s workers had damaged,


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. James R. BANKS, Appellant.
    No. 42,249-KA.
    Court of Appeal of Louisiana, Second Circuit.
    July 18, 2007.

      James E. Beal, Jonesboro, for Appellant.
    William R. Coenen, Jr., District Attorney, Johnny R. Boothe, Assistant District Attorney, for Appellee.

      Before WILLIAMS, CARAWAY and PEATROSS, JJ.
   WILLIAMS, J.

hThe defendant, James R. Banks, was charged by bill of information with distribution of marijuana, a violation of LSA-R.S. 40:966(A). Following a jury trial, the defendant was found guilty as charged. He was sentenced to serve 12 years in prison at hard labor with credit for time served. For the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

On March 12, 2004, Deputy Sheriff Investigator Mike Gilmore, of the Franklin Parish Sheriffs Office (“FPSO”), received a telephone call from a confidential informant with regard to a man who had marijuana for sale. Deputy ' Gilmore had worked with the informant on several occasions and believed his information to be reliable. Therefore, the deputy instructed the informant to arrange a meeting between him and the seller at a local car dealership to complete a drug transaction.

Deputy Gilmore drove an unmarked private vehicle to the agreed upon location. The private vehicle was not equipped with a video or audio recording device. However, Deputy Gilmore obtained $60 to use for the transaction and photocopied the currency. Deputy Gilmore also arranged for two other deputies to be situated near the location of the transaction.

Deputy Gilmore and the other deputies went to the location, but only Deputy Gilmore was involved in the actual drug transaction. Deputy Gilmore observed a vehicle approaching. A man, who was later identified as the defendant, was riding as a passenger in the vehicle. The defendant exited the vehicle, and as the vehicle drove away, the defendant approached | ^Deputy Gilmore. Deputy Gilmore instructed the defendant to enter his vehicle. Deputy Gilmore did not know the defendant and had never met him before.

Deputy Gilmore drove the defendant to an area near the location where the other deputies were waiting. He then gave the defendant the $60, and the defendant handed him a plastic sandwich bag filled with four individually wrapped plastic bags containing small quantities of marijuana. Deputy Gilmore, who had planned to effect the defendant’s arrest on the highway, attempted to persuade the defendant to remain in the vehicle. However, the defendant refused and walked away. The other deputies approached at that time, and the defendant was placed under arrest. The buy money was still in the defendant’s possession at the time of his arrest. Deputy Mike Wilson transported the defendant to FPSO headquarters. There, Deputy Gilmore obtained the defendant’s driver’s license and recorded his address in a report. After Deputy Gilmore advised the defendant of his rights per Miranda, the defendant refused to make any statement with regard to the drug transaction. However, the defendant told Deputy Gilmore that he wanted to “help himself.” The defendant informed Deputy Gilmore that he knew someone who could sell the deputy a pound of marijuana. Deputy Gilmore agreed to pursue this tip. In doing so, he agreed to transport the defendant to a gas station in Winnsboro, so the defendant could call the person he had identified from a telephone line different from that of the sheriffs department.

Upon their arrival at the gas station, Deputy Gilmore retrieved a | ..¡recording device to install on the telephone the defendant would use to make the telephone call. As he was doing so, he asked the defendant for the telephone number he intended to dial. When the deputy received no answer, he turned and saw the defendant running from the scene. Deputy Gilmore called out to the defendant to stop, but the defendant continued running and escaped. The following day, the deputies obtained a warrant for the defendant’s arrest and went to the address listed on the defendant’s driver’s license. The defendant was arrested without incident.

The defendant was charged by bill of information with distribution of marijuana, a violation of LSA-R.S. 40:966(A). The defendant rejected a plea offer and was tried by jury. At the conclusion of the trial, the jury found the defendant guilty as charged. The trial court sentenced him to serve 12 years in prison at hard labor with credit for time served. The trial court denied the defendant’s motion to reconsider sentence, and this appeal followed.

DISCUSSION

Motion for Mistrial

The defendant contends the trial court erred in denying his motion for mistrial based upon a comment made by the prosecutor during his opening statement. During his opening statement, the prosecutor stated:

|4Peputy Gilmore took defendant Banks to the Texaco Station downtown in Winnsboro to make a phone call on a line other than a Sheriffs Office telephone. And when they got there, Deputy Gilmore set up recording equipment on the telephone to record the telephone call by the defendant Banks. As he was doing that, James Banks fled on foot and escaped. Banks was re-arrested the following day at his home in Winns-boro.

After the state completed its opening statement, defense counsel moved for a mistrial, arguing that the prosecutor’s reference to the defendant’s escape was a prohibited reference to another crime. The trial court denied the motion for a mistrial, stating:

Okay. The Court will allow you to refer to the — to the escape or his disappearance but not to the fact that he has pending charges for the escape.
Okay. I think you can refer to that as him fleeing because that is sometimes used to show a guilty knowledge or intent, so I will allow that but will not allow any referral to the pending charge of escape against him....

Subsequently, on direct examination, Deputy Gilmore testified that when he reached back to give the defendant the telephone, the defendant “had taken off running.” During cross-examination of Deputy Gilmore, defense counsel used the deputy’s testimony to make it clear to the jury that the defendant only left the scene after the deputy had arrested him for selling marijuana. After both sides rested their cases, the defendant made another motion for mistrial based upon the reference to the escape. The court denied the defendant’s motion for a mistrial, stating, “[T]here was no testimony that he was charged with escape.”

The determination of whether to grant a mistrial rests within' the |ssound discretion of the trial judge, and a denial of a motion for mistrial will not be disturbed on appeal absent abuse of that discretion. State v. Mandosia, 36,827 (La.App. 2d Cir.4/9/03), 842 So.2d 1252; State v. Hopkins, 626 So.2d 820 (La.App. 2d Cir.1993). Mistrial is a drastic remedy, and the determination of whether prejudice to the defendant has resulted from the prosecutor’s comments lies in the sound discretion of the trial judge. State v. Draughn, 2005-1825 (La.1/17/07), 950 So.2d 583; State v. Leonard, 2005-1382 (La.6/16/06), 932 So.2d 660.

LSA-C.Cr.P. art. 770(2) mandates a mistrial if the district attorney refers to “[ajnother crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.... ” Although art. 770 is couched in mandatory terms, it is a “rule for trial procedure.” State v. Jackson, 33,837 (La.App. 2d Cir.9/27/00), 768 So.2d 767, writ denied, 2000-3078 (La.11/2/01), 800 So.2d 864; State v. Owens, 32,640 (La.App. 2d Cir.10/27/99), 763 So.2d 628, writ denied, 2000-0010 (La.6/15/00), 764 So.2d 963. Thus, the introduction of inadmissible “other crimes” evidence results in a trial error subject to harmless error analysis on appeal. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94; State v. Jackson, supra; State v. Ingram, 29,172 (La.App. 2d Cir. 1/24/97), 688 So.2d 657, writ denied, 97-0566 (La.9/5/97), 700 So.2d 505. Trial error is harmless where the verdict rendered is “surely unattributable to the error.” Id.

In State v. Ingram, supra, the defendant was charged with aggravated rape. During his opening statement, the prosecutor referred to “ongoing” abuse. The defendant moved for mistrial, contending the prosecutor’s | (¡statement amounted to a reference to other crimes. The trial court denied the motion for mistrial, and this court affirmed the ruling, stating:

[E]ven if it were a reference to other crimes, the statement was harmless error because the jury’s verdict was surely unattributable to that statement. ■ The prosecutor’s ambiguous statement was apparently not repeated when his opening statement resumed. Likewise* the foundation' of the state’s case was not this obscure portion of its opening statement, but the testimony of [the. victims].
We accord credit to the good sense and fair-mindedness of the jurors who heard the evidence. There is no showing that the prosecutor’s comments made it impossible for the defendant to obtain a fair trial and trial judge was not clearly wrong in this determination.

Id. at 666 (internal citations omitted).

In the instant case, while the prosecutor’s statement directly referred to another crime, ie., escape, the defendant has not shown that the jury’s verdict was attributable to that statement. The jury was presented with undisputed evidence that the defendant gave Deputy Gilmore four small bags containing marijuana in exchange for $60; he was arrested with the $60 in his possession; Deputy Gilmore had photocopied the currency prior to the drug exchange; the currency in the defendant’s possession at the time of the arrest bore the same serial numbers as the currency Deputy Gilmore had photocopied. Moreover, there is no showing that the prosecutor’s comments made it impossible for the defendant to obtain a fair trial. In light of the overwhelming evidence offered against the defendant, the prosecutor’s statement with regard to the defendant’s escape following his arrest cannot be viewed as prejudicing the defendant such as to deny him a fair trial. As such, the error was harmless, and the trial court did not abuse |7its discretion in denying the motion for mistrial. This assignment is without merit.

Excessive Sentence

The defendant also contends his sentence of 12 years in prison at hard labor is excessive. According to the defendant, the sentence imposed “is grossly disproportionate to the severity of the crime and serves no useful purpose.”

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2d Cir.2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of LSA-C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with LSA-C.Cr.P art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of Loffense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.

In the instant case, the court ordered a pre-sentence investigation (“PSI”) of the defendant. The PSI revealed that the defendant had an adult criminal record. In the early 1980’s, the defendant had two convictions for driving while intoxicated. His PSI also reflected an arrest in 1985 for burglary and an arrest in 1990 for driving while intoxicated with no disposition of the charges. The defendant’s most serious offenses were a 1991 conviction for aggravated robbery in Texas and another 1991 laconviction in Texas for burglary. The Texas court sentenced the defendant to serve a 10-year hard labor sentence for the aggravated robbery and a 6-year hard labor sentence for the burglary, to run concurrently. In January 2004, the defendant was charged in Louisiana with aggravated battery with a dangerous weapon but pled guilty to simple battery -with an object; the defendant failed to appear for sentencing with regard to that charge. In August 2004, the defendant was charged with simple theft. Moreover, in addition to the instant offense, he has also been charged with simple escape as a result of his escape on the day of his arrest in this matter.

The defendant’s social history indicated that he was reared by his aunt, who is now deceased, as is his father. The defendant indicated that he had not seen his mother since 2001. He earned a GED and has had training in carpentry and cooking; he worked for approximately two years in Texas. After his release from prison in Texas in 2001, the defendant moved to Louisiana and started a landscaping company. The defendant maintained that he was innocent of this crime.

LSA-R.S. 40:966 provides, in part:

B. Penalties for violation of Subsection A. Any person who violates Subsection A with respect to:
* * *
(3) A substance classified in Schedule I which is marijuana, tetrahydrocannabi-nols, or chemical derivatives of tetrahy-drocannabinols, shall upon conviction be sentenced to a term of imprisonment at hard labor for not less than five nor more than thirty years, and pay a fine of not more than fifty thousand dollars.

In this case, the prosecutor did not file a habitual offender bill, so the |indefendant faced a hard labor sentence of between 5 and 30 years. His 12-year sentence is less than half of the statutory maximum.

At the defendant’s sentencing hearing, the trial court reviewed the facts of the instant offense, the defendant’s criminal record and social history. Defense counsel reminded the court that the defendant had a low IQ, and the defendant declined to address the court. The trial court concluded that the nature of the defendant’s criminal history and apparent intention to continue criminal activity warranted a 12-year hard labor sentence.

After reviewing the record, we conclude that the trial court gave sufficient consideration to the factors set forth in LSA-C.Cr.P. art. 894.1. This sentence is neither shocking nor grossly disproportionate to the seriousness of the offense, given this offender’s criminal history. This assignment is without merit.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . The defendant pled not guilty on June 22, 2004. When the case was called in September 2004, the defendant failed to appear, and a warrant was issued for his arrest. The defendant next appeared in court on February 7, 2006, when his attorney filed a motion for a sanity commission. That motion was granted, and the defendant was examined. A sanity hearing was held on May 2, 2006, and the court found that the defendant was competent to stand trial. The materials submitted in conjunction with that hearing are not included in this record, but according to statements made by defense counsel, the defendant was found to have an IQ "between 60 and 70.”


text:
    Howard HUCKABY, Plaintiff-Appellant v. BELLSOUTH TELECOMMUNICATIONS, INC., Defendant-Appellee.
    No. 42,255-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    July 18, 2007.

      S.P. Davis, for Appellant.
    Nathan L. Schrantz, New Orleans, for Appellee.
    Before BROWN, WILLIAMS and DREW, JJ.
   WILLIAMS, J.

h Claimant, Howard Huckaby, filed a disputed claim for workers’ compensation benefits against his former employer, Bell-South Telecommunications, Inc. (“Bell-South”), alleging he had sustained congestive heart failure, coronary heart disease and post-traumatic stress disorder during the course and scope of his employment. Following a hearing, the workers’ compensation judge (“WCJ”) dismissed the claim, concluding, inter alia, the claim was barred by prescription. For the reasons that follow, we affirm the WCJ’s ruling.

FACTS

Claimant was employed by BellSouth in various capacities from March 1971 until March 2002. In 1975, claimant began working as a cable repair technician, and he remained in that capacity until he retired in March 2002. In October 2002, BellSouth called claimant out of retirement for a temporary work assignment.

Claimant testified that on December 24, 2002, he felt a pain in his chest when he was lifting a ladder at work. He went to the hospital the following day and was diagnosed with congestive heart failure (“CHF”) and atrial fibrillation. Claimant’s medical records and testimony indicated that he was diagnosed with high blood pressure in 1978, and his condition worsened over the years, resulting in CHF and atrial fibrillation.

On March 23, 2005, claimant filed a disputed claim for workers’ compensation benefits, alleging he had “sustained coronary heart sickness during the course and scope of his employment when he was diagnosed with L.high blood pressure in March 1978.” Claimant also alleged that he was diagnosed with CHF and had suffered post-traumatic stress disorder (“PTSD”) “from performing extraordinary unusual physical work as a telephone lead cable repairman.”

Following a hearing, the WCJ dismissed the claim for medical and indemnity benefits, concluding it was barred by prescription pursuant to LSA-R.S. 23:1209. The WCJ also concluded that even if the claim had not prescribed, claimant had failed to meet his burden of proving that his cardiac problems were causally connected to his employment, pursuant to LSA-R.S. 23:1021(8) (e) .

The WCJ determined that the claim for PTSD was prescribed because it was filed over two years from the date claimant last worked, December 24, 2002. The WCJ further concluded that even if prescription did not commence on December 24, 2002, the claim was still prescribed because the latest prescription would have begun to run was the injury development date.

[¡Additionally, the WCJ found that even if claimant’s PTSD claim was not prescribed, claimant failed to meet his burden of proving sudden, unexpected and extraordinary stress related to employment as required by LSA-R.S. 23:1021(8)(b). Claimant appeals.

DISCUSSION

Claimant argues his medical conditions constituted a “developing injury” and, therefore, his claim has not prescribed. Conversely, BellSouth contends claimant has failed to meet his burden of proving that prescription was interrupted.

LSA-R.S. 23:1209 provides, in pertinent part:

A. In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.... Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.
|4C. All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after, the accident a formal claim has been filed with the office as provided in this Chapter....

An employee who suffers a work related injury that immediately manifests itself, but only later develops into a disability, has a viable cause of action until one year from the development of the disability, rather than from the first appearance of symptoms or from the first date of treatment. Winford v. Conerly Corporation, 2004-1278 (La.3/11/05), 897 So.2d 560; Sevin v. Schwegmann Giant Supermarkets, Inc., 94-1859 (La.4/10/95), 652 So.2d 1323. The “time the injury develops,” is generally understood as the date the disability develops, which is usually identified as the time when it becomes clear that the worker can no longer perform his or her employment duties in a satisfactory manner. Id. The “developing injury” rule is applicable where the employee, after an accident in which injury is immediately apparent, continues to attempt employment duties until he or she is finally disabled from doing so. Id.

The jurisprudence has generally identified two situations that signify the date a developing injury was found to be disabling for the purpose of prescription. The first is the date of termination of employment. Winford, supra, citing Scott v. Wal-Mart Stores, Inc., 2003-0104 (La.App. 4 Cir. 7/2/03), 851 So.2d 1210; Boudreaux v. Angelo Iafrate Const., 2002-0992 (La.App. 1 Cir. 2/14/03), 848 So.2d 3. The second is the date of medical |fidiagnosis where the diagnosis notifies a previously unaware injured employee of a disabling condition. Winford, supra; Scott, supra. Alternatively, the date of diagnosis is helpful in determining the date an employee became disabled where the record does not indicate the date when the employee became unable to work. Winford, supra, citing Holcomb v. Bossier City Police Dept., 27,095 (La.App. 2d Cir.8/25/95), 660 So.2d 199.

In the instant case, the record does not expressly state the date claimant became unable to work. However, it is undisputed that claimant was diagnosed with high blood pressure in 1978 and continued working with the disease. Claimant’s last date of employment with BellSouth was December 24, 2002, and he was diagnosed with CHF December 25, 2002. The claim for workers’ compensation benefits was filed March 23, 2005, approximately two years and three months after claimant’s diagnosis with CHF and his last date of employment. Thus, it is clear from the record that claimant did not file a claim for benefits within the time limitations set forth in LSA-R.S. 23:1209(A). Moreover, the claim for medical benefits was not filed within one year of the “accident” as mandated by LSA-R.S. 23:1209(C). For these reasons, we hold that the WCJ correctly concluded that claimant’s claim for indemnity and medical benefits, based upon his heart-related illness, has prescribed. Having reached this conclusion, we need not address the issue of whether claimant met his burden of proving that his illness was causally related to the stress of his employment.

We also reject claimant’s argument that the doctrine of contra non va-lentem preserves his claim. In order for contra non valentem to prevent | (¡the running of prescription, claimant’s cause of action would have to have been neither known, nor reasonably knowable to him. Peters v. Ruskin Mfg., 40,977 (La.App. 2d Cir.4/12/06), 926 So.2d 806; Gaddy v. Caddo Parish Sch. Bd., 36,583 (La.App. 2d Cir.12/11/02), 833 So.2d 1088. Actual knowledge or constructive knowledge of a cause of action has been defined as the time “[w]hen a party has sufficient information to incite curiosity, to excite attention or to put a reasonably minded person on guard and call for inquiry....” Netherland v. Ethicon, Inc., 35,229 (La.App. 2d Cir.4/5/02), 813 So.2d 1254, writ denied, 2002-1213 (La.6/21/02), 819 So.2d 339.

The trial court’s assessment of claimant’s knowledge is a factual finding; absent an abuse of discretion or manifest error, a reviewing court cannot disturb the factual findings of a trial court. Peters, supra, citing Rosell v. ESCO, 549 So.2d 840 (La.1989). Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell, supra; Peters, supra; Charrier v. Primm, 40,038 (La.App. 2d Cir. 8/19/05), 909 So.2d 1033.

In the instant case, as stated above, claimant experienced chest pain on December 24, 2002. He sought medical treatment and was diagnosed with CHF on December 25, 2002. Based on the record before us, we conclude that claimant had sufficient knowledge, or at the least, he could have known, through reasonable diligence, of his claim against BellSouth on December 25, 2002. Therefore, prescription was not interrupted under |7the theory of contra non valentem.

With regard to the claim for benefits for PTSD, claimant contends that his claim has not prescribed because he was not made aware of his diagnosis of PTSD until June or July 2004. However, Gayle Gucker, a Licensed Professional Counsel- or, testified that she diagnosed claimant with depressive disorder and PTSD on January 5, 2004, and she discussed the diagnosis of PTSD with claimant on that date. However, claimant did not file his claim for workers’ compensation benefits until March 23, 2005, approximately one year and two months after his diagnosis. Therefore, the claim was filed more than one year from the time claimant’s PTSD “developed,” and is, therefore, prescribed under LSA-R.S. 23:1209. In reaching this conclusion, we need not address the WCJ’s determination that claimant failed to meet his burden of proving sudden, unexpected and extraordinary stress related to his employment with BellSouth.

CONCLUSION

For the foregoing reasons, we affirm the WCJ’s ruling that the claim for workers’ compensation benefits has prescribed. The costs of this appeal are to be borne by appellant, Howard Huckaby.

AFFIRMED.

      . According to the testimony, it was customary for BellSouth to call recent retirees to come back to work on temporary projects or when additional personnel was needed.

      . LSA-R.S. 23:1021 (8)(e) provides:
      (e) Heart-related or perivascular injuries. A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:
      (i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
      (ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.

      . LSA-R.S. 23:102l(8)(b) provides:
      Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.


author: CARLSON, Justice, DIAZ, Presiding Justice,

text:
    Lawrence BRANCH v. STATE of Mississippi.
    No. 2004-DR-01086-SCT.
    Supreme Court of Mississippi.
    May 17, 2007.
    Rehearing Denied Aug. 16, 2007.

      Mississippi Office of Capital Post-Conviction Counsel by William J. Clayton, Robert M. Ryan, Louwlynn Vanzetta Williams, attorneys for appellant.
    Office of the Attorney General by Pat McNamara, attorney for appellee.
   CARLSON, Justice,

for the Court.

¶ 1. After this Court affirmed on direct appeal Lawrence Branch’s capital murder conviction and death sentence, Branch filed with us his Petition for Post-Conviction Relief with Exhibits (PCR) and his Amendment to the Petition for Post-Conviction Relief with Exhibits (amended PCR) pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act (Miss.Code Ann. §§ 99-39-1, et seq. (Rev. 2000)). Also before the Court are the corresponding responses by the State of Mississippi and Branch’s replies thereto. Finding that Branch is not entitled to any post-conviction relief, we deny Branch’s PCR and the amended PCR.

¶ 2. Branch was found guilty of capital murder for the January 21, 2001, killing of Dorothy Jorden. Branch v. State, 882 So.2d 36 (Miss.2004). Branch was subsequently sentenced to death by the same jury. Id. Branch raised nineteen issues on direct appeal and, finding no reversible error, this Court affirmed Branch’s conviction and death sentence. Id. Branch’s motion for rehearing was denied September 30, 2004. Branch thereafter petitioned the United States Supreme Court for writ of certiorari, which was denied March 7, 2005'. Branch v. Mississippi 544 U.S. 907, 125 S.Ct. 1595, 161 L.Ed.2d 282 (2005).

FACTS

¶ 3. The following facts are gleaned from the opinion of Branch’s direct appeal. A more complete statement of the facts can be found in that opinion. Branch, 882 So.2d at 44-47.

¶ 4. After working the 3-11 p.m. shift at Heatcraft in Grenada on January 20, 2001, Lawrence Branch drove to the home of his cousin, Deondray Johnson. Johnson had a piece of furniture wood with him. The two then went to Dot’s Burger Bar (“Dot’s”), a restaurant and club owned by the victim, Dorothy Jorden. Dot’s Burger Bar is located in Coila, a small community in Carroll County. Branch and Johnson stayed until closing. Before leaving Dot’s, Branch and Johnson promised to return and give Johnson’s mother, Janie Johnson, a ride home. Branch never returned to give Ms. Johnson a ride home.

¶ 5. At approximately 4:00 p.m. on January 21, Jorden’s body was found inside her home in a pool of blood. It was apparent that Jorden was beaten in the head outside because there was a bloody indentation in the ground about the size of an adult head. Jorden’s earring was also found in that indentation. Additionally, a broken stick of wood was found in the woods.

¶ 6. Carroll County Sheriff Donald Gray went to Branch’s home and took the clothing that Branch said he wore the night before. Deputies Spellman and Michael Peeples went to Johnson’s house and brought him in for questioning. While at the Johnson home, the officers found wood which appeared to be identical to the broken stick found in the woods. The officers also took the clothing Johnson wore the night before.

¶ 7. Law enforcement officials questioned Branch at the station, released him to go to work, questioned Johnson, and then brought Branch in for more questioning. Branch and Johnson admitted being together all evening, but their stories did not match. A videotape reveals Branch describing the events after he and Johnson left Dot’s. The events described are as follows: After dropping off Mary Jenkins and Anthony Gatewood, two patrons from Dot’s who Branch and Johnson agreed to give a ride home, Branch and Johnson stopped on the side of the road and walked through the woods where they discussed robbing Jorden. Branch and Johnson watched Jorden leave her house to drive Janie Johnson and a male companion home. When Jorden returned, Johnson was near a vehicle already parked in the yard and Branch was alongside the house. That is when Johnson came up from behind and struck Jorden. Branch stated, “... I was just holding her down. I hold [sic] her down where I could get the money out of her pocket.” He later indicated that he hit Jorden three times and Johnson hit Jorden three times. Then they dragged her body into the house and sat her up on the floor. After searching for more money, they left with approximately two hundred dollars and Jorden’s pistol.

¶ 8. Several days after Branch was arrested, Branch’s father, Willie Branch, found a white plastic bag in high grass and weeds on the Johnsons’ property. Willie Branch and Branch’s attorneys turned the bag over to the Sheriff. The bag contained a pistol, money, food stamps, and coin wrappers.

¶ 9. An autopsy was performed on Jor-den by Dr. Steven Hayne, and the results revealed that Jorden died from closed head injuries secondary to blunt force trauma. Based upon the bruising and tearing of the flesh, Dr. Hayne estimated that Jorden was struck approximately five to six times on the top of the head and that these blows would have required a considerable amount of force. Defensive wounds were found on Jorden indicating that she was conscious during at least part of the attack.

¶ 10. Evidence of blood was found on Johnson’s clothing, and a DNA comparison revealed that the blood was Jorden’s. Jor-den’s blood was also found on the broken stick. Tests likewise confirmed that the two pieces of wood found previously constituted one piece and that both pieces were consistent with other wood found at Johnson’s home. Johnson’s palm print was found on one of the food stamps within the white bag found by Willie Branch. The pistol found in the bag was traced back to Jorden through the serial number.

DISCUSSION

¶ 11. Branch raises six grounds for relief in his PCR and the additional claim of mental retardation in his amended PCR. Those assignments of error are issues III— IX. Issues I and II are arguments regarding whether procedural bars and the doctrine of res judicata should apply in this case. These issues will be addressed in order.

I. THE DOCTRINE OF RES JUDI-CATA AS A PROCEDURAL BAR TO GENERAL POST-CONVICTION CLAIMS

¶ 12. Branch contends that the claims raised in his "petition for post-conviction relief are so meritorious and of such a nature that the procedural bar known as the doctrine of res judicata should not apply in this case. Miss.Code Ann. § 99-39-21(3) (Supp.2006) states: “The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal.” Branch argues that “drastic changes in the capital case law landscape have placed a significantly increased burden on the appellate courts in cases where a life is at stake.”

¶ 13. In Lockett v. State, 614 So.2d 888 (Miss.1992), this Court considered the post-conviction application of Carl Daniel Lockett, who like Branch, was convicted of capital murder and sentenced to death. Also like Branch, Lockett readily admitted that some of the issues raised in his post-conviction application were raised on direct appeal and decided adversely to him. Id. at 893. Lockett urged this Court to “reconsider precedent governing those issues and address the claims raised because each claim concerns issues still debated in this country’s death penalty jurisprudence.” Id. This Court stated:

The procedural bars of waiver, different theories, and res judicata and the exception thereto as defined in Miss.Code Ann. § 99-39-21(1-5) are applicable in death penalty PCR Applications. Irving v. State, 498 So.2d 305 (Miss.1986); Evans v. State, 485 So.2d 276 (Miss.1986). Rephrasing direct appeal issues for post-conviction purposes will not defeat the procedural bar of res judicata. Irving v. State, 498 So.2d 305 (Miss.1986); Rideout v. State, 496 So.2d 667 (Miss.1986); Gilliard v. State, 446 So.2d 590 (Miss.1984). The Petitioner carries the burden demonstrating that his claim is not procedurally barred. Miss.Code Ann. § 99-39-21(6) (Supp.1991); Cabello v. State, 524 So.2d 313, 320 (Miss.1988). However, “an alleged error should be reviewed, in spite of any procedural bar, only where the claim is so novel that it has not previously been litigated, or, perhaps, where an appellate court has suddenly reversed itself on an issue previously thought settled.” Irving v. State, 498 So.2d 305, 311 (Miss.1986).

614 So.2d at 893 (footnote omitted).

¶ 14. In today’s case, the State contends that “every single assignment of error set forth in Branch’s Petition for Post Conviction Relief is barred under the doctrine of res judicata.” In our analysis, each of the issues raised by Branch in his PCR and his amended PCR will be reviewed to see if he has demonstrated a novel claim or a sudden reversal of law relative to his claim that would excuse him from the procedural bar. If Branch has not made such a showing, the procedural bar of res judicata applies.

II. THE DOCTRINE OF RES JUDI-CATA AS A PROCEDURAL BAR TO CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL AND MENTAL RETARDATION

¶ 15. On direct appeal, Branch presented claims of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and mental retardation under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). See Branch v. State, 882 So.2d at 49-59. This Court rejected those claims. Id. Branch now asserts that he should not be precluded from raising the same issues again.

A. M.R.A.P. 22(b) and a meaningful opportunity to seek post-conviction relief.

¶ 16. Branch’s argument is similar to that presented in Issue I, being that procedural bars should not apply because the direct appeal process did not allow him an adequate opportunity to present a fully developed argument to support his Strickland and Atkins claims. He further asserts that the direct appeal process does not allow him access to the files of trial counsel, law enforcement officials, and the prosecutor, or allow him to secure a mitigation expert or an evidentiary hearing, otherwise available under M.R.A.P. 22(c), (d), and (e).

¶ 17. Branch argues that no procedural bar should prevent this Court from reconsidering his Strickland and Atkins claims. Further, Branch asserts his right to effective post-conviction relief counsel, and argues that failure of this Court to reconsider his Strickland and Atkins claim would deny him that right.

¶ 18. Branch was represented on direct appeal by counsel other than his trial counsel. M.R.A.P. 22(b), as it existed at the time of Branch’s trial and direct appeal, stated:

Issues which may be raised in post-conviction proceedings may also be raised on direct appeal. Where the appellant is represented by counsel who did not represent the appellant at trial, the failure to raise such issues on direct appeal shall constitute a waiver barring consideration of the issues in post-conviction proceedings.

Branch, 882 So.2d at 49. Branch raised the issues of mental retardation and ineffective assistance of counsel on direct appeal. Extraneous facts and appendices submitted on direct appeal that were not part of the trial record were challenged by the State; however, this Court allowed consideration of the extraneous material. For reasons fully discussed in the opinion on Branch’s direct appeal, this Court held that “Branch must raise Atkins and ineffective assistance of counsel issues in this direct appeal or he will be barred from doing so in subsequent appeals.” Id. Therefore, this Court permitted Branch to proceed with these issues, and we considered the additional documents supplied in his Appendices to Original Brief of Appellant. Id.

¶ 19. This Court has also previously stated that “[i]f new counsel on direct appeal is required to assert collateral claims, there must be an opportunity to submit extraneous facts and discovery and eviden-tiary hearing to develop and prove the allegations.” Id. (citing Brown v. State, 798 So.2d 481, 491 (Miss.2001); Smith v. State, 477 So.2d 191, 195 (Miss.1985); Turner v. State, 590 So.2d 871, 874 (Miss.1991); and Jackson v. State, 732 So.2d 187, 190 (Miss.1999)). Thus, Branch’s argument that M.R.A.P. 22(c) violates his federal and state constitutional rights is without merit.

B. Claims of mental retardation.

¶ 20. Branch asserts that he has not been afforded an opportunity to present a mental retardation claim. He asserts that such claims are appropriate for post-conviction proceedings but he was forced to present the issue on direct appeal. He further asserts that he has tried to comply with the requirements of Chase v. State, 873 So.2d 1013 (Miss.2004) and this Court has consistently refused to allow him to comply.

¶ 21. In Chase, this Court set the limits and defined the procedure which will safeguard the Eighth Amendment protection of mentally retarded persons, as required by Atkins. Chase was handed down on May 20, 2004 — seven weeks after Branch’s direct appeal was submitted on March 31, 2004, and one week before Branch’s direct appeal was decided on May 27, 2004.

¶ 22. Branch filed a motion for rehearing and argued that he must be given an opportunity to comply with the procedure established in Chase. Attached to Branch’s motion for rehearing as “Exhibit A” was an undated affidavit from Daniel Grant, Ph.D. The State filed a motion to strike the exhibit, and this Court granted the motion. Branch v. State, 2004 Miss. LEXIS 1219 (Miss. Sept. 30, 2004).

¶ 23. First, Branch’s argument that he has not had a single opportunity to present a mental retardation claim is false. The issue of Branch’s mental retardation was considered on its merits. Specifically, this Court held:

The burden of proof is on the defendant claiming mental retardation. Goodin [v. State], 856 So.2d at 276 (¶ 22). In Goo-din, we pointed out that:
The Legislature adopted the following standard in Miss.Code Ann. § 41-21-61(f) (Rev.2001), dealing with commitments, which states in part:
(f) “Mentally retarded person” means any person (i) who has been diagnosed as having substantial limitations in present functioning, manifested before age eighteen (18), characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work ...
Goodin, 856 So.2d at 276-77 (¶ 23).
Branch argues that he is mentally retarded and, therefore, cannot be executed for this crime. In support of his argument, Branch relies solely on the Psychological Evaluation performed by the Region VI Mental Health-Mental Retardation Center on March 15, 1985, and the synopsis of that diagnosis in the 2002 court-ordered evaluation performed after Branch was arrested. Both documents were available to trial counsel; however, apparently as part of a trial strategy, neither document was used in the trial of this case.
At the time of the 1985 evaluation, Branch was five years, three months old. Then seventeen years later and after his arrest in this case, the trial court ordered W. Criss Lott, Ph.D., a clinical psychologist, to perform a mental evaluation on Branch. In doing so, Dr. Lott acknowledged the previous testing:
On that evaluation [Branch] obtained an IQ of 68 on the Stanford-Binet Intelligence Scale, Form L-M. He also obtained an IQ of 41 on the Peabody Picture Vocabulary Test, Form B, and a Social Age Equivalent of 6.0 and Social Quotient of 113 (this appears to be a mistake). He also obtained a mental score of 3 years 6 months on the Goodenough-Draw-A-Man-Test. At that time he received the diagnosis of mild mental retardation with unknown etiology.
However, the March 10, 2002, forensic mental evaluation of Branch reveals a different result. Branch was administered two separate tests. The Wechsler Adult Intelligence Scale-Ill (WAIS-III) revealed a verbal IQ of 91 (low average range), a performance IQ of 76 (borderline range), and a full scale IQ of 84 (low average range). The Wide Range Achievement Test-Ill (WRAT-3) revealed a reading score in the average range and at the high school level; the arithmetic score was in the low average range and at a sixth grade level. Dr. Lott indicated that “the results are considered an accurate reflection of his current level of functioning.”
While Branch may have manifested intellectual limitations at the age of five, he does not have substantial limitations in present functioning which “exist[] concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work.” In fact, Branch has displayed no limitations in these adaptive skills areas. At the time of the evaluation, Branch was appropriately groomed and properly maintained personal hygiene, possessed a driver’s license, was responsible for buying clothing, groceries, and personal items. He completed school through the 9th grade and attended GED classes. Branch was employed at the time of his arrest. Branch performed household chores for relatives and people in the neighborhood. He helped raise money for the church and community.
Under these facts, Branch has not made a prima facie showing that he falls within the category of persons protected under Atkins. Under the guidelines of the American Psychiatric Association, Branch only meets the third criterion, that consisting of an onset of the manifestation prior to age 18; however, Branch fails to meet either of the first two criterion. Therefore, this issue is without merit.

Branch, 882 So.2d at 50-51.

¶ 24. Branch filed his Petition for Writ of Certiorari with the United States Supreme Court on December 29, 2004, and his petition was placed on the docket January 4, 2005 as No. 04-7946. Branch v. Mississippi 544 U.S. 907, 125 S.Ct. 1595, 161 L.Ed.2d 282 (2005). In his third issue before the United States Supreme Court, Branch argued that this Court was required to consider Dr. Grant’s affidavit in light of the intervening decision in Chase. The U.S. Supreme Court denied Branch’s petition for writ of certiorari on .March 7, 2005. Id.

¶ 25. In Chase, we set forth specific requirements to be followed by the small number of persons with mental retardation claims convicted before Atkins and Chase were handed down. Chase, 873 So.2d at 1023. This Court made clear that as a person convicted before Atkins was handed down, Chase could not be constitutionally denied the opportúnity to present his mental retardation claim to the trial court where he had demonstrated that his IQ fell within the range of possible mental retardation, and he presented an affidavit of a mental health care professional that he suffered from “mild retardation.” Id. Here, Branch has not complied with the necessary procedures nor provided the necessary documentation to rightfully comply with our holding in Chase. Therefore, we decline to grant relief on this issue.

C. Effective assistance of counsel on direct appeal.

¶ 26. Finally, Branch argues that if his appellate counsel was duty-bound to present post-conviction claims on direct appeal, then his appellate counsel was ineffective in the manner in which Branch’s mental health was presented. Specifically, Branch accuses appellate counsel of “hurriedly” obtaining a few affidavits, which Branch asserts were “generic, boilerplate statements that conveyed little note (sic) about Petitioner’s mental state, background, or intellectual functioning.”

¶ 27. The test for ineffective assistance of counsel is well-settled. “The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. In order to prevail on this claim, Branch must demonstrate that counsel’s performance was deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 104 S.Ct. 2052. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Stringer v. State, 454 So.2d 468, 477 (Miss.1984) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

¶ 28. Defense counsel is presumed competent. Washington v. State, 620 So.2d 966 (Miss.1993). However, even where professional error is shown, a reviewing court must determine whether there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Mohr v. State, 584 So.2d 426, 430 (Miss.1991). When reviewing a case involving the death penalty, the most important inquiry is “whether there is a reasonable probability that, absent the errors, the sentencer-including an appellate court, to the extent it independently re-weighs the evidence-would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. If Branch’s post-conviction application fails on either of the Strickland prongs, the proceedings end. Foster v. State, 687 So.2d 1124, 1129-30 (Miss.1996).

¶ 29. Branch’s appellate counsel presented evidence to this Court on direct appeal, over the State’s objection, in support of Branch’s mental retardation claim. The extraneous evidence included the forensic mental evaluation of Branch performed on February 28, 2002, by W. Criss Lott, Ph.D., a clinical psychologist, as well as the mental evaluation of Branch performed on March 15, 1985, when Branch was only five years old. Also presented were the affidavits of Dr. Lott, numerous family members, and several of Branch’s former teachers. Once this Court affirmed Branch’s conviction and sentence on direct appeal, Branch’s appellate counsel filed a motion for rehearing with an additional affidavit from Dr. Grant, which this Court struck upon motion by the State. Counsel for Branch then placed this issue before the United States Supreme Court in a petition for writ of cer-tiorari.

¶ 30. We find that Branch has failed to show that his appellate counsel was deficient and, therefore, he has failed to meet the burden placed upon him by the first prong of Strickland. Additionally, Branch’s claim of mental retardation failed on the merits on direct appeal. “We must caution that other issues which were either presented through direct appeal or could have been presented on direct appeal or at trial are procedurally barred and cannot be relitigated under the guise of poor representation by counsel.” Foster, 687 So.2d at 1129.

III. ADMISSION OF VICTIM IMPACT TESTIMONY

IV. REFUSAL OF DEFENSE SENTENCING INSTRUCTIONS DS-1, DS-5, AND DS-10

V. REFUSAL OF DEFENSE SENTENCING INSTRUCTION DS-2, DEFINITION OF “MITIGATING CIRCUMSTANCES”

VI. REFUSAL OF DEFENSE SENTENCE INSTRUCTION DS-1, THE BURDEN OF PROOF

VII. EFFECTIVENESS OF COUNSEL AT ALL STAGES OF THIS PROSECUTION

A.l. INVESTIGATION AND PRESENTATION OF BRANCH’S MENTAL RETARDATION CLAIM DURING THE PENALTY PHASE OF THE TRIAL

A.2. FAILURE TO INTRODUCE MENTAL HEALTH MITIGATION OTHER THAN THE FINDING OF MENTAL RETARDATION

A.3. FAILURE TO INVESTIGATE

VIII. STATE’S BURDEN TO SHOW THAT DEATH WAS THE APPROPRIATE SENTENCE IN THIS CASE

IX. CLAIM OF MENTAL RETARDATION

¶ 31. Each of the Issues III-IX was raised on direct appeal and decided adversely to Branch. See Branch, 882 So.2d 36. With the exception of Branch’s Issue IX, these issues and their respective arguments presented in Branch’s PCR are identical, almost verbatim, to the arguments presented in Branch’s Original Brief of Appellant on direct appeal. Branch has not demonstrated a novel claim nor a sudden reversal of law relative to these issues which would exempt a single one of these claims from the procedural bar of res judi-cata pursuant to Miss.Code Ann. § 99-39-21(3) (Supp.2006). See also Lockett v. State, 614 So.2d 888, 893 (Miss.1992) (citing Rideout v. State, 496 So.2d 667 (Miss.1986); Gilliard v. State, 446 So.2d 590 (Miss.1984)).

¶ 32. For the foregoing reasons, this Court finds that Lawrence Branch is not entitled to post-conviction relief; therefore, we deny Branch’s Petition for Post Conviction Relief with Exhibits and his Amendment to Petition for Post-Conviction Relief with Exhibits.

¶ 33. PETITION FOR POST-CONVICTION RELIEF WITH EXHIBITS AND AMENDMENT TO THE PETITION FOR POST-CONVICTION RELIEF WITH EXHIBITS, DENIED.

SMITH, C.J., WALLER, P.J., EASLEY, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J.

DIAZ, Presiding Justice,

Dissenting:

¶ 34. Because Branch has presented sufficient evidence of mental retardation and because such a claim is not procedurally barred, I must dissent.

I. Branch has Presented Sufficient Evidence of Mental Retardation.

¶35. The majority’s assertion that “Branch has not complied with the necessary procedures nor provided the necessary documentation to rightfully comply with our holding in Chase ” does not comport with the record. The majority conveniently fails to mention two critical facts: (1) that Dr. Gant’s affidavit states that Dr. Lott’s previous assessment cannot be relied upon as a determination of mental retardation and (2) that Branch’s most recent testing shows that he falls within the definition of mental retardation as defined by Atkins.

¶ 36. This Court previously relied on a report by Dr. Criss Lott which merely determined that Branch was competent to stand trial. Dr. Gant states in his affidavit that because the examination was aimed at determining competency, the report cannot be relied upon for determining mental retardation. Specifically, Dr. Gant finds the report insufficient to determine mental retardation because (1) Branch was given an abbreviated Wechsler Adult Intelligence Scale which can only give an estimated IQ; (2) there are a number of abnormalities in the test scores; and (3) the report did not assess the differences in the 1985 and 2002 test scores. Dr. Gant went on to say that, in his expert opinion, Branch was mentally retarded and had an IQ of 75 or below.

¶ 37. The majority also completely fails to mention that attached to Branch’s petition is a report concluding that Branch “meets all criteria for a diagnosis of mental retardation.” This report is a result of Dr. Marc Zimmerman’s October 7, 2005, examination of Branch. According to his report, Dr. Zimmerman used the following assessment' techniques to ‘ determine Branch was mentally retarded: clinical interview, Wechsler Adult Intelligence Scale-Ill, Short Category Test, Screening Test for the Luria-Nebraska Neuropsy-chological Battery, and • Wide Range Achievement Test-Ill.

¶ 38. Branch has most certainly met the requirements of Chase as he has presented an expert who has “expresse[d] an opinion, to a reasonable degree of certainty” that: (1) Branch is mentally retarded as defined by the American Association on Mental Retardation and (2) he has completed multiple tests and is not malingering. See Chase v. State, 873 So.2d 1013, 1029 (Miss.2004) (setting out these two requirements). By turning a blind eye to this evidence, this Court will be sanctioning the death of a potentially mentally retarded person. The United States Supreme Court made absolutely clear in Atkins that this is unconstitutional, and we must allow Branch the opportunity to pursue his Atkins claim in the trial court.

II. Branch’s Atkins Claim is Not Procedurally Barred.

¶ 39. Though not explicitly stated, by not considering this evidence the Court treats this issue as procedurally barred. As we reiterated in Chase v. State, 873 So.2d 1013, 1023 (Miss.2004), “[i]t is not our function to determine whether [the defendant] is mentally retarded.” Rather, this Court simply decides whether a defendant has met certain requirements sufficient to remand the case for a factual determination by a trial court. Id.

¶ 40. Branch has never been allowed the opportunity to comply with Chase, which is clearly an intervening decision. That decision specifically held “for defendants whose trials were held prior to the publication of this opinion, the affidavit as described above shall be attached to the defendant’s application for post-conviction relief.” Id. at 1029-30 (emphasis supplied). Branch attached such an affidavit to his motion for rehearing on direct appeal, but it was stricken by this Court. Because we have never allowed Branch the opportunity to present a prima facie case for an Atkins claim, this issue is not procedurally barred.

¶ 41. I am further troubled by the finding of a procedural bar in this case where the State has attempted to prevent Branch from even receiving the requisite testing. In order for a medical professional to even examine the defendant, his post-conviction counsel was forced to obtain an order from the Carroll County Circuit Court allowing the psychologist to enter the prison. While the Mississippi Department of Corrections would allow Branch’s counsel and a social worker to visit, it was their policy to require court orders for medical doctors. The trial judge at this hearing was rightly surprised that such an order was required and that the State of Mississippi was actually opposing the motion:

Court: —Wait a minute. I’m not being asked to order a psychiatric evaluation, am I?
Defense: No, sir.
Court: I am just being ordered — you are asking for an order to let your guy go there to talk to them.
Defense: To let us have a professional examine—
Court: — retained by your office?
Defense: Sir?
Court: I mean I’m not even ordering payment or anything on that, am I?
Defense: No, sir. There is not a request for county funds. We are available to do this particular one with funds from our office. But what I think is—
Court: — Let me see y’all’s motion.
(Document handed to the Court.)
Court: Let me look at it, review it real quick.
(Off the record briefly.)
Court: Ms. Dotson, they are not asking me to order this. They are just asking for access to this person. What standing do y’all have to object to that, them having access to their client?

¶ 42. I share the trial judge’s concern. It is disturbing that the Department of Corrections would require a court order and that the State would oppose such a motion. In light of these obstacles, how can this Court expect a defendant to comply with a decision issued only one week before his direct appeal is decided?

Conclusion

¶ 43. Because Branch has fulfilled the requirements of our decision in Chase, I would remand for an Atkins hearing.

GRAVES, J., JOINS THIS OPINION.

      . M.R.A.P. 22(b), amended effective February 10, 2005, now states: “Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record. Where the appellant is represented by counsel who did not represent the appellant at trial, the failure to raise such issues on direct appeal shall constitute a waiver barring consideration of the issues in post-conviction proceedings.” (Emphasis added to indicate the 2005 amendment).

      . The same exhibit appears as "Exhibit 2” of Branch’s PCR, although unsigned by Dr. Grant. In Branch’s PCR reply brief, the affidavit appears as "Exhibit 1,” this time signed but undated.

      . Issue III, Id. at 67-68 (as Issue VIII);
      Issue IV, Id. at 68-71 (as Issue IX);
      Issue V, Id. at 72 (as Issue XI);
      Issue VI, Id. at 71-72 (as Issue X);
      Issue VII, Id. at 51-52 (as Issue II);
      Issue VII A.l., Id. at 52-53(as Issue II.
      A.l.);
      Issue VII A.2., Id. at 53 (as Issue II A.2.);
      Issue VII A.3., Id. at 53-55 (as Issue II
      A.3.);
      Issue VIII, Id. at 72-74 (as Issue XII); and,
      Issue IX, Id. at 49-5l(as Issue I.).

      . Branch's argument on Issue IX of his Amendment to Petition for Post-Conviction Relief with Exhibits (beginning at page 3) is identical to the argument presented in his Original Brief of Appellant filed on direct appeal (beginning at page 3) with the exception of the added citations to Chase v. State, 873 So.2d 1013 (Miss.2004). As discussed in Issue II, this claim is barred by the doctrine of res judicata. Miss.Code Ann. § 99-39-21(3) (Supp.2006).


author: WALLER, Presiding Justice, DIAZ, Presiding Justice,

text:
    Ronald Chris FOSTER a/k/a Ron Chris Foster v. STATE of Mississippi.
    No. 2005-KA-01938-SCT.
    Supreme Court of Mississippi.
    May 31, 2007.
    Rehearing Denied Aug. 16, 2007.
    Michael R. Farrow, Columbus, Steve Wallace, attorneys for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
   WALLER, Presiding Justice,

for the Court.

¶ 1. We vacated the death sentence of Ronald Chris Foster pursuant to the United States Supreme Court’s decision in Roper v. Simmons, and directed the Circuit Court of Lowndes County to resen-tence Foster to life in prison without the possibility of parole under Miss.Code Ann. § 99-19-107 (Rev.2000). The circuit court complied with that directive. On appeal, Foster challenges the applicability of section 99-19-107 and argues that we erred in not resentencing him under the 1991 version of Mississippi’s capital murder statute, which would require a sentence of life with the possibility of parole. Because Foster’s case is procedurally barred, and because we properly applied Miss.Code Ann. § 99-19-107 to Foster’s case, the order from the circuit court is affirmed.

FACTS

¶ 2. Ronald Chris Foster was convicted in 1991 for capital murder with the underlying felony of armed robbery and was sentenced to death. He was seventeen years old at the time of the offense. We affirmed his conviction and sentence on direct appeal. Foster v. State, 639 So.2d 1263 (Miss.1994). Foster subsequently brought a motion for post-conviction relief, arguing that his diminished mental capacity made the imposition of the death penalty unconstitutional pursuant to the United States Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). We addressed those claims in Foster v. State, 848 So.2d 172 (Miss.2003), and directed the circuit court to conduct an Atkins hearing on the issue of Foster’s mental retardation.

¶ 3. In the wake of the United States Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), which held that the application of the death penalty against juvenile offenders violated the Eighth and Fourteenth Amendments, we granted a motion by the State of Mississippi to withdraw our mandate for an Atkins hearing, vacated Foster’s death sentence, and directed the Lowndes County Circuit Court to sentence Foster to life without the possibility of parole under Miss.Code Ann. § 99-19-107. Foster v. State, 2005 Miss. LEXIS 476 (Miss.2005); 95-DR-00750-SCT. Foster did not respond to the State’s motion for resentencing and did not file a motion for reconsideration after it was granted. After the case was remanded to the circuit court, Foster filed a motion for a new sentencing hearing, alleging that this Court’s order imposed an impermissible ex post facto sentence. The circuit court denied Foster’s motion, finding that it had no discretion to consider the propriety of Foster’s claim. Foster then appealed both this Court’s final judgment and the denial of his motion for a sentencing hearing.

DISCUSSION

¶ 4. On appeal, Foster argues that his sentence constitutes an impermissible ex post facto punishment since the only sentencing options available under Miss.Code Ann. § 97-3-21 (1991) at the time of sentencing were death or life with the possibility of parole. He further argues that Miss.Code Ann. § 99-19-107, which states that if the death penalty is deemed unconstitutional, we must amend a defendant’s sentence to life without the possibility of parole, is not applicable because Roper v. Simmons did not deem all applications of the death penalty unconstitutional, but only those imposed on juvenile offenders.

¶ 5. The State responds that Foster is procedurally barred from bringing an appeal to this Court’s resentencing order, since he did not file a response to the State’s motion to resentence, and that the application of Miss.Code Ann. § 99-19-107 presents no ex post facto problem, since the statute was passed on July 1, 1982, years before Foster’s original sentencing.

I. WHETHER FOSTER IS PROCEDURALLY BARRED FROM CHALLENGING HIS SENTENCE.

¶ 6. The trial court was correct in noting that it had no discretion to consider Foster’s ex post facto claim. The execution of orders issued by this Court is a purely ministerial act, and lower courts have no authority to alter or amend them. See, e.g., Miss. Comm’n on Judicial Performance v. Sanders, 708 So.2d 866, 874 (Miss.1998). Instead, Foster’s claim should have been raised in a response to the State’s motion to this Court under Miss. R.App. P. 27(a), or, in the alternative, in a motion for reconsideration of a motion under Miss. R.App. P. 27(h), or in a motion for rehearing under Miss. R.App. P. 40, after we granted the State’s motion. His failure to do so bars his claim. In the alternative, his claim is without merit.

II. WHETHER THE APPLICATION OF MISS. CODE ANN. § 99-19-107 CONSTITUTES AN EX POST FACTO PUNISHMENT.

¶ 7. Foster first asserts that, after his death sentence was vacated, the only option available to this Court was the imposition of a sentence of life with the possibility of parole under the version of the capital murder statute in effect at the time the crime was committed. See Miss.Code Ann. § 97-3-21 (1991). He argues that no statute in effect at the time authorized a sentence of life without parole, and that the sentence therefore constitutes an unconstitutional ex post facto punishment under Article 3, Section 16 of the Mississippi Constitution and Article 1, Section 10 of the United States Constitution. This contention misstates the applicable law. At the time of he committed the crime, Foster was equally subject to Miss.Code Ann. § 99-19-107 (Rev.2000), amended in 1982, which states that:

In the event the death penalty is held to be unconstitutional by the Mississippi Supreme Court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death shall cause such person to be brought before the court and the court shall sentence such person to imprisonment for life, and such person shall not be eligible for parole.

Where this statute governs a defendant’s sentence, it plainly authorizes a sentence of life without parole. Therefore, the only question is whether the United States Supreme Court’s prohibition on the execution of juvenile offenders falls within the scope of this statute.

¶ 8. The language of the statute is clear; it intends to provide for an alternative sentence for a person whose death sentence has been deemed unconstitutional. This Court has previously addressed the scope of section 99-19-107 in Abram v. State, 606 So.2d 1015 (Miss.1992). In Abram, this Court held that the statute was applicable “for that event when either this Court or the United States Supreme Court makes a wholesale declaration that the death penalty in general, and/or our own statutory death penalty scheme in particular, is unconstitutional.” Abram, 606 So.2d at 1039. The “wholesale declaration” requirement set out in Abram is extraneous language that is unnecessary to the application of the statute. The statute provides that no one whose death penalty is ruled unconstitutional may receive parole. To the extent that Abram is inconsistent with the plain meaning of section 99-19-107, it is hereby overruled. Because Foster’s death penalty was found unconstitutional by the United States Supreme Court’s ruling in Roper, the application of section 99-19-107 is appropriate.

CONCLUSION

¶ 9. Foster’s challenge to the application of section 99-19-107 to his case is barred because he failed to raise this issue before this Court before the remand for resen-tencing. Because this Court and the circuit court correctly applied Miss.Code. Ann. § 99-19-107 in resentencing Foster, and because application of the statute in no way constitutes an ex post facto punishment, our order resentencing Foster to life in prison without the possibility of parole is affirmed.

¶10. CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE, AFFIRMED.

SMITH, C.J., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J. EASLEY AND LAMAR, JJ., NOT PARTICIPATING.

DIAZ, Presiding Justice,

Dissenting:

¶ 11. Because I disagree with overruling prior precedent and do not agree that Miss.Code Ann. § 99-19-107 (Rev.2000) applies in this case, I must respectfully dissent.

¶ 12. Today’s “plain meaning” interpretation of Section 99-19-107 is completely at odds with a reading of the statute that this Court previously saw as “fairly obvious.” Abram v. State, 606 So.2d 1015, 1039 (Miss.1992) (“Although there are no cases addressing the precise application of § 99-19-107, we think it fairly obvious that it is reserved for that event when either this Court or the United States Supreme Court makes a wholesale declaration that the death penalty in general, and/or our own statutory death penalty scheme in particular, is unconstitutional.”). In Abram, we considered whether Section 99-19-107 was applicable to a defendant whose death sentence had been vacated under Enmund v. Florida for failure to prove an intent to kill. See Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), modified by Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) (finding that proof of an intent to kill was not required under the Eighth Amendment). In this context, we found that Section 99-19-107 was not applicable because Enmund did not invalidate a statutory scheme in whole or in part, but merely stipulated a minimum level of culpability that had to be found by the jury in order to impose the death penalty. We recognized that the savings statute “is not reasonably or logically intended for use on a case by case basis by trial courts or this Court.” Abram, 606 So.2d at 1039.

¶ 13. Accordingly, it is only where the mechanisms for instituting the death penalty (the statutory scheme) are found to be unconstitutional that this provision applies. Such was the case in Furman v. Georgia, where the United States Supreme Court found that Georgia’s death penalty statutes were unconstitutional. 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). This forced our Court to invalidate all death sentences because our statutory scheme was substantially similar to the one in Georgia. Peterson v. State, 268 So.2d 335, 338 (Miss.1972); see also Cowart v. State, 270 So.2d 350 (Miss.1972) (holding that because the death penalty was unconstitutional under Furman, the defendant must be sentenced to life).

¶ 14. Both legislative history and prior precedent support this interpretation. Once the United States Supreme Court reaffirmed the use of the death penalty in 1976, our Legislature set about amending our death penalty scheme to comply with constitutional requirements. Miss.Code Ann. § 97-3-21 (1977); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). With our revised death penalty scheme, the Legislature also passed the “trigger” statute “in the event the death penalty is held to be unconstitutional.” Laws, 1977, ch. 458, § 5. In light of Fur-man and the temporary suspension of capital punishment, it is only reasonable to conclude that this statute was intended to be used in case of a wholesale invalidation of the death penalty, whether through federal or state means. Abram, 606 So.2d at 1039 (Miss.1992).

¶ 15. With the exception of the present case, this Court has never referred to Miss.Code Ann. § 99-19-107 when vacating a death sentence on the basis of Roper. Compare Foster v. State, 2005 Miss. LEXIS 476 (Miss.2005) (citing Miss.Code Ann. § 97-3-21) with Eskridge v. State, 2005 Miss. LEXIS 665 (Miss.2005) (not citing Miss.Code Ann. § 97-3-21); McGilberry v. State, 2005 Miss. LEXIS 598 (Miss.2005) (not citing Miss.Code Ann. § 97-3-21); Dycus v. State, 910 So.2d 1100, 1101 (Miss.2005) (not citing Miss.Code Ann. § 97-3-21). In Eskridge, we simply remanded the case for re-sentencing without mandating a term. 2005 Miss. LEXIS 665. While we ordered sentences of life imprisonment without parole in McGilberry and Dycus, their sentencing hearings were conducted after the 1994 revision to Miss.Code Ann. § 97-3-21 allowing for life without parole. McGilberry v. State, 843 So.2d 21 (Miss.2003) (1996 sentencing); Dycus, 910 So.2d 1100 (1998 sentencing).

¶ 16. Furthermore, we have never referred to Miss.Code Ann. § 99-19-107 in any case remanded for an Atkins hearing. See Scott v. State, 938 So.2d 1233 (Miss.2006); Brown v. State, 875 So.2d 202 (Miss.2004); Conner v. State, 904 So.2d 105 (Miss.2004); Doss v. State, 882 So.2d 176 (Miss.2004); Snow v. State, 875 So.2d 188 (Miss.2004); Smith v. State, 877 So.2d 369 (Miss.2004); Chase v. State, 873 So.2d 1013 (Miss.2004); Neal v. State, 873 So.2d 1010 (Miss.2004); Carr v. State, 873 So.2d 991 (Miss.2004); Goodin v. State, 856 So.2d 267 (Miss.2003); Russell v. State, 849 So.2d 95 (Miss.2003). Foster was given the opportunity to proceed with an Atkins claim, but the order allowing his hearing was vacated in light of Roper. Foster v. State, 848 So.2d 172, 175 (Miss.2003); Foster, 2005 Miss. LEXIS 476 (Miss.2005). While this Court has never addressed the issue, I would also hold that the trigger statute does not apply in Atkins cases. This is consistent with our reasoning in Abram that Miss.Code Ann. § 99-19-107 (Rev.2000) should not be applied on a “case-by-case” basis as trial judges in Atkins cases must make a factual determination that a defendant is or is not mentally retarded. If the trigger statute does not apply in Atkins, then Foster should be allowed to proceed with his mental retardation claim as well.

¶ 17. Our sentencing scheme at the time of Foster’s sentencing provided two alternatives: death and life with the possibility of parole. Miss.Code Ann. § 97-3-21 (Rev.1977). Because the United States Supreme Court has not ruled the death penalty unconstitutional, Miss.Code Ann. § 99-19-107 is inapplicable, and Foster’s sentence should reflect what was available in 1991. For the foregoing reasons, I would reverse the previous sentencing order and resentence Foster to a term of life.

GRAVES, J., JOINS THIS OPINION.