text:
    Charles Patrick GRAHAM, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00518-COA.
    Court of Appeals of Mississippi.
    Oct. 23, 2007.

      Jonathan Michael Farris, attorney for appellant.
    Office of the Attorney General by Jacob Ray, attorney for appellee.

      Before LEE, P.J., IRVING and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Charles Graham was convicted of two counts of the simple assault of a peace officer and sentenced to serve two consecutive five-year sentences in the custody of the Mississippi Department of Corrections. Aggrieved, Graham appeals. He asserts the following issues:

I. The State’s amendments to the indictments on the day of trial were substantive
II. The court should not have allowed the State’s jury instruction S-1A
III. It was error for the court to refuse the defense’s jury instructions D-4, D-5, D-6, D-7, and D-8
IV. The court erred by refusing to grant his motions for directed verdict and a peremptory instruction and by denying his motions for a judgment notwithstanding the verdict or a new trial
V. There was cumulative error sufficient for reversal.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Charles Graham was released from the Forrest County Regional Jail on October 3, 2005. Between 5:00 and 6:00 p.m., approximately three hours after his release, he returned to the jail only to find the doors locked. Using the intercom, he demanded entrance so that he could obtain his property, which had been stored there while he was incarcerated. An officer informed Graham that the doors were locked for the shift change and that he should return after the shift change to get his property.

¶ 4. Instead of waiting, Graham proceeded to kick the door, thereby breaking the lock. He entered the facility and proceeded past the main desk of the Forrest County Sheriffs Department, ignoring Officer Orlando Dantzler’s commands to stop. Graham continued through the first entry door of the jail before he was stopped at the second entry door, which was a metal mesh gate that was sealed with an electronic lock.

¶ 5. At this point Officer Dantzler and a corrections officer, John Simmons, approached Graham, who began to kick, hit, and threaten them. After being subdued, Graham was placed under arrest and taken into custody at the jail.

¶ 6. Graham was indicted by a Forrest County Grand Jury on two counts of simple assault of a peace officer. At a trial on March 14, 2006, the jury convicted Graham of both counts, and the court sentenced him to serve two consecutive five-year sentences.

ISSUES AND ANALYSIS

I. Amendment of indictment

¶ 7. Graham’s first argument is that the court erred by allowing amendment to the indictments on the morning of the trial. He claims the amendments to the two indictments were substantive and that changing them on the day of trial prejudiced his defense.

¶ 8. Whether an indictment is defective is a question of law, and we review such questions of law under a de novo standard. Spears v. State, 942 So.2d 772, 773(¶ 5) (Miss.2006). It is permissible for a court to amend an indictment to correct a defect of form, but only the grand jury may correct a substantive defect. Id. at 774(¶ 6). An amendment is to form if it is immaterial to the merits of the case and does not prejudice the defense. Pool v. State, 764 So.2d 440, 443(¶ 10) (Miss.2000). To determine if an amendment prejudices the defense, we ask if the defense is equally applicable after making the amendment. Id.

¶ 9. The original indictments charged that Graham “did unlawfully, felo-niously and willfully attempt by physical menace to put Orlando Dantzler, in fear of imminent serious bodily harm by arming himself with a pen and bottle of bleach while kicking, hitting, and threatening Orlando Dantzler....” On the day of trial this was amended to delete the language “arming himself with a pen and bottle of bleach while.” As amended, the indictment charged that Graham “did unlawfully, feloniously and willfully attempt by physical menace to put Orlando Dantzler, in fear of imminent serious bodily harm by kicking, hitting, and threatening Orlando Dantzler.... ”

¶ 10. The State argued that the deleted phrase was merely a scrivener’s error and had nothing to do with the charge. According to the State, there was another incident that did involve a pen and a bottle of bleach, and the indictment for that incident was typed at the same time. The phrase dealing with the pen and the bleach was supposed to be in the indictment for that charge, and it was mistakenly included in Graham’s indictments. The judge heard this and found this to be reasonable. Clearly, the incident in the present case had nothing to do with a pen or a bottle of bleach, and the deleted language was immaterial to the merits of the case.

¶ 11. The provision, “arming himself with a pen and bottle of bleach while,” is not substantive to the underlying charge of assaulting the officers with punches, kicks, and threats. Arguing that Graham was not armed with a pen or a bottle of bleach would not have been a defense at all under the original indictment, as such would not have negated the essential elements of punching, kicking, and threatening the officers. Graham’s defenses to the charge were not affected by the deletion of the phrase; therefore, it was an immaterial amendment to the form of the indictment and not substantive.

¶ 12. Accordingly, we find that the trial court did not err in ruling that the amendments to Graham’s indictments were to form and were not substantive. This issue is without merit.

II. Allowance of State’s instruction

III. Refusal of defense’s jury instructions

¶ 13. We will discuss these issues together as they involve an analysis of jury instructions.

¶ 14. Graham next complains of the trial court’s allowance of the State jury instruction, S-1A, because it misstated the definition of “physical menace,” which was a necessary element of the crime for which he was charged. Instruction S-1A reads as follows: “You are instructed on [phrase] ‘physical menace’ as used in other instructions: a threat; or a declaration of a disposition to inflict immediate injury on another.”

¶ 15. A defendant is entitled to have the trial court give jury instructions that present his theory of the case; however, the court may deny an instruction that misstates the law, is covered elsewhere in •the instructions, or is not supported by the evidence. Ladnier v. State, 878 So.2d 926, 931(¶ 20) (Miss.2004). This Court does not review jury instructions in isolation, but it will read them as a whole to determine whether the trial court properly instructed the jury. Milano v. State, 790 So.2d 179, 184(¶ 14) (Miss.2001). “When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id. (quoting Coleman v. State, 697 So.2d 777, 782 (Miss.1997)).

¶ 16. To support Graham’s claim that the definition of “physical menace” presented by the State was in error, he cites the concurring opinion in McDonald v. State, 784 So.2d 261, 267(¶ 29) (Miss.Ct.App.2001), which states that “physical menace” is “physical action that is intended to create fear of immediate bodily' harm.” Id. The majority in the same case states, “ ‘Physical menace’ demands something more than words.” McDonald, 784 So.2d at 267(¶ 29).

¶ 17. In the present case, the definition given by the State failed to indicate that something more than words was necessary for physical menace as required by McDonald. The instruction stated that the jury could find physical menace from a “threat” or a “declaration of a disposition to inflict immediate injury on another.” These two alternatives indicate that the required element of physical menace could be fulfilled by words alone. Because the jury instruction did not properly define physical menace under McDonald, it was in error for the court to grant it.

¶ 18. Nevertheless, we ultimately find the error to be harmless. To determine if a constitutional error is harmless, we must ask whether it appears, “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Kolberg v. State, 829 So.2d 29, 50(¶ 39) (Miss.2002) (quoting Neder v. United States, 527 U.S. 1, 15-16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). In Kolberg, the supreme court stated that the harmless-error analysis has often been applied “to cases involving improper instructions on a single element of the offense.” Id. (quoting Neder, 527 U.S. at 9-10, 119 S.Ct. 1827).

¶ 19. Graham did not contest the State’s evidence of his physical actions, and the State presented ample testimony that Graham .attacked Officers Dantzler and Simmons. The State did not put on any evidence of mere words spoken by Graham, nor did Graham attempt to rebut the evidence that he hit, kicked, and threatened the officers. It was uncontra-dicted that Graham attacked them. Even though the instruction did allow the jury to find “physical menace” from words alone, the court’s allowance of the instruction could not have contributed to the verdict and was harmless. All of the evidence indicated that Graham attacked the officers, and there was no evidence from which the jurors could have found physical menace under the State’s definition but not under the proper definition. Graham’s argument concerning the State’s instruction, that it lowered the burden of proof for the State, therefore, is without merit.

¶ 20. Graham’s next argument concerning jury instructions is that the trial court erred by refusing to grant the defense’s instructions D-4, D-5, D-6, D-7, and D-8, which instructed the jury on the lesser-included offense of resisting arrest.

¶ 21. The supreme court has stated the standard for granting a lesser-included offense instruction:

[A] lesser included offense instruction should be granted unless the trial judge- and ultimately this Court-can say, taking the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser included offense (and conversely not guilty of at least one essential element of the principal charge).

Stewart v. State, 909 So.2d 52, 55(¶ 10) (Miss.2005) (quoting Harper v. State, 478 So.2d 1017, 1021 (Miss.1985)).

¶22. The defense presented no witnesses or evidence to this matter; therefore, the only relevant witnesses to when the altercation began are Officers Dantzler and Simmons, who apprehended Graham. The testimony of Officers Clark and Hudson, cited by Graham, is irrelevant to this issue. Officer Clark testified that he “didn’t see him until they had hands on him.” Officer Hudson similarly testified that he did not arrive until the officers were handcuffing Graham. With regards to the officers who initially apprehended Graham, and contrary to the testimony cited by Graham, both of them testified that they did not initially intend to arrest him.

¶ 23. Officer Dantzler was the first one to come into contact with Graham. He testified that he had dealt with Graham on numerous occasions and that he initially approached him in order to see what his problem was and to reason with him. He said that at no point during the initial altercation did he arrest Graham or tell him he was under arrest. On direct examination, he admitted he had numerous reasons to arrest Graham, but he maintained that he initially approached him to make contact and to stop him from going into the jail.

¶ 24. Next, Simmons, who was a corrections officer at the jail, testified that he assisted Officer Dantzler in apprehending and arresting Graham. He said that he and Officer Dantzler initially approached Graham to question him as to why he was there. It was at that point that Graham became belligerent and was then placed under arrest for striking the officers.

¶25. While Graham was entitled to present his theory of the case, he needed to put on evidence to support that theory. None of the witnesses that took the stand stated that the officers approached Graham with the intention of arresting him. Graham, furthermore, did not present any evidence or take the stand to contradict the officers’ testimony that he was not initially under arrest. The only evidence that Graham can point to is the officers’ testimony cited in his brief, which he takes out of context. The officers’ testimony was that they approached Graham, and he attacked them. Only after Graham attacked Dantzler and Simmons was he placed under arrest.

¶ 26. From the evidence that was presented, we do not find the court erred in denying Graham’s instructions on resisting arrest. This issue is without merit.

IV. Denial of motions

¶ 27. In his next point of error, Graham claims the trial court erred by refusing to grant a motion for a directed verdict, a peremptory instruction, a motion for a judgment notwithstanding the verdict, and a motion for a new trial.

A. Sufficiency of the evidence

¶ 28. In reviewing a trial court’s denial of a motion for a directed verdict or a judgment notwithstanding the verdict we must look at the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843(¶ 15) (Miss.2005). We will ask whether the evidence shows “beyond a reasonable doubt that the accused committed the act charged and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Id. at 843(¶ 16) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). Taking the evidence in the light most favorable to the verdict, the question is whether a rational trier of fact could have found all the elements beyond a reasonable doubt. Bush, 895 So.2d at 844(¶ 16) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Review of the denial of a peremptory instruction employs the same standard as the review of a directed verdict. Conners v. State, 822 So.2d 290, 293(¶ 5) (Miss.Ct.App.2001).

¶ 29. Mississippi Code Annotated section 97-3-7(1) (Rev.2006) provides that a person is guilty of simple assault if he “attempts by physical menace to put another in fear of imminent serious bodily harm.” A person who is convicted of simple assault upon a law enforcement officer faces a fine of up to $1,000, up to five years imprisonment, or both. Id.

¶ 30. Considering the evidence in the light most favorable to the State, we find that there was sufficient evidence to convict Graham of simple assault of a peace officer. As we have previously stated, the State presented ample evidence that Graham attacked the officers with punches and kicks. The officers involved testified that they had no idea what the purpose of Graham’s actions was or whether he was armed. They admitted that these unknowns and Graham’s physical attacks did place them in fear of imminent serious bodily harm. Combined with the fact that Dantzler and Simmons were law enforcement officers, the State presented evidence on each of the elements of the crime. As such, there was sufficient evidence to deny Graham’s motions for a directed verdict and a judgment notwithstanding the verdict and his peremptory instruction.

B. Weight of the evidence

¶ 31. A motion for a new trial questions the weight of the evidence. Bush, 895 So.2d at 844(¶ 18). Such a motion is within the discretion of the court, “which should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000)). “[W]e will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. When reviewing a denial of a motion for a new trial, we take the evidence in a light most favorable to the verdict. Id.

¶ 32. The evidence at trial shows that Graham broke into the building and proceeded to threaten and assault the police officers who were present. As we pointed out previously, the officers involved testified to the fact that they were in fear of serious bodily injury. While Graham may have pointed out that he did not in fact have a gun, and that Officer Dantzler was a larger man than he was, it was for the jury to decide whether or not to believe the officers’ accounts. After reviewing the record we do not find that the verdict was against the weight of the evidence. It was, therefore, proper to deny Graham’s motion for a new trial.

¶ 33. We find that there was sufficient evidence to convict Graham, and the guilty verdict was not against weight of that evidence. The denial of Graham’s motions and the peremptory instruction were not in error. This issue is without merit.

V. Cumulative error

¶ 34. If there is no reversible error as to any part then there is no reversible error as to the whole. McFee v. State, 511 So.2d 130, 136 (Miss.1987). Errors that do not require reversal themselves may require reversal if, when taken cumulatively, they deny the defendant the right to a fundamentally fair and impartial trial. Byrom v. State, 863 So.2d 836, 847(¶ 12) (Miss.2003). In any case in which a court finds harmless error or an error not sufficient in itself to warrant dismissal, the court may, on a case-by-case basis, determine whether the errors taken cumulatively warrant dismissal based on their cumulative prejudicial effect. Id. at 846(¶ 13).

¶35. The only error we found in this case was the trial court’s allowance of the jury instruction that incorrectly defined physical menace. We found that error was harmless and therefore insufficient to warrant reversal. There are no other errors that, taken cumulatively with the improper instruction, would require reversal. This issue is without merit.

¶ 36. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY OF CONVICTION OF TWO COUNTS OF SIMPLE ASSAULT OF A PEACE OFFICER AND SENTENCE OF TWO CONSECUTIVE FIVE-YEAR SENTENCES IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

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

      . The second indictment was identical except that it replaced "Orlando Dantzler” with "John Simmons.”


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Tyree STATEN a/k/a Tryee W. Staten a/k/a Tyree Wyshawn Staten, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01660-COA.
    Court of Appeals of Mississippi.
    Oct. 30, 2007.

      Tyree Staten, appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorneys for appel-lee.
    Before KING, C.J., CHANDLER and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. This case comes before the Court on appeal from the April 13, 2005, judgment of the Clarke County Circuit Court denying Tyree Staten’s motion for post-conviction relief. Finding no error, we affirm the judgment.

FACTS

¶ 2. A Clarke County grand jury indicted Tyree Staten on August 26, 1998, for the armed robbery of Carla’s Dixie Gas in Quitman, Mississippi. Staten pled guilty on November 3, 1998, in exchange for a sentence of twenty years, with sixteen years suspended, and a five-year term of probation. Receiving credit for time served in jail before his sentencing, Staten completed the portion of his sentence he was ordered to serve and was released from jail on December 9, 2001. Staten’s probation officer filed a petition on August 16, 2004, to revoke Staten’s probation after Staten pled guilty to several misdemeanors, failed to report to his probation officer for the month of July 2004, failed to pay restitution and court costs as required under his plea agreement, and failed to pay his probation supervision fee. The misdemeanors Staten pled guilty to included domestic violence, trespassing, carrying a concealed weapon, and driving a car without insurance. An earlier petition to revoke Staten’s probation filed by his probation officer was apparently withdrawn' after Staten was found to be in compliance with his probation requirements. After a September 1, 2004, revocation hearing, the circuit court revoked Staten’s probation, requiring that he serve the remaining sixteen years of his twenty-year sentence.

¶ 3. On August 15, 2005, Staten filed a motion in the Clarke County Circuit Court to vacate his conviction and sentence or to reinstate probation, arguing that the court unlawfully revoked his probation and denied him due process at his hearing. The circuit court treated his motion as a motion for post-conviction collateral relief and denied it on April 13, 2006. Staten appealed and maintains that the revocation of his probation was unlawful because the lower court did not inform him that he had a right to court-appointed counsel at his revocation hearing. He also claims that because of his mental history he was unable to defend himself effectively at the hearing, that his girlfriend provoked the domestic violence incident, that his probation officer waited too long to file the petition to revoke his probation, and that the lower court failed to inform him of his right to appeal the decision of the lower court.

DISCUSSION

¶4. “In reviewing a trial court’s decision to deny a motion for post-conviction relief the standard of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous.” Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002).

¶ 5. Staten’s primary argument is that the circuit court denied him due process by failing to appoint counsel for him at his probation revocation hearing. For probation revocation hearings, this Court has recognized minimum due process standards as required by Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), including:

(1) written notice of the claimed violations of probation; (2) disclosure to the probationer of the evidence against him; an opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses (unless the hearing officer finds good cause for not allowing such confrontation); (5) a neutral and detached hearing body or officer; and (6) a written statement by the fact finder as to the evidence relied on and reasons for revoking the probation.

Payton v. State, 845 So.2d 713, 719(¶ 22) (Miss.Ct.App.2003). Staten received a notice on August 30, 2004, that he had a probation revocation hearing on September 1, 2004. Staten signed this notice, stating that he had read and fully understood it. That same day, he also signed a preliminary probation revocation hearing guide, which enumerated the probation violations he was being accused of. Staten acknowledged on this form that he understood what rights he had at the preliminary hearing regarding being represented by counsel, calling witnesses, and cross-examining witnesses.

¶ 6. Staten’s revocation hearing afforded him the opportunity to hear the evidence against him, to testify on his own behalf, and to confront the witnesses against him before the Circuit Court of Clarke County. The record shows that Staten testified on his own behalf at the hearing, and, with the help of the judge, he cross-examined the probation officer. Staten also had a neighbor in the courtroom who testified on his behalf.

¶ 7. Staten claims that the lower court denied him due process by not informing him that he had a right to request court-appointed counsel for his revocation hearing. This Court has recognized that probationers do not necessarily have a right to counsel at probation revocation hearings. Riely v. State, 562 So.2d 1206, 1209 (Miss.1990) (citing Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 26, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). When the issues relevant to the hearing are complex or difficult to develop, the court should appoint counsel for the probationer. Riely, 562 So.2d at 1209 (quoting Gagnon v. Scarpelli, 411 U.S. at 790-91, 93 S.Ct. 1756). Also, when the probationer makes a timely and plausible claim that he did not commit the violations of his probation or that there are substantial mitigating factors which are complex or difficult to present and which should excuse his violations, the court should appoint an attorney for him. Gagnon, 411 U.S. at 790, 93 S.Ct. 1756.

¶ 8. The issues relevant to Staten’s probation revocation were neither complex nor difficult to present. As the State points out, the decision to revoke Staten’s probation turned simply on whether or not he committed the violations of which he was accused. Staten admitted guilt to several misdemeanors before the petition to revoke his probation was filed and again at his revocation hearing. He argues that there were mitigating factors, but only as related to the domestic violence charge and his failure to pay his probation supervision fees and restitution. Those were, however, only two of the violations that caused the judge to revoke Staten’s probation. Moreover, “[probation may be revoked upon a showing that a defendant ‘more likely than not’ violated the terms of probation.” Graham v. State, 952 So.2d 1040, 1044(¶ 6) (Miss.Ct.App.2007) (citing McClinton v. State, 799 So.2d 123, 128(¶ 9) (Miss.Ct.App.2001)).

¶ 9. A probationer is also entitled to a court-appointed attorney at a probation revocation hearing if it is also a deferred sentencing hearing. Crowell v. State, 801 So.2d 747, 749(¶ 6) (Miss.Ct.App.2000) (citing Mempa v. Rhay, 389 U.S. 128, 137, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967)). Staten was sentenced when he pled guilty, so this rule would not apply to his particular situation. Although Staten never requested counsel, the judge at Staten’s revocation hearing explained that his understanding of the law was that he was not required to appoint counsel for Staten at the hearing. He also explained that Staten had a right, if he wished, to hire an attorney to represent him at the hearing, even offering to postpone the hearing in order to allow Staten time to hire an attorney. Staten chose to go forward with the hearing without hiring an attorney.

¶ 10. Staten further argues that his history of mental illness prevented him from being able to effectively defend himself against the charges that he violated the terms of his probation. He claims that his mental illness kept him from understanding his rights and from presenting mitigating evidence, on his own behalf and that he was incapable of speaking effectively for himself. Staten asserts that a court-appointed lawyer could have called doctors to testify as to his mental illness, which he feels would have militated against revoking his probation. Staten testified at his plea and sentencing hearing, however, that he understood the difference between right and wrong. He also told the judge at his revocation hearing that he understood the charges against him. At his revocation hearing, Staten made an issue of his mental illness only as it related to his failure to pay restitution and supervision fees, claiming that he was unable to work because of his illness. Furthermore, the court is not required to inquire into a person’s competency absent reasonable grounds to believe he is incompetent. Thorn v. State, 815 So.2d 455, 457(¶ 5) (Miss.Ct.App.2002) (citing Edwards v. State, 800 So.2d 454, 466 (¶ 33-34) (Miss.2001)).

¶ 11. Staten argues that his probation officer knew of the charges against him for months before bringing the petition to revoke his probation and that the probation officer’s delay made the process fundamentally unfair. Staten’s probation officer testified in court, though, that he filed the petition to revoke Staten’s probation in August after Staten failed to report to him for the month of July and after learning that Staten had pled guilty to the misdemeanors. Finally, Staten argues that the court should have informed him that he had a right to appeal the ruling, but Staten’s rights clearly were not affected by that omission.

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

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


text:
    Frankie WADE, Jr., Appellant, v. Katina WADE, Appellee.
    No. 2006-CA-01504-COA.
    Court of Appeals of Mississippi.
    Oct. 30, 2007.

      Charles E. Lawrence, attorney for appellant.
    Katina Wade, pro se.
    Before KING, C.J., CHANDLER and CARLTON, JJ.
   CARLTON, J.,

for the Court.

FACTS

¶ 1. Frankie Wade, Jr. and Katina Wade were married in 1996 and separated in August 2005. One child, Kameshia, was born into the marriage on February 14, 1997. On November 15, 2005, Frankie filed a complaint in the Chancery Court of Forrest County seeking a divorce from Katina. A copy of the complaint and a summons were personally served upon Katina on the same day; however, no appearance or response was made within thirty days by either Katina or an attorney acting on her behalf. Consequently, Frankie obtained a final judgment of divorce on the ground of cruel and inhuman treatment on January 10, 2006. Under the terms of the divorce, the court awarded joint legal custody of Kameshia and primary physical custody to Frankie. Katina was ordered to pay $200 per month in child support, provide health insurance for Kameshia and maintain a life insurance policy upon herself in the amount of $100,000 with Kames-hia named as beneficiary. Katina was also ordered to pay for the college and education expenses of Kameshia in the event they became necessary. The court held the issue of division of marital property in abeyance pending Frankie’s filing of an updated financial declaration.

¶ 2. On January 20, 2006, Katina, upon receiving a copy of the judgment of divorce, filed a motion to set aside the judgment and for a new trial, pursuant to Mississippi Rule of Civil Procedure 59. On April 28, 2006, the court entered an order granting Katina’s motion in part, finding that the prior judgment granting divorce would not be set aside, but the issue of custody would be “revisited” based on the Albright factors during the hearing on the division of marital assets. A hearing was held on June 27, 2006, after which the court entered an order granting physical custody of Kameshia to Katina and divided the marital property.

STANDARD OF REVIEW

¶ 3. We review domestic relations matters under the substantial evidence/manifest error rule. See R.K. v. J.K., 946 So.2d 764, 772(¶ 17) (Miss.2007) (citing Mizell v. Mizell, 708 So.2d 55, 59(¶ 12) (Miss.1998)). The chancellor’s findings will not be disturbed by this Court “unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id.

DISCUSSION

¶ 4. As a preliminary matter, we address the fact that Katina did not file an appellate brief with this Court. Ordinarily the appellee’s failure to file a brief with this Court “is tantamount to confession” of the assignments of error asserted in the appellant’s brief. Muhammad v. Muhammad, 622 So.2d 1239, 1242 (Miss.1993) (citations omitted). However, reversal is not automatic nor required. Where issues of child custody are involved, we are “compelled to review the record,” notwithstanding the appellee’s failure to file a brief. Mosley v. Atterberry, 819 So.2d 1268, 1272(¶ 17) (Miss.2002) (citing Muhammad, 622 So.2d at 1242).

1. Child Custody

¶ 5. Frankie argues that the chancellor erred in reopening the issue of child custody in order to apply the Albright factors. He contends that, in granting Katina’s Rule 59 motion, the chancellor failed to make a finding that it was amending the judgment due to a mistake in law or fact, or that injustice would result if the judgment were allowed to stand. Mayoza v. Mayoza, 526 So.2d 547, 550 (Miss.1988).

¶ 6. Mississippi divorce actions are primarily controlled by the provisions of section 93 chapter 5 of the Mississippi Code. Crowe v. Crowe, 641 So.2d 1100, 1103-04 (Miss.1994). The Mississippi Rules of Civil Procedure govern to the extent that the divorce statutes are silent or not inconsistent. M.R.C.P. 81(a)(9); see also Rawson v. Buta, 609 So.2d 426, 430 (Miss.1992). To this end, an uncontested divorce must be heard in open court and the plaintiff is required to establish his claim(s) with evidence despite the defendant’s failure to participate in the action. Miss.Code Ann. § 93-5-2(1); M.R.C.P. 55(e); see Mayoza, 526 So.2d at 548. The procedure for setting aside or reconsideration of an uncontested divorce is not provided for in our divorce statutes. Therefore, Katina’s motion is governed by the Mississippi Rule of Civil Procedure 59, as it was filed within ten days of the entry of judgment. Mayoza, 526 So.2d at 548-49 (defaulting party’s motion for relief from uneontested divorce may be treated as a Rule 59 motion for reconsideration if filed within ten days, or as a Rule 60(b) motion for relief from judgment); Stinson v. Stinson, 738 So.2d 1259, 1263(¶ 13) (Miss.App.1999).

¶ 7. We review the grant of a Rule 59 motion under an abuse of discretion standard of review. Brooks v. Roberts, 882 So.2d 229, 233(¶ 15) (Miss.2004). Under Rule 59, a court is authorized to reopen a judgment, take additional testimony, make new findings of fact and conclusions, and enter a new judgment as to all or part of a verdict as justice requires. M.R.C.P. 59 cmt.

¶ 8. We find the chancellor acted within his discretion in granting Katina’s Rule 59 motion. It passes without citation that, in child custody cases, the paramount consideration is the best interest of the child. The chancellor’s rationale for granting Katina’s motion is clear from the order wherein he stated that the motion was “granted in part because of equitable considerations” and that the court would revisit the issue of custody for a determination based on the Albright factors—an exercise not undertaken in the original grant of custody. Certainly, a more prudent determination of custody may be made when based upon evidence presented from both parents rather than evidence presented by only one. Where a chancellor has the opportunity to consider the argument of both parents, the facts and circumstances affecting his determination are presumably more fully developed. It follows that a chancellor is able to make a more informed decision, thereby ensuring to a higher degree of certainty that the best interest of the child is met.

¶ 9. Moreover, in the original judgment of divorce the chancellor made no findings of fact or conclusions of law under the Albright factors, nor did he allude to them in any way. Our supreme court holds that the failure of a chancellor to make findings of fact as to the applicable Albright factors is reversible error. J.P.M. v. T.D.M., 932 So.2d 760, 770(¶ 27) (Miss.2006) (citing Powell v. Ayars, 792 So.2d 240, 244(¶ 33) (Miss.2001)). It is clear from the record that the chancellor realized his mistake and sought to cure it in granting Katina’s motion. In the second hearing on child custody, the chancellor heard additional testimony and made “new” findings of fact as to each applicable Albright factor. In so doing, he satisfied the requirement that on-the-record findings of fact are to be made as to each applicable Albright factor.

¶ 10. Though not expressly stated in the chancellor’s order, it is clear from the record that the chancellor granted Katina’s motion and amended the judgment based on a mistake in law, i.e., that the original child custody determination was made without a consideration of the applicable Albright factors. Additionally, we find that the interest of justice permitted the chancellor, in his discretion, to grant the motion and hear additional testimony to ensure that the best interest of the child was met. We find no abuse of discretion. This issue is without merit.

2. Division of Property Held in Abeyance

¶ 11. Frankie argues that the chancellor erred when he held in abeyance a decision on the division of marital property pending the filing of an updated financial declaration. Frankie cites no authority to support this contention, nor did he object at trial to the chancellor’s decision to hold the issue of property division in abeyance. “Failure to cite any authority in support of an assignment of error precludes this Court from considering the issue on appeal.” Lauro v. Lauro, 847 So.2d 843, 851(¶ 21) (Miss.2003). We, therefore, decline to address this issue on appeal.

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

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

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).


author: CARLTON, J., KING, C.J.,

text:
    Kevin Wayne EALEY a/k/a Kevin Ealey, Appellant, v. STATE of Mississippi, Appellee. Kevin Wayne Ealey a/k/a Kevin Ealey, Appellant, v. State of Mississippi, Appellee.
    Nos. 2006-CP-00552-COA, 2006-KP-01349-COA.
    Court of Appeals of Mississippi.
    Oct. 30, 2007.

      Kevin Wayne Ealey, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   CARLTON, J.,

for the Court.

¶ 1. In March 2003, Kevin Ealey entered a guilty plea in the Circuit Court of Adams County for possession of cocaine. Ealey filed a motion for post-conviction relief which was summarily denied. Ealey appeals pro se and argues (1) that his guilty plea lacked a factual basis, (2) that he was denied effective assistance of counsel, (3) that the search which yielded the cocaine was unlawful, and (4) that he was not in constructive possession of the cocaine. We find no error and affirm.

FACTS

¶ 2. In July 2002, Ealey, a prior convicted felon, was riding in the back seat of a rented vehicle occupied by three other men. The four stopped at Taste of Chicago in Natchez, Mississippi, and two of them went inside the restaurant, leaving the driver, Tramelle Wallace, and Ealey in the vehicle. Narcotics officers from Adams County then pulled alongside the vehicle. The ensuing search yielded the following: (1) $11,000 found on Wallace’s person, (2) 540 grams of cocaine and $25,000 found inside the center console between the two front seats, (3) a handgun found behind the driver seat, and (4) a receipt for the purchase of baking soda and “baggies.”

¶ 3. On October 29, 2002, Ealey was indicted in the Circuit Court of Adams County for possession of cocaine with intent to sell in a church zone. Ealey filed a motion to suppress and a suppression hearing was held, at which Ealey challenged the legality of the search of the vehicle. At this hearing, Officer Jerry Brown, one of the officers present at the search, testified regarding the search and the evidence derived therefrom including the 540 grams of cocaine, $36,000 in cash, the handgun, and the receipt for the purchase of baking soda and “baggies.” He also testified that Ealey and Wallace were from Houston, Texas, and that they claimed they were staying in Vidalia, Louisiana, with some friends and were in Natchez, Mississippi, only to get a hamburger at the Taste of Chicago. Officer Brown also stated that neither Ealey nor the driver were able to name the friends that they were allegedly staying with.

¶ 4. The trial judge denied Ealey’s motion to suppress, whereupon a plea bargain agreement was reached between Ealey and the district attorney that Ealey would plead guilty to a reduced charge of simple possession of cocaine. On March 11, 2003, a hearing was held to determine whether the trial court would accept Ealey’s plea. During the plea colloquy the following relevant discussion took place.

COURT: Okay, All right. Now, are each of you pleading guilty because you are, in fact, guilty of this charge of possession of cocaine on July 25, 2002? Are you, in fact, guilty of your part in this crime, Mr. Ealey? Mr. Ealey, let me advise you about the nature of the law about this. Of course, I have heard a lot by way of motions and everything, but under the law, regardless of where initially it came from or who bought it or what, you were in the vehicle?
EALEY: Yes.
COURT: If you were aware of its presence in the vehicle in there and that, then under the law, that would be sufficient, but I don’t want you pleading guilty to something you are not guilty, but I heard evidence about the search and everything and you being in the vehicle. So are you guilty of knowing that these drugs were in this vehicle? EALEY: I didn’t know, but I am guilty. I don’t know how to say it or what to say.
COURT: Before I can take a plea, you have to acknowledge your guilt to me, and, again, I don’t want to do that if that’s not what the situation is, but you have to decide whether or not you are guilty of this offense and you want to plead guilty, or, if you want a trial, [we can go] ahead and proceed with a trial in this case.
EALEY: Guilty.
COURT: Why don’t you tell me in your own words what happened Mr. Ealey.
ÉALEY: I don’t want to—
COURT: Do what?
EALEY: I don’t want to go to trial. I’ll lose and then I get all them years. That’s why I’ll go on and plead now.
EALEY’S ATTORNEY: Your Honor, may I speak with him for a minute?
COURT: Yes. The Court is going to take a short recess.
[Following the recess]
COURT: All right. Now Mr. Ealey and Mr. Wallace, the Court is going to ask you again. Are you pleading guilty to this charge because y’all are, in fact, guilty of this offense? Now, Mr. Ealey, are you pleading guilty because you are guilty?
EALEY: Yes, sir.

¶ 5. The trial court then asked Ealey’s attorney if he was “satisfied from the evidence that there is a factual basis for this plea?” He responded that he was. The trial court then asked the State if a factual basis existed “as set out in the hearing and in other matters that have come up before this Court?” The State responded, “It does have such a basis, your honor.” After this discussion, whereby the trial judge acknowledged the evidence from the suppression hearing and the defendant, after a recess with his attorney, unequivocally admitted his guilt, the trial court accepted Ealey’s plea of guilty. Ealey was sentenced to twenty years imprisonment with five years suspended and five years of post-release supervision and ordered to pay a fine of $10,000 plus all court costs and fees.

¶ 6. On October 19, 2004, Ealey filed a motion for post-conviction relief. In his motion, Ealey argued (1) that he was denied effective assistance of counsel, (2) that his guilty plea lacked a factual basis, and (3) that he was not in constructive possession of the cocaine. The trial court summarily denied his motion. Aggrieved by the trial court’s ruling, Ealey appeals.

STANDARD OF REVIEW

¶ 7. On appeal from the denial of a motion for post-conviction relief, we will not disturb the trial court’s decision unless we find the decision to be clearly erroneous. Felder v. State, 876 So.2d 372, 373(¶ 4) (Miss.2004). However, questions of law are reviewed de novo. Brown v. State, 731 So.2d 595, 598 (Miss.1999).

DISCUSSION

1. Factual Basis for Guilty Plea

¶ 8. Ealey asserts that the trial court’s acceptance of his guilty plea was devoid of a factual basis. Specifically, Ea-ley contends that the testimony given at the plea hearing was insufficient to form a factual basis for the acceptance of his guilty plea. The State responds that, in addition to testimony given at the guilty plea hearing, the trial judge had before him facts brought forth at the suppression hearing, which was conducted the day before the plea hearing. The State argues that the facts adduced from these two sources were adequate to provide the factual basis necessary for the tidal judge to accept Ealey’s plea.

¶ 9. Prior to accepting a plea of guilty, the trial court is required to determine “that there is a factual basis for the plea.” URCCC 8.04(A)(3). The reason for the rule is:

to push the court to delve beyond the admission of guilt lying on the surface and determine for itself whether there is substantial evidence that the petitioner did in fact commit those crimes he is charged with and is not entering the plea for some other reason that the law finds objectionable.

Gaskin v. State, 618 So.2d 103, 106 (Miss.1993).

1110. The trial court must have before it evidence “sufficiently specific to allow the court to determine that the defendant’s conduct was within the ambit of that defined as criminal.” Lott v. State, 597 So.2d 627, 628 (Miss.1992) (quoting United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir.1984)). The fact that a defendant entered a plea of guilty is not alone sufficient to form a factual basis for the acceptance of the plea. Hannah v. State, 943 So.2d 20, 26-27(¶ 16) (Miss.2006) (citing Lott v. State, 597 So.2d 627, 628 (Miss.1992)). However, our supreme court has explained that a guilty plea coupled with “an independent evidentiary suggestion of guilt” is sufficient to form a factual basis. Hover v. State, 773 So.2d 421, 424(¶ 12) (Miss.2000); see also Corley v. State, 585 So.2d 765, 767 (Miss.1991) (“Fair inference favorable to guilt may facilitate the finding.”). “The law does not require that a defendant admit every aspect of a charge against him.” Gazzier v. State, 744 So.2d 776, 779(¶ 7) (Miss.1999) (holding that a factual basis existed to support a guilty plea to rape notwithstanding that defendant denied the element of penetration at the plea hearing). The facts required to be shown are determined by the elements of the crime charged. Corley, 585 So.2d at 767.

¶ 11. As Ealey was not in actual possession of the cocaine, the trial judge must have had facts before him that created a fan inference that Ealey was in constructive possession of the cocaine. Constructive possession may be established where the evidence, considered under the totality of the circumstances, shows that the defendant “conscientiously exercised control over the contraband.” Dixon v. State, 953 So.2d 1108, 1112(¶ 9) (Miss.2007) (citing Berry v. State, 652 So.2d 745, 750-51 (Miss.1995)). “Constructive possession may be shown by establishing that the drug involved was subject to [the defendant’s] dominion or control.” Curry v. State, 249 So.2d 414, 416 (Miss.1971). The defendant’s close physical proximity to the contraband is usually required, but is not in and of itself sufficient to establish constructive possession unless “other incriminating circumstances” are present. Id. at 416.

¶ 12. In the instant case, the testimony given at the plea hearing provided little beyond Ealey’s admission to the crime of possession of cocaine. However, this does not render Ealey’s plea invalid. Mississippi law recognizes that there are multiple forms from which the required factual basis may be established. Corley, 585 So.2d at 767 (facts adduced from preliminary hearing); Gaskin v. State, 618 So.2d 103, 106 (Miss.1993) (sworn statements from witnesses); Brown v. State, 533 So.2d 1118, 1124 (Miss.1988) (facts adduced from hearing on demurrer to indictment). Thus, in' reviewing whether a factual basis existed for the acceptance of a guilty plea, “this Court is not limited to the transcript of [the] guilty plea hearing, but we are allowed to review the record as a whole.” Boddie v. State, 875 So.2d 180, 183(¶ 8) (Miss.2004) (citation omitted).

¶ 13. Accordingly, we now turn to the facts adduced at the suppression hearing to determine if “an independent evidentia-ry suggestion of guilt” accompanied Ea-ley’s admission of guilt. Officer Brown’s testimony at the suppression hearing, detailed above, showed that Ealey was riding across several states in a rented vehicle containing a large amount of drugs, a large sum of money, a gun, and a receipt for the purchase of products regularly used in the sale of cocaine. From these facts, it is fairly inferable that Ealey was aware of the character and presence of the cocaine and that it was subject to his dominion and control. Thus, these facts provide an evi-dentiary suggestion of guilt independent of Ealey’s admission.

¶ 14. Additionally, we note that our supreme court has instructed that “[a] factual showing does not fail merely because it does not flesh out the details which might be brought forth at trial.” Corley, 585 So.2d at 767. To this end, it is entirely possible that evidence might have been presented at trial which more affirmatively proved that Ealey was in possession of the cocaine.

¶ 15. Considering the totality of the circumstances, we find that the trial judge’s acceptance of Ealey’s guilty plea was supported by substantial evidence. Based on the facts in the record, we cannot say that the trial judge’s acceptance of Ealey’s guilty plea was clearly erroneous. Therefore, we find that a factual basis existed sufficient to undergird the trial judge’s acceptance of Ealey’s guilty plea to possession of cocaine. This issue is without merit.

£. Ineffective Assistance of Counsel

¶ 16. Ealey asserts that the performance of his trial counsel, David Read, was constitutionally inefficient. He claims that Read failed to conduct an independent investigation into his case, failed to intei'-view witnesses favorable to him, and failed to file the proper motions. Ealey also claims that Read coerced him to plead guilty by advising him that if he chose to go to trial he would be convicted and sentenced to sixty years in jail.

¶ 17. We review Ealey’s argument under a two-part inquiry to determine whether counsel’s performance was deficient, and whether the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Swington v. State, 742 So.2d 1106, 1114(¶ 22) (Miss.1999). We consider the “totality of the circumstances” in determining if counsel’s actions were deficient and prejudicial. Id. at 1114(¶ 22) (citation omitted). In the context of a guilty plea, the focus is whether the defendant has shown that there is a reasonable probability that, but for the errors of his counsel, he would not have entered a guilty plea, would have insisted on going to trial, and that the outcome would have been different. Hannah v. State, 943 So.2d 20, 24(¶ 7) (Miss.2006).

¶ 18. Ealey offers only his bare assertions as proof that he was denied effective assistance of counsel. In his motion for post-conviction relief, he provided no affidavits or proposed testimony of other witnesses to support his contentions. Ealey offers no exculpatory evidence that his attorney would have discovered by more thoroughly investigating the case nor does he identify which motions his attorney should have, but failed to file. It is firmly established that mere allegations are insufficient to entitle a defendant to an evidentiary hearing on a post-conviction claim of ineffective assistance of counsel. Gazzier, 744 So.2d at 778-79(¶ 6) (citing Robertson v. State, 669 So.2d 11 (Miss.1996)). Post-conviction claims of ineffective assistance are properly dismissed where the defendant offers only his affidavit in support of his allegations. Vielee v. State, 653 So.2d 920, 922 (Miss.1995); Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990).

¶ 19. Moreover, the transcript of the guilty plea hearing contradicts Ealey’s claim that his attorney coerced him to plead guilty. At the plea hearing, Ealey represented that no one had threatened him to plead guilty. Our supreme court has held that “when the only support offered by a convict is his own affidavit, and his affidavit is contradicted by his own sworn statement, an evidentiary hearing is not required.” Young v. State, 731 So.2d 1120, 1123(¶ 12) (Miss.1999).

¶ 20. Here the trial court found that Ealey failed to provide “any substance whatsoever” in support of his motion for post-conviction relief. For the reasons discussed above, we do not find the trial court’s decision to be clearly erroneous. The arguments advanced by Ealey fail to meet the required burden that counsel was deficient, and that Ealey was prejudiced by counsel’s deficiency. This issue is without merit.

3. Sufficiency of Evidence/Illegal Search

¶ 21. Ealey argues that the evidence was insufficient to establish that he was in possession of the cocaine. He also asserts that the search of the vehicle was illegal. These claims are procedurally barred.

¶ 22. It is well-settled that a valid plea of guilty waives all non-jurisdictional defects incident to trial. Dennis v. State, 873 So.2d 1045, 1048(¶ 9) (Miss.Ct.App.2004) (citing Anderson v. State, 577 So.2d 390, 391 (Miss.1991)). Our supreme court has squarely held that a guilty plea waives a claim alleging an illegal search or seizure as well as the prosecution’s requirement to prove each element of the offense beyond a reasonable doubt. King v. State, 738 So.2d 240, 240(¶¶ 4-5) (Miss.1999); Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989).

¶ 23. Having already determined that Ealey entered and the trial judge accepted a valid guilty plea, we find that Ealey’s challenge to the sufficiency of the evidence and the legality of the search are waived. This issue is without merit.

¶ 24. THE JUDGMENT OF THE ADAMS COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IN CAUSE NO. 2006-CP-00552 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ADAMS COUNTY.

¶ 25. THE APPEAL IN CAUSE NO. 2006-KP-1349 IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ADAMS COUNTY.

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

KING, C.J.,

Dissenting:

¶ 26. Because I believe that the trial court lacked an evidentiary foundation for the acceptance of Ealey’s plea of guilty, I dissent from the majority opinion herein.

¶ 27. On October 29, 2002, Ealey was indicted in the Circuit Court of Adams County for possession of cocaine with intent to sell in a church zone. As part of an agreement with the district attorney, Ea-ley then pled guilty on March 11, 2003, to a reduced charge of simple possession of 540 grams of cocaine. The record showed that Ealey was a passenger in a vehicle in which a substantial amount of cocaine was found. He was sitting in the backseat on the passenger’s side while the drugs were found in a closed console between the two front seats.

¶28. During the plea colloquy, Ealey stated that he did not know the drugs were in the car, but that he was guilty. He went on to say that he was entering a guilty plea because he did not want to go to trial on the original enhanced charge and “get all them years.” After speaking with counsel during a short recess, Ealey stated he was pleading guilty because he was in fact guilty. However, he never disavowed his prior claim that he lacked knowledge of the presence of the drugs.

¶29. Notwithstanding this, the trial court accepted Ealey’s plea of guilty.

¶ 30. In his appeal, Ealey argues that the trial court failed in its obligation to make a factual inquiry beyond the simple phrase “I am guilty.” I agree with the argument. The record as presently before this Court does not demonstrate that the trial court met its obligation to make an independent determination that a factual basis existed for Ealey’s guilty plea.

¶ 31. Prior to accepting a plea of guilty, the trial court “must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea.” URCCC 8.04(A)(3) (emphasis added). This rule is taken very seriously. Corley v. State, 585 So.2d 765, 766 (Miss.1991) (citing Brown v. State, 533 So.2d 1118, 1124 (Miss.1988)). The purpose of the requirement is:

to push the court to delve beyond the admission of guilt lying on the surface and determine for itself whether there is substantial evidence that the petitioner did in fact commit those crimes he is charged with and is not entering the plea for some other reason that the law finds objectionable.

Gaskin v. State, 618 So.2d 103, 106 (Miss.1993).

¶ 32. There are several different ways to provide the factual basis for the guilty plea. They include: (1) testimony given at the plea hearing by a prosecution investigator, (2) a concise statement of facts given by the prosecutor to establish the crime, (3) testimony from live witnesses, and (4) consideration of factual proceedings already before the court. Corley, 585 So.2d at 767. Corley goes further to say that the defendant’s admission alone may suffice, or that we can take the testimony of the defendant into account with other evidence. Id. For the admission of guilt to provide the factual basis, “the admission must contain factual statements constituting a crime or be accompanied by independent evidence of guilt.” Hannah v. State, 943 So.2d 20, 27(¶ 16) (Miss.2006). The factual basis cannot be merely implied from the fact that a guilty plea was entered. Lott v. State, 597 So.2d 627, 628 (Miss.1992). Mainly, “there must be enough that the court may say with confidence the prosecution could prove the accused guilty of the crime charged, ‘that the defendant’s conduct was within the ambit of that defined as criminal.’ ” Gaskin, 618 So.2d at 106 (quoting Corley, 585 So.2d at 767). The facts required are determined by the elements of the offense. Corley, 585 So.2d at 767. Here, the offense charged is simple possession. Further, since he was not in actual possession the factual basis must support a charge of constructive possession. It requires that the accused be aware of the character and presence of the substance and that it was subject to his dominion and control. Dixon v. State, 953 So.2d 1108, 1112(¶ 9) (Miss.2007).

¶ 33. This case lacks such a required factual basis. The trial court indicated that it would consider the evidence from the suppression hearing in determining the existence of a factual basis for the plea. While the suppression hearing did provide more facts than the plea colloquy, that hearing still does not contain any facts that connected Ealey to the cocaine found in the ear. The suppression hearing explained that Ealey was a passenger in the backseat of a vehicle in which 540 grams of cocaine were found. These drugs were found in a closed center console between the two front seats along with a substantial sum of money. Officer Jerry Brown, one of the officers who was present during the search and arrest, testified during the suppression hearing. While Officer Brown provided information to justify the search, he did not state that any incriminating evidence was found on Ealey. Officer Brown did not testify as to any connection between Ealey and the concealed money, the concealed drugs, the concealed gun, or the “receipt for the purchase of products regularly used in the sale of cocaine,” other than he shared the same residency, Houston, Texas, as the driver. Nor did Officer Brown testify that Ealey provided any indication that he knew the drugs were in the car.

¶ 34. Thus, we look to the plea colloquy for any facts that could provide a factual basis for the guilty plea. The relevant discussion that occurred in the plea colloquy is as follows:

COURT: Okay. Ml right. Now, are each of you pleading guilty because you are, in fact, guilty of this charge of possession of cocaine on July 25, 2002? Are you, in fact, guilty of your part in this crime, Mr. Ealey? Mr. Ealey, let me advise you about the nature of the law about this. Of course, I have heard a lot by way of the motions and everything, but under the law, regardless of where initially it came from or who bought it or what, you were in the vehicle?
EALEY: Yes.
COURT: If you were aware of its presence in the vehicle in there and that, then under the law, that would be sufficient, but I don’t want you pleading guilty to something you are not guilty, but I heard evidence about the search and everything and you being in the vehicle. So are you guilty of knowing that these drugs were in this vehicle?
EALEY: I didn’t know, but I am guilty. I don’t know how to say it or what to say.
COURT: Mr. Ealey, I am going to tell you, sir. I don’t want to take a plea from you if you are not guilty of this charge, but that’s why there is a jury down there and we can proceed with a jury trial in this matter, [trial court’s discussion with co-defendant]
[Trial court addressing Ealey] Before I can take a plea, you have to acknowledge your guilt to me, and, again, I don’t want to do that if that’s not what the situation is, but you have to decide whether or not you are guilty of this offense and you want to plead guilty, or if you want a trial, [we can go] ahead and proceed with a trial in this case.
EALEY: Guilty.
COURT: Why don’t you tell me in your own words what happened Mr. Ealey.
EALEY: I don’t want to—
COURT: Do what?
EALEY: I don’t want to go to trial. I’ll lose and then I get all them years. That’s why I’ll go on and plead now.
EALEY’S ATTORNEY: Your Honor, may I speak with him for a minute?
COURT: Yes. The Court is going to take a short recess.
[Following the recess]
COURT: All right. Now Mr. Ealey and Mr. Wallace, the Court is going to ask you again. Are you pleading guilty to this charge because y’all are, in fact, guilty of this offense? Now, Mr. Ealey, are you pleading guilty because you are guilty?
EALEY: Yes, sir.

¶ 35. The trial court then asked the attorneys of each defendant, “Are you satisfied from the evidence that there is a factual basis for this plea?” Each responded that there was a factual basis. The trial court then asked the State, “Does the State, in fact, have a factual basis as set out in the hearing in the other matters that have come up before this Court.” To which the State responded, “It does have such a basis, your honor.”

¶ 36. After this discussion, the trial court found that the pleas were entered voluntarily and knowingly and that there was a firm factual basis for the pleas. After making such a finding, the trial court accepted the pleas of guilty.

¶ 37. The facts provided from the record merely show that Ealey was a passenger in a vehicle in which drugs were found, and that he was not aware of the character and presence of the cocaine. It appears that the trial court recognized this inadequacy and attempted to address it when it told Ealey that it would have been enough for him to know that the drugs were in the vehicle. However, Ealey inadvertently thwarted this attempt by stating that he did not know the drugs were in the car. The trial court again tried to clear up any problems with a factual basis when it asked Ealey to state what happened in his own words. Once again, Ealey foiled the trial court’s attempt by merely stating that he was pleading guilty because he did not want to risk an enhanced sentence.

¶ 38. The trial court, without further inquiry, asked Ealey if he was pleading guilty because he was in fact guilty, to which Ealey responded in the affirmative. This Court has held that a bare admission of guilt will not create a factual basis, unless the admission contains facts that support the guilty plea. Hannah, 943 So.2d at 27(¶ 16). Here, Ealey’s admission fails to include any additional facts. Therefore, Ealey’s plea alone will not suffice for a factual basis.

¶ 39. While it is true that Ealey’s attorney stipulated that there was a factual basis in the record, it is the duty of the trial court to determine that there is a factual basis for the plea, as the purpose of the “requirement is to push the court to delve beyond the admission of guilt lying on the surface and determine for itself whether there is substantial evidence that the petitioner did in fact commit those crimes he is charged with and is not entering the plea for some other reason that the law finds objectionable.” Gaskin, 618 So.2d at 106 (emphasis added). Further, Uniform Rule of Circuit and County Court 8.04(A)(3) requires that “[bjefore the trial court may accept a plea of guilty, the court must determine that ... there is a factual basis for the plea.” (emphasis added).

¶ 40. There is nothing to prohibit the parties from stipulating to certain facts that may create a factual basis, however that stipulation must be specific rather than a general conclusory statement. URCCC 8.04(A)(3) and case law prohibit the court from substituting the parties’ stipulation that there is a factual basis for its own duty.

¶ 41. I believe that, given the record before this Court, the motion for post-conviction relief should have been granted and the guilty plea vacated.

      . The record reflects that Ealey's attorney filed a motion to suppress evidence found during the search of the vehicle. It is clear from the record that Ealey's attorney aggressively attacked the legality of the search at the suppression hearing and that he was very knowledgeable of the facts and circumstances of the case as evidenced by his cross-examination of Officer Brown.

      . The excerpt is from the Ealey and Tramelle Wallace plea colloquy. Wallace was the driver of the vehicle in which the cocaine was found. They were co-defendants offering a plea to identically reduced charges. Since they were charged with the same crime arising out of the same facts, the trial court chose to address them in one plea colloquy.


author: MYERS, P.J.,

text:
    Robert Lee ROBINSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01446-COA.
    Court of Appeals of Mississippi.
    Oct. 30, 2007.

      Johnnie E. Walls, Jr., Greenville, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., BARNES and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Robert Lee Robinson was convicted of four counts of possession of a controlled substance as a second and subsequent offender. Following his conviction, he was sentenced to serve a term of thirty years in the custody of the Mississippi Department of Corrections and received a one million dollar fíne as to Count I, possession of ecstasy as a second and subsequent offender. Under Count II, possession of cocaine, Robinson was sentenced to eight years and a fine of $100,000, to run concurrent to the sentence imposed in Count I. Robinson was additionally sentenced under Count III, possession of marijuana, to a term of three years and a $6,000 dollar fine, to run concurrent to the sentence imposed in Counts I and II. Finally, Robinson was sentenced under Count IV, possession of Alprazolam, to a term of one year and a fine of $1,000 to run concurrent to the sentences imposed in Counts I, II, and III. From his conviction, Robinson appeals, requesting review of whether the trial court erred in denying Robinson’s motion for JNOV, or in the alternative, a new trial.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Robinson was driving from his home in Memphis, Tennessee, to Cleveland, Mississippi, on March 2, 2005, in his white Oldsmobile Cutlass. Robinson drove to Cleveland, Mississippi, to meet his alleged business partner, Joe Moore, and pick up $2,400 in cash to help open their planned restaurant.

¶ 4. After Robinson picked up the cash he made his way back to Memphis, Tennessee, traveling north on Highway 61. Robinson was subsequently stopped for speeding by state trooper Dan Rawlinson. Rawlinson testified that when he approached the vehicle he detected a raw marijuana smell emanating from the car, and that the car had an expired inspection sticker. Rawlinson further testified that he received permission to search the car for contraband. Once Rawlinson began the search, he found a large sum of cash in the console, but no illegal contraband. Rawlinson then testified that he asked permission to search the trunk and Robinson informed him he would have to get a warrant first. After calling for backup, Raw-linson determined that the vehicle identification number on the inside of the driver’s door had been stripped and did not match the car description.

¶ 5. Responding to Rawlinson’s call, Officer Jacob Lott arrived at the scene with his canine, Masai, to check for the presence of drugs in the car. Masai alerted twice that he detected the presence of drugs in the car on both the driver and passenger’s sides of the vehicle. Rawlin-son then searched the trunk of the vehicle, where he found a black overnight bag containing cocaine, marijuana, ecstasy, and a drug which appeared to be Xanax.

¶ 6. At trial, Robinson testified that he had no knowledge that the black bag or the drugs were in his trunk. Robinson’s nephew, William Wilson, testified that he found the bag while he was playing basketball and took the bag and placed it in his uncle’s trunk, without Robinson’s knowledge. Wilson testified he planned to take the bag the next morning and sell' the drugs, but his uncle left before he had a chance to retrieve the bag from the trunk.

¶ 7. At trial, Robinson first moved for a directed verdict at the close of the State’s ease. After the guilty verdict by the jury, Robinson again moved for a JNOV or a new trial, which was denied. Robinson now appeals, seeking reversal of the trial court’s failure to grant a JNOV or a new trial.

STANDARD OF REVIEW

¶ 8. This Court reviews motions for directed verdict or JNOV under an abuse of discretion standard. Howell v. State, 860 So.2d 704, 764 (¶ 212) (Miss.2003). Our supreme court has noted, with regard to challenges based on the sufficiency of the evidence, that “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). More importantly, an appellate court must ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Dilworth, 909 So.2d at 736(¶ 17) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 9. This Court will reverse the denial of a motion for new trial only under an abuse of discretion standard. Dilworth 909 So.2d at 737(¶ 20). Essentially, “[a] motion for new trial challenges the weight of the evidence.” Id. The trial court should only grant a motion for new trial in exceptionally rare circumstances where the evidence weighs heavily against the verdict. Id. at 737(¶ 21). “A greater quantum of evidence favoring the State is necessary for the State to withstand a motion for a new trial, as distinguished from a motion for J.N.O.V.” Id. at 737(¶ 20) (citing Pharr v. State, 465 So.2d 294, 302 (Miss.1984)).

DISCUSSION

¶ 10. At trial, Robinson argued that he was completely unaware of the contents of the bag found inside his trunk, which contained drugs. Robinson contended that his nephew, William Wilson, placed the bag containing drugs inside Robinson’s trunk, unbeknownst to Robinson. The record reflects testimony from Wilson that he found the bag containing drugs at a local park while playing basketball. Wilson further testified that he took the bag, intending to sell the drugs himself. Wilson claimed he placed the bag in the trunk of his Uncle Robinson’s car, intending to conceal the bag from his aunt, with plans to retrieve it the next morning.

¶ 11. At the close of the State’s case-in-chief, Robinson made a motion for a directed verdict, but the trial judge denied the motion, finding the State had presented sufficient evidence for a prima facie case against Robinson. At the close of trial, Robinson renewed his motion for a directed verdict, claiming that the State failed to prove actual exclusive possession or constructive possession on behalf of Robinson. The trial court again denied the motion. The jury returned a verdict of guilty on all four counts against Robinson. Robinson again moved for JNOV or, in the alternative, a motion for a new trial at the sentencing hearing. The trial court also overruled these motions. This appeal followed.

I. WHETHER THE TRIAL COURT ERRED IN DENYING ROBINSON’S MOTION FOR JNOV

¶ 12. Robinson now argues that the trial court erred in denying the motion for JNOV because the evidence presented at trial was insufficient to support the jury verdict. Robinson asserts that the State failed to prove that he had actual or constructive knowledge of the presence of drugs in his car and that the State did not present evidence sufficiently connecting Robinson to the drugs. Robinson also asserts that the verdict was based on speculation. While Robinson admitted he exercised dominion and control over the car in question, he denied having control over the drugs found in the trunk. Further, Robinson also claims to have rebutted the presumption that the drugs were in his exclusive possession or control because he presented testimony attempting to establish that his nephew, Wilson, was the source of the drugs. Pool v. State, 483 So.2d 331, 336 (Miss.1986). Robinson argues that he rebutted the presumption by presenting testimony from Wilson, his nephew, regarding the source of the drugs, proving he did not have exclusive possession of the trunk of his own car.

¶ 13. In contrast, the State argues that a reasonable jury could have found from evidence presented at trial that Robinson was constructively in possession of the drugs. Robinson admitted that he owned the car subjected to the police search. The State notes Robinson was the sole owner and occupant of the car at the time of the search and arrest. Thus, the State argues that Robinson was in constructive possession of the drugs. Additionally, the State points to several other incriminating factors connecting Robinson to the drugs, which include: the large amount of cash found in the car console, the odor of marijuana emanating from the car, and consent to search the car interior but not the trunk. The State argues that the jury had the authority to weigh and evaluate the evidence presented at trial and asserts that the decision regarding Robinson’s guilt or innocence rested with the jury. The State reasons that a reasonable juror could conclude that Robinson was aware of the presence of the drugs in his car and intentionally possessed the drugs. The State urges us to find that the denial of the JNOV was proper.

¶ 14. The question before this Court is whether a rational person, when viewing the evidence in the light most favorable to the State, could have found that the State proved all the elements of drug possession against Robinson. Dilworth v. State, 909 So.2d at 737(¶ 19) (Miss.2005). We are to review cases of this nature under an abuse of discretion standard. Howell v. State, 860 So.2d at 764 (¶ 212) (Miss.2003).

¶ 15. In Wall v. State, 718 So.2d 1107, 1111(¶ 13) (Miss.1998), the court observed that, with regard to contraband found in a vehicle, that “the owner of a vehicle is presumed to be in constructive possession.” In the case sub judice, the drugs were found in Robinson’s trunk. Robinson was the owner of the car. These drugs are presumed to be in Robinson’s constructive possession unless otherwise rebutted. Spencer v. State, 908 So.2d 783, 788(¶ 14) (Miss.Ct.App.2005) (quoting Powell v. State, 355 So.2d 1378, 1379 (Miss.1978)). Robinson maintains that the car was not in his exclusive possession because others had access to his car, namely his nephew, Wilson. The only substantial evidence introduced to rebut the presumption was the testimony of Wilson. Wilson or another person could have been the source of the drugs found in Robinson’s trunk, however this was a question for the jury to determine from all the evidence presented. The court in Wolf v. State 260 So.2d 425, 432 (Miss.1972) noted:

the defendant’s testimony, and all of the circumstances relied upon by appellant to show that other people could have placed the marijuana in the automobile were factors to be considered by the jury, and the jury could have accepted defendant’s testimony that he did not know marijuana was in his automobile.

The State challenged the testimony of Wilson, noting he was unable to correctly describe the bag in question and had a motive to help his Uncle Robinson by testifying. The jury found the evidence supported the theory presented by the State, rather than the theory presented by the defense.

¶ 16. In the case sub judice, the State presented additional evidence to the jury aside from Robinson’s proximity to the drugs for it to determine he was in constructive possession. Robinson was both the sole occupant and owner of the car when the drugs were found. The officer conducting the search testified he detected the odor of marijuana at the time of the stop, which gave him sufficient probable cause to search the vehicle. Hart v. State, 639 So.2d 1313, 1316 (Miss.1994) (holding both, the detection of marijuana odor by officers sufficiently established probable cause, and there was sufficient evidence presented to show defendant intentionally and consciously possessed the drugs, such that denial of the directed verdict motion was proper). Further, the arresting officer testified that Robinson gave permission to search the interior of the car, but refused permission to search the trunk without a warrant. Upon searching the car, the officer retrieved a large amount of cash located in the console. A drug canine further gave a positive alert that there were drugs present in the car during the search.

¶ 17. Our review of the record indicates there was sufficient evidence for the jury to find Robinson did, in fact, have constructive possession of the drugs found in his car. There was a sufficient amount of other incriminating evidence which connected Robinson to the drugs in order the for jury to find Robinson guilty. For the foregoing reasons, we cannot find error in the decision of the trial court denying the motion for a JNOV and we, accordingly, affirm.

II. WHETHER THE TRIAL COURT ERRED IN DENYING ROBINSON’S MOTION FOR A NEW TRIAL

¶ 18. Robinson also argues that the trial judge erred in failing to grant his motion for a new trial. However, to allow the verdict to stand would not sanction an unconscionable injustice, because it was not so contrary to the overwhelming weight of the evidence presented against Robinson. Fox v. State, 756 So.2d 753, 758(¶ 16) (Miss.2000); (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997); McFee v. State, 511 So.2d 130, 133-34 (Miss.1987)). This Court cannot find that this is an exceptional case where the evidence presented weighs heavily against the verdict. Dilworth v. State, 909 So.2d 731, 737(¶ 21) (Miss.2005). Here, the evidence presented by the State weighs in favor of the verdict at trial for all the reasons stated above. The jury had the benefit of hearing the testimony and evidence presented at trial and found that the evidence weighed in favor of the State. As such, we cannot find that the trial court erred in denying Robinson’s motion for new trial and we accordingly affirm.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF CONVICTION OF COUNT I-POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCE OF THIRTY YEARS AND FINE OF $1,000,000 AND $300 IN CRIME LAB FEES; COUNT II-POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCE OF EIGHT YEARS AND A FINE OF $100,000; COUNT III-POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCE OF THREE YEARS AND FINE OF $6,000; COUNT IV-POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCE OF ONE YEAR AND FINE OF $1,000; APPELLANT CHARGED AS A SECOND AND SUBSEQUENT OFFENDER ON ALL COUNTS AND SENTENCES SHALL NOT BE REDUCED OR SUSPENDED NOR SHALL THE APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION AND SENTENCE SHALL RUN CONCURRENTLY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED ALL TO BE SERVED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND THE AFORESAID FINES AND LAB FEES SHALL BE CONCURRENT WITH THE FINES AND LAB FEES IMPOSED IN COUNTS I, II, AND III, FOR A TOTAL NOT TO EXCEED $1,000,000 AND TOTAL LAB FEES NOT TO EXCEED $300 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Alejandro Aquirre MORENO a/k/a Arturo Euriquez Moreno, Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-CP-01859-COA.
    Court of Appeals of Mississippi.
    Oct. 30, 2007.

      Alejandro Aquirre Moreno, appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Alejandro Aquirre Moreno was involved in a two-vehicle accident, on July 11, 2004, in Hattiesburg, Mississippi, which claimed the life of Benjamin Alexander Berry and injured two others. Moreno pleaded guilty and was convicted of DUI manslaughter and two counts of DUI mayhem. He was sentenced to serve twenty-five years on each count, all to run consecutively. However, fifteen years was suspended from the sentence for the DUI manslaughter conviction in lieu of post-release supervision, with a five-year supervision period. Twenty years were suspended from the conviction of DUI mayhem in lieu of post-release supervision, with a five years supervision period ordered. Following his conviction and sentence, Moreno filed for post-conviction relief, asserting several grounds, including a violation of double jeopardy and ineffective assistance of counsel. His motion was dismissed without an evidentiary hearing, and he. now appeals. Finding no error, we affirm the circuit court’s denial of Moreno’s motion for post-conviction relief.

DISCUSSION

I. WHETHER MORENO’S CONVICTIONS UNDER MISSISSIPPI CODE ANNOTATED SECTION 63-11-30 OF DUI MANSLAUGHTER AND DUI MAYHEM CONSTITUTE DOUBLE JEOPARDY

¶ 2. Moreno argues that the indictments under Mississippi Code Annotated section 63-11-30(5) (Rev.2004) for DUI manslaughter and two counts of DUI mayhem subject him to double jeopardy because his driving while intoxicated only constituted one offense. The State asserts that, while each of the offenses arose from the same incident, namely driving while intoxicated, each charged offense is separate because Moreno caused the death of one and injured two others.

¶ 3. “[DJouble jeopardy applies to prevent three errors it protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction and (3) multiple punishments for the same offense.” Brawner v. State, 947 So.2d 254, 266(¶ 33) (Miss.2006) (citing Schiro v. Farley, 510 U.S. 222, 229, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994)). The legislature, in 2004, amended and made clear that one may be charged under Mississippi Code Annotated section 63-11-30 for multiple felonies arising from the same act of driving under the influence. See Miss.Code Ann. section 63-11-30(5) (effective May 4, 2004) (stating “[ejvery person who operates any motor vehicle in violation of the provisions of subsection (1) of this section and who in a negligent manner causes the death of another or mutilates, disfigures, permanently disables or destroys the tongue, eye, lip, nose or any other limb, organ or member of another shall, upon conviction, be guilty of a separate felony for each such death, mutilation, disfigurement or other injury .... ” (emphasis added)). Each of the indictment’s counts were predicated upon separate felonies, one instance of manslaughter and two instances of mutilation or mayhem, in which Moreno committed as a result of his drunk driving. Therefore, no violations of double jeopardy have occurred here. Moreno’s argument has no merit and we deny relief, accordingly.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 4. Moreno claims that he received ineffective assistance of counsel, asserting that his lawyer made several errors during his representation. He argues that his attorney failed to assist him in receiving a speedy trial, failed to investigate and failed to advise him regarding the maximum and minimum sentences. Claims of ineffective assistance of counsel are reviewed by using the two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on a claim of ineffective assistance of counsel, Moreno has the burden of proof to show by a preponderance of the evidence that (1) counsel’s performance was deficient, and (2) that the deficiency did, in fact, prejudice the defendant. Id.; Hall v. State, 735 So.2d 1124, 1127(¶ 6) (Miss.Ct.App.1999). “A defendant who pleads guilty to a crime is ‘prejudiced’ by his counsel’s erroneous advice if he would have insisted on going to trial if he had been correctly informed.” Reeder v. State, 783 So.2d 711, 718(¶ 28) (Miss.2001) (quoting Alexander v. State, 605 So.2d 1170, 1173 (Miss.1992)). In determining whether the first prong of Strickland concerning counsel’s performance has been satisfied, we must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.... ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The second prong of the Strickland test requires that Moreno prove prejudice by showing that there was a reasonable probability, that but for counsel’s errors, the trial court’s result would have been different. Id. at 699, 104 S.Ct. 2052. Whether the prongs of this test are met is determined by an examination of the totality of the circumstances. Id.

¶ 5. When Moreno pleaded guilty at the plea hearing, with the help of an interpreter, he represented to the court that he was satisfied with his attorney’s representation. In pleading guilty, Moreno waived any possible defense of ■ any purported speedy trial violation. Epps v. State, 926 So.2d 242, 245(¶ 8) (Miss.Ct.App.2005). Furthermore, Moreno fails to present any facts supportive of a speedy trial violation, and we decline to address the issue. Further, our review of the plea hearing transcript reveals that Moreno was advised, on the record, of the minimum and maximum time he potentially could be sentenced. Thus, this argument has no merit. Moreno’s assertion that he received ineffective assistance of counsel fails.

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

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

      . Moreno asserts several grounds on appeal in support of his argument, some of which were not pleaded in his motion for post-conviction relief. Because issues not raised in the court below are waived, we decline to address his arguments concerning plea involuntariness, a Miranda violation, a speedy trial right violation, and an assertion that his attorney was not present at the time of sentencing, as they relate to his claim of ineffective assistance of counsel. Thorson v. State, No. 2004-DR-02248, - So.2d -, -, 2007 WL 2446474 (¶ 10) (Miss.2007).