author: ROBERTS, J.,

text:
    Lyndell CARTER, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01836-COA.
    Court of Appeals of Mississippi.
    Aug. 21, 2007.

      Bernard C. Jones, Jackson, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before KING, C.J., GRIFFIS, BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

STATEMENT OF THE CASE

¶ 1. At the conclusion of a month-long sale in July 2001 at Kirk Auto Group in Grenada, Mississippi,- it was discovered that two of the dealerships automobiles were missing. While one vehicle would be located shortly after it disappeared, a silver 1999 Ford Expedition remained lost, and Kirk Auto reported it stolen. Approximately two years later the Expedition was found. Lyndell Carter’s then-girlfriend was driving the Expedition when it was involved in a wreck. Inquiry at the scene led to the discovery that the vehicle had been reported stolen. Subsequent investigation revealed that Carter had taken the Expedition during Kirk Auto’s summer sale. Carter was then indicted, tried, convicted, and sentenced on the crime of motor vehicle theft. Aggrieved by this, he now appeals. Finding no error, we affirm.

FACTS

¶ 2. In July 2001, Kirk Auto conducted its annual summer sale. Prior to the sale, Jeff Counts, a manager at Kirk Auto, prepared the dealership by checking and accounting for those vehicles in inventory and placing the keys to each in the vehicles. Following the sale, Counts again conducted an inventory of Kirk Auto’s lot and discovered two vehicles were missing. A silver 1999 Ford Expedition and a silver 1999 Mercury Sable were unaccounted for. Over the next week Counts questioned Kirk Auto employees and owners as to the possible whereabouts of the automobiles, but to no avail. When they could not be located, Counts reported the two vehicles stolen. Both vehicles were listed as stolen in the National Crime Information Center (NCIC) database. Soon after, on July 20, 2001, the Sable was found. However, the Expedition remained missing, and Kirk Auto would eventually be compensated for the loss of the vehicle through a claim with its insurance carrier.

¶ 3. On June 23, 2003, the 1999 Expedition was found. Tonya Weathersby, Carter’s then girlfriend, was involved in a wreck in West, Mississippi while driving the Expedition. Officer Chad Smith was sent to investigate the accident. Once at the scene, Officer Smith ran the number of the tag on the Expedition and discovered that the tag had been issued for a red 1999 Dodge Ram truck. Weathersby was subsequently ticketed for switching the tag and for her failure to produce proof of insurance. Officer Smith then ran the Expedition’s vehicle identification number, and he was informed that the vehicle had been reported stolen. At this point Weathersby was taken to the West Police Station for questioning. However, while Officer Smith was parking his vehicle, Weathersby left the station.

¶4. On June 24, 2003, Carter returned to Kirk Auto and claimed that he wanted to complete the purchase of the Expedition. He claimed that Counts gave him the keys to the vehicle with the expectation that Carter would return at some later time and purchase the vehicle. Counts denied this, explaining that he would never allow someone to use a Kirk Auto vehicle for two years without paying for it. Following an investigation of the matter, Carter was indicted on the theft of the Expedition. Additional facts will be discussed as needed below.

PROCEDURAL HISTORY

¶ 5. On June 29, 2004, the grand jury of Grenada County returned an indictment against Carter for the crime of motor vehicle theft in violation of Mississippi Code Annotated Section 97-17-42. Following Carter’s arraignment, he entered a plea of not guilty, and a trial was set for August 9, 2004, in the Circuit Court of Grenada County. At the request of Carter’s counsel, the trial was continued until January 25, 2005, and at its conclusion the jury was unable to agree on a verdict. Subsequently, a mistrial was declared by order of the circuit court filed June 9, 2005. By agreed order filed May 25, 2005, a second trial was scheduled for August 4, 2005. Following a presentation of the evidence and argument, Carter was found guilty. By judgment filed August 25, 2005, he was sentenced to serve a term of five years in the custody of the Mississippi Department of Corrections (MDOC) with four years suspended and one to serve. Additionally, the circuit court authorized the MDOC to place Carter in the Intensive Supervision Program of the MDOC for one year and, upon his release, ordered that Carter be placed on one year of supervised probation. Lastly, Carter was ordered to pay a fine of $1,000 and all court costs, fees, and assessments in the cause within eighteen months of the judgment. Carter then filed a motion for new trial on August 25, 2005. Among other assignments of error, Carter argued that the jury’s verdict was against the overwhelming weight of the evidence. Carter’s motion was denied. From the circuit court’s judgment of' August 25, 2005, and subsequent order overruling his motion for new trial, Carter timely appealed.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN DENYING CARTER’S MOTIONS FOR DIRECTED VERDICT, JUDGMENT NOTWITHSTANDING THE VERDICT, AND NEW TRIAL.

A. Motion for New Trial

¶ 6. An appellate court will only reverse a trial court’s denial of a motion for new trial when it amounts to an abuse of discretion. Ivy v. State, 949 So.2d 748(¶ 21) (Miss.2007). Furthermore,

[w]hen reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. We have stated that on a motion for new trial, the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, “unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Id. (quoting Bush v. State, 895 So.2d 836(¶ 18) (Miss.2005) (internal citations omitted)).

¶7. After examining the vehicle’s title and explaining Kirk Auto’s system of tracking its vehicles, Counts stated that the Expedition was the property of Kirk Auto at the time of the theft. Counts testified that when he discovered the Expedition missing from the lot he asked everyone at Kirk Auto if they knew the whereabouts of the vehicle, but he did not locate it. However, on cross-examination Counts stated he did not ask Calvin Lawson, a Kirk Aut'o employee who primarily washed vehicles when they sold. Despite Carter’s claims to the contrary, Counts testified that he never authorized Carter to take or use the Expedition. The owners of Kirk Auto also testified that they did not give Carter permission to take or use the Expedition. During interviews throughout the investigation, Carter stated that the tag on the Expedition at the time of the accident was in the back seat when he took possession of the vehicle. However, Counts stated that any tag on the vehicle when it was acquired by Kirk Auto would have been either discarded by the dealership or taken by the previous owner. Counts further testified that Carter came to his office on June 24, 2003, and asked to complete the purchase of the Expedition. He again stated that he did not have any knowledge that Carter had the vehicle. Counts then stated that Carter came to his home at 11:00 p.m. sometime after June 24, 2003, and asked Counts to “tell the truth ... to say [Counts] gave him the key and let it all go away.”

¶ 8. Officer Smith testified that on June 23, 2003, when Weathersby was driving the Expedition and was involved in the accident in West, Mississippi, the number of the tag on the Expedition was F520WT. When he ran this tag number he determined that it was assigned to a red pick-up truck. Additionally, when Officer Smith ran the VIN of the Expedition he was informed that it had been reported stolen. However, on cross-examination he confirmed that an NCIC report listed the Expedition as recovered on July 20, 2001.

¶ 9. Detective Donald King with the Grenada Police Department testified that he visited Kirk Auto on July 20, 2001, to follow up on a report that one of the vehicles that was missing had been found. When he arrived, he was informed that the 1999 Mercury Sable had been located, but that the Expedition was still missing. During the trial, Detective King was shown a copy of the NCIC report which indicated that the Expedition had been found, and it listed Detective King as the individual who confirmed this information. He testified that this information was incorrect, and he did not provide that information. He concluded that his report detailing the July 20, 2001 discovery of the 1999 Mercury Sable was misread by the individual who updated the NCIC report.

¶ 10. Mike Poe, a business manager at Sunset Chrysler in Grenada, testified that in 1999 Carter leased a red 1999 Dodge Ram in the name of R.L. Robinson, a partner in a business Carter was involved with. He stated that Carter asked that the lease of the red pick-up be in his partner’s name. Poe testified that in order to lease through Chrysler they must receive a copy of the tag receipt for the vehicle. He further stated that the number of the tag assigned to the red 1999 Dodge Ram was F520WT. Poe then testified that in July 2001, at the request of Chrysler, Carter returned the 1999 Dodge Ram to Sunset. According to Poe’s testimony, when Carter returned the pick-up truck he took the tag with him.

¶ 11. Lawson testified that during Kirk Auto’s summer sale in July 2001, Carter drove the Expedition to the wash rack located at the back of the dealership lot. Lawson stated that Carter told him Counts wanted the Expedition washed. Lawson testified that he washed the vehicle and noticed that there was no tag on the Expedition. Lawson stated that once he finished washing the vehicle Carter drove off out the back gate.

¶ 12. Milton Williams, an investigator with the Mississippi Bureau of Investigation, testified that he was asked to investigate the disappearance and reappearance of the Expedition. He stated that at the close of his investigation, his conclusion was that Carter stole the Expedition. Williams testified, that during an interview with Carter, Carter stated that he had possession of the Expedition since 2001. According to Williams, Carter also stated that the tag on the Expedition at the time of the June 23, 2003 accident was in the back of the vehicle when he got it from Kirk Auto.

¶ 13. Byron Davis testified on behalf of Carter. Davis stated that he accompanied Carter in 2002 when Carter went to Kirk Auto and picked up a silver Expedition. Davis testified that “[Counts] handed him the keys.” He stated that after Counts gave Carter the keys, he told Carter it had already been washed and cleaned. Davis continued that at this point he left in the vehicle the two arrived in, and Carter followed soon after.

¶ 14. Carter was convicted of violation of Mississippi Code Annotated section 97-17-42, which makes it unlawful for “[a]ny person ... [to], willfully and without authority, take possession of or take away a motor vehicle belonging to another.... ” Miss.Code Ann. § 97-17-42(1) (Rev.2006). Viewing the evidence in a light most favorable to the verdict, we cannot say that to allow it to stand would amount to an unconscionable injustice. The testimony detailed above places Carter in the stolen Expedition during the 2001 summer sale and establishes that he drove the vehicle off the Kirk Auto lot in early to mid July 2001 without the authority to do so. Additionally, while Carter stated during his interview with Williams that the car tag on the Expedition was in the back of the vehicle when he took possession, the testimony shows that Carter did not find the tag in the back of the Expedition, but used the car tag from the leased 1999 Dodge Ram he was required to return in July 2001. While Carter claimed during interviews that Counts gave him permission to use the Expedition, and this version of events was corroborated by the testimony of Davis, the jury is the final judge of a witness’s credibility. Ivy, 949 So.2d at (¶ 19). As the supreme court stated in Ivy, “[m]atters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury.” Id. (citing Spicer v. State, 921 So.2d 292(¶ 38) (Miss.2006)). As such, we cannot say the trial court abused its discretion in denying Carter’s motion for new trial as the verdict was not against the overwhelming weight of the evidence. This issue is without merit.

B. Motions for Directed Verdict and Judgment Notwithstanding the Verdict

¶ 15. This Court’s review of the denial of a motion for directed verdict, or of a motion for JNOV, is reviewed de novo. White v. Stewman, 932 So.2d 27(¶ 10) (Miss.2006). Unlike a motion for new trial, these challenge the sufficiency of the evidence rather than the weight. Id. at (¶¶ 10-11, 16). The critical inquiry in determining whether the evidence presented is sufficient to sustain a conviction is whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Ivy, 949 So.2d at (¶ 15). However, a reviewing court is not required to

“ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant question is 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.

Bush v. State, 895 So.2d 836(¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560, (1979) (citations omitted)).

¶ 16. After reviewing the evidence presented at trial in the light most favorable to the prosecution, we cannot say that the evidence failed to establish the existence of every element of the crime with which Carter was charged. Without restating the facts detailed above, the evidence was sufficient for a jury to conclude beyond a reasonable doubt that Carter took the Expedition, which belonged to Kirk Auto, without authority or permission to do so. As such, this issue is without merit.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF GRENADA COUNTY OF CONVICTION OF MOTOR VEHICLE THEFT AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FOUR YEARS SUSPENDED AND ONE YEAR TO SERVE AND FINE OF $1000.00 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Derrell R. NETTERVILLE, Appellant v. WEYERHAEUSER COMPANY, Appellee.
    No. 2006-CP-01785-COA.
    Court of Appeals of Mississippi.
    Aug. 21, 2007.

      Derrell R. Netterville, Appellant, pro se.
    John T. Armstrong, Hazlehurst, attorney for appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. This is an appeal challenging the validity of a judgment entered by the Lawrence County Chancery Court, dismissing with prejudice the complaint of the appellant, Derrell R. Netterville. On appeal, Netterville argues that the judgment of the chancery court is void and seeks a determination of the current state of the law in Mississippi regarding void judgments. Finding no error, we affirm the dismissal of the motion to vacate.

FACTS

¶ 2. In May 1999, Netterville filed a pro se action of ejectment in the Lawrence County Chancery Court seeking to eject the Weyerhaeuser Company from land to which Weyerhaeuser holds title in Lawrence County, Mississippi. Weyerhaeuser answered the complaint and filed a counterclaim against Netterville. Netterville then filed a notice of removal of the action to the United States District Court for the Southern District of Mississippi. The district court remanded the matter to the Lawrence County Chancery Court, stating numerous problems with the removal.

¶ 3. On December 16, 1999, the chancery court held a hearing and received both oral and documentary evidence concerning the matters presented. On the following day, the chancellor entered a final judgment. The chancellor found the following: that the court had both personal and subject matter jurisdiction, that Netterville had no record title to the property nor did he have any actual or constructive possession, that Weyerhaeuser was the record title owner of the subject land based upon an examination of the title history extending back to the original patent, that Weyer-haeuser’s possession and use of the property satisfied the statutory requirements to satisfy ownership by adverse possession, and that Netterville willfully, intentionally, and outrageously attempted to cloud title to the property by filing documents in the Lawrence County land records purporting to claim ownership of the property.

¶ 4. Based upon these findings, the chancellor dismissed with prejudice Net-terville’s complaint, confirmed title to Weyerhaeuser against Netterville, awarded Weyerhaeuser actual damages in the amount of $3,000, attorney’s fees in the amount of $7,500, and punitive damages in the amount of $100,000 due to the nature of Netterville’s actions. The final judgment of the chancellor was entered on December 16, 1999. Netterville never appealed this judgment.

¶ 5. On June 26, 2006, Netterville filed a motion in the Lawrence County Chancery Court to vacate the final judgment entered against him some six and one-half years before. Weyerhaeuser responded and filed a motion to dismiss Netterville’s motion to vacate, claiming that any relief sought was barred by res judicata. The chancery court held a hearing on the matter.

¶ 6. On September 11, 2006, the chancellor granted Weyerhaeuser’s motion to dismiss. The chancellor found that Netter-ville’s motion to vacate was an attempt to relitigate the previously determined matter. As such, the chancellor concluded that Netterville’s motion should be dismissed. The chancellor found that no grounds for relief were present under Mississippi Rule of Civil Procedure 60. Aggrieved by the dismissal of his motion to vacate, Netterville appeals. His appeal has been assigned to this Court.

DISCUSSION

¶ 7. Netterville presents for review the issue of whether “by rulings and determinations of the Supreme Court of Mississippi or through Legislative Act, have voided Mississippi’s law regarding void judgments?” Netterville argues that this is the sole issue before this Court, and that this Court is “deprived of subject matter jurisdiction to reach the underlying questions regarding land titles.” Netterville challenges the subject matter jurisdiction of the chancery court to rule against him.

¶ 8. Netterville’s motion to vacate the judgment of the chancery court was made pursuant to Rule 60(b)(4). A motion alleging that a judgment is void “shall be made within a reasonable time.” M.R.C.P. 60(b). Allegations that a judgment is void for lack of subject matter jurisdiction pursuant to Rule 12(h)(3) are made pursuant to Rule 60(b)(4). See M.R.C.P. 12 cmt. The comment to Rule 12 states in part:

Under Rule 12(h)(3) a question of subject matter jurisdiction may be presented at any time, either by motion or answer. Further, it may be asserted as a motion for relief from a final judgment under M.R.C.P. 60(b)(4) or may be presented for the first time on appeal.

Post-judgment time limits pursuant to the rules of procedure are both mandatory and jurisdictional. Telford v. Aloway, 530 So.2d 179, 181 (Miss.1988). Whether a Rule 60(b) motion is made within a reasonable time is considered on a case by case basis. Cucos, Inc. v. McDaniel, 938 So.2d 238, 245(¶ 22) (Miss.2006). Rule 60(b) motions that are an attempt to relitigate the previously decided case should be denied. Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984). The remedy provided under Rule 60(b) “is not a means for those who had procedural opportunity for remedy under other rules and faded, without cause, to pursue such avenues.” R.K. v. J.K., 946 So.2d 764, 776(¶ 35) (Miss.2007). We review the denial of a request for relief pursuant to Rule 60 for abuse of discretion. Id. Considerations for determining a motion for relief pursuant to Rule 60(b) include:

(1) that final judgments should not be lightly disturbed; (2) that the Rule 60(b) motion is not to be used as a substitute for appeal; (3) that the rule should be liberally construed in order to achieve substantial justice; (4) whether the motion was made within a reasonable time; (5) [relevant only to default judgments]; (6) whether if the judgment was rendered after a trial on the merits the movant had a fair opportunity to present his claim or defense; (7) whether there are any intervening equities that would make it inequitable to grant relief; and (8) any other factors relevant to the justice of the judgment under attack.

Id. (citation omitted).

¶ 9. This Court is inclined to dismiss Netterville’s appeal as untimely because he delayed over six years in filing his motion seeking relief. Netterville never appealed the decision of the chancery court. He advances no reason for his failing to appeal the judgment of the chancery court, or why he has failed to file his Rule 60(b) motion for over six years. He argues only that there is no time limit to challenge the jurisdiction of a court to decide a matter.

¶ 10. We note that “even if jurisdiction is problematic, once a chancery court makes a final judgment on the merits of the case, this Court may not reverse that finding without finding an error in addition to lack of subject matter jurisdiction.” Graves v. Dudley Maples, L.P., 950 So.2d 1017, 1022(¶ 22) (Miss.2007) (citation omitted); Miss. Const. art. 6, § 147. Al though an allegation that a court was without subject matter jurisdiction to hear a matter may be raised at any time, “no justifiable basis exists for arguing that a chancery court does not have jurisdiction over matters involving property,” because “such authority is conferred by our constitution, history, and precedent.” Graves, 950 So.2d at 1022(¶ 22) (citing Miss. Const. art. 6, § 160). The Lawrence County Chancery Court had subject matter jurisdiction to hear the matter concerning the subject property in Lawrence County.

¶ 11. Netterville has failed to provide any reason for taking more than six years to file his motion for relief. He failed to utilize the other remedies available to him, such as filing a timely appeal from the judgment. His brief demonstrates that he seeks only to relitigate the matters previously decided. For these reasons, we conclude that the chancellor did not commit an abuse of discretion in denying Netterville’s Rule 60(b) motion. Due to the curious argument advanced by Netterville and the far reaching consequences his assertions carry, we briefly address the error of his claim.

¶ 12. The argument Netterville advanced in 1999, and which he continues to advance in his appellate brief, is that a land patent from the United States government cannot be deeded away. He argues that a United States patent of land ownership endures forever absent defea-sance by a tax-forfeiture. Netterville does not challenge the deeds to the subject property, but argues that they could only create a lease of the property. Netterville claims to be a descendant of the original patentee of the property. He claims ownership of the property and seeks lease payments from the record title owner, Weyerhaeuser.

¶ 13. Netterville filed his original claim in 1999 as an action of ejectment. In an action of ejectment:

the complainant must show title in himself from the government down, or he must show title by adverse possession, actual or constructive, for the statutory period, or he must show title from the defendant, or that both derive their claim from a common source, and that his is the better title from that source. Under the law of the State of Mississippi it is the thing itself, the land, not the owner of it, not the person, which is taxed; and, when the thing is not relieved of the burden of the tax which the state has saddled on it, the thing is sold to do this, and the purchaser is clothed with all the rights of the state, and no more than the state may he be annoyed by mere intermeddlers. The party attacking must show a right to make the attack, and cannot rest on the mere fact that the land was assessed to him when sold. Assessments of lands describing the wrong person as owner are too common to admit this in proving a common source. Neither can a complainant rely, as superadded to this, on the mere fact that he had a deed from some person to him, without showing the further fact that there was title in such person, or some privity of estate between defendant and that person.

Long v. Stanley, 79 Miss. 298, 300-01, 30 So. 823 (1901) (emphasis added). Mississippi courts still apply this standard today. This Court has recently restated the rule in Long that “a plaintiffs deraignment must show: ‘title in himself from the government down, or he must show title by adverse possession ... or he must show title from the defendant, or that both derive their claim from a common source, and that his is the better title from that source.’ ” Crosswhite v. Golmon, 939 So.2d 831, 834(¶ 12) n. 1 (Miss.Ct.App.2006) (quoting Long, 79 Miss. 298, 300-01, 30 So. at 823); see also Miss.Code Ann. § 11-17-35 (Rev.2004) (requiring a plaintiff to deraign his title when attempting to confirm title or remove a cloud on title).

¶ 14. As in Long, Netterville’s complaint “does not even aver that [he or his grantor] ever had any possession of the land, or that [his grantor] ever had any title, either actual or colorable.” Long, 79 Miss. at 301, 30 So. at 823. Were we addressing the merits of Netterville’s claim, for this reason alone, his complaint would fail. Other problems are also apparent in Netterville’s claim. See Kuhn v. Gabriel Cemetery Assoc., 202 So.2d 634, 636 (Miss.1967) (stating “all that is required of a deraignment of title based upon adverse possession is a showing of the divestiture of title from the sovereign and, thereafter, adverse possession for the requisite time”). In the phraseology of the supreme court in Long, Weyerhaeuser is protected from being “annoyed by mere intermeddlers....” Long, 79 Miss. at 301, 30 So. at 823.

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

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


text:
    Joey W. CARROLL, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01204-COA.
    Court of Appeals of Mississippi.
    Aug. 21, 2007.
    Joey W. Carroll, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Joey Carroll was convicted of selling methamphetamine by entering a plea of guilty in the Pontotoc County Circuit Court. In his motion for post-conviction relief, he argues that the indictment was invalid, his plea was invalid, ineffective assistance of counsel, and prosecutorial misconduct. Finding no error, we affirm the denial of Carroll’s motion for post-conviction relief.

FACTS

¶2. On February 2, 2004, a Pontotoc County grand jury indicted Carroll for the crime of selling methamphetamine. Miss. Code Ann. § 41-29-139(a)(l) (Rev.2005). On June 10, 2005, Carroll entered a plea of guilty to this charge. He was sentenced to thirty years imprisonment, with twenty years suspended, leaving ten years to serve. Carroll has filed various motions after being incarcerated. On June 26, 2006, the circuit court denied Carroll’s motion for post-conviction relief. Carroll appeals the denial of his motion. His appeal has been assigned to this Court.

DISCUSSION

1. Validity of Indictment

¶ 3. Carroll argues that his indictment did not meet the statutory requirements for validity. Miss.Code Ann. § 99-7-9 (Rev.2000). His specific concerns include: that the record does not show the minutes of the grand jury, that the indictment is not stamped “filed,” that there is no proof of the number of present jurors, and that there was no sworn oath by the foreman of the grand jury. He relies on case law to conclude that the circuit court was without jurisdiction to accept his plea, and that these errors require that his conviction and sentence be vacated. Jackson v. State, 377 So.2d 1060, 1061-63 (Miss.1979) (validity of an indictment evidenced without accompanying affidavit of foreman); Stanford v. State, 76 Miss. 257, 24 So. 536 (1898) (holding the marking of the indictment filed, dating it, and signing the entries on it by the clerk, are made, by Section 1346 of the Code of 1892, the exclusive legal evidence of the finding and presentation of the indictment); Pond v. State, 47 Miss. 39, 44 (1872) (holding that a record failing to show the presentation in court by the grand jury of an indictment found by them, will be fatally defective).

¶ 4. The relevant portion of Section 99-7-9 states:

All indictments and the report of the grand jury must be presented to the clerk of the circuit court by the foreman of the grand jury or by a member of such jury designated by the foreman, with the foreman’s name endorsed thereon, accompanied by his affidavit that all indictments were concurred in by twelve (12) or more members of the jury and that at least fifteen (15) were present during all deliberations, and must be marked “filed,” and such entry be dated and signed by the clerk. It shall not be required that the body of the grand jury be present and the roll called. An entry on the minutes of the court of the finding or presenting of an indictment shall not be necessary or made, but the endorsement by the foreman, together with the marking, dating, and signing by the clerk shall be the legal evidence of the finding and presenting to the court of the indictment.

Miss.Code Ann. § 99-7-9 (Rev.2000) (emphasis added).

¶ 5. The Mississippi Supreme Court has held that the “legal evidence of the concurrence of twelve or more of the grand jurors in finding and presenting the indictment is fully established by the signing thereof on the part of the foreman and the marking of it ‘filed’ by the clerk of the court.” Morris v. State, 767 So.2d 255, 258-59(¶ 7) (Miss.Ct.App.2000) (overruled in part on other grounds) (quoting McCor mick v. State, 377 So.2d 1070, 1074 (Miss.1979)); see also Temple v. State, 165 Miss. 798, 145 So. 749, 751 (1933) (a much earlier holding that an indictment was valid where signed by the grand jury foreman, as well as having been marked, dated, and signed by the clerk); Westbrook v. State, 928 So.2d 186, 188-89 (¶¶ 10-13) (Miss.Ct.App.2007) (a very recent application of this case law).

¶ 6. In the present case, Carroll’s indictment was signed by the foreman of the grand jury, stamped “filed,” and marked, dated and signed by the clerk. In addition, as we later discuss, Carroll entered a valid guilty plea. As such, all non-jurisdictional defects in the indictment were waived. Roby v. State, 861 So.2d 368, 371(¶ 11) (Miss.Ct.App.2003) (citing Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990)). Lack of an accompanying affidavit from the grand jury foreman is a non-jurisdictional defect. Chandler v. State, 883 So.2d 614, 615-16(¶ 5) (Miss.Ct.App.2004). Also, Carroll’s argument must fail as he fails to even allege any prejudice resulted due to the alleged defects in the indictment. Id. The issue is wholly without merit.

2. Validity of Plea

¶ 7. Carroll argues that his plea is invalid because counsel coerced him into entering a guilty plea. Carroll argues that his plea was involuntary because counsel never informed him of his constitutional right to be indicted by a grand jury. He cites case law in concluding that his guilty plea and sentence should be vacated. Courtney v. State, 704 So.2d 1352, 1359(¶ 28) (Miss.1997) (holding a guilty plea invalid where the defendant was not informed of constitutional rights); Wilson v. State, 577 So.2d 394, 397-98 (Miss.1991) (holding that an evidentiary hearing was warranted where the record was inadequate for a determination on whether the defendant’s guilty plea was valid).

¶ 8. A guilty plea is valid where it is entered into “voluntarily, knowingly, and intelligently, “with sufficient awareness of the relevant circumstances and likely consequences.’” Bradshaw v. Stumpf, 545 U.S. 175, 183, 125 S.Ct. 2398, 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)).

¶ 9. As is evident from Carroll’s argument, the claim of an invalid plea is based upon the assumption of an invalid indictment. Carroll’s own statements in his appellate brief demonstrate that he was properly informed of the sentence he could receive from entering a guilty plea. He makes no argument that he was otherwise uninformed of the circumstances and likely consequences of entering his guilty plea. The transcript of the plea hearing was not included as part of the record. However, the order of the trial court reflects that a transcript of the hearing was reviewed. Based upon that review, the trial court determined that Carroll’s assertions were without merit because they were belied by evidence in the transcript. This is sufficient to conclude that Carroll’s guilty plea was valid.

3. Effectiveness of Counsel

¶ 10. Carroll argues that the performance of his counsel was constitutionally deficient. He states in his brief that counsel was hired, not court appointed. Carroll advances a number of arguments he claims will demonstrate how he received ineffective assistance of counsel, including: counsel failed to discover Carroll’s indictment was defective, recommended entering a guilty plea where there was a defective indictment, failed to move to quash the defective indictment, failed to interview potential witnesses, failed to notify Carroll about the right to a speedy trial, and failed to adequately prepare for trial because counsel did not discover the defective indictment.

¶ 11. We review Carroll’s argument under a two-part inquiry of whether counsel’s performance was deficient, and whether that deficiency resulted in prejudice to him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This first part of this analysis remains the same when reviewing a guilty plea. Hannah v. State, 943 So.2d 20, 24(¶ 7) (Miss.2006). In the context of a guilty plea, the focus of the second part of this inquiry is on whether Carroll has shown that there is a reasonable probability that, but for the errors of his counsel, he would not have entered a guilty plea, would have insisted on going to trial, and that the outcome would have been different. Id. We consider the “totality of the circumstances” in deciding if counsel’s actions were deficient. Swington v. State, 742 So.2d 1106, 1114(¶ 22) (Miss.1999) (citation omitted). We note, however, that Carroll had a constitutional right to effective counsel, not errorless counsel. Branch v. State, 882 So.2d 36, 52(¶ 26) (Miss.2004).

¶ 12. We do not address Carroll’s arguments that are based upon his assumption that his indictment and guilty plea were invalid. In light of our findings that Carroll’s indictment and guilty plea were both valid, his arguments concerning a right to a speedy trial and other defects incident to trial are waived. Chandler, 883 So.2d at 616(¶ 7). Carroll’s argument that his counsel failed to interview witnesses fails to even include which witnesses were not interviewed and any possible exculpatory testimony they would have provided. The arguments advanced by Carroll fail to meet the required burden that counsel was deficient, and that Carroll was prejudiced by counsel’s deficiency. The issue is without merit.

A Prosecutorial Misconduct

¶ 13. Carroll argues that State officials and his counsel were co-conspirators in coercing Carroll to enter a guilty plea, knowing that Carroll was not properly indicted. Our previous finding that Carroll’s indictment was proper precludes any merit to this issue.

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

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


author: KING, C.J.,

text:
    Alaric BLACK, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00807-COA.
    Court of Appeals of Mississippi.
    Aug. 21, 2007.

      Alaric Black, Appellant, pro se.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   KING, C.J.,

for the Court.

¶ 1. Alaric Black appeals the Lee County Circuit Court’s denial of his petition for post-conviction relief. On appeal, Black asserts that he is serving an illegal sentence because of a defective indictment and ineffective assistance of counsel. Finding Black’s claims are procedurally barred, this Court affirms the denial of post-conviction relief.

FACTS

¶2. On November 21, 1995, Black was indicted by a Lee County Grand Jury for the sale of a controlled substance within 1500 feet of a school, in violation of the Uniform Controlled Substance Law of the State of Mississippi, Mississippi Code Annotated Sections 41-29-101 to -187 (Rev. 2005). On August 8, 1996, Black pled guilty to the offense and was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections.

¶ 3. Black filed a motion for post-conviction relief, asserting that his indictment was ineffective because it was not marked “filed” by the court and because it did not contain an affidavit from the jury foreman. This post-conviction relief request was denied on July 7,1997.

¶ 4. Black filed a second motion for post-conviction relief on April 26, 2005. Black argued that the Lee County Circuit Court lacked jurisdiction to initially sentence him, that there existed material facts not previously presented before the Court, and Black reargued that his indictment was defective. The court denied post-conviction relief on May 26, 2005. The trial court found that Black’s motion was untimely filed outside of the three years allowed for post-conviction relief motions, Black’s motion was a successive writ, and that there was no merit to Black’s claims.

¶ 5. On June 20, 2005, Black filed a motion for rehearing on the denial of his second post-conviction relief motion. This motion was denied on April 10, 2006. The court found this motion was his third filing for post-conviction relief and that it was procedurally barred as successive writ. The court also stated that Black’s claims were without merit and a hearing was not required.

¶ 6. On May 3, 2006, Black filed an appeal of the final judgment entered on the motion for rehearing.

STANDARD OF REVIEW

¶ 7. This Court reviews denials of post-conviction relief motions under a clearly erroneous standard. Donnelly v. State, 887 So.2d 833, 835(¶ 6) (Miss.Ct.App.2004). Questions of law, however, are reviewed de novo. Smith v. State, 918 So.2d 850, 851(¶ 3) (Miss.Ct.App.2005).

ANALYSIS

Whether Black’s claims are procedurally barred.

¶ 8. The denial of a post-conviction relief motion is a final judgment and bars subsequent requests for post-conviction relief unless (1) there are issues with the defendant’s supervening insanity prior to the execution of a death sentence, (2) there has been an intervening decision of the United States Supreme Court or of the Mississippi Supreme Court, which would require a different outcome or sentence, (3) there is newly discovered evidence, which was not previously discoverable, that would have been practically conclusive if it were available at trial, or (4) the defendant claims that his sentence has expired, or his probation, parole, or conditional release has been unlawfully revoked. Miss.Code Ann. § 99-39-23(6) (Supp.2006).

¶ 9. The circuit court dismissed Black’s claims on March 10, 2006, finding that the claims were procedurally barred as a successive writ, as well as finding the claims were without merit and the court was without authority to reduce or modify Black’s lawfully imposed sentence after he already had begun to serve that sentence.

¶ 10. Black’s claims were his third request for post-conviction relief. He carried the burden of proving that he satisfied at least one of the exceptions to Section 99-39-23(6) in order to survive the procedural bar. See Carbin v. State, 942 So.2d 231, 233(¶ 9) (Miss.Ct.App.2006). Black also had to prove that, even if he satisfied an exception, the trial court had not previously decided on the merits of those claims. Stone v. State, 872 So.2d 87, 89(¶ 13) (Miss.Ct.App.2004).

¶ 11. Black fails his burden of production by not providing any evidence or facts that would satisfy any of the exceptions to the successive writ bar. Likewise, this Court’s review of the record shows no evidence of facts that would satisfy the successive writ bar exceptions. Black’s request for post-conviction relief is procedurally barred as a successive writ, and this Court affirms the denial of post-conviction relief.

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

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


author: BARNES, J.,

text:
    Art Tyrone EASTERLING, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00838-COA.
    Court of Appeals of Mississippi.
    Aug. 21, 2007.

      Wm. Andy Sumrall, Laurel, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorneys for appellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court.

¶ 1. Art Tyrone Easterling appeals from a judgment of conviction in the Circuit Court of Forrest County, Mississippi for the crime of grand larceny and a resulting ten-year sentence as a habitual offender. We find no merit to the assignments of error and affirm the trial court’s judgment.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. According to testimony presented at trial, on or about February 9, 2005, a red Chevrolet S-10 truck was stolen from Wholesale Auto Parts in Jackson, Mississippi. On February 14, 2005, at approximately five o’clock in the evening, Jason Stringer was shopping at the Corner Market in Hattiesburg, Mississippi. Upon exiting the store, he saw a red Chevrolet S-10 truck hauling a Yamaha four-wheeler and trailer, which belonged to Stringer. Stringer ran over to the S-10 and opened the passenger door, but the truck sped off. Stringer called the police who promptly notified area law enforcement to be on the lookout for the red truck and trailer with the Yamaha four-wheeler. The tag number for the vehicle was also provided.

¶ 3. Approximately five minutes later, according to testimony, a deputy with the Forrest County Sheriff’s Department, Gary Ross Carter, spotted the truck and trailer. He followed the vehicle for a few minutes to ascertain the tag number and, upon determining this was the vehicle in question, attempted to pull over the vehicle. A few minutes later, the vehicle stopped, and the suspect quickly abandoned the truck and ran through a field. Carter followed in his car until the suspect went through a hole in a fence at the Dairy Fresh plant. Carter attempted to follow on foot but lost the suspect in the woods near the car auction lot. Carter, along with another deputy, went inside the auction where he observed Art Tyrone East-erling, whom Carter believed to be the same man he had pursued. Easterling was not wearing a buyer’s badge, and his boots were muddy. While the other deputy watched Easterling, Carter scanned the room for anyone else who looked out of place and found no one. They then approached Easterling and arrested him. During this time, Stringer had arrived on the scene to identify his property. After bringing Easterling back to the location of the vehicles, Stringer identified him as the man who stole his property. In addition, two Dairy Fresh employees who observed the chase by Carter identified Easterling at that time as the man they had seen running.

¶4. Easterling was indicted May 26, 2005, of grand larceny and receiving stolen property. A trial was held in Forrest County Circuit Court on March 22, 2006. On the morning of the trial, Easterling made a motion for withdrawal of the attorney from the public defender’s office and for substitution of counsel, a motion for continuance of trial in order that new counsel might adequately prepare for trial, and a motion in limine to exclude the identification evidence. The trial court allowed the public defender attorneys to stay and assist new counsel with the defense but denied Easterling’s motion for continuance. The trial court later ruled that, based on the totality of the circumstances, the identifications of Easterling by the witnesses would not be suppressed. After hearing the evidence presented, the jury returned a verdict of not guilty of receiving stolen property, but guilty of grand larceny. Easterling was sentenced to ten years as a habitual offender. The circuit court denied Easterling’s motion for judgment notwithstanding the verdict or, in the alternative, a new trial on May 8, 2006.

¶ 5. Easterling appeals from this judgment asserting that the evidence of identification should have been excluded as unreliable and suggestive, the circuit erred in its denial of the motion for continuance, and the verdict was contrary to the evidence.

I. WHETHER THE IDENTIFICATION EVIDENCE SHOULD HAVE BEEN EXCLUDED AS SUGGESTIVE AND UNRELIABLE.

¶ 6. “The relevancy and admissibility of evidence are largely within the discretion of the trial court, and reversal may be had only where that discretion has been abused.” Clayton v. State, 893 So.2d 246, 249(¶ 17) (Miss.Ct.App.2004) (quoting Parker v. State, 606 So.2d 1132, 1136 (Miss.1992)). Easterling argues that Stringer’s and the Dairy Fresh employees’ identifications of Easterling in the police car were suggestive and prejudicial. In addition, Easterling says that all four identification witnesses did not testify with absolute certainty that they could recognize him as the same man who ran from the truck and was chased by Carter. Easter-ling cites testimony from Carter stating that, at the auction, Carter had to go around the room to make sure there was no one, other than Easterling, who looked similar to the person he chased into the woods. There is also dispute as to how dark it was outside during the theft and the chase of the suspect. Although the witnesses stated that it was dusk, they said there was sufficient light to see. Easterling points to these facts as indicia of unreliability in the identification.

¶ 7. The Mississippi Supreme Court has stated that even where pretrial identification is impermissibly suggestive, a defendant must still “show the conduct gave rise to a very substantial likelihood of irreparable misidentifieation.” York v. State, 413 So.2d 1372, 1384 (Miss.1982). In eyewitness identifications, Mississippi courts look to “whether under the ‘totality of the circumstances’ the identification was reliable even through the confrontation was suggestive.” Outerbridge v. State, 947 So.2d 279, 282(¶ 9) (Miss.2006) (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). Neil outlined five factors for evaluating whether there is a likelihood for error in identification. These factors are:

the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Id. (emphasis added). In the case before us, Stringer was merely a few feet away from the man stealing his property. The two Dairy Fresh employees both looked at the man running across the lot from a distance of approximately twenty-five feet. All three witnesses identified Easterling not more than a couple of hours after seeing him. All witnesses identified East-erling at the scene with a high level of certainty, even though they could not do so at trial. While identifying Easterling sitting in a patrol car may have been suggestive, the circuit court properly evaluated the admissibility of the identifications by looking toward the factors in Neil.

¶ 8. Therefore, based on the totality of the circumstances surrounding the identifications, we find the trial judge did not abuse his discretion in admitting the evidence of the pre-trial identifications.

II. WHETHER THE TRIAL COURT ERRED IN DENYING EASTER-LING’S MOTION FOR CONTINUANCE.

¶ 9. “The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be grounds for reversal unless shown to have resulted in manifest injustice.” Coleman v. State, 697 So.2d 777, 780 (Miss.1997); see Atterberry v. State, 667 So.2d 622, 631 (Miss.1995). In this case, Easterling was initially represented by the Forrest County public defender’s office. At least two weeks prior to trial, Easterling discussed his case with a private attorney, William Andy Sumrall, concerning possible representation of Easter-ling. However, Easterling did not retain Mr. Sumrall until the day before trial. Easterling argues that the trial court’s denial of his motion for continuance resulted in manifest injustice.

¶ 10. Easterling cites Hicks v. State, 902 So.2d 626 (Miss.Ct.App.2004), as an example where newly-appointed counsel had less than seventy-two hours to prepare for trial and this Court found the trial court’s denial of the motion for continuance in error and remanded for a new trial. However, as the State correctly points out, Easterling fails to mention that, in Hicks, the defendant only received her amended indictment seventy-two hours prior to trial and, therefore, had no opportunity to contact counsel until the day of trial. In the case before us, Easterling knew months in advance of the charges against him and had ample opportunity to hire counsel. In fact, Mr. Sumrall had discussed his case with Easterling two weeks prior to going to trial and was made aware of the impending trial date. East-erling asserts in his reply brief that Mr. Sumrall had no obligation to conduct any preparation until such time as he was retained. While we understand Mr. Sum-rail’s plight, Easterling caused this undesirable situation by delaying the hiring of new counsel until the last minute. “[Wjhere a defendant retains new counsel at the eleventh hour, he is not entitled to a continuance merely because new counsel was unprepared.” Byrd v. State, 522 So.2d 756, 759 (Miss.1988).

¶ 11. We find there was no abuse of sound discretion by the lower court, no injustice resulted from a denial of the continuance, and the assigned error must be rejected.

III. WHETHER THE VERDICT IS CONTRARY TO THE EVIDENCE.

¶ 12. A jury’s verdict will not be disturbed by an appellate court unless it is so contrary to the overwhelming weight of the evidence that allowing it to stand would sanction an unconscionable injustice. Simmons v. State, 722 So.2d 666, 673(¶ 54) (Miss.1998). Again, Easterling points to the witness lack of reliability and the fact that there was no physical evidence presented, such as the muddy boots Easter-ling was wearing. He states that there was no credible link between him and the person who stole the property. We do not agree.

¶ 13. This Court must accept as true the evidence that is favorable to the State. Le v. State, 913 So.2d 913, 957 (¶ 164) (Miss.2005). There were four witnesses who stated on the evening of the crime that Easterling was the person who either stole the property or ran from the police. Easterling was found near the abandoned stolen property with fresh mud on his boots and no credentials to be where he was. We find that the evidence presented to the jury was legally sufficient, and the guilty verdict is not against the overwhelming weight of the evidence. This issue is without merit.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY OF CONVICTION OF GRAND LARCENY AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER, WITHOUT THE BENEFIT OR POSSIBILITY OF PAROLE OR EARLY RELEASE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . On July 31, 1996, Easterling had been convicted on eight separate counts of grand larceny in Covington and Simpson counties.