author: CARLTON, J.,

text:
    Barry GREGG, Appellant v. NATCHEZ TRACE ELECTRIC POWER ASSOCIATION and Electric Power Associations of Mississippi Workers’ Compensation Group, Inc., Appellees.
    No. 2009-WC-00699-COA.
    Court of Appeals of Mississippi.
    June 8, 2010.
    Rehearing Denied Nov. 2, 2010.

      Bennie L. Turner, West Point, attorney for appellant.
    Amy K. Taylor, attorney for appellees.
   CARLTON, J.,

for the Court:

¶ 1. Barry L. Gregg suffered a work-related injury during the course and scope of his employment with Natchez Trace Electric Power Association (Natchez Trace). The Mississippi Workers’ Compensation Commission (Commission) adopted the administrative law judge’s findings and award of temporary total disability benefits in the amount of $341.11 per week commencing on July 21, 2004, and concluding on May 2, 2006. The Commission’s decision was affirmed by the Webster County Circuit Court. At issue on appeal is whether the circuit court erred in affirming the Commission’s denial of permanent disability benefits based on Gregg’s failure to prove a loss of wage-earning capacity. Finding no error, we affirm.

FACTS

¶ 2. On July 21, 2004, Gregg, a serviceman for Natchez Trace, injured his back on the job while lifting a tool belt. Gregg received medical treatment for his back injury, including lower-back surgery. Gregg’s treating physician ultimately released him to return to work on December 15, 2005, with a ten percent anatomical disability rating and permanent climbing restriction. Gregg stated that due to his climbing restriction, he was unable to earn “on call” overtime compensation for the service calls.

¶ 8. As a serviceman, Gregg’s job requirements included performing service work, such as restoring power, connecting and disconnecting power for customers, and climbing poles and ladders to hook up service. He also requested to be placed on call every other week for a seven-day period of time, and Gregg automatically received two hours of overtime pay for each “on call” service call, unless the amount of time required to complete the service call exceeded two hours. Gregg also received a minimum of one hour per day overtime for each day he worked “on call.” Gregg’s pre-injury average weekly wage was $840.21.

¶ 4. On September 12, 2007, a hearing on the merits was held in Grenada, Mississippi before an administrative law judge for the Commission. The administrative law judge found that Gregg’s post-injury average weekly wage was $891.22, which amounted to an increase of $51.01 from his pre-injury average weekly wage. Because Gregg earns more after his injury than he earned before the injury, the administrative law judge held that Gregg failed to prove a loss of wage-earning capacity. The judge also ruled as follows:

The claimant suffered an admittedly compensable injury in the form a[sic] back injury and was temporarily and totally disabled from the date of July 21, 2004 to and through the date designated and stipulated to be the date of maximum medical improvement, namely May 2, 2006.
Lay and medical testimony indicate that the claimant was ultimately returned to full duty with singular description and/or restriction of “no climbing” later specified to be “no pole climbing” which could indeed have been a part of serviceman work for the power company. However, lay testimony was replete with references that such “pole climbing” is not required for the discharging of all pertinent duties relative to the claimant’s current employment. He is in no danger of losing his job because of this permanent restriction[,] and, further, it has no impact on his wage[-]earning potential. Ergo, all factors considered, the claimant has suffered no [loss of] wage[-]earning capacity[,] and none is found.

¶ 5. Gregg appealed this decision to the full Commission, which subsequently affirmed the ruling of the administrative law judge. Gregg then filed a notice of appeal requesting review by the Webster County Circuit Court. The circuit court affirmed the Commission’s decision on April 14, 2009. Aggrieved, Gregg filed this appeal.

STANDARD OF REVIEW

¶ 6. The Mississippi Supreme Court recognizes that when considering an appeal of a decision of the Commission, “[t]he findings and order of the ... Commission are binding on [the appellate court] so long as they are ‘supported by substantial evidence.’ ” Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994) (citation omitted). If supported by substantial evidence, this Court is bound by the Commission’s factual determination “even though the evidence would convince [us] otherwise if [we] were instead the ultimate fact[-]finder.” Winters v. Choctaw Maid Farms Inc., 782 So.2d 155, 159 (¶ 8) (Miss.Ct.App.2000). We reverse “only where a Commission order is clearly erroneous and contrary to the weight of the credible evidence.” Id.

DISCUSSION

¶ 7. Gregg argues that as a result of his work-related injury, he suffered a loss of wage-earning capacity; therefore, his loss of wage-earning capacity entitles him to permanent disability benefits. We note that Mississippi Code Annotated section 71—3—3(i) (Rev.2000) of the Workers’ Compensation Law (the Act) defines disability as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.” The statutory definition of disability, thus, creates a distinction between medical disability, which refers to a physical impairment, and “industrial” disability, which affects the claimant’s “ability to perform the duties of employment for the purpose of compensation.” Winters, 782 So.2d at 159 (¶ 10). Under the Act, the claimant bears the burden to prove an “industrial” disability. Id. To meet this burden, the claimant must satisfy a two-pronged test by first establishing a medical impairment. Id. at 160 (¶ 10). Then the claimant must show “that the medical impairment results in a loss of wage[-]earning capacity.” Id.

¶ 8. Gregg testified that he possesses a ten-percent disability rating and is only restricted from climbing poles. However, the record reflects that Gregg’s post-injury average weekly earnings exceed his pre-injury earnings. We note that “[a] presumption of no loss of wage-earning capacity arises when the claimant’s post-injury earnings are equal to or exceed pre-injury earnings.” Univ. of Miss. Med. Ctr. v. Smith, 909 So.2d 1209, 1218 (¶ 32) (Miss.Ct.App.2005). This presumption may be rebutted by showing evidence that the post-injury earnings constitute an unreliable indicator of wage-earning capacity because of the following considerations: (1) an increase in general wage levels, (2) increased maturity or training, (3) longer hours worked, (4) sympathy wages, (5) temporary and unpredictable character of post-injury earnings, (6) his inability to work, (7) his failure to be hired elsewhere, and (8) the continuance of pain and any other related circumstances. Spann v. Wal-Mart Stores, Inc., 700 So.2d 308, 313 (¶ 20) (Miss.1997). This Court must consider the evidence as a whole before making a determination. DeLaughter v. S. Cent. Tractor Parts, 642 So.2d 375, 379 (Miss.1994).

¶ 9. Gregg acknowledges that he earns higher post-injury wages than pre-injury wages, but he attributes the increase in wages after his return to work to cost-of-living increases. Gregg claims that, post-injury, he received two cost-of-living raises, which resulted in an increase to his salary. However, no evidence appears in the record, other than Gregg’s own testimony, to substantiate these cost-of-living increases or to establish the monetary amount received by Natchez Trace employees as a result of the increases.

¶ 10. To rebut the presumption that he suffered no loss of wage-earning capacity, Gregg also submits that his employer’s accommodation of his inability to climb amounts to “sympathy wages.” We point out that:

The willingness of [the claimant’s] supervisor to accommodate his ... injury does not prove [the claimant] suffered no post-injury loss of wage[-]earning capacity. This is because wages attributable to the kindness and generosity of an employer are not indicative of the employee’s actual capacity to command a certain wage on the open labor market.

Smith, 909 So.2d at 1221 (¶ 43). However, Natchez Trace argues that it accommodated Gregg as a matter of policy — not generosity. Natchez Trace submits that its policy accommodates employees with medical restrictions. Despite conflicting testimony regarding how much climbing is required of a serviceman, Natchez Trace submits that Gregg completed the majority of the tasks assigned to him. Gregg’s medical restrictions prohibited only tasks that involved climbing poles, such as repairing a bad connection or a yard light. Natchez Trace asserts that reasonable accommodation of this restriction for this job was accomplished. In support of this policy, Ease Pulliam, the branch manager and Gregg’s supervisor, testified that the servicemen in Natchez Trace’s Houston branch do not climb poles at all. Lamar Dumas, a line foreman for Natchez Trace, testified that he knew of another serviceman employed by Natchez Trace who could not climb poles due to medical restrictions. Dumas also stated his crew included servicemen who did not climb. We further note that the administrative law judge found that pole climbing was not required for discharge of all the pertinent duties of a serviceman, and Gregg was not in danger of losing his job because of this restriction. The record further shows that lift trucks are often used now by electric-power servicemen, as opposed to pole climbing, in the discharge of their duties.

¶ 11. In turning to case law for guidance, we note that in Guardian Fiberglass, Inc. v. LeSueur, 751 So.2d 1201, 1206 (¶ 14) (Miss.Ct.App.1999), this Court found that Jeremiah LeSueur failed to establish a loss of wage-earning capacity where he worked “substantially similar hours each week since the accident as he did before the injury, his wages [were] proportionate to his job, and that his maturity, education, and training levels [were] the same as they were prior to his injury.” In addition, LeSueur’s manager suggested that Le-Sueur would receive assistance if any of his duties required him to lift beyond his weight-lifting restrictions. Id. As a result, this Court determined that LeSueur was not entitled to the award of permanent disability benefits. Id.

¶ 12. With respect to loss of wage-earning capacity, Gregg further claims that because of his “no climbing” restriction and inability to work overtime, he lost a minimum of fourteen hours of overtime pay per month, which he calculates amounted to a loss of $462 per month, when taking into account Gregg’s hourly rate of $22 and an overtime-compensation rate of $33 an hour. As a result, Gregg submits that he would be earning a minimum of $1,006.72 per week, but for the work-related injury and resultant work re-strietion. However, the record again shows that Gregg’s insufficient testimony provides the only evidence presented to the administrative law judge to rebut the presumption that he incurred no loss of wage-earning capacity. More specifically, the administrative law judge found Gregg’s testimony insufficient to prove that his post-injury earnings provided an unreliable indicator of his true earning potential. In short, his weekly wage increased, and Gregg’s testimony failed to show both that he could not earn overtime pay and also that he could not perform the duties of a serviceman with his climbing restriction. Testimony in the record shows that Gregg never inquired as to whether he could “pull” a call in a supervisory capacity, which provides overtime pay without going into the field. Supervisors receive the service call and dispatch the work. Consequently, the administrative law judge and the Commission found that Gregg failed to present sufficient evidence to rebut the presumption of no loss of wage-earning capacity.

¶ 13. Regarding Gregg’s claim that he does not believe he would be hired as a serviceman for any other power company, we find no evidence in the record to support Gregg’s speculation or to show that he attempted to inquire about a position with another company. Again, the administrative law judge found that pole climbing was not pertinent to the discharge of all the duties of a serviceman; thus, this job could be performed with Gregg’s restrictions. Gregg’s claims must rest on more than mere speculation to rebut the presumption of no loss of wage-earning capacity.

¶ 14. In Smith v. Picker Service Co., 240 So.2d 454, 456-57 (Miss.1970), the supreme court affirmed the Commission’s finding that John Smith failed to rebut the presumption that due to increased earnings, Smith suffered no loss of wage-earning capacity. Specifically, the court observed that:

It is sufficient to say that a careful review of the evidence reveals that there was evidence from which the Commission could have found that [the] claimant had rebutted the presumption that his post-injury earnings were an unreliable basis for estimating capacity, but we cannot say that there is not substantial evidence to support the finding of the [Commission that he failed to overcome that presumption. [The][c]laimant’s post-injury work history of steady employment at substantially increased earnings ... is certainly strong evidence of non-impairment of earning capacity. The [C]ommission is the trier of the facts[,] and it was a question of fact whether [the] appellant had rebutted the presumption. The finding of the [C]om-mission is not against the overwhelming weight of the evidence[,] and there is substantial evidence to support the finding of the [C]ommission.

Id.

¶ 15. Similarly, this Court recognizes that it is not the trier of fact, and we reverse only where the Commission’s findings are not supported by substantial evidence. The circuit court noted in its judgment that one of the three commissioners dissented to the Commission’s decision to affirm the decision of the administrative law judge. However, two commissioners affirmed the administrative law judge’s decision. The dissenting commissioner surmised that had Gregg not received the work-related injury, his current wages would have been higher. The other two commissioners and the circuit court disagreed, finding that Gregg failed to prove with sufficient evidence whether or not his current wages would in fact be higher had he not been injured. Substantial evidence in the record supports the Commission’s decision. Upon appellate review, we therefore affirm the judgment of the circuit court that affirmed the Commission’s denial of permanent disability benefits to Gregg. We find that the issues raised by Gregg are without merit.

¶ 16. THE JUDGMENT OF THE WEBSTER COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The record reflects that Gregg voluntarily requested to be placed on call every other week; Natchez Trace never required him to be placed on call. Post-injury, Gregg is still sometimes called out on service calls in emergency situations, and he receives overtime pay for his services.

      . Gregg’s pre-injury and post-injury average weekly wage amounts do not include any amounts earned in overtime pay.

      . Gregg testified that fifty percent of his job as a serviceman involved climbing poles. However, Kase Pulliam estimated that only twenty-five percent of a serviceman’s job involves climbing poles.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Gerald JONES, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01890-COA.
    Court of Appeals of Mississippi.
    Aug. 24, 2010.
    Rehearing Denied Jan. 11, 2011.
    Gerald Jones, Appellant, pro se.

      Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. In this appeal of the denial of a motion for post-conviction collateral relief, Gerald Jones argues that the Circuit Court of Lafayette County should have granted his request to file an out-of-time appeal. We agree; therefore, the judgment is reversed, and this case is remanded for the circuit court to conduct an evidentiary hearing to determine whether Jones should be granted permission to file an out-of-time appeal.

¶ 2. On January 9, 2003, Jones was convicted of two counts of sexual battery. He was sentenced to serve two concurrent twenty-five-year terms.

¶ 3. At trial, Jones was represented by a court-appointed attorney, Thomas C. Levi-diotis. On January 10, 2003, Levidiotis filed a motion for a judgment notwithstanding the verdict or, alternatively, a motion for a new trial. The motion was denied on January 24, 2003.

¶ 4. Now, Jones claims that he informed Levidiotis immediately following the verdict that he wanted to appeal his conviction and sentence to the Mississippi Supreme Court. However, a notice of appeal was not filed within thirty days. M.R.A.P. 4(e). Jones has provided copies of two letters he purportedly sent to Levidiotis, where he inquired about the status of his appeal— dated February 27, 2003, and November 19, 2003. These letters are included in the record, but neither letter is authenticated.

¶ 5. When he heard no response from Levidiotis, Jones filed a complaint against Levidiotis with The Mississippi Bar. In response, on February 15, 2004, Levidiotis sent a letter to Jones. Levidiotis told Jones that he had sent Jones a letter, dated January 12, 2003, that indicated his duties as Jones’s counsel terminated upon Jones’s conviction. Levidiotis said that the January 12th letter warned Jones that he would not file an appeal unless he received specific written instructions to do so. In addition, Levidiotis told Jones that it had been more than a year, and the time for Jones’s appeal had passed. The letter also contained the following statement: “I advise you to ask the ... Court for leave to file an out of time appeal. Since I no longer represent you, I am unable to act on your behalf unless specifically instructed by the Court.”

¶ 6. Thereafter, on June 3, 2004, Jones filed a pro se motion for appointment of new counsel to file an appeal. A copy of Levidiotis’s February 15th letter was attached to the motion. The only apparent purpose for Jones to request appointment of counsel was to appeal his conviction.

¶7. Two years later, on May 31, 2006, the circuit court entered an order that granted the motion. The order stated, in part, that “[t]he Court found the Defendant indigent and that he should be permitted to appeal, in forma pauperis, to the Supreme Court of Mississippi, and that the Court should appoint counsel for the Defendant for appeal purposes.” The circuit judge appointed Levidiotis to represent Jones “for appeal purposes.”

¶ 8. On June 2, 2006, Levidiotis filed a notice of appeal and other pleadings required by the Mississippi Rules of Appellate Procedure. Then, on June 5, 2006, Jones was granted permission from the circuit court to proceed with his appeal in forma pauperis.

¶ 9. On July 17, 2006, this Court on its own motion dismissed Jones’s appeal as untimely filed. We determined that Jones’s post-trial motion was denied on January 24, 2003, and the notice of appeal was not filed until June 2, 2006. Therefore, the notice was not timely filed. We also stated that the docket failed to indicate that a motion for permission to file an out-of-time appeal was filed or granted. As a result, Jones’s appeal was dismissed. No further pleadings were filed with this Court.

¶ 10. On August 10, 2006, Levidiotis sent Jones a letter informing him that the appeal had been filed and subsequently dismissed by this Court as untimely filed. The letter stated: “Having done what my order of appointment required I regard my representation of you for appeal purposes as finally terminated and completed effective this day.” Levidiotis failed to note that he had failed to follow his own prior advice that a motion for permission to file an out-of-time appeal was necessary before Jones could proceed on appeal.

¶ 11. On June 24, 2008, Jones, acting pro se again, filed a motion for post-conviction collateral relief. In this motion, Jones specifically asked for permission to file an out-of-time appeal.

¶ 12. In his motion for post-conviction relief, Jones asserted that his trial counsel was deficient in his failure to timely file Jones’s direct appeal and in his failure to seek leave to file an out-of-time appeal when ordered to do so by the circuit court. Jones also argued that Levi-diotis -withdrew his representation without permission from the court. The motion was summarily denied, without explanation, by the circuit court. We may only surmise that the circuit court concluded the motion was time barred. From this judgment, Jones now appeals.

¶ 13. Our analysis begins with the standard of review. The denial of post-conviction collateral relief will not be reversed absent a finding that the circuit court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

¶ 14. Mississippi Code Annotated section 99—39—5(1)(i) (Rev.2007) allows a prisoner to file a motion for post-conviction collateral relief on the basis that he is entitled to an out-of-time appeal. To prove his right to an out-of-time appeal, Jones “must show- by a preponderance of the evidence that he asked his attorney to appeal within the time allowed for giving notice of an appeal.” Dickey v. State, 662 So.2d 1106, 1108 (Miss.1995) (citations omitted). He must also show that the attorney failed to perfect the appeal and that such failure was through no fault of his own. Id.

¶ 15. The supreme court has held that an evidentiary hearing is warranted on the issue of whether an appeal was requested when the appellant and the attorney give conflicting statements on the issue. Id. Furthermore, a hearing is also warranted when the record contains no response from the attorney. Id.

¶ 16. Here, Jones claims that he requested an appeal immediately after his conviction. Levidiotis’s February 15, 2004, letter indicates that Jones never requested such appeal in writing. The supreme court has given the following warning to attorneys who represent a criminal defendant at trial: “disputes between lawyer and client over instructions to take or not to take an appeal are difficult to resolve without a record. Lawyers should assist the court in this regard by reducing decisions whether to appeal a criminal conviction to a writing signed by the defendant.” Wright v. State, 577 So.2d 387, 390 (Miss.1991). Here, however, the record reveals no decision regarding an appeal reduced to a writing in this case.

¶ 17. Levidiotis’s letter to Jones stated that his representation was complete upon Jones’s conviction. This was not a correct statement of the law and Levidiotis’s obligations to this client, Jones. Rule 6(b)(1) of the Mississippi Rules of Appellate Procedure states: “Appointed trial counsel shall continue as defendant’s counsel on appeal unless relieved by order of the trial court, or, if the appeal has been perfected, by order of the Supreme Court or the Court of Appeals.” The record contains no order by the circuit court relieving Lev-idiotis of his duty to represent Jones on appeal.

¶ 18. Upon de novo review of the legal questions presented, we recognize that justice requires Jones receive a hearing on whether he was entitled to be granted permission for an out-of-time appeal. Indeed, we now recognize that Jones’s motion should not be considered time-barred under Mississippi Code Annotated section 99-39-5(2) (Rev.2007), even though it was filed more than three years after the time for taking an appeal from his judgment of conviction. The basis for our decision is the requirement that the pleadings of a pro se litigant must be construed liberally. See Evans v. State, 725 So.2d 613, 678 (¶ 208) (Miss.1997) (citation omitted).

¶ 19. Based on this standard, it is apparent that Jones’s June 3, 2004, motion for appointment of counsel for appeal should have been construed as one asking for the appointment of appellate counsel and permission to file an out-of-time appeal. This conclusion now seems obvious since Jones would need an attorney for appeal purposes only if the trial court granted him permission for an out-of-time appeal. Jones’s newly appointed counsel, whether it be Levidiotis or another attorney, should first have pursued permission to file an out-of-time appeal. The central issue in this decision placed Jones and his trial counsel, Levidiotis, in adversarial roles and required potential testimony by Levidiotis against his former client, Jones.

¶ 20. The circuit court determined that Jones was not entitled to relief under his motion for post-conviction collateral relief. We find this to be clearly erroneous. Lev-idiotis’s own letter clearly set forth the procedural steps necessary to attempt to resurrect Jones’s appeal. Upon his appointment as Jones’s counsel for appeal purposes, Levidiotis should have promptly filed a motion for permission to file an out-of-time appeal. The filing of this motion would have required the circuit court to hold an evidentiary hearing to determine whether Jones could “show by a preponderance of the evidence that he asked his attorney to appeal within the time allowed for giving notice of an appeal.” Dickey, 662 So.2d at 1108. Then, Jones would have to show that Levidiotis failed to perfect the appeal and that such failure was through no fault of his own. Id. Levidiotis failed to follow his own legal advice.

¶ 21. We conclude that the purpose of the circuit court’s appointment of Levidiot-is as Jones’s counsel for appeal, in 2006, was for the sole purpose to allow Jones to seek permission to file an out-of-time appeal. Since the time for a direct appeal had run years earlier, Levidiotis’s failure to file a motion for permission to file an out-of-time appeal rendered his appointment meaningless because he merely filed an untimely notice of appeal with this Court more than two years after Jones’s conviction. Upon our review of the status of the appeal before the Court, we immediately dismissed the appeal. Levidiotis’s representation accomplished nothing and left Jones to file yet another pro se action seeking his right to a direct appeal.

¶ 22. We find that circuit court’s summary denial of the motion for post-conviction collateral relief should be reversed and this case remanded for further proceedings. On remand, the circuit court may appoint counsel to represent Jones and then hold an evidentiary hearing to determine whether Jones should have been granted permission to file an out-of-time appeal. If permission is appropriately granted, the appeal may proceed. If permission is not granted, Jones would be entitled to appeal this determination on the record of the evidentiary hearing.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAFAYETTE COUNTY.

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

      . During an evidentiary hearing for permission for an out-of-time appeal, the central dispute will place Jones and Levidiotis in adversarial roles and require potential testimony by Levidiotis against his client. Appointment of Levidiotis as counsel for Jones in such a proceeding does indeed appear to be unwise and should be avoided.


text:
    REBUILD AMERICA, INC., Appellant, v. Tim A. NORRIS, Appellee.
    No. 2009-CA-01191-COA.
    Court of Appeals of Mississippi.
    Sept. 14, 2010.
    Rehearing Denied Jan. 11, 2011.

      Kimberly Pine Turner, attorney for appellant.
    Steve Younger, attorney for appellee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. Rebuild America, Inc. filed suit in the Chancery Court of Hinds County to quiet and confirm tax title. Tim Norris filed his answer and a counterclaim to set aside the tax sale and confirm title. The chancellor found that the Hinds County Chancery Clerk had failed to provide the required notice to Norris. The chancellor denied Rebuild America’s claim to confirm the tax title and set aside the tax sale. On appeal, Rebuild America argues the chancellor was in error because the required notice was provided. We find no error and affirm.

FACTS

¶ 2. On December 22, 2005, Norris acquired the subject property by a warranty deed. At that time, Delta Foundation, Inc. had a lien on the property. Norris did not pay the 2005 ad valorem taxes on the property. On August 28, 2006, a tax sale was held, and Sass Muni purchased the property at the tax sale. The sale was certified by the chancery clerk, and it remained on file with the chancery clerk for the statutory redemption period of two years.

¶ 3. On May 29, 2008, the chancery clerk issued a notice of tax sale to the sheriff. The sheriff could not find Norris at the property, so the sheriff posted the notice on the door.

¶ 4. The chancery clerk then sent Norris notice by certified mail to the same address where the sheriff had posted the notice. Norris received the notice through the mail on June 6, 2008, and signed the return receipt. The chancery clerk signed an affidavit stating that he had made a diligent effort to locate Norris through the phone directory, tax directory, and other means.

¶ 5. On August 28, 2008, Norris had not redeemed the sale. Thus, the chancery clerk issued Sass Muni a tax deed to the property. On October 17, 2008, Sass Muni transferred the property to Rebuild America, Inc. through a quitclaim deed.

¶ 6. On October 22, 2008, Rebuild America initiated this action to quiet and confirm tax title. Norris answered and filed a counterclaim, where he asked the chancery court to declare the tax deed void. Norris filed a motion for summary judgment. A hearing was held on July 2, 2009. The chancery court concluded that the deed was void because the sheriff had failed to properly serve Norris the notice of the tax sale as required by Mississippi Code Annotated section 27-43-3 (Supp.2009).

STANDARD OF REVIEW

¶ 7. This Court maintains a limited review of a chancellor’s findings of fact. We will not reverse the factual findings of the chancellor when supported by substantial evidence unless the Court can say that the findings are manifestly wrong, clearly erroneous, or amount to an abuse of discretion. Morgan v. West, 812 So.2d 987, 990 (¶ 7) (Miss.2002) (citation omitted). “In matters that are questions of law, this Court employs a de novo standard of review and will only reverse for an erroneous interpretation or application of the law.” Id. at (¶ 8) (citations omitted).

¶8. Further, when an appeal concerns property sold in a tax sale, this Court has held: “[s]tatutes dealing with land forfeitures for delinquent taxes should be strictly construed in favor of the landowners.” Brown v. Riley, 580 So.2d 1234, 1237 (Miss.1991). “Any deviation from the statutorily mandated procedure renders the sale void.” Roach v. Goebel, 856 So.2d 711, 716 (¶ 29) (Miss.Ct.App.2003) (citing Hart v. Catoe, 390 So.2d 1001, 1003 (Miss.1980)).

ANALYSIS

¶ 9. The issue on appeal is whether the chancery court erred in setting aside the tax sale. The chancellor found that “[p]osting notice on the door is not in compliance with the notice requirements of [section 27-43-3].” Rebuild America argues that the chancery court applied an incorrect legal standard in finding that the chancery clerk failed to follow the prescribed notice requirements of section 27-43-3. Norris responds that the chancery court applied the correct legal standard.

¶ 10. Section 27-43-3 provides:

The clerk shall issue the notice to the sheriff of the county of the reputed owner’s residence, if he be a resident of the State of Mississippi, and the sheriff shall be required to serve personal notice as summons issued from the courts are served, and make his return to the chancery clerk issuing same. The clerk shall also mail a copy of same to the reputed owner at his usual street address, if same can be ascertained after diligent search and inquiry, or to his post office address if only that can be ascertained, and he shall note such action on the tax sales record. The clerk shall also be required to publish the name and address of the reputed owner of the property and the legal description of such property in a public newspaper of the county in which the land is located, or if no newspaper is published as such, then in a newspaper having a general circulation in such county. Such publication shall be made at least forty-five (45) days prior to the expiration of the redemption period.
The failure of the landowner to actually receive the notice herein required shall not render the title void, provided the clerk and sheriff have complied with the duties herein prescribed for them.
Should the clerk inadvertently fail to send notice as prescribed in this section, then such sale shall be void and the clerk shall not be liable to the purchaser or owner upon refund of all purchase money paid.

¶ 11. “Section 27-43-3 requires redemption notice be given by personal service, by mail, and by publication in an appropriate newspaper.” DeWeese Nelson Realty, Inc. v. Equity Servs. Co., 502 So.2d 310, 312 (Miss.1986). All three requirements must be met for the redemption notice to be complete and in accordance with the statute. Id.

¶ 12. In Viking Investments, LLC. v. Addison Body Shop, Inc., 931 So.2d 679 (Miss.Ct.App.2006), the deputy sheriff posted the notice of redemption to the landowner’s business, and the landowner later received notice of the expiration period by certified mail. On appeal, we found that “[p]osting a notice to the property when the intended recipient cannot be lo-eated is clearly not one of the methods for perfecting personal service under Rule 4 [of the Mississippi Rules of Civil Procedure.]” Id. at 682 (¶ 8).

¶ 13. According to section 27-43-3, the sheriff is required to “serve personal notice as summons issued from the courts are served.” Rule 4(d)(1)(A)-(B) provides:

The summons and complaint shall be served together. Service by sheriff or process server shall be made as follows:
(1) Upon an individual other than an unmarried infant or a mentally incompetent person, (A) by delivering a copy of the summons and of the complaint to him personally or to an agent authorized by appointment or by law to receive service of process; or (B) if service under subparagraph (1)(A) of this subdivision cannot be made with reasonable diligence, by leaving a copy of the summons and complaint at the defendant’s usual place of abode with the defendant’s spouse or some other person of the defendant’s family above the age of sixteen years who is willing to receive service, and by thereafter mailing a copy of the summons and complaint (by first class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after such mailing.

¶ 14. Here, the sheriff posted the notice on Norris’s door. Posting notice on the door is not a method for personal service of process under Rule 4. Accordingly, we find that Norris was not given proper notice of the expiration of the redemption period because the sheriff never personally served him the notice.

¶ 15. Further, the chancery clerk failed to provide proper notice to Delta Foundation, the lien holder of the property. Mississippi Code Annotated section 27-43-7 also requires that:

The notice shall be mailed to said lien-ors, if any, to the post-office address of the lienors, if such address is set forth in the instrument creating the lien, otherwise to the post-office address of said lienors, if actually known to the clerk, and if unknown to the clerk then addressed to the county site of the said county.

¶ 16. At the time notice was sent, Delta Foundation was the lien holder to the property. Upon review of the record, there is no evidence that the chancery clerk mailed notice to Delta Foundation. The chancellor did not address this issue in her judgment. Under section 27-43-7, the notice should have been mailed to the address of the current lien holder. As the supreme court held in Brown:

[T]he most important safeguard involving any person who stands to suffer from some official action is prior notice. This gives the recipient an opportunity to prepare himself and be heard. Notice, therefore, by far is the paramount factor and purpose of all process. This, however, is not the entire story. Certain statutory formalities attend every process....

Brown, 580 So.2d at 1237 (internal citations omitted).

¶ 17. We must strictly construe the notice statutes in favor of the landowners. Accordingly, we find that the chancellor did not err as a matter of law by voiding the tax sale to Sass Muni and voiding the subsequent conveyance to Rebuild America as the chancery clerk did not comply with the statutory notice requirements.

¶ 18. Also, in his brief, Norris asks this Court to require Rebuild America to pay reasonable attorney’s fees for defending this allegedly frivolous appeal. We decline to do so.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


author: ROBERTS, J.,

text:
    Gerald MANGUM, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01167-COA.
    Court of Appeals of Mississippi.
    Nov. 9, 2010.
    Rehearing Denied April 5, 2011.
    Certiorari Denied June 30, 2011.
    Gerald Mangum, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. In order for an indictment to be legally sufficient, it must, among other things, contain all the essential elements of the crime charged. The essential elements of murder are that: (1) the defendant killed the victim, (2) without authority of law, and (3) with deliberate design to effect his death. Gerald Mangum pled guilty to murder following his indictment of the charge in 1980. He now argues that his indictment was fatally defective because it did not contain the phrase, “not in necessary self-defense.” However, because his indictment contained the word “unlawfully,” we find Mangum’s sole issue is without merit.

FACTS AND PROCEDURAL HISTORY

¶ 2. Mangum was indicted for murder by a Hinds County grand jury in 1980. Along with two other charges against him at the time, he pled guilty to the charge of murder on March 4, 1981, in the Circuit Court of the First Judicial District of Hinds County. The trial court subsequently sentenced Mangum to life in the custody of the Mississippi Department of Corrections. Although not contained in the record before this Court, Mangum filed a motion for post-conviction relief with the trial court at some point after the entry of his guilty plea and sentencing for murder, and it was denied on January 5, 1988. Mangum appealed the denial to the Mississippi Supreme Court, and without elaboration, the trial court’s denial was affirmed. Mangum v. State, 553 So.2d 24, 24 (Miss.1989).

¶ 8. Mangum filed another motion in connection with his murder conviction and sentence in which he sought post-conviction relief with the trial court on November 12, 1998. This motion was summarily dismissed with prejudice on February 22, 1999. On March 29, 2004, Mangum filed a third motion for post-conviction relief with the trial court. This motion was also summarily dismissed on April 7, 2004. Man-gum did not appeal the trial court’s dismissal of either his second or third motions for post-conviction relief.

¶ 4. A fourth motion was filed with the trial court on September 24, 2007, in which Mangum requested that the trial court dismiss his 1980 indictment as defective. Mangum subsequently filed an amended motion on May 26, 2009, in which he clarified that his motion was a request for post-conviction relief from alleged deficiencies with his indictment. However, unlike Mangum’s previous two motions for post-conviction relief, on July 2, 2009, his amended motion was denied, rather than dismissed. Mangum now appeals the trial court’s denial of his amended motion for post-conviction relief.

DISCUSSION

WHETHER THE TRIAL COURT ERRED IN DENYING MANGUM’S MOTION FOR POST-CONVICTION RELIEF

A. Procedural Bar

¶ 5. Mangum argues that the trial court erred in denying his motion for post-conviction relief because he alleges his 1980 indictment failed to state the essential elements of the crime of murder. In Cole v. State, 608 So.2d 1313 (Miss.1992), the supreme court spoke to the Legislature’s ability to impose reasonable time limitations upon a defendant’s post-conviction-relief efforts. Cole involved West Cole’s attempt to seek post-conviction relief from a 1957 guilty plea to manslaughter because he claimed that he had not been represented by an attorney and that he was incompetent at the time of his plea. Id. at 1315. The 1957 conviction was used as an aggravating circumstance at Cole’s subsequent 1984 capital-murder sentencing hearing. Id. The trial court summarily denied Cole’s motion, finding that it was procedurally barred by the three-year time bar of the Mississippi Uniform Post-Conviction Collateral Relief Act (Act). Id. Affirming the trial court’s denial based on the time bar, the supreme court favorably quoted the following passage from an opinion authored by the Iowa Supreme Court:

The thrust of appellant’s argument is that post[-]conviction relief, when utilized as a substitute remedy for habeas corpus, may not be limited by a statute of limitations without violating the prohibition against suspending the writ. We do not agree.
[T]he legislature may impose reasonable restriction^] upon the exercise of a constitutional right. Emberton v. County of San Diego, 186 Cal.App.3d 268, 271, 230 Cal.Rptr. 572, 574 (1986), cert. denied, 481 U.S. 1038, 107 S.Ct. 1975, 95 L.Ed.2d 815 (1987); People v. Germany, 674 P.2d 345, 450 [350] (Colo.1983). In State v. Berg, 237 Iowa 356, 21 N.W.2d 777 (1946), we stated:
Legislatures may pass laws regulating, within reasonable limits, the mode in which rights secured to the subject by bills of right and constitutions shall be enjoyed, and if the subject neglects to comply with these regulations he thereby waives this constitutional privileges.
Id. at 361, 21 N.W.2d at 780. Such reasonable regulations are proper so long as no constitutional right is materially impaired. Schloemer v. Uhlenhopp, 237 Iowa 279, 282, 21 N.W.2d 457, 458 (1946).
This restriction involves the time period to commence the action. It is a well-settled principle that a state may attach reasonable time limitations to the assertion of federal constitutional rights. United States v. Randolph, 262 F.2d 10, 12 (7th Cir.1958), cert. denied, 359 U.S. 1004, 79 S.Ct. 1143, 3 L.Ed.2d 1032 (1959) (citing Brown v. Allen, 344 U.S. 443, 486, 73 S.Ct. 397, 422, 97 L.Ed. 469, 504 (1953)). We conclude that a time limitation also may be placed on the exercise of a state constitutional right.
Furthermore, statutes of limitations speak to matters of remedy and procedure, rather than the destruction of fundamental rights. State ex rel. Krupke v. Witkowski, 256 N.W.2d 216, 224 (Iowa 1977); Presbytery of Southeast Iowa v. Harris, 226 N.W.2d 232, 242 (Iowa), cert. denied, 423 U.S. 830, 96 S.Ct. 50, 46 L.Ed.2d 48 (1975). Here, [the] appellant had a remedy; he had a three-year opportunity to challenge his criminal conviction. By failing to exercise that remedy, he effectively waived his right to challenge his conviction. See Randolph, 262 F.2d at 12.
For the reasons stated, we hold that the three-year limitation ... does not violate the constitutional prohibition against the suspension of the writ of habeas corpus.

Id. at 1318-19 (quoting Davis v. State, 443 N.W.2d 707, 709-10 (Iowa 1989)). Following this recitation, our supreme court stated: “[T]he time limitations provisions of our [Act] are almost identical with those in Iowa. Our statute, like Iowa’s, does not work an unconstitutional suspension of ha-beas corpus.” Id. at 1319.

¶ 6. The reasonable limitations imposed by the Legislature include the procedural bars listed in the Mississippi Act. These include the general three-year time bar, the successive-writ bar, and procedural waiver, which are found in Mississippi Code Annotated sections 99-39-5(2) (Supp. 2009), 99-39-23(6) (Supp.2009), and 99-39-21(1) — (3) (Rev.2007), respectively. Those sections that should be applicable to Man-gum’s appeal include the former two. The latter limitation, section 99-39-21, is inapplicable based upon the plain language of the section. It states, generally, that a defendant waives any “objections, defenses, claims, questions, issues[,] or errors in fact or law which were capable of determination at trial and/or on direct appeal.” Miss.Code Ann. § 99-39-21(1). Furthermore, the doctrine of res judicata applies to all issues decided at trial and on direct appeal. Miss.Code Ann. § 99-39-21(3). Additionally, this section contains the only language granting a court the discretion to waive a procedural bar. Miss.Code Ann. § 99-39-21(1). However, because Man-gum pled guilty, the prohibition of raising issues that could have been raised at trial or on direct appeal does not apply.

¶7. Section 99-39-5(2) states, in pertinent part, that unless an exception applies:

A motion for relief under this article shall be made within three (3) years after the time in which the petitioner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction.

The exceptions include: a material intervening decision, newly discovered evidence, and substantiated claims that a defendant’s sentence has expired or that his probation, parole, or conditional release was unlawfully revoked. Miss.Code Ann. § 99-35-5(2)(a)-(b) (Rev.2007).

¶ 8. Similarly, section 99-39-23(6) provides that an order granting or denying a defendant’s motion for post-conviction relief “is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.” As with the time bar, this section also includes exceptions, which include: a defendant’s initial motion under Mississippi Code annotated section 99-19-57(2) (Rev.2007) claiming a mental illness; a material intervening decision; newly discovered evidence; and substantiated claims that a defendant’s sentence has expired or that his probation, parole, or conditional release was unlawfully revoked. Miss.Code Ann. § 99-39-23(6). It is clear from the record in this case and Mangum’s brief that the issue raised in his most-current motion for post-conviction relief does not fall within any of the recognized exceptions stated above.

¶ 9. Therefore, it would appear at first blush that Mangum’s motion should be barred based upon the Legislature’s ability to set reasonable limitations upon post-conviction proceedings, the tardiness of Mangum’s motion, and the fact that it is a successive writ three times over. However, without mention of Cole or the Legislature’s discretion to set reasonable limitations upon a defendant’s right to voice his grievances, constitutional, or otherwise, the supreme court recently made clear in Jackson v. State (¶¶ 24, 34) (Miss.2010) that a challenge to the sufficiency of an indictment “is not waivable and is excepted from the [Act’s] procedural bars” as it infringes upon a defendant’s right to due process. Additionally, in Rowland v. State, 42 So.3d 503, 507-08 (¶ 12) (Miss.2010), the supreme court reiterated its stance “that errors affecting fundamental constitutional rights are excepted from the procedural bars of the [Act].” As such, because this Court is obligated to follow the pronouncements of the supreme court, we reach the merits of Mangum’s motion.

B. Sufficiency of Mangum’s Indictment

¶ 10. The issue of whether an indictment is fatally defective is a question of law and warrants a broad standard of review by this Court. Nguyen v. State, 761 So.2d 873, 874 (¶3) (Miss.2000). As such, our review is de novo. Peterson v. State, 671 So.2d 647, 652 (Miss.1996) (su-perceded by statute).

¶ 11. An indictment must contain all the essential elements of the crime charged in order for a defendant to be properly convicted. Jackson (¶ 23). The essential elements of the crime of murder are that: “(1) the defendant killed the victim; (2) without authority of law; and (3) with deliberate design to effect his death.” Brown v. State, 965 So.2d 1023, 1030 (¶ 27) (Miss.2007). Mangum’s 1980 indictment states:

The Grand Jurors for the State of Mississippi, taken from the body of good and lawful persons of the [First] Judicial District of Hinds County, in the State of Mississippi ... upon their oaths present: That Gerald Lee Mangum in said District, County[,] and State on the 18th day of July, A.D., 1980[,] did then and there willfully, unlawfully, feloniously[,] and of his malice aforethought kill and murder John Edgar Simmons[,] a human being[,] contrary to the form of the statute in such cases and provided, and against the peace and dignity of the State of Mississippi.

Mangum argues that the indictment was insufficient as it excluded an essential element of the crime of murder. Mangum claims that it should have also included the phrase, “not in necessary self-defense.”

¶ 12. As is clear, Mangum’s indictment excludes not only the phrase “not in necessary self-defense” but also “without authority of law,” an identified essential element of the crime of murder. However, the supreme court had held that “the word ‘unlawfully’ and the phrase ‘without authority of law are interchangeable.” Bishop v. State, 812 So.2d 934, 942 (¶26) (Miss.2002) (quoting Turner v. State, 796 So.2d 998, 1003 (¶ 20) (Miss.2001)). The supreme court further identified that “unlawful” is defined as “not authorized or justified by law.” Turner, 796 So.2d at 1003 (¶20) (quoting Webster’s Third New International Dictionary 2502 (1986)). With this in mind we note that a claim of self-defense in a murder case is a claim that the defendant was justified in the purposeful killing of another. Wadford v. State, 385 So.2d 951, 955 (Miss.1980). Hence, the phrase “not in necessary self-defense” is encompassed in the word “unlawful.” Therefore, we find that Mangum’s indictment was legally sufficient as it contained the word “unlawfully.” This issue is without merit.

¶ 13. 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.

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


author: MAXWELL, J.,

text:
    STONE COUNTY, Mississippi and Stone County Board of Supervisors, Appellants v. STONE COUNTY HOSPITAL AMBULANCE SERVICE, Appellee.
    No. 2009-CA-01550-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.
    Rehearing Denied April 12, 2011.
    Certiorari Denied June 30, 2011.

      Thomas M. Matthews Jr., attorney for appellants.
    Joe Sam Owen, Gulfport, attorney for appellee.
    Before LEE, P.J., GRIFFIS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Mississippi has a statutory preference for private ambulance services over public ones. And a county cannot contract with a public service if there is an adequate private service operating in the county. Here, Stone County Hospital (Hospital) created a private ambulance service, Stone County Ambulance Service (SCAS), in order to be awarded Stone County’s 2008 annual ambulance-service contract. But after a dispute arose between SCAS and the Stone County Board of Supervisors (Board) over which air ambulance service SCAS had to give priority, SCAS terminated its contractual services with the County in February 2008, giving thirty-days’ notice. Believing the County would have no ambulance service at the end of the thirty days, the Board entered an ambulance-service contract with AAA, the publicly run ambulance service that previously had the Stone County contract.

¶ 2. SCAS filed a bill of exceptions to the Board’s decision to enter a contract with AAA, claiming the contract violated Mississippi’s statutory preference for private ambulance service. The circuit court, sitting as an appellate court, agreed with SCAS and set aside the 2008 contract with AAA. The County appealed.

¶ 3. Finding the Board’s determination that there was no adequate private ambulance service in Stone County after SCAS quit providing service was not arbitrary or capricious, but rather was within the County’s lawful discretion, we reverse the judgment of the circuit court and render judgment to reinstate the AAA contract.

FACTS

¶ 4. For years, the Board had contracted with AAA, a public ambulance service of Forest County Hospital, to provide ambulance service to the County. In November 2007, AAA advised the Board the costs of its services would have to increase. In an effort to save money, the Board asked for bids from other services. The Hospital, which is a private hospital in the County that had not previously offered an ambulance service, purchased two ambulances and was awarded the County’s contract. The Hospital called the newly created service “Stone County Ambulance Service.” SCAS was not a separate incorporated entity but rather an extension of the Hospital.

¶ 5. In January 2008, the Board accepted SCAS’s bid. AAA and another private company, AMR, submitted competing bids. SCAS immediately began providing ambulance service without a formal contract. But air ambulance service to the County quickly became an issue. The County was a paying member of an air-ambulance-service district, run by Rescue 7, a public service related to AAA. As a policy, the Hospital would first call a company other than Rescue 7 to provide air service. The Board insisted that SCAS call Rescue 7 first, making this a requirement in the written contract offered to SCAS in February 2008. SCAS refused to execute the written contract with the Rescue 7 provision, claiming the requirement violated the doctors’ discretion in selecting patient services.

¶ 6. At a February 2008 Board meeting, negotiations broke down. On February 19, SCAS’s president publicly announced SCAS had no other choice but to cease operations. SCAS followed up this threatened action with an official letter, terminating SCAS’s contractual services at the end of thirty days. Believing it had less than a month to ensure its citizens had an ambulance service, the Board entered a contract with AAA on February 26 and agreed to pay the higher rate demanded in November 2007.

PROCEDURAL HISTORY

¶ 7. Within ten days of the Board’s decision to contract with AAA, SCAS appealed the Board’s decision by filing a bill of exceptions. See Miss.Code Ann. § 11—51—75 (Rev.2002) (providing statutory procedure for appealing a board of supervisors’ decision to the circuit court). Initially, the Board refused to sign the bill of exceptions and have its clerk transfer it to the circuit clerk, as it believed only the Hospital, but not “Stone County Ambulance Service,” could appeal. The circuit court compelled the Board to sign and transfer the bill of exceptions, allowing the Board to submit its own amendments to the appellate record.

¶ 8. Sitting as the appellate court, the circuit court set aside the AAA contract, determining the Board violated the statutory preference for private ambulance services stated in Mississippi Code Annotated section 41-55-7 (Rev.2009). In reaching this conclusion, the circuit court relied on the Mississippi Supreme Court’s application of that statute in Cook v. Board of Supervisors of Lowndes County, 571 So.2d 932 (Miss.1990).

¶ 9. On appeal, the County argues: (1) the circuit court should have dismissed the appeal because “Stone County Ambulance Services,” not “Stone County Hospital, Inc.,” filed the bill of exceptions; and (2) the circuit court erred by setting aside the AAA contract, based on its determination there were two adequately run private services operating in the County.

DISCUSSION

I. The Bill of Exceptions

¶ 10. Section 11-51-75 confers the right to appeal to the circuit court on “[a]ny person aggrieved by a judgment or decision of the board of supervisors!.]” Miss.Code Ann. § 11-51-75. The County argues the wrong “person” filed the bill of exceptions. SCAS is not a separate incorporated entity. Instead, it is a trade name for Stone County Hospital, Inc. By filing the bill of exceptions as “Stone County Ambulance Service,” the County claims “the proper legal entity of Stone County Hospital, Inc. has not been named as the Appellee ... or otherwise, perfected this appeal.”

¶ 11. The County relies on the following principle from Collins v. General Electric Co., 239 Miss. 825, 833, 123 So.2d 609, 613 (1960) (citation omitted), to argue the circuit court should have dismissed SCAS’s appeal:

In every action there must be a real plaintiff who is a person in law and is possessed of a legal entity or existence as a natural, artificial, or quasi-artificial person, and a suit brought in the name of that which is not a legal entity is a mere nullity.

But in Collins, the supreme court did not apply the general principle because it was apparent the named plaintiff was the trade name of a Mississippi corporation. Id. The supreme court instead relied on a second principle that:

an individual who is doing business in a trade-name may maintain an action in such trade-name, especially where the suit relates to the business conducted in that name, provided the trade-name is not made a cover or means of fraud, and provided a judgment in the action would be binding on the real party suing in such business or trade-name.

Id. at 833-34, 123 So.2d at 613 (citation omitted).

¶ 12. Reliance on Collins leads to the opposite result than the County asks for. Collins actually supports the Hospital’s use of its ambulance-service trade name to appeal the County’s decision related to ambulance service-the business the Hospital conducted as SCAS.

¶ 13. We are not persuaded by the County’s effort to distinguish Collins factually by arguing the exception does not apply to a brand-new trade name. The County’s own actions contradict its claim SCAS was not an established trade name. The contract the County asked SCAS to sign, made part of the Board’s February 19, 2008, minutes, stated the contract was between the County and “Stone County Hospital, Inc., a Mississippi Corporation, doing business as Stone County Ambulance Service.” (Emphasis added).

¶ 14. We agree with the circuit court’s finding that there was no confusion the Hospital, an incorporated entity, was filing a bill of exceptions. Using “Stone County Ambulance Service” in the caption was not fatal to its appeal. The County’s argument relies on form over substance. And like the circuit court, we too address the substance of this appeal.

II. Mississippi’s Statutory Preference for Private Ambulance Service

A. Standard of Review

¶ 15. Appellate review of a county board’s decision is limited. Stone County Pub., Inc. v. Prout, 18 So.3d 300, 302 (¶ 5) (Miss.Ct.App.2009) (citing Gannett River States Publ’g Corp. v. Jackson Advocate, 856 So.2d 247, 249 (¶ 10) (Miss.2003)). “A decision or order of a [county] will be upheld unless the order was not supported by substantial evidence, was arbitrary or capricious, was beyond the [county’s] scope or power, or was in violation of the aggrieved party’s constitutional or statutory rights.” Id. “[S]o long as the governing body’s decision is ‘fairly debatable,’ appellate courts are without authority to supplant the [county’s] legislative action.” Id. (quoting Gannett River, 856 So.2d at 249 (¶8)). “A rebuttable presumption exists in favor of the [county], and the challenging party has the burden of proving otherwise.” City of Gulfport v. McHugh, 38 So.3d 674, 676 (¶ 7) (Miss.Ct.App.2010).

¶ 16. The circuit court gathered from the bill of exceptions that “there are at least two (2) privately run ambulance services [SCAS and AMR] which are adequate,” making it a violation of section 41-55-7 to contract with a public entity like AAA. It further found section 41-55-7 “is explicit in permitting a subsidy only for a privately run ambulance service.”

¶ 17. The existence of an adequate privately run ambulance service is a question of fact. Cook, 571 So.2d at 935-36. The circuit court, sitting as the appellate court, could only reverse the Board’s decision — that there would be no ambulance service when SCAS quit — if it was arbitrary, capricious, or without substantial credible evidence. Id. at 936. Under the circumstances, the record does not support a finding that the Board acted arbitrarily or capriciously or in violation of section 41-55-7.

B. Governing Law

¶ 18. “State law enacts that private enterprise be preferred in the provision of county ambulance service.” Cook, 571 So.2d at 933. Mississippi Code Annotated section 41-55-7 directs:

If there is in operation an adequate privately run ambulance service, then the governing authorities are hereby prohibited from contracting for ambulance services to be run by the public body. The governing authorities may, however, subsidize such existing privately run ambulance service, in their discretion, if they deem necessary to keep such service in operation.

¶ 19. In Cook, the Lowndes County Board of Supervisors decided not to renew its contract with Cook Ambulance, Inc., a private ambulance service, instead contracting with a public service. 571 So.2d at 933. Lowndes County justified its action because the public service promised to offer additional services, namely paramedic support, that Cook Ambulance had not been offering. Id. at 934. The failure to offer paramedic services, Lowndes County argued, made Cook Ambulance “inadequate,” relieving Lowndes County from the prohibition of section 41-55-7. Id. at 935. The supreme court disagreed, finding that at the time Lowndes County contracted with the public company, there was no proof in the record that the public company would provide superior services. Id. at 936. Relying on the record, the supreme court found both the private and public company offered “adequate services.” Therefore, Lowndes County’s offering the contract to the public service was arbitrary and capricious. Id.

C. Cook’s Application

¶ 20. SCAS argues Cook disposes of this case, drawing a parallel between the auxiliary paramedic service in Cook and the requirement that SCAS call Rescue 7. But the glaring distinction in Cook is that Cook Ambulance, the private ambulance service, did not threaten to quit ambulance services. Lowndes County terminated the contract and entered a contract with a public company without any evidence Cook Ambulance would stop providing adequate services.

¶ 21. In contrast, the Hospital formed SCAS to provide services under the County’s contract. It had not been operating an ambulance service before January 2008. So when SCAS told the Board it was “ceasing contracted ambulance services,” the Board was reasonable to think that SCAS was ceasing its entire ambulance operation. SCAS’s termination letter is substantial credible evidence supporting the Board’s factual conclusion that adequate ambulance services from SCAS no longer existed.

¶ 22. Further, the record does not support the circuit court’s conclusion AMR’s services existed in Stone County in March 2008. But see Cook, 571 So.2d at 936 (Lack of evidence that two other private services that bid on Lowndes County contract would be unable to provide service further supported setting aside contract for public services.). Like the record in Cook, the record here does indicate AMR initially bid on the County’s subsidy contract in January 2008. But this initial bid merely shows that AMR was willing in January 2008 to provide services if the County paid it a subsidy. It does not prove AMR was providing adequate ambulance service to the citizens of Stone County in March 2008, when the Board had to find a replacement service.

¶ 28. When SCAS sent its termination letter, the Board only had thirty days to ensure its citizens had an ambulance service. We find that entering a new contract with the public company that had provided services before was not an arbitrary decision and, under the circumstances, did not violate section 41-55-7. The record supports that SCAS said it was quitting its services, and the Board took the ambulance service at its word.

D. The Air-Ambulance Issue

¶24. Section 41-55-7 states that the Board “may” provide a subsidy contract. Because the contract is within the Board’s discretion, so are the terms. Thus, the Board properly exercised its discretion to require that SCAS call Rescue 7 first if it wanted the subsidy contract. This is different than what Lowndes County did in Cook. There, the county claimed Cook Ambulance was “inadequate” because it failed to provide an auxiliary paramedic service. Here, the Board did not find SCAS’s services were “inadequate” because it refused to call Rescue 7. Instead, it found SCAS’s services were nonexistent because SCAS terminated them based on the Rescue 7 requirement.

¶25. SCAS claims the air ambulance issue is dispositive, relying on Cook, but cannot get around the important distinguishing fact that it was the one that can-celled the contract. Section 41-55-7 did not entitle SCAS to the subsidy contract. Instead, it encouraged the County to provide it a subsidy by prohibiting the Board from entering a contract with AAA if SCAS was providing an adequate private service. There is nothing in the record to support that SCAS intended to continue operating services within the County after terminating the contract. Therefore, it failed to prove the Board had violated section 41-55-7 by contracting with AAA after it quit its services.

¶26. The circuit court also found the Board could not give AAA a subsidy under section 41-55-7, which is correct. The Board’s authority to provide AAA a subsidy contract instead comes from section 41-55-1:

The board of supervisors of any county ..., in their discretion and upon finding that adequate public ambulance service would not otherwise be available, may ... contract and otherwise cooperate with any department or agency of the United States government or the state of Mississippi, or any county, city, town, or supervisors district of the same, or other counties of the state of Mississippi in carrying out any of the powers herein conferred or otherwise effectuating the purposes of sections 41-55-1 to 41-55-11....

Miss.Code Ann. § 41-55-1 (Rev.2009) (emphasis added). The Board entered into the contract with AAA in March 2008 because it determined the County would otherwise not have any ambulance service.

¶ 27. Finding the Board’s action did not violate sections 41-55-1 or 41-55-7, we reverse the circuit court’s judgment and render judgment to reinstate the Board’s contract with AAA.

CONCLUSION

¶ 28. Under our limited standard of review, we find support for the Board’s decision to contract with AAA and hold that, under these unique circumstances, the decision was not arbitrary and capricious and did not violate Mississippi statutory law.

¶ 29. THE JUDGMENT OF THE STONE COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


text:
    William Dwayne SALTER, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00098-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.
    Rehearing Denied March 29, 2011.
    Certiorari Denied June 21, 2011.

      William Dwayne Salter, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorneys for appellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. William Salter filed his second petition for post-conviction collateral relief in the Circuit Court of George County. The circuit court dismissed the petition, finding it was procedurally barred as a successive writ under Mississippi Code Annotated section 99-39-23(6) (Supp.2009). We find no error and affirm.

FACTS

¶2. On April 16, 2001, Salter pleaded guilty to four counts of kidnaping, two counts of armed robbery, and one count of burglary. He received six thirty-year sentences — one for each count of kidnaping and armed robbery — to run concurrently, and a seven year sentence on the burglary charge, to run consecutively to the thirty-year sentences.

¶ 3. On April 15, 2002, Salter filed his first petition for post-conviction collateral relief. The circuit court denied the petition. On appeal, this Court affirmed the denial. Salter v. State, 876 So.2d 412, 417 (¶ 15) (Miss.Ct.App.2003).

¶ 4. On April 3, 2009, Salter filed his second petition for post-conviction collateral relief. The circuit court dismissed the petition as procedurally barred as a successive writ under Mississippi Code Annotated section 99-39-23(6) (Supp.2009). It is from this judgment that Salter now appeals.

STANDARD OF REVIEW

¶ 5. A circuit court’s dismissal of a petition for post-conviction collateral relief will not be reversed on appeal absent a finding that the trial court’s decision was clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

ANALYSIS

¶ 6. In the petition now before this Court, Salter argues that his guilty plea was involuntary and that his trial counsel was ineffective because both his attorney and the circuit court misinformed him about his eligibility for parole and earned time release. Salter contends that, had he been properly informed that he was not eligible for either, he would have opted to proceed to trial instead of pleading guilty.

¶ 7. The reality is that Salter’s thirty-year sentences for armed robbery are “day-for-day” sentences. He is not eligible for parole. Miss.Code Ann. § 47-7-3(1)(g) (Supp.1999). And, he is not eligible for earned time release. Miss.Code Ann. § 47-5-139(1)(e) (Supp.1999). Salter must serve his entire sentence. Wells v. State, 936 So.2d 479, 480 (¶5) (Miss.Ct.App. 2006). Salter claims that he was not aware of this reality when he entered his guilty plea and that his misunderstanding was the product of erroneous advice from both his attorney and the circuit court.

¶ 8. Salter says his attorney advised him to plead guilty for two reasons. First, he would avoid a life sentence, since such a sentence could only be imposed by the jury. Second, even if the judge imposed a lengthy sentence of over ten years, Salter would become eligible for parole and earned time release after serving the first ten years of his sentence. In support of these allegations, Salter attached to his petition signed statements from his mother, his wife, and his sister. They claim Salter’s attorney told them that by pleading guilty Salter would avoid a life sentence, and, as a worst case scenario, he would have to serve ten to twelve years due to parole and earned time.

¶ 9. In addition, Salter claims that the circuit court also misinformed him about parole and earned time eligibility, confirming, in his mind, his attorney’s erroneous advice. During the guilty plea colloquy, the circuit court stated:

[I]f I sentence you to anything less than ten years ... you would have to serve day for day of anything under ten years. You would be ineligible for parole, good time release.... So, if I gave you five years, you would to serve five years. If I gave you twelve years, anything over the twelve years I would imagine, but I’m not sure, that the general probation statutes would apply and you would have to serve perhaps eighty-five percent. ... [B]y me explaining that to you or trying to I’m giving you no assurances, or guarantees, or promises with respect to any early release or parole .... Parole is a matter solely left to the discretion of the Mississippi Department of Corrections!)]

It appears the circuit court thought Salter could start accruing earned time after serving the first ten years of his sentence.

¶ 10. At one point in time, it was true that an inmate serving a sentence for armed robbery would have to serve the first ten years “day-for-day” but would become eligible for parole and earned time after serving the first ten years. Miss. Code Ann. 47-7-3(1)(d)(i) (Supp.2009). However, that is not the current law, and it was not the law when Salter committed his crimes. Suffice it to say, a sentence for armed robbery now means exactly what it says — the defendant must serve the time stated and is not eligible for parole or earned time release. Wells, 936 So.2d at 480 (¶ 5).

¶ 11. Had Salter raised this issue in his first petition for post-conviction collateral relief, it appears that he would have been entitled to an evidentiary hearing. “[E]rroneous information concerning parole and sentencing [given by the circuit court] at least entitles the petitioner to an evidentiary hearing on whether he relied on the erroneous information.” Fairley v. State, 834 So.2d 704, 707 (¶ 8) (Miss.2003). However, Salter did not raise the issue in his first petition. Instead, he raises it for the first time in this his second petition.

¶ 12. The question this Court must answer is whether Salter’s second petition is procedurally barred. The circuit court dismissed the petition as a successive writ under Mississippi Code Annotated section 99-39-23(6) (Supp.2009). We also note that the petition falls outside the three year time limitation under Mississippi Code Annotated section 99-39-5(2) (Supp.2009). Thus, Salter’s petition is barred unless an exception applies. Salter argues that two exceptions apply to his case.

¶ 13. First, Salter argues that he has newly discovered evidence. Both the time-bar and the successive-writ-bar contain an exception for when the petitioner has “evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence.” Miss.Code Ann. §§ 99 — 39—5(2)(a)(i); 99-39-23(6) (Supp.2009). To support this argument, Salter claims that he spent approximately eight years in prison thinking he would become eligible for parole and earned time after his tenth year. In his eighth year, thinking his first parole hearing was just on the horizon, he started asking about what he should do to prepare for the hearing. He claims that he was then informed for the first time that he was serving a “day-for-day” sentence and was not eligible for parole and earned time. Salter claims this new knowledge suffices to invoke the newly discovered evidence exception to the procedural bars. We disagree. As this Court has previously explained:

The term “newly discovered evidence” refers to evidence, that is, an exhibit, testimony, or some other information that could have been offered as evidence in the defendant’s trial but was not offered because it was not reasonably discoverable at the time of the trial. The concept of newly discovered evidence does not embrace a prisoner’s untimely realization that legal errors occurred at his trial. Accordingly, we have held that a prisoner’s failure to understand the law until conducting research into his case does not constitute newly discovered evidence.

Pickle v. State, 942 So.2d 243, 246 (¶ 12) (Miss.Ct.App.2006) (citation omitted).

¶ 14. Next, Salter argues that his petition should not be procedurally barred because his claims concern fundamental rights. Where a petitioner asserts a fundamental right, the courts must address the merits of the petition for post-conviction relief regardless of procedural bars. Rowland v. State, 42 So.3d 503, 507-08 (¶ 12) (Miss.2010). Salter argues that his claims of ineffective assistance of counsel and an involuntary guilty plea are sufficient to invoke this fundamental rights exception. We do not agree. The supreme court has held that claims of ineffective assistance of counsel and involuntary guilty pleas are indeed subject to the procedural bars. Kirk v. State, 798 So.2d 345, 346 (¶ 6) (Miss.2000).

¶ 15. Therefore, we must conclude that his petition was correctly dismissed by the circuit court as a successive writ under Mississippi Code Annotated section 99-39-23(6) (Supp.2009). We affirm the decision of the circuit court to dismiss the petition as procedurally barred.

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

KING, C.J., LEE, P.J., IRVING, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. MYERS, P.J., NOT PARTICIPATING.


author: IRVING, J.,

text:
    Larry Tyrese MINTER, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00922-COA.
    Court of Appeals of Mississippi.
    Jan. 11, 2011.
    Rehearing Denied April 12, 2011.
    Certiorari Denied June 30, 2011.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, Jackson, attorney for appel-lee.
    Before KING, C.J., IRVING, ROBERTS and CARLTON, JJ.
   IRVING, J.,

for the Court:

¶ 1. A jury in the Harrison County Circuit Court convicted Larry Tyrese Minter of two counts of capital murder and one count of robbery. The circuit court then sentenced Minter to two life sentences in the custody of the Mississippi Department of Corrections (MDOC), without the possibility of parole or early release, for the capital murders and to fifteen years in the custody of the MDOC for the robbery. The circuit court ordered that the fifteen-year sentence run consecutively to Minter’s life sentences. Unhappy with the circuit court’s judgment, Minter appeals and asserts that he was prejudiced by the admission of hearsay, that his confrontation rights were improperly limited by the circuit court, and that the weight of the evidence is against his conviction.

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

FACTS

¶ 3. On the morning of December 15, 2006, Harold Joseph Levron Jr. walked into his home in Gulfport, Mississippi. A home invasion was in progress. According to the evidence at trial, Minter, Lazairian Murphy, Darryl Simmons, and Junior Green had broken into the home to steal the contents of a safe. Levron struggled with the four men in his home and was eventually shot and küled. Minter’s accomplices consistently stated that Minter shot Levron with Levron’s own gun that was taken from him sometime during the struggle.

¶ 4. At some point during the burglary, Levron’s friend, Christiana Ann Súber, entered the home. It is not clear whether Levron was already dead when Súber arrived. When Súber saw the men in Lev-ron’s home, she attempted to flee. She was able to get out of the house, but one of the burglars captured her and took her into the house. Back inside, Súber was sexually assaulted by Green. She was then restrained with duct tape, which was wrapped around her head, arms, and legs. According to Green’s and Simmons’s pretrial statements, which were not admitted at trial, the burglars then discussed whether to leave Súber alive; Minter allegedly stated that she could not be left alive. The other men then went outside the house; shortly thereafter, they heard a single gunshot. Minter came outside and told them that he had killed Súber. Minter and the other burglars then left in Lev-ron’s truck, which they drove to a bridge where Minter threw away Levron’s gun.

¶5. Suber’s son, William, and her ex-husband, John Crittenden, arrived at Lev-ron’s home after Súber had failed to show up for a prearranged outing. Crittenden testified that the first thing he noticed upon approaching the house was a red and gold jacket that was lying outside on the ground; Crittenden recognized the jacket as one that Súber had gotten recently and was very proud of. Crittenden and William knocked on the front door of the home several times; when there was no answer, they opened the door and saw Levron’s body. Crittenden testified that they immediately left and called 911. Officers arrived at the scene and, after obtaining a search warrant, conducted a search.

¶ 6. When officers entered the home, they immediately observed Levron’s body near the front entryway of the home. The officers then searched the rest of the house. In a hallway, they discovered a large black safe which nearly blocked the hallway. Beyond that, they entered a back bedroom and found Suber’s naked and bound body. She had been killed by a single gunshot wound to the head. Examination of the scene revealed a large hole that had been created in the exterior wall of Levron’s attached garage. Once in the garage, the burglars apparently had broken a window and unlocked a door that led into the rest of the home. The officers realized that Levron’s truck was missing. After obtaining a description of the vehicle, the officers disseminated a description of the truck, which was stopped by law enforcement later that evening. There were four occupants inside the truck at that time, including Minter’s brother.

¶ 7. Law enforcement officers eventually determined that Minter, Murphy, Green, and Simmons were the burglars. Although Simmons did not testify at trial, he gave a statement to police prior to trial wherein he claimed that Minter had shot both Levron and Súber. Green gave a similar statement before trial. Pretrial statements also indicated that Minter had sexually assaulted Súber with a pool stick. At trial, Green denied that Minter had sexually assaulted Súber.

¶8. Prior to trial, Green accepted a guilty plea and was sentenced to life imprisonment in return for the State not pursuing the death penalty against him. At his guilty-plea hearing, Green acknowledged that he, Murphy, Minter, and Simmons had broken into Levron’s home. Green stated at the hearing that Minter had fatally shot both Levron and Súber. Murphy pleaded guilty to two counts of manslaughter and was sentenced to two consecutive twenty-year sentences. Both Green and Murphy agreed to testify against Minter as part of their plea agreements.

¶ 9. At trial, Green, Murphy, Crittenden, and various law-enforcement officers testified for the State. Minter did not take the stand, but his mother and stepfather testified that he was at home with them the morning of December 15, 2006. The State offered evidence that Minter’s fingerprints were found on glass left in the doorway between the garage and Levron’s house. Although Murphy’s and Green’s statements and testimonies contained numerous inconsistencies and disparities, both maintained that Minter shot both Levron and Súber.

¶ 10. Minter was convicted of two counts of capital murder and one count of robbery. The circuit court dismissed a sexual-battery charge after Minter requested a peremptory instruction on the charge. He was acquitted of a second sexual-assault count.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Hearsay

¶ 12. Minter contends that Detective Charles Bodie Jr.’s testimony regarding a .880-caliber pistol was improper. Detective Bodie testified that the pistol was recovered from a creek, which had been searched because Minter’s accomplices had told the police that Minter threw Levron’s pistol in the creek. An underwater search team recovered the pistol. After several objections, Detective Bodie testified that the pistol was registered to Levron. We quote at length from Detective Bodie’s testimony regarding the pistol:

Q. As part of your investigation did you also conduct a firearms trace?
A. Yes, it was [sic].
Q. Through what agency would you have conducted that trace?
A. From the ATF, Alcohol, Tobacco and Firearms.
Q. And on what weapon did you conduct a firearms trace?
[OBJECTION]: Your Honor, we’re going to object to this. It’s our understanding that Detective Bodie did not actually conduct this search himself. He had someone conducted [sic] it, and we have been notified that that person would testify. If Detective Bodie, in fact, performed this search himself then fine. You know, they can continue on -with [sic], but he hasn’t answered that part of the question yet.
[COURT]: I don’t think he’s asked that question yet. At this point I’m going to overrule that objection.
[Prosecutor], you’ve asked him only which firearm he requested the trace on.
[PROSECUTOR]: That’s correct, Your Honor.
[COURT]: Detective Bodie, limit your answer to that please, sir.
Q. What firearm did you request a trace be conducted on?
A. The Kel-Tec .380.
Q. And to your knowledge is a firearm identification a regularly kept record of the Alcohol, Tobacco and Firearms agency?
[OBJECTION]: Your Honor, if I may that would be hearsay, and that would be my objection.
[COURT]: It will be overruled on that basis.
* * *
Q. Detective, to your knowledge^] is a firearms registration a regularly kept record of the Alcohol, Tobacco and Firearms agency?
A. Yes, it is.
Q. What was the result of the request that you made of those records?
[OBJECTION]: Judge, same objection, Your Honor.
[COURT]: Come up, counsel.

(A CONFERENCE WAS HELD AT THE BENCH WITH ALL PARTIES.)

* * *
Q. Detective, at your direction did you request a firearms search from ATF?
A. Yes.
Q. Did you receive the results of that trace?
A. Yes, I did.
Q. What type of records would be kept at ATF with regard to firearms?
A. A firearms trace summary.
Q. What information would that typically include?
A. It’s going to be a breakdown of the identifying information of the weapon; the make, model, caliber, serial number, and it will indicate the manufacturer and the distributor and seller and the buyer.
Q. Is that something that they would regularly keep of all firearms purchased?
A. Yes.
Q. And the result that you stated that you received — what was the result of the trace that you stated that you received from ATF?
[OBJECTION]: Objection, Your Honor.
[COURT]: And that basis of your objection ... ?
[DEFENSE ATTORNEY]: It’s hearsay for one. We would not be able to cross-examine any of the records. The records itself [sic] have not been introduced into evidence, and we certainly can’t cross-examine nothing.
[COURT]: That will be overruled on the basis of hearsay. It will be sustained ... with regard to further foundation.
[PROSECUTOR]: If we may approach, Your Honor.
[COURT]: Come on up.

(A CONFERENCE WAS HELD AT THE BENCH WITH ALL PARTIES.)

Q. Detective, where were these records that you say regularly kept [sic], where would they be received from by [sic] ATF?
A. The request would be e-mailed to the ATF, and this is as per directive from our department^] each and every firearm that is received into the department has a firearms trace run on it.
Q. You stated previously that [sic] what some of the types of records that are kept by ATF as part of this[;] what are those records that they keep?
[OBJECTION]: Judge, objection. That’s been asked and answered already.
[COURT]: Overruled.
A. The firearms trace summary will contain the make, model, serial number, [and] caliber of the weapon.
[COURT]: Then it is sustained. That was not the question that he was asked. Re[-]ask your question, [Prosecutor].
Q. Who did they receive — who does ATF receive this information from?
A. At the time it was my assistant.
[OBJECTION]: Judge, we object to that question also. He’s speculating who the ATF receives that from. I don’t think Detective Bodie knows what the ATF — he can [sic] answer that question. He doesn’t have personal knowledge of it. He doesn’t work for the ATF that I know of.
[COURT]: Detective Bodie, if you know what they received you may testify. If you don’t[,] don’t speculate.
Q. Detective Bodie, if I may rephrase my question. The information that is contained in a trace by ATF generally speaking, not the one that you were on that day, where do they obtain that information?
A. From the forms that are sent to them from the dealers at the time of purchase.
Q. That would be the distributors of the firearms, correct?
A. Correct.
Q. And is that something that they maintain as part of their normal business operations?
A. As part of law, yes. As a matter of law, yes.
Q. Again at this time I would ask what were the results of the trace you requested from ATF?
[OBJECTION]: Objection, Your Honor, same objection.
[COURT]: It will be overruled at this time. He can testify with regard to why they maintain it and how they did it.
Q. What were the results of the request that you made in this case?
A. The trace indicated that the original purchaser of the Kel-Tec .380 was Harold Joseph Levron.
Q. What was the date of the purchase on the trace?
A. November 22nd of 2004.
Q. Where was that purchase made?
A. Dad’s Pawn and Gun.
Q. Where is Dad’s Pawn and Gun located?
A. In Gulfport on 25th Avenue.

¶ 13. Circuit courts enjoy considerable discretion when admitting evidence at trial, and we review that decision “under the abuse-of-discretion standard.” Tate v. State, 20 So.3d 623, 632 (¶ 23) (Miss.2009) (quoting Turner v. State, 3 So.3d 742, 744 (¶ 9) (Miss.2009)). Minter contends that Detective Bodie’s testimony about the ownership of the pistol constituted impermissible hearsay.

¶ 14. There is no doubt that the best evidence of what the State sought to prove was the actual trace run by the ATF. Ideally, the documents should have been introduced into evidence rather than paraphrased by Detective Bodie. The contents of such a trace are generally admissible under Rule 803(6) of the Mississippi Rules of Evidence. Because the contents of the trace were most likely admissible, any error in allowing Detective Bodie to testify regarding the result of the trace was harmless. Minter has not introduced any authority to suggest that the trace would have been inadmissible, nor does he contend that Detective Bodie incorrectly summarized the contents of the ATF trace.

¶ 15. Although Minter frames this issue in terms of hearsay, he also argues that Detective Bodie’s testimony violated Minter’s Sixth Amendment right to confront the evidence against him. To violate Minter’s right of confrontation, the hearsay evidence must have been testimonial in nature. Neal v. State, 15 So.3d 388, 403 (¶34) (Miss.2009) (citing Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). “Testimonial” evidence “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations....” Id. (quoting Crawford, 541 U.S. at 68, 124 S.Ct. 1354). The Neal court held that “a statement is testimonial when it is given to the police or individuals working in connection with the police for the purpose of prosecuting the accused.” Id. at 404 (¶ 35) (quoting Hobgood v. State, 926 So.2d 847, 852 (¶ 12) (Miss.2006)). Here, the firearms-trace report here was not made for the purpose of prosecuting Minter; rather, it was produced by the ATF to establish the ownership of the pistol that was recovered. The ATF was not attempting to prosecute Minter when it produced the trace report, nor was the report the product of prior testimony or police interrogation. In short, the hearsay evidence did not violate Minter’s Sixth Amendment right to confrontation because the evidence was not testimonial in nature.

2. Green’s Statement

¶ 16. Minter next argues that his right to confront the evidence against him was improperly impinged upon by the circuit court’s limitation of Minter’s use of a statement signed by Green. During questioning outside the presence of the jury, Green stated that he did not write the affidavit; when asked whether he had read it before signing it, he first stated that he had “scanned” it and then stated that he “didn’t even read it.” During questioning by the circuit court, Green stated that the contents of the statement were “true.”

¶ 17. The relevant portions of the statement read as follows:

I[,] Junior Green [,] am aware of my rights and I’m also aware that this document will be -or- could be used against me in a court of law. The circumstances of this case isn’t [sic] as [d]etectives have been lead [sic] to believe. Mr. Larry Minter ... isn’t the individual that shot and killed the deceased party involved in this case, -nor- did he (Mr. Larry Minter) rob, steal -or- take anything from the deceased person(s) involved in this case.
I[,] Junior Green [,] have knowledge of whom [sic] committed these acts[,] and I’m willing to let the proper officials know who was involved in this crime. I just don’t want an innocent man (Mr. Larry Minter) to be found guilty of a crime that he didn’t commit -or- have knowledge of.

Green admitted that he read the second paragraph quoted above before signing the statement. The circuit court ruled that Minter would be allowed to use only the second paragraph at trial. The circuit court reasoned that the second paragraph was the only paragraph that Green admitted to having read before he signed the statement.

¶ 18. We find that the circuit court should not have limited Minter’s use of the statement to the second paragraph above; rather, Minter should have been allowed to question Green about the entirety of the statement. However, the second paragraph clearly alluded to Minter’s innocence when it stated that: “I just don’t want an innocent man (Mr. Larry Minter) to be found guilty of a crime that he didn’t commit -or- have knowledge of.”

¶ 19. Despite the circuit court’s ruling that Minter could use the second paragraph, Minter’s counsel chose not to question Green about the statement during Green’s testimony in front of the jury. Furthermore, the portion of the statement that the circuit court allowed Minter to use was still exculpatory as to Minter. Therefore, we find no prejudicial error requiring reversal.

3. Weight of the Evidence

¶ 20. In his final contention of error, Minter contends that the overwhelming weight of the evidence does not support his convictions. In reviewing the weight of the evidence, “the evidence is weighed in the light most favorable to the verdict.” Williams v. State, 35 So.3d 480, 491 (¶ 41) (Miss.2010) (citing Bush v. State, 895 So.2d 886, 844 (¶ 18) (Miss.2005)). A new trial will be granted only if we find that “the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction [an] unconscionable injustice.” Id. (quoting Bush, 895 So.2d at 844 (¶ 18)).

¶ 21. Minter points to the inconsistencies in Murphy’s and Green’s testimonies, as well as to the fact that both Murphy and Green had taken plea bargains from the State. Minter also notes that Green stated during his testimony that he had lied about parts of his testimony. In addition to attacking the testimonies of his accomplices, Minter complains about the Gulfport Police Department’s investigation of the crime: “There was no testing of a good portion of the physical evidence. There were no shoe[-]print comparisons, and most strikingly, no ballistic evidence offered at all. The matters involving the Mazda truck and the weapon and evidence found inside of it were never explained.”

¶ 22. As to the testimonies of Murphy and Green, the jury heard the inconsistencies in the testimonies. The jury also heard Green’s admission that he had lied; the jury knew that both Green and Murphy had accepted plea bargains in return for testifying against Minter. Despite the inconsistencies, both Green and Murphy remained steadfast in certain parts of their stories: that Levron was killed in the course of a burglary gone wrong, that Súber was killed after she entered the home, that Minter was present during the events in question, and, most importantly, that Minter shot and killed both Levron and Súber. While the police investigation in this case was not perfect, it was adequate. The jury heard all of the evidence in this case, including the inconsistencies and the actions taken or not taken by law enforcement during the investigation of the crime. It is well established that “[t]he jury is the sole judge of the weight of the evidence and the credibility of the witnesses.” Lima v. State, 7 So.3d 903, 910 (¶ 35) (Miss.2009) (quoting Mohr v. State, 584 So.2d 426, 431 (Miss.1991)). Viewing the evidence in the light most favorable to the verdict, we find that allowing Minter’s convictions to stand does not sanction an unconscionable injustice.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF CAPITAL MURDER IN COUNTS I AND II AND SENTENCES OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE OR EARLY RELEASE, WITH THE SENTENCE IN COUNT II TO RUN CONCURRENTLY WITH THE SENTENCE IN COUNT I, AND CONVICTION OF ROBBERY IN COUNT VIII AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, TO RUN CONSECUTIVELY TO THE SENTENCES IN COUNTS I AND II, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.