author: SOUTHWICK, J.,

text:
    Jean T. McCLATCHY, Appellant v. ANTHONY FARMS, A Partnership, Appellee.
    No. 2005-CA-00512-COA.
    Court of Appeals of Mississippi.
    Aug. 15, 2006.

      W. Dean Belk, Indianola, attorney for appellant.
    Jeffrey A. Levingston, Cleveland, attorney for appellee.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. This suit concerns the lease of about 400 acres of land for agricultural purposes, a sublease of the same land, and the reach of the landowner’s statutory lien on crops. The trial court voided the crop lien because the owner sought payment of the rent owed her out of the proceeds from the subtenant’s crops but did not join her own tenant in the suit. We agree that the plaintiff should not have sought payment from the subtenant as surety on the debt without first seeking payment from the principal debtor. The remedy for that procedural defect is not necessarily to void the agricultural lien, as voiding is proper only if the rights of the surety have been impaired. We reverse and remand for further proceedings consistent with this opinion.

FACTS

¶ 2. The plaintiff landowner is Jean T. McClatchey. From 1994 until 2000, she entered annual farming leases on the 400 acres involved in this litigation with her nephew, Charles T. (Toby) McClatchey. In 1999 the nephew stopped farming. Thereafter, farming operations were conducted by his wife, Jean W. McClatchey, under the business name of Waltonia Farms. There is evidence that the landowner Jean T. McClatchey did not know that her nephew’s wife had become the operator of the lease. At the time that the nephew Toby McClatchey stopped farming, he was under a criminal investigation by federal authorities. In April 2000, he was sentenced to federal prison. In 2001, he declared bankruptcy. In 2003, his wife Jean W. McClatchey did the same.

¶ 3. The final Waltonia Farms lease on the 400 acres was for the 2001 crop year. The financial and criminal challenges facing the McClatchey nephew and his wife were the background for Waltonia Farms’ subleasing the 400 acres to Anthony Farms. The latter company is a partnership. On April 24, 2001, Anthony Farms received a sublease from Waltonia Farms covering the subject 400 acres of farm land and other property not involved in the crop lien issues before us. The owner of the 400 acres, Jean T. McClatchey, signed an agreement for the sublease. She did not, however, enter any contractual relationship with the sublessee Anthony.

¶ 4. Anthony Farms paid Waltonia Farms the full lease amount of $43,232 on the day the sublease was executed, which was April 24, 2001. Also on that day, Waltonia Farms, through Jean W. McClat-chey, paid $10,000 to its lessor and the landowner Jean T. McClatchey. On October 1, 2001, Jean T. McClatchey filed a lien on the 400 acres, stating in the filing that based on information and belief, Wal-tonia Farms had sublet the land to Anthony Farms. She alleged that the rent due her for the 2001 crop season was delinquent. Waltonia Farms had paid her $25,000 in 2001, but there is evidence that Toby McClatchey had not been timely in his payments of rent in previous crop years. Jean T. McClatchey allocated the 2001 payments to past due amounts from previous years. Because of this allocation, it was alleged that the entire rent of $22,500 for 2001 remained outstanding. Since neither her nephew nor the nephew’s wife was thought to be financially able to make the lease payments, she filed the crop lien against Anthony Farms, to facilitate recovering the $22,500.

¶ 5. Anthony Farms brought suit to cancel the crop lien on November 14, 2001. On October 7, 2003, the parties entered into a stipulation in which they agreed to most of the facts of the case. The stipulation also identified the payments on the annual leases that the landowner had received from her nephew or Waltonia from 1994-2001. The stipulation revealed that the nephew often did not make timely payments. When he did not pay, a ten percent interest rate was applied to the rent. Late payments plus interest were made for rent due in 1997, 1998, 1999, and 2000. The landowner Jean T. McClatchey asserted she always applied outstanding payments first to rent due and its accrued interest before applying payment to more recent leases.

¶ 6. Two weeks after entering into the stipulation, the landowner Jean T. McClat-chey filed a counterclaim against Anthony Farms. She alleged that Anthony as sub-lessee was a surety for the outstanding rent due from the tenant, Waltonia Farms. It was also alleged that because of the bankruptcies filed by her nephew and his wife, there were “no assets from which to pay unsecured creditors” such as herself.

¶ 7. A trial was held on January 26, 2005. In the chancellor’s written opinion of February 18, 2005, the statutory lien that landowners have on crops grown on their property was voided because the landowner had failed first to seek the rent from her immediate lessees, either Charles (Toby) McClatchey or Waltonia Farms under the management of Jean W. McClat-chey.

¶ 8. From this decision Jean T. McClat-chey has appealed.

DISCUSSION

¶ 9. The chancellor and the sublessee Anthony Farms agree that this suit fails because the landowner did not initially try to recover her rent from her nephew or the nephew’s wife. Under that analysis, not only were those individuals and Walto-nia Farms primarily liable, the failure to seek recovery from them has voided the statutory crop hen. On the other side of the dispute, the landowner alleges that bringing suit against the bankrupt relatives would have been futile. Moreover, since after filing notice of her statutory lien she became the defendant in litigation commenced by the sublessee, she was hardly the initiator of any action with Anthony.

¶ 10. We find one statute, a few precedents, and some basic principles about sureties to resolve the central issues in this case. We start with the statute that gives landowners a lien on crops grown by anyone on their property:

(1) Every lessor of land shall have a lien on the agricultural products of the leased premises, however and by whomsoever produced, to secure the payment of the rent and of money advanced to the tenant, and the fair market value of all advances made by him to his tenant for supplies for the tenant and others for whom he may contract, and for his business carried on upon the leased premises. This lien shall be paramount to all other liens, claims, or demands upon such products tuhen perfected in accordance ivith Uniform Commercial Code Article 9 — Secured Transactions (Section 75-9-101, et seq.). The claim of the lessor for supplies furnished may be enforced in the same manner and under the same circumstances as his claim for rent may be; and all the provisions of law as to attachment for rent and proceedings under it shall be applicable to a claim for supplies furnished, and such attachment may be levied on any goods and chattels liable for rent as well as on the agricultural products.

Miss.Code Ann. § 89-7-51 (Supp.2005) (emphasis added). The clause that we italicized was effective on January 1, 2002. 2001 Miss. Laws. Ch. 495, § 34. The notice of lien in the present case was filed before the UCC language was effective.

¶ 11. The lien notice signed and filed by the landowner, Jean W. McClatchey, stated this:

NOTICE OF LIEN ON CROPS
Pursuant to § 89-7-51 of the Mississippi Code of 1972, as amended, and related statutes, notice is hereby given that JEAN T. McCLATCHY, as landlord and lessor, does hereby claim a lien on all crops grown on the property which she has leased to C.H. McCLATCHY, JR., and/or JEAN W. McCLATCHY and or WALTONIA FARMS, the tenant, described upon Exhibit “A” attached hereto [the 400 acres] in Sunflower County, Mississippi, for unpaid rent for 2001 for a total rental of $22,500.00.
On information and belief, the property described upon Exhibits “A” was subleased to Roger Anthony and/or Anthony Farms.
Dated this the 1st day of October, 2001.

¶ 12. There has been no argument on appeal that the landowner’s notice failed to comply with the statute as it existed at the time of filing the notice. We accept, then, that whatever lien a proper notice would give Jean T. McClatchey was possessed after this document was filed.

¶ 13. The parties argue over the few precedents addressing the operation of the crop lien. Both parties are using the same legal materials and disagree as to what the caselaw is holding. As we -will discuss, it is clear from the precedents that the crops of a sublessee or subtenant are only secondarily liable for whatever debt is owed the landowner by her tenant. The differences in interpretation arise from whether the landowner did what was required before pursuing collection from the subtenant. Further, if there are still avenues to pursue against her nephew and the nephew’s wife, it is disputed whether the landowner’s prematurely seeking recovery from the subtenant voids her crop lien.

¶ 14. Landowners upon giving proper notice obtain liens on crops grown on their land whether raised by their tenants or by someone else. Dale v. Webb, 166 Miss. 309, 146 So. 875 (1933). It is undisputed that Jean T. McClatchey had leased her land to Waltonia Farms prior to the sublease by Waltonia Farms to Anthony Farms, and that some amount of the rent for prior years had not been paid. Anthony on appeal agrees with the chancellor’s conclusion that seeking recovery from the subtenant before pursuing collection from the tenant voids the lien as to the crops the subtenant has grown, citing but interpreting differently the same precedents as are relied upon by Jean T. McClatchey. E.g., Hooks v. Burns, 168 Miss. 723, 152 So. 469 (1934); Dale v. Webb, 146 So. at 876; Powell v. Tomlinson, 129 Miss. 354, 92 So. 226 (1922).

¶ 15. We review two precedents to establish the basics of the legal principles that are involved. In what may be the foundational ease for interpreting subtenants’ obligations under this lien — a lien which appears to have been adopted initially as Section 1301 of the 1880 Mississippi Code- — the Supreme Court held that a subtenant is a surety for the obligation of the original tenants to the landowner. Applewhite v. Nelms, 71 Miss. 482, 14 So. 443, 443-44 (1894). The landowner in that suit had leased property to two tenants jointly, who then partitioned the property between them. One tenant subleased his parcel. The other farmed his land and sold part of his crop. The landowner brought suit for his rent against everyone including the subtenant and the purchasers of part of the crop. The landlord alleged in his complaint that the tenants, subtenant and purchaser of part of the crop had colluded to avoid the statutory liability, that the initial tenants were insolvent, and that the subtenants and others should account for the rent. Id., 14 So. at 443.

¶ 16. The court reversed the dismissal of the suit and remanded, noting that all the parties necessary for complete relief were in the litigation. In summary, the instructions given for the remand were that as much of the payment as possible was to be obtained from the original tenants. Only the shortfall would be obtainable from the proceeds of the crops of the subtenants, whether the crops were still possessed by them or instead by their purchasers or assigns. Id., 14 So. at 444.

¶ 17. This first judicial interpretation of the reach of a landowner’s crop lien to subtenants made it clear that the crops grown on the property by subtenants were liable for the rent due the landowner once the ability of the original tenant to pay that rent was exhausted.

¶ 18. Applewhite was a suit that was brought by the landowner against all subsequent owners of interests in the land or crops. Therefore, our issue of the effect of the landowner’s skipping over her tenants and proceeding directly against subtenants did not arise. Another precedent contains the relevant procedural hurdling. Powell v. Tomlinson, 129 Miss. 354, 92 So. 226 (1922). Powell leased his land to a tenant, who in turn subleased part to a man named Crane. Crane paid rent to his lessor from the proceeds of the crops and delivered the remainder of the crop to a man named Tomlinson, who provided “the means with which to make a crop on the land sublet to him.... ” As security for payment, the landowner Powell held a deed of trust that his tenant had executed on some stock, and also a deed of trust on crops that the tenant was to raise the following year. The tenant paid all his debts to the landowner Powell except for a small amount. The landlord attempted to recover the amount still owed him by his tenant by suing only the supplier Tomlin-son, who had received part of the subtenant’s crop to satisfy the debt between those two. Id., 92 So. at 227.

¶ 19. On appeal, the court found that the subtenant Crane was a surety for the indebtedness owed by his lessor (the original tenant) to the landowner Powell. However, the surety was entitled to have the creditor seek recovery from the person primarily liable and not “throw away an opportunity to collect his debt” by means other than proceeding against the surety. Id. The court found that the landowner had entirely ignored the security of the deeds of trust on crops and stock. “Under the law where the principal debtor and the creditor make a material change in the contract evidencing the indebtedness,” this releases the surety in the absence of consent to the change. Id. at 228. The Poiv-ell court does not state what the original tenant and the landowner did that was a material change. The statement just quoted followed immediately after the court noted that the tenant had given deeds of trust on crops on the land that was not subleased and on stock. There is also in the opinion an almost contemporaneous reference to what the landowner did, which was to bring suit against the subtenant and not against the tenant.

¶ 20. However we should interpret the specific facts of these and the other precedents, we conclude that the legal principle at issue is a familiar one and can be stated more generally than in the agricultural lien context. The controlling prohibition is that a creditor cannot increase the secondarily liable entity’s risk by actions that release the primarily responsible entity in whole or in part. A good explanation of this concept is in the Re statement of Suretyship and Guaranty:

(1) If the obligee acts to increase the secondary obligor’s risk of loss by increasing its potential cost of performance or decreasing its potential ability to cause the principal obligor to bear the cost of performance, the secondary obli-gor is discharged as described in subsections (2) and (3).... An act that increases the secondary obligor’s risk of loss by increasing its potential cost of performance or decreasing its potential ability to cause the principal obligor to bear the cost of performance is an “impairment of suretyship status.”
(2) If the obligee fundamentally alters the risks imposed on the secondary obli-gor by:
(b) agreeing to a modification of the duties of the principal obligor that either amounts to a substituted contract or imposes risks on the secondary obligor fundamentally different from those imposed on the secondary obligor prior to modification;
the secondary obligor is discharged from any unperformed portion of the secondary obligation as more fully set forth in those sections.
(3) If the obligee impairs the secondary obligor’s recourse against the principal obligor by:
(e) failing to institute an action before expiration of the statute of limitations governing the underlying obligation; or
(f) any other act or omission that impairs the principal obligor’s duty of performance, the principal obligor’s duty to reimburse, or the secondary obligor’s right of restitution or subrogation;
the secondary obligor is discharged from its duties pursuant to the secondary obligation to the extent set forth in those sections in order to prevent the impairment of recourse from causing the secondary obligor a loss.

Restatement (Third) of Suretyship & GUARANTY § 37 (2006).

¶21. This litigation was resolved below based simply on the fact that the landowner Jean T. McClatchey, after being sued for cancellation of the lien notice that she had filed, brought a counterclaim against Anthony without joining her own nephew, his wife, and perhaps their business entity Waltonia Farms. There is substantial evidence that those who are primarily liable to Jean T. McClatchey are bankrupt. We do not find that the chancellor considered the issues raised by surety law and the need to prove that the surety’s risk has been increased due to actions by the creditor. We reject that the mere bringing of a counterclaim against the surety without joining the landowner’s tenants as defendants acts as an automatic cancellation of the obligations of a surety.

¶ 22. Instead, before this suit can be dismissed because of impairment of the rights of the surety, there must be proof that those rights have actually been impaired. It is when “the principal debtor and the creditor make a material change in the contract evidencing the indebtedness,” that the surety is released. Powell, 92 So. at 228. Resort must first be made by a creditor to the primarily liable party. Merely getting ahead of oneself, as Jean T. McClatchey did in bringing suit against the surety first, is not necessarily a material change.

¶ 23. We are not holding that if the agricultural lien remains effective, that any amount is owed by Anthony. Anthony Farms apparently paid Waltonia in full on the sublease; some of the rent money was then paid to Jean T. McClatchey. The effect of those and other facts would need to be considered. We only conclude that the chancellor erred in ruling that the lien had been lost solely because a counterclaim was brought against Anthony alone and without joinder of the nephew and his wife. We reverse and remand on the issue of whether the agricultural lien has been forfeited.

¶ 24. The record is clear that Jean T. McClatchey did nothing to attempt to collect her rent from Waltonia Farms, her nephew or the nephew’s wife. She admitted she did not want to sue Waltonia Farms because that would involve suing her family. On remand, the chancellor should determine whether there has been a failure to join necessary parties or whether joinder would be futile. If the resolution of procedural issues allows the case to proceed, evidence can be taken on whether the surety’s rights were impaired sufficiently to justify voiding the lien because of Jean T. McClatchey’s failure to pursue a claim against the two other McClatchey family members and Waltonia Farms. If the lien remains in effect, the determination then must be made of what, if anything, is owed by the subtenant Anthony Farms to the landowner.

¶ 25. THE JUDGMENT OF THE CHANCERY COURT OF SUNFLOWER COUNTY IS REVERSED AND THE CAUSE IS REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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


source: Caselaw Access Project

license: Public Domain

text:
    Pervis DeWayne NEAL, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CA-00669-COA.
    Court of Appeals of Mississippi.
    Aug. 15, 2006.

      Lisa Mishune Ross, Jackson, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. Pervis DeWayne Neal pled guilty in 2001 to the charges of manslaughter and armed robbery in the Copiah County Circuit Court. Three years later he sought post-conviction review of the judgment. We agree that the armed robbery conviction is invalid because he had never been properly charged with that offense. We reverse and remand for sentencing on robbery.

FACTS

¶2. On July 19, 1998, Neal and three other occupants, Jonathan and Joseph MeGriggs and Susan Mitchell, drove to W.Q. Bradley’s house in order to rob him. Once arriving, Joseph MeGriggs and Mitchell exited the vehicle. They argued with Bradley on the front porch. Neal exited the vehicle with Jonathan MeGriggs, who was armed with a shotgun. MeGriggs shot Bradley when he tried to go into his house. The group then fled in their vehicle. Bradley died from the gunshot.

¶ 3. In 2000, Neal was indicted for capital murder. About nine months later, on March 12, 2001, Neal filed a waiver of indictment for the crime of manslaughter and also for robbery. An Information was prepared charging those crimes. An accused who is represented by counsel, as was Neal, may waive indictment and allow himself to be prosecuted based on an Information. Miss. Const. Art. 3, § 27. These are the relevant sections of the key documents:

WAIVER OP INDICTMENT
1 .... that I have been accused of robbery on or about the 19th day of July, 1998, in violation of Section 97-3-73 of the Mississippi Code of 1972, and did then and there wilfully, unlawfully and feloniously attempt to take, steal and carry away United States currency, the personal property of the said W.Q. Bradley.
INDICTMENT: COUNT TWO
[T]hat on or about the 19th day of July, 1998, in Copiah County, Mississippi, and within the jurisdiction of this court, the said Pervis Neal in the presence and against the will of W.Q. Bradley, a human being, and with the unlawful and felonious intent to take, steal and carry away the personal property, of value, of one W.Q. Bradley, he, the said Pervis Neal, by violence to the person of the said W.Q. Bradley, did then and there wilfully, unlawfully and feloniously attempt to take, steal and carry away United States currency, the personal property of the said W.Q. Bradley, contrary to and in violation of Section 97-3-73 of the Mississippi Code of 1972, and against the peace and dignity of the State of Mississippi.

¶ 4. Later in the month in which Neal waived indictment, M.A. Bass, Neal’s attorney, notified the court that Neal wanted to withdraw his plea of not guilty and enter a plea to manslaughter and armed robbery, the latter not having been charged in the Information. The court stated:

[W]e’ll proceed in both causes, and we’ll proceed in Cause Number 2001-0077CR [the manslaughter and robbery charge] and also in 2000-103CR [the capital murder charge]. One, in the event that this is a lesser included offense, and in the event it’s not, we’ll proceed otherwise _Mr. Neal, I believe you want to plead guilty to manslaughter and armed robbery....

The plea colloquy proceeded for the charge of manslaughter and armed robbery. Neither armed robbery nor the exhibition of a deadly weapon was mentioned in Neal’s indictment, Information, or waiver of indictment.

¶ 5. On March 4, 2004, Neal filed a motion to vacate his conviction and sentence. The motion alleged that the Information was fatally defective, that he had been subjected to double jeopardy, that his plea was involuntary, and that he had received ineffective assistance of counsel. The motion was denied by the Copiah County Circuit Court. Neal has appealed.

DISCUSSION

ISSUE 1: Defective Charging Documents

¶ 6. Neal argues that due to defects in the charging documents, the circuit court was without jurisdiction and his plea was involuntary. His argument focuses on the failure of the Information to state the armed robbery element of “exhibition of a deadly weapon.” The Information also referred to the robbery statute instead of to the statute for armed robbery. Miss.Code Ann. §§ 97-3-73 & 97-3-79 (Rev.2000). Finally, the waiver of indictment document failed to refer to armed robbery.

¶ 7. An accused has a constitutional right “to be informed of the nature and cause of the accusation.” U.S. Const. Amend. VI. This State’s Constitution does not expand the right. Miss. Const, art. Ill, § 26. Entering a guilty plea does not waive an indictment’s failure to include an element of a crime, nor does the plea waive subject matter jurisdiction. Conerly v. State, 607 So.2d 1153, 1156 (Miss.1992). An indictment charging the essential elements of a crime must be served on a defendant in order for a court to obtain subject matter jurisdiction over the subject of a particular offense. Jefferson v. State, 556 So.2d 1016, 1021 (Miss.1989).

¶ 8. The State concedes that count two of the Information was not sufficient for the court to have jurisdiction over the offense of armed robbery but argues that it was sufficient to convey jurisdiction for the offense of simple robbery. We look no further than the State’s concession in deciding that Neal, despite his plea, could not be convicted of armed robbery.

¶ 9. There is no reason that a shortcoming in describing one offense would infect and neutralize another charge in the same instrument. We conclude that the invalidity of the charge of armed robbery does not affect jurisdiction over manslaughter, or the guilty plea, conviction, and sentence on that count. We reach this conclusion despite that there was a plea bargain between the prosecution and Neal which joined both counts. Such bargains are not binding on the trial court. URCCC 8.04(B)(2)(b) (recommendation on sentence may be made as a result of plea negotiations, “with the understanding that such recommendation or request will not be binding upon the court.”). The trial court’s deciding upon a sentence on either offense greater than the bargain would not have permitted Neal to withdraw his plea. Similarly, our setting aside the sentence on the armed robbery charge, a sentence that sustained the bargain reached before the plea hearing, does not require us to set aside the entire bargain-based judgment of conviction and sentence. Neal’s request that this appellate court set aside his plea to both offenses is denied.

¶ 10. However, a trial court itself has discretion to allow a withdrawal of a guilty plea should something have occurred that in the court’s view justifies a withdrawal. URCCC 8.04(A)(5). We are remanding this judgment for reasons we will explain. On remand, if Neal determines to pursue the demand to set aside the entire plea, such a motion may be filed prior to resentencing and ruled upon under the explicit authority of the trial court to determine whether good cause exists to permit the withdrawal. URCCC 8.04(A)(6).

¶ 11. Insofar as permitting conviction of some robbery offense is concerned, the State argues that the prosecution at the plea hearing recited a factual basis for armed robbery; Neal admitted guilt to these acts. It is also the State’s position that the Information charged him with robbery and thus Neal may be remanded to the trial court for sentencing on simple robbery. We examine the documents more closely to see what was in the Information and in Neal’s waiver.

¶ 12. Both the waiver of indictment and the Information use the language of “attempt to take, steal, and carry away....” There was neither a charge nor a waiver of indictment of armed robbery. There may have been a charge and a waiver of indictment of either robbery or of attempted robbery.

¶ 18. We examine carefully the use of the word “attempt” in the Information and the waiver. An attempt has this required proof: “(1) an attempt to commit a particular crime, (2) a direct ineffectual act done toward its commission and (3) the failure to consummate its commission.” McGowan v. State, 541 So.2d 1027, 1030 (Miss.1989) (interpreting Miss.Code Ann. § 97-1-7 (1972), which provides that an attempt occurs when a person “shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein....”) Though those three elements must be proved, the Supreme Court earlier had held that two elements need to be charged: “(1) the intent to commit the offense, and (2) an overt act toward its commission.” Maxie v. State, 330 So.2d 277, 277 (Miss.1976). The two opinions, Maxie and McGowan, can be viewed as consistent in that using the word “attempt” puts a defendant on notice that the State will prove that the crime was not completed. However, there would be notice neither of the specific crime nor of the overt act of the attempt unless the charging document describes those elements.

¶ 14. The Information which alleged Neal had engaged in an attempt to take the victim’s money stated that Neal had used “violence” without describing the act of violence. The explanations at the guilty plea hearing identified the violence as the display of a weapon by another perpetrator and then the shooting of the victim, but the Information did not charge that overt act. Accordingly, an attempted simple robbery was not properly charged.

¶ 15. However, if not for the presence of the word “attempt” in the Information, there would have been a sufficient charge of simple robbery. At times, words in indictments may properly be labeled as surplusage. The description of an attempted robbery could be deleted from an indictment that charged murder while “in the commission of the crime of robbery, or in an attempt to commit robbery....” Caldwell v. State, 481 So.2d 850, 853 (Miss. 1985), rev’d Caldwell v. Mississippi 479 U.S. 1075, 107 S.Ct. 1269, 94 L.Ed.2d 130 (1987) (reversed due to racial discrimination in jury selection); see also Griffin v. State, 557 So.2d 542, 548 (Miss.1990) (same indictment language as in Caldwell found surplusage). Since the crime of robbery was adequately proven at trial, the indictment’s reference to an attempt to rob was surplusage. Caldwell, 481 So.2d at 854. Distinctions from our situation include that the indictment notified Caldwell both of attempt and of the actual commission of robbery. The Information did not charge Neal both with robbery and with attempted robbery. Not a distinction from our case is that Caldwell was convicted of murder while in the commission of a robbery. As here, the State still had to prove the elements of robbery in Caldwell.

¶ 16. This Court distinguished Caldwell in a decision now on review by the Supreme Court. Spears v. State, No. 2004-KA-00662-COA, - So.2d -, 2005 WL 2496091 (Miss.Ct.App. Oct.11, 2005), cert. granted (Miss. June 26, 2006). The defendant had been indicted for an attempted burglary, but the State was allowed at trial to amend in order to charge completion of the burglary. The majority in the 5-4 decision stated “Caldwell is clearly inapplicable because, in the case sub judice, prior to the amendment there was no language in the indictment regarding the completed crime, whereas Caldwell had been indicted on both robbery and attempted robbery.” Spears, at ¶ 6. Spears’s indictment charged this: “Brian Spears and James Johnson, ... on or about September 11, 2003, ... individually or while aiding and abetting and/or acting in concert with each other, did then and there, unlawfully, willfully, feloniously and burglariously attempt to break and enter the dwelling house of Joyce Market....” Id., at ¶ 14 (Irving, J., dissenting). The majority noted that Spears’s defense at trial had been that he was not guilty of attempt because he had actually committed the crime. An element of proof for an attempt is that the accused not have actually completed the charged crime. McGowan, 541 So.2d at 1030. Accordingly, the amendment of Spears’s indictment changed the substance of the charge and improperly prejudiced the defense. Id., at ¶ 9. Language in an indictment cannot be considered surplus unless, among other considerations, “a defense under the indictment or information as it originally stood would be equally available after the amendment....” Griffin v. State, 540 So.2d 17, 21 (Miss.1989). Surplus language and other matters of form may properly be amended; matters of substance may not be. Id.

¶ 17. We examine one final point before analyzing the effect of these principles on Neal’s appeal. By statute, every indictment of a crime includes implied notice that the accused may be convicted of an attempt to commit that same crime:

On an indictment for any offense the jury may find the defendant guilty of the offense as charged, or of any attempt to commit the same offense, or may find him guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment

Miss.Code Ann. § 99-19-5 (Rev.2000) (emphasis supplied). Though the statute refers to indictments, we find no reason to conclude that a different rule should apply to Informations, particularly when the Information properly charged felonies only because the accused waived indictment. Thus, defendants are on notice from an Information that validly charges felonies or from an indictment of the potential of being convicted of an attempt as well as of lesser included offenses even when those are not charged. Our issue is almost the reverse. The robbery charge included the word “attempt” and we are determining whether the charge of the completed crime was made.

¶ 18. We now examine what all this means as to Neal. Did the trial court receive jurisdiction to convict Neal of simple robbery? In Spears, which was a case on direct appeal from the conviction, this Court found that because deleting the word “attempt” altered the defense, the word could not be considered to be surplus to the charging language. Neal is here seeking post-conviction relief after having pled guilty. There was no defense raised. Indeed, Neal pled guilty to the completed offense of armed robbery. He hardly was presenting a defense to attempted simple robbery. Neal’s guilty plea waived all non-jurisdictional offenses in the Information. Jefferson, 556 So.2d at 1021. The inclusion of the word “attempt” is non-jurisdictional to a conviction here for simple robbery if the word in this case, on these facts, was surplusage. It is of some importance to the form versus substance issue that Neal has never raised at the guilty pleas hearing or in these post-conviction relief proceedings the fact that he was charged with an attempted robbery instead of a concluded robbery. The extra word “attempt” has been a matter of no concern to the accused. Therefore deleting it would not interfere with a defense, which is what led to reversal in Spears.

¶ 19. One place to draw the line between proper and improper amendments— between surplus and significant language — is on whether the allegedly surplus language in the charging instrument failed to identify any crime at all. There is a crime of attempted robbery and the situation here could be seen as simply the State’s failure to properly charge it. A different kind of surplusage has occasionally been considered. For example, when because of an error by the legislature there was for a brief time no offense of possession of illegal drugs that included the element of an intent to sell those drugs, the “intent to sell” language could be stricken as surplusage and a conviction for possession sustained. Schloder v. State, 310 So.2d 721, 723-24 (Miss.1975). Similarly, when there was no offense of indecent assault, the indecency language could be stricken and a conviction for assault upheld. Crawford v. State, 146 Miss. 540, 546, 112 So. 681, 682 (1927).

¶ 20. We are convinced that the suggested distinction is not the proper one on what is surplus and what is not. The concept of surplusage in indictments is nothing more than a specific category of matters of form that may validly be the subject of amendment if an issue is raised. Since Neal’s defense was not affected by the word “attempt,” that word may be considered surplusage. By deleting “attempt,” the Information validly charged Neal with simple robbery. Having been so charged, he could be convicted either of simple robbery or of attempted robbery.

¶ 21. A conviction of simple robbery could have resulted in a sentence of up to fifteen years. Miss.Code Ann. § 97-3-75 (Rev.2000). The range for a sentence of the attempt to commit any noncapital felony is the same as for the completed crime. Miss.Code Ann. § 97-1-7 (Rev.2000). Therefore there was no greater jeopardy arising from whether the actual crime was charged or only an attempt.

¶ 22. The trial court had jurisdiction to accept a plea for the crimes of robbery and manslaughter. We reverse his judgment of conviction and sentence for armed robbery, affirm on the lesser-included offense of robbery, and remand for sentencing for that crime. We note that sentencing must be consistent with such precedents as North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (a higher sentence after relief granted on appeal cannot be the result of vindictiveness).

ISSUE 2: Double Jeopardy

¶ 23. Neal argues that his constitutional protection against double jeopardy was violated. The basis of the argument is that the (armed) robbery for which he was convicted is a necessary element of the capital murder charge, which is a murder that occurs while in commission of another felony.

¶ 24. However, Neal was offered a chance to plead to manslaughter in lieu of capital murder. In the Information he was charged under Section 97-3-47, which labels manslaughter as a killing “by the act, procurement, or culpable negligence of another, and without authority of law,” which is not punished under any other section of the penal code. That version of manslaughter does not contain as an element that the killing occur during the commission of some other crime. In addition, Neal was charged with attempted robbery. Neal seeks to argue his double jeopardy rights in the context of his having been convicted of capital murder and robbery, in which the robbery was a constituent element of the murder. Fuselier v. State, 654 So.2d 519, 522 (Miss.1995). That did not occur.

ISSUE 3: Involuntary Plea

¶ 25. Neal argues that he was not informed of the elements of the crimes. As a matter of federal constitutional law, a guilty plea is valid only if it is entered “voluntarily, knowingly, and intelligently, ‘with sufficient awareness of the relevant circumstances and likely consequences.’ ” Bradshaw v. Stumpf, 545 U.S. 175, 125 S.Ct. 2398, 2405, 162 L.Ed.2d 143 (2005) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)).

¶ 26. The objective of this constitutional standard is to satisfy the due process requirement that a defendant receive “real notice of the true nature of the charge against him.” Bousley v. United States, 523 U.S. 614, 618, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859 (1941)). The trial court accepting a guilty plea is responsible for assuring that a defendant entering a guilty plea actually understands the nature and elements of the crime for which a defendant is admitting guilt. A requirement for this objective to be met and therefore for a guilty plea to be valid, is that a defendant is informed of the elements of the crime. Stumpf, 125 S.Ct. at 2405. A court accepting a guilty plea does not need to explain the crime’s elements to the defendant on the record but can satisfy this constitutional prerequisite by other means, such as counsel’s representing to the court that the elements of a crime have been explained to the defendant. Stumpf, 125 S.Ct. at 2405.

¶ 27. Regarding the crime of manslaughter, the elements were listed in the waiver of indictment and in the plea petition that Neal signed. Neal’s attorney, Bass, certified that Neal was explained the contents of the waiver and plea petition. As to the crime of robbery, in the waiver of indictment Neal admitted to an “attempt to take, steal and carry away United States currency, the personal property of the said W.Q. Bradley.” During the plea hearing the prosecution recited the evidence that would be offered at trial. He stated that the killing took place “while in the commission of a robbery of Mr. W.Q. Bradley by using the weapon of a 12-gauge pump shotgun.” Bass, in signing Neal’s waiver of indictment, certified to the court that these elements had been explained to Neal. Neal then represented to the court that this Information was true.

¶28. Neal was informed of the elements of both offenses. The trial court assured itself that these elements had been explained prior to accepting Neal’s guilty plea. The specific elements appeared on several documents that Neal signed.

¶29. Neal also makes some effort to allege ineffective assistance of counsel. We find reasonable representation, no errors on this record, and a rather favorable plea bargain based on the nature of the offenses originally charged.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY DENYING POST-CONVICTION RELIEF IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

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

      . Whenever we refer to the Information which was the charging instrument in this case or generically to that type of charging document, we will capitalize the word for purposes of clarity.


author: IRVING, J„

text:
    Michael ANTHONY, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02228-COA.
    Court of Appeals of Mississippi.
    Aug. 15, 2006.

      Daniel Christopher Jones, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   IRVING, J„

for the Court.

¶ 1. Following a jury trial, Michael Anthony was convicted of murder and aggravated assault. The Simpson County Circuit Court sentenced Anthony to life for the murder conviction and twenty years for the assault conviction, the twenty years to run concurrent to the life sentence, and both to be served in the custody of the Mississippi Department of Corrections. Aggrieved, Anthony appeals and asserts the following errors, which we quote verbatim:

1. WHETHER THE TRIAL COURT ERRED IN ALLOWING MR. ANTHONY’S VIDEOTAPED STATEMENTS AND HIS MIRANDA WARNINGS TO BE ENTERED INTO EVIDENCE WHEN MR. ANTHONY, A MINOR, DID NOT FULLY COMPREHEND THE WAIVER OF HIS RIGHTS.
2. WHETHER THE TRIAL COURT ERRED IN DENYING MR. ANTHONY’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, A NEW TRIAL.
¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On February 7, 2003, Anthony and his friend, Jaquan Clemente, were picked up by Jeffrey Johnson and Johnson’s cousin, Bryant Tillis. Johnson and Tillis had allegedly come to Mendenhall to look at a Camaro and some rims that Anthony had told them about. Although the State’s version of events differs from Anthony’s version, what is undisputed is that the car, driven by Johnson and containing Anthony, Clemente, and Tillis, was driven to a remote rural area. A dispute of some kind arose, and Anthony shot Johnson once and shot Tillis twice. Johnson survived and was able to make his way to a road, where he was picked up by a passer-by and taken to a hospital for treatment. Tillis died as a result of his wounds.

¶ 4. Anthony gave two videotaped statements regarding the shooting. In the first statement, Anthony stated that he shot Johnson because Johnson had made sexual advances toward him. Anthony denied shooting Tillis at that time. In the second statement, Anthony admitting shooting both Johnson and Tillis. He stated that he shot Johnson by accident, admitted that there was no attempted sexual assault, and could give no reason as to why he shot Tillis. Anthony’s trial testimony indicated that the shooting was either an accident or was in defense of Clemente, who, according to Anthony, was being choked by Tillis. Clemente did not testify at trial, and Johnson testified that Anthony shot him and then shot Tillis while Tillis was attempting to get away from Anthony.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Waiver of Rights

¶ 6. In his first point of error, Anthony contends that the court erred in allowing his videotaped statement and Miranda warnings into evidence. The basis for Anthony’s argument is that he was confused at the time and was a minor, and therefore was unable to fully comprehend his rights.

¶ 7. The admissibility of statements made by minors has been addressed by the Mississippi Supreme Court in Dancer v. State, 721 So.2d 583 (Miss.1998). The defendant in Dancer was a thirteen-year-old who “had no prior involvement with the criminal justice system and [who] performed at a low national average on standardized achievement tests.” Id. at 586(¶ 11). The court determined that the trial court did not err in ruling that the defendant’s statement given during custodial interrogation was admissible, despite the defendant’s tender years and lower-than-average intelligence. Id. at 589(¶ 27). The Dancer court ultimately held that “an inquiry into the totality of the circumstances is necessary” to determine the admissibility of a statement given by a juvenile during custodial interrogation. Id. at 587(¶ 19) (citing Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)). The Mississippi Supreme Court noted that a court’s determination regarding a juvenile’s statement must be “manifestly in error or contrary to the overwhelming weight of the evidence” in order for us to reverse the decision of a trial court to admit the statement of a juvenile given during custodial interrogation. Id. at 588(¶ 22) (citing Foster v. State, 639 So.2d 1263, 1281 (Miss.1994)).

¶ 8. Section 43-21-151 of the Mississippi Code specifies that juveniles are entitled to the protections of youth court generally, but “[a]ny act attempted or committed by a child, which if committed by an adult would be punishable under state or federal law by life imprisonment or death, will be in the original jurisdiction of the circuit court.” Miss.Code Ann. § 43-21-151(l)(a) (Supp.2005). Therefore, the legislature has specifically elected to treat juveniles facing life imprisonment or death as adults for the purposes of prosecution. This section and Dancer, among other cases, makes it clear that juveniles in Mississippi are not afforded any additional protections during custodial interrogation.

¶ 9. In the case at bar, no motion was ever filed by the defense for a hearing on the admissibility of Anthony’s statement, although an objection was lodged by the defense during the testimony of Bernard Gunter, an investigator with the Simpson County Sheriffs Department. The court sent the jury out of the room to deal with the objection, and Anthony’s attorney was given the opportunity to voir dire Gunter concerning the voluntariness of Anthony’s Miranda waiver. The court specifically asked Anthony’s attorney, “Do you have any evidence you would like to put on, Mr. Jones?” Anthony’s attorney responded that he did not have any evidence to put on. Thereafter the objection was overruled, presumably since no evidence or argument had been provided as to why the waiver should not be admitted into evidence. Later during Gunter’s testimony, an objection was raised to the admissibility of Anthony’s second Miranda waiver, given during his second interview. Again, Anthony’s attorney was given the opportunity to voir dire Gunter. The court asked whether Anthony’s attorney had any evidence to present regarding the waiver’s admissibility, and again Anthony’s attorney responded that he had none. The court then went a step further and inquired, “Do you have any law that you can show me about minors waiving their rights?” Anthony’s attorney responded, “No, Your Honor, I do not.” Thereafter, the court overruled the objection. Anthony’s videotaped statements were later played in court, and Anthony’s attorney lodged the same objections, again without providing even a scintilla of argument or evidence as to why the statements should not be admissible.

¶ 10. When asked during direct examination, “Did you understand what you were — the Waiver of Rights — did you really understand all of that,” Anthony testified, “No, sir. I really didn’t. I didn’t — I didn’t understand it because I never had anything to talk about the law system.” However, this was the only evidence introduced indicating that there was any question as to the admissibility of Anthony’s waiver of his rights. Both of the Miranda forms that Anthony had been given were signed, indicating that his rights had been read to him and that he understood those rights. Furthermore, his grandparents were present during the first interview, and also signed the waiver. Anthony’s testimony that he did not understand the rights that he was waiving is refuted by his signing of his Miranda waiver, by his grandparents signing of his waiver, and by the testimony of Gunter, who testified that he informed Anthony of his rights and that Anthony waived those rights freely and voluntarily. Gunter also testified during the second objection that he believed that Anthony understood his rights as they had been read to him.

¶ 11. Given the record before us, it is impossible for us to say that the lower court’s determination as to the admissibility of Anthony’s waivers and statements was “manifestly in error” or “contrary to the overwhelming weight of the evidence.” Under Mississippi law, Anthony’s age at the time of the statements is not a sufficient basis for exclusion of the statements. Despite being given the opportunity to do so before the introduction of the statements, Anthony produced no evidence or argument against the admissibility of the statements and waivers. No evidence was introduced at the time to indicate that Anthony did not understand his rights. Anthony’s later testimony that he did not understand his rights is not sufficient to make the court’s determination against the overwhelming weight of the evidence. Anthony’s brief before this court even states: “The Appellant argues that it may have been legal under Mississippi law, but it was in no way right....” However, this Court must decide cases based on Mississippi law, not under what we might perceive to be “right.” Therefore, this issue is without merit.

2. Sufficiency of the Evidence

¶ 12. In reviewing the sufficiency of the evidence supporting a conviction, we will not reverse as long as “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (citations omitted). We will review the evidence in the light most favorable to the State. Id. at 843(¶ 17). The essential elements of murder are “[t]he killing of a human being without the authority of law by any means ... [wjhen done with deliberate design-” Miss.Code Ann. § 97 — 3—19(1)(a) (Supp.2005). Aggravated assault is defined as attempting “to cause or purposely or knowingly causing] bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.” Miss.Code Ann. § 97-3-7(2)(b) (Supp.2005).

¶ 13. Anthony claims that the elements of aggravated assault were not met because he “did not attempt to cause bodily injury” to Johnson. Anthony contends that the evidence “clearly show[s] that Michael and Jeffery were tussling and the gun just went off.” Anthony also argues that he “did not possess the gun.” He further argues that “Jeffery did not suffer serious bodily injury” because the doctor who treated Johnson at the hospital testified that he was not in hemodynamical distress, was talking, was moving his extremities, was not in a lot of pain, was not in shock, and had acceptable blood pressure levels. Anthony contends that the jury “simply got Count II of the Indictment wrong.” Anthony claims that the elements of murder were not proven because he did not intend to shoot Tillis, but simply wanted Tillis off of Clemente. Anthony recognizes that the jury was given an instruction regarding the elements of murder and an instruction dealing with the defense of defense of another, but maintains that “reasonable and fair-minded jurors would have found Michael not guilty had they genuinely looked at the evidence .... ”

¶ 14. We note at the outset that the jury sits as the trier of facts in evidence, and as such is “charged with the duty of judging credibility.” Jones v. State, 920 So.2d 465, 472(¶ 22) (Miss.2006) (citations omitted). As stated in Jones: “Jurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. They may believe or disbelieve, accept or reject, the utterances of any witness. No formula dictates the manner in which jurors resolve conflicting testimony into findings of fact sufficient to support their verdict.” Id. at 472-73(¶ 22) (quoting Jackson v. State, 614 So.2d 965, 972 (Miss.1993)).

¶ 15. As to the aggravated assault, the evidence did not “clearly show” that Anthony and Johnson were fighting over the gun when it went off. That version of events is what happened according to Anthony, and Anthony alone. Johnson testified that Anthony demanded money from him and then proceeded to shoot him. Johnson testified that he did not own any gun, including the gun that Anthony shot him with. Instead, Johnson’s testimony indicated that Anthony must have brought the gun in the car. Faced with two versions of what happened from two different witnesses, the jury was entitled to believe whichever of the witnesses it found most credible. The same is true of Anthony’s contention that he did not “possess” the gun. There was clearly evidence from which a reasonable and fair-minded jury could conclude that Anthony possessed the gun and shot Johnson with the gun, without any struggle between the two.

¶ 16. As to Anthony’s contention that Johnson did not suffer serious bodily injury, the statute defining aggravated assault does not require that a victim actually suffer serious bodily injury. Section 97-3-7(2) (b) makes it clear that any assault with a deadly weapon that causes any bodily injury, whether severe or not, is aggravated assault. There is no doubt that the gun that Anthony shot Johnson with qualifies as a “deadly weapon.” There is also no doubt that Johnson suffered “bodily injury,” as he had to have emergency care, spent several days in the hospital, and had to have surgery to remove the bullet that Anthony had shot him with. Anthony’s contention that the evidence was not sufficient to show “bodily injury” by use of a “deadly weapon” is without merit. Sufficient evidence of the elements of aggravated assault was produced from which a reasonable and fair-minded jury could find Anthony guilty.

¶ 17. Although Anthony presents as fact his claim that he shot Tillis only to get Tillis off Clemente, Johnson testified otherwise at trial. Johnson testified that, after he had run off, he turned to see what had happened and saw Anthony shoot Til-lis, who attempted to run away from Anthony, but whom Anthony chased and shot again. Only Anthony’s testimony indicated that he shot Tillis to get him off Clem-ente. Faced with conflicting testimony as to how and why Tillis was shot, the jury was entitled to draw its own conclusion as to which telling of the events was more credible. Having done so, this Court will not disturb the jury’s decision. There was sufficient evidence from which a reasonable and fair-minded jury could find that Anthony was guilty of all the elements of murder.

¶ 18. Anthony’s claim that the evidence below was insufficient to support his convictions for murder and aggravated assault is without merit. The court did not err in refusing to grant Anthony’s motion for a judgment notwithstanding the verdict.

3. Weight of the Evidence

¶ 19. Anthony also contends that the jury’s verdict is against the overwhelming weight of the evidence. There are limited circumstances under which a motion for a new trial, which challenges the weight of the evidence, should be granted: “Only in ‘exceptional cases in which the evidence preponderates heavily against the verdict’ should the trial court invade the province of the jury and grant a new trial.” Dilworth v. State, 909 So.2d 731, 737(¶ 21) (Miss.2005) (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000)). In order for us to reverse, “[t]he verdict must be ‘so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” Id. (quoting Bush, 895 So.2d at 844(¶ 18)). We will weigh the evidence “in the light most favorable to the verdict.” Id. (quoting Bush, 895 So.2d at 844(¶ 18)).

¶ 20. Anthony contends that minor inconsistencies in the State’s theory of the case are sufficient to show that the verdict was against the overwhelming weight of the evidence. Specifically, Anthony contends that Johnson’s testimony that Anthony and Clemente exited the two-door vehicle first even though they were seated in the back “does not make any sense.... [Johnson’s] story is simply impossible.” Anthony also questions why Johnson’s wallet and two cell phones were left in the vehicle if the assault was a robbery, as argued by the State. Anthony also contends that Johnson’s testimony is not credible because Johnson testified that he ran away some distance and then turned around to watch his cousin being murdered. Anthony argues: “Who allegedly gets shot, runs down the road, and turns around to see what was happening?” Anthony contends that Johnson’s testimony that Tillis was still in the car is not credible because “[i]f [Johnson] had just been shot, why would Tillis still be in the car?” Anthony also asserts that the jury was prejudiced by the fact that Anthony’s second videotaped statement, where he is wearing an “orange jail suit,” “put the wicked notion in the [jury’s] minds that Michael committed these crimes since he was dressed, not as someone with a presumption of innocence, but as a convicted felon.” Anthony ends by asserting that “[t]he jury simply got the whole case wrong.”

¶ 21. We find that the jury’s verdict was not against the overwhelming weight of the evidence. An eyewitness, Johnson, testified as to what happened on the day of the shooting. His general account of the events is not inconsistent with the rest of the evidence presented, except for the statements of Anthony himself on the stand. Anthony’s testimony is not sufficient to support a finding that the jury’s verdict was against the overwhelming weight of the evidence. While there are minor oddities in Johnson’s testimony, such as how Clemente and Anthony exited the vehicle while Johnson and Tillis were still seated in the front of the two-door car, none of these details provide major inconsistencies with Johnson’s testimony. The heart of Johnson’s testimony, that Anthony shot him and shot Tillis, is consistent with the rest of the evidence presented in the case. Furthermore, the jury heard all of the inconsistencies listed by Anthony, and obviously still found that Johnson’s version of events was credible. As already discussed at length, the jury sits as the judge of credibility in a criminal case, and we will not substitute our own findings as to witness credibility for those of a jury.

¶ 22. As to Anthony’s contention that the jury was swayed by his appearance on the second videotape dressed in prison garb, we note that he cites no case law or other supporting citations for the notion that any error occurred. “Failure to cite any authority is a procedural bar, and [we are] under no obligation to consider the assignment of error.” Owen v. Owen, 928 So.2d 156, 168(¶ 33) (Miss. 2006) (citing Williams v. State, 708 So.2d 1358, 1360-61(¶ 12) (Miss.1998)). Furthermore, no contemporaneous objection was made to Anthony’s appearance on the videotape when the tape was played at trial. Anthony’s failure to object at trial also procedurally bars this issue from our consideration. See Hobgood v. State, 926 So.2d 847, 851(¶ 8) (Miss.2006) (citing Robinson v. State, 585 So.2d 735, 737 (Miss. 1991)). We also note that, even if this issue were not procedurally barred, it is without merit, as Anthony was not shown wearing full garb and no handcuffs were on him in the video. Anthony was simply wearing an orange shirt, which apparently was a prison-issued shirt. Anthony was not presented to the jury as a “convicted felon.” Procedural bar notwithstanding, Anthony has failed to show any evidence that his appearance on the videotape had any impact whatsoever on the jury.

¶ 23. Given the weight of the evidence supporting Anthony’s conviction, allowing the jury’s verdict to stand in this ease does not “sanction an unconscionable injustice.” The court did not err in refusing to grant Anthony’s motion for a new trial, and Anthony’s contentions to the contrary are without merit.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF SIMPSON COUNTY OF CONVICTION IN COUNT I OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND CONVICTION IN COUNT II OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, SAID TWENTY-YEAR SENTENCE TO RUN CONCURRENTLY WITH THE LIFE SENTENCE IN COUNT I, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SIMPSON COUNTY.

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


author: BARNES, J.,

text:
    Albert WELLS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01863-COA.
    Court of Appeals of Mississippi.
    Aug. 15, 2006.
    Albert Wells, appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Albert Wells challenges the dismissal of his petition for post-conviction relief by the Circuit Court of Lowndes County. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On May 17, 2004, Wells pled guilty in the Circuit Court of Lowndes County to a charge of armed robbery. He was sentenced to serve a term of twenty-five years in the custody of the Mississippi Department of Corrections. In August of 2005, Wells filed a petition for post-conviction relief in which he asserted that his sentence was “ambiguous” because he had not been allowed to accumulate earned time and had not been given an earned release supervision date. Furthermore, Wells claimed that his sentence was ambiguous and excessive because of the disparity between his sentence and the sentence received by his co-defendant.

¶ 3. The Circuit Court of Lowndes County dismissed Wells’s petition, finding first that Wells was not entitled to earned time at all; the court found that “pursuant to section 47-7-3(l)(d)(ii) the time to be served for armed robbery is mandatory time to be served day to day.” The circuit court also held that Wells’s twenty-five year sentence was neither ambiguous nor excessive, as the maximum sentence for armed robbery is life imprisonment. Upon the dismissal of his petition for post-conviction relief, Wells perfected this appeal.

STANDARD OF REVIEW

¶ 4. This Court will reverse a trial court’s denial of post-conviction relief only upon a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct. App.2002). When reviewing issues of law, the standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss. 1999).

ISSUES AND ANALYSIS

I. WHETHER A PRISONER CONVICTED OF ARMED ROBBERY MAY ACCRUE EARNED-TIME CREDITS.

¶ 5. Section 47 — 7—3(1)(d)(ii) of the Mississippi Code Annotated (Supp.2005) states that persons convicted of the crime of armed robbery are not eligible for parole. It reads, in relevant part:

No person shall be eligible for parole who shall, on or after October 1, 1994, be convicted of robbery, attempted robbery or carjacking ... through the display of a firearm or drive-by shooting .... The provisions of this subpara-graph (d)(ii) shall also apply to any person who shall commit robbery, attempted robbery, carjacking or a drive-by shooting on or after October 1, 1994, through the display of a deadly weapon[.]

Furthermore, sections 47 — 5—138.1(2)(d) (Rev.2004) and 47-5-139(l)(e) (Rev.2004) state that trusty time and earned time, respectively, are not available to those persons convicted of armed robbery who have not “served the mandatory time for parole eligibility.” The language in these statutes reflects that once, prior to the enactment of section 47 — 7—3(l)(d)(ii), persons convicted of armed robbery could be eligible for parole after serving ten years of their sentence. However, it is clear that such felons are now completely ineligible for parole. As, pursuant to section 47-7-3(l)(d)(ii), a person convicted of armed robbery can never be eligible for parole, it follows that he may not accrue trusty or earned time pursuant to sections 47-5-138.1(2)(d) and 47 — 5—139(l)(e), respectively. It would be “an absurdity” were this Court to hold that a prisoner who is permanently ineligible for parole may be allowed to accrue earned-time credits and therefore receive the benefit of a shortened sentence. See Cooper v. State, 439 So.2d 1277, 1278 (Miss.1983). This issue is without merit.

II. WHETHER WELLS’S SENTENCE WAS EXCESSIVE.

¶ 6. Wells was charged with armed robbery pursuant to section 97-3-79 of the Mississippi Code Annotated (Rev.2000). He claims his sentence was excessive because he was sentenced to a term of twenty-five years of imprisonment upon his plea of guilty, while his co-defendant was sentenced to a term of seven years. He cites McGilvery v. State, 497 So.2d 67 (Miss.1986), in support of his argument. In that case, McGilvery was found guilty of armed robbery following a trial by jury, and sentenced to forty-five years in prison, while his co-defendant pled guilty and received a sentence of only twenty-five years. Stating that “It is absolutely impermissible that a trial judge imposing sentence enhance the sentence imposed because the defendant refused a plea bargain and put the state and the court to the trouble of trial by jury,” the supreme court remanded the case to the trial court in order to give the circuit judge the “opportunity to state for the record appropriate reasons for the disparity in the two sentences.” McGilvery, 497 So.2d at 69. In the present case, it is clear that Wells did not receive a harsher sentence because he “put the state and the court to the trouble of trial by jury”; instead, he pled guilty to the crime of armed robbery. McGilvery is simply not on point.

¶ 7. Where a defendant pleads guilty to a crime, “[sjentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Davis v. State, 723 So.2d 1197, 1199(¶ 9) (Miss.Ct.App.1998) (quoting Hoops v. State, 681 So.2d 521, 537 (Miss.1996)). “Further, the general rule in this state is that a sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute.” Hoops, 681 So.2d at 538 (quoting Fleming v. State, 604 So.2d 280, 302 (Miss.1992)).

¶ 8. Section 97-3-79 authorizes a trial court to sentence a defendant, upon his entry of a guilty plea, to a term of between three years imprisonment and less than life. Wells’s sentence of twenty-five years is within the limits provided by statute; therefore, we will not disturb the sentence on appeal. This issue is without merit.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY DISMISSING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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


author: ROBERTS, J.,

text:
    Brandon Benard KING, a/k/a Brandon Bernard King, a/k/a Brandon Renard King, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01640-COA.
    Court of Appeals of Mississippi.
    Aug. 15, 2006.

      Brandon Bernard King, Appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On December 9, 1999, the Pearl River County Grand Jury returned an indictment against Brandon Benard King. The grand jury’s indictment alleged that King took $2.00 from an individual based on a threat to whip that individual if he did not pay King $5.00 per week. With the advice of counsel, King ultimately pled guilty to robbery on May 25, 2000. The Pearl River County Circuit Court did not sentence King. Instead, the circuit court withheld adjudication of King’s guilty plea under the authority of Mississippi Code Annotated § 99-15-26 (Rev.2000) and ordered King to complete a five year period of probation incident to non-adjudication subject to certain conditions. The circuit court explained that, should King complete that five-year period of non-adjudication, King would have a clean record. This occurred on August 15, 2000.

¶ 2. On October 18, 2002, King was arrested by the Picayune Police Department for possession of a controlled substance. King was alleged to have violated the terms of his non-adjudicated probation in that King: (1) was arrested for possession of a controlled substance, (2) failed to maintain stable employment, (3) tested positive for cocaine on October 9, 2002, and (4) was $1175 in arrears regarding his obligation to pay restitution. On November 13, 2002, King went before the circuit court for a hearing on whether he violated the terms of his non-adjudication. At that hearing, King confirmed that he violated the terms of the non-adjudication agreement.

¶ 3. On November 13, 2002, the circuit court entered an “Order of Adjudication” and found that King violated the terms of his non-adjudication. As such, the circuit court found King guilty of robbery and sentenced King to fifteen years imprisonment but retained jurisdiction under the authority of Mississippi Code Annotated § 47-7-47 (Rev.2004) for up to one year, and placed King in the Regimented Inmate Discipline program. The circuit court also directed King to complete a three month drug and alcohol treatment program after he completed the Regimented Inmate Discipline program. As part of an agreement with defense counsel, the State announced that it would not pursue the possession of controlled substances charge.

¶ 4. On October 1, 2003, the circuit court filed an “Amendment to Order of Adjudication” and found that King completed the Regimented Inmate Discipline program on July 11, 2003. The circuit court also found that King was to be released from the required three month drug and alcohol treatment program on October 3, 2003. As such, the circuit court amended King’s November 13, 2002, order, suspended his fifteen years robbery sentence, and ordered that King be placed on probation for five years, again subject to certain conditions. That resentencing was authorized pursuant to the prior retention of jurisdiction under the earned probation statute detailed at Mississippi Code Annotated § 47-7-47.

¶ 5. On February 2, 2004, slightly over four months after being released from custody, the Pearl River County Sheriffs Office arrested King for sale of a controlled substance. On February 20, 2004, King executed a document entitled “Waiver of Rights to Notice and/or Waiting Period Prior to Preliminary Probation Hearing.” By that document King waived his rights “to a notice and/or any waiting period pri- or to hearing the allegations against [him] at any set date of [his] probation preliminary hearing.”

¶ 6. Also on February 20, 2004, King executed a “Waiver of Right to Preliminary Probation Revocation Hearing.” By that document, King waived his “right to have charges heard at an informal Preliminary Hearing” and all the rights that he would have had at that preliminary probation revocation hearing. Those rights included rights “to be allowed to be present, speak, present evidence, and cross-examine any witnesses against [him].” That document stated that, should King insist on his right to a preliminary probation revocation hearing, a hearing officer would determine whether there was probable cause to revoke King’s probation. Under those circumstances, if the hearing officer decided that there was probable cause to revoke King’s probation, King would be detained and a revocation hearing would be scheduled before the circuit court. However, when he executed that document, King waived his right to the administrative hearing and thereby requested “that [he] be granted a formal Revocation Hearing” before the Pearl River County Circuit Court.

¶ 7. There is no transcript of any probation revocation hearing. However, on February 20, 2004, the very same day King signed both waivers, the circuit court filed an “Order of Revocation of Probation.” Accordingly, the circuit court remanded King to the custody of the Mississippi Department of Corrections to serve his fifteen year sentence.

¶ 8. On May 8, 2005, King filed a document titled “Motion for Clarification of Sentence Order ‘Only.’ ” By his motion, King submitted that, on February 20, 2004, he appeared before the Pearl River County Circuit Court for a probation revocation hearing. King also submitted that, during that hearing, the circuit court judge stated that “this proceeding will be continued until another day because I don’t see anything in the file that shows what this probationer is charged with.” Apparently, King asked for clarification of his sentence because he had not attended a probation revocation hearing after the circuit court continued the hearing for a later date.

¶ 9. On June 3, 2005, Henderson Jones, law clerk for the Pearl River County Circuit Court, sent King a letter which stated:

By copy of this letter, the Judge’s office is instructing the Circuit Clerk of Pearl River County to file your submission entitled “Motion for Clarification of Sentence Order”, as it was found to meet the requirements of Miss.Code Ann. § 99-39-9. You are correct in challenging the revocation of your probation in an action for post-conviction collateral relief. See Miss.Code Ann. § 99 — 39—5(l)(g) (“... his probation, parole or conditional release unlawfully revoked ...”).
You should be aware, however, that pursuant to Miss.Code Ann. § 99-39-11, the Court has considered your filing and has found it to plainly appear to lack valid grounds for relief. Upon review of your claim of post-conviction relief the Court reviewed your court file, 99-K-675. Inside your court file were two documents entitled “Waiver of Right to Preliminary Probation Revocation Hearing” and “Waiver of Rights to Notice and/or Waiting Period Prior to Probation Revocation Hearing.” These two files acted together [to] waive your right to having [sic] a preliminary hearing in regard to the revocation of your probation. Please examine the attached documents that are referred to. The documents that you signed clearly outline the rights that you gave up.
Your reference to the Judge’s alleged statement at your February 20, 2004 revocation hearing, “this proceeding will be continued until another day because I don’t see anything in the file that shows what this probationer is charged with”, has no bearing on the effect of the Order of Revocation of Probation that he signed on that same day. The forms mention [sic] above that you signed on February 20, 2004, waived any notice or right to a preliminary hearing. Signing those forms meant that the Court could order the revocation of your probation at any time thereafter.
An order summarily dismissing your petition for post-conviction collateral relief entitled “Motion for Clarification of Sentence Order” is forthcoming and will be delivered to you.

¶ 10. On July 1, 2005, the circuit court entered an order and found that King’s motion for clarification of sentence was a petition for post-conviction collateral relief. The circuit court also found that King “asserted a violation of his rights based upon the revocation of his probation and the lack of a hearing on the matter.” According to the circuit court, King’s “Waiver of Right to Preliminary Probation Revocation Hearing” and “Waiver of Rights to Notice and/or Waiting Period Prior to Probation Revocation Hearing” acted together to waive King’s right to a “preliminary hearing in regard to the revocation of his probation.” As such, the circuit court dismissed King’s motion for clarification.

¶ 11. On July 11, 2005, King filed a “Motion for New Trial: Amendment of Judgment Pursuant to MRCP 59(a)(c) & (e).” King requested that the circuit court set aside the revocation of his probation and reinstate his probation. The circuit court denied King’s motion on August 5, 2005. King filed a notice of appeal oh August 16, 2005.

¶ 12. On appeal, King submits that the circuit court erred when it (a) dismissed his motion without benefit of an evidentia-ry hearing, (b) revoked his probation “without first addressing [him] personally,” and (c) when it did not transcribe the probation revocation proceedings.

STANDARD OF REVIEW

¶ 13. “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.” Gatewood v. State, 909 So.2d 754(¶ 3) (Miss.Ct.App.2005). “However, where questions of law are raised the applicable standard of review is de novo.” Id.

ANALYSIS

¶ 14. There is no question that King has experienced extraordinary leniency from the circuit court. After King threatened to whip a fifteen-year-old, whom King designated as his “white boy,” unless he paid King $5.00 per week, and then took $2.00 from that young man under threat, the circuit court placed King on non-adjudicated probation. Non-adjudicated probation is not available to those who commit crimes against a person. Miss.Code Ann. § 99-15-26 (Rev.2000). Under Mississippi Code Annotated § 97-3-77 (Rev.2000), robbery is a crime against a person. When King was arrested for possession of a controlled substance, he violated the terms of that probation. As such, the circuit court retained jurisdiction under Section 47-7-47 and placed King in the Regimented Inmate Discipline program. In less than a year, King completed the regimented inmate discipline program and three months of drug and alcohol treatment. Accordingly, the circuit court gave King a third chance, suspended his fifteen year sentence, and placed him on probation for five years. Slightly more than four months after King was placed on probation, he was arrested because he, again, allegedly violated the narcotics laws; this time by selling controlled substances.

¶ 15. Though King does not explicitly state such in his initial brief, it appears that King complains that the circuit court erred when it revoked his probation in his absence. In any event, this Court takes King’s pro se status into account so that any meritorious claim is not lost simply due to inartful drafting. Gatewood, 909 So.2d at (¶ 4).

¶ 16. The United States Supreme Court set forth the minimum due process requirements applicable to probation revocation hearings in Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Payton v. State, 845 So.2d 713(¶ 22) (Miss.Ct.App.2003). Mississippi Code Annotated § 47-7-37 (Rev.2004) incorporates the due process requirements set forth in Gagnon. Payton, 845 So.2d at (¶ 22).

These requirements are: (1) written notice of the claimed violations of probation; (2) disclosure to the probationer of the evidence against him; (3) 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 confrontations); (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.

Id.

¶ 17. As for an indigent’s right to have counsel provided for him at a probation revocation hearing, “there is no automatic right to counsel at hearings for the revocation of probation.” Baldwin v. State, 891 So.2d 274(¶ 12) (Miss.Ct.App. 2004) (citing Riely v. State, 562 So.2d 1206, 1209 (Miss.1990)). “Whether probationers have a right to counsel must be answered ‘on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system.’ ” Riely, 562 So.2d at 1209 (quoting Gagnon, 411 U.S. at 790, 93 S.Ct. 1756). “Because the ‘facts and circumstances in [revocation] hearings are susceptible of almost infinite variation,’ the United States Supreme Court opined that ‘[i]t is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines’ for determining when counsel must be provided in order to meet due process requirements.” Id. Still, it is clear that “[a] probationer has the right to appointed counsel at a revocation hearing when the issues are complex or otherwise difficult to develop.” Id. “Finally, ‘[i]n every case in which a request for counsel at a ... hearing is refused, the grounds for refusal should be stated succinctly in the record.’ ” Id.

¶ 18. The clear question is whether the circuit court afforded King his due process rights to an opportunity to be heard in person and the right to confront and cross-examine adverse witnesses. According to the circuit court, in both Henderson Jones’s letter to King and the circuit court’s July 1, 2005 order, “King’s “Waiver of Right to Preliminary Probation Revocation Hearing’ and ‘Waiver of Rights to Notice and/or Waiting Period Prior to Probation Revocation Hearing’ acted together to waive King’s right to a ‘preliminary hearing in regard to the revocation of his probation.’ ” We disagree. King’s right to a preliminary probation revocation hearing is not at issue. Rather, at issue is King’s right to be present at his actual probation revocation hearing. It appears that these waivers were an effort to provide King those protections mandated by the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 487-88, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon. See also Rusche v. State, 813 So.2d 787(¶ 7) (Miss.Ct.App.2002) (holding that Morrissey and Gagnon “require both (a) a preliminary proceeding, in the nature of a probable cause hearing, to be held promptly after a probationer is detained for an alleged parole or probation violation, and (b) a more formal final revocation hearing.”)

¶ 19. True enough, King waived his right to a preliminary revocation hearing. In so doing, King did not waive his right to be present at a formal probation revocation hearing. King’s waiver stated that he would receive a revocation hearing before the circuit court. King also waived his right to notice of the preliminary probation hearing. Regardless, it is clear that the preliminary probation revocation hearing and the actual probation revocation hearing are two separate processes. King’s waiver of preliminary probation hearing, in effect, acted as King’s stipulation that there existed probable cause for revocation of his probation that justified his continued detention until an actual revocation hearing and that he elected to proceed directly to the probation revocation hearing before the circuit court. That King waived his right to the administrative hearing had no bearing on his right to be present at the final revocation hearing. Likewise, King’s waiver of notice of the preliminary hearing had no bearing on his right to be present at the final revocation hearing.

¶ 20. It appears that King was present at the initial probation revocation hearing and that the circuit court continued that hearing because the circuit court judge did not “see anything in the file that shows what [King was] charged with.” However, the circuit court revoked King’s probation that same day. We have no transcript of King’s probation revocation hearing. We are unable to definitively state that King was or was not present when the circuit court revoked King’s probation. We think an evidentiary hearing is necessary to resolve that question. Because the circuit court summarily dismissed King’s petition for post-conviction collateral relief without conducting an evi-dentiary hearing, we remand this matter for such a hearing. This opinion should not be construed in any way as to suggest a particular outcome of that hearing. Suffice it to say, however, that King has established enough to prohibit summary dismissal under Mississippi Code Annotated § 99-39-11(2) (Rev.2000), to require the State to file an answer, and to proceed to an evidentiary hearing.

¶ 21. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT OF DENIAL OF POST-CONVICTION RELIEF IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

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

      . King claims in his reply brief that he did not commit any sale of controlled substances and that the charge was later dropped.