author: CARLTON, J.,

text:
    Alisha VANWEY, Appellant v. STATE of Mississippi, Appellee.
    Nos. 2009-CA-01544-COA, 2009-CA-01546-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.

      Sidney Franklin Beck Jr., Olive Branch, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorneys for appel-lee.
    Before LEE, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Alisha Vanwey appeals two orders of the Circuit Court of DeSoto County, Mississippi denying her motions for post-conviction relief. Vanwey raises the following issues as error: (1) the trial court erred in failing, on its own motion or upon motion of her attorneys, to order Vanwey to submit to a mental evaluation, and a hearing thereon, prior to entry of her guilty plea; and (2) she was denied effective assistance of counsel. Finding no error, we affirm the judgment of the trial court.

FACTS

¶ 2. In February 2007, the State indicted Vanwey as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007) for one count of the sale of a Schedule IV controlled substance, alprazo-lam. In March 2007, the State indicted Vanwey as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 for four counts of the sale of a Schedule II controlled substance, hydrocodone, within 1,500 feet of a park, and for one count of conspiracy to sell a controlled substance. On May 29, 2007, Vanwey, with assistance of counsel, then entered a plea of guilty with the trial court to the charge in CR-2007-222CD and pleas of guilty to three counts of sale of a controlled substance within 1,500 feet of a park as a habitual offender in CR-2007325CD.

¶ 3. However, on August 15, 2007, Van-wey, through new counsel, filed motions to set aside her guilty pleas for further investigation regarding her mental condition. The trial court heard the motions on August 15, 2007, and on September 5, 2007, after which the court denied the motions to withdraw her guilty pleas. After conducting a sentencing hearing, the trial court remanded two of the counts in CR2007-325CD and sentenced Vanwey in each of the remaining counts in CR2007-325CD to eleven years to serve in the Mississippi Department of Corrections as a habitual offender with each count to run concurrently. In addition, the trial court sentenced Vanwey in CR2007-222CD to ten years of post-release supervision to run consecutively to the sentence in CR2007-325CD. The trial court then ordered Van-wey to complete the long-term drug and alcohol program and to receive treatment for her bipolar disorder. By counsel, Van-wey filed identical motions for post-conviction relief regarding the convictions and sentences in both criminal causes. The trial court then held an evidentiary hearing. At the hearing, no live witnesses testified, but Vanwey submitted numerous exhibits. The trial court entered similar orders in both criminal causes denying the motions for post-conviction relief. Aggrieved, Vanwey appeals.

STANDARD OF REVIEW

¶ 4. In reviewing the decision of a trial court to deny a motion for post-conviction relief, this Court will not reverse a trial court’s factual findings absent a finding that they are “clearly erroneous.” Hooks v. State, 22 So.3d 382, 384 (¶ 8) (Miss.Ct.App.2009) (citing Moore v. State, 986 So.2d 928, 932 (¶ 13) (Miss.2008)). However, if questions of law arise, the standard of review utilized by the Court is de novo. Id.

DISCUSSION

I. MENTAL EVALUATION A. Competency

¶ 5. In her first issue on appeal, Vanwey argues that the trial court erred in failing to order a mental evaluation and a competency hearing on her prior to her guilty-plea hearing. In response, the State argues that no reasonable ground existed to believe that Vanwey lacked competency to enter a guilty plea; thus, the trial court properly did not order Vanwey to submit to a mental examination.

¶ 6. The movant bears the burden of proof to demonstrate by substantial evidence that the defendant is mentally incompetent to stand trial. Jones v. State, 976 So.2d 407, 412 (1113) (Miss.Ct.App.2008) (quoting Richardson v. State, 767 So.2d 195, 203 (¶ 41) (Miss.2000)). In this case, the record fails to reflect sufficient evidence to meet this burden of proof to show that Vanwey lacked competency to enter her guilty pleas. We acknowledge that Uniform Rule of Circuit and County Court 9.06 provides guidance as to when a trial court must require the defendant to undergo a mental evaluation prior to standing trial or entering a guilty plea. See Smith v. State, 831 So.2d 590, 593 (¶ 11) (Miss.Ct.App.2002) (finding that Rule 9.06 applies to a defendant’s entry of a guilty plea). Rule 9.06 states in pertinent part:

If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court in accordance with § 99-13-11 of the Mississippi Code Annotated of 1972.
After the examination^) the court shall conduct a hearing to determine if the defendant is competent to stand trial. After hearing all the evidence, the court shall weigh the evidence and make a determination of whether the defendant is competent to stand trial.

(Emphasis added). The key consideration when determining if a competency hearing is required is whether the court has a reasonable ground to believe that the defendant is incompetent to stand trial. See URCCC 9.06. What constitutes a “reasonable ground” falls within the discretion of the trial court. Richardson v. State, 722 So.2d 481, 486 (¶24) (Miss.1998). “[T]he [trial] judge sees the evidence first hand and observes the demeanor and behavior of the defendant.” Id. This Court has previously described the level of competency required for a defendant to enter a guilty plea by stating the following:

The competency standard required for a defendant to enter a guilty plea is identical to the determination that must be made for the competency of a defendant to stand trial. Magee v. State, 752 So.2d 1100, 1102 (Miss.Ct.App.1999) (citing Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993)). That standard mandates a defendant be a person:
(1) who is able to perceive and understand the nature of the proceedings; (2) who is able to rationally communicate with his attorney about the case; (3) who is able to recall relevant facts; (4) who is able to testify in his own defense if appropriate; and (5) whose ability to satisfy the foregoing criteria is commensurate with the severity of the case.
Martin v. State, 871 So.2d 693, 697 (Miss.2004) (citations omitted). In essence, the objective is to ensure that “the defendant has a rational understanding of the charges against him and the ability to assist his lawyer in preparing his defense.” Magee, 752 So.2d at 1102 (citing Godinez, 509 U.S. at 396, 113 S.Ct. 2680).

McNeal v. State, 951 So.2d 615, 618 (¶ 9) (Miss.Ct.App.2007).

¶ 7. Upon review of the record, this Court finds no abuse of discretion in the trial court’s finding that no evidence existed showing that Vanwey lacked the competency required to enter a guilty plea. We further acknowledge the following: Van-wey represented to the trial court in her sworn petitions to enter a plea of guilty that she was mentally competent to make the plea petitions; Vanwey’s lawyer fully advised her of the nature of the charges brought against her and any possible defenses available to her; Vanwey suffered from no mental disease or disorder rendering her “M’Naghten” insane; and Vanwey was free from the influence of drugs or alcohol.

¶8. The record shows that the trial court conducted a hearing on the guilty pleas and observed Vanwey’s capacity upon entry of her pleas. Shortly after entering her guilty pleas, Vanwey filed motions to set aside the plea petitions contending that she suffered from mental health problems and that she presented false information to the court at her plea hearing regarding her mental history. In addition to observing and addressing Van-wey’s competency at the time she entered her guilty pleas, the trial court also addressed Vanwey’s competency a second time at the hearings on the motions to set aside the plea petitions. The trial court once again found that Vanwey was competent on the day of the plea hearing; thus, she was competent to enter her pleas of guilty. The trial court considered Van-wey’s competency a third time at the evi-dentiary hearing on the motions for post-conviction relief. At the evidentiary hearing, Vanwey submitted the following exhibits for the trial court’s review: the transcripts of the plea hearings, the motions to set aside plea hearings and the sentencing hearing that included Vanwey’s testimony, the sentencing order, medical records from Communicare, letters and documentation from her attorney, the deposition transcript of Dr. Jorge Leal, and case law. After reviewing the evidence, the trial court again found that Vanwey had failed to present evidence to rebut the court’s previous decision finding Vanwey competent to enter her guilty pleas.

¶ 9. The trial court recognized that the record showed no proof that Vanwey was unaware of the charges against her, the meaning and effect of her guilty pleas, or the consequences of her guilty pleas. In addition, Vanwey presented no evidence to demonstrate her lack of ability to aid her lawyer in preparing her defense. Accordingly, we find no error in the lack of a request for a court-ordered mental evaluation by Vanwey’s counsel and, likewise, no error in the court’s refusal to order such an examination. We find no abuse of discretion in the trial court’s determination that no “reasonable ground” existed to support Vanwey’s alleged incompetency to enter her guilty pleas; therefore, we find no abuse of discretion. As such, we find this issue is without merit.

B. Voluntariness

¶ 10. While addressed in Vanwey’s motions for post-conviction relief and in the State’s appellate brief, Vanwey fails, on appeal, to raise the issue of the volun-tariness of her guilty pleas. As such, we find this issue is procedurally barred. See Tanner v. State, 20 So.3d 764, 768 (¶ 19) (Miss.Ct.App.2009) (citing Sanders v. State, 678 So.2d 663, 669-70 (Miss.1996)).

C. M’Naghten Rule

¶ 11. On appeal, Vanwey alleges that the trial court erred by failing to require her to submit to a mental evaluation to determine if she was qualified to be tried under the M’Naghten Rule. Upon review of the record, we find no evidence raising inquiry as to Vanwey’s legal sanity at the time of the offense. Instead, the record contains evidence to the contrary showing that Vanwey fully understood her actions at the time of her offenses. Therefore, we find this issue lacks merit.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 12. In her second issue on appeal, Vanwey argues that she received ineffective assistance of counsel at the trial level due to her counsel’s failure to request a mental evaluation to be performed on Vanwey prior to the entry of her guilty pleas.

¶ 13. To prove ineffective assistance of counsel, one must demonstrate that: (1) his counsel’s performance was deficient, and (2) that the alleged deficiency prejudiced his Sixth Amendment right to a fair trial. Forrest v. State, 47 So.3d 1194, 1196 (¶ 9) (Miss.Ct.App.2010) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “In the case of a guilty plea, the second prong of prejudice is shown by proving that the ineffective assistance of counsel affected the outcome of the plea process.” Wilson v. State, 21 So.3d 572, 578 (¶ 16) (Miss.2009) (citing Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). A strong presumption exists that counsel’s performance “falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

¶ 14. In the present case, Vanwey failed to meet her burden as set out in Strickland. Vanwey provided no evidence that her counsel’s performance was deficient; therefore, Vanwey failed to meet the first prong of Strickland, which requires proof of deficient performance of counsel. In Vanwey’s petitions to enter her guilty pleas, she indicated that her lawyer “is competent and has done all that anyone could do to counsel and assist me, and I am fully satisfied with the advice and help he has given me.” Moreover, Vanwey failed to prove any alleged deficiency of counsel that prejudiced her defense. While Vanwey contends that her defense counsel had an obligation to request that Vanwey undergo a mental evaluation prior to the time that she entered her guilty pleas, we recognize that even if her counsel had requested a mental evaluation, the ultimate decision, as to whether defendants must undergo mental evaluations, rests with the trial court. See McNeal, 951 So.2d at 620 (¶ 17) (citing Richardson v. State, 856 So.2d 758, 760 (Miss.Ct.App.2003)). Because the trial court found that Vanwey presented no evidence to support approval by the trial court of a defense request for a mental evaluation, we find that Vanwey failed to present sufficient evidence that the outcome of the case would have been different had her defense counsel requested a mental evaluation pri- or to the entry of her guilty pleas. See Richardson v. State, 769 So.2d 230, 235 (¶ 12) (Miss.Ct.App.2000). Any such request would have lacked the evidentiary support required for its approval by the trial court. As such, this issue is without merit.

¶ 15. THE JUDGMENTS OF THE CIRCUIT COURT OF DESOTO COUNTY DENYING THE MOTIONS FOR POST-CONVICTION RELIEF ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Throughout the record Vanwey's first name is alternately spelled Alisha and Alicia. For consistency, we will use Alisha.

      . Cause No. CR-2007-222CD in the Circuit Court of DeSoto County, Mississippi.

      . Cause No. CR-2007-325CD in the Circuit Court of DeSoto County, Mississippi.

      . Vanwey’s guilty-plea petition reflects an agreement with the State to a fifteen year sentence in exchange for her plea of guilty.

      . This Court consolidated the cases for purposes of appeal.

      . "The plea petition [is] not an oral statement in open court, but it [is] a sworn document presumptively prepared with an appreciation of its fateful consequences. The plea petition, similarly to statements in open court, may be used to discredit post-plea allegations.” Ward v. State, 879 So.2d 452, 455 (¶ 11) (Miss.Ct.App.2003); see Madden v. State, 991 So.2d 1231, 1235 (¶ 13) (Miss.Ct.App.2008).

      . Vanwey possessed the capacity to testify at her sentencing hearing, and Vanwey admitted in her testimony at the sentencing hearing that she understood that her actions of selling drugs violated the law. The sentencing-hearing transcript also contains Vanwey’s own testimony wherein she admitted selling the drugs for income.

      . Vanwey received treatment from Communi-care Clinical Director, Gloria Roberts, and Dr. Jorge Leal, a psychiatrist associated with Communicare.

      . Dr. Leal testified in his deposition that, in his opinion, Vanwey understood the nature of her actions.

      . Vanwey admitted at her sentencing hearing that she sold the pills for income and indicated that she understood her actions at the time of the offense. Roberts also testified at the sentencing hearing that Vanwey had confessed to her the charges against her and that they "always discussfed] [the] consequences and what those possible consequences could be and right and wrong.” In addition, when questioned in his deposition as to whether he thought Vanwey knew the difference between right and wrong, Dr. Leal indicated that he thought Vanwey knew right from wrong unless she was undergoing a manic episode, in which case it is mere speculation on his part as to whether she knew right from wrong.


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Keshia GILMER, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-02018-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.

      Justin T. Cook, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court:

¶ 1. This appeal is from Keshia Gilmer’s conviction in the Lincoln County Circuit Court for arson and resulting sentence of three years in the custody of the Mississippi Department of Corrections, with two years suspended, one year to serve, and two years of probation. Feeling aggrieved, Gilmer appeals and asserts that there is insufficient evidence to support her conviction and that the overwhelming weight of the evidence is against her conviction.

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

FACTS

¶ 3. On June 10, 2008, Officer Fred Perkins of the Brookhaven Police Department received a complaint regarding a burglary at Bruce Robinson’s home in Brookhaven, Mississippi. Upon arriving at the home, Officer Perkins discovered a pile of items on fire in the home’s front yard. Officer Perkins testified that he observed a shoe burning on the pile and that various items of jewelry, including four rings and a necklace, were pulled from the fire.

¶ 4. At the time of the fire, Robinson was dating Luciana Thadison, who was living with him at his home. Robinson had previously been involved with Gilmer. Robinson testified that Gilmer called him on the day of the fire and told him that she was at his home and wanted to leave some money there that she owed him. Robinson told Gilmer that she could leave the money “on the step or in the mailbox.” According to Robinson, their conversation ended at that point. Robinson testified that Gil-mer called him again later the same day and told him that she had “burned the b*tch[’s] sh*t” because “[i]t shouldn’t have been in [Robinson’s home].” Robinson and Gilmer then agreed to meet at a nearby truck stop. They were conversing at the truck stop when Thadison arrived, causing Gilmer to leave. Robinson testified that Thadison followed Gilmer away from the truck stop. Robinson, however, returned to his home, where he found Tha-dison’s jewelry burning in his yard.

¶ 5. Thadison testified that she arrived at Robinson’s home on the day of the fire and saw a four-door blue vehicle in the yard. Thadison watched a woman exit the house. When she saw the woman, she called Robinson, who informed her that Gilmer drove a blue vehicle. Thadison wrote down the tag number of the vehicle that she had seen. Shortly thereafter, Thadison called Robinson again and Robinson told her that Gilmer was at a Shell station at a truck stop. Thadison then drove to the truck stop. Upon arrival there, she saw both Robinson and Gilmer, with Robinson leaning over in Gilmer’s car. Gilmer pulled off immediately. Thadison then called Robinson, obtained Gilmer’s telephone number from him and called her. Thadison pursued Gilmer “up the highway” and, during the pursuit, spoke again by telephone with Robinson, who told her that he had arrived home and that Gilmer had burned Thadison’s jewelry in his yard. Thadison also testified that, during her conversation with Gilmer, Gilmer eon-firmed that she had burned Thadison’s belongings.

¶ 6. Thadison identified the jewelry recovered from the burn pile as hers. Tha-dison was not sure of the exact value of the items, but she testified that one ring had been purchased for $175. She explained that one outfit and a pair of shoes that were burned cost approximately $60. Thadison stated that the necklace that was burned was made of 14-carat gold and that the remaining three rings were made of either 10- or 14-carat gold.

¶ 7. Gilmer was the sole defense witness. She testified that she was dating Robinson in June 2008 and that she had never seen Thadison except at trial. She denied meeting Robinson at a truck stop and also denied setting fire to Thadison’s possessions.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Sufficiency of the Evidence

¶ 9. Gilmer alleges that there is insufficient evidence to sustain her conviction. The Mississippi Supreme Court has a specific standard of review for complaints regarding the sufficiency of the evidence:

[An appellate c]ourt should consider all the evidence in the case before [it], as well as all inferences which reasonably might be drawn from the evidence, and then view this evidence in the light most favorable to the prosecution. In so doing, if [the court] conclude[s] that reasonable and fair-minded jurors, in the exercise of their impartial judgment, could reach different conclusions as to each element of the criminal offense for which the defendant is on trial, [it is] duty-bound to find that the evidence is legally sufficient to sustain the conviction and thus ... must affirm on appeal.

Brown v. State, 39 So.3d 890, 895 (¶ 20) (Miss.2010) (citing Tate v. State, 20 So.3d 623, 643 (¶ 53) (Miss.2009)).

¶ 10. The basis of Gilmer’s argument is that the State failed to provide sufficient evidence regarding the value of the items that were burned. According to section 97-17-7 of the Mississippi Code Annotated (Rev.2006), a person can only be found guilty of third-degree arson if he burns property worth at least $25.

¶ 11. There was no official appraisal of the property offered at trial. Regardless, Thadison testified that one ring had been purchased for $175, that the burned clothing had cost approximately $60, and that the remaining jewelry was made of 10- or 14-carat gold. Based on Thadison’s testimony, there is ample evidence that the burned items were worth at least $25.

¶ 12. Gilmer argues that her case is analogous to the appellant’s in Williams v. State, 763 So.2d 186 (Miss.Ct.App.2000). In Williams, this Court found that the State failed to prove that John Williams received stolen property worth at least $250. Id. at 189 (¶ 10). We noted that our supreme court “has held that when there is no proof as to the value of an item, and value is an element of the crime, then the State has failed to carry its burden.” Id. at 188 (¶ 5) (citing Henley v. State, 729 So.2d 232, 238 (¶25) (Miss.1998)). What distinguishes this case from Williams or Henley is that there was sufficient evidence in this case to establish that the burned items were worth at least $25. Although the exact value of the items was not established, it was clear that at the time of the arson, they were worth substantially more than $25.

¶ 13. This contention of error is without merit.

2. Weight of the Evidence

¶ 14. Gilmer contends that the weight of the evidence is against her conviction because most of the evidence consisted of the testimonies of Thadison and Robinson, who Gilmer alleges were involved in “a love triangle.”

¶ 15. The jury heard all of the evidence regarding the parties’ romantic entanglements. ' Having done so, the jury found Robinson and Thadison credible; as the ultimate fact-finder, the jury was entitled to find Robinson and Thadison credible despite Robinson’s prior relationship with Gilmer. See Lima v. State, 7 So.3d 903, 910 (¶ 35) (Miss.2009).

¶ 16. There is no merit to this contention of error.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY OF CONVICTION OF ARSON AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWO YEARS SUSPENDED, ONE YEAR TO SERVE, AND TWO YEARS OF PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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


text:
    Trenton Russell SHEFFIELD, Jr., Appellant v. Mary Ann West SHEFFIELD, Appellee.
    No. 2009-CA-01974-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.

      Carrie A. Jourdan, attorney for appellant.
    James C. Helveston, West Point, attorney for appellee.
    Before MYERS, P.J., IRVING and MAXWELL, JJ.
   IRVING, J.,

for the Court:

¶ 1. Trenton Russell Sheffield Jr. and Mary Ann West Sheffield were married on May 11, 1984, in Lowndes County, Mississippi. The Sheffields separated in 2005. Mary Ann filed for divorce on April 11, 2007, alleging desertion and habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. Mary Ann later amended her complaint to include adultery as an additional ground for divorce. The Lowndes County Chancery Court granted the couple a divorce on the grounds of desertion and adultery and awarded Mary Ann $4,500 per month in permanent periodic alimony. Feeling aggrieved, Russell appeals and asserts that the chancery court erred in determining the amount of alimony because it failed to properly consider the amount of debt assigned to him in the division of the marital estate.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. When Russell and Mary Ann married, Mary Ann worked as the office manager at her family’s construction business. Shortly after their marriage, Russell started his own construction business, Sheffield Construction, Inc. (SCI). Mary Ann worked as the office manager for SCI until 1994, when the Sheffields agreed that Mary Ann should stay home to rear their two children, Maggie and Meredith. Mary Ann testified that she has a high school diploma and attended two years of college. She does not hold a college degree, has limited computer skills, and has no specialized vocational training. Mary Ann’s work experience has been limited to performing bookkeeping and secretarial duties for her family’s and Russell’s businesses. She is currently employed part time and receives $800 per month in gross wages. Mary Ann’s only other source of income is her one-fourth interest in Legacy, Inc. (Legacy). Legacy consists of real estate gifted to Mary Ann and her three siblings by their parents. Mary Ann plays no active role in Legacy’s management, but she does receive annual distributions. The court-appointed valuation expert valued Mary Ann’s interest in Legacy at $202,000.

¶4. Russell is a self-employed contractor with interests in several closely held companies. At the time of the parties’ marriage, Russell started his principal business, SCI. Over the course of the marriage, Russell started two additional businesses, RDI, Inc. (RDI) and Batting Unlimited, Inc. (Batting). RDI’s primary operations consist of renting portable toilets. Batting began as a batting-cage business, but it now specializes in rental property. Russell is the sole shareholder and officer of both SCI and RDI. He maintains a fifty-percent interest in Batting. Additionally, Russell holds a one-third interest in MCS Properties (MCS). MCS owns 260 acres of land valued at $260,000. According to Russell’s Rule 8.05 financial statement, Russell earns a monthly gross income of $5,416.67. Russell testified that his monthly living expenses totaled $1,583.00; however, Russell further testified that many of his personal expenses are paid by SCI and RDI.

¶ 5. Applying the Ferguson factors, the chancellor divided Russell and Mary Ann’s marital property and awarded Mary Ann $273,965.58 in marital assets and Russell $250,571.59 in marital assets. The chancellor classified Mary Ann’s interest in Legacy as her separate property, and Russell’s interests in SCI, RDI, Batting, and MCS were awarded to him by way of equitable distribution.

¶ 6. Following the division of the marital assets, the chancellor addressed Mary Ann’s request for alimony. Applying the Armstrong factors, the chancellor found the following:

[Mary Ann’s] lifestyle is based on a need for a home and enough money to service the mortgage, as well as to maintain a style and manner of living to which she is accustomed to. On the other hand, [Russell] will be able to continue to derive income from his various companies so as to enable him to maintain a very comfortable lifestyle. In fact, SCI has produced profits since June 30, 2007. It goes without saying that [Russell] has substantially more earning power than [Mary Ann], [Mary Ann] will have difficulty finding employment that will enable her to maintain the same lifestyle she enjoyed during the marriage. The [chancery court] recognizes that [Mary Ann’s] separate estate, as well as the other property she received via equitable division herein, can partially offset her expenses. However, an invasion of these funds to pay for current living expenses will further reduce her principal and result in even less income. [Mary Ann] will need regular monthly income to sustain her in the future.

¶ 7. In determining its alimony award, the chancery court also considered the following: that Mary Ann and Russell’s two children were emancipated, that Mary Ann was granted a divorce on the grounds of desertion and adultery, and that Mary Ann and Russell had been married for twenty-five years. Based on its Armstrong analysis, the chancery court awarded Mary Ann $4,500 per month in permanent periodic alimony.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 9. The decision to award alimony as well as the amount of alimony awarded are left to the discretion of the chancellor. Vaughn v. Vaughn, 798 So.2d 481, 436 (¶ 20) (Miss.2001). An alimony award will not be disturbed on appeal absent a finding of manifest error or abuse of discretion. Voda v. Voda, 731 So.2d 1152, 1154 (¶ 7) (Miss.1999). The chancellor’s discretion notwithstanding, alimony “should be reasonable in amount, commensurate with the wife’s accustomed standard of living, minus her own resources, and considering the ability of the husband to pay.” Holley v. Holley, 969 So.2d 842, 844 (¶ 11) (Miss.2007) (quoting Creekmore v. Creekmore, 651 So.2d 513, 517 (Miss.1995)). The Mississippi Supreme Court has held that alimony awards in excess a spouse’s ability to pay are “per se unreasonable.” Yelverton v. Yelverton, 961 So.2d 19, 28 (1118) (Miss.2007) (citing Brooks v. Brooks, 652 So.2d 1113, 1122 (Miss.1995)).

¶ 10. Russell does not take issue with the chancellor’s division of marital assets; however, he argues that the chancellor failed to consider the fact that Mary Ann received largely unencumbered assets while Russell received assets burdened with considerable debt. Russell argues that given the amount required to service the debt associated with the marital assets assigned to him, the alimony award exceeds his ability to pay.

¶ 11. “The equitable distribution of property and awards of alimony comprise the entire field of financial settlement between parties incident to a divorce.” Brooks, 652 So.2d at 1120-21. “Where one expands, the other must recede.” Id. at 1121 (quoting Ferguson, 639 So.2d at 929). “Therefore, the equitable division of property, awards of alimony, whether lump-sum or periodic, and all other obligations imposed upon a payor spouse should all be considered together by the chancellor.” Id. (quoting Ferguson, 639 So.2d at 929). Consequently, when reviewing the reasonableness of an alimony award, an appellate court will “consider the totality of the chancellor’s awards upon the divorced parties, including the benefit to the payee spouse and the concomitant burden placed upon the payor spouse.” Id,

¶ 12. Although the chancellor awarded Russell his interests in SCI, RDI, and Batting, Russell argues that the chancellor failed to appropriately consider the outstanding debts associated with those interests when determining the alimony award. The chancellor appointed a valuation expert who prepared valuation reports for SCI, RDI, and Batting as of June 30, 2007, using the net-asset-value method. However, because the liabilities of both SCI and RDI exceeded their assets, the expert valued those companies at zero. Despite the expert’s valuation of zero, both SCI and RDI actually had negative equity of $568,284 and $253,647, respectively. The valuation expert valued Russell’s one-half interest in Batting at $35,000.

¶ 13. While the record reflects that both SCI and RDI have significant outstanding liabilities, SCI’s 2007 federal income tax return reflected taxable income of $616,119. Furthermore, Russell’s accountant testified that SCI completed two construction projects in 2008, for which it received profits totaling $185,000. Finally, the valuation expert testified that despite assigning a value of zero to SCI and RDI under the net-asset-value method, SCI and RDI were viable companies capable of making profits.

¶ 14. Despite being awarded nearly all of the income-producing assets, Russell complains that the award of alimony is unreasonable given the negative equity positions of SCI and RDI. This Court has previously considered the appropriateness of alimony awards in light of property division that leaves one party responsible for a majority of the marital debt. Dunaway v. Dunaway, 749 So.2d 1112 (Miss.Ct.App.1999). In Dunaway, the chancellor awarded the husband ownership of the couple’s dairy farm. Id. at 1116 (¶ 9). However, the chancellor also assigned the husband substantially all of the marital debt. Id. The husband argued that the chancellor’s alimony award of $1,800 per month constituted an abuse of discretion in light of the fact that his former wife was also awarded $681,000 in unencumbered assets and a money judgment of $115,552.91. Id. at 1118 (¶ 15). This Court stated that there “seem[ed] to be considerable force behind the argument that the total award was excessive .... ” and reversed the alimony payments that had accrued. Id. at 1119 (¶ 17).

¶ 15. At first blush, it may seem that Dunaway supports Russell’s argument that the alimony award is unreasonable given his responsibility for the debts associated with his businesses. However, Dunaway is easily distinguishable from this case. The husband in Dunaway claimed that he had no means of servicing the debt assigned to him given the “limited profitability” of his dairy farm business. Id. at 1116 (¶ 8). In fact, he had filed for bankruptcy protection at the time of the divorce proceeding. Id. at 1120 (¶ 26). Despite his struggling business and limited income stream, this Court still upheld the chancellor’s decision to assign nearly all of the marital debt to the husband. Id. at 1116-17 (¶¶ 9-10).

¶ 16. Clearly, the financial condition of the husband in Dunaway differs from that of Russell. SCI’s 2007 federal income tax return listed income of $616,119. Additionally, SCI completed two construction projects in 2008 for which it realized profits totaling $185,000. Finally, the valuation expert testified that SCI was a viable business capable of making profits in the future. While it is uncontested that SCI is highly leveraged, with liabilities exceeding assets by over $500,000, it is clear that SCI is capable of producing profits to service the debt. Furthermore, as this Court noted in Dunaway, if Russell “concludes that he cannot deploy the assets set apart to him in the divorce to produce sufficient income to service the debt secured by those assets, he has the option to liquidate those assets, retire the debt, and utilize the net proceeds in a more profitable endeavor.” Id. at 1118 (¶ 13).

¶ 17. This case is further distinguishable from Dunaway, given that the wife in Dunaway had died while the husband’s appeal was pending. Id. at 1119 (¶ 17). As such, the husband’s periodic alimony obligation had ended. Id. This Court acknowledged that there was “considerable force” behind the husband’s argument that the total amount awarded to the wife was excessive, but it based its decision to reverse the alimony award largely on the fact that the wife was deceased. Id. Mary Ann is fifty-four years old and in good health. However, given her lack of a college degree and long absence from the workforce, she has far less earning potential than Russell. While her separate property and the property she received via equitable division may offset her expenses, they are insufficient to maintain the standard of living she enjoyed during the marriage and do not eliminate the need for alimony.

¶ 18. Finally, we are not convinced that the chancellor’s alimony award exceeds Russell’s ability to pay. SCI, Russell’s primary business, was profitable in both 2007 and 2008. Russell also testified that many of his personal and living expenses are paid out of SCI. He does not have a mortgage or rental payments on his home or a car payment. Additionally, the record reflects that Russell made a large number of discretionary expenditures, including a hunting trip to Argentina, vacations to Honduras and Cancún, and the purchase of a Harley Davidson motorcycle. Finally, Russell has previously demonstrated his ability to provide spousal support in an amount nearly identical to the alimony awarded. Russell testified that from 2005, when the parties separated, to 2007, when the temporary support order was entered, he voluntarily paid the following for Mary Ann’s benefit: (1) $2,000 mortgage on the marital home, (2) between $300 and $400 for health insurance, and (3) $2,300 in cash for personal expenses-a total expenditure of $4,600 per month.

¶ 19. The chancellor properly considered the Armstrong factors, which included an inquiry into the obligations and assets of each party. As such, we do not find that the chancery court committed manifest error or abused its discretion in its determination of the alimony award. This issue lacks merit.

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

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

      . Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994).

      . Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).

      . The chancery court entered a temporary support order on June 13, 2007; therefore, the parties agreed to use June 30, 2007, for purposes of valuing the marital estate.


author: KING, C.J.,

text:
    Glenn M. KELLY, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01753-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.

      Glenn M. Kelly, 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.
   KING, C.J.,

for the Court:

¶ 1. Glenn M. Kelly entered a guilty plea in the Hinds County Circuit Court to a charge of statutory rape. Kelly was sentenced to serve five years, with four years and 363 days suspended, and five years of probation in the custody of the Mississippi Department of Corrections (MDOC). Subsequently, Kelly filed a motion for post-conviction relief alleging that he was not aware of the victim’s age at the time they engaged in sexual relations. The trial court denied the motion, and Kelly appealed.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On July 17, 2006, Kelly was charged with the offense of statutory rape of a female at least fourteen years of age, but under sixteen years old, pursuant to Mississippi Code Annotated section 97-3-65(l)(a) (Supp.2010). On May 21, 2008, Kelly, upon the advice of his attorney, entered a plea of guilty before the Circuit Court of Hinds County. Kelly filed a sworn petition admitting his guilt. Kelly’s counsel certified that he was satisfied that Kelly understood the contents of his petition, and he was executing the petition voluntarily and intelligently. Kelly maintained his guilt during the plea hearing and the sentencing hearing. The trial court found that the plea was voluntarily and intelligently entered.

¶ 4. Kelly was sentenced to serve five years, with four years and 363 days suspended, and five years of probation in the custody of the MDOC. The terms of the probation included that Kelly have no further contact with the victim and that he register as a sex offender. On July 23, 2009, Kelly filed a motion for post-conviction relief. In his motion, Kelly argued that he did not know the age of the fourteen-year-old girl with whom he admitted to having sexual relations. Kelly had no affidavits other than one from the victim. The trial court denied the motion.

ANALYSIS

¶ 5. Kelly argues that the motion for post-conviction relief was properly before the court because evidence, not available at the time of trial, is now available in the form of an affidavit from the victim. In the affidavit, the victim admits to lying to Kelly about her age and to consenting to the sexual encounter. Kelly further argues that his guilty plea was entered involuntarily and as a result of ineffective assistance of counsel.

¶ 6. In reviewing a trial court’s decision to deny a motion for post-conviction relief, this Court will not reverse such a denial absent a finding that the trial court’s decision was “clearly erroneous.” Morris v. State, 29 So.Sd 98, 100 (¶4) (Miss.Ct.App.2010) (citation omitted). However, issues of law are reviewed de novo. Id.

1. Affidavit of Victim

¶ 7. Kelly argues that the trial court erred in denying his request for post-conviction relief because he presented new evidence, not available at the time of trial, in the form of an affidavit from the victim. In the affidavit, the victim admits to lying to Kelly about her age and to consenting to the sexual encounter.

¶ 8. This Court has previously addressed this issue in Hooks v. State, 22 So.3d 382 (Miss.Ct.App.2009). The facts in Hooks are similar to the instant case. In Hooks, the defendant pled guilty to statutory rape. Id. at 383 (¶ 3). Hooks subsequently filed a motion for post-conviction relief, and in support of his motion, Hooks attached affidavits from both the victim and the victim’s mother. The victim’s affidavit stated that she had misrepresented her age to Kelly. The victim’s mother’s affidavit stated that the victim had a habit of misrepresenting her age. Id. at 384 (¶ 5). This Court responded to Hooks’s argument by stating:

We find that the court was correct in finding that the two affidavits presented by Hooks do not constitute newly-discovered evidence. The law is clear in this state that “neither consent nor ‘mistake of age’ is a defense to capital or statutory rape.” In order to support the overturning of a conviction, newly-discovered evidence must be “of such nature that [it] would be practically conclusive that it would cause a different result.” Therefore, even if the affidavits were new evidence, they would not constitute newly-discovered evidence sufficient to cause a different result in Hooks’s conviction. Hooks’s contentions that the affidavits constitute newly-discovered evidence are wholly without merit.

Id. at (¶ 10) (citations omitted).

¶ 9. Accordingly, Kelly’s contention that the affidavit constitutes newly discovered evidence is without merit.

2. Involuntary Guilty Plea

¶ 10. Kelly claims that he is innocent because he was unaware of his victim’s age. Kelly argues that he reluctantly pled guilty based on the advice of his attorney; therefore, his plea was involuntary. To be enforceable, a defendant’s guilty plea must be voluntary and be the product of the defendant’s informed consent. Myers v. State, 583 So.2d 174, 177 (Miss.1991).

¶ 11. The record reflects that Kelly’s plea was voluntarily and intelligently entered. Kelly admitted in his petition to enter a guilty plea that he understood the elements of statutory rape and was guilty of committing the crime. Kelly maintained his guilt during the plea hearing and the sentencing hearing. Great weight is given to statements made under oath and in open court during sentencing. Mowdy v. State, 638 So.2d 738, 743 (Miss.1994). In addition, Kelly’s counsel certified that he had discussed the contents of the petition and was satisfied Kelly understood the elements of the crime and the consequences of entering a guilty plea. Kelly admitted to having sexual intercourse with the victim at a time when she was fourteen years old and more than thirty-six months younger than he was. Therefore, the trial court correctly found that Kelly’s guilty plea was voluntarily and intelligently entered. This issue is without merit.

3. Ineffective Assistance of Counsel

¶ 12. Kelly argues that he was not given effective assistance of counsel because his attorney recommended a guilty plea even though Kelly continuously maintained that he had no knowledge of the victim’s age and that he did not knowingly and intentionally commit any crime. Kelly further claims that his attorney failed to inform him of the plea agreement and its consequences. For Kelly to be successful in his claim of ineffective assistance of counsel, he must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Kelly must prove that: (1) “counsel’s performance was deficient,” and (2) “the deficient performance prejudiced the defense.” Id. at 693, 104 S.Ct. 2052.

¶ 13. The United States Supreme Court has held that the test applies to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The Supreme Court stated:

In many guilty plea cases, the “prejudice” inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error “prejudiced” the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the “prejudice” inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.

Id. at 59-60, 106 S.Ct. 366.

¶ 14. Kelly’s claim fails on its face due to its failure to delineate facts that, if proven, would show the likelihood of success at trial. The Mississippi Supreme Court has held that statutory rape is a “strict liability” crime; therefore, neither mistake of age nor consent is a defense to the crime. Collins v. State, 691 So.2d 918, 924 (Miss.1997); Sanders v. State, 825 So.2d 53, 57 (¶ 8) (Miss.Ct.App.2002). As a result of entering a guilty plea, Kelly was sentenced to prison for five years, but four years and 363 days of his sentence was suspended. Accordingly, we find that Kelly failed to allege the kind of “prejudice” necessary to satisfy the second prong of the Strickland test. This issue is without merit.

¶ 15. 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 THE APPELLANT.

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


author: BOLIN, Justice.

text:
    J.L. LOPER CONSTRUCTION COMPANY, INC., et al. v. FINDOUT PARTNERSHIP, LLP. Findout Partnership, LLP v. J.L. Loper Construction Company, Inc., et al.
    1081633 and 1081692.
    Supreme Court of Alabama.
    May 21, 2010.
    Rehearing Denied Aug. 13, 2010.

      A. Riley Powell IV of The Powell Law Firm, P.C., Gulf Shores, for appellants/cross-appellees J.L. Loper Construction Company, Inc., et al.
    David P. Shepherd, Fairhope, for appel-lee/cross-appellant Findout Partnership, LLP.
   BOLIN, Justice.

J.L. Loper Construction Company, Inc., and Michael Chad Loper (hereinafter referred to collectively as “Loper”) appeal from the trial court’s order dismissing Loper’s declaratory-judgment action and ordering Loper to submit to arbitration. Findout Partnership, LLP (“Findout”), cross-appeals from the trial court’s order setting aside an arbitration award in favor of Findout and remanding the arbitration proceeding to the arbitrator for the taking of additional testimony so that Loper could be heard.

On September 23, 2005, the parties entered into a construction contract pursuant to which Loper was to construct for Find-out a house on Ono Island in Baldwin County. The estimated total cost of the construction contract was $1,637,102.20, with $200,000 of the estimated contract price representing the contractor’s fee to be paid to Loper. The construction contract provided, among other things, that the house would be completed within 18 months from the issuance of the building permit and provided for a penalty of 1% of the “builder’s profit” per month for every month the project was delinquent. Article 9 of the construction contract contained the following arbitration agreement:

“Any controversy or claim arising out of or related to [this] contract, or breach thereof, will be settled by binding arbitration in accordance with the Alabama Arbitration Act, Sections 6-6-1 through 6-6-16 of the Alabama Code.”

On August 29, 2006, the parties executed an addendum to the construction contract, which changed the roof material and the exterior finish, adding an estimated cost to the construction contract of $92,000. On April 11, 2007, the parties executed an additional addendum to the construction contract adding a number of change orders, the additional cost of which was estimated to be $268,855.24.

On August 10, 2007, the parties executed an amendment to the construction contract whereby Loper agreed to complete work on a “punch list” by September 30, 2007. The parties further agreed to set the sum of $1,000 per day as the amount of liquidated damages to be deducted from the contractor’s fee for each day after September 30, 2007, that the punch-list work was not completed. The amended contract also provided that Findout was to pay Loper $275,000, which the parties acknowledged was the final sum owed Loper for the construction of the house. The other provisions contained in the original construction contract were not amended and remained in force.

On October 22, 2007, the parties executed a second amendment to the construction contract that provided, in part, as follows:

“1. Attached to this Second Amendment and marked as Exhibit ‘A’ is a copy of the punch list items which are not completed in accordance with the provisions of the Contract and Amendment to Contract. [Findout] and [Lop-er] agree that [Loper] is released from the obligation to complete said punch list items on Exhibit ‘A’ in consideration for the payment by [Findout] to [Loper] of the sum of Seven Thousand Eight Hundred Dollars ($7,800.00) and [Findout] is released from the obligation to pay the sum of Nineteen Thousand Seven Hundred Dollars ($19,700.00) to [Loper].
“2. [Findout] and [Loper] acknowledge that all sums due to [Loper] under the Construction Contract, as amended by the Amendment to Construction Contract and this Second Amendment, have been paid in full. [Loper] waives and releases any lien or right to lien on or against the Real Property on account of the work or labor furnished by [Loper] and warrants and represents that any and all parties who had supplied work, labor and material to the Real Property have been paid in full.
“5. In all other respects, except as provided for in this Second Amendment, the terms, conditions, and provisions of the Constraction Contract and the Amendment to Construction Contract shall remain unchanged and in full force and effect. All understandings and agreements made between the parties are merged into the Construction Contract, as amended by the Amendment to Construction Contract and this Second Amendment which together express the entire agreement of the parties. No representations, oral or written, not contained in the Construction Contract, as amended by the Amendment to Construction Contract and this Second Amendment, shall be considered a part of the agreement of the parties.”

In July 2008, counsel for Findout wrote a letter to Loper’s counsel for the purpose of opening up settlement negotiations regarding certain defaults Findout alleged Loper had made under the construction contract. On August 29, 2008, Findout’s counsel notified Loper’s counsel that it was demanding arbitration under Article 9 of the construction contract and asserted as grounds for the arbitration poor workmanship, incomplete work, improperly performed work, work that was not performed pursuant to code, work that was not performed pursuant to industry standards, and inaccurate and fraudulent billings.

On September 8, 2008, Loper’s counsel responded by letter to Findout’s demand for arbitration, stating that Loper would not agree to arbitration “as [Loper had] zero liability” and had “a signed full release” relating to the construction project.

On September 10, 2008, Findout responded to Loper’s September 8 letter reminding Loper that the parties had contracted to arbitrate any disputes and again requesting that Loper submit to arbitration. Findout also informed Loper that the defense of release would be an appropriate defense to raise during the arbitration proceeding.

On September 17, 2008, Loper responded to Findout’s letter of September 10 stating that it would not agree to arbitration because this “case is long over.” Lop-er enclosed a copy of a mutual release and settlement agreement that purports to release both parties from any additional liability relating to the construction of the house in question. The mutual release and settlement agreement states that both Loper and Findout release and discharge each other from any and all claims relating to the construction of the house. The mutual release and settlement agreement Loper enclosed was not signed by either party. Findout responded that same day to Loper’s letter advising Loper that it would proceed with arbitration and again requested Loper’s participation in the arbitration process. Findout also noted in its letter to Loper that the copy of the mutual release and settlement agreement provided to it was not signed. Findout requested that it be provided a signed copy of the mutual release and settlement agreement.

Findout thereafter selected an arbitrator. On October 10, 2008, Findout contacted the arbitrator by letter to set the date for a scheduling conference. Findout also informed the arbitrator that as a result of Loper’s refusal to participate in the arbitration process, it could not provide the arbitrator with a joint statement from the parties. However, Findout did provide the arbitrator with a copy of its August 29, 2008, letter to Loper’s counsel, which set forth Findout’s claims against Loper. Findout forwarded a copy of this letter and its enclosures to Loper and requested that Loper contact Findout if it had decided to participate in the arbitration process.

On October 14, 2008, Findout notified Loper that a scheduling conference in the arbitration proceeding had been set for October 22, 2008. On October 15, 2008, Loper petitioned the Baldwin Circuit Court for a judgment declaring whether Loper could be compelled to arbitrate claims arising out of the construction of the house on Ono Island despite the existence of the mutual release and settlement agreement. Loper referenced the mutual release and settlement agreement in its complaint and attached to its petition a copy of the unsigned mutual release and settlement agreement. Contemporaneously with the petition for a declaratory judgment Loper filed a motion seeking to enjoin Findout from arbitrating any claims until the trial court entered a judgment in the declaratory-judgment action. On October 16, 2008, Loper informed Findout and the arbitrator that it had filed the declaratory-judgment action and motion for injunctive relief.

On October 21, 2008, Findout notified the arbitrator and Loper by letter that it intended to proceed with the scheduling conference because the trial court had not entered an injunction in favor of Loper. Findout again informed Loper that if it wanted to participate in the scheduling conference it should notify Findout. Find-out also stated in the letter that “[it] can only hope that [counsel for Loper] will participate, regardless of what his client wants, so that the interest of his client will be protected.” In response, Loper petitioned the trial court requesting that it immediately enter an order enjoining Findout from proceeding with arbitration until its petition for a declaratory judgment had been heard by the trial court. On October 30, 2008, the arbitrator contacted Loper noting that the mutual release and settlement agreement Loper was relying on was unsigned and that no injunction had been issued by the trial court. The arbitrator informed Loper that arbitration would proceed and requested that Loper notify him if it wished to participate. Loper failed to respond to the arbitrator’s October 80 letter. On November 13, 2008, the arbitrator sent an e-mail to Loper requesting a response to his October 30 letter. On November 14, 2008, Loper responded to the arbitrator’s e-mail request, stating that Loper “has zero intention to participate in, or be bound by, any arbitration in this dispute.”

On November 19, 2008, the arbitrator notified Loper by letter of the date, time, and place of the arbitration proceeding and informed Loper that the arbitration proceeding would proceed “with or without you.” On November 24, 2008, Findout moved the trial court pursuant to Rule 12(b), Ala. R. Civ. P., to dismiss Loper’s petition for a declaratory judgment and its motion for immediate injunctive relief. Findout alleged, among other grounds, that the trial court lacked subject-matter jurisdiction (Rule 12(b)(1)) and that Loper, relying on an unexecuted mutual release and settlement agreement, had failed to state a claim upon which relief could be granted (Rule 12(b)(6)).

The arbitration hearing was conducted by the arbitrator on November 25, 2008. Loper did not participate. On January 13, 2009, Findout filed a supplement to its motion to dismiss Loper’s petition for a declaratory judgment in which it informed the trial court that the arbitration hearing had occurred on November 25, 2008. On January 29, 2009, the trial court entered an order denying Findout’s motion to dismiss the petition for a declaratory judgment. However, in its order denying the motion to dismiss the trial court directed the parties to contact the arbitrator to determine if he would reopen the arbitration proceeding to give Loper an opportunity to be heard.

The arbitrator entered his arbitration award on May 7, 2009, awarding Findout $348,229.31. The arbitrator also certified in his award that neither Findout nor Lop-er had contacted him after January 29, 2009, requesting that the arbitration be reopened in order to provide Loper an opportunity to be heard.

On May 12, 2009, Loper moved the trial court to set aside the arbitration award, which, Loper alleged, was void. On May 13, 2009, Findout filed its notice of arbitration award in the trial court and moved the trial court for an order confirming the award. On that same date, Loper moved the trial court for an immediate order enjoining Findout from attempting to collect the arbitration award. On June 10, 2009, the trial court entered the following order:

“This matter is before this Court on an original complaint filed by [Loper seeking] a Declaratory Judgment and Injunction, prohibiting [Findout] from pursuing this matter through Arbitration. Additional motions and an arbitration award have been filed in this matter as well. The Court will attempt to address all the issues with this order.
“Subsequent to filing the complaint but without receiving any ruling by the Court, [Findout] proceeded with the arbitration hearing. [Loper] did not participate, believing that participation would obviate the complaint. The arbitrator entered an award in favor of [Findout]. [Findout] then filed the award with the clerk (the clerk has never reduced the award to a judgment as required by [Ala. R. Civ. P.] 71 [C]) and [Loper] filed a Motion to Set Aside and a Motion to Enjoin [Findout] from collecting on the arbitration award. Those motions shall be treated as being filed under [Ala. R. Civ. P.] 59.
“Based on this information the Court Orders:
“1. Pursuant to Alabama Rule of Civil Procedure 71B(f), the Court Orders the Clerk of the Circuit Court to immediately enter the ‘Arbitration Award’ of May 7, 2009, as the Conditional Judgment of the Court, subject to the motions filed by [Loper] to be considered as an appeal of that award. “2. The relief sought in the declaratory judgment is of a nature, i.e., release' of claims, that it should be addressed by the arbitrator. Therefore, the declaratory judgment is DISMISSED and referred to arbitration. “3. Pursuant to [Ala. R. Civ. P.] 59, the arbitration award is SET ASIDE and the arbitration is REMANDED back to the arbitrator for taking of additional testimony to allow [Loper] an opportunity to be heard.
“The Court finds that because there are no specific procedures set out in the [Alabama Rules of Civil Procedure] to address the issue of concurrent jurisdiction between a circuit court action and an arbitration action, it was reasonable for [Loper] to assume that the arbitration would be stayed by the filing of the declaratory action and to go forward and participate in the arbitration could be considered a waiver or abandonment of the action before the court. To allow the arbitration award to stand at this time without the arbitrator having the benefit of hearing from [Loper], would be an injustice of adopting form over substance. It is noted that this Court is in no way taking any position on the merits of either party’s claims. The Court is only attempting to promote a fundamental fairness and justice by allowing both sides an opportunity to be heard on the merits.”

(Capitalization in original.)

On June 30, 2009, Loper moved the trial court for a new trial; to alter, amend, or vacate its judgment pursuant to Rule 59(e), Ala. R. Civ. P.; or to amend its judgment pursuant to Rule 52(b), Ala. R. Civ. P. On July 7, 2009, Findout moved the trial court to alter or amend the judgment pursuant to Rule 59(e). On July 28, 2009, the trial court entered multiple orders denying all postjudgment motions filed by the parties. Loper appeals (appeal no. 1081633); Findout cross-appeals (appeal no. 1081692).

Appeal No. 1081633

Loper appeals from the trial court’s June 10, 2009, order dismissing its petition for a declaratory judgment. Although the trial court originally denied Findout’s motion to dismiss the declaratory-judgment action, it ultimately dismissed the action, we assume, on the grounds raised in Findout’s motion. The standard of review of an order-dismissing an action on the basis that the plaintiff has failed to state a claim upon which relief could be granted has been stated as follows:

“ ‘On appeal, a dismissal is not entitled to a presumption of correctness.... The appropriate standard of review ... is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [the pleader] to relief.... In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [the plaintiff] may possibly prevail.... We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.’ ”

Carr v. International Refining & Mfg. Co., 13 So.3d 947, 952 (Ala.2009) (quoting Nanee v. Matthews, 622 So.2d 297, 299 (Ala.1993)). “ ‘ “[M]otions to dismiss are rarely appropriate in declaratory judgment proceedings. Such motion does, however, serve one purpose, that of determining whether the [complaint] states the substance of a bonafíde justiciable controversy which should be settled.” ’ ” Waterworks & Sewer Bd. of Selma v. Allen, 3 So.3d 846, 848-49 (Ala.2008) (quoting Helms v. Barbour County, 914 So.2d 825, 829 (Ala.2005), quoting in turn Wallace v. Burleson, 361 So.2d 554, 555 (Ala.1978)).

The parties agreed in Article 9 of the construction contract that “[a]ny controversy or claim arising out of or related to [the] contract, or breach thereof, will be settled by binding arbitration in accordance with the Alabama Arbitration Act.... ” The construction contract was subsequently amended, but no amendment to the construction contract obviated the arbitration agreement. Loper relied on the purported mutual release and settlement agreement as the basis for its refusal to participate in the arbitration process. In its petition for a declaratory judgment, Loper alleged that it could not be compelled to arbitrate any issue relating to the construction of the house on Ono Island because their existed a mutual release and settlement agreement that had been “executed” and that was binding upon both parties.

It is undisputed that the mutual release and settlement agreement contained in the record and relied upon by Loper as the basis for its contention in the petition for a declaratory judgment that it could not be compelled to arbitrate is not properly signed by the parties. We note that the document itself, in its preamble, states that “each of the undersigned parties ... hereby agree to release any and all claims.... ” In. order to be binding upon the parties, the mutual release and settlement agreement must be properly executed. Billy Barnes Enters., Inc. v. Williams, 982 So.2d 494 (Ala.2007).

Loper could not have properly relied upon the mutual release and settlement agreement as the basis for its refusal to participate in the arbitration process because the mutual release and settlement agreement, which had not been properly executed by the parties, was not binding upon the parties. When the allegations contained in Loper’s petition, together with the unexecuted mutual release and settlement agreement referenced in and attached to the petition, are viewed, as they must be, strongly in Loper’s favor, it appears beyond doubt that Loper can prove no set of facts in support of the allegations of its petition that would entitle it to relief. Carr, supra. Indeed, Loper’s attachment of the unsigned document to its petition impeaches its own allegation in the petition that the document was “executed.” As stated in note 3, supra, Loper made no other allegation in its petition concerning any other release and satisfaction allegedly made between the parties. Therefore, we conclude that the trial court did not err in dismissing Loper’s petition for a declaratory judgment, and we affirm that portion of the trial court’s judgment dismissing Loper’s declaratory-judgment action.

Appeal No. 1081692

Findout argues that the trial court erred in setting aside the arbitration award in order to give Loper “an opportunity to be heard” in the arbitration proceeding. We agree.

Rule 71B, Ala. R. Civ. P., which was adopted effective February 1, 2009, supersedes § 6-6-15, Ala.Code 1975, and sets forth the procedure for appealing an arbitration award:

“(a) Who may appeal. Any party to an arbitration may file a notice of appeal from the award entered as a result of the arbitration.
“(b) When filed. The notice of appeal shall be filed within thirty (30) days after service of notice of the arbitration award. Failure to file within thirty (30) days shall constitute a waiver of the right to review.
“(c) Where filed. The notice of appeal shall be filed with the clerk of the circuit court where the action underlying the arbitration is pending or if no action is pending in the circuit court, then in the office of the clerk of the circuit court of the county where the award is made.
“(d) What filed. With the notice of appeal, the appellant shall file a copy of the award, signed by the arbitrator, if there is only one, or by a majority of the arbitrators, along with the submission to the arbitrator or arbitrators and any supporting documents or record of the proceedings, if available. If no record is available, the appellant shall so state. If a record is to be prepared but is not completed within the time provided in paragraph (b) of this rule, the appellant shall so state in the notice of appeal and shall file the record within thirty (30) days after the filing of the notice of appeal, unless the court for good cause shown shall allow additional time.
“(e) How served. If the arbitration arose out of a pending action, service shall be made as provided in Rule 5. If there is no action pending, service shall be made as provided in Rules 4 through 4.4, and upon any counsel who appeared in the arbitration for the party being served.
“(f) Procedure after filing. The clerk of the circuit court promptly shall enter the award as the final judgment of the court. Thereafter, as a condition precedent to further review by any appellate court, any party opposed to the award may file, in accordance with Rule 59, a motion to set aside or vacate the judgment based upon one or more of the grounds specified in Ala.Code 1975, § 6-6-14, or other applicable law. The court shall not grant any such motion until a reasonable time after all parties are served pursuant to paragraph (e) of this rule. The disposition of any such motion is subject to civil and appellate rules applicable to orders and judgments in civil actions.
“(g) Appellate review. An appeal may be taken from the grant or denial of any Rule 59 motion challenging the award by filing a notice of appeal to the appropriate appellate court pursuant to Rule 4, Alabama Rules of Appellate Procedure.”

As discussed above, Findout filed a notice of its arbitration award in the trial court and moved the trial court for an order confirming the award. Loper moved the trial court to set aside the arbitration award and also sought to enjoin Findout from attempting to collect the arbitration award. The trial court in its final order treated Loper’s motions as having been filed pursuant to Rule 59, Ala. R. Civ. P., and directed the circuit court clerk to enter the arbitration award as the conditional judgment of the trial court “subject to the motions filed by Loper to be considered as an appeal” of the arbitration award. The trial court then proceeded to set aside the arbitration award and remanded the matter to the arbitrator.

Loper argued in its motion to set aside the arbitration award that it refused to participate in the arbitration proceeding because all issues between the parties with respect to the construction of the house on Ono Island had been resolved and releases had been executed absolving both parties of any further obligations with regard to the construction contract. Loper further contended that the arbitration proceeding was unilateral in nature and involved issues then pending in the declaratory-judgment action. Loper argued that the arbitration award was void as a matter of law and should be set aside.

Loper contended in its motion to enjoin Findout from collecting the arbitration award that while the action seeking a judgment declaring whether Loper was obligated to submit to arbitration was pending, Findout unilaterally selected an arbitrator and conducted the arbitration proceeding without Loper’s participation. Loper argued that Findout should be enjoined from collecting the arbitration award because Loper would be prejudiced if Findout collected any of that award.

Findout responded to both motions, contending that they should be denied because Loper had failed to cite any authority that would entitle it either to have the arbitration award set aside or to enjoin Findout from collecting the arbitration award.

As discussed above, the parties agreed that the Alabama Arbitration Act would govern any controversy or claim arising out of the construction contract. Section 6-6-14, Ala.Code 1975, a part of the Alabama Arbitration Act, § 6-6-1 et seq., Ala.Code 1975, provides:

“An award made substantially in compliance with the provisions of this division is conclusive between the parties thereto and their privies as to the matter submitted and cannot be inquired into or impeached for want of form or for irregularity if the award determines the matter or controversy submitted, and such award is final, unless the arbitrators are guilty of fraud, partiality, or corruption in making it.”

The stated grounds of “fraud, partiality, or corruption” necessary for vacating an arbitrator’s award under § 6-6-14 are exclusive; they may not be expanded by this Court. Volvo Trucks North America, Inc. v. Dolphin Line, Inc., 50 So.3d 1050 (Ala.2010)

In this case, Loper failed to assert any of the stated grounds in § 6-6-14 as a basis for setting aside the arbitration award, much less present any evidence that would satisfy a showing of fraud, partiality, or corruption in the making of the arbitration award. Both Findout and the arbitrator implored Loper to participate in the arbitration proceeding while Loper refused to do so in reliance on an unsigned mutual release and settlement agreement. Loper cannot now seek to have the arbitration award set aside based on the same unsigned mutual release and settlement agreement and the unilateral character of the arbitration proceeding when it refused to participate in the proceeding. Accordingly, to the extent it sets aside the arbitration award and remands the proceeding to arbitration, the trial court’s judgment is reversed.

1081633—AFFIRMED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, PARKER, MURDOCK, and SHAW, JJ., concur.

1081692—REVERSED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, PARKER, and SHAW, JJ., concur.

MURDOCK, J., dissents (writing to follow).

      . Predispute arbitration agreements under the Alabama Arbitration Act, §§ 6-6-1 thru -16, Ala.Code 1975, contravene Alabama law and are not specifically enforceable. See § 8-1-41(3), Ala.Code 1975, which provides that an agreement to submit a controversy to arbitration cannot be specifically enforced. See also Alafabco, Inc. v. Citizens Bank, 872 So.2d 798 (Ala.2002), reversed on other grounds by Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003). The issue of enforceability of the predispute arbitration provision agreed upon by the parties in Article 9 of the construction contract was not presented to the trial court, nor was it argued in briefs to this Court. Accordingly, we will not address that issue on appeal.

      . Findout’s motion to dismiss included as exhibits a copy of the construction contract containing the arbitration agreement, the purported mutual release and settlement agreement, and correspondence between Loper and Findout. However, the motion to dismiss was not converted to a motion for a summary judgment, see Rule 12(b), Ala. R. Civ. P., because these materials were specifically referenced in Loper’s petition for a declaratory judgment and were not matters outside the pleading. Donoghue v. American Nat'l Ins. Co., 838 So.2d 1032 (Ala.2002), Lewis v. First Tuskegee Bank, 964 So.2d 36 (Ala.Civ.App.2007).

      . Loper did not rely in support of its declaratory-judgment action on any other mutual release and settlement agreement, whether oral or written, other than the unexecuted mutual release and settlement agreement discussed herein.

      . Although the trial court dismissed Loper's petition on a different ground, this Court may affirm a trial court’s judgment on any valid legal ground, even if that ground was not considered by the trial court. Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000). Further, where a controversy in a declaratory-judgment action is not justiciable, this Court may take notice of the defect ex mero motu. Riley v. Hughes, 17 So.3d 643 (Ala.2009).

      . Rule 71B, Ala. R. Civ. P., is applicable to this case. Findout, on May 13, 2009, filed its notice of arbitration award in the trial court and moved the trial court for an order confirming the award, and the trial court entered the arbitration award as a conditional judgment on June 10, 2009. See Lindsey v. Deep South Props., LLC, 29 So.3d 179 (Ala.2009).

      . It does not appear from the record that Findout objected to the trial court's treatment of Loper’s motion to set aside and to enjoin enforcement of the arbitration award as a Rule 59 motion and as a notice of appeal of the arbitration award.