author: COBB, Presiding Justice, SMITH, Chief Justice,

text:
    Emma HANNAH v. STATE of Mississippi.
    No. 2004-CT-00725-SCT.
    Supreme Court of Mississippi.
    Oct. 19, 2006.

      Emma Hannah, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
   ON MOTION FOR REHEARING

COBB, Presiding Justice,

for the court.

¶ 1. The State’s motion for rehearing is denied. The previous opinions are withdrawn, and these opinions are substituted therefor.

¶2. Emma Hannah pleaded guilty to manslaughter in the Winston County Circuit Court and was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. She subsequently filed a pro se petition for post-conviction relief which the trial court denied. The Court of Appeals subsequently found she waived all claims by pleading guilty and affirmed the trial court. Hannah v. State, 943 So.2d 51, 2005 WL 949240 (Miss.Ct.App.2005). Hannah now seeks relief before this Court through her pro se petition for writ of certiorari, in which she asserts that the trial court, as well as the Court of Appeals, erred by finding that: (1) she failed to prove ineffective assistance of counsel and (2) she knowingly, intelligently and voluntarily pleaded guilty. We granted her petition to independently review Hannah’s two primary issues, which the Court of Appeals did not address.

FACTS AND PROCEEDINGS IN TRIAL COURT AND COURT OF APPEALS

¶ 3. On December 11, 2002, the Winston County Circuit Court accepted Hannah’s guilty plea to manslaughter in the June 8, 2001, death of her husband Winfred Hannah. Winfred died as a result of complications arising from an incident where boiling water was poured on him. On the day of trial, defense counsel informed the trial court that a plea would be entered by Hannah. After the usual colloquy, the trial judge announced that he would not accept the plea, after Hannah’s statement that she “didn’t do it.” After a jury was seated and the parties announced ready to proceed, the court recessed. Following the break, defense counsel again informed the court that Hannah wanted to change her plea from not guilty of murder to guilty of manslaughter. The trial court then asked Hannah if she remembered all of the questions he had just asked, and when she answered affirmatively he proceeded with a short additional inquiry and accepted her plea. After a thorough sentencing hearing, Hannah was sentenced to the maximum time to serve, twenty years in the custody of the Mississippi Department of Corrections.

¶ 4. From the time of sentencing, Hannah proceeded pro se. Hannah first filed a petition for post-conviction relief in the Winston County Circuit Court which was denied. However, that order was neither entered in the minutes of the court nor filed with the circuit clerk, and it is unclear from the record exactly what transpired with Hannah’s motion. The trial court later entered a substitute order denying Hannah’s post-conviction relief. She appealed to the Court of Appeals, which affirmed the trial court, without addressing the issues of ineffective assistance of counsel or the validity of Hannah’s guilty plea. After our independent review of the record, with particular attention to these two issues, we conclude that she has raised meritorious arguments and should be allowed to proceed. We reverse and remand to the trial court for proceedings consistent with this opinion.

ANALYSIS

¶ 5. In reviewing the denial of a petition for post-conviction relief we will reverse the factual findings of the trial court only if they are clearly erroneous; however, questions of law are reviewed de novo. Boddie v. State, 875 So.2d 180, 183 (Miss.2004) (citing Brown v. State, 731 So.2d 595, 598 (Miss.1999)).

I. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 6. Hannah asserts that she received ineffective assistance of counsel, as to the plea as well as other underlying matters. The United States Supreme Court adopted a two-prong standard for evaluating claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the convicted defendant must show that counsel’s representation fell below an objective standard of reasonableness. Id. at 687-88, 104 S.Ct. 2052. Second, the defendant must show there is reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. This test applies with equal validity to challenges to guilty pleas. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).

¶ 7. As applied to the plea process, the focus of the first prong remains the same, while the second prong focuses on whether counsel’s unprofessional performance affected the outcome. Id. In the present case, Hannah must show that there is a reasonable probability that, but for counsel’s errors, she would not have pleaded guilty, would have insisted on going to trial, and the outcome would have been different. This Court has held that a reasonable probability arises when the ineffectiveness is of such sufficient moment that the integrity of the proceeding or our confidence in the outcome has been shaken. Leatherwood v. State, 539 So.2d 1378, 1385 (Miss.1989).

¶ 8. In Myers v. State, 583 So.2d 174, 178 (Miss.1991), this Court eloquently stated an appropriate backdrop to the current situation:

The relationship of the accused to his lawyer provides a critical factual context here. As he stands before the bar of justice, the indicted defendant often has few friends. The one person in the world, upon whose judgment and advice, skill and experience, loyalty and integrity that defendant must be able to rely, is his lawyer. This is as it should be. Any rational defendant is going to rely heavily upon his lawyer’s advice as to how he should respond to the trial judge’s questions at the plea hearing. He may also rationally rely on his lawyer’s advice what the outcome of the plea hearing will be. Yet it is the defendant, not the lawyer, who enters the plea. It is the defendant, not the lawyer, who is going to serve the time. It is the defendant, not the lawyer, whose constitutional rights are being waived at the plea hearing. It is the defendant’s plea and accompanying waiver of rights which under established law must be voluntarily and intelligently given, with full appreciation of the consequences to follow.

Hannah asserts that there were conflicting statements by the victim identifying his attacker as another woman to members of the burn center that treated him for his injuries. In support of this claim, Hannah points this Court to medical reports in the record. Also, Hannah claims that she received injuries earlier that evening which would have limited or defeated her physical capability to perform the acts required to commit the crime. Hannah further asserts that there were other people, including the victim’s girlfriend, in the house at various times prior to and at the time of the scalding.

¶ 9. The second prong of Strickland, as it applies to guilty pleas, is whether the evidence likely would have changed the outcome. Hill, 474 U.S. at 59, 106 S.Ct. 366. The question now is not whether Hannah is precluded from making this argument because she pleaded guilty. The question is whether the evidence and testimony, if properly investigated and presented, would have changed the outcome had the parties gone forward.

¶ 10. Such evidence includes the contradictory statements that the victim’s girlfriend poured water on him. This evidence, set forth in the medical records, along with Hannah’s testimony that someone else committed this act, is enough to raise a reasonable doubt that Hannah committed the offense. In the alternative, if defense counsel had presented the contradictory statements, delved further into Hannah’s claims of prior abuse by the victim and of the abuse she says had taken place immediately prior to the incident, and asserted the intervening circumstances of the victim’s death from respiratory failure, it is reasonable to conclude that the outcome of a jury trial may have been different.

II. VOLUNTARINESS OF HANNAH’S GUILTY PLEA

¶ 11. A valid guilty plea must represent a voluntary and intelligent choice by the defendant among the alternative courses of action available. Hill, 474 U.S. at 56, 106 S.Ct. 366 (citing North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)). This Court has long held that there is no per se rule prohibiting a collateral attack on the validity of a guilty plea. Baker v. State, 358 So.2d 401, 403 (Miss.1978). However, we remain mindful of the strong presumption of validity that goes with solemn declarations made in open court and the need for finality. Id. The burden of proof is on the petitioner to prove that her plea was not voluntarily, knowingly and intelligently given. Gardner v. State, 531 So.2d 805, 810 (Miss.1988).

¶ 12. “A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.” Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969). Ignorance, incomprehension, coercion, terror or other inducements, both subtle and blatant, threaten the constitutionality of a guilty plea. Boykin, 395 U.S. at 242-43, 89 S.Ct. 1709. This Court has crafted a series of warnings to ensure the voluntariness of a defendant’s guilty plea. A defendant must be advised concerning the nature of the charge against her and the consequences of her plea including the minimum and maximum sentences that may be imposed. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). The defendant must be told that her guilty plea waives several constitutional rights including her right to trial by jury, the right to confront adverse witnesses and the right to protection against self-incrimination. Id. See also Boykin, 395 U.S. at 243-44, 89 S.Ct. 1709.

¶ 13. The present case presents an unusual challenge under these standards. After the trial court was first informed that Hannah desired to plead guilty to manslaughter, there was a plea colloquy. During the colloquy the trial court informed Hannah of her rights and the minimum and maximum sentences for the crime to which she was pleading guilty. The trial court ascertained that Hannah had discussed the nature of the charges against her and any defenses she might have with her attorney and what the State would be required to prove in order to convict her. The trial court also inquired as to whether she was sober at the moment, and whether she was coerced into pleading guilty.

¶ 14. Lastly, the trial court asked the State to proffer its evidence. The prosecutor read into the record the evidence against Hannah and the trial court followed with these questions:

THE COURT: You’ve heard what the State would intend to prove if this case went to trial. In other words, if we went ahead and had the trial today, that is what — [the prosecutor’s] intentions would be to prove that. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: You’ve heard what [the prosecutor] said. Did you do you those things?
THE DEFENDANT: I — no, I didn’t. But yeah, I heard what he said.
THE COURT: You didn’t do it.
THE DEFENDANT: No. I can’t prove that I didn’t do it.
THE COURT: I can’t take your plea.

The second time Hannah approached the trial court about pleading guilty to the charge of manslaughter, the following occurred out of the presence of the jury:

THE COURT: ... Miss Hannah, you know I went through the stuff before. Did you understand all that?
THE DEFENDANT: Yes.
THE COURT: Would your answer be the same now as it was then?
THE DEFENDANT: No.
THE COURT: No. No. I mean all the stuff that I asked you before—
THE DEFENDANT: Yes.
THE COURT: — excluding the part about what [the prosecutor] said, would you answer that the same?
THE DEFENDANT: Yes.
THE COURT: You heard what he said he was going to prove if this case went to trial.
THE DEFENDANT: Right.
THE COURT: That you threw water on this man and he died because of it. Did you understand what he said?
THE DEFENDANT: Yes.
THE COURT: All right. Did you, in fact, do that?
THE DEFENDANT: Yes.
THE COURT: Are you pleading guilty to that — to the charge of manslaughter or the factual situation that he gave because you, in fact, are guilty of doing that?
THE DEFENDANT: Yes.

¶ 15. Voluntariness in the context of a guilty plea means voluntary in a constitutional sense. Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). In Henderson, the Supreme Court acknowledged that “a plea cannot support a judgment of guilt unless it was voluntary in a constitutional sense.” The Court found that a plea could not be voluntary in the sense that it constituted an intelligent admission unless the defendant received “real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.” Id. (citing Smith v. O’Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859 (1941)).

¶ 16. A factual basis for a plea may be established by the admission of the defendant, but the admission must contain factual statements constituting a crime or be accompanied by independent evidence of guilt. Reynolds v. State, 521 So.2d 914, 917 (Miss.1988). This Court has held that a factual basis is not established by the mere fact that a defendant enters a plea of guilty. Lott v. State, 597 So.2d 627, 628 (Miss.1992).

¶ 17. Hannah’s level of awareness and understanding during the plea colloquy is unclear. She merely answered “yes” to questions from the judge. When she faltered and said “no,” the judge restated the question with little or no explanation. The record before us indicates that the trial court, at sentencing, had some evidence that Hannah committed the offense. Whether such evidence was sufficient is difficult to ascertain, particularly since Hannah continued to maintain during sentencing that she was not guilty and offered speculation as to who might have thrown the boiling water on the victim. See Corley v. State, 585 So.2d 765, 767-68 (Miss.1991).

¶ 18. This Court has said that it may look beyond the plea transcript to determine whether there was a factual basis for the charge. Boddie v. State, 875 So.2d 180, 183 (Miss.2004) (as to Boddie’s argument that there was no factual basis for his guilty plea, this Court is not limited to the transcript of Boddie’s guilty plea hearing, but we are allowed to review the record as a whole). Under the facts gleaned from the entire record, we conclude that there is some question whether the plea following the second colloquy was knowing, intelligent and voluntary. In viewing the entire record we can see additional facts discussed supra, which raise doubt as to the voluntariness of her plea.

¶ 19. Both colloquies happened on the same day and only hours apart. However, the information presented at the sentencing hearing raises doubt.

CONCLUSION

¶ 20. We hold that the voluntariness and knowledge of Hannah’s guilty plea are in doubt. Further, we hold that she has raised a claim of ineffective assistance of counsel which requires a full evidentiary hearing. Therefore, we reverse the judgments of the Court of Appeals and the Winston County Circuit Court and remand this case to the circuit court for an eviden-tiary hearing and ruling on Hannah’s claims consistent with this opinion and Miss.Code Ann. § 99-39-23 (Supp.2005).

¶ 21. REVERSED AND REMANDED.

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

SMITH, Chief Justice,

Dissenting.

¶ 22. Hannah filed a motion for post-conviction relief in the Circuit Court of Winston County raising three issues: (1) her guilty plea was not voluntary, (2) the assistance of her counsel was ineffective, and (3) there exists evidence requiring that her conviction be overturned. The trial court denied Hannah’s motion for post-conviction relief on March 12, 2004. However, that order was neither entered into the minutes of the court nor filed with the circuit clerk. On November 8, 2004, the circuit court entered a substitute order denying Hannah’s motion for post-conviction relief.

¶ 23. Hannah subsequently filed an appeal, in which she raised four completely different issues: (1) the State erred in its investigation of the crime scene, thereby permitting the destruction of evidence that could have exonerated Hannah as a suspect, (2) the trial court should have dismissed the charges against Hannah because the State failed to preserve certain samples of saliva and semen, (3) Hannah’s due process rights were violated because the State suppressed certain evidence, thereby preventing Hannah from receiving a fair trial, and (4) her husband’s death resulted from the medical treatment he received. The Court of Appeals affirmed the trial court’s decision on April 26, 2005. The Court of Appeals did not consider whether Hannah’s guilty plea was valid because she did not contest this issue on appeal. Hannah v. State, 943 So.2d 51, 52 (Miss.Ct.App.2005).

¶ 24. Hannah filed a petition for writ of certiorari with this Court on November 9, 2005. In that petition, Hannah returned to two of the issues she raised in her initial motion for post-conviction relief: (1) her guilty plea was not voluntary and (2) the assistance of her counsel was ineffective. Subsequently, this Court granted certiorari to independently review these two issues. Notwithstanding the majority’s decision to independently review these issues, I would procedurally bar Hannah’s claims because she failed to raise them before the Court of Appeals, thus denying it the opportunity to consider those claims. See Lamp v. Iowa, 122 F.3d 1100, 1104 (8th Cir.1997); Lowe-Bey v. Groose, 28 F.3d 816, 818 (8th Cir.1994); Thigpen v. Thigpen, 926 F.2d 1003, 1010 (11th Cir.1991); Frasier v. Maschner, 2001 WL 34008500, 2001 U.S. Dist. LEXIS 17124 (D.Iowa 2001); McFarland v. Entergy Miss., Inc., 919 So.2d 894, 904 (Miss.2005). Procedural bar notwithstanding, I will alternatively consider the case on its merits. The majority would reverse and remand for a hearing. I disagree and therefore respectfully dissent.

I. VOLUNTARINESS OF HANNAH’S GUILTY PLEA

¶25. Mississippi Uniform Rule of Circuit and County Court Practice 8.04(3) regulates the entry of guilty pleas:

Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntary and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.

This establishes the criteria Hannah must demonstrate to show her plea was not voluntary. Hannah argues that she “was not informed that her charges would be reduce [sic] to manslaughter, [sic] manslaughter instruction was not given as an option to murder nor was [sic] her theories as to what took place an option.” Hannah also claims she was not given an opportunity to read the plea agreement, advised of the consequences of signing the agreement, or told the maximum and minimum sentence she would face for signing the agreement until the end of her trial. Hannah further claims that the court questioned her without informing her she was waving her constitutional rights. Hannah believes the trial court judge, her defense attorney, her mother-in-law, her sister-in-law, and the deputy who investigated the accident were all scheming against her. Hannah concludes her guilty plea “was obtained through misleading, underhanded compelling skills” by the circuit court judge. Hannah blames her attorney as well; she wrote in her motion for rehearing to the Court of Appeals that: “Counsel had craftily devised a way to get a ligiti-mate [sic] guilty plea out of the defendant without her knowing she had plead guilty.”

¶ 26. However, Hannah was aware that the charge was reduced to manslaughter. The tidal transcript reads:

THE COURT: Do you understand that you are pleading guilty to manslaughter?
THE DEFENDANT: Yes.
THE COURT: Are you pleading guilty to that — to the charge of manslaughter or the factual situation that he gave you, in fact, in fact, are guilty of doing that?
THE DEFENDANT: Yes.
THE COURT: On the charge of manslaughter, how do you plead-guilty or not guilty?
THE DEFENDANT: Guilty.

Furthermore, Hannah’s argument that the “manslaughter instruction was not given” is without merit, no jury instruction was given because she pled guilty and the jury was dismissed. Likewise, Hannah’s protest that she was not allowed to present her murder theory is without merit, she waived the right to present this theory by pleading guilty. Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989).

¶27. Hannah also claims she was not able to read the plea agreement, that she was not advised of the consequences of signing the agreement, and that she was not made aware of the maximum and minimum sentence she might face. However, her testimony during the plea plainly shows this is not true.

THE COURT: Do you understand that there is no minimum sentence for this charge?
THE COURT: And a maximum sentence of 20 years. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Do you understand there is no minimum fíne but a maximum fíne of $10,000?
THE DEFENDANT: I didn’t know all that.
THE COURT: Well, that is what it would be. Do you understand that?
THE DEFENDANT: Um-hum.

Furthermore, Hannah’s attorney stated that, while Hannah did not read the petition herself, he went over it with her, read it in its entirety, explained to her that she was pleading guilty to manslaughter, explained the minimum and maximum sentences, explained what the State would have to prove, and outlined the possible defenses Hannah might pursue.

¶28. Hannah claims she was not informed that by pleading guilty she waived some of her constitutional rights. However, the trial record demonstrates to the contrary:

THE COURT: Before I can accept your plea of guilty there are certain constitutional rights which I must advise you of in which you would waive by entering a plea of guilty. Do you understand you have the right to a public and speedy trial by jury?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand you have the right to call into court witnesses to testify for you?
THE DEFENDANT: Yes.
THE COURT: Do you understand you have the right to cross — examine anybody that testifies against you?
THE DEFENDANT: Yes.
THE COURT: Do you understand that you have the right to testify but that you also have the right not to?
THE DEFENDANT: Yes.
THE COURT: Do you understand if you don’t testify, I will tell the jury they can’t hold that fact against you?
THE DEFENDANT: Yes.
THE COURT: Do you understand you have a right to an attorney at all stages of the prosecution?
THE DEFENDANT: Yes.
THE COURT: Do you understand that I will instruct the jury that they must presume that you are innocent until such time as the State proves your guilt beyond a reasonable doubt?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that all 12 jurors must find you guilty beyond a reasonable doubt before they can return a verdict against you?
THE DEFENDANT: Yes.
THE COURT: Do you understand if a jury were to convict you, you would have a right to appeal that conviction to the Mississippi Supreme Court?
THE DEFENDANT: Yes.
THE COURT: If you couldn’t afford the cost of the appeal I will appoint an attorney to represent you and all the costs will be paid by the State.
THE DEFENDANT: Yes.
THE COURT: Do you understand you waive all those rights by entering a plea of guilty?
THE DEFENDANT: Yes.
THE COURT: Do you understand all those things I have advised you of, we are in the process of doing here today? Those things are available to you.
THE DEFENDANT: Yes.
THE COURT: Do you understand that you are pleading guilty to manslaughter?
THE DEFENDANT: Yes.
THE COURT: Have you discussed that with [your attorney]?
THE DEFENDANT: Yes.
THE COURT: Did he tell you what the State would have to prove in order to convict you of that charge?
THE DEFENDANT: Yes.
THE COURT: Did he discuss with you possible defenses that you might have?
THE DEFENDANT: Yes.
THE COURT: Also, did he discuss the charge of murder with you?
THE DEFENDANT: Yes.
THE COURT: Did he tell you what the State would have to prove in order to convict you of that charge?
THE DEFENDANT: Yes.
THE COURT: Did he discuss with you possible defenses you might have to that charge?
THE DEFENDANT: Yes.

The trial record reveals that Hannah was made well aware of the constitutional rights she waived by her guilty plea. The record also shows her plea was not “obtained through misleading, underhanded compelling skills” by the trial judge, who appears to have been genuinely concerned with the validity of her plea and her awareness of the situation; he even rejected the plea on her first attempt because of his concerns.

¶ 29. This Court held in Smith v. State, 636 So.2d 1220, 1225 (Miss.1994), that a defendant’s claim that he blindly entered a plea of guilty on the advice of his attorney was not sufficient to render his plea involuntary. Thus, even if it were true that Hannah blindly followed the advice of her attorney when entering a guilty plea as she claims, her plea was still voluntary and valid.

¶ 30. In Wilson v. State, 577 So.2d 394, 397 (Miss.1991) (citing Schmitt v. State, 560 So.2d 148, 153 (Miss.1990)), this Court stated that a plea is voluntary if “the defendant knows what the elements are of the charge against him including an understanding of the charge and its relation to him, what effect the plea will have, and what the possible sentence might be because of this plea.” In the case at bar, the trial record clearly demonstrates Hannah understood she was pleading guilty to manslaughter in lieu of a trial for murder, the minimum and maximum sentences for manslaughter, and the relation of the charge to her. Hannah’s plea was clearly voluntary, and this issue is without merit.

II. ASSISTANCE OF COUNSEL

¶ 31. “ ‘The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” Foster v. State, 687 So.2d 1124, 1129 (Miss.1996) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). This involves a two-part test: (1) the defendant must demonstrate that his counsel’s performance was deficient, and (2) that the deficiency prejudiced the defense of the case. Id. (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Washington v. State, 620 So.2d 966 (Miss. 1993)).

¶ 32. In evaluating a claim of ineffective assistance of counsel, this Court “looks at the totality of circumstances to determine whether counsel’s efforts were both deficient and prejudicial.” Osborn v. State, 695 So.2d 570, 575 (Miss.1997) (citing Carney v. State, 525 So.2d 776, 780 (Miss.1988); Read v. State, 430 So.2d 832, 839 (Miss.1983)). Furthermore, “[t]here is a strong but rebuttable presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. (citing Carney, 525 So.2d at 780; Gilliard v. State, 462 So.2d 710, 714 (Miss.1985)). “Only where it is reasonably probable that but for the attorney’s errors the outcome of the trial would have been different, will this Court find that counsel’s performance was deficient.” Id. (citing Dickey v. State, 662 So.2d 1106, 1106 (Miss.1995); Reed v. State, 536 So.2d 1336, 1339 (Miss.1988)). In Foster, 687 So.2d at 1130, this Court held that counsel’s decision not to investigate must be directly assessed for reasonableness in all circumstances, applying a heavy measure of deference to the counsel’s judgment.

¶ 33. In her motion for post-conviction relief to the trial court, Hannah claimed: (1) her counsel did not prepare a defense or review evidence and medical reports, (2) her counsel did not know that her husband had told his doctor that his girlfriend threw boiling water on him, (3) her counsel did not explain anything to her or talk to her about the plea, (4) she did not read the plea papers or know she was pleading guilty to anything, (5) her lawyer told her “to go in there and say yes to everything the Judge [sic] ask [sic] even if you did not do it,” and (6) that the trial judge “did not ask me did I understand the plea or ask me how I was pleading.”

¶ 34. The decisions of Hannah’s counsel fall within the ambit of trial strategy. Despite Hannah’s claims and some remote possible inconsistencies, there was a mountain of evidence against Hannah. The prosecution stated on the record that it had “statements that [Hannah] made to officers and to family members of the victim, along with testimony from the sister and the mother of the victim, and specifically testimony from Dr. Hayne that the actual boiling water was the cause of death.”

¶35. Hannah’s story is hopelessly inconsistent. First, in her motion for post-conviction relief to the trial court, she claims that her husband’s girlfriend threw the boiling water on him. Next, she claims that her husband’s own mother threw the boiling water on him in a letter to trial court where she stated “I believe Winfred [sic] mother threw the hot water on him that morning.” Finally, Hannah claims they both, independently of each other, threw boiling water on her husband in a supplemental letter to her original appeal, where she stated: “What we have is a victim who was scalded twice on the same morning on separate occasion.” Hannah summarily concluded: “[t]hese two people scalded the victim and thats [sic] a fact.” Hannah also tries to blame the doctors who attended to her husband for his death.

¶ 36. Mary Beasley Hannah, the victim’s mother, testified her son called her between 6:15 and 7:00 AM and said “he called me and say [sic] momma, come see about me, say [sic] Emma have [sic] scalded me.” Jewel Coleman, the victim’s sister testified that “I guess around 6:00 in the morning, about 6:10, the phone rang. My mother answered the phone. I heard her holler. I said momma, what’s wrong, what’s wrong. She said Winifred. She said Winifred say [sic] come see about me. Emma done [sic] scald [sic] me. We begun [sic] over there.” Coleman further testified she didn’t see any scars, bruises, cuts, or other injures and that Hannah did not complain of any. Coleman also saw Hannah pick up the empty pot with a pot lifter.

¶ 37. The prosecution stated that EMTs and a police officer were prepared to testify that Hannah had no injuries. The prosecution also stated that Hannah told a collection lady in Atlanta and also the victim’s family that she was glad her husband died, along with telling people that the reason she threw boiling water on her husband was because she caught him in bed with another woman. Also, the prosecution stated that the deputy who responded to the crime said that Hannah was outside smoking a cigarette when she arrived, although Hannah claimed to have been in the house and accused the deputy, along with the victim’s mother and sister, of lying.

¶ 38. As shown above, it is clear that Hannah’s plea was voluntary. Her counsel likely as trial strategy advised her to plead guilty because of the wealth of evidence against Hannah and her lack of a clear, static alternative scenario. In my view, the advice of Hannah’s counsel did not fall outside the realm of acceptable professional advice given the evidence amassed against her.

III. FACTUAL ISSUES

¶ 39. Hannah repeatedly argues her guilty plea was not voluntary and is precluded by the facts. However, she fails to understand what this means. This Court previously stated:

The institution of the guilty plea is well established in our criminal justice process. A guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial and the right that the prosecution prove each element of the offense beyond a reasonable doubt.

Jefferson v. State, 556 So.2d at 1019. A guilty plea waives any evidentiary issue or discovery violation. Bishop v. State, 812 So.2d 934, 945 (Miss.2002). By pleading guilty, Hannah waived the right to present alternate theories about her husband’s death.

¶ 40. Hannah raises several factual issues: She claims the deputy who investigated the scene failed to check the house for other people and failed to check the bed to see if it was wet. Hannah also alleges the deputy did not confiscate evidence consisting of underwear, a towel, and cigarettes belonging to her husband’s girlfriend. Hannah contends the only investigation took place 10 months later, after the house had been sold and all evidence removed. Hannah also claims her husband’s mother saw the girlfriend’s things and saw that the bed was not wet and insists “[s]he could not believe her son would have another woman there while I was there or maybe she wanted me out the [sic] way and she did it” in her motion for post-conviction relief to trial court. This is strange given her later claim that the victim’s mother launched into a verbal tirade against her son before murdering him with a pot of boiling water. Nevertheless, these arguments are moot because Hannah voluntarily pled guilty; she waived her right to bring them before this Court and the prosecution has no way to respond because Hannah voluntarily ended the trial early.

¶ 41. Hannah’s vague story runs like this: Hannah went to her husband’s house where he pushed her to the back part of the house. He held Hannah at gunpoint for hours; during that time he tried to tear her clothes off. After Hannah calmed her husband down, she went to get him some food in another part of the house. During this time, Hannah claims to have heard name calling between her husband and another woman she determined to be Peaches Daniels, who she would later state was Linda Daniels, and saw her husband having sex with Daniels in the bathroom. Hannah states that after two hours of sleep, she awoke to cook her husband shrimp and deer sausage for breakfast at around 5:00 AM in order to explain why she was boiling so much water so early in the morning.

¶42. Further, Hannah contends her husband, after “getting drunk on moonshine and high on crack and pills all night with his friends,” physically and sexually assaulted her between 5:30 and 6:00 AM with a broomstick. Hannah retaliated in kind by pulling her husband’s genitals and fleeing outside to hide in her husband’s truck. While outside, Hannah heard her husband yell. She tried to re-enter the house but could not. Within five minutes, her husband’s mother and sister'arrived to find Hannah outside wearing only a portion of her underwear. Hannah, but only in later filings, claims that her husband’s mother went into the house and, while his sister physically assaulted Hannah outside, she heard his mother say: “I can’t believe I brought a child like you into this world. You don’t do nothing [sic] but lie. I’m so sick of you, all time beating on that woman as good as she is to you and your children. Just look at you, you don’t do nothing [sic] but lie, lie, lie. She can’t do nothing [sic] to you but I will.” This account is strange, given that in another filing Hannah stated of the victim’s mother: “She could not believe her son would have another woman there while I was there or maybe she wanted me out the [sic] way and she did it.” It is at this point Hannah indicates that her husband’s mother poured boiling water on her own son, although she alleges his girlfriend also poured boiling water on him at some earlier point that morning, presumably after she ran out of the house. Hannah believes her husband’s wife and sister then conspired to frame Hannah for the crime.

¶ 43. Hannah makes much of the fact that the consultation performed at Delta Regional Medical Center by Amita Patel, M.D., on June 15, 2001 states: “His girlfriend threw a pan of boiling hot water intentionally on him.” However, the doctor did not state the source of this information, including if it was acquired from the patient. The discharge summary performed by Lawrence George, M.D., of the Delta Regional Medical Center on June 28, 2001 states: “Mr. Hannah was a 42 year old black male who received multiple burns after it was stated that his girlfriend threw a pan of boiling hot water over him while he was sleeping.” This report was prepared after the patient’s death, and once again it is unclear who reported the information about who threw the boiling water, or whether the information was simply copied from Dr. Patel’s report. The majority quickly falls into acceptance of such statements as being made by the victim.

¶ 44. However, the record reflects only one clear reference to a statement made by the victim. The majority neglects to mention the Delta Regional Medical Center Inpatient Admission History/Assessment Form performed by the EMTs who responded to the scalding on June 8, 2001. In the section “REASON FOR ADMISSION (CHIEF COMPLAINT)” under “STATE IN PATIENT’S OWN WORDS” the EMTs had written: “pt states he was lying on couch asleep. Wife poured hot water on top of him.” While the form also states that at least part of the information was given by her husband’s mother, this seems to refer to other parts of the assessment such as history of illness, family history, patient education, current medications, home environment, and psychosocial history. This form clearly reports' that Hannah’s husband stated that it was Hannah who threw the boiling water on him, especially since the form indicates that the “pt states” it was his wife who poured the water. At no point do the medical records suggest that it was the victim’s mother who poured the boiling water as Hannah continuously alleges.

¶ 45. The majority states that “Hannah asserts that there were conflicting statements by the victim identifying his attacker as another woman to members of the burn center that treated him for his injuries.” However, the record reflects only the one statement by the EMT’s attributed to the victim: “pt states he was lying on couch asleep. Wife poured hot water on top of him.” There is no indication whatsoever of any “conflicting” statements actually made by the victim or if the victim even spoke to his doctors about who poured boiling water on him. The information in the discharge summary, given the victim was already dead when it was written, was most likely copied from an earlier report. That report provides no indication whatsoever where the briefly jotted note came from or if it was simply a confused rumor passed from nurse to nurse.

¶46. The majority also states that “Hannah claims that she received injuries earlier that evening which would have limited or defeated her physical capability to perform the acts required to commit the crime.” However, the majority fails to state what this evidence is. I find a single, blurry mugshot taken by the sheriffs department of Hannah, fully clothed, with a hand drawn arrow labeled “Shoulder Broken” is hardly convincing or persuasive evidence. Testimony by the victim’s mother and sister also suggests Hannah was not injured the day of the murder. Additionally, the prosecution indicates that the EMTs and the deputy who were at the scene would have testified that Hannah was uninjured, explaining why she chose to plea down to manslaughter on the advice of her attorney in lieu of facing a lifetime sentence for murder.

¶ 47. Additionally, the testimony of the victim’s mother and sister, who arrived at the scene and observed Hannah outside the house, does not support Hannah’s story or the theory that Hannah did not commit the crime because she was not present. The victim’s sister testified that Hannah was outside and “was just cool, calm and collected like nothing had happened.” The victim’s mother also testified that Hannah was outside and was calm. Neither indicated that Hannah was trying to enter when she arrived, and both indicate the window was broken long before that day. Their testimony is corroborated by what the prosecution indicates would have been the testimony of the deputy who responded to the 9-1-1 call; he would have testified that upon his arrival Hannah was outside calmly smoking a cigarette. Hannah casts doubt onto her own story, as she testified that the deputy lied when he reported she was outside smoking calmly when he arrived, and claims she was in the hallway of the house. The testimony of the victim’s mother, sister, and the impartial deputy all indicate that Hannah was not locked out of the house but instead burned her husband to death and calmly walked outside to smoke a celebratory cigarette, leaving him to call 9-1-1 and his mother for help.

¶ 48. Notwithstanding Hannah’s version of the events, she waived these evi-dentiary concerns when she voluntarily pled guilty to manslaughter. As previously discussed, the trial judge made this clear when she entered her plea. Furthermore, the trial record suggests there was a large amount of evidence and testimony available to show Hannah’s story was largely fabricated, including statements Hannah made to officers, to family members of the victim, the testimony of the sister and mother of the victim, the testimony of a doctor, and the EMT response sheet. I believe this evidence, along with Hannah’s rambling, conflicting and incomplete story, explains why her attorney encouraged her to waive her rights and plead guilty to the lesser crime of manslaughter, thus avoiding the risk of life in jail as punishment for murder. The evidence from the trial record does not approach the level necessary to even suggest it meets the “clearly erroneous” standard of review. Boddie v. State, 875 So.2d 180, 183 (Miss.2004) (citing Brown v. State, 731 So.2d 595, 598 (Miss.1999)).

¶ 49. In conclusion, in my view Hannah’s guilty plea was voluntarily entered and the trial judge made sure she was aware of the consequences of her choice. The advice of Hannah’s counsel was well within the bounds of sound professional judgment as trial strategy since Hannah’s story was vague, incomplete, inconsistent, ever-changing, rambling and overwhelmingly negated by the evidence the prosecution stated it could produce at trial. Therefore, I would affirm the judgments of the Court of Appeals and the Circuit Court of Winston County.

¶ 50. I respectfully dissent.

EASLEY AND CARLSON, JJ., JOIN THIS OPINION.

      . In Hannah’s pro se, handwritten brief to the Court of Appeals she enumerated the four issues for appeal which were addressed by the Court of Appeals. However, within the summary of her argument she also clearly alleged ineffective assistance of counsel and asserted that her plea was involuntary, issues not addressed by the Court of Appeals. Further, an unsworn affidavit which was attached to her brief also alleged ineffective assistance of counsel. Although ineffective assistance of counsel and the voluntariness of her guilty plea were not enumerated, the two unambiguous and explicit references in her 11 page brief were sufficient to have put the Court of Appeals on notice to consider these arguments. Miss.Code Ann. Section 99-39-27(5) directs this Court and the Court of Appeals to study the entire record to determine whether the petitioner makes a substantial showing of a denial of a federal or state right. Moore v. Ruth, 556 So.2d 1059, 1061 (Miss.1990) (citing Neal v. State, 525 So.2d 1279, 1280-81 (Miss.1987); Billiot v. State, 515 So.2d 1234, 1236-37 (Miss. 1987)). Where, as here, a prisoner is proceeding pro se, we take that fact into account and, in our discretion, credit not so well pleaded allegations, so that a prisoner’s meritorious complaint may not be lost because inartfully drafted. See Moore, 556 So.2d at 1061; See also Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972); Sanders v. State, 440 So.2d 278, 283 n. 1 (Miss.1983). Even though Hannah’s brief was not professionally done nor perfectly organized in accord with M.R.A.P. 28, these two issues were before the Court of Appeals.

      . It is unclear who these friends are since it appears from Hannah's story that she and her husband, and possibly a girlfriend of his, were alone in the house all night. Additionally, Hannah claims her husband was holding her at gunpoint, making it hard to comprehend how he was able to host a party and why there are not more witnesses.

      . Hannah has no explanation for why the victim's mother and sister arrived five minutes after Hannah left the house. They contend they arrived because the victim called his mother and told her that his wife had just poured boiling water on him.


source: Caselaw Access Project

author: CARLSON, Justice,

license: Public Domain

text:
    Huey STOCKSTILL and Gayle B. Stockstill v. Lynn Crosby GAMMILL, Stewart Gammill, III, Stewart Gammill, IV, Lucius Olsen Crosby Gammill and Jennifer Lynn Gammill McKay.
    No. 2004-CA-02193-SCT.
    Supreme Court of Mississippi.
    Oct. 26, 2006.
    Rehearing Denied Dec. 14, 2006.

      O. Stephen Montagnet, III, Jackson, attorney for appellants.
    Paul Norman Davis, Jackson, attorney for appellees.
   CARLSON, Justice,

for the Court.

¶ 1. Today’s appeal involves two cases consolidated by the Pearl River County Chancery Court in order to litigate two families’ disputes over approximately 650 acres of land in Pearl River County. The Stockstills appeal from the chancellor’s final judgment confirming clear title in the subject land to the Gammills. The Gam-mills cross-appeal from the chancellor’s order denying attorney’s fees, expert witness fees, and pre-judgment interest. Upon careful consideration of the various issues presented to us, we affirm both as to the direct appeal and the cross-appeal.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. On October 4, 1996, the Gammills conveyed to the Stockstills approximately 650 acres of land in Sections 23 and 26, Township 6 South, Range 17 West, in Pearl River County, Mississippi. The two families primarily communicated through licensed real estate agent and appraiser Glen Ford. The Gammills attempted to except a 60-acre portion of the land, the subject land of this appeal, by including a description in the warranty deed identifying the subject land as lying “north of Telley Road” and west of Interstate 59 in Section 26. Because one part of the road identified as Telley Road had been renamed, a hotly disputed issue in this case is whether the description in the warranty deed adequately described the 60-acre portion of the land in dispute as to make the exception effective. In December, 1997, the Stockstills cut timber on the subject land which had been purportedly excepted by the Gammills in the warranty deed. A forester hired by the Gammills estimated the cut timber at a value of approximately $50,000. The Gammills’ discovery that timber on the subject land had been cut served as the catalyst to put in motion events which led to this litigation.

¶ 3. Lynn Crosby Gammill (Gammill) filed suit against Huey Stockstill and his wife, Gayle B. Stockstill, in the Chancery Court of Pearl River County on June 11, 1999, seeking to confirm title in the subject land in Pearl River County and seeking statutory damages for the cutting of trees on the property. The Stockstills filed a separate suit against the Gammill family in the Circuit Court of Pearl River County on October 1, 1999, concerning the subject real estate. In the circuit court complaint and amended complaint, the Stockstills asserted against the Gammills claims of fraud and deceit, negligent misrepresentation, breach of covenants in the warranty deed, and unjust enrichment. The Stocks-tills sought various forms of relief against the Gammills, including rescission of the real estate transaction and compensatory and punitive damages. Likewise, the Stockstills sought a declaratory judgment against the title company for indemnification in defending the chancery court action.

¶ 4. In the chancery court action, Gam-mill filed a first amended complaint on August 31, 2001, and this amended complaint contained various counts of confirmation and clearing of title, statutory damages and penalties, trespass, unjust enrichment, recovery of monies received by the Stockstills relating to the tree cutting, actual and punitive damages, and attorneys fees. The Stockstills later filed their answer to Gammill’s first amended complaint, and included in their answer certain counterclaims and a prayer for relief similar to that sought in their circuit court lawsuit. Gammill filed her answer to those counterclaims raising various defenses. The Stockstills’ circuit court suit was later transferred to chancery court on January 8, 2002, and the chancellor subsequently ordered that these two cases be consolidated for all purposes.

¶ 5. The Stockstills asserted, inter alia, that no road named Telley Road traversed the land conveyed. They argued that the road the Gammills claim is Telley Road is actually known as Ridge Road. The Stockstills claimed that Ridge Road bordered the entire parcel of the conveyed land on the north, Edmund Mitchell Road bordered the land on the south, and Interstate 59 bordered the land on the east. Thus, the Stockstills assert that even if the Gammills had identified the road as Ridge Road, the attempted exception would not lie within the conveyed land. The Stocks-tills further assert that Telley Road lies in Section 23, but not in Section 26; thus, the attempted exception was superfluous. The Stockstills also claimed they wanted to buy the entire parcel and agreed oh an increased purchase price to do so. On the other hand, the Gammills assert that there is only one road in Section 26 west of Interstate 59, that being the road they identified as Telley Road, and that the Stockstills’ argument is an attempt to create an ambiguity in the deeds through parol evidence of a modern-day name change of the road. The Gammills further assert that Telley Road was the northern boundary of the land they conveyed and presented numerous documents, such as tax records and land deeds, referring to the road as Telley Road. Therefore, they argue that the intent of the parties was clear and that the 60-acre exception in the subject warranty deed should be upheld as valid.

¶ 6. After a three-day trial on October 14-16, 2003, the trial court filed its opinion on December 30, 2003, containing detailed findings of fact and conclusions of law. The chancellor found that the Gammill-to-Stockstill warranty deed was valid, including the 60-acre exception retained by the Gammills, and that “minimal research” on the part of the Stockstills could have easily cleared up any discrepancy in the Edmund Mitchell Road/Telley Road dispute. On February 5, 2004, the Gammills filed their Motion to Award Attorneys’ Fees and Expenses, under Miss.Code Ann. § 95-5-10(3). Attached to the motion were affidavits from two attorneys who worked on the case representing the Gammills, explaining how the fees were assessed. The Stockstills filed a response in opposition to the motion on February 19, 2004, asserting that because they believed they owned the subject land when they cut the timber, they did not act in bad faith, and thus should not be required to pay attorneys fees. The Gammills argued in rebuttal that the statute does not discriminate between intentional and unintentional cutting of timber; therefore, since the timber was cut, the Stockstills were required to pay attorneys fees to the Gammills. The chancellor agreed with the Stockstills’ arguments and on March 2, 2004, entered an order denying the Gam-mills attorneys’ fees. Consistent with his findings of fact and conclusions of law, the chancellor entered his final judgment on October 12, 2004. In the final judgment, the chancellor, inter alia, confirmed and cleared title in favor of Lynn Crosby Gammill, and awarded damages against the Stockstills for the wrongful cutting of timber; awarded to Gammill and against the Stockstills the sum of $65,526.50 [representing the value of the cut timber ($50,026.50), and the reasonable cost of reforestation ($15,500.00)]; assessed post-judgment interest against the Stockstills; assessed all costs against the Stockstills; and, denied Gammill’s claims for attorneys fees, expert witness fees, and pre-judgment interest.

¶ 7. The Stockstills timely appealed from the final judgment fifteen days later. Gammill likewise filed her cross-appeal from the previously entered court order and final judgment denying her attorneys’ fees, expert witness fees and pre-judgment interest. In both the appeal and the cross-appeal three issues are raised. The Stockstills present the questions of whether the chancellor erred in: (1) finding the intent of the parties was evident from the language of the “Telley Road” exception and in refusing to apply settled rules of deed construction; (2) refusing to admit or consider the testimony of real estate agent Glen Ford as it related to the parties’ intent and his dual agent role; and, (3) holding that the one-year statute of limitations under Miss.Code Ann. § 95-5-29 did not bar Gammill’s claim for damages under Miss.Code Ann. § 95-5-10 resulting from the alleged wrongful cutting of timber. On cross-appeal, Gammill re-states these issues and also raises three additional issues of whether: (4) McCain v. Memphis Hardwood, Flooring Co., 725 So.2d 788 (Miss.1998), should be overruled and, if so, then whether the award to Gammill should be modified to include double the fair market value of her trees instead of only the fair market value; (5) the chancery court abused its discretion in failing to award Gammill recovery of her expert witness fees and attorneys fees; and, (6) the chancery court abused its discretion in failing to award Gammill prejudgment interest from the date she filed her suit.

DISCUSSION

¶ 8. If the chancellor has correctly considered the applicable law, we employ an abuse of discretion standard when reviewing a chancellor’s decision. McNeil v. Hester, 753 So.2d 1057, 1063 (Miss.2000). This Court will not disturb a chancellor’s findings unless the chancellor was manifestly erroneous. Rice v. Pritchard, 611 So.2d 869, 872 (Miss.1992) (citing Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987)). This Court has also held that it is not the job of this Court to redetermine questions of fact resolved by the chancellor. Johnson v. Black, 469 So.2d 88, 90 (Miss.1985).

¶ 9. The parties debate on direct appeal whether the chancellor abused his discretion (1) in applying (or refusing to apply) certain rules of construction to the language of the deed; (2) in determining the admissibility of evidence and testimony; and, (3) in deciding if the one-year statute of limitations did not bar Gammill’s tree-cutting cause of action by relying on McCain. The cross-appeal arguments focus on the question of whether we should overrule McCain, and the questions of the award of attorneys’ fees, expert witness fees, and prejudgment interest. We restate and reorder the various issues for the sake of today’s discussion.

I. WHETHER THE WARRANTY DEED IS VALID

¶ 10. The Gammills received the whole parcel of conveyed land through several different deeds, one of which was only for the portion excepted in this case. On January 1, 1983, Lynn Crosby Gammill received by quitclaim deed the subject land described as being in Township 6 South, Range 17 West of Pearl River County, and being more particularly described as:

Sec. 26 All that part of Efé of SW 1/4 lying North of Telley Road, and all that part of W½ of W/⅛ of SE 1/4 lying West of Interstate Highway 59 and North of Telley Road, and East 13 acres of that part of the E ⅜ of W1^ of SW 1/4 lying North of Telley Road.

This deed was dated (and effective) January 1, 1983, and filed of record on January 31, 1983, in Deed Book 368, at pages 268-74, in the office of the Chancery Clerk of Pearl River County. On October 4, 1996, the Gammills conveyed to the Stockstills four tracts of land in Pearl River County by warranty deed filed of record in Deed Book 660, at pages 323-31, in the office of the Chancery Clerk of Pearl River County. In this warranty deed there appeared the following language:

LESS AND EXCEPT ALL INTERESTS CONVEYED BY THE FOLLOWING DESCRIBED INSTRUMENTS. ALL REFERENCES TO BOOK AND PAGE NUMBERS ARE TO BOOKS AND PAGES OF SAID INSTRUMENTS RECORDED IN THE LAND RECORDS IN THE OFFICE OF THE CHANCERY CLERK OF PEARL RIVER COUNTY, MISSISSIPPI, REFERENCE TO WHICH IS MADE FOR ALL PURPOSES JUST AS THOUGH EACH INSTRUMENT WERE COPIED IN THIS DEED IN FULL AT THIS POINT:

This language appears on page 325, in Book 660, in the Pearl River County Chancery Clerk’s office. On pages 325-31, there appear numerous conveyances which are “less and excepted” from the Gam-mills’ conveyance to the Stockstills. On page 330, in Book 660, there appears a conveyance depicting “L. O. Crosby III et al” as the grantors, “Lynn Crosby Gam-mill” as the grantee, January 31, 1983, as the filing date of the deed, and “368/ 268” as the book and page where the deed is located. The description of the land “less and excepted” is described as follows:

All that part of E/⅛ of SW 1/4 lying North of Telley Road, and all that part of Wk of W⅜ of SE 1/4 lying West of Interstate Highway 59 and North of Tel-ley Road, and East 13 acres of that part of the m of W% of SW 1/4 lying North of Telley Road of Section 26.

There is thus no question that the land conveyed to Gammill in 1983, is the same land which was “less and excepted” from the 1996 conveyance to the Stockstills by the Gammills.

¶ 11. The chancellor found that because of extrinsic evidence presented at trial, the deeds from the Gammills’ predecessors in title and the numerous exhibits referring to the road as Telley Road, as well as the testimony that proved others were familiar with the area, one would have no difficulty from the deed description in determining where the subject land lay, and that though inaccurate, the description of the land was still sufficient to allow one to locate the property “with some certainty.” The chancellor found that this description was adequate to put the Stockstills on constructive inquiry/notice in any case of what was intended in this conveyance. The chancellor relied on Sansing v. Thomas, 211 Miss. 727, 52 So.2d 478 (1951), and Overby v. Cavanaugh, 434 So.2d 1365 (Miss.1983), to find in favor of the Gammills. The chancellor held that because the Stockstills recognized the exception in the deed to be a mistake, they also had a duty to research and determine what was actually being conveyed and excepted. The chancellor also found that “minimal research” would have easily allowed the Stockstills to learn what the Gammills’ intentions in the conveyance were. Where the description of land in a deed is wrong, but still adequate for one to locate the land on the ground through reasonable inquiry and research, a purchaser is deemed to be on constructive notice or inquiry. The Stockstills recognized the description as wrong but made no efforts to determine the grantors’ real intent, and testimony at trial proved that, though the Stockstills argue no land fits the description in question, discovering the true intent of the grantors could have been easily accomplished.

¶ 12. In Sansing, a case also involving wrongful cutting of timber, this Court held that a complete description of the land was not necessary in the disputed deed because of reference to another deed which adequately described the land. 211 Miss, at 732, 52 So.2d at 481. The facts of Sansing are not unlike the evidence of other deeds introduced here, including the deed from the Gammills’ predecessor in interest, despite the fact that those deeds were not referenced in the actual deed in question. However, as noted, that is not necessary. In Neil v. Jones, 497 So.2d 797, 800 (Miss. 1986), we relied on deeds of predecessors-in-title not mentioned in the deed at issue to determine if a land description was legally sufficient and held that “[i]n order for a deed instrument to constitute a valid conveyance, it is not necessary that a description of the land be contained in the deed, if it contains sufficient information so that by reference to some document or instrument referred to in the deed, a true and accurate description can be ascertained.” Neil, 497 So.2d at 800 (relying on Robert E. Ratliff Co. v. Miss. State Hwy. Comm’n, 400 So.2d 1211 (Miss.1981); McManus v. Wilson, 138 Miss. 1, 102 So. 543 (1925); McLendon v. Ravesies, 178 Miss. 428, 173 So. 303 (1937)). “In the deed instruments here, there is no reference to other deeds or documents by which the land may be more specifically identified. However, the record and briefs reflect that appellants’ predecessors in title, from whom they inherited their interests in the lands, were vested with title only to lands in Monroe County involved in this suit. Therefore, the interests acquired by appel-lee are easily found and determined from the records in the office of the Chancery Clerk, Monroe County, Mississippi.” Id. Neil is thus applicable and, like Sansing, assists this Court in reaching our conclusion in today’s case.

¶ 13. The chancellor likewise relied on Overby as an example of when this Court has held a deed invalid. 434 So.2d at 1367. The deed in Overby was a tax deed and considered invalid as several different configurations of the land at issue in that case were possible by following the description. Id. at 1366. This Court distinguished other cases by pointing out that no extrinsic evidence had been introduced to demonstrate that the land descriptions were susceptible of being followed with certainty. Id. The same cannot be said here. We noted that, regarding rules of construction, interpretation of tax deeds differs from that of conveyance deeds and, “[i]ntent of the parties controls in a voluntary conveyance.” Id. at 1367. The extrinsic evidence introduced in today’s case more than adequately shows what the true intent of the parties was. The State of Mississippi, in 1974 condemnation proceedings, identified the road in Section 26 as Telley Road. In a 1975 condemnation proceeding from the Special Court of Eminent Domain of Pearl River County, the judgment (and the map and report considered) refers to the subject road as Telley Road. Other numerous documents, including deeds, deeds of trust, and easements, from various financial institutions of the area, identify the road as Telley Road. In fact, even the deed conveying Tract 2 in the 1996 warranty deed to the Stockstills refers to the road as Telley Road. On cross-examination, Huey Stockstill conceded that he knows that it is customary for people familiar with the area to refer to the road as Telley Road.

¶ 14. The Stockstills argue that the language of the deed is ambiguous and since even the chancellor declared it inaccurate, certain rules of deed construction apply. According to the Stockstills, since the chancellor failed to employ these rules of deed construction, the chancellor’s judgment should be reversed. The Stockstills likewise argue that the “four corners doctrine” discussed in Peoples Bank & Trust Co. v. Nettleton Fox Hunting & Fishing Ass’n, 672 So.2d 1235, 1237-38 (Miss.1996), requires that the document be read as a whole for purposes of ascertaining the true intent of the parties. That doctrine requires that the court proceed to other rules of deed construction if a reading of the language alone does not evidence a clear understanding of the parties’ intent. Id. at 1238. The Stockstills provide various authorities for the proposition that ambiguous deeds are to be construed against the grantor when the grantor’s attorney prepared the deed. See McCuiston v. Blaylock, 215 Miss. 504, 509, 61 So.2d 332, 334 (1952). The Stockstills argue that because the trial court failed to apply these rules of construction, reversal is required. The Gammills, as well as this Court, acknowledge that these general rules of deed construction are valid. More specifically, however, we have said that we will not hold a deed void “for uncertainty of description if, by any reasonable construction, it can be upheld.” Neil, 497 So.2d at 800 (emphasis added).

¶ 15. The chancellor also relied on Dead River Fishing & Hunting Club v. Stovall, 147 Miss. 385, 395-96, 113 So. 336, 337-38 (1927), where this Court stated:

A purchaser of land is charged with notice not only of every statement of fact made in the various conveyances constituting his chain of title, but he is also bound to take notice of and to fully explore and investigate all facts to which his attention may be directed by recitals in said conveyance contained. The duty is also imposed on him to examine all deeds and conveyances previously executed and placed of record by his grant- or — either immediately or remote — if such deeds or conveyances in any way affect his title. And if in any such deed or conveyance there is contained any recital sufficient to put a reasonably prudent man on inquiry as to the sufficiency of the title, then he is charged with notice of all those facts which could and would be disclosed by a diligent and careful investigation.

147 Miss, at 395-96, 113 So. at 337-38. Additionally, the chancellor relied on Fla. Gas Exploration Co. v. Searcy, 385 So.2d 1293 (Miss.1980) (finding constructive notice of parties’ intent based on statements made by the parties before closing as well as the documents), and Adams v. Hill, 208 Miss. 341, 44 So.2d 457, 459 (1950) (holding an ambiguous description is enough to put a buyer on constructive notice that further research was needed and that a reasonable examination of the factual situation would have disclosed the homestead, described as included within the land conveyed). In today’s case, based on testimony at trial that Huey Stockstill was aware of the exception, discussed it with real estate agent Ford, and considered it a mistake or a typographical error, a finding of constructive notice by the chancellor was not manifestly wrong or clearly erroneous.

¶ 16. Under Neil, Sansing, and Overby, and considering the extrinsic evidence introduced at trial by the Gammills, and from the totality of the record, we find the deed in this ease was valid. Stated differently, the record in this case convinces us that the decision of the chancellor on this issue is beyond our authority to disturb. We will only disturb a chancellor’s findings if the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard. Rice, 611 So.2d at 871. This chancellor correctly applied this Court’s decisions in Neil, Sansing, Overby, and Stovall, in reaching his decision. Additionally the chancellor’s findings of fact are more than adequately supported by the record. This issue is thus without merit.

II. WHETHER THE TESTIMONY OF GLEN FORD SHOULD HAVE BEEN ADMITTED AS IT RELATED TO THE INTENT OF THE PARTIES

¶ 17. The chancellor heard testimony from real estate agent Glen Ford, a portion of which was heard strictly as an offer of proof (proffer) on testimony and documents not allowed into evidence by the chancellor. The Stockstills argue on appeal that the chancellor erred in not admitting the testimony of Ford at trial because Ford was a “dual agent,” acting in the interest of both parties. The Stocks-tills had planned on introducing testimony of Ford concerning documents they claim evidence the negotiations between the parties. The Gammills objected based on the fact that the documents were not signed by Stewart Gammill, were not contracts, and were not relevant. The Stockstills also argue on appeal that Ford had apparent authority, even though he lacked actual authority, to represent any statements of the Gammills to the Stockstills concerning the boundaries of the property. The Stockstills rely on several cases from other jurisdictions for the proposition that knowledge of a dual agent is imputed to both parties represented by the dual agent.

¶ 18. The Gammills argue that Ford was never acting as a dual agent on behalf of both parties. In fact the Gam-mills stated they paid Ford only because Ford told them that it was customary for the seller to pay the real estate broker, yet the Gammills denied engaging Ford as an agent. Both parties acknowledged that no written agreement authorized Ford to act as an agent on behalf of the Gammills. This Court held long ago that “the agency of the broker extends only to bringing the parties together. He is not authorized to make sale of the customer’s land, or to make a contract of sale binding on him.” Everman v. Herndon, 71 Miss. 823, 829, 15 So. 135, 137 (1894) (citations omitted). Our well-established standard for reviewing the trial court’s admission or suppression of evidence, including expert testimony, is abuse of discretion, and the discretion possessed by a trial judge in such matters is no doubt great. Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (Miss.2003). Finally, findings of fact made by a chancellor which are supported by credible evidence, may not be set aside on appeal. Allgood v. Allgood, 473 So.2d 416, 421 (Miss.1985). Given the testimony from both parties that Ford was not expressly given actual authority, we cannot state here that the findings of the chancellor, vested with his broad discretion concerning the admission of evidence, were not supported by credible evidence or that they were manifestly wrong or clearly erroneous. This issue is without merit.

III. WHETHER THE STATUTE OF LIMITATIONS BARRED THE CLAIM FOR DAMAGES FOR WRONGFUL CUTTING OF TIMBER

IV. WHETHER McCAIN SHOULD NOW BE OVERRULED AND GAMMILL AWARDED DOUBLE THE FAIR MARKET VALUE OF HER TREES

¶ 19. Because the Stoekstills’ final issue on appeal is so closely related to Gammill’s first issue in the cross-appeal, we will jointly consider and discuss these issues.

¶20. Early on in the life of the chancery court proceedings, and prior to consolidation, the Stoekstills raised via a motion the statute of limitations issue pursuant to Miss.Code Ann. §§ 95-5-10, -29. In a very thorough 4-page order filed on February 18, 2003, the chancellor addressed various pre-trial issues, including this statute of limitations issue raised by the Stoekstills. On this issue, the chancellor, in his order, declined to dismiss Gammill’s complaint based on the alleged running of the statute of limitations. The Stoekstills thereafter filed a motion requesting the chancellor to reconsider his prior ruling on the statute of limitations issue, and the chancellor, by order, denied the motion for reconsideration. At trial, the Stoekstills again raised this issue via a motion to dismiss, which was denied by the chancellor.

¶ 21. In the trial court’s final judgment, Gammill was awarded $65,526.50, based on the value of the timber and the cost of reforestation. The trial court found the sum, stipulated by the parties, represented $50,026.50, the reasonable value of timber cut and sold, and $15,500, the reasonable cost of reforestation. These are damages provided for in Miss.Code Ann. § 95-5-10(1), which allows initial recovery regardless of whether the cutting was done by mistake or in good faith, or whether the cutting was done willfully. Section 95-5-10(2) provides for additional damages if the cutting was actually the result of cutting done willfully, or in reckless disregard for the owner’s rights.

¶ 22. Miss.Code Ann. § 95-5-10 states, in its entirety:

(1) If any person shall cut down, deaden, destroy or take away any tree without the consent of the owner of such tree, such person shall pay to the owner of such tree a sum equal to double the fair market value of the tree cut down, deadened, destroyed or taken away, together with the reasonable cost of reforestation, which cost shall not exceed Two Hundred Fifty Dollars ($250.00) per acre. The liability for the damages established in this subsection shall be absolute and unconditional and the fact that a person cut down, deadened, destroyed or took away any tree in good faith or by honest mistake shall not be an exception or defense to liability. To establish a right of the owner prima facie to recover under the provisions of this subsection, the owner shall only be required to show that such timber belonged to such owner, and that such timber was cut down, deadened, destroyed or taken away by the defendant, his agents or employees, without the consent of such owner. The remedy provided for in this section shall be the exclusive remedy for the cutting down, deadening, destroying or taking away of trees and shall be in lieu of any other compensatory, punitive or exemplary damages for the cutting down, deadening, destroying or taking away of trees but shall not limit actions or awards for other damages caused by a person.
(2) If the cutting down, deadening, destruction or taking away of a tree without the consent of the owner of such tree be done willfully, or in reckless disregard for the rights of the owner of such tree, then in addition to the damages provided for in subsection (1) of this section, the person cutting down, deadening, destroying or taking away such tree shall pay to the owner as a penalty Fifty-five Dollars ($55.00) for every tree so cut down, deadened, destroyed or taken away if such tree is seven (7) inches or more in diameter at a height of eighteen (18) inches above ground level, or Ten Dollars ($10.00) for every such tree so cut down, deadened, destroyed or taken away if such tree is less than seven (7) inches in diameter at a height of eighteen (18) inches above ground level, as established by a preponderance of the evidence. To establish the right of the owner prima facie, to recover under the provisions of this subsection, it shall be required of the owner to show that the defendant or his agents or employees, acting under the command or consent of their principal, willfully and knowingly, in conscious disregard for the rights of the owner, cut down, deadened, destroyed or took away such trees.
(3) All reasonable expert witness fees and attorney’s fees shall be assessed as court costs in the discretion of the court.

¶ 23. In other words, section 95-5-10(1) makes liable anyone who wrongly cuts trees of others and provides damages owed for so doing; and, section 95-5-10(2) provides for an additional award by way of penalties when the wrongful cutting is done willfully, or in reckless disregard. At the time of the accrual of the cause of action in today’s case, section 95-5-29 provided for a one-year limitations period from the time an injury was committed in which to commence an action for “any specific penalty.” Here the Stockstills argue that the trial judge erred in holding that the one-year statute of limitations prescribed in section 95-5-29, as applied to section 95-5-10, did not bar Gammill’s claim for damages, since the trial judge noted that the Stockstills cut the trees on the land more than one year before Gam-mill filed suit. Gammill stipulated that “these penalties” under section 95-5-10(2) were barred by the one-year statute of limitation. However, Gammill argued that while the prosecution of any action for penalties under section 95-5-10(2) would be barred by the one-year statute of limitations; on the other hand, actions for damages specified under section 95-5-10(1) would not necessarily be barred by the one-year statute. In the end, the trial court found McCain to be factually dissimilar, and likewise found that a later decision of the Court of Appeals created doubt as to the applicability of McCain to the case sub judice. See Redhead v. Entergy Mississippi, Inc., 828 So.2d 801, 813 (Miss.Ct.App.2002). Therefore, the trial court refused to dismiss the Gammills’ lawsuit on the basis of a time-bar under section 95-5-29 or section 15-1-33.

¶ 24. The pertinent part of the statute upon which the Stoekstills build their argument is this: “The remedy provided for in this section shall be the exclusive remedy ... and shall be in lieu of any other compensatory, punitive or exemplary damages for the cutting down, deadening, destroying or taking away of trees.... ” Miss.Code Ann. § 95-5-10(1) (emphasis added). The Stoekstills point out that this Court in McCain recognized this statute as the exclusive remedy, noting that other statutes concerning wrongful cutting of timber were repealed. 725 So.2d at 791. See also Greenlee v. Mitchell, 607 So.2d 97, 111 (Miss.1992). The Stoekstills argue that since the statutory damages were the exclusive remedy under Miss.Code Ann. § 95-5-10, no other basis existed under which damages could be sought except pursuant to this particular statute. Gam-mill presents the issue this way: Whether a property owner can recover damages of any type for the wrongful cutting of timber when the timber was cut more than one year before the plaintiff filed suit. Gam-mill argues that any damages which would have been due under subsection (2) were “penalties” because that subsection provides for specific penalties, such as certain dollar amounts per trees of specific sizes. Gammill states that those penalties are precluded because the statute of limitations applies only to specific penalties. However, Gammill, and the trial judge, read the statute as to allow compensatory damages from the Stoekstills for the cut timber.

¶ 25. In McCain, the McCains were property owners who sued Memphis Hardwood Flooring Company for the wrongful cutting of timber. 725 So.2d at 789. Memphis Hardwood had cut the timber between May and July of 1991, but the McCains did not discover the timber had been cut until July of 1993, two years later. Id. They filed suit in early August of 1993. Id. This Court held that section 95-5-29, then a one-year statute of limitations, applied only to subsection (2) and not to subsection (1) as the latter was not a specific penalty controlled by section 95-5-29. We likewise found both subsections (1) and (2) of section 95-5-10 to be penal, finding that subsection (1) permits other damages caused by a person and that subsection (2) requires a specific penalty; thus, section 95-5-29 controlled only subsection (2). Id. at 792-93. At the time McCain was decided, section 95-5-29 had not been amended. The statute applicable in McCain stated: “An action for any specific penalty given by this chapter may be prosecuted in any court of competent jurisdiction within twelve months from the time the injury was committed, and not after; and a recovery of any penalty herein given shall not be a bar to any action for further damages, or to any criminal prosecution for any such offense as herein enumerated. A party, if he so elect, may, under any of the provisions of this chapter, claim less than the penalty given.” Id. at 790 (quoting Miss.Code Ann. § 95-5-29 (1994)). The amended statute now has this additional sentence opening its only paragraph: “An action for the remedies and penalties provided by Section 95-5-10 may be prosecuted in any court of competent jurisdiction within twenty-four (24) months from the time the injury was committed and not after.” Miss.Code Ann. § 95-5-29 (Supp. 2006). The first sentence of the old statute is now the second sentence and begins, “All other actions for any specific penalty given by this chapter may be prosecuted in any court of competent jurisdiction within twelve (12) months from the time the injury was committed, and not after; and a recovery of any penalty herein given shall not be a bar to any action for further damages, or to any criminal prosecution for any such offense as herein enumerated. A party, if he so elect, may, under any of the provisions of this chapter, claim less than the penalty given.” Miss.Code Ann. § 95-5-29 (Supp.2006).

¶ 26. On cross-appeal, and seemingly in response to the Stockstills’ final issue raised, Gammill asks this Court to revisit McCain and now overrule it, since the legislative revision to section 95-5-29 specified portions of section 95-5-10 as remedial, and portions of it as penal, thus making the statute subject to varying limitations periods. In doing so, Gammill concedes she is not due “penalties,” but requests that her remedial damages be not only affirmed but doubled in that she should be awarded under the statute “double the fair market value” of the trees which were cut by the Stockstills. Gammill urges this Court to overrule McCain so that she may prevail on this issue, since, in McCain, we specifically found both subsections under the statute to be penal. McCain, 725 So.2d at 794. Indeed, Gammill asserts that the statute is remedial as it calls for double fair market value of the trees cut, which could be deemed to be a specific, and not a general, penalty. “[Ajfter the wrongdoer pays the fair market value of the trees to the owner, any additional amount paid is not compensatory but a penalty.” McCain, 725 So.2d at 793.

¶27. Gammill relies on the dissenting opinion in McCain which found section 95-5-10(2) to be penal, but section 95-5-10(1) to be remedial, describing subsection (1) as “intended to compensate tree owners, regardless of whether the ‘guilty’ party acted in good faith or by honest mistake.” Id. at 796 (McRae, J., dissenting, joined by Pittman, P.J., and Mills, J.). The Legislature amended the statute in its next session following our decision in McCain. In light of the legislative revisions to section 95-5-29, and upon further consideration of McCain, we are of the opinion that McCain should be overruled to the extent that the remedies provided in section 95-5-10(1) are subject to the limitations period set out in section 15-1-33. Likewise, in McCain, we stated:

The plaintiffs are not entitled to double the fair market value of the trees, the fair market value of the trees, or restoration costs. The double fair market value damages and reforestation costs are only permissible if action was taken within 12 months of the offense.

Id. at 794. We thus also find that McCain should be overruled to the extent that section 95-5-29 would apply to a claim for the fair market value of the trees cut or the cost of reforestation. Such damages would clearly be considered to be compensatory damages, while a claim for “double the fair market value” of the trees cut would indeed be penal in nature.

¶28. In sum, McCain is overruled to the extent that it found that the remedies provided in section 95-5-10(1) were subject to the limitations period set out in section 15-1-33, and that section 95-5-29 would apply to a claim for the fair market value of the trees cut and the cost of reforestation. Since the 1999 legislative amendment to Miss.Code Ann. § 95-5-29 does not apply to today’s case, the practical effect of today’s decision is that Gam-mill’s claims for the fair market value of the trees cut and reforestation costs were governed by Miss.Code Ann. § 15-1-49 (Rev.2003), which provides for a three-year limitations period. Therefore, in applying section 15-1-49 to Gammill’s claims for the fair market value of the trees cut and the cost of reforestation, these claims were not barred. We thus find that the chancellor was not in error in entering a judgment in favor of Gammill and against the Stocks-tills for the sum of $65,526.50, representing the reasonable value of the timber cut ($50,026.50), and the reasonable cost of reforestation of the subject land ($15,-500.00).

V. WHETHER GAMMILL SHOULD HAVE BEEN AWARDED ATTORNEYS FEES’ AND EXPERT WITNESS FEES

¶29. In denying Gammill’s request for attorneys fees and expert witness fees, the chancellor recognized that Miss.Code Ann. § 95-5-10(3) gives the trial judge discretion to award expert witness fees and attorneys’ fees to a litigant who prevails on a claim of cutting of timber. “Ml reasonable expert witness fees and attorney’s fees shall be assessed as court costs in the discretion of the court.” Miss. Code Ann. § 95-5-10(3). The trial judge also read Miss.Code Ann. § 95-5-10 as a whole to provide for two types of violations, intentional cutting and cutting done by mistake, each resulting in different damage amounts for violations. The trial court found that the Stockstills cut down the trees on the subject land mistakenly, not intentionally, and that to award attorneys’ fees in such a case would amount to removing the discretion afforded the trial judge by the statute under Miss.Code Ann. § 95-5-10(3) and encourage rewarding attorneys’ fees in every such case of a violation by mistake. The trial court found that, though punitive damages were not a prerequisite to awarding attorneys’ fees, Mississippi law seemed to frown on awarding attorneys’ fees in cases unless they were coupled with punitive damages. See Grisham v. Hinton, 490 So.2d 1201, 1205 (Miss.1986). “With the sole exception of punitive damages cases, in the absence of contractual provision or statutory authority therefor, this Court has never approved awarding trial expenses and attorney’s fees to the successful litigant. It has consistently been our view that such expenses are not allowable as part of the costs. Even where legal counsel for plaintiff unnecessarily put the opposing side to extra legal and trial expenses ... we refused to permit an award of attorney’s fees.” Id. at 1205-06 (internal citations omitted). Since no punitive damages were awarded in this case, and because the record supports a finding that the cutting of the timber was done by mistake, the trial judge in his discretion decided not to award attorneys’ fees to Gammill, notwithstanding the fact that judgment was entered in her favor.

¶ 30. On cross-appeal, Gammill argues primarily that the word “shall” means that awarding attorneys’ fees is absolutely required. Indeed, Miss.Code Ann. § 95-5-10(3) states: “All reasonable expert witness fees and attorney’s fees shall be assessed as court costs in the discretion of the court.” However, when this subsection is viewed in its entirety, the only logical interpretation which can be afforded is that the court has discretion in determining whether to award expert witness fees and attorneys fees, and if so, in what (reasonable) amount, but if such fees are awarded by the court, in the exercise of discretion, such fees “shall be assessed as court costs.” From the record, we find no abuse of discretion by the chancellor in refusing to award a successful litigant expert witness fees and attorneys’ fees. Stated differently, we certainly cannot find from the record that the chancellor, in the denial of expert witness fees and attorneys’ fees to Gammill was manifestly wrong, clearly erroneous, or applied the wrong legal standard. This issue is without merit.

VI. WHETHER GAMMILL SHOULD HAVE BEEN AWARDED PREJUDGMENT INTEREST FROM THE DATE SHE FILED SUIT

¶ 31. On cross-appeal, Gam-mill argues that the chancellor abused his discretion in choosing not to award prejudgment interest. It is well-settled that in Mississippi a chancellor is afforded discretion in deciding whether to award prejudgment interest. “An award of prejudgment interest rests in the discretion of the awarding judge. Under Mississippi law, prejudgment interest may be allowed in cases where the amount due is liquidated when the claim is originally made or where the denial of a claim is frivolous or in bad faith. No award of prejudgment interest may rationally be made where the principal amount has not been fixed prior to judgment.” Coho Res. v. McCarthy, 829 So.2d 1, 19-20 (Miss.2002) (quoting Warwick v. Matheney, 603 So.2d 330, 342 (Miss.1992)). See also Tupelo Redev. Agency v. Abernathy, 913 So.2d 278, 286 (Miss.2005).

¶ 32. Gammill argues that the Stocks-tills’ denial of the claim in this case was in bad faith as they were aware that the land in question actually belonged to Gammill, and that the Stockstills therefore should not have cut the timber on the land. While it is true that the Stockstills were on constructive notice that further research was needed and they, as reasonably prudent people, should have been on inquiry, charged with facts which could be revealed in a diligent and careful investigation, this does not mean they acted in bad faith. Of course, what could have been revealed was that the Stockstills actually owned the land. They simply made the assumption, albeit erroneously, that the exception was superfluous. As noted above, our case law states when prejudgment interest may be appropriate, when it is clearly not allowed, and that determining whether to award such interest is in the discretion of the trial judge. We thus cannot find that the chancellor’s findings were manifestly wrong, clearly erroneous, or the result of an application of the wrong legal standard. No abuse of discretion was committed. This issue is without merit.

CONCLUSION

¶ 33. For the reasons stated, the final judgment entered by the Chancery Court of Pearl River County is affirmed both on direct appeal and on cross-appeal.

¶ 34. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: AFFIRMED.

SMITH, C.J., WALLER, P.J., DIAZ, EASLEY, GRAVES, DICKINSON AND RANDOLPH, JJ„ CONCUR. COBB, P.J., NOT PARTICIPATING.

      . The chancellor specifically found that the Stockstills had "harvested the timber on the 'property in dispute' in or around December of 1997.”

      . Even though other members of the Gammill family were involved in these consolidated cases, Lynn Crosby Gammill asserted in her chancery court complaint and amended complaint that she "has been since January 1, 1983, the sole owner” of the subject land. However, as hereinafter noted, the Stockstills later filed a circuit court action naming as defendants members of the Gammill family; therefore, appellees/cross-appellants will sometimes be referred to as either "Gammill” or "the Gammills."

      .In their circuit court suit, the Stockstills sued Stewart Gammill, III, Stewart Gammill, IV, Lucius Olen Crosby Gammill, Jennifer Lynn Gammill McKay, and Commonwealth Land Title Insurance Company.

      . In his opinion, the chancellor found that there was sufficient evidence revealing that it was fairly common knowledge that "Telley Road” was sometimes used in referring to "Edmund Mitchell Road.” The chancellor found that "[ajlthough the description of the 'property in dispute' was inaccurate in its reference to 'Telley Road,’ the description is still sufficient to allow one to locate the property with some certainty.”

      . The chancery court also entered a final judgment in the Stockstills' suit, but noted the cases had been consolidated.

      . Miss.Code Ann. § 95-5-29, as it existed at the time, the Stockstills harvested the timber in December, 1997, stated:
      An action for any specific penally given by this chapter may be prosecuted in any court of competent jurisdiction within twelve months from the time the injury was committed, and not after; and a recovery of any penalty herein given shall not be a bar to any action for further damages, or to any criminal prosecution for any such offense as herein enumerated. A party, if he so elect, may, under any of the provisions of this chapter, claim less than the penalty given.
      The 1999 legislative amendment, effective from and after March 19, 1999, states:
      An action for the remedies and penalties provided by Section 95-5-10 may be prosecuted in any court of competent jurisdiction within twenty-four (24) months from the time the injury was committed and not after. All other actions for any specific penalty given by this chapter may be prosecuted in any court of competent jurisdiction within twelve (12) months from the time the injury was committed, and not after; and a recovery of any penalty herein given shall not be a bar to any action for further damages, or to any criminal prosecution for any such offense as herein enumerated. A party, if he so elect, may, under any of the provisions of this chapter, claim less than the penalty given.
      This 1999 amendment does not apply to today’s case.

      . In fact, the trial court found Redhead to be in conflict with the earlier case of Jones v. Lovett, 755 So.2d 1243, 1247-48 (Miss.Ct. App.2000), which applied McCain in finding that an action commenced under section 95-5-10 was time-barred by both sections 95-5-29 and 15-1-33. Miss.Code Ann. § 15-1-33 states that "[a]ll actions and suits for any penalty or forfeiture on any penal statute, brought by any person to whom the penalty or forfeiture is given, in whole or in part, shall be commenced within one year next after the offense was committed, and not after.”

      . In McCain, we found that section 95-5-10(2) was subject to the limitations period provided in section 95-5-29, and we found section 95-5-10(1) was subject to the limitations period provided in section 15-1-33. 725 So.2d at 794.

      . The majority in McCain found that section 95-5-10(1) was not subject to section 95-5-29, but was subject to the limitations period set out in section 15-1-33. 725 So.2d at 794.

      . Gammill conceded any claimed "penalties” under Miss.Code Ann. § 95-5-10(2) were barred by the one-year statute of limitations in Miss.Code Ann. § 95-5-29.


author: LEE, P.J.,

text:
    Emma HANNAH, Appellant, v. STATE of Mississippi, Appellee.
    No. 2004-CP-00725-COA.
    Court of Appeals of Mississippi.
    April 26, 2005.
    Rehearing Denied Oct. 25, 2005.
    Emma Hannah, Appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., MYERS and BARNES, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On December 11, 2002, Emma Hannah pled guilty to manslaughter in the June 8, 2001, slaying of Winifred Hannah by throwing a pot of boiling water on him, resulting in his death approximately twenty-one days later. Hannah was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. Hannah filed a motion for post-conviction relief in the Circuit Court of Winston County. The trial court denied the motion for post-conviction relief on March 12, 2004, however that order was neither entered in the minutes of the court, nor filed with the circuit clerk. On November 8, 2004, the circuit court entered a substitute order denying Hannah’s motion for post-conviction relief. It is from this denial that Hannah now appeals, arguing four assignments of error which have been summarized as follows: (1) Did the State err in its investigation of the crime scene, thereby permitting the destruction of evidence that could have eliminated Hannah as a suspect? (2) Did the trial court err in failing to dismiss the charges against Hannah because of the State’s failure to preserve certain samples of saliva and semen? (3) Were Hannah’s due process rights violated if the State concealed certain evidence? and (4) Was Mr. Hannah’s death caused by medical treatment?

¶ 2. Finding no merit to Hannah’s errors, we affirm the decision of the trial court.

STANDARD OF REVIEW

¶ 3. “When reviewing a lower court’s decision to deny a petition for post-conviction relief this court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Brown v. State, 731 So.2d 595(¶ 6) (Miss.1999)

I. DID THE TRIAL COURT ERR IN DENYING HANNAH’S MOTION FOR POST-CONVICTION RELIEF?

(A) Assignment of errors protesting the investigation of the crime scene

¶ 4. In her motion for post-conviction relief and in her brief, Hannah argues that the police inadequately investigated the crime. Hannah asserts that had the police investigated properly, evidence would have been discovered which would have obviated any need to consider her a suspect. In Swift v. State, 815 So.2d 1230, 1234(¶ 3) (Miss.Ct.App.2001), this Court stated:

The law is well settled that when properly entered and accepted, ‘[a] guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial and the right that the prosecution prove each element of the offense beyond a reasonable doubt.’

¶ 5. Assuming that Hannah’s guilty plea was valid, a point she does not contest on appeal, she waived her opportunity for a jury to consider alternate theories of how Mr. Hannah was scalded to death. Hannah has waived her opportunity for a jury to review the sufficiency of evidence in her case, and we decline to review it as well. Steele v. State, 845 So.2d 758, 759(¶ 4) (Miss.Ct.App.2003).

(B) Assignment of error concerning evidence the State “suppressed”

¶ 6. In two assignments of errors Hannah argues that the State concealed certain evidence from her. First, Hannah argues that the trial court should have dismissed the indictment because “the state had breached a constitutional duty to preserve any useful evidence that would provide due process of law and a criminal defense.” Hannah has failed to include any additional information in support of this allegation, therefore we find that it lacks merit. See Ray v. State, 876 So.2d 1082, 1037(¶ 22) (Miss.Ct.App.2004).

¶ 7. Hannah next argues that the State did not disclose that Mr. Hannah told staff at the burn center that his girlfriend poured boiling water on him. In her motion for post-conviction relief, as well as in her brief, Hannah included some of Mr. Hannah’s medical records. One chart in particular indicated that “Mr. Hannah was a 42 year old black man who received multiple burns after it was stated that his girlfriend threw a pan of boiling hot water over him while he was sleeping.” A plea of guilty waives any evidentiary issue. Jefferson v. State, 855 So.2d 1012, 1014(¶ 11) (Miss.Ct.App.2003). Furthermore, to the extent that Hannah elected to enter a plea of guilty, she waived any discovery violations that might have occurred. Swift, 815 So.2d at 1234(¶ 12). As previously discussed, Hannah pled guilty, which waived her right to receive evidence which might have been presented through discovery. We accordingly find that this issue lacks merit.

(C) Assignment of error regarding the cause of death

¶ 8. Finally Hannah argues that Mr. Hannah died as a result of misdiagnosis or mistake. As previously discussed in this opinion, in pleading guilty, Hannah waived the right to present alternate theories of Mr. Hannah’s death to the jury. This issue is without merit.

¶ 9. After a careful review of the motion for post-conviction relief, Hannah’s brief on appeal, and the record, we cannot find that the trial judge abused his discretion in denying Hannah’s motion. Accordingly, we affirm the judgment of the circuit court.

UK). THE JUDGMENT OF THE CIRCUIT COURT OF WINSTON COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WINSTON COUNTY.

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