author: DICKINSON, Justice,

text:
    MISSISSIPPI EXPORT RAILROAD COMPANY v. Malcolm E. ROUSE and Edna F. Rouse.
    No. 2004-CA-00503-SCT.
    Supreme Court of Mississippi.
    April 13, 2006.
    Raymond L. Brown, W. Fred Hornsby, III, Sessums, attorneys for appellant.

      Austin R. Nimocks, Biloxi, attorney for appellees.
   ON MOTION FOR REHEARING

DICKINSON, Justice,

for the Court.

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 The original opinion is withdrawn and this opinion is substituted therefor.

¶ 2. This is a claim of prescriptive easement by private citizens who presented uncontradicted proof of continuous use of a private crossing over active railroad tracks for over fifty years. The question presented is whether active railroad tracks are “public highways” as provided by Article 7, § 184, of the Mississippi Constitution and, therefore, immune from prescriptive easement.

BACKGROUND FACTS AND PROCEEDINGS

¶ 3. In early March, 2000, Malcolm and Edna Rouse, owners of Deep South Nursery, Inc., purchased approximately twenty acres (“Twenty Acres”) in rural George County to expand their 128-acre nursery business. Although no public road adjoins the Twenty Acres, Mississippi Export Railroad Company’s (“MERC”) right-of-way runs approximately 403 feet along the eastern border with a private dirt crossing over MERC’s right-of-way and railroad tracks connecting the Twenty Acres with Karla Road. Deep South receives and delivers plants on 18-wheeler tractors with 46-foot trailers.

¶ 4. After the Rouses purchased the Twenty Acres, MERC’s Superintendent of Engineering, Willie Evans, set up a meeting to discuss the crossing. Mr. Rouse and Evans met at the crossing to discuss the Rouses’ continued use of the crossing. According to MERC, it threatened to remove the crossing unless the Rouses agreed to indemnify MERC for liability claims and pay a share of the maintenance costs related to the crossing. The meeting concluded with no agreement.

¶ 5. Shortly thereafter, the Rouses planted approximately 21,000 Crepe Myrtles, Yapon Holly, Deodar Cedar, Foster Holly, and other shrubs to offer for sale upon their maturity. Over the next few years, the Rouses used the private dirt crossing to access the Twenty Acres and care for the plants to prepare them for sale.

¶ 6. The Rouses heard nothing further regarding the crossing until early 2003, when MERC provided them written notice that the crossing would be removed in thirty days, but that MERC would grant the Rouses a 20-foot easement from the northeast corner of their property along approximately 400 feet of the west side of MERC’s right-of-way, to Parker Road. Although the easement granted by MERC provided access for automobiles and pickup trucks, it was unsuitable for 18 wheel tractor trailers.

¶ 7. On April 8, 2003, MERC removed the crossing which, according to the undisputed evidence at trial, had been used for access to the Twenty Acres for more than fifty years. This prompted the Rouses to bring suit in the Chancery Court of George County, claiming an easement by prescription, and seeking an injunction against MERC “from entering onto said easement or other property of the Plaintiffs and taking any actions which, in any manner, may interfere with the Plaintiffs’ use and occupancy of their easement or right-of-way or business, whether for business or private purpose.” The suit demanded damages for tortious interference with their business operations, punitive damages, and court costs.

¶ 8. After trial, the chancellor awarded the Rouses an easement by prescription and ordered MERC to promptly restore the removed crossing, but dismissed the Rouses’ claim of tortious interference. The chancellor enjoined MERC from disturbing or interfering with the Rouses’ use of the easement “so long as same does not disrupt the operation of the railroad’s business.” From this judgment, MERC appeals. Both the Mississippi Railroad Association and the American Short Line and Regional Railroad Association filed amicus briefs.

ANALYSIS

¶ 9. MERC raises numerous issues on appeal, including an assertion that the Rouses failed to meet their burden of proof as to prescriptive easement. Because we agree, and today hold that prescriptive easements may not be obtained by private citizens across active railroad lines, we shall address only that issue utilizing a de novo standard of review. Gourlay v. Williams, 874 So.2d 987, 989 (Miss.2004).

¶ 10. This Court has long held that “[t]he rights of the public to the use of the streets and public roads cannot be lost by adverse possession. Whitherspoon v. Meridian, 69 Miss. 288, 13 South. 843 [(1891)]; Briel v. City of Natchez, 48 Miss. 423 [(1873)]; Vicksburg v. Marshall, 59 Miss. 563 [(1882)].” Mobile & O.R. Co. v. Strain, 125 Miss. 697, 88 So. 274, 277 (1921).

¶ 11. In Mississippi, railroad tracks are considered public highways. Article 7, Section 184 of the Mississippi Constitution provides, “[a]ll railroads which carry persons or property for hire shall be public highways, and all railroad companies so engaged shall be common carriers.... ”

¶ 12. Thus, because we are constitutionally required to recognize “railroads” as “public highways,” and as discussed infra, our precedent clearly prohibits a private individual from gaining an interest across a public highway by adverse possession or prescriptive easement, the question presented appears simple. However, as pointed out by the Rouses, this Court has consistently held that a railroad’s right-of-way may be adversely possessed. See e.g. Mobile & O.R. Co. v. Strain, 125 Miss. 697, 88 So. 274 (1921); Paxton v. Railroad Co., 76 Miss. 536, 24 South. 536 (1899); and Wilmot v. Yazoo & M. Val. R. Co., 24 So. 701, 76 Miss. 374 (1899). We find this line of cases clearly distinguishable.

¶ 13. In Strain, the owner of a hotel situated on railroad right-of-way sought title by adverse possession. The Strain Court recognized that rights by adverse possession could not be gained across the portion of right-of-way “in actual use,” but then stated that as to “lands of a railroad company not actually necessary for the operations of the railroad, title by adverse possession may be acquired.” Strain, 88 So. at 277. Strain clearly stands for the proposition that the portion of railroad right-of-way in actual use, that is, the tracks, is to be treated as a public highway, and title by adverse possession as to a part of the right-of-way may be acquired only if that portion is not being used.

¶ 14. The Rouses claim Alabama & V. Ry. Co. v. Joseph, 125 Miss. 454, 87 So. 421 (1921), holds that an individual, corporation, or municipality can acquire a prescriptive right-of-way over an active railroad track. In Joseph, the railroad company condemned a strip of land near their railroad tracks and the intersection of Capital and Gallatin streets to improve the intersection’s visibility for their engineers. After the railroad condemned the strip of land, the City of Jackson paved Capital and Gallatin streets and part of the condemned strip of land. The public traversed the paved section of the condemned land as part of the roadway.

¶ 15. The railroad brought suit against the City of Jackson and others to “cancel any claim of ownership” in the strip of land. Although the city did not defend the suit and judgment was entered against it, the Rouses cite in their brief the following language from the opinion:

The proof does not show that the railroad was excluded from this property at all by the city. The railroad was constantly in use of its tracks, and using the property for the purposes for which it was acquired, and the facts show that both the city and the railroad company were making such use of the strip of ground in question as would not interfere with the railroad’s rights. Under these circumstances, the city merely acquired such rights as the use vested in it. That is to say, a mere right of passage over the ground for persons and vehicles and not the right to obstruct or erect any building upon the ground.

Id. at 422. According to the Rouses, this language leads to the following conclusion: “[ajceordingly, this Court ruled that the City of Jackson acquired a prescriptive right of usage, such that persons and vehicles (the public) did have the right to pass over the railroad’s tracks as needed.” The Rouses’ conclusion is curious, indeed, given that the suit in Joseph did not involve a claim of prescriptive easement over the tracks, and that the City of Jackson confessed judgment, losing any claim of easement it might have had. Joseph stands for the proposition that, even where a party acquires an easement across a railroad’s right-of-way (not its tracks), that easement is limited to uses which do not interfere with the railroad’s use of its tracks.

¶ 16. Our decision today is not out of line with other jurisdictions. The Supreme Court of Virginia reaffirmed its well-established principle that a prescriptive right-of-way cannot be acquired over property being used for a public purpose in Norfolk and W. Ry. Co. v. Waselchalk, 244 Va. 329, 421 S.E.2d 424 (Va.1992). In this case, a farm utilized a private railroad crossing for many years for agricultural and other related purposes. Betty Wasel-chalk decided to establish a mobile home on a portion of the land and use the railroad crossing for access to a public highway. Upon learning of the crossing’s change in use from agricultural to residential, the railroad presented Waselchalk with a crossing agreement that would require her to pay the maintenance costs for a residential crossing. When she refused to sign the agreement, the railroad closed the crossing. At trial, the chancellor found that Waselchalk had a prescriptive right to use the crossing. In finding error in this determination, the Supreme Court of Virginia held that “ ‘no prescriptive right can be acquired in property affected with a public interest or dedicated to a public use.’ Preshlock v. Brenner, 234 Va. 407, 409, 362 S.E.2d 696, 697 (1987) (quoting City of Lynchburg v. Chesapeake and Ohio Ry., 170 Va. 108, 116, 195 S.E. 510, 514 (1938)).” Waselchalk, 421 S.E.2d at 425.

¶ 17. For further supporting jurisdictions, see generally Breidert v. Southern Pac. Co., 272 Cal.App.2d 398, 77 Cal.Rptr. 262 (1969); Dalton Enter., Inc. v. Boston & Marine Corp., 41 Conn.Supp. 251, 709 A.2d 611 (1997); Louisville & N.R.R. v. Hagan, 141 Ky. 20, 131 S.W. 1018 (1910); Bangor & Aroostook R. Co. v. Daigle, 607 A.2d 533 (Me.1992); Cinncinnati, N.O. & T.P. Ry Co. v. Sharp, 141 Tenn. 146, 207 S.W. 728 (1918) and A & M Properties, Inc. v. Norfolk S. Corp., 203 W.Va. 189, 506 S.E.2d 632 (1998).

CONCLUSION

¶ 18. We hold today that a private party may not obtain a prescriptive easement across active railroad tracks, that is, tracks “which carry persons or property for hire.” Under our constitution, such tracks “shall be public highways.” Accordingly, the judgment of the Chancery Court of George County is reversed and rendered.

¶ 19. REVERSED AND RENDERED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND GRAVES, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . The Rouses, at trial, admitted they were familiar with the provisions of the indemnity agreement through other landowners, but insisted that MERC never presented them with an indemnity agreement to sign.

      . We will not address Miss.Code Ann. Section 77-9-253 (Rev. 1999) because it is not applicable to the case sub judice. The statute would impose a duty on the railroad company to make and maintain a crossing only if the track passed through the Twenty acres, and it is undisputed that it does not here.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Terrance BINDON, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KP-01630-COA.
    Court of Appeals of Mississippi.
    Sept. 27, 2005.
    Rehearing Denied April 11, 2006.

      Terrance Bindon, Appellant, pro se.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. An Adams County Circuit Court jury convicted Terrance Bindon of selling cocaine. Sentenced as an habitual offender, he was ordered to serve a term of thirty years with the Mississippi Department of Corrections, without parole. He first moved to have the case dismissed for violating his right to a speedy trial. He then moved for a J.N.O.V., or in the alternative a new trial. The circuit judge denied the motions. Bindon appeals his conviction on three grounds: 1) that there was insufficient evidence to sustain the verdict, 2) that the verdict was against the overwhelming weight of the evidence, and 2) that he was tried in violation of his right to a speedy trial. We affirm.

FACTS

¶ 2. On September 25, 2000, Bindon was arrested for selling cocaine, during an undercover “controlled purchase.” The “controlled purchase” took place in the home of Chuck Smith, a confidential police informant. Acting on information from Smith, police from the Adams County Narcotics Unit set up video and audio equipment in Smith’s living room. Police testified they did a prior search of Smith’s house and pat down of Smith’s person and confirmed there were no drugs present. They also supplied Smith with three hundred dollars with which to purchase the drugs. The serial numbers on this money had been previously recorded by the officers. Law enforcement officers then hid in another room, where they monitored the video and audio equipment.

¶ 3. Bindon arrived, and Smith handed him the money. Bindon then indicated he was leaving and would return in thirty minutes. Before leaving, he asked, “I’m not going to get pulled over, am I?” Bin-don then left Smith’s house, and during this time the video was turned off. When Bindon returned the video was turned on again. Upon entering the house, Bindon stated, “We didn’t do as well as last time.” He and Smith went into another room, off camera. While the video did not record any exchange of drugs, Smith testified to the drug exchange. When Bindon was arrested, he was recorded on the camera as saying, “I knew it, Chuck. I knew it.” When he was arrested, Bindon had one hundred dollars on him. Using the serial numbers, police identified this as part of the money Smith gave him.

¶ 4. Although Bindon was arrested on September 25, 2000, he was not indicted until May 31, 2001, and was not arraigned until August 22, 2001. His first trial was set for September 20, 2001. The trial was originally assigned to the Honorable Lillie Blackmon Sanders. When Bindon failed to appear, Judge Sanders issued a bench warrant and reset the trial for September 27, 2001. The second trial had to be continued as well, when Bindon fired his attorney, Pamela Ferrington, two days before trial. Judge Sanders allowed Ms. Ferrington to withdraw and assigned Leonard Rosenthal as counsel. She also transferred the case to Judge Forest Johnson. Judge Johnson reset trial for October 30. Unfortunately, Mr. Rosenthal’s spouse died, and the October trial had to be continued. Judge Johnson reset the trial to begin November 30. However, the November trial had to be continued due to a longstanding civil case that went over time during the November term. The case was not tried in the March term of court due to another trial involving Bin-don. Judge Johnson, therefore, set trial for June 18, 2002. With trial less than three weeks away, Bindon once again fired his attorney. Trial was continued until June 25, 2002, on which date it was finally tried.

ANALYSIS

I. Was There Sufficient Evidence to Sustain the Verdict?

¶ 5. First, Bindon challenges the sufficiency of the evidence against him. He cites the fact that at no point in the video surveillance is he shown actually handing over the drugs to Smith, and all officers testified that they did not witness any such exchange. The State points out that Smith testified to the exchange.

¶ 6. In reviewing a sufficiency of the evidence claim, the Court considers the evidence in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 844(¶ 16) (Miss.2005). If any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we uphold the verdict. Id.

¶ 7. Smith testified about the exchange of drugs. According to the record, Bindon made several statements, recorded in the video, from which a jury could infer that a drug sale - did indeed take place. After receiving the three hundred dollars from Smith, Bindon indicated that he had already talked to someone and was going to go meet with them. Bindon stated that he would be back in thirty minutes. Before going he asked Smith, “I’m not going to get pulled over, am I?” When he returned, he stated “We didn’t do as well as we did last time.” Upon his arrest, the police testified that Bindon stated, “I knew it, Chuck. I knew it.” This is corroborated by the video which records Bindon’s voice shouting this off camera.

¶ 8. Additional evidence before the jury consisted of the fact that the law enforcement officers and Smith testified that there were no drugs in the house before Bindon arrived. This negates Bindon’s argument that Smith had planted drugs in the house. Also, the jury heard testimony that Bindon left with the three hundred dollars given to him and returned with only one hundred dollars. Viewing this evidence in the light most favorable to the verdict, a reasonable jury could find beyond a reasonable doubt that the drug exchange did take place. There was sufficient evidence for the jury to conclude that Bindon took the three hundred dollars, left to go purchase cocaine, returned with the cocaine and one hundred dollars, and handed over the cocaine to Smith. Thus, we find that there was sufficient evidence to support the verdict.

II. Was the Verdict Against the Overwhelming Weight of the Evidence ?

¶ 9. Bindon next challenges the weight of the evidence against him by attacking the credibility of Smith. He states that the only one who testified as to a drug sale was Smith. Bindon argues that Smith had motive to lie, because he was a confidential informant trying to work out a deal for leniency with the district attorney, and he was angry at Bindon for an affair he had with Smith’s wife.

¶ 10. In reviewing whether a verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict. Montana v. State, 822 So.2d 954, 967(¶ 61) (Miss.2002). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Id.

¶ 11. The strongest argument to support Bindon’s claim comes from the fact that the jury deliberated only 25 minutes and did not ask to see the video during deliberations. However, the jury had all of the information concerning Smith’s possible motivations before them. Bindon’s attorney brought out this information through Smith and the law enforcement officers who testified. A reasonable prudent jury could find that even if these motivations were true, they could serve as motivations to report an actual sale of cocaine. They do not demand the conclusion that Smith was motivated to falsely report a sale of cocaine. Further, this assumes that the jury only relied on Smith’s testimony. As previously discussed, there was an abundance of corroborating circumstantial evidence that the jury could have relied upon as well.

III. Was Bindon Denied His Right to Speedy Trial?

¶ 12. Bindon argues that both his state and federal rights to a fast and speedy trial were violated. He asserts that over 600 days passed from time of arrest until the day of trial. Bindon further notes that 330 days passed from the time he was arrested until the time the amended indictment was issued. Bindon claims that he was prejudiced by the delay, because during this time, he worked as a confidential informant. Because of this, his life was in jeopardy during the undercover operations and remains in jeopardy now that he has the reputation as a confidential informant. The State counters that the delays were largely due to Bindon, and there is no evidence that the State purposely hindered trial. The State further argues that there is no actual prejudice to Bindon.

A. Bindon’s state right to a speedy trial

¶ 13. The right to a speedy trial in Mississippi is guaranteed by statute. Criminal defendants must be tried within 270 days of arraignment, unless good cause is shown by the State. Miss.Code Ann. § 99-17-1 (Rev.2000). Whether there was good cause is a fact question. DeLoach v. State, 722 So.2d 512, 515(¶ 12) (Miss.1998). If there is substantial, credible evidence to support a good cause finding, the lower court’s decision will be upheld. Id. If there is no probative evidence to support good cause, this Court will reverse. Id. Any delay caused by the defendant does not count against the State. Taylor v. State, 672 So.2d 1246, 1259 (Miss.1996). Any delay caused by an overcrowded docket does not count against the State. Folk v. State, 576 So.2d 1243, 1245 (Miss.1991).

¶14. Under -the statute, the date of arraignment triggers the right to a speedy trial. Arraignment in this case was set for August 22, 2001. Trial was originally scheduled for September 20, 2001. There were 29 days between arraignment and the first trial date. Delays between September 20, 2001 and November 30 were due to Bindon or to the death of Bindon’s attorney’s wife. These days do not count against the State. The trial judge attributed the delay between November 30, 2001 and June 18, 2002 to an overcrowded docket and another criminal trial proceeding against Bindon. He found this to be a good cause delay, because it was not caused by the State. As the Mississippi Supreme Court set out in Folk v. State, any delay caused by continuance of another criminal or civil proceeding does not count against the State. Id. The record indicates the delay between June 18, 2002 and June 25 is due to Bindon once again firing his attorney. Therefore, only 29 days of delay can be attributable to the State, and the statute is more than satisfied. Bindon was not denied his state right to a speedy trial.

B. Bindon’s federal right to a speedy trial

¶ 15. Bindon, as a criminal defendant, has a federal constitutional right to a speedy trial guaranteed by the Sixth Amendment, made applicable to the states by the Fourteenth Amendment. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Unlike the state right, the federal right attaches when the defendant is first accused, either through arrest, indictment, or information. Smith v. State, 550 So.2d 406, 408 (Miss.1989). To assess violation of the federal right, this Court follows the federal test set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Fleming v. State, 790 So.2d 888, 890(¶ 5) (Miss.Ct.App.2001). The Court considers four factors: 1) the length of delay, 2) reasons for the delay, 3) whether defendant asserted his rights, and 4) prejudice to the defendant. Id.

¶ 16. First, we examine the length of the delay. This factor is important, because only if the delay is presumptively prejudicial do we go on to the other Barker factors. Barker, 407 U.S. at 530, 92 S.Ct. 2182. A delay of eight months or longer is presumptively prejudicial. Atterberry v. State, 667 So.2d 622, 626 (Miss.1995). Bindon was first “accused” on the date of his arrest, September 25, 2000. He was not tried until June 25, 2002. The total delay in this case is one year and nine months. This raises a presumption of prejudice and requires us to examine the rest of the Barker factors.

¶ 17. Next, we examine the reasons for the delay. The State bears the burden of securing a speedy trial and of justifying any delay. DeLoach, 722 So.2d at 517(¶ 17); and Turner v. State, 383 So.2d 489, 490 (Miss.1980). A defendant cannot complain of a delay that he caused. Poole v. State, 826 So.2d 1222, 1228(¶ 17) (Miss.2002) (citing Perry v. State, 419 So.2d 194, 199 (Miss.1982)). Where the State either causes the delay or cannot otherwise justify a delay, this counts against the State. Lee v. State, 759 So.2d 1264, 1268(¶ 21) (Miss.Ct.App.2000). An overcrowded docket weighs lightly against the State. Mims v. State, 856 So.2d 518, 521(¶ 5) (Miss.Ct.App.2003).

¶ 18. Bindon was arrested September 25, 2000 and the first trial was not set until September 20, 2001. The State offers no reason to this Court for the initial 360 day delay in bringing Bindon to trial. The State admitted to the lower court that the delay was caused in large part by the State Crime Lab in processing and identifying the cocaine. This period counts against the State.

¶ 19. As discussed previously, the delay between September 20 through November 30, 2001 was caused either by Bindon or the death of his attorney’s wife. Bindon cannot complain of this particular delay.

¶ 20. The delay between November 30, 2001 through June 18, 2002 was due to an overcrowded docket. As discussed above, this counts lightly against the State.

¶ 21. The delay from June 18 through 25, 2002 is once again attributable to Bin-don firing an attorney shortly before trial. Bindon cannot complain of this seven day delay. Overall, 560 days are counted against the State, and seventy-eight days are counted against Bindon. This factor weighs against the State.

¶ 22. The third Barker factor is whether defendant asserted his right to a speedy trial. Defendant’s “assertion of his speedy trial right ... is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Barker, 407 U.S. at 531-32, 92 S.Ct. 2182. Failure to assert the right “will make it difficult for defendant to prove ... he was denied a speedy trial.” Id. at 532, 92 S.Ct. 2182. A motion to dismiss for a speedy trial violation is not the same as an assertion of the right. Mims, 856 So.2d at 521(¶ 6).

¶ 23. Bindon filed a Motion to Dismiss for Failure to Provide a Speedy Trial on June 19, 2002. This is not the same as asserting his right to a speedy trial, because the latter asks for trial and the former asks for no trial. Perry v. State, 637 So.2d 871, 875 (Miss.1994). The record does not show, and Bindon does not point out, any time when a speedy trial was requested. This factor weighs against Bindon.

¶ 24. The final Barker factor looks at prejudice to the defendant. “Prejudice is assessed in light of the interests which the speedy trial right was designed to protect.” Barker, 407 U.S. at 532, 92 S.Ct. 2182. These include such interests as “to prevent oppressive pretrial incarceration, to minimize anxiety and concern of the accused and to limit the possibility that the defense will be impaired.” Id. When there is a presumptive prejudice, it is incumbent upon the State to prove there is no prejudice. Anderson v. State, 874 So.2d 1000, 1008(¶ 34) (Miss.Ct.App.2004). “Nevertheless, if the defendant fails to show actual prejudice to his defense, this prong of the Barker balancing test cannot weigh heavily in his favor.” Id.

¶ 25. Neither Bindon, nor the State argue the specific interests listed above. Bindon argues he was prejudiced by the fact that he was used as a confidential informant prior to his trial and as such risked his life during this time. He further states his life is still at risk now that he has the reputation of being a confidential informant. His status as confidential informant arose prior to this case. He was previously arrested in August of 2000 on drug charges, and that was the arrest that lead to him working with law enforcement. He has not alleged, and the record does not show, that the State purposely delayed his trial in order to continue using him as a confidential informant. Bindon does not allege any other specific instances of prejudice in this case. The record does not evince that any of the witnesses’ memories were severely hampered nor the evidence lost or destroyed.

¶ 26. The State counters that the risks of being a confidential informant are related to his first arrest and not the delay in the instant case. The State, however, admits that Bindon is still left with the presumption of prejudice. Therefore, this factor weighs slightly against the State.

¶ 27. The Barker factors are considered in the totality of the circumstances. “[T]hey are related factors and must be considered together with such other circumstances as may be relevant.” Barker, 407 U.S. at 533, 92 S.Ct. 2182. The length of the delay and the reasons for the majority of the delay weigh against the State. The assertion of the right weighs against Bindon, as he never asked for a speedy trial and only asked to dismiss the charges on a speedy trial basis 634 days after his arrest. The prejudice prong weighs slightly against the State, because there is a presumption of prejudice. Balancing these factors we hold that Bindon was not denied his federal constitutional right to a speedy trial. He never asserted this right, and more importantly we can find no actual prejudice to him. If anything, the record shows he was trying to avoid a trial, rather than assert his right to a speedy trial. He did not appear at his first scheduled trial and twice fired attorneys shortly before other trial dates were set to occur. These are relevant circumstances as may be considered in balancing the factors. We affirm the lower court’s holding that Bindon was not denied his right to a speedy trial.

¶ 28. For these reasons, we affirm the conviction.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY OF CONVICTION FOR SALE OF COCAINE AND SENTENCE OF THIRTY YEARS, AS AN HABITUAL OFFENDER, WITHOUT THE BENEFIT OF PAROLE OR PROBATION, REDUCTION OR SUSPENSION IS HEREBY AFFIRMED. IT IS FURTHER ORDERED THAT THIS SENTENCE RUN CONSECUTIVELY TO A PRIOR DRUG SENTENCE THAT THE APPELLANT HAD RECEIVED AT A PRIOR TERM OF COURT. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ADAMS COUNTY.

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


author: LEE, P.J.,

text:
    Richard Lee BROWN, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CP-00342-COA.
    Court of Appeals of Mississippi.
    Sept. 27, 2005.
    Rehearing Denied Jan. 17, 2006.
    Certiorari Denied April 13, 2006.

      Richard Lee Brown, Appellant, pro se.
    Office of The Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Richard Lee Brown assaulted a law enforcement officer during a traffic stop near Bolton on or about April 25, 2000. Officers discovered twenty-five kilograms of marijuana in Brown’s possession. Brown and his counsel arranged a plea agreement for his two felony State charges, and the trial judge agreed to allow his sentence to run concurrent to certain federal sentences Brown claimed to have pending. However, at the time of his guilty plea, Brown did not have any federal sentences pending. The Circuit Court of Hinds County accepted Brown’s guilty plea to the crimes of aggravated assault of a law enforcement officer and possession of marijuana in violation of Mississippi Code Annotated Section 41-29-139 (Rev. 2001). Brown was sentenced to serve twelve years in the custody of the Mississippi Department of Corrections. Brown subsequently filed a petition for post-conviction relief within the period for statutorily authorized filings, and the trial court dismissed his petition. It is from this order that Brown now appeals, asserting the following issues: (1) his guilty plea was involuntary since the State violated the plea agreement; (2) his guilty plea was not voluntarily and intelligently entered; (3) he did not waive his right to a speedy trial by pleading guilty; and (4) his assistance of counsel was ineffective.

¶ 2. Finding no error, we affirm the judgment of the trial court.

STANDARD OF REVIEW

¶ 3. “When reviewing a lower court’s decision to deny a petition for post-conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo.” Austin v. State, 863 So.2d 59, 60(¶ 3) (Miss.Ct.App.2003).

DISCUSSION

I. WAS BROWN’S GUILTY PLEA RENDERED INVOLUNTARY DUE TO THE STATE’S ALLEGED VIOLATION OF THE PLEA AGREEMENT?

¶ 4. Brown contends that the State did not honor the plea agreement because his state and federal sentences were not running concurrently, as the plea agreement stated. Brown further contends that he would not have pled guilty if he had known that he would have subsequently been sentenced to the term in state prison he is now serving, and that as a result he would not have been taken into federal custody, where he would face a parole violation.

¶ 5. At the time of Brown’s plea and sentencing on state charges, he did not have any existing federal sentences. The State contends that the trial court’s statement that the state sentences were to run concurrent to the two possible federal sentences was surplusage and should be disregarded, since Brown had no existing federal sentences. We agree. “Language contained in a sentencing order which amounts to conditions which the trial court has no authority to impose would be treated as surplusage and would not affect the enforcement of the valid portion of the sentence.” Cain v. State, 337 So.2d 935, 936 (Miss.1976). We find no merit to this issue.

II. WAS BROWN’S GUILTY PLEA VOLUNTARILY AND INTELLIGENTLY ENTERED?

¶ 6. Brown makes several claims regarding the evidence supporting the legality of the stop, search, and other circumstances of the assault, as well as the State’s arrangement of the plea bargain. In Young v. State, 859 So.2d 1025, 1028(¶ 9) (Miss.Ct.App.2003), this Court held that, “when properly entered and accepted, ‘a guilty plea operates to waive ... the right that the prosecution prove each element of the offense beyond a reasonable doubt.’ ” Continuing, this Court stated that, “it would not be inappropriate to find an objection to the admissibility of evidence waived when a defendant enters a plea of guilty to the overall crime.” Id. Furthermore, if the defendant is advised regarding the nature of the charge and the consequences of the plea, then the plea is considered voluntary and intelligent. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992).

¶ 7. The record clearly indicates that the trial judge informed Brown of the consequences that would result from his guilty plea. The court asked, “You’re telling the Court that it’s your desire to waive your right to trial by jury in each count of the indictment?” to which Brown responded in the affirmative. The record also establishes that the judge asked Brown, “[a]re there any questions that you have at this time concerning the charges now pending against you which have not been answered for you either by your attorney or by the district attorney’s office?” to which Brown responded, “No.” “Solemn declarations in open court carry a strong presumption of veracity.” Baker v. State, 358 So.2d 401, 403 (Miss.1978). Brown cannot now claim that he was unaware of the consequences of his plea. Similarly, any confusion on Brown’s part as to the terms of the plea bargain should have been alleviated by the questions that the judge asked Brown, such as “[y]ou understand the court is not bound by plea bargaining which may have occurred between your attorney and the district attorney’s office but might impose the minimum sentence ... ?” to which Brown responded, “I understand.” Therefore, any assertion of error by Brown regarding this issue is without merit.

III. DID BROWN WAIVE HIS RIGHT TO A SPEEDY TRIAL BY PLEADING GUILTY?

¶ 8. Brown argues that he did not waive his right to a speedy trial by pleading guilty. In Turner v. State, 864 So.2d 288, 290-91(¶ 9) (Miss.Ct.App.2003), this Court stated that Turner was told that he had a right to a “speedy public trial by jury,” but by pleading guilty he waived that right. The trial judge then asked Turner if he wanted to waive that right, to which Turner responded in the affirmative. On appeal this Court held that, “regardless of the length of the delay between his indictment and sentencing, [Turner] entered a plea of guilty to the offense ... [and] a valid guilty plea waives the right to a speedy trial.... ” Id. In the case sub judice, the record plainly shows that in Brown’s petition to plead guilty, he acknowledged that he was foregoing his right to a speedy trial; thus, we find this issue to be without merit.

IV. WAS BROWN’S ASSISTANCE OP COUNSEL EFFECTIVE?

¶ 9. In order for a defendant to prevail on a claim that his conviction should be reversed due to ineffective assistance of counsel, he must prove that his counsel’s performance was deficient and that he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “In order to overcome this presumption, the appellant must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Phinisee v. State, 864 So.2d 988, 990(¶ 9) (Miss.Ct.App.2004).

¶ 10. The petition to plead guilty, the transcript of the plea, and the sentencing order are manifestly contrary to Brown’s claim of ineffective assistance of counsel. Brown claims that his sentencing should have proceeded in a way that was more beneficial to him, but he includes no support for this broad assertion. “Even if a defendant shows that particular errors of counsel were unreasonable ... the defendant must show that they actually had an adverse effect on the defense.” U.S. v. Valenzuela-Bernal, 458 U.S. 858, 866-67, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. Therefore, we find this issue to be without merit.

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

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


author: BRIDGES, J.,

text:
    Antonio BOYD, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CP-02462-COA.
    Court of Appeals of Mississippi.
    Nov. 15, 2005.
    Rehearing Denied April 18, 2006.

      Antonio Boyd (pro se).
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   BRIDGES, J.,

for the Court.

¶ 1. On October 9, 2001, Antonio Boyd pled guilty to murder and armed robbery. The Newton County Circuit Court accepted Boyd’s plea and sentenced Boyd to a life sentence and a consecutive thirty year sentence in the Mississippi Department of Corrections. On October 10, 2004, Boyd filed his pro se motion for post-conviction relief. The circuit court denied Boyd’s motion for post-conviction relief and dismissed Boyd’s motion without conducting an evidentiary hearing. Aggrieved, Boyd appeals and advances the following four contentions, altered for clarity:

I. WHETHER [BOYD] WAS ENTITLED TO AN EVIDENTIARY HEARING TO DETERMINE IF HIS PLEA WAS KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY ENTERED.

II. WHETHER [BOYD] WAS ENTITLED TO [AN] EVIDENTIARY HEARING TO DETERMINE IF HIS COUNSEL RENDERED INEFFECTIVE ASSISTANCE DURING [THE] PLEA PROCESS.

III. WHETHER THERE WAS A FACTUAL BASIS FOR THE PLEA.

IV. WHETHER THE COURT SHOULD [HAVE] HELD [AN] EV-IDENTIARY HEARING WHEN [THE] COURT MADE [A] FACTUAL DETERMINATION OF SUPPORTING AFFIDAVITS AND DOCUMENTS WHEN [THE] COURT DISMISSED [BOYD’S] PETITION FOR FAILING TO STATE A CLAIM.

Finding no error, we affirm.

STANDARD OF REVIEW

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

ANALYSIS

I. WHETHER [BOYD] WAS ENTITLED TO AN EVIDENTIARY HEARING TO DETERMINE IF HIS PLEA WAS KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY ENTERED.

¶3. A guilty plea is considered “voluntary and intelligent” if the defendant is advised about the nature of the charge and the consequences of the entry of the plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). The defendant must be instructed that a guilty plea waives his or her rights to a jury trial, to confront adverse witnesses, and to protection against self-incrimination. Id.

¶ 4. Boyd claims the circuit court erred when it dismissed his motion for post-conviction relief. According to Boyd, the circuit court should have conducted an evi-dentiary hearing to determine whether Boyd entered his guilty plea knowingly, voluntarily, and intelligently. Boyd asks this Court to review that decision. At times, Boyd’s argument contains allegations of ineffective assistance of counsel. For the sake of judicial economy, we consider the effectiveness of Boyd’s counsel in issue two, below. There is no need to repeat that analysis here.

¶ 5. However, Boyd also advances three arguments suggesting that he did not plead guilty knowingly, voluntarily, and intelligently. First, Boyd claims the circuit court did not inform him of his right to confront his accusers. Second, Boyd claims the circuit court did not explain that, by pleading guilty, Boyd waived his right to a direct review on appeal. Finally, Boyd complains that the circuit court did not inform him of the minimum or maximum sentences for armed robbery.

¶ 6. We first note that Boyd’s petition fails to satisfy the basic pleading requirements in that it does not contain the requisite affidavits of witnesses and copies of documents or records which are required by Section 99 — 39—91(e) of the Mississippi Code (Rev.2000). Also, Boyd’s petition does not set forth in detail any facts from which the trial court could have determined if good cause existed to excuse Boyd’s failure to comply with the stated section of the code. Therefore, it would be entirely proper to conclude that Boyd’s omission defeats his claim of entitlement to an evidentiary hearing. See Walton v. State, 752 So.2d 452(¶ 11) (Miss.Ct.App.1999).

A. Boyd’s Right to Confront His Accusers.

¶ 7. The transcript shows that the circuit court told Boyd “[i]n a trial by jury, you would have the right to testify, you would have the right to bring witnesses to testify for you, you would have the right to cross-examine witnesses, but, you will not have that right by pleading guilty. Do you understand that?” Boyd answered, “[Y]es, sir.” Boyd is misplaced in arguing that circuit court failed to warn him that he waived his right to confront his accusers by pleading guilty. Though the circuit court did not use the words “confront your accusers,” the circuit court did tell Boyd that he would not be able to cross-examine witnesses by pleading guilty.

¶ 8. Additionally, Boyd filed a petition to plead guilty. In that petition, Boyd stated that he understood that if he desired to have a trial, he would have the right to confront any witnesses against him. Further, Boyd acknowledged that, by pleading guilty, he waived his right to confront his accusers. There is no merit to Boyd’s claim that he pled guilty unaware that he waived his right to confront his accusers.

B. Boyd’s Right to Direct Review on Appeal.

¶ 9. Boyd claims that the circuit court failed to inform him that he waived his right to direct review by pleading guilty. Again, Boyd is patently misplaced. The transcript shows that the circuit court informed Boyd of the effect of his plea, as it pertains to direct review on appeal. The circuit court said, “[i]f you had a trial by jury, you would have a right of appeal to the Supreme Court, and, the Supreme Court would review the case to see if there was any error committed in the trial of your case. Do you understand that?” Boyd responded, “[Y]es, sir.” The circuit court did not say “you are waiving your right to direct review,” but the circuit court did tell Boyd that he would have the right to appeal if he had a jury trial. Boyd decided to forego a jury trial when he pled guilty. The circuit court was clear that direct review was conditioned on the presence of a jury trial. Also, Boyd’s petition to plead guilty contains the following statement: “Do you understand that if a jury convicted you, you would have a right to appeal to our Supreme court, but if you plead guilty, you are waiving your right to appeal your case?” Boyd answered, ‘Tes.” This contention is meritless.

C. Minimum and Maximum Sentences for Armed Robbery.

¶ 10. As to Boyd’s allegation regarding the minimum and maximum sentences for armed robbery, the transcript of the plea hearing contains the following exchange:

The Court: As I stated to you earlier, there’s only one punishment for the crime of murder and that’s life imprisonment. You are pleading guilty to the crime of armed robbery, which is a consecutive sentence to the life imprisonment sentence. Do you understand that?
Boyd: Yes, sir.
The Court: Do you still want to plead guilty?
Boyd: Yes, sir.

¶ 11. The circuit court did not state the minimum and maximum sentences during that exchange. However, in Boyd’s petition to plead guilty he noted that, after he pled guilty, the State would recommend sentences of “life on murder & 30 years on armed robbery.” Additionally, Boyd’s petition stated that no one ever told him that the State would recommend less. “A plea is voluntary if the defendant knows what the elements are in the charge against him, including an understanding of the charge and its relation to him, the effect of the plea, and the possible sentence.” Griffis v. State, 797 So.2d 299(¶ 15) (Miss.Ct.App.2001). This contention is also meritless.

II. WHETHER [BOYD] WAS ENTITLED TO [AN] EVIDENTIARY HEARING TO DETERMINE IF HIS COUNSEL RENDERED INEFFECTIVE ASSISTANCE DURING [THE] PLEA PROCESS.

¶ 12. To establish a claim of ineffective assistance of counsel, Boyd must demonstrate (1) a deficiency of his counsel’s performance that is (2) sufficient to constitute prejudice to his defense. Swington v. State, 742 So.2d 1106, 1114(¶ 22) (Miss.1999) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Walker v. State, 703 So.2d 266, 268 (Miss.1997)). In deciding whether Boyd’s counsel rendered ineffective assistance, this Court examines the totality of the circumstances surrounding the case. Swington, 742 So.2d at (¶ 22). Boyd faces a “strong but rebutta-ble presumption that his counsel’s conduct falls within a broad range of reasonable professional assistance.” Id at (¶ 23). To overcome this presumption, Boyd must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

¶ 13. Boyd raises ten instances suggesting ineffective assistance of counsel. According to Boyd, his counsel rendered ineffective assistance when he: (1) failed to provide Boyd with adequate information before he pled guilty, (2) coerced Boyd’s guilty plea, (3) told Boyd if he did not plead guilty he would get the death penalty, (4) failed to explain the rights Boyd waived when he pled guilty, (5) told Boyd to “just answer the questions the judge asked whether true or not,” (6) did not call any witnesses “when a number of them were in the courtroom,” (7) did not address Boyd’s allegation that the prosecution ear-wigged the circuit court judge, (8) did not address Boyd’s allegation that the circuit court judge conspired with Charles Brack-een’s father to convict Boyd, (9) failed to review discovery, and (10) failed to recognize that the discovery “proved police misconduct and that none of the State’s witnesses were credible.”

¶ 14. Originally, Boyd was indicted for capital murder. Boyd acknowledged that he was aware of the possible death penalty or life sentence for his crime. Instead of facing the death penalty, the circuit court sentenced Boyd to a life sentence plus a consecutive thirty year sentence. Boyd’s sentence resulted from the plea that his court-appointed counsel negotiated on his behalf.

¶ 15. Moreover, during the following-exchange between Boyd and the circuit court, Boyd testified that he was satisfied with the advice and services provided by his guilty plea counsel:

Q. Your attorneys, you are represented by Mr. Shawn Harris, who is a Public Defender of this Judicial District, and, Mr. Andre de Gruy, an officer of the Capital Defense Counsel. Are you satisfied with the way they have represented you in this case?
A. Yes, sir.
Q. You have any complaint to make to me about their representation of you?
A. No, sir.
Q. Do you feel your attorneys have investigated the facts of this case sufficiently, they have an understanding of the law, that they are capable and ready to try your case in the event you should ask for a trial?
A. Yes, sir.
Q. Are you satisfied with their services?
A. Yes, sir.
Q. You have no complaint to make to me about the way they have represented you; is that right?
A. Yes, sir.
Q. You feel they are competent and able attorneys in this particular case?
A. Yes, sir.

Clearly, Boyd was satisfied with his representation at the time of his plea.

¶ 16. Finally, Boyd did not submit any affidavits with his motion for post-conviction relief, other than an alleged affidavit from his plea counsel, Shawn Harris. That affidavit is as follows, with all errors left intact:

I, P. Shawn Harris, MSB # 9554 does swear that under a penalty of perjury the following statement is true to the best of my knowledge:
I, P. Shawn Harris, believe that my advice to my client was in error. There was witnesses that could have been called to prove that Mr. Boyd was threatened and/or coerced in the Newton County to provide an statement to Sheriff Jackie Night. There is reason to believe such testimony would produce impeachment as to any confession. My caseload in the counties of Newton, Neshoba, Scott and Leake attributed to my not being able to investigate material facts and provide the defendant with a bonafide defense.
There was information passed on to me by my client that I could not follow up on that could have shifted the burden on the Prosecution. I now believe that, I, myself was not effective to my client in persuading him to plead guilty to charge when he wanted a trail by jury.
Mr. Boyd has shown me the areas of his case that I overlooked and possible defense that could prove him to be innocent that, I, overlooked as well as co-counsel Andre de Gruy may have prejudiced Mr. Boyd’s case. Mr. Boyd always asked questions concerning his case but never could grasp any of my explanations and just totally relied on his counsel.
Mr. Boyd gave me information about one James Miller of Lucedale, MS who as I found out after Mr. Boyd’s guilty plea did in fact own a Hazardous Chemical Company and was supplying many people such as the victim Charlie Brack-eens with chemicals needed for “METH LABS”. This information itself could cast doubt into the juries mind and open the doors to a defense for Mr. Boyd, also proving that Mr. Boyd was only defending himself on that night, and that the whole incident was about drugs.
Another fact that I should have questioned was misconduct of the police and/or prosecutor for allowing one Mrs. Rex Germany to testify at the Grand Jury proceedings to gain an indictment when she knowingly perjured herself. This could in fact have dismissed the indictment. Then there was the statement of Jamie Abel, given to the investigating officers. He stated that one Prentiss Neese had robbed the victim and the victim was angry at him. If Mr. Boyd had not seen or heard from Jamie Abel or Prentiss Neese since the Sunday before the crime how could he known this unless his side of the story is true.
This after all is the reason, I signed this affidavit and sent it to, Mr. Boyd, as tries to gain access to the courts.

¶ 17. There is a purported signature of Mr. Harris that follows the affidavit, though the affidavit is not properly notarized as a sworn oath. Mr. Harris denied that he prepared or signed the affidavit. Rather, Mr. Harris denied having seen that affidavit. On its face, that affidavit appears to be forged.

¶ 18. Regardless, this document is an unsworn statement and not an affidavit. “An affidavit is ‘[a] written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.’Wilcher v. State, 863 So.2d 776 (¶ 209) (Miss.2003) (emphasis added) (quoting Black’s Law Dictionary 58 (6th ed.1990)). At best, this document is Mr. Harris’s unsworn statement, as it only shows Harris’s alleged signature without the signature of a notary. At worst, this document is a forgery. Regardless, Miss.Code Ann. § 99-39-9(l)(e) requires that Boyd furnish affidavits to support his claims or show cause as to why he could not furnish them. Boyd has not furnished affidavits, nor has he shown cause as to why he could not furnish them. Boyd claimed to be satisfied with his counsel’s performance when he entered his guilty plea. He has offered no evidence, other than an unsworn statement that reeks of a forgery. Where a petitioner for post-conviction relief offers only his affidavit, that petitioner’s claim of ineffective assistance of counsel is without merit. Lindsay v. State, 720 So.2d 182(¶ 6) (Miss.1998).

III. WHETHER THERE WAS A FACTUAL BASIS FOR THE PLEA.

¶ 19. Here, Boyd refers to a standard of review reportedly set forth in “Federal Criminal Rule 11.” According to Boyd “Federal Criminal Rule 11” requires a state or federal court to ensure there is a factual basis for a guilty plea.

¶ 20. It appears that Boyd may be referencing Rule 11 of the Federal Rules of Civil Procedure. F.R.C.P. 11(b)(3) does contain a statement that, by submitting a pleading or motion to a federal court, the submitting party certifies that “the allegations and other factual contentions have evidentiary support.” Even so, the federal rules of civil procedure apply to actions within the jurisdiction of the federal courts. The federal rules of civil procedure have no bearing on actions within the jurisdiction of our Mississippi state courts.

¶ 21. Our Mississippi Rules of Civil Procedure do contain a counterpart to F.R.C.P. 11. Rule 11 of the Mississippi Rules of Civil Procedure, addresses the effect of affixing one’s signature to pleadings, motions, or any other paper filed in a Mississippi state court. M.R.C.P. 11(a). M.R.C.P. 11(b) provides for sanctions if one files a pleading or motion that is frivolous or is filed for the purpose of harassment or delay, among other things. There is no provision in M.R.C.P. 11 that requires a factual basis for a guilty plea.

¶ 22. Regardless, Boyd claims that the circuit court had neither a sufficient basis nor adequate evidence to find him guilty. According to Boyd, “[t]he State’s case totally relied on, for the most part, illegally received evidence and obviously perjured witness testimony.” Boyd also claims that “the State did not prove that he actually or constructively possessed the weapons to prove the element of armed robbery.”

¶ 23. The possible strength or weakness of the State’s potential case against Boyd is of no consequence to the issues presently before this Court. Boyd pled guilty. Accordingly, the State never presented a case against Boyd because there was no reason to present a case against a defendant that admitted guilt when he pled guilty. This issue is meritless.

IV. WHETHER THE COURT SHOULD [HAVE] HELD [AN] EV-IDENTIARY HEARING WHEN [THE] COURT MADE [A] FACTUAL DETERMINATION OF SUPPORTING AFFIDAVITS AND DOCUMENTS WHEN [THE] COURT DISMISSED [BOYD’S] PETITION FOR FAILING TO STATE A CLAIM.

¶ 24. Boyd claims the circuit court erred when it determined that the purported affidavit of Shawn Harris was a forgery without conducting an evidentiary hearing. However, the circuit court has the authority to dismiss an motion for post-conviction relief when a party fails to state a claim for which relief may be granted. Miss. Code Ann. § 99-39-11(2) (Rev.2000). Further, where a petitioner for post-conviction relief offers only his affidavit, that petitioner’s claim of ineffective assistance of counsel is without merit. Lindsay, 720 So.2d at (¶ 6). As Boyd offered no evidence, other than an unsworn and possibly forged affidavit, the circuit court did not err in dismissing Boyd’s motion without conducting an evidentiary hearing. We affirm the decision of the circuit court.

¶ 25. THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NEWTON COUNTY.

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


author: KING, C.J.,

text:
    John C. LAUSHAW, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CP-02037-COA.
    Court of Appeals of Mississippi.
    Nov. 29, 2005.
    Rehearing Denied April 11, 2006.
    John C. Laushaw, Jr., Appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. On May 24, 1990, John C. Laushaw, Jr. pled guilty in the Amite County Circuit Court to armed robbery, kidnaping, and capital murder. Laushaw received a thirty year sentence for the armed robbery charge and a ten year sentence for the kidnaping charge, with both sentences running concurrently. On the capital murder charge, Laushaw received a life sentence to run consecutive to the armed robbery sentence. On August 8, 2000, the Amite County Circuit Court denied Laushaw’s petition for post-conviction relief. Lau-shaw then appealed that decision, and this Court denied Laushaw relief on June 5, 2001. Laushaw v. State, 791 So.2d 854 (Miss.Ct.App.2001). After exhausting all state remedies, Laushaw sought federal habeas corpus relief. On April 30, 2003, the United States District Court for the Southern District of Mississippi, Jackson Division dismissed with prejudice Lau-shaw’s petition for writ of habeas corpus. Laushaw then appealed the district court’s decision to the United States Court of Appeals for the Fifth Circuit. On October 5, 2003, the Fifth Circuit Court of Appeals denied Laushaw’s motion for a certificate of appealability, finding that Laushaw had failed to make a substantial showing of the denial of a constitutional right as to any of his claims. On August 25, 2004, Laushaw filed a motion for post-conviction relief for a second time in the Amite County Circuit Court. The court denied Laushaw’s motion on August 31, 2004. Finding that Laushaw’s second post-conviction relief motion is proeedurally barred as a successive writ and by the statute of limitations, we affirm the decision of the Amite County Circuit Court.

STANDARD OR REVIEW

¶ 2. In reviewing a trial court’s denial of a post-conviction relief petition, we will not disturb the trial court’s findings of fact unless clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). However, we review questions of law de novo. Id.

DISCUSSION

? 3. An order dismissing or denying a prisoner’s request for post-conviction relief is a final judgment and is conclusive unless reversed. Miss.Code Ann. § 99-39-23(6) (Rev.2000). Such an order serves as a bar to any successive motions under this chapter. Id. This Court has previously affirmed the Amite County Circuit Court’s denial of post-conviction relief. The original order denying Laushaw post-conviction relief is conclusive as it has never been reversed.

¶ 4. Among the few exceptions to the successive writ bar is the intervening decision exception. Id. Under this exception, if the movant can show that there has been a decision by the Mississippi Supreme Court or the United States Supreme Court which would have caused a different result in the outcome of the mov-ant’s conviction or sentence, the movant is entitled to file a successive motion for post-conviction relief. Laushaw claims that the district court’s decision which denied him federal habeas corpus relief is such an intervening decision. This contention defies all logic and reason.

¶ 5. First, Mississippi Code Annotated § 99-39-23(6) (Rev.2000) defines an intervening decision as one rendered by the Supreme Court of the State of Mississippi or the United States. Second, an intervening decision is one which “create[s] new intervening rules, rights, or claims that did not exist at the time of the prisoner’s conviction or during the three (3) year period circumscribed by the statute of limitations.” Patterson v. State, 594 So.2d 606, 608 (Miss.1992). The case to which Laushaw cites is neither a supreme court decision, nor does it create a new rule, right, or claim whatsoever. Accordingly, his argument is without merit.

¶ 6. Additionally, we note that Lau-shaw’s post-conviction relief motion is time-barred. When an appellant who has pled guilty seeks post-conviction relief, Mississippi Code Annotated § 99-39-5(2) (Rev.2000) requires him to bring his post-conviction relief motion within three years after entry of the judgment of conviction. Laushaw’s deadline for timely filing under the statute was May 24, 1993. Laushaw filed his second motion for post-conviction relief in the Amite County Circuit Court on August 25, 2004. The intervening decision exception, which also applies to the time bar, was not met in this case, nor do any other statutory exceptions apply. Therefore, we again affirm the decision of the Amite County Circuit Court in its denial of post-conviction relief.

¶ 7. THE JUDGMENT OF THE AM-ITE COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO AMITE COUNTY.

LEE AND MYERS, P.JJ., BRIDGES, IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR.


text:
    Sammie Lee EPPS, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CP-01526-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2005.
    Rehearing Denied April 18, 2006.

      Sammie Lee Epps, Jr., Appellant, pro se.
    Office of the Attorney General by Charles W. Maris, John R. Henry Jim Hood, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. On April 15, 2003, Sammie Lee Epps, Jr. pled guilty to the crime of possession with intent to sell cocaine. The Honorable C.E. Morgan, III, sentenced Epps:

To serve a term of seventeen years with the Mississippi Department of Corrections. After the defendant has served a period of twelve years, the Mississippi Department of Corrections is hereby ordered to place him in a program of post-release supervision pursuant to section 47-7-34 of the Mississippi Code of 1972 for a period of five years, provided the defendant has abided by all the rules and regulations of the Mississippi Department of Corrections during his period of incarceration.

¶ 2. On May 14, 2004, Epps, pro se, filed a motion for post-conviction relief. The motion was denied without an evidentiary hearing. On appeal, Epps argues that: (1) he was denied effective assistance of counsel, (2) his guilty plea was involuntary, (3) he was denied due process because he was not informed of his right to appeal his sentence, (4) his sentence was illegal, and (5) he is entitled to an evidentiary hearing in regards to the factual issues presented in the motion for post-conviction relief. We find no error and affirm.

STANDARD OF REVIEW ’

¶ 3. 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).

ANALYSIS

I. Jurisdiction

¶ 4. We first consider the threshold issue of jurisdiction. The State claims that Epps failed to appeal in a timely manner.

¶ 5. This Court has held that the prison mailbox rule extends to all actions under the Uniform Post Conviction Collateral Relief Act (“UPCCRA”) and appeals in those actions. Gaston v. State, 817 So.2d 613, 616 (Miss.Ct.App.2002). A pro se prisoner’s motion for post-conviction relief is delivered for filing, under the UP-CCRA and the Mississippi Rules of Civil Procedure, when the prisoner delivers the papers to prison authorities for mailing. Id. at 615. The State claims that Epps filed his appeal on July 29, 2004, thirty-one days after the trial court entered the order denying relief.

¶ 6. Epps’ brief did not address the timeliness of his appeal. To him, it was apparently not an issue. Epps is incarcerated at the Winston County Correctional Facility. His notice of appeal was received by the Supreme Court Clerk on July 29, 2004. With the Clerk receiving the notice on the thirty-first day after the order was entered, we believe it reasonable to infer that Epps deposited his notice of appeal in the mail, at the Winston County Correctional Facility, at least the day before it was received by the Clerk. Thus, the appeal was timely served and is properly before this Court.

II. Ineffective Assistance of Counsel

¶ 7. Epps next claims ineffective assistance of counsel. The standard applied to claims of ineffective assistance of counsel was first articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Epps must demonstrate that his counsel’s performance was deficient and that .this deficiency prejudiced his defense. Id. at 687, 104 S.Ct. 2052. The burden of proof rests with Epps, and we will measure the alleged deficiency within the totality of circumstances. Hiter v. State, 660 So.2d 961, 965 (Miss.1995); Carney v. State, 525 So.2d 776, 780 (Miss.1988). However, a presumption exists that the attorney’s conduct was adequate. Burns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001); Stringer v. State, 454 So.2d 468, 477 (Miss.1984).

¶8. Epps argues first that his counsel had a duty to pursue a violation of the 270 day rule and that his counsel expressly told him that no such violation existed. Epps’ guilty plea waived his right to a speedy trial and is not a basis for relief on a motion for post-conviction relief. Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991). During his plea hearing, Judge Morgan asked Epps if he understood that he had a right to a public and speedy trial by jury. Judge Morgan also clearly asked if he understood that his guilty plea would waive these rights. Epps answered affirmatively. There is no merit to this issue.

¶ 9. Epps argues next that he was persuaded to plead guilty by his counsel’s “predicament” that he could be sentenced to 120 years if convicted at trial. Indeed, this was Epps predicament and not his counsel’s predicament. His counsel was obligated to advise Epps of the potential consequences of trial and conviction. Indeed, if he was convicted at trial on both counts charged in the indictment, including the sentence enhancement, Epps faced a potential maximum sentence of 120 years imprisonment. Epps also admitted that his counsel informed him of the constitutional rights he would waive, what the prosecution was required to prove, the possible defenses available to him, and he stated that he was satisfied with his counsel’s representation.

¶ 10. For these reasons, we find no merit to Epps’ claim of ineffective assistance of counsel.

III. Voluntariness of Guilty Plea

¶ 11. Epps claims that his guilty plea was involuntary and was entered after being ill advised by his counsel. A plea of guilty is not binding upon a criminal defendant unless it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). A plea is viewed as voluntary and intelligent when the defendant is informed of the charges against him and the consequences of his plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). A defendant must be told that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self incrimination. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

¶ 12. As discussed above, Epps was afforded effective assistance of counsel. The record is void of any plea agreement, but it does indicate that Epps was thoroughly questioned about his decision to plead guilty. Judge Morgan was very clear in his explanation that he did not have to follow the prosecutor’s recommendation, and that he was free to sentence Epps to a term of thirty years if he choose to do so. Epps answered Judge Morgan’s question that it was his own decision to plead guilty. Epps’ responses also indicated that his plea was neither the result of coercion nor any physical violence, nor had he been promised anything, nor given anything of value in order to persuade him to plead guilty.

¶ 13. We find that Epps was fully advised of his rights and acknowledged that he intended to waive these rights. Therefore, we conclude that Epps voluntarily and intelligently plead guilty. We find no merit to this issue.

TV. Denial of Due Process — Failure to Inform of Appeal Process

¶ 14. Epps contends that he should have been advised by Judge Morgan that he had the right to appeal his sentence. Epps correctly states that the trial court is required to make the defendant aware of any constitutional rights which a guilty plea.tends to waive. Here, Judge Morgan advised Epps that if he was convicted he would have a right to appeal to the Mississippi Supreme Court. He asked if he understood that he would waive this right by pleading guilty. Epps affirmatively indicated that he understood these rights. Accordingly, this issue is without merit.

V. Illegal Sentence

¶ 15. Epps asserts that the sentence imposed was illegal. Epps was sentenced to a term of seventeen years with the Mississippi Department of Corrections, with instructions that he was to be incarcerated for twelve years and in a program of post-release supervision for a term of five years. Epps contends that under Mississippi Code Annotated Section 47-7-33 (Rev.2002), as a prior convicted felon, he is not eligible for a suspended sentence. Epps correctly interprets the provisions of Section 47-7-33. As a prior convicted felon, Epps would not be eligible for a suspended sentence. Indeed, he was not given a sentence with any portion suspended.

¶ 16. It is perfectly within the sentencing judges province to sentence the defendant to a term of imprisonment followed by a term of post-release supervision, so long as the sum of the two do not exceed the maximum sentence authorized to be imposed by statute for the felony committed. Miss.Code Ann. § 47-7-34 (Rev.2002). We find no merit to this issue.

VI. Evidentiary Hearing.

¶ 17. Finally, Epps argues that he is entitled to an evidentiary hearing. He is not entitled to an evidentiary hearing. Section 99-39-11(2) provides that if “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.” There is no merit to this issue. Judge Morgan was correct to dismiss the motion without an evidentiary hearing.

¶ 18. Finding no error, we affirm the judgment of the Circuit Court of Montgomery County that denied Epps’ motion for post-conviction relief.

¶ 19. THE JUDGMENT OF THE MONTGOMERY COUNTY CIRCUIT COURT DISMISSING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONTGOMERY COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., BRIDGES, CHANDLER, BARNES AND ISHEE, JJ„ CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


author: IRVING, J.,

text:
    Eric D. JOHNSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00947-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2005.
    Rehearing Denied April 18, 2006.

      Pamela Lynn Huddleston, Daniel Kyle Robertson, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, Anthony J. Buckley, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   IRVING, J.,

for the Court.

¶ 1. Eric Johnson was convicted of manslaughter by a Jones County jury and sentenced to twenty years in the custody of the Mississippi Department of Corrections. He now appeals, and asserts that the trial court erred in (1) failing to grant proposed jury instruction D-5 on informants, (2) denying his motion for a continuance for time to subpoena a laboratory analyst, and (3) failing to grant his motion for directed verdict and motion for a new trial.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On the evening of August 16, 2003, Eric Johnson and others were sitting on Narita Hailes’s front porch. Anthony Cole, who was intoxicated at the time, approached them. A fight broke out between Johnson and Cole, and the two eventually moved from the porch to the side of the house. At some point during the fight, Johnson pulled a knife and began stabbing Cole. There is no evidence that Cole used a knife, or any weapon besides his fists, on Johnson.

¶ 4. After the fight began, Hailes went inside the house to wake her son, Steven Hailes, and to tell him to “get” Cole. Hailes’s son ran and got his uncle, and they both proceeded to the site of the fight, where they observed Johnson cleaning blood off his knife with a t-shirt. After Johnson was told that the police had been called and were on their way, he fled the scene. Cole was alive when the police arrived, and was taken to a hospital, where he eventually died from his injuries. Johnson was later arrested and charged with manslaughter for Cole’s death. Additional facts follow as necessary below.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Informant instruction

¶ 5. At the trial in this case, two witnesses who were former cellmates of Johnson were called to testify. Both cellmates testified that they received no benefit whatsoever in return for their testimony and that no one had promised them anything. Neither of them was involved in the beating of Cole, so neither fall under the category of accomplices.

¶ 6. Johnson argues that the two cellmates who testified should be viewed as informants because one of them “was given trusty status on the date he gave his ‘snitch’ statement to law enforcement.” No explanation is given by Johnson as to why the second cellmate’s testimony should be viewed as untrustworthy, but he argues that “a cautionary instruction should have been given nonetheless.” A cautionary instruction may be given regarding the testimony of a witness who testifies in exchange for a reduced sentence. In this case, Johnson requested the following instruction: “The Court instructs the jury that the testimony of an informant who provides evidence against a defendant for benefit, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. You the jury must determine whether the informant’s testimony has been affected by interest or prejudice against the defendant.”

¶ 7. When reviewing the denial of a proposed jury instruction, “[t]he standard of review ... is that of viewing the instructions as a whole.” Adams v. State, 772 So.2d 1010, 1015-16(¶ 20) (Miss.2000) (citing Humphrey v. State, 759 So.2d 368, 380(¶ 33) (Miss.2000) (overruled on other grounds)). Johnson does not have an absolute right to have his jury instructions granted: “[a] defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Humphrey, 759 So.2d at 380(¶ 33) (quoting Heidel v. State, 587 So.2d 835, 842 (Miss.1991)).

¶ 8. As support for his argument, Johnson cites Sherrell v. State, 622 So.2d 1233, 1236 (Miss.1993). In Sherrell, the Mississippi Supreme Court affirmed a conviction where an informant testified and a cautionary instruction was issued by the court below. Since a cautionary instruction had been issued, the jury was properly informed, and there was no reversible error. Sherrell quoted another Mississippi Supreme Court case, McNeal v. State, 551 So.2d 151, 158 (Miss.1989), as support for its position. In McNeal, the court stated that: “we strongly question the reliability of testimony which was given in exchange for a reduced sentence.... Informants ... are offering evidence against their fellow inmates in exchange for reduced sentences. In the process of reaping their benefit, they are manipulating the system by helping to convict innocent citizens.” Id.

¶ 9. We find McNeal distinguished from the case sub judice by virtue of the fact that neither of the cellmates who testified received lesser sentences for doing so. In fact, one of the cellmates received no benefit at all that Johnson could point out. The concern that the McNeal court expressed — that inmates would fabricate testimony in order for reduced sentences — is notably absent from the current case. In Moore v. State, 787 So.2d 1282, 1286(¶ 14) (Miss.2001), the Mississippi Supreme Court reversed a conviction based on the testimony of a jailhouse witness who “was released on his own recognizance after cooperating with the state in [the defendant’s] case. [The witness’s] attorney testified that [the witness] probably would not have been released without providing a statement to the State.” Id. In reversing, the court held that this was “sufficient evidence of favorable treatment in exchange for his testimony to support the granting of the requested cautionary instruction.” Id. We note that there is no such evidence in the case presently before us; neither of the cellmates were released or given reduced sentences as a result of their testimony.

¶ 10. We also note that there are several cases where this Court or the Mississippi Supreme Court has held that the denial of an informant instruction did not constitute reversible error. In affirming a conviction where a cautionary instruction had been denied, the Mississippi Supreme Court noted that “the jury heard evidence of [the informants’] criminal records. Manning was allowed to question fully both ... about any potential preferential treatment which they might be receiving in exchange for their testimony. Neither witness made any deals with law enforcement or prosecutors regarding their testimony at Manning’s trial.” The court found this sufficient to replace a cautionary instruction. Manning v. State, 735 So.2d 323, 335(¶ 15) (Miss.1999).

¶ 11. In Hill v. State, 865 So.2d 371, 379 (¶¶ 26-27) (Miss.Ct.App.2003), we held that the denial of a cautionary instruction did not constitute reversible error, even when the informant in that case “admitted that he had acted as a confidential informant following his own arrest on narcotics charges in hopes of helping himself and that he had received what would likely be considered a more lenient sentence in comparison to the punishment he could have received.” Id. at 379(¶ 26). In Hill, we noted that the defendant had ample opportunity to draw out any motivation for lying during cross-examination, that the jury heard all the evidence, and that the court had instructed the jury that its duty was to judge the credibility of all the witnesses testifying. Id. at 379(¶ 27). As such, we found that the lack of a cautionary instruction on informant testimony did not require reversal.

¶ 12. In another case, this Court addressed the previously-discussed holding in Moore (reversing where a cautionary instruction was denied) and held that “Moore deals strictly with the limited subject of uncorroborated testimony of jailhouse snitches.... ” Denson v. State, 858 So.2d 209, 210-11(¶ 6) (Miss.Ct.App.2003). Although the two cellmates in this case might properly be considered “jailhouse snitches,” their testimony was corroborated by several other witnesses. Even applying Moore to their testimony, we find that the granting of trusty status to one cellmate and the notable lack of a benefit to the other does not necessitate a reversal in this case. Any inherent unreliability in the witnesses’s testimony was brought out on cross-examination by Johnson’s attorney, and the jury was instructed to carefully weigh the credibility of all the witnesses in the case. Those facts, combined with the lack of proven benefit to either of the witnesses, cause us to find that there was no error on the part of the court below in denying proposed instruction D-5. Johnson’s first point of error is rejected.

(2) Denial of continuance

¶ 13. In his second point of error, Johnson argues that the court below erred in refusing to grant him a continuance, requested on the day of trial, to subpoena and question the lab technician who tested Johnson’s shoes for blood. The lab results in question had only been received by the State a few days before trial, and the State immediately conveyed them to Johnson’s attorney. The State clearly admitted and stipulated that the lab results showed that Johnson’s shoes tested negative for the presence of blood.

¶ 14. Johnson argues that reversal is required on this point because he “should have been afforded the opportunity to subpoena and call the crime lab analyst to testify regarding this rather than have the jury learn this through a stipulation only.” We note initially that Johnson is procedurally barred from raising this on appeal, because “[t]he denial of a continuance is not an issue reviewable on appeal where the denial of the continuance is not assigned as a ground for a new trial in the defendant’s post-trial motion for a new trial.” Crawford v. State, 787 So.2d 1236, 1242(¶ 25) (Miss.2001). Since Johnson did not mention the denial of the continuance in his motion for a new trial, he is procedurally barred from raising that on appeal here. Even if he were not procedurally barred, however, we would still find that the court below did not err in denying Johnson’s motion for a continuance.

¶ 15. When reviewing a lower court’s denial of a motion for continuance, we look to see whether the court abused its discretion in denying the continuance. Shelton v. State, 853 So.2d 1171, 1181(¶ 35) (Miss.2003) (citing Smiley v. State, 815 So.2d 1140, 1143-44 (Miss.2002)). We will not reverse “unless the ruling resulted in manifest injustice.” Id. (citing Smiley, 815 So.2d at 1143-44).

¶ 16. After reviewing the record in the current case, we find that reversal is not required in this case. The import of the results to Johnson’s defense was that the test results were negative, a fact that the State stipulated to obviate the need for Johnson to call the lab technician to testify. We fail to see how Johnson’s defense was substantially harmed by relying on the stipulation rather than actual testimony. The decision to deny the continuance was certainly within the discretion of the trial judge, and no “manifest injustice” resulted from the denial of the motion. Therefore, Johnson’s second point of error is rejected.

(3) Weight and sufficiency of the evidence

¶ 17. In his third and final point of error, Johnson argues that the court erred in refusing to grant his request for a directed verdict, new trial, judgment notwithstanding the verdict, and peremptory instruction. Although Johnson phrases his argument only in terms of the weight of the evidence, we note that all of the above except the motion for a new trial constitute challenges to the sufficiency of the evidence supporting the verdict. As such, we will address both the sufficiency and the weight of the evidence underlying Johnson’s conviction.

Weight of the evidence

¶ 18. When reviewing a challenge to the weight of the evidence sustaining a conviction, we will reverse only if the verdict is “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Dilworth v. State, 909 So.2d 731, 737(¶ 21) (Miss.2005) (quoting Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005)). We weigh the evidence “in the light most favorable to the verdict.” Bush, 895 So.2d at 844(¶ 18). Reversal is required only if the court below “abused its discretion in denying a motion for new trial.” Dilworth, 909 So.2d at 737(¶ 20).

¶ 19. Johnson argues that the verdict in his case is against the overwhelming weight of the evidence because “the Stated failed to meet its burden of proving each and every element of the offense beyond a reasonable doubt.” Beyond this bare statement, Johnson offers no argument as to why the verdict in his case was against the overwhelming weight of the evidence. Even this statement is really an argument relating to sufficiency rather than weight. Given the evidence of numerous eyewitnesses who observed Johnson beating Cole, wiping off a knife while standing over Cole, and running from the scene, we do not find that the verdict was against the overwhelming weight of the evidence.

¶ 20. Steven Hailes testified that when he came around the side of his mother’s house (where the incident took place), he observed Johnson “wiping a knife off with a white T-shirt.” Hailes then testified that Johnson “took off running because Joanna told him the police were coming.” Other witnesses corroborated this testimony and the fight that broke out between Cole and Johnson. When the police apprehended Johnson the next morning, he initially lied to them and told them he was not Eric Johnson. Beyond all this evidence was the testimony of two of Johnson’s cellmates that he had confessed to them that he had stabbed Cole to death.

¶ 21. Given the weight of the evidence supporting Johnson’s conviction, allowing the verdict in this case to stand does not constitute an unconscionable injustice, and the trial court did not abuse its discretion in denying Johnson’s motion for a new trial.

Sufficiency of the evidence

¶ 22. Since Johnson also complains of the court’s denial of his motion for directed verdict, peremptory instruction, and judgment notwithstanding the verdict, we also briefly address whether the evidence in this case was sufficient to convict Johnson of manslaughter.

¶ 23. When reviewing the sufficiency of the evidence supporting a conviction, we examine “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) (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). As with weight of the evidence, we will reverse only if the court below abused its discretion in denying Johnson’s motions. Id. (citing Howell v. State, 860 So.2d 704, 764 (Miss.2003)).

¶ 24. Given the strength of the evidence supporting Johnson’s guilt, we have no difficulty finding that a reasonable jury “could have found the essential elements of the crime beyond a reasonable doubt.” Manslaughter, as defined in Mississippi, is: (1) the killing of a human being, (2) without malice, (3) in the heat of passion, (4) without authority of law, (5) not in self-defense, and (6) by use of a dangerous weapon. Miss.Code Ann. § 97-3-35 (Rev. 2000). A reasonable jury could have found, from the evidence presented by the State, that each of these elements was proved beyond a reasonable doubt. Therefore, we find that the decision of the court denying Johnson’s motions was not an abuse of discretion.

¶ 25. Johnson’s third and final point of error is rejected.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

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

      . The substance of the argument that led to the fight is unclear. The record suggests that Cole and Johnson may have fought over a compact disk, or Cole may have hit Johnson's girlfriend.

      . Trustees are inmates who are allowed to work, which means that — for some of them— they get to go outside to work. The cellmates who testified was given a job outside the prison. He testified that other than getting to work outside, the trustees received no additional benefits; they were kept in the same cells and fed the same food as the other inmates. The witness did testify that he had been attempting to achieve trusty status for three weeks, and was finally made a trusty on the day he gave his statement against Johnson.