author: ISHEE, J., CARLTON, J., ROBERTS, J.,

text:
    Antonio WILLIAMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01788-COA.
    Court of Appeals of Mississippi.
    June 14, 2011.
    Roberts, J., dissented with separate written opinion joined by Griffis, P.J., and Barnes and Maxwell, JJ.

      Antonio Williams, appellant, pro se.
    Office of the Attorney General by Laura H. Tedder, attorney for appellee.
   ISHEE, J.,

for the Court:

¶ 1. In 1987, Antonio Williams was convicted of murder and sentenced by the Hinds County Circuit Court to life in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or probation. Because Williams had been previously convicted of burglary on two separate occasions, Mississippi’s habitual-offender statute was applied to his sentence. On direct appeal, Williams’s conviction was affirmed. In July 2009, Williams filed a motion for post-conviction relief (PCR), which was denied. Aggrieved, Williams now appeals. Finding no error, we affirm.

FACTS

¶ 2. In December 1987, a Hinds County jury convicted Williams of murder. Upon his conviction, the prosecution moved the trial court to apply Mississippi’s habitual-offender statute to Williams’s sentence. In support thereof, the prosecution introduced documents showing that Williams had been previously convicted on two separate occasions of burglary, and had served time for both convictions. Williams’s counsel made no objection to the documents. Thereafter, the trial court sentenced Williams as a habitual offender to life without eligibility for parole or probation. Williams’s subsequent appeal of the conviction was denied. See Williams v. State, 566 So.2d 469 (Miss.1990).

¶ 3. In April 2009, Williams filed a PCR motion to vacate his sentence, claiming the application of the habitual-offender statute was illegal. The trial court succinctly denied the PCR motion, stating: “The Court finds that it plainly appears from the face of the motion, exhibits and prior proceedings in the case, that Petitioner’s Motion is without merit and that the Petitioner is not entitled to any relief on his claims.”

¶4. Williams now appeals and argues the following: he received ineffective assistance of counsel during the sentencing phase of his murder conviction; application of the habitual-offender statute was illegal because his prior conviction of burglary was unconstitutional; and finally, the trial court erred by denying his PCR motion without conducting a hearing on Williams’s claims. Finding no error, we affirm.

DISCUSSION

I. Ineffective Assistance of Counsel During Sentencing

¶ 5. Williams asserts that his counsel was constitutionally ineffective during the sentencing phase of his murder conviction. It is well settled that the standard of review when discussing a claim of ineffective assistance of counsel is the two-prong analysis originally set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prove ineffective assistance of counsel, Williams must show the following: “[fjirst, ... that counsel’s performance was deficient. ... [sjecond, ... that the deficient performance prejudiced the defense.” Liddell v. State, 7 So.3d 217, 219 (¶6) (Miss.2009) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). Furthermore, “[i]n considering a claim of ineffective assistance of counsel, an appellate court must strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance.” Id. (¶ 6) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).

¶ 6. In support of his ineffective-assistance-of-counsel claim, Williams references his trial counsel’s failure to object to the court’s consideration of documents produced by the prosecution as proof of Williams’s two prior burglary convictions. Williams argues that both of the prior convictions are unconstitutional, also due to ineffective assistance of counsel; therefore, the court’s application of the habitual-offender statute, Mississippi Code Annotated section 99-19-81 (Rev.2007), was illegal.

¶ 7. Williams asserts that his trial counsel should have raised the claims that he had received ineffective assistance of counsel in the prior convictions. Williams states that his trial counsel’s failure to advise the court of Williams’s prior alleged ineffective assistance of counsel allowed for his purportedly improper conviction in the instant case under the habitual-offender statute.

¶ 8. The Mississippi Supreme Court has recognized that where a party to a PCR motion offers only his affidavit in support of an ineffective-assistance-of-counsel claim, the claim is without merit. Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990). Additionally, this Court has previously held that evidence of counsel’s deficient performance must be alleged with “specificity and detail.” Kinney v. State, 737 So.2d 1038, 1041 (¶ 8) (Miss.Ct.App. 1999) (citation omitted).

¶ 9. Here, while Williams assigns error as to his counsel’s performance, he only offers his own allegations as evidence. Furthermore, assuming arguendo that Williams’s allegations fulfill the evidentiary requirements for asserting an ineffective-assistance-of-counsel claim, we cannot find that any of the alleged errors prejudiced Williams’s defense.

¶ 10. As such, Williams cannot satisfy either Strickland prong. Accordingly, we affirm the trial court’s denial of Williams’s claim of ineffective assistance of counsel. This issue is meritless.

II. Constitutionality of Prior Convictions and Legality of Habitual Offender Status

¶ 11. Williams asserts that his two prior felony convictions are unconstitutional because his guilty pleas were not voluntarily and intelligently given; hence, the application of the habitual-offender statute to his sentence was unconstitutional. It is well-settled law that when reviewing the voluntariness of guilty pleas, an appellate court “will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous.” Walton v. State, 16 So.3d 66, 70 (¶ 8) (Miss. Ct.App.2009) (quoting House v. State, 754 So.2d 1147, 1152 (¶ 24) (Miss.1999)).

¶ 12. Here, Williams attempts to address the voluntariness of the guilty pleas that he entered in 1982 for two separate burglary convictions. However, Williams has never challenged the validity of his guilty pleas until this appeal. This Court is not procedurally positioned to address Williams’s arguments regarding his guilty pleas since those issues are not properly before us. Additionally, even if Williams’s claims regarding his guilty pleas were properly before this Court, the claims would be time-barred pursuant to the three-year statute of limitations set forth in Mississippi Code Annotated section 99-39-5 (Supp.2010). Accordingly, Williams’s prior unchallenged convictions were valid at the time the trial court applied the habitual-offender statute to Williams’s sentence.

¶ 13. With regard to a trial court’s decision to apply the habitual-offender statute, the Mississippi Supreme Court has stated the following:

At a hearing conducted by a trial court ... for determining the defendant’s status as [a] habitual offender, the prosecution must show[,] and the trial court must determine^] that the records of the prior convictions are accurate, that they fulfill the requirements [for habitual offender status], and that the defendant sought to be so sentenced is indeed the person who was previously convicted. Once the above mentioned factors have been ascertained, the trial court is not required to go beyond the face of the prior convictions sought to be used in establishing the defendant’s status as [a] habitual offender.

Phillips v. State, 421 So.2d 476, 481 (Miss. 1982) (citations omitted).

¶ 14. In this case, the trial court considered valid prior convictions in its decision to apply the habitual-offender statute to Williams’s sentence. We cannot conclude that the trial court improperly carried out its charge when it enhanced Williams’s sentence under the habitual offender statute. Therefore, we find this issue is without merit.

III. Failure of Trial Court to Grant Hearing on PCR Motion

¶ 15. Williams asserts that the trial court erred in failing to grant an evidentiary hearing on his PCR motion before denying the motion. It is well settled that: “An evidentiary hearing is not necessary where the allegations in a petition for post-conviction relief are specific and conclusory.” Russell v. State, 44 So.3d 431, 434 (116) (Miss.Ct.App.2010) (quoting Cole v. State, 666 So.2d 767, 777 (Miss.1995)). “The trial court is not required to grant an evidentiary hearing on every petition it entertains.” Byrne v. State, 30 So.3d 1264, 1266 (¶ 7) (Miss.Ct. App.2010) (citation omitted).

¶ 16. In its order, the trial court in the instant case stated that all “motions, exhibits and prior proceedings in the case” had been sufficiently reviewed prior to denying Williams’s PCR motion. After reviewing the record, we agree with the trial court that an evidentiary hearing was not required prior to denying Williams’s PCR motion. Williams’s allegations lacked any disputed information that would have necessitated a hearing. His allegations were specific and conclusory. Accordingly, this issue is meritless.

¶ 17. Although Williams’s issues on appeal have been found to be without merit, the dissent raises a separate question of this Court’s jurisdiction over the instant case. The dissent argues that it is unclear whether or not Williams obtained permission from the Mississippi Supreme Court to file his appeal in the circuit court. However, neither party has asserted the issue of jurisdiction. Additionally, although the dissent raises the question of what may be on file with the Mississippi Supreme Court Clerk’s Office, no such information is contained within the record of which we are bound. Indeed, the record is deplete as to a showing of lack of jurisdiction, and this Court has no personal knowledge that we lack jurisdiction over the matter. Again, as an appellate court, we are bound by the record and the record alone in our review of Williams’s claim. See e.g. McCullough v. State, 47 So.3d 1206, 1210 (¶ 18) (Miss.Ct.App.2010) (citation omitted). Furthermore, this Court reviews approximately one hundred claims for post-conviction relief each year. For the sake of judicial economy, we decline to place the unreasonable burden upon this Court to search out every issue not raised by either party.

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

LEE, C.J., AND MYERS, J., CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION. ROBERTS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, P.J., BARNES AND MAXWELL, JJ. RUSSELL, J., NOT PARTICIPATING.

CARLTON, J.,

concurring in result only:

¶ 19. I concur with the result of the majority and find no need for a dissent. This Court has acknowledged that appellate courts may affirm a trial court’s decision on a different basis underlying the trial court’s decision. Riley v. Town of Lambert, 856 So.2d 721, 723 (¶ 11) (Miss. Ct.App.2003). The dissent takes issue with the majority opinion’s affirmance of the circuit court’s denial of Williams’s motion for post-conviction relief (PCR) on its merits. The dissent would instead vacate the circuit court’s judgment and remand the case to the circuit court to dismiss for lack of jurisdiction. Such a procedure constitutes a judicially inefficient disposition that reaches the same result. As the majority acknowledges, neither party raises an issue as to the circuit court’s lack of jurisdiction; hence, that issue is not briefed before this Court. The majority also notes that even if the circuit court lacked jurisdiction, the PCR motion still lacks merit. Nonetheless, if this Court wishes to dismiss on a basis not briefed or raised before this Court pertaining to a lack of jurisdiction, then we may request that the appellate record be supplemented or order additional briefing, if needed, to decide properly the case with accurate information, instead of relying on assumptions. To direct the circuit court to dismiss for lack of jurisdiction assumes that the collateral criminal case file fails to contain permission from the Mississippi Supreme Court for Williams to file a motion for PCR and assumes that the circuit court, thus, failed to ascertain jurisdiction. See Willie v. State, — So.3d -,- (¶ 8) (Miss.Ct.App.2011).

¶ 20. The Mississippi Rule of Appellate Procedure 10 requires the parties to designate the content of the record. Rule 10 also specifies that the record shall consist of the designated papers and exhibits filed in the trial court, including the transcript of the proceedings, if any, and a certified copy of the clerk’s docket entries at the trial court. When filing a PCR motion, the motion is filed in a separate civil cause, even though the movant seeks relief from a sentence imposed for a criminal conviction. Often, the same documents that a movant designates for the record on appeal in a PCR case are also part of the record in the related criminal cause. Those documents, for whatever reason, might not appear in the appellate record even though they exist in the related file of the criminal cause. I submit that in such instances, this Court may direct supplementation of the record for missing documents or may request additional briefing prior to reaching a decision in a case.

ROBERTS, J.,

dissenting:

¶ 21. Today’s case is a simple one. In the scheme contained in the Mississippi Uniform Post-Conviction Collateral Relief Act, when a prisoner seeks a collateral attack on his conviction or sentence, he must commence his attack in the court that last had jurisdiction over his conviction and sentence. Martin v. State, 556 So.2d 357, 359 (Miss.1990). The court that last exercises jurisdiction has original, exclusive jurisdiction to entertain any attempt at a collateral attack. Id. In Antonio Williams’s case, that court was, most definitely, the Mississippi Supreme Court and not the Hinds County Circuit Court. Unfortunately, it is clear from the record before us that Williams knew this, but he attempts an end-run by filing his motion for post-conviction relief (PCR) in the circuit court without first obtaining permission from the supreme court. As such, the circuit court was without jurisdiction to entertain Williams’s PCR motion. The majority affirms the circuit court’s dismissal of Williams’ PCR motion on the merits; however, I would vacate the circuit court’s judgment and remand the case to the circuit court to dismiss for lack of jurisdiction. Therefore, I dissent.

¶ 22. On December 8, 1987, a jury in the circuit court found Williams guilty of murder. Williams v. State, 566 So.2d 469, 470 (Miss.1990). Having been found a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2000), Williams was sentenced to life imprisonment without the eligibility for parole. Id. at 470-471. Williams appealed to the supreme court. The supreme court affirmed both Williams’s conviction and sentence. Williams, 566 So.2d at 472 (Miss.1990). On November 6, 2003, in response to Williams’s application for leave to proceed with his PCR motion in the circuit court, the supreme court entered an order denying his application. Williams again filed an application with the supreme court for leave to file a successive PCR motion in the circuit court on October 20, 2006. This application was, once again, denied by the supreme court by written order filed on November 15, 2006.

¶ 23. Undeterred by the supreme court’s two previous dismissals of his attempt to gain permission to file a PCR motion in the circuit court as required by Mississippi Code Annotated section 99-39-7 (Supp.2010), Williams attempted an end-run around this requirement by filing his current PCR motion in the circuit court in April 2009. On the face of his motion, Williams conveniently fails to mention his appeal and affirmance by the supreme court. Moreover, he swears under oath that “[tjhere have been no prior proceedings in any court State o[r] Federal on the issues presented in this instant motion.” The circuit court denied Williams’s PCR motion; it is from this denial that Williams appeals.

¶ 24. It is well settled that when there is an issue regarding jurisdiction not raised by either party, it is the duty of the appellate court to raise the issue on its own motion. Winborn v. State, 213 Miss. 322, 323, 56 So.2d 885, 885 (1952); Drummond v. State, 184 Miss. 738, 185 So. 207, 209 (1938). I must note that just recently, on April 19, 2011, this Court unanimously vacated and remanded another inmate’s PCR appeal under almost identical circumstances. In Willie v. State, — So.3d - (¶4) (Miss.Ct.App. 2011), we found that “[ajlthough neither party raised the jurisdictional issue in its brief, it is well established that it is ‘[t]he duty of this Court to raise the question which involves jurisdiction, on its own motion[.]’ ” (quoting Slater v. Bishop, 251 Miss. 306, 308, 169 So.2d 465, 467 (1964)). The majority claims “[f]or the sake of judicial economy, we decline to place the unreasonable burden upon this Court to search out every issue not raised by either party.” While I acknowledge that searching the records of this Court and its clerk’s office can be difficult and frustrating at times, when jurisdictional issues exist, such a search is essential. Failure to do so could prove embarrassing, if not disastrous. Consider Williams’s case as an example. The supreme court validated Williams’s murder conviction and sentence when it affirmed both in 1990. The mandate issued. Consider, for the sake of argument, that this Court found Williams’s ineffective-assistance-of-counsel claim meritorious. We set aside his conviction or sentence and remand the case for a new trial. Upon certiorari review, no doubt could exist that this Court would be reversed since the supreme court has never granted Williams permission to make a collateral attack on his conviction or sentence. Such outcome is not, I submit, consistent with judicial economy.

¶ 25. Pursuant to Mississippi Code Annotated section 99-39-7, before Williams may file a PCR motion in the circuit court, he must first obtain the permission of the supreme court. The statute reads in pertinent part:

Where the conviction and sentence have been affirmed on appeal or the appeal dismissed, the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the Justices of the Supreme Court of Mississippi, convened for said purpose either in term time or in vacation, and an order granted allowing the filing of such motion in the trial court.

Id. (emphasis added).

¶ 26. This Court has held that: “[Wjhen a defendant has raised issues that are considered and rejected on direct appeal, the defendant must obtain the permission of the supreme court in order to file a[PCR] motion in the circuit court.” Lacy v. State, 821 So.2d 850, 852 (¶ 6) (Miss.Ct.App.2001). Therefore, Williams should have obtained the permission of the supreme court before filing his PCR in the circuit court because “the court to last exercise jurisdiction in the case has exclusive, original jurisdiction over the [PCR motion].” Martin, 556 So.2d at 359 (emphasis added).

¶ 27. It is clear that Williams’s murder conviction and sentence were affirmed by the supreme court in 1990. This action makes the supreme court the last court to exercise jurisdiction over the case; thus, it retained exclusive jurisdiction over the current PCR motion. The statute clearly requires Williams to obtain permission from the supreme court to file his PCR motion in the circuit court; however, the record before us is simply devoid of any such request from Williams or any order from the supreme court indicating he was given permission to file his current PCR motion in the circuit court. In fact, the records in the supreme court clerk’s office relevant to Williams’s murder conviction, of which we take judicial notice, only contain Williams’s previous requests for permission and the subsequent denials of permission by the supreme court. It is clear from Williams’s prior requests that he was fully aware of the statute’s requirement that he seek permission from the supreme court. By filing his PCR motion directly with the circuit court, he is in blatant disregard of the statute’s requirements.

¶ 28. Further, Williams’s current PCR motion does not comply with Mississippi Code Annotated section 99-39-9 (Supp. 2010), which outlines the content required in PCR motions. The statute reads in pertinent part:

A motion under this article shall name the State of Mississippi as respondent and shall contain the following:
(f) The identity of any previous proceedings in federal or state courts that the petitioner may have taken to secure relief from his conviction and sentence.

Miss.Code Ann. § 99 — 39—9(l)(f).

¶ 29. Generally, pro se motions will not be avoided based on “inartfully drafted pleadings”; however, this Court has held that pro se “post-conviction petitions must meet the dictates of section 99-39-9 of the Mississippi Code.... ” Winston v. State, 893 So.2d 274, 275 (¶ 4) (Miss.Ct.App. 2005). Although required by statute, Williams’s PCR motion does not indicate that he had directly appealed his conviction and sentence to the supreme court, nor does it indicate that he previously filed any requests with the supreme court for permission to file his PCR motion in the trial court. He certainly does not mention that the supreme court had twice previously denied him permission. Williams’s failure to provide all required information in his PCR motion should have resulted in its dismissal by the circuit court.

¶ 30. Because Williams failed to obtain permission from the supreme court to file his PCR motion in the circuit court, the circuit court did not have jurisdiction to decide his motion on the merits. I find that the circuit court should have dismissed Williams’s PCR motion without prejudice. If Williams obtains permission from the supreme court to file his PCR motion, he may proceed in the circuit court.

GRIFFIS, P.J., BARNES AND MAXWELL, JJ„ JOIN THIS OPINION.

      . I note that this opinion is still subject to revision or withdrawal.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Roy L. CLINCY, Appellant v. Daudra ATWOOD and Dale Caskey, Appellees.
    No. 2010-CP-00877-COA.
    Court of Appeals of Mississippi.
    June 14, 2011.

      Roy L. Clincy, appellant, pro se.
    Lee Thaggard, Meridian, attorney for appellees.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Roy Clincy, an inmate at the East Mississippi Correctional Facility (EMCF), appeals the judgment of the Lauderdale County Circuit Court dismissing, sua sponte, his complaint against Daudra Atwood, Dale Caskey, and Christopher Epps.

FACTS

¶ 2. Clincy alleges that on February 20, 2000, a physician with the Mississippi Department of Corrections (MDOC) diagnosed him with arthritis and prescribed him arthritis medication. Clincy claims that when he was transferred to the EMCF in March 2009, his arthritis medication was confiscated by the EMCF personnel, and he subsequently suffered extreme lower back pain because he was unable to take his medication. Clincy claims that on May 15, 2009, he was examined by an EMCF nurse who gave him an ibuprofen and refused to allow him to see a doctor. Clincy also complains that he was wrongfully charged six dollars for the medical visit. Clincy further alleges that on June 6, 2009, he saw Dr. Obosgas, a chronic-care doctor, but Dr. Obosgas had him removed from the examination room when he began discussing his arthritis condition during his appointment.

¶ 3. Clincy filed a request for administrative remedy with the MDOC through its Administrative Remedy Program (ARP), requesting the following: examination and treatment by a doctor, a refund for the medical charge that he incurred for the medical visit, and return of his arthritis medication. Atwood, acting on behalf of the MDOC, denied Clincy’s ARP request, concluding that Clincy saw medical personnel on two separate occasions regarding his alleged arthritis, and Clincy was properly charged for the medical visit. Atwood also informed Clincy that prisoners at the facility are not allowed to keep medications in their prison cells. Shortly thereafter, Clincy filed his second ARP request, which was subsequently denied for similar reasons. Clincy then filed his third ARP request.

¶ 4. Clincy sought judicial review of the ARP’s decision seeking the following relief: reimbursement of all monies deducted from his account for medical treatment and care over the past five years; $5,000 in compensatory damages and $3,000 in punitive damages against Caskey; $5,000 in compensatory damages and $5,000 in punitive damages against Atwood; and $5,000 in compensatory damages and $5,000 in punitive damages against Epps. The circuit court entered an order staying the action for ninety days “to allow [Clin-cy] the opportunity to exhaust all of this [sic] administrative remedies or to provide evidence to this Court that he has completed [the] MDOC’s [ARP] as mandated by Mississippi] Code Annotated] § 47-5-803(2).” Shortly thereafter, Dr. G. Perry, acting on behalf of the MDOC, issued a denial of Clincy’s third ARP request.

¶ 5. Clincy filed numerous pleadings, including a “Request for Administrative Remedy,” a “Declaration in Support of Plaintiff[’s] Motion for a Temporary Restraining Order and Preliminary Injunction,” an “Amendment Civil Right Complaint,” and a motion for summary judgment. Atwood and Caskey filed an answer to Clincy’s complaint, denying his broad allegations and raising numerous defenses.

¶ 6. The trial court, acting sua sponte, entered an order that provided in pertinent part:

THIS COURT, on its own motion, having considered Petitioner, Roy L. Clin-cy’s Pro Se, “Complaint,” is of the opinion that the petition should be and hereby is DISMISSED, based on the following:
On October 19, 2009, Petitioner filed the instant “Complaint” and “other pleadings,” wherein he requests “relief’ due to “being denied medical treatment” for among other things, “bad back pain,” “the flu,” and “not looking through his waste for four teeth that he swallowed.” Under Mississippi law, “trial courts possess an inherent authority to dismiss frivolous complaints, sua sponte, even prior to service of process on the defendants.” Duncan v. Johnson, 14 So.3d 760, 762 [(¶4)] (Miss.Ct.App.2009) [(citation omitted) ]. The Mississippi Appellate Courts have applied the following three part test, in determining “whether an in forma pauperis case should proceed or be dismissed as frivolous: 1) does the complaint have a realistic chance of success; 2) does it present an arguably sound basis in fact and law; and 3) can [the complainant] prove any set of facts that would warrant relief.” Huggins v. State, 928 So.2d 981, 983 [ (¶ 4) ] (Miss.Ct.App.2006) (citing Evans v. State, 725 So.2d 613, 679 [ (¶ 275) ] (Miss.1997)).
This Court finds that the instant “Complaint” fails to present any sound basis in fact or law. Additionally, the Court finds that the “Complaint” would have no chance of success, pursuant to Miss. Code Ann. § 11-46-9, et seq., and no set of facts proven would warrant relief.
IT IS, THEREFORE, HEREBY ORDERED AND ADJUDGED that Petitioner, Roy L. Clincy’s, “Complaint” should be and hereby is DISMISSED WITH PREJUDICE.

¶ 7. Clincy now appeals the trial court’s dismissal of his complaint and raises the following issues, which have been restated for purposes of clarity and efficiency: whether (1) the EMCF’s denial of sufficient medical care violated his due-process rights and subjected him to cruel and unusual punishment in violation of the Eighth Amendment, and (2) the requirement that he pay for non-emergency medical treatment deprived him of his due-process rights in violation of the Fourteenth Amendment and violated the Takings Clause of the Fifth Amendment. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 8. This Court applies the same standard of review that the lower courts are bound to follow when considering a decision by a chancery or circuit court regarding an agency action, in this case the MDOC. Clay v. Epps, 19 So.3d 748, 745 (¶ 7) (Miss.Ct.App.2008). We will review the appeal to determine whether the administrative agency’s order “(1) was unsupported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of the administrative agency to make, or (4) violated some statutory or constitutional right of the aggrieved party.” Id. (citing Siggers v. Epps, 962 So.2d 78, 80 (¶ 4) (Miss.Ct.App.2007)). See also URCCC 5.03. A rebuttable presumption exists that favors the decision of the agency, and the challenging party bears the burden of proving the contrary. Id. at 746 (¶ 7) (citing Ross v. Epps, 922 So.2d 847, 849 (¶ 4) (Miss.Ct.App.2006)).

DISCUSSION

I. MEDICAL CARE

A. Due-Process Clause

¶ 9. We summarize the language in Clincy’s brief by stating that he first alleges that he was denied medical care which he asserts amounted to a violation of his due-process rights. Clincy, however, cites no relevant authority supporting this proposition; therefore, this argument is barred from our review. See Edwards v. State, 856 So.2d 587, 599 (1145) (Miss.Ct. App.2003) (“Failure to cite relevant authority obviates the appellate court’s obligation to review such issues”); see also Tanner v. State, 20 So.3d 764, 768 (¶ 19) (Miss.Ct.App.2009) (finding Tanner’s constitutional claim barred from this Court’s review due to his failure to cite relevant authority to support his argument).

¶ 10. Moreover, we note that the record reveals that Clincy failed to state any facts or provide relevant evidence to show that he had received insufficient medical care in violation of his constitutional rights. While Clincy bases his insufficient medical-care claim on the fact that he wanted to see a doctor, rather than a nurse, he fails to articulate how the level of care provided to him by the EMCF personnel was insufficient to address his medical complaint or failed to meet the standard of care. As such, we find this claim is without merit.

B. Cruel and Unusual Punishment

¶ 11. In addition to claiming that the EMCF personnel violated his due-process rights by not providing him with sufficient medical care, Clincy argues that the denial of proper medical care subjected him to cruel and unusual treatment in violation of the Eighth Amendment to the United States Constitution.

¶ 12. After a thorough review of the record, we find that Clincy failed to provide relevant authority or factual support for his argument. Further, we conclude that Clincy’s argument is factually unsupported by the evidence in the record. The record reflects that Clincy’s complaint stems from the EMCF personnel’s refusal to allow him to keep his medication in his prison cell. The record shows that, in making this decision, the EMCF personnel followed standard MDOC policies applicable to the medical care of inmates and the possession of medication by inmates. The record also reveals that after Clincy complained of back pain due to a lack of medication, he was provided with the opportunity on two separate occasions to receive medical diagnosis and treatment from the EMCF medical personnel. Therefore, we find that the record supports the trial court’s decision to dismiss Clincy’s complaint since the MDOC’s ARP findings were supported by substantial evidence, were not arbitrary or capricious, fell within the MDOC’s power, and did not violate Clincy’s rights. See Clay, 19 So.3d at 745 (¶ 7).

¶ 18. Accordingly, we find that this issue is without merit.

II. MEDICAL CHARGE

¶ 14. In his second assignment of error on appeal, Clincy asserts that Mississippi Code Annotated section 47-5-179 (Rev.2004) constitutes a deprivation of his property without due process of law in violation of the Fourteenth Amendment, and he asserts that the statute violates the Takings Clause of the Fifth Amendment to the United States Constitution. In short, Clincy alleges that a charge for non-emergency medical care violates his constitutional rights.

¶ 15. A review of Clincy’s discussion in support of this issue shows that Clincy again failed to present relevant authority to support these propositions. This Court has previously held that the appellant bears the burden and duty to provide authority and support for the issues he presents on appeal, see Edwards, 856 So.2d at 598-99 (¶ 45), and that a “[f]ailure to cite relevant authority obviates the appellate court’s obligation to review such issues.” Id. at 599 (¶45). Furthermore, “[t]his Court presumes that the judgment of the trial court is correct and the appellant must ‘demonstrate some reversible error to this Court.’” Jordan v. State, 995 So.2d 94, 103 (¶ 14) (Miss.2008) (citing Edlin v. State, 533 So.2d 403, 410 (Miss.1988), cert. denied, 489 U.S. 1086, 109 S.Ct. 1547, 103 L.Ed.2d 851 (1989)). Accordingly, this issue is procedurally barred.

¶ 16. Procedural bar notwithstanding, a review of the record shows that the MDOC, in its response to Clincy’s third ARP request, explained the MDOC’s payment policy to Clincy by stating the following:

Your concern regarding a refund of the $6.00 eo[-]payment for the sick call request dated 5/15/09 because you feel that arthritis is a chronic condition that qualifies for a waiver of co-payment. Arthritis is not a chronic condition that qualifies for waiver of co-payment. Chronic care conditions that qualify for waiver of co-payment are specific to those conditions for which regular follow-up and chronic care clinic are needed. These conditions include hypertension, cardiovascular disease, diabetes, asthma, thyroid disease, seizures, cancer, etc. According to MDOC Policy 25-02-A, you were charged appropriately and are not due a refund for the 5/15/09 sick call request.

We find that the evidence in the record indicates that the EMCF personnel abided by the above-stated MDOC policy and also complied with statutory authority. We further find that the record shows that the EMCF personnel did not deny Clincy, or any other inmate, non-emergency medical care due to a lack of funds. We, therefore, conclude that the trial court did not abuse its discretion in dismissing Clincy’s complaint since we find that the record reflects that the MDOC’s ARP findings were supported by substantial evidence, were not arbitrary or capricious, were not beyond the scope of the MDOC’s power, and did not violate Clincy’s rights. See Clay, 19 So.3d at 745 (¶ 7); URCCC 5.03. This issue also lacks merit.

III. SUPERVISORY LIABILITY

¶ 17. While not enumerated as a separate assignment of error, Clincy addresses the issue of supervisory liability in his appellate brief. Clincy appears to argue that Atwood and Caskey should be liable for the actions of the EMCF personnel because they allegedly possessed actual knowledge of his medical needs but failed to provide him with treatment. In response, Atwood and Caskey argue that Clincy’s claims against them must fail because the claims are based on their respective supervisory positions, and not because of any alleged personal involvement.

¶ 18. A review of the record reflects that this appeal constitutes an appeal from an agency’s denial of grievances filed by Clincy, pursuant to the MDOC’s ARP. We recognize that in denying Clincy’s ARP requests, the MDOC reviewed Clincy’s claims regarding the official actions taken in denying the relief sought by Clincy in his ARP grievance. Based upon the foregoing, we affirm the trial court’s dismissal of Clincy’s complaint. See section 47-5-803(1) (the ARP procedure “shall constitute the administrative remedies available to offenders for the purpose of preserving any cause of action such offenders may claim to have against the State of Mississippi, the Department of Corrections or its officials or employees.”).

¶ 19. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

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

      . Clincy refers to Atwood's first name as Dau-dra and Saudra interchangeably in his complaint and brief on appeal. Atwood’s actual first name is Sandra.

      . In their brief on appeal, Atwood and Caskey assert that Epps never received service of process. The record includes a summons, which states that: "After diligent search and inquiry in my county, the within named defendant, Chris Epps, can not [sic] be found. This is the 22[nd] day of Oct., 2009.” Clincy, in his reply brief, acknowledges that Epps was never served with the lawsuit.

      . While in Clincy's brief on appeal he claims that the medical visit at issue occurred on May 15, 2009, he states in his complaint that the visit occurred on May 21, 2009. For purposes of our discussion, we will refer to the medical visit as occurring on May 15, 2009.

      . Several different spellings of Dr. Obosgas’s name appear in the record. Clincy refers to the MDOC physician as Dr. Obosgas and Dr. Obogias interchangeably throughout his appellate brief, while Atwood spells the physician’s name, Dr. Aborgas, in her first step response form. For purposes of today's discussion, we will refer to the physician as Dr. Obosgas. The record does not list Dr. Obos-gas’s first name.

      . In her response to Clincy's first ARP request, Atwood states that Clincy was removed from the doctor’s examination room due to Clincy’s "aggressive attitude.”

      . While Clincy claims that he filed his second ARP request with Caskey, the record reflects that it was Atwood, not Caskey, who issued the denial of the request.

      . Clincy claims that he filed this ARP request with Epps.

      . Clincy makes several claims against Atwood and Caskey in the numerous pleadings that he filed with the trial court, including but not limited to, a retaliation claim and a claim that he was deprived of his personal property. Accordingly, the trial court, in its order of dismissal, stated that the petitioner "filed the instant 'complaint' and 'other pleadings,’ wherein he requests 'relief due to 'being denied medical treatment’ for among other things, 'bad back pain,’ 'the flu,’ and 'not looking through his waste for four teeth that he swallowed.' ” This Court notes, however, that the only issues that Clincy raises on appeal concern the alleged denial of medical care for his arthritis condition and the medical charge for the May 15, 2009 visit. Therefore, we will consider only these issues.

      . Specifically, Clincy argues that he was subjected to cruel and unusual punishment "when the male nurse denied [him] of the right to be seen by a doctor and treat[ed] for extremely [sic] pain ... [and] when his medication [was] tak[en] away from him and not returned.”

      . Mississippi Code Annotated section 47-5-179 requires inmates to pay the expenses of all non-emergency medical treatment, care, and medicine.

      .We pause to note that the Fifth Circuit has upheld several dismissals by lower courts of inmates’ claims that section 47-5-179 violated their constitutional rights. See Green v. Miss. State Senate, 99 F.3d 1135 (5th Cir. 1996) (unpublished opinion) (affirming the district court’s dismissal of an inmate’s Eighth Amendment challenge to section 47-5-179); Higgins v. Mississippi, 134 F.3d 368 (5th Cir. 1997) (unpublished opinion) (finding that the prisoner failed to demonstrate that the application of section 47-5-179 violated his rights under the Ex Post Facto Clause).

      . We note that in his brief, Clincy asserts that he seeks monetary damages, which are not available under the ARP statute. See Miss.Code Ann. § 47-5-803 (Rev.2004).

      . Atwood and Caskey allege that Atwood was the Health Services Administrator at the EMCF, and Caskey was the Facility Administrator or Senior Warden at the EMCF.


author: ROBERTS, J,

text:
    LIBERTY BAIL BONDS AND LEGAL SERVICES, LLC, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CA-00975-COA.
    Court of Appeals of Mississippi.
    June 14, 2011.
    Merrida Coxwell, Jackson, attorney for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J,

for the Court:

¶ 1. This appeal concerns the forfeiture of a bond issued by Liberty Bail Bonds and Legal Services. Liberty posted a $25,000 bond for Joshua Williams’s appearance in a criminal matter in the Rankin County Circuit Court. Williams eventually pleaded guilty to armed robbery and was sentenced to fifteen years, with ten years suspended. At the conclusion of the plea hearing, Williams asked to be allowed to surrender himself the following Monday to begin the service of his sentence. The State did not oppose the request, and the circuit court granted it.

¶ 2. Williams did not surrender himself to the sheriff on the following Monday; he had absconded. The circuit court ultimately ordered his bond forfeited. Liberty contends on appeal that it was discharged by law as the surety after Williams was convicted and sentenced. We agree, and we hold that a surety’s obligation to ensure a defendant’s appearance on a pretrial appearance bond is terminated when the defendant is convicted and sentenced. Consequently, we reverse and render the circuit court’s judgment.

DISCUSSION

¶ 3. Both Liberty and the State point this Court to Frontier Insurance Company v. State, 741 So.2d 1021 (Miss.Ct.App. 1999). There, we held that a bondsman’s obligation had ended after a defendant was convicted at trial and remanded to the sheriffs custody. Id. at 1027 (¶ 20). Naturally, Liberty contends that Frontier hinged on the defendant’s conviction by the jury, while the State focuses on the formal remand of the defendant to the sheriffs custody pending sentencing. In this case, it is undisputed that Williams was never formally remanded to the sheriffs custody.

¶ 4. Because Williams was both convicted and sentenced, we need not address the question of whether adjudication of guilt in and of itself is sufficient to terminate the obligation of the surety. Nonetheless, we reiterate this Court’s admonition in Frontier: the Mississippi Constitution guarantees bail only prior to conviction. After a defendant is adjudicated guilty, whether it be by a jury trial or by the entry of a guilty plea, he should be remanded to the sheriffs custody. If the trial court intends to release the defendant pending sentencing, the court would be well advised to require a separate appearance bond for the sentencing hearing. If the court wishes for the defendant to remain on his present bond, it should notify the surety and secure an on-the-record acceptance of that additional responsibility before releasing the defendant from the sheriffs custody. As we said in Frontier:

Mississippi law recognizes two types of bail, pre-conviction and post-conviction bail. The Mississippi Constitution of 1890 guarantees bail to persons “before conviction.” Mississippi] Code Ann[otated section] 99-35-115 (Rev. 1994) authorizes bail “pending appeal” to such persons “convicted of any felony.” Such language evidences the fact that conviction in and of itself marks the demarcation line regarding bail and not conviction and sentencing. It is self-eviden[t] that once an individual is duly convicted by a jury of his peers, the chance for flight dramatically increases. The increase[d] risk evidences a new obligation on the part of those posting bonds and is generally demonstrated with higher bail amounts for one who has been convicted and is awaiting appeal.

Id. at 1026 (¶ 18).

¶ 5. That being said, in this case Williams was both convicted and sentenced by the circuit court prior to his release. The appearance bond, which tracks the language of the statute, states that Liberty would “pay ... unless [Williams] shall appear before the Circuit Court of Rankin County ... and ... remain ... until discharged by law....” See Miss.Code Ann. § 99-5-1 (Rev.2007). Since we are not aware of any Mississippi authority elaborating on this language, we take this opportunity to address it. We conclude that a surety on a pretrial appearance bond is discharged by law when the defendant is adjudicated guilty and sentenced.

¶ 6. Other courts have addressed substantially the same language. The Alabama Supreme Court noted that “[i]n a long line of cases, Alabama courts have consistently held that the surety of a bond is ‘discharged by law’ when the defendant is sentenced.” Rice v. State, 488 So.2d 1351, 1352 (Ala.1986) (citations omitted). The court recited the rationale as follows:

Whenever a party is convicted and sentenced, he is no longer in the custody of his bail, but is in the custody of the proper officer of the law, and the bail are thereby discharged by the operation of law without a formal order to that effect. The condition of the bond then will have been fully complied with. The mere appearance of the defendant at court for trial, or his presence during trial, or a mistrial, will not operate to discharge the bail. The obligation of a proper bail bond binds the sureties, at least, until after the verdict of the jury; but when the sentence of the law is pronounced, the officer of the law is charged with its due execution. The bail have no further control over the custody of their principal, and can not be longer held responsible.

Id. (quoting Ex parte Williams, 114 Ala. 29, 22 So. 446, 446 (1897)) (emphasis added). The Alabama court concluded that the pronouncement of the sentence is the critical point at which the court assumes custody of the defendant from the bondsman, because at that point the court has the power to order the defendant to begin serving the sentence. Id. at 1353. The fact that the court released the defendant for some period of time after sentencing was immaterial. Id.

¶ 7. We find the Alabama court’s analysis persuasive. We hold that Williams was “discharged by law” when the circuit court accepted his guilty plea and pronounced sentence. So, by the appearance bond’s own terms, the bondsman’s obligation was fulfilled when Williams was sentenced, and the circuit court erred in sustaining its judgment forfeiting the bond.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. RUSSELL, J., NOT PARTICIPATING.


author: MAXWELL, J.,

text:
    Angela L. TURNER, Appellant v. DEUTSCHE BANK NATIONAL TRUST COMPANY, Appellee.
    No. 2009-CA-01601-COA.
    Court of Appeals of Mississippi.
    June 14, 2011.

      John Richard May Jr., attorney for appellant.
    Cynthia Diane Cohly, attorney for appel-lee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Deutsche Bank National Trust Company initiated a foreclosure action in the Warren County Chancery Court and attempted to serve Angela Turner by publication. But before doing so, it neither certified Turner was a non-resident of Mississippi nor alleged she could not be located in the state after a diligent inquiry. Because we find service of process did not strictly comply with the governing rules, we reverse the chancellor’s refusal to set aside the default judgment she entered on behalf of Deutsche Bank when Turner did not respond. We remand the case for further proceedings.

FACTS

¶ 2. Turner obtained a real-estate loan to refinance property in Vicksburg, Mississippi. She executed a promissory note for $58,480 and a deed of trust to the trustee of Argent Mortgage Company, LLC. Argent Mortgage assigned the deed of trust and note to Deutsche Bank.

¶ 3. After Turner became delinquent on her payments, Deutsche Bank filed suit to confirm title to the property and authorize a foreclosure sale. Deutsche Bank also sought to amend the deed of trust to include the mobile home on Turner’s lot in the legal description of the property.

¶ 4. Deutsche Bank attempted to have Turner served with process by the sheriffs department but was unsuccessful. A deputy sheriff returned the unexecuted summons to the clerk marked “unable to serve.” Deutsche Bank then had a summons published in the Vicksburg Post for three consecutive weeks. However, it neither filed a sworn statement that Turner was a nonresident or that it had made a diligent inquiry to find her.

¶ 5. When Turner failed to respond, Deutsche Bank moved for a default judgment, which the chancellor granted. The judgment confirmed title in the note and deed of trust to Deutsche Bank, reformed the legal description of the property in the deed of trust to include the mobile home, and authorized a foreclosure sale to proceed.

¶ 6. Several months later, Turner moved to set aside the default judgment because she had not been properly served with process. The chancellor denied Turner’s motion and her subsequent motion to reconsider. She now appeals.

STANDARD OF REVIEW

¶ 7. We will not disturb a chancellor’s findings of fact “unless the chancellor’s decision is manifestly wrong or unsupported by substantial evidence.” Bougard v. Bougard, 991 So.2d 646, 648 (¶ 12) (Miss.Ct.App.2008) (citation omitted). But “[w]hen reviewing questions concerning jurisdiction, this court employs a de novo review.” Sanghi v. Sanghi, 759 So.2d 1250, 1252 (¶ 7) (Miss.Ct.App.2000). Sufficiency of process is a jurisdictional issue, which we review de novo. See Clark v. Clark, 43 So.3d 496, 499 (¶9) (Miss.Ct.App.2010).

DISCUSSION

¶ 8. The issue before us is whether Deutsche Bank’s attempted service by publication was sufficient where it failed to certify that Turner was a nonresident or, after a diligent inquiry, could not be located in Mississippi. If service of process was deficient, the default judgment entered against Turner is void and must be set aside. See Caldwell v. Caldwell, 533 So.2d 413, 417-18 (Miss.1988); Clark, 43 So.3d at 501 (¶ 21) (citing Morrison v. Miss. Dep’t of Human Servs., 863 So.2d 948, 952 (¶ 13) (Miss.2004); Soriano v. Gillespie, 857 So.2d 64, 69-70 (¶ 22) (Miss.Ct. App.2003)).

¶ 9. Deutsche Bank attempted to serve Turner by publication under Rule 4(c)(4), which provides for situations where the defendant cannot be found within the state. Publication of the summons must be made once a week for three consecutive weeks in the public newspaper of the county if one exists, as in our case. M.R.C.P. 4(c)(4)(B). But service by this method is only permitted “[i]f the defendant ... be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry.” M.R.C.P. 4(c)(4)(A).

¶ 10. The affidavit or sworn complaint must also state the defendant’s post-office address, if known, or swear that it could not be determined after a diligent inquiry. Id. If the post-office address is listed, the sworn petition or affidavit must further provide the defendant’s street address or that it could not be determined after a diligent inquiry. M.R.C.P. 4(c)(4)(B). And if the plaintiff provides a post-office address, the clerk must mail the defendant (by first-class mail, postage pre-paid) a copy of the summons and complaint to his post-office address, and note having done so on the general docket. M.R.C.P. 4(c)(4)(C).

¶ 11. Although Deutsche Bank published a summons in the newspaper for three consecutive weeks and filed proof of the publication, Deutsche Bank did not comply with Rule 4(c)(4)(A). It is undisputed that Deutsche Bank never filed a sworn petition or affidavit attesting that Turner was a nonresident or could not be found in Mississippi after a diligent inquiry. Therefore, it follows that Deutsche Bank did not comply with any of the remaining requirements for information that must be included in the petition or affidavit.

¶ 12. “The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So.2d 874, 878 (¶ 16) (Miss.Ct.App.2002) (internal citation omitted). Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So.2d 1024, 1027 (Miss.1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759 So.2d at 1257 (¶ 33).

¶ 13. In Kolikas, we found a chancellor erred in failing to set aside a divorce decree, where the plaintiff attempted service by publication without strictly complying with the requirements of Rule 4(c)(4). Ko-likas, 821 So.2d at 879 (¶32). We observed that a defendant is “under no obligation to notice what is going on in a cause in court against him, unless the court has gotten jurisdiction of him in some manner recognized by law.” Id. at 878 (¶ 17).

¶ 14. The Kolikas majority found service deficient because, although a summons was published in the newspaper for three consecutive weeks, neither the clerk nor the plaintiff mailed the defendant a copy of the summons and complaint to his last known address. Id. at 879 (¶¶ 17, 32). This deficiency violated Rule 4(c)(4)(C), which provides that if the defendant’s post-office address is provided, the clerk must mail a copy of the summons and complaint to that address (and to note having done so on the general docket). We found failure to comply with this rule was reversible error. See id.

¶ 15. We need not reach the rule violated in Kolikas because Deutsche Bank violated the more preliminary requirement that it file a sworn petition or affidavit. In the petition or affidavit, the plaintiff must certify to the court, among other things, that the defendant is a nonresident or cannot be found in Mississippi. From a straightforward application of Rule 4(c)(4), we find Deutsche Bank’s attempt to serve Turner fell far short of the required notice. And since Turner did not voluntarily appear to defend against the foreclosure suit, the chancery court did not acquire jurisdiction to enter a judgment against her.

¶ 16. This conclusion is supported by the supreme court’s decision in Caldwell. Caldwell, 533 So.2d at 415. There, the supreme court noted that Rule 4(c)(4)(A) was substantially the same as the statute in place before the adoption of the Mississippi Rules of Civil Procedure. Id. The Caldwell court found instructive and quoted favorably a pre-rules treatise’s comment that “[a]n affidavit to support process by publication must strictly comply with the statute and if it omit[s] averment of diligent inquiry it is insufficient.” Id. at 416 (quoting Griffith, Mississippi Chancery Practice, Bobbs-Merrill Company, Inc. 225-27 (1925)). And “where notice by publication is resorted to ... as a basis for the jurisdiction of the court, in lieu of personal summons!,] all the requirements of the statute as to such notice must be strictly complied with[.]” Id. at 415 (emphasis added). Rule 4(c)(4)(A) is equally clear that the plaintiff must attest that he has performed a diligent inquiry before performing service by publication. It is no less true today that a sworn averment of diligent inquiry must be made to effectuate proper service by publication.

¶ 17. Deutsche Bank relies on a 1922 Arizona case to claim the failure to file a sworn affidavit or statement does not render process by publication deficient or the judgment void. Noonan v. Montgomery, 24 Ariz. 311, 209 P. 302 (1922). But Noo-nan neither binds this court nor supports the proposition for which it is cited. Noo-nan sheds no light here, since the Arizona plaintiff, unlike Deutsche Bank, actually filed a sworn affidavit attesting to performing an inquiry of the defendant’s whereabouts. Id. at 305.

¶ 18. After conducting a hearing, the chancellor denied Turner’s motion to set aside finding “the court does not find a lack of process.” The chancellor did not consider Rule 4(c). Instead, she relied solely on a finding in the default judgment that the court had personal jurisdiction over Turner. Another chancellor, Judge Vicki Barnes, who recused herself from the case, had made this finding. And the later assigned chancellor, Judge Jane Weathersby, who considered Turner’s collateral attack on the default judgment, concluded “Judge Barnes would not have had jurisdiction [over] the parties without a finding of valid service of process[.]” Deutsche Bank suggests that this ruling was correct. We disagree. Indeed, the entire purpose of Mississippi Rule of Civil Procedure 60(b) would be subverted if a chancellor could simply rely on a prior finding of jurisdiction and disregard whether there has been a showing that Rule 4 was violated.

¶ 19. Rule 60(b) provides that the court may reheve a party from a final judgment if one of the stated conditions is met. One such condition exists where “the judgment is void.” M.R.C.P. 60(b)(4). Our supreme court has held that “[a] court must have ... proper service of process ... in order to enter a default judgment against a party. Otherwise, the default judgment is void.” McCain v. Dauzat, 791 So.2d 839, 842 (¶ 7) (Miss.2001) (internal citation omitted). Although “[t]he grant or denial of a 60(b) motion is generally within the discretion of the trial court, ... [i]f the judgment is void, the trial court has no discretion. The court must set the void judgment aside.” Soriano, 857 So.2d at 69-70 (¶ 22).

¶ 20. Because service of process in this case failed to comply with Rule 4(c), we find the default judgment entered against Turner is void. Caldwell, 533 So.2d at 417-18 (finding judgment void for defective process by publication). Thus, the chancery court erred in refusing to set the void judgment aside under Rule 60(b). We reverse and remand for further proceedings in which Deutsche Bank will have the opportunity to serve Turner with process.

¶ 21. THE JUDGMENT OF THE WARREN COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR. RUSSELL, J., NOT PARTICIPATING.

      . Rule 4(c)(4)(A) contains an alternative requirement if the affidavit is made by a third party, rather than the plaintiff.

      . The dissenting opinion did not disagree that service was defective but found an estoppel issue controlled the disposition. Kolikas, 821 So.2d at 881-82 (¶¶ 44-45, 48) (Chandler, J„ dissenting).

      . We note that Turner’s argument that Deutsche Bank possessed unclean hands is an equitable defense to the merits of this lawsuit.
      This is an issue for the chancery court to consider on remand.


author: BARNES, J.,

text:
    Christopher THOMAS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00054-COA.
    Court of Appeals of Mississippi.
    June 21, 2011.

      Christopher Thomas, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. Christopher Thomas, appearing pro se, appeals the Circuit Court of Panola County’s dismissal of his motion for post-conviction relief. Finding no error, we affirm.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. In April 2005, a grand jury in Pano-la County returned a two-count indictment against Thomas for possession of cocaine (more than 1/10 gram but less than two grams) and sale of cocaine. In January 2007, Thomas pleaded guilty to the Count I possession charge. Thomas acknowledged at his plea hearing that there was discussion about recommending him for drug court. The case was reassigned from Judge Andrew Baker to Judge Ann Lamar, who supervised the drug court, and the circuit court withheld adjudication of Thomas’s guilt if he successfully completed certain conditions for five years. Thomas was then placed in the drug court program. The court entered an order explaining some of Thomas’s obligations in the program, such as regularly reporting to the assigned judge on a weekly basis, not violating any laws, abstaining from alcohol or controlled substances, and submitting to alcohol and drug testing. At a sentencing hearing before Judge Lamar, Thomas affirmed that he wanted to participate in the drug court program. The judge explained to him that basically he would be in a “probationary state” for approximately five years, and one of the conditions of his continued probation and freedom from incarceration was successful completion of the drug court program. She also explained that if Thomas did not successfully complete the terms of the program, he would be discharged from drug court and would receive the maximum sentence of eight years in the custody of the Mississippi Department of Corrections (MDOC). Thomas stated that he understood.

¶ 3. In January 2008, the State filed a petition for adjudication of guilt and sentencing because Thomas had violated the non-adjudication order by failing to comply with the terms of the drug court program. Specifically, in December 2007, he committed the crime of possession of approximately nine grams of cocaine. At his revocation hearing in March 2008, testimony was also presented that from June until November 2007, Thomas had violated other conditions of the program, such as testing positive for cocaine, failing an alcohol test, missing a drug test and several meetings related to the drug court program, and violating a curfew. Accordingly, the circuit court sentenced Thomas to serve eight years in the custody of the MDOC.

¶ 4. In May 2009, Thomas filed a motion for post-conviction relief, claiming that his guilty plea and sentence were “improper,” and he received ineffective assistance of counsel. Thomas claimed that his counsel did not tell him that if he failed the drug court program he would receive the maximum sentence of eight years. The circuit court dismissed Thomas’s motion, and he timely appealed.

STANDARD OF REVIEW

¶ 5. In reviewing a circuit court’s dismissal of a motion for post-conviction relief, this Court will not disturb the court’s factual decisions unless they are clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). Questions of law are reviewed de novo. Id. Moreover, the circuit court may dismiss a motion for post-conviction relief “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief....” Miss.Code Ann. § 99-39-11(2) (Supp.2010).

ANALYSIS

1. Guilty Plea

¶ 6. Thomas claims his guilty plea was involuntary. He modifies his argument slightly on appeal. Before the circuit court, Thomas argued that his trial counsel failed to inform him that he would receive the maximum sentence of eight years for violating the order of the drug court, but now he argues that the circuit court failed to explain the terms of the recommendation for drug court before he pleaded guilty. Neither argument has merit.

¶ 7. A guilty plea will be found valid if it is voluntarily and intelligently made by the defendant before the trial court. Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss.2009). A plea is voluntarily and intelligently given if the trial court advises “the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea.” Id. (citing Harris v. State, 806 So.2d 1127, 1130 (¶ 9) (Miss.2002)). However, “[a] plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements.” URCCC 8.04(A)(3). Moreover, “solemn declarations made in open court” carry a “strong presumption of validity.” Hannah v. State, 943 So.2d 20, 25 (¶ 11) (Miss.2006) (citing Baker v. State, 358 So.2d 401, 403 (Miss.1978)). The burden of proof is on the petitioner to prove his plea is invalid. Id. (citing Gardner v. State, 531 So.2d 805, 810 (Miss.1988)).

¶ 8. At Thomas’s initial guilty plea hearing in January 2007, Thomas denied being coerced or promised anything of value to plead guilty. Judge Baker also asked: “I understand there’s been discussion about recommending you for drug court?” Thomas responded affirmatively, and the judge withheld adjudication of guilt, and Thomas’s case was transferred to Judge Lamar to consider Thomas for the drug court program. Judge Baker clearly explained that if Thomas were convicted for the crime charged, the minimum and maximum sentences were not less than two and no more than eight years’ imprisonment. Further, Thomas signed a petition to enter a guilty plea stating that the maximum sentence for the crime charged was eight years’ imprisonment.

¶9. In his motion for post-conviction relief, Thomas claims that the circuit court changed the wording in his plea petition after the plea hearing without his knowledge. However, the circuit court found “unimpeachable documentary evidence in the record” to the contrary; thus, it concluded that Thomas’s claims were a “sham.” We agree and find no evidence in the record to support Thomas’s claim. Moreover, the transcript of Thomas’s sentencing hearing in March 2007 before Judge Lamar shows he was fully informed and aware of what was involved in the drug court program, and he accepted its terms and obligations. The record reflects:

THE COURT: The file also reflects that you have requested to be considered for placement in our drug court program. Is that right?
THE DEFENDANT: Yes, ma’am.
THE COURT: And you have met with drug court officers and they’ve explained the program to you?
THE DEFENDANT: Yes, ma’am.
THE COURT: Do you think you can do it?
THE DEFENDANT: Yes, ma’am.
THE COURT: Do you want to do it? That’s the question.
THE DEFENDANT: Yes, I want to get started back with my life.
THE COURT: I understand that you have been evaluated and assessed and they believe you do qualify for the drug court program and that you can do what is required of you, Mr. Thomas.... One of the conditions of ... your freedom is your successful completion of the drug court program. Do you understand that?
THE DEFENDANT: Yes, ma’am.
THE COURT: So you need to understand there’s a lot expected of you. You will complete everything that’s expected of you if you’re going to stay in the drug court program. If you don’t complete the drug court program successfully, you will be placed back on my trial docket and at that time we’ll proceed with sentencing and I’ll sentence you to the eight years that you could have gotten for this count. Do you understand that?
THE DEFENDANT: Yes, ma’am.

Judge Lamar went on to explain some of the specific obligations of the drug court program to Thomas.

¶ 10. While the transcript of Thomas’s initial plea hearing does not show that he was informed of all the details of the drug court program at that hearing, he certainly was informed at his sentencing hearing before Judge Lamar. At any time during the hearing before Judge Lamar, Thomas could have declined to accept the terms of the drug court program and accepted an adjudication of guilt. According to the record, the circuit court made clear to Thomas that he could receive a maximum of eight years’ imprisonment for the charge if he was adjudicated guilty, whether through a guilty plea or violation of the drug court program. There is no indication in the record that Thomas was misinformed about the implications of his guilty plea or agreement to enter the drug court program.

2. Ineffective Assistance of Counsel

¶ 11. Thomas also claims his trial counsel was ineffective. To demonstrate ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient, and this deficiency prejudiced the defense. Liddell v. State, 7 So.3d 217, 219 (¶ 6) (Miss.2009) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In the context of a guilty plea, “the focus of the first prong [of Strickland ] is the same, while the second prong focuses on whether counsel’s unprofessional performance affected the outcome.” Hannah, 948 So.2d at 24 (¶ 7). There is “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance_” Liddell, 7 So.3d at 219 (¶ 6) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).

¶ 12. Thomas first complains that his counsel failed to address his motion to dismiss and motion for a speedy trial violation during his plea hearing. This is simply not the case. At the end of the hearing, Thomas’s counsel specifically addressed these motions, stating:

[DEFENSE COUNSEL]: Mr. Thomas, as you know, I had filed a Motion to Dismiss the charge that you have offered a plea of guilty to this morning. Now, I believe I advised you earlier and correct me if I’m wrong, that by offering your plea of guilty today you are giving up that motion or waiving it. Do you understand that?
THE DEFENDANT: Yes, sir.

¶ 13. Next, overlapping the first issue, Thomas contends that his counsel deceived him into believing that his best option was a guilty plea and misinformed him about the terms of the recommendation and his possible sentence if he violated the drug court program. Further, Thomas argues that he did not want to attend the drug court program when he found out its “true terms.” However, he admits that he agreed with the terms of drug court program out of fear of going to prison, but he claims this fear was instilled into him by his trial counsel.

¶ 14. We find no merit to Thomas’s contentions. During his plea hearing, Thomas stated that he was satisfied with his attorney’s performance. He presents no evidence other than his own sworn motion for post-conviction relief to support his claims. “Post-conviction claims of ineffective assistance are properly dismissed where the defendant offers only his affidavit in support of his allegations.” Ealey v. State, 967 So.2d 685, 691 (¶ IS) (Miss.Ct.App.2007) (citing Vielee v. State, 653 So.2d 920, 922 (Miss.1995)). Moreover, it was not ineffective assistance for defense counsel to recommend to Thomas that he plead guilty. “If the attorney believes that it is in his client’s best interest to plead guilty, it is his duty to inform him of that fact.” Robinson v. State, 964 So.2d 609, 612 (¶ 8) (Miss.Ct. App.2007). Thomas was fully informed by his trial counsel of his options and their effects. Although Thomas did state at his revocation hearing that he had no longer wanted to participate in drug court once he was in the program, Thomas’s counsel properly informed him that if that were the case, he would be sentenced to prison since he had pleaded guilty. Therefore, the circuit court properly found Thomas had not proven ineffective assistance of counsel. This issue is without merit.

3. Exhibits

¶ 15. Thomas’s final argument is that the circuit court improperly dismissed his motion for lack of “exhibits.” He states he attached a copy of his plea petition in order to prove to this Court that he was misinformed. It is unclear what Thomas is arguing in this issue. The circuit court did not dismiss Thomas’s motion for lack of exhibits; however, it did find no merit to his ineffective-assistance claim because Thomas did not attach any affidavits in support of his motion. As discussed earlier, this ruling is without error. Further, Thomas’s plea petition does not show he was misinformed about his sentence. This issue is without merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR. RUSSELL, J., NOT PARTICIPATING.


author: ISHEE, J.,

text:
    Ralston JANNICE, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00834-COA.
    Court of Appeals of Mississippi.
    June 21, 2011.

      Ralston Jannice, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   ISHEE, J.,

for the Court:

¶ 1. On January 4, 2010, Ralston Jannice pleaded guilty to simple robbery. Pursuant to the plea agreement Jannice was sentenced to serve a term of fifteen years with three years suspended, three years of post-release supervision, and twelve years to serve in the custody of the Mississippi Department of Corrections. On March 10, 2010, Jannice filed a motion for post-conviction collateral relief, and on April 8, 2010, he filed a motion to amend his motion for post-conviction relief.

¶ 2. The motion, filed pro se, alleged that: (1) Jannice had received ineffective assistance of counsel; (2) Jannice was subjected to an illegal sentence; and (3) Jann-ice’s sentence exceeded the statutory maximum. The trial court, on May 7, 2010, issued an order granting his motion to amend and denying Jannice’s amended motion for post-conviction relief. Aggrieved, Jannice appeals.

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.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008) (quoting Lambert v. State, 941 So.2d 804, 807 (¶ 14) (Miss.2006)). “However, where questions of law are raised, the applicable standard of review is de novo.” Id.

DISCUSSION

I. Ineffective Assistance of Counsel and Illegal Sentence

¶ 4. Jannice argues that he received ineffective assistance of counsel because his counsel informed him that, he either take a plea to simple robbery pursuant to Mississippi Code Annotated section 9703073 (Rev.2006) or face being convicted of armed robbery and be subjected to the possibility of life in prison pursuant to Mississippi Code Annotated section 97-3-79 (Rev.2006). Jannice also alleges in his appellate brief that his trial “counsel should have known better because Jannice never had a weapon.” Further, Jannice alleges his trial counsel advised a co-defendant and “[sjtate’s witness” who received a lesser sentence. Finally, Jannice asserts that his trial counsel along with the State used illegal tactics improperly to induce fear into Jannice, and as a result, he claims that he received a sentence of eighteen total years, which exceeds the maximum penalty for simple robbery.

¶ 5. The burden of proving ineffective assistance of counsel rests on Jann-ice. In order to establish a claim of ineffective assistance of counsel, Jannice must prove that counsel’s performance was deficient and that his defense was prejudiced by his counsel’s deficient performance. Coleman v. State, 979 So.2d 731, 735 (¶ 14) (Miss.Ct.App.2008) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (198.4)). Under Strickland, there is a strong, but rebutta-ble, presumption that counsel’s performance falls within the range of reasonable professional assistance. Id. (¶ 14) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). “To overcome this presumption, the defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

¶ 6. In support of his claim, Jannice offers only his own statements alleging deficiency on the part of his counsel. He provides no affidavits or any other forms of proof whatsoever. “In cases involving post-conviction collateral relief, ‘where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.’ ” Cherry v. State, 24 So.3d 1048, 1051 (¶ 6) (Miss.Ct.App.2010) (quoting Vielee v. State, 653 So.2d 920, 922 (Miss.1995)). Jannice has failed to prove any deficiency on the part of his counsel; therefore, this claim is without merit.

II. Illegal Sentence

¶ 7. In his next allegation, Jannice alleges that he was subjected to an illegal sentence. He alleges that he was induced by fear and deception to plead guilty; therefore, his plea was involuntary, and his sentence was illegal. To support his claim, Jannice argues that he was told he would be tried for armed robbery with a deadly weapon as charged in the indictment and that he could receive a life sentence if he did not plead guilty to simple robbery. He claims that because the elements of armed robbery require a deadly weapon, and because he had no weapon, he could not have received a life sentence.

¶8. Jannice’s allegations are directly contradicted in his sworn plea petition and his statements made under oath before the trial court. Jannice agreed that his trial counsel had advised him of the elements of the crime and that his counsel met his expectations in all aspects of his representation. He also admitted that the factual basis for the charge was correct. While Jannice now asserts that he had no deadly weapon at the time of the crime, the trial court is entitled to place great faith in the validity of sworn statements he made during the plea hearing. See Harris v. State, 822 So.2d 1129, 1131 (¶4) (Miss.Ct.App. 2002). Accordingly, this issue is without merit.

III. Sentence within the Statutory Maximum

¶ 9. Finally, Jannice argues that his sentence exceeded the statutory maximum for simple robbery and claims that the trial court improperly imposed an eighteen-year sentence upon him. Mississippi Code Annotated section 97-3-75 (Rev. 2006) states that the penalty for simple robbery is “imprisonment in the penitentiary for a term of not more than fifteen years.”

¶ 10. While Jannice contends that his sentence, combined with the term of post-release supervision, exceeds the statutory maximum, this is simply not true. Although Jannice was sentenced to a term of fifteen years, three years were suspended. When the three years of post-release supervision are added to the twelve years for which Jannice was sentenced to serve, the resulting fifteen years is within the permissible statutory maximum sentence for simple robbery. Accordingly, this issue is without merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. RUSSELL, J., NOT PARTICIPATING.


author: MAXWELL, J,

text:
    Vincent BAILEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00699-COA.
    Court of Appeals of Mississippi.
    June 21, 2011.

      Vincent Bailey, appellant, pro se.
    Office of the Attorney General by Stephanie B. Wood, Scott Stuart, Jackson, attorneys for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J,

for the Court:

¶ 1. Vincent Bailey appeals the Clay County Circuit Court’s dismissal of his motion for post-conviction relief (PCR). The circuit court found the PCR motion barred by the three-year statute of limitations. Finding no applicable exception to the time bar, we affirm the circuit court’s judgment.

STANDARD OF REVIEW

¶ 2. In considering the dismissal of a PCR motion, we review the trial court’s findings of fact for clear error. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct. App.2004). When reviewing questions of law, our standard is de novo. Id. The trial court may summarily dismiss a PCR motion where “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]” Miss.Code Ann. § 99-39-11(2) (Supp.2010). See also State v. Santiago, 773 So.2d 921, 923-24 (¶ 11) (Miss.2000). This court will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate “a claim procedurally alive substantially showing the denial of a state or federal right.” Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009).

DISCUSSION

¶ 3. Though Bailey does not clearly present his arguments, he seems to argue primarily that his sentences for sale of a controlled substance should have been ordered to run concurrently rather than consecutively.

¶ 4. According to Bailey, he pled guilty to several counts of sale of a controlled substance on August 5, 2004. He filed his PCR motion on March 22, 2010, well after the three-year statute of limitations had expired. No exception to the time bar is applicable. And Bailey does not claim “his sentence has expired.” Miss.Code Ann. § 99—39—5(2)(b) (Supp.2010). Instead, he argues the circuit court improperly imposed his sentence. This is certainly a separate claim that could have been brought within the three-year limitations period.

¶ 5. Even so, the Mississippi Supreme Court has held that the procedural bars of the Uniform Post-Conviction Collateral Relief Act do not apply to “errors affecting fundamental constitutional rights.” Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss.2010). Yet the mere assertion of a constitutional-right violation does not suffice to overcome the three-year time bar. Chandler v. State, 44 So.3d 442, 444 (¶ 8) (Miss.App.2010). “There must at least appear to be some basis for the truth of the claim before the limitation period will be waived.” Id.

¶ 6. The record is sparse at best, as is often true in PCR cases. Neither the charging documents, nor sentencing orders, nor any other official court documents concerning Bailey’s underlying convictions appear in the record. But these deficiencies are not weighed against the State since the appellant, Bailey, has the burden to ensure the record is sufficient to support his assignments of error. Austin v. State, 971 So.2d 1286, 1287 n. 1 (Miss.Ct. App.2008). Here, he has not done so. From this record, we cannot address his claim that his sentences were “illegal.” Nor are we sure of the counts to which he pled guilty or the operation of his sentences. We further note the decision to impose Bailey’s sentences consecutively is within the trial judge’s discretion. Miss. Code Ann. § 99-19-21(1) (Rev.2007). See also Coffey v. State, 856 So.2d 635, 638 (¶ 10) (Miss.Ct.App.2003).

¶ 7. Bailey also suggests for the first time on appeal that his double-jeopardy rights were violated. But this contention is also unreviewable because this record contains no official documentation concerning his underlying convictions. See Tate v. State; 767 So.2d 1045, 1046-47 (¶¶ 7-9) (Miss.Ct.App.2000).

¶ 8. For these reasons, we affirm the circuit court’s judgment.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR. RUSSELL, J., NOT PARTICIPATING.

      . The time bar found in Mississippi Code Annotated section 99-39-5(2) (Supp.2010) provides that a PCR motion challenging a guilty plea must be made "within three (3) years after entry of the judgment of conviction."