author: BARNES, J.,

text:
    Bruce D. GOODWIN, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2011-CC-00020-COA.
    Court of Appeals of Mississippi.
    April 3, 2012.

      Bruce D. Goodwin, appellant, pro se.
    Leanne F. Brady, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. Bruce D. Goodwin, appearing pro se, appeals the decision of the Circuit Court of Lincoln County, which affirmed the decision of the Board of Review (Board) of the Mississippi Department of Employment Security (MDES) denying him unemployment benefits. Finding there was substantial evidence to support the Board’s decision, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Goodwin had been employed with Holmes Oil & Gas Field Services, Inc. (Holmes) as a laborer on a part-time, as-needed basis until March 18, 2010, when he was discharged. Goodwin had refused work due to a family responsibility on February 23 through 26, 2010, and had also refused work on January 6, 2010. On March 11, 2010, Goodwin filed for unemployment benefits with MDES.

¶ 3. An MDES claims examiner investigated the facts surrounding the claim and found Goodwin eligible for benefits because he was “not subject to disqualification based on his refusal to work.” Holmes appealed, and a telephonic hearing was held with an MDES administrative law judge (ALJ), Goodwin, Rene Ziegler (a representative of Holmes and its vice president), and two witnesses — Jerry Kelly, who called Goodwin if work was available, and Mike Ziegler, President of Holmes. The ALJ reversed the claims examiner’s decision, finding that Goodwin had refused work without showing good cause to do so.

¶ 4. Goodwin appealed to the Board, which affirmed the ALJ’s decision, stating that failing to report for work due to family responsibilities is,not good cause under the law. Goodwin then appealed to the Circuit Court of Lincoln County, which affirmed the Board’s decision. Goodwin now appeals to this Court.

STANDARD OF REVIEW

¶ 5. Our standard of review for an unemployment compensation case is restrictive. Mississippi Code Annotated section 71-5-531 (Rev. 2011) provides that the Board’s findings of fact are conclusive, if supported by substantial evidence and absent any indication of fraud. Thus, judicial review is confined to questions of law, which are reviewed de novo. Brown v. Miss. Dep’t of Employment Sec., 29 So.3d 766, 769 (¶ 7) (Miss.2010). Additionally, there is a rebuttable presumption the Board’s decision is correct, and the challenging party has the burden of proving otherwise. Allen v. Miss. Employment Sec. Comm’n, 689 So.2d 904, 906 (Miss.1994).

DISCUSSION

¶ 6. Goodwin argues that he was terminated from Holmes because he filed for unemployment. He claims Mike Ziegler told him that if he ever filed for unemployment, he would be fired. After he filed, Goodwin stated Rene Ziegler informed him that if he continued to file for unemployment, the company would have to let him go. Goodwin claims he had no choice in filing for unemployment; even though he was a part-time employee he was receiving fewer and fewer hours, he could not find another job, and he was unable to pay his bills. Holmes told Goodwin he was fired for not reporting to work when called in February 2010, but Goodwin contends his phone records prove Holmes never called him.

¶ 7. Mississippi Code Annotated section 71 — 5—513(A)(3) (Rev. 2011) provides that an individual shall be disqualified from unemployment benefits if MDES finds that the claimant “has failed, without good cause ... to accept suitable work when offered him....” In determining what constitutes suitable work, “the department shall consider among other factors the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence....” Miss. Code Ann. § 71-5-513(A)(3)(a).

¶ 8. After a telephonic hearing, the ALJ found that Goodwin did not have good cause to refuse the work offered by Holmes. Holmes hired Goodwin on an “as needed” basis. Holmes called Goodwin to come to work on four days — February 23 through 26, 2010. Goodwin did not report to work due to family responsibilities; specifically, his grandchild was hospitalized, and he was the only person who could care for her. However, the ALJ found Goodwin’s reason for refusing work was not good cause under the law (specifically sections 71-5-513(A)(3) and 71-5-355), and benefits were denied.

¶ 9. Although Goodwin contends in his brief that he was not called to work on these days, he admitted at the hearing before the ALJ that he told Kelly in a phone conversation that his grandchild was hospitalized, and he could not work on these days. The Board adopted the ALJ’s findings of facts and decision.

¶ 10. Goodwin fails to cite any legal authority for his argument. Arguments on appeal shall “contain the contentions of the appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” M.R.A.P. 28(a)(6). “Failure to comply with [Rule] 28(a)(6) renders an argument procedurally barred.” Birrages v. Ill. Cent. R.R. Co., 950 So.2d 188, 194 (¶14) (Miss.Ct.App.2006). Procedural bar notwithstanding, Goodwin’s arguments are without merit.

¶ 11. There is no dispute that the offer of work was suitable for Goodwin. The issue on appeal is whether there is substantial evidence to support the Board’s decision that Goodwin did not have good cause to refuse the work offered by Holmes. Further, as MDES points out in their brief, while Goodwin’s taking care of his grandchild is certainly a good personal reason for refusing the offer of work, it is not “good cause” under the law. While we can find no caselaw on what exactly would constitute “good cause” in refusing an offer of work in this specific scenario, Mississippi Code Annotated section 71-5-513(A)(1)(a) (Rev. 2011), which governs good cause for voluntarily leaving employment, provides that “marital, filial and domestic circumstances and obligations shall not be deemed good cause” for leaving employment. Therefore, we agree with MDES that Goodwin’s domestic circumstance would not be deemed good cause in refusing a suitable offer of work. Thus, the Board properly denied Goodwin unemployment benefits.

¶ 12. There was substantial evidence to support the Board’s ruling. Accordingly, we affirm the circuit court’s judgment, which affirmed the Board’s denial of unemployment benefits.

¶ 13. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT IS AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.


source: Caselaw Access Project

license: Public Domain

text:
    David MIXON, Appellant v. Capt. Nina ENLERS, Disciplinary Hearing Officer, and Ronald King, Superintendent SMCI, Appellees.
    No. 2011-CP-00626-COA.
    Court of Appeals of Mississippi.
    May 29, 2012.

      David Mixon, appellant, pro se.
    Office of the Attorney General By R. Stewart Smith Jr., Attorney for appellees.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. David Mixon, a prisoner in the custody of the Mississippi Department of Corrections (MDOC), filed a petition to show cause in the Greene County Circuit Court, alleging a violation of due process in the MDOC’s disciplinary proceedings. The circuit court affirmed the MDOC’s denial of relief through its Administrative Remedy Program (ARP). On appeal, we find no error and affirm the judgment.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Mixon is currently in the custody of the MDOC and is incarcerated at the South Mississippi Correctional Institute (SMCI). He was issued a Rules Violation Report (RVR) on March 16, 2010, for his refusal to obey a guard’s order. Mixon continued to beat on his cell door after being directed to stop. His disciplinary hearing was held on March 26, 2010; Captain Nina Enlers was the disciplinary hearing officer. Captain Enlers found Mixon to be guilty of the charge in the RVR, and Mixon received a “restriction of all privileges not to exceed [one] month excluding exercise.”

¶ 3. Mixon contested the RVR through the ARP. His appeal was denied, and Mixon filed a petition to show cause with the circuit court on February 28, 2011. Mixon claimed that prison officials violated his due-process rights by failing to conduct a proper investigation and by failing to provide him with a legible copy of his RVR. On March 22, 2011, the circuit court upheld the MDOC decision. Mixon now appeals, and finding no error, we affirm the circuit court’s judgment.

STANDARD OF REVIEW

¶ 4. We will not disturb an administrative agency’s decision on appeal “unless the decision was unsupported by substantial evidence, was arbitrary or capricious, was beyond the agency’s scope or powers or violated the constitutional or statutory rights of the aggrieved party.” Siggers v. Epps, 962 So.2d 78, 80 (¶ 4) (Miss.Ct.App.2007) (citing Edwards v. Booker, 796 So.2d 991, 994 (¶ 10) (Miss.2001)).

DISCUSSION AND ANALYSIS

¶ 5. Mixon argues that he was deprived of his due-process rights by Lieutenant Beryl Hill’s refusal to take his statement and her failure to conduct a reasonable investigation. He also claims that his RVR was illegible and that he was entitled to a legible copy of it prior to his hearing. Mixon cites to Wolff v. McDonnell, 418 U.S. 539, 563-64, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), for the proposition that minimum due process requires an inmate to receive “advance written notice of the claimed violation and a written statement of the factfinders as to the evidence relied upon and the reasons for the disciplinary action taken.” However, Wolff concerned a prisoner’s revocation of parole, and the United States Supreme Court recognized: “We do not suggest, however, that the procedures required by today’s decision for the deprivation of good time would also be required for the imposition of lesser penalties such as the loss of privileges.” Id. at 571 n. 19, 94 S.Ct. 2963. The Supreme Court reiterated in Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), that not all types of administrative disciplinary actions warrant the invocation of a due-process analysis. “[T]o hold ... that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators[.]” Id. at 225, 96 S.Ct. 2532.

¶ 6. As a result of being found guilty of the rules violation, Mixon merely lost privileges for thirty days, which is not a property right that would constitute a violation of his constitutionally protected liberty interest. The Mississippi Supreme Court in Terrell v. State, 573 So.2d 730, 732 (Miss.1990), held that “claims by inmates regarding radio and television privileges ‘do not pertain to federal constitutional rights.’ ” (Quoting Montana v. Comm’rs Court, 659 F.2d 19, 23 (5th Cir.1981) (abrogated on other grounds by Henslee v. Lopez, 20 F.3d 470 (5th Cir.1994))). In Madison v. Parker, 104 F.3d 765, 768 (5th Cir.1997), the United States Court of Appeals for the Fifth Circuit held that a prisoner’s temporary loss of privileges were “merely changes in the condition of his confinement and do not implicate due process concerns. They are penalties which do not represent the type of atypical, significant deprivation in which a state might create a liberty interest.” Id. Thus, Mixon has no liberty interest at stake that could give rise to a legitimate due-process claim.

¶ 7. Notwithstanding, Mixon was made aware of the charge against him when he was issued the RVR, even though the MDOC admits the copy was not very good. The Disciplinary Statement Form submitted by the prison investigator, Lieutenant Hill, stated that Mixon refused to sign a statement, and the form acknowledges that Mixon “would like to have a detailed] investigation.” There is no indication, as Mixon asserts, that Lieutenant Hill “filed a fraudulent statement in [his] name under the pretense that [he] refused to sign.” Mixon was then given a timely disciplinary hearing at which he was given the opportunity to tell his version of events. The hearing officer believed the guard. Accordingly, we find the MDOC’s decision was supported by substantial evidence, was within the agency’s scope or powers, was not arbitrary or capricious, and did not violate Mixon’s constitutional or statutory rights. We affirm the circuit court’s judgment.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.

      . See Miss.Code Ann. §§ 47-5-801 through 47-5-807 (Rev.2011).


author: CARLTON, J.,

text:
    Billy EDWARDS a/k/a Billy Lee Edwards, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00368-COA.
    Court of Appeals of Mississippi.
    June 5, 2012.

      Billy Edwards, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Billy Edwards appeals the Alcorn County Circuit Court’s order dismissing his motion for post-conviction relief (PCR) as time-barred under Mississippi Code Annotated section 99-39-5(2) (Supp.2011). On appeal, Edwards raises the following assignments of error: whether (1) the sentence imposed by the court was excessive and disproportionate to the offense; (2) he was charged under a faulty indictment; (3) he entered an unknowing, involuntary, and unintelligent guilty plea; (4) he received ineffective assistance of counsel; (5) the acceptance of his guilty plea in the face of a conflict of interest violated his constitutional rights; and (6) he was subjected to a denial of due process when the trial court failed to advise him of the correct law in regard to appealing a sentence rendered upon a guilty plea. Finding no error, we affirm.

FACTS

¶ 2. On May 23, 2003, a grand jury before the Alcorn County Circuit Court indicted Edwards for burglary and larceny of a dwelling in Alcorn County cause number 03-183. The indictment stated, in part, as follows:

Billy Lee Edwards ... in said County and State on the 26th day of February ... 2003, did wilfully, feloniously and burglariously break and enter a certain dwelling owned and occupied by Mike Meteer, with the felonious and burglarious intent to take, steal and carry away the goods, chattels and personal property of the said Mike Meteer, in said dwelling being kept for use, sale or storage, and did then and there wilfully, feloniously and burglariously take, steal and carry away one Century Safe, 50 to 60 Pocket Knives, one Remington 870 12 gauge pump shotgun, one Browning bolt action 7 mm Rifle with [a] Nikon Scope, one Browning pump BPS 12 gauge shotgun with [a] Tentex Scope, one Magellan GPS Tracking System, one Compac Laptop Computer, and two boxes of Remington Heavy Shot 12 gauge shells, all of a value of $250 and more, good and lawful money of the United States, the personal property of Mike Meteer, in said dwelling being kept for use, sale or storage!.]

On February 2, 2004, Edwards pleaded guilty and was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC).

¶ 3. On February 10, 2011, Edwards filed a PCR motion, which the trial court denied as time-barred. Edwards now appeals.

STANDARD OF REVIEW

¶ 4. “A trial court’s dismissal of a PCR motion will not be reversed absent a finding that the trial court’s decision was clearly erroneous.” Evans v. State, 75 So.3d 1119, 1120 (¶ 4) (Miss.Ct.App.2011). However, we employ a de novo standard of review when issues of law are raised. Id.

DISCUSSION

I. TIME BAR

¶ 5. The trial court found that Edwards filed his PCR motion outside of the three-year statute of limitations as provided for in Mississippi Code Annotated section 99-39-5(2); thus, it was time-barred. We agree. According to section 99-39-5(2), a PCR motion following a guilty plea shall be made “within three (3) years after entry of the judgment of conviction.” Here, Edwards pleaded guilty on February 2, 2004. He subsequently filed his PCR motion on February 10, 2011 — well past the three-year statute of limitations.

¶ 6. Section 99-39-5(2) provides multiple exceptions to the three-year statute of limitations, including “an intervening state or federal supreme court decision that would adversely affect the outcome of the conviction, new evidence not reasonably available at the time of trial which would cause a different result in conviction, or an expired sentence.” Chandler v. State, 44 So.3d 442, 443 (¶ 6) (Miss.Ct.App.2010). Here, Edwards’s claims do not fall within any of the statutory exceptions. Nevertheless, in an attempt to circumvent the time bar, Edwards argues that this Court’s decision in Towner v. State, 837 So.2d 221, 227 (Miss.Ct.App.2003), is an intervening decision that, if applied, would cause a different result in his case, more specifically a lesser sentence. However, in contrast to Tovmer, Edwards was a previously convicted felon, and this Court has previously held that Towner did not satisfy the intervening-decision exception to the time bar. See Robinson v. State, 19 So.3d 140, 142 (¶ 11) (Miss.Ct.App.2009).

¶ 7. In Towner, Defendant Willie Town-er was convicted of selling cocaine and was sentenced to thirty years in the custody of the MDOC. Id. at 223 (¶ 1). Towner appealed arguing, among other things, that his case should be remanded because the sentence imposed by the trial court was disproportionate to his crime. Id. at 227 (¶ 19). The trial court agreed. Id. On his own motion, the trial judge asked this Court for authority to review Towner’s sentence because of his second thoughts that he may have been too harsh. Id. This Court subsequently granted the motion of the trial judge and remanded the case for a review of the sentence. Id. at (¶ 21).

¶ 8. This Court in Robinson, 19 So.3d at 142 (¶ 11), reviewed the Towner decision and found that Towner did not hold that every criminal defendant must be given a sentence proportionality hearing, as suggested by Edwards. The Robinson court stated as follows:

We find that Robinson’s reliance on Towner is misplaced as Towner did not create a new rule of law that requires a different result in Robinson’s case. Rather, in Towner, this Court sought guidance from prior supreme court decisions, White v. State, 742 So.2d 1126, 1135-38 (¶¶ 32-48) (Miss.1999) and Davis v. State, 724 So.2d 342, 345 (¶ 15) (Miss.1998), which both preceded Robinson’s guilty plea and sentencing hearing. Towner, 837 So.2d at 227 (¶ 21). More importantly though, in Towner, this Court did not hold that every criminal defendant must be given a sentence proportionality hearing. Much to the contrary, we carefully limited Towner’s application to the “uniqueness of [the ] particular case,” noting that the “trial judge acknowledge [d, ] he may have been too harsh and the prosecuting district attorney state [d ] he ha [d ] no objection to a re-sentencing hearing.” Id.

Robinson, 19 So.3d at 142-43 (¶ 11) (emphasis added). See also Moody v. State, 964 So.2d 564, 568 (¶ 18) (Miss.Ct.App.2007) (acknowledging the limited circumstances and application of Towner).

¶ 9. In this case, Edwards claims that the trial court imposed a sentence which, as a matter of law, is an excessive sentence. Edwards asks this Court to find that the sentence of twenty-five years imposed upon him for the non-violent offense of burglary constitutes a sentence which was constitutionally impermissible to the gravity of the offense. However, as in Robinson and Moody, in the present case, we are unable to find anything in the record to establish that the trial court had second thoughts about the length of Edwards’s sentence like the judge in Towner. Further, there is no evidence in this case that the State agreed to a resentencing. Therefore, even if Towner is considered an intervening decision, its application fails to affect the outcome of Edwards’s sentence.

¶ 10. We have previously found that “a sentence that does not exceed the statutory maximum sentence allowed is not subject to appellate review and will not be disturbed on appeal.” Robinson, 19 So.3d at 143 (¶ 14). Here, Edwards was sentenced to twenty-five years in the custody of the MDOC. The maximum sentence for the crime of burglary of a dwelling is twenty-five years. See Miss.Code Ann. § 97-17-23 (Supp.2011). Further, the record shows that Edwards’s counsel neither objected before the trial court to the sentence imposed nor objected to the court’s failure to conduct a proportionality analysis. As such, we find that this issue is without merit.

II. DEFECTIVE INDICTMENT

¶ 11. Edwards argues that his indictment was legally insufficient because the address of the dwelling he burglarized was not given on the indictment. Edwards claims that without an address, there is no proof of whether the building was an inhabited dwelling.

¶ 12. “Claims alleging defective indictment are also barred when a motion for post-conviction relief is not filed within the three-year time limitation.” Barnes v. State, 949 So.2d 879, 881 (¶ 8) (Miss.Ct.App.2007) (citing Kelly v. State, 797 So.2d 1003, 1005 (¶ 4) (Miss.2001)). Moreover, “[e]ven if the indictment had been defective, [a defendant] waive[s] all technical and non-jurisdictional defects contained in the indictment by pleading guilty.” Clark v. State, 54 So.3d 304, 308 (¶ 9) (Miss.Ct.App.2011). Edwards waived his current claims of legal insufficiency of the indictment charging him with burglary and larceny of a dwelling when he entered his guilty plea to the charge. See also URCCC 8.04(A)(4)(c).

III. CONSTITUTIONAL CLAIMS

¶ 13. Edwards argues that his PCR motion should not be procedurally barred because his claims concern fundamental constitutional rights. Specifically, Edwards argues: (1) he was deprived of due process of law because the trial court failed to correctly advise him of the right to appeal his sentence; (2) he was denied due process of law when the trial court failed to conduct a competency hearing which rendered his guilty pleas unknowing, involuntary, and unintelligent; (3) his trial counsel rendered ineffective assistance by advising him to waive any conflict of interest arising from his counsel’s joint representation of his co-defendants and himself; and (4) the court’s acceptance of his guilty plea in the face of his trial counsel’s conflict of interest violated his constitutional rights.

¶ 14. In our consideration of these three claims of constitutional error, we acknowledge that while it is true that the statute of limitations does not apply to “errors affecting fundamental constitutional rights[,] • • • the mere assertion of a constitutional right violation is not sufficient to overcome the time bar.” Chandler, 44 So.3d at 444 (¶ 8). “There must at least appear to be some basis for the truth of the claim before the limitation period will be waived.” Id. With this guidance in mind, we now turn to address each of Edwards’s constitutional assignments of error.

A. Right To Appeal

¶ 15. Edwards argues that his due-process rights were violated because the trial court failed to inform him of the correct law as to his right to a direct appeal of his sentence. Edwards asserts that the trial court incorrectly advised him that there was no right to appeal a sentence resulting from a guilty plea. We find that Edwards’s claim fails on the merits.

¶ 16. “At the time that [Edwards] pleaded guilty, section 99-35-101 of the Mississippi Code Annotated (Rev.2007) denied appeal from the circuit court to the supreme court ‘in any case where the defendant enters a plea of guilty.’ ” Lewis v. State, 48 So.3d 583, 587 (¶ 10) (Miss.Ct.App.2010). “However, this section was not interpreted to deny the defendant the right to appeal the sentence given as a result of that plea.” Id. (citing Trotter v. State, 554 So.2d 313, 315 (Miss.1989) (“[A]n appeal from a sentence imposed pursuant to a guilty plea is not equivalent to an appeal from the guilty plea itself.”)). Nonetheless, this Court has “previously held that a trial court is not required to inform the defendant of his right to direct appeal his sentence after he enters a guilty plea.” Id. (citing Cook v. State, 990 So.2d 788, 793 (¶11) (Miss.Ct.App.2008)). Accordingly, we find that this issue is without merit.

B. Knowing, Voluntary, and Intelligent Guilty Plea

¶ 17. Edwards alleges that his guilty plea was not knowingly, voluntarily, and intelligently given. Specifically, Edwards asserts that the trial court violated his constitutional rights by failing to order him to submit to a mental-competency examination prior to accepting his guilty plea. We find no merit to this argument.

¶ 18. Rule 9.06 of the Uniform Rules of Circuit and County Court states that:

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 [section] 99-13-11 of the Mississippi Code Annotated of 1972.

(Emphasis added). Rule 9.06 also applies “to a defendant’s entry of a guilty plea.” Dillon v. State, 75 So.3d 1045, 1051 (¶ 17) (Miss.Ct.App.2010). “The standard of competency necessary to enter a plea of guilty is the same as that for determining competency to stand trial.” Id. at (¶ 18). “The key phrase in Rule 9.06 in determining whether a competency hearing is required is ‘reasonable ground to believe that the defendant is incompetent.’ ” Dillon, 75 So.3d at 1051 (¶ 18). The determination of what is “reasonable” falls within the discretion of the trial judge because the judge views the evidence firsthand and “observe[s] the demeanor and behavior of the defendant.” Id.

¶ 19. The record shows that the trial judge presiding over the plea hearing took great measures to ensure Edwards knew exactly what he was doing by entering his guilty pleas and the consequences of doing so. Thus, the judge ensured Edwards’s plea was voluntary. The record further reflects that Edwards offered no evidence at the plea hearing questioning his competency. Therefore, the trial judge possessed no duty to order a mental-competency examination. Edwards’s claim of error erroneously asserts that the mere entry of a guilty plea triggers a need to order a mental-competency examination.

¶ 20. We find no evidence in the record contrary to the trial court’s finding that Edwards entered a knowing, voluntary, and intelligent plea. See Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss.2009) (“A guilty plea will be found valid if it is shown to have been voluntarily and intelligently made by the criminal defendant before the trial court.”). This issue is without merit.

C. Conflict of Interest

¶ 21. Edwards argues that the trial court’s acceptance of his guilty plea in the face of his trial counsel’s alleged conflict of interest violated his constitutional rights because the law does not permit a guilty plea to waive a conflict-of-interest claim. Edwards also alleges that his trial counsel rendered ineffective assistance by advising him to waive his right to not be subjected to a conflict of interest.

¶ 22. While “[b]oth the trial court and prosecutor have a duty to notify a defendant of potential conflicts of interest by counsel,” Blansett v. State, 841 So.2d 165, 169 (¶ 13) (Miss.Ct.App.2002), the trial court did explore this, asking Edwards:

COURT: Now, Mr. [Clay] Nails is representing three of you and these charges overlap with each of you, which any time creates a potential conflict of interest on the part of your attorney. However, even [where] there is a potential conflict or an actual conflict of interest a defendant may waive that conflict and consent to the attorney representing not only yourself but your co-defendants. Mr. Nails, have you discussed this potential conflict with each of these three defendants?
NAILS: Yes, sir, we have.
COURT: Have they indicated to you whether or not they desire to waive this potential conflict of interest?
NAILS: Yes, sir. Each of these three individuals have expressed to me the desire to waive the conflict and proceed with their guilty plea today.
COURT: Mr. Edwards, do you understand that there is a potential conflict of interest with Mr. Nails representing you and also Mr. Clark and also Mr. Robinson?
EDWARDS: Yes, sir.
COURT: Knowing that, and having discussed it with Mr. Nails, do you wish to waive or give up any objection to him representing you?
EDWARDS: I don’t quite understand it, sir.
COURT: In other words, knowing that there is a potential conflict of interest, do you wish for Mr. Nails to continue to represent you in these cases?
EDWARDS: Yes, sir.
COURT: Mr. Edwards, do you consent to Mr. Nails not only representing you here today but also Mr. Clark and Mr. Robinson?
EDWARDS: Yes, sir.

¶ 23. “[T]he United States Supreme Court has held ‘trial coui'ts may assume either that multiple representation entails no conflict or that the lawyer and his client knowingly accept such risk of conflict as may exist.’ ” Id. at 169-70 (¶ 14) (quoting Cuyler v. Sullivan, 446 U.S. 335, 346, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). “Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry.” Id. at 170 (¶ 14). The record in this case shows that the trial court did not violate a duty to advise Edwards of a conflict. Additionally, the record reflects that the trial court’s inquiry on the record shows Edwards accepted and waived any conflict due to the joint representation.

¶ 24. Accordingly, we find that Edwards’s contentions are without merit.

CONCLUSION

¶ 25. We find that none of the statutory exceptions under 99-39-5(2) apply to Edwards’s case. We further find that nothing in Edwards’s PCR motion overcomes the procedural bar of section 99-39-5(2). We find no abuse of discretion in the trial court’s dismissal of Edwards’s PCR motion as time-barred.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR.

      . From the record, it appears that there were a total of four indictments brought against Edwards: Alcorn County Circuit Court cause numbers 03-183 and 03-184 and Prentiss County Circuit Court cause numbers 03-271 and 03-272. Each indictment consisted of one count of burglary and larceny of a dwelling, and Edwards pleaded guilty to all counts. The trial court sentenced Edwards as follows: in 03-183, twenty-five years in the custody of the MDOC; in 03-184, twenty-five years in the custody of the MDOC to run concurrently with the sentence imposed in 03-183; in 03-271, twenty-five years in the custody of the MDOC to run concurrently with the sentences imposed in 03-183 and 03-184; and in 03-272, twenty-five years in the custody of the MDOC, with ten years to serve, fifteen years suspended, and five years of post-release supervision to run consecutively to the sentences imposed in 03-183, 03-184, and 03-271. Nine other indictments in Alcorn and Prentiss Counties were retired to file as part of the plea agreement. The instant motion for post-conviction relief addressed only a single count of burglary and larceny of a dwelling, under cause number 03-183.

      . See URCCC 11.01 ("Where the defendant is adjudged guilty of the offense charged, sentence must be imposed without unreasonable delay.”). See also Shinn v. State, 74 So.3d 901, 904 (¶ 11) (Miss.Ct.App.2011) (“Although a circuit judge now has discretion on how to run the sentences, once the circuit judge pronounces a sentence in a felony case, a sentencing order is entered of record, and the term of court expires, the circuit judge is without jurisdiction to change or modify that sentence at a later time.”).

      . Edwards was twenty-four years old at the time he entered his guilty plea.

      . Presumably, Edwards is referring to the following statement by the trial judge at the plea hearing: "Do you understand that if you did go to trial and the jury found you guilty or convicted you, you would have the right to appeal that conviction to the Supreme Court, but if you enter a plea of guilty to these charges, and I accept your pleas of guilty, you will have no right to appeal whatsoever?”

      . We pause to note that section 99-35-101 has been amended, effective July 1, 2008, to state that "where [a] defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to the Supreme Court shall be allowed.” Miss.Code Ann. § 99-35-101 (Supp.2011).

      . In his appellate brief, Edwards states:
      The [c]ourt was duty bound to conduct an evidentiary hearing given the knowledge of the mental and emotional condition of the defendant. It is the defendant’s position that once the motion to plead guilty was presented to the court[,] then the court had a duty to conduct a hearing to determine that defendant was incompetent to stand trial and to order the defendant to submit for a mental examination[.][T]he [c]ourt was statutorily bound to comply with the rule prior to trial and/or plea.

      . This Court has held:
      It is well-settled that joint representation is not per se violative of the constitutional guarantees of effective assistance of counsel; however, prejudice is presumed if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance.

        Blansett, 841 So.2d at 169 (¶ 9) (quoting Armstrong v. State, 573 So.2d 1329, 1333 (Miss.1990)).


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

text:
    Will Robertson BROWN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01757-COA.
    Court of Appeals of Mississippi.
    June 12, 2012.

      Will Robertson Brown, appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before IRVING, P.J., ISHEE and RUSSELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 1986, Will Robertson Brown pleaded guilty in the Jackson County Circuit Court to second-degree arson, burglary, and larceny. Brown was sentenced to serve seven years on each count in the custody of the Mississippi Department of Corrections (MDOC), with the sentences to run concurrently. After his release from the MDOC, Brown was convicted of a federal crime and is currently serving an enhanced sentence in a federal prison. In 2010, while in federal prison, Brown filed a motion for post-conviction relief (PCR) in the circuit court. The circuit court denied the motion finding that Brown was not entitled to any relief and that his PCR motion was time-barred. Brown then appealed the circuit court’s judgment. We affirmed, finding that Brown’s PCR motion was time-barred. See Brown v. State, 71 So.3d 1267, 1269 (¶ 8) (Miss.Ct.App.2011). Brown now attacks the same circuit court judgment asserting that his allegedly involuntary guilty plea and ineffective assistance of counsel have resulted in a more strenuous sentence in federal court. Finding no reversible error, we affirm the circuit court’s judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On September 12, 1986, Brown pleaded guilty in the circuit court to burglary, larceny, and second-degree arson. He received seven years on each count to be served in the custody of the MDOC, with the sentences to run concurrently. Brown completed his sentence and was released from the MDOC.

¶ 3. Some time after his release, Brown was convicted in the United States District Court for the Southern District of Mississippi of a federal crime involving the possession of a firearm. The United States Sentencing Guidelines (USSG) mandated that the district court consider Brown’s prior criminal activity in assessing his sentence. After doing so, the district court classified Brown as an “armed career criminal” (ACC) purportedly due to his 1986 conviction for second-degree arson. He received an enhanced sentence of 188 months. Brown is currently serving his sentence in a federal prison in Marion, Illinois.

¶ 4. On May 17, 2010, over twenty years after the circuit court’s sentencing order and well after his release from the MDOC, Brown filed a PCR motion in the circuit court. Therein, Brown attacked the legality of his 1986 guilty plea to second-degree arson and claimed he received ineffective assistance of counsel. We addressed Brown’s appeal in Brown, 71 So.3d at 1267 (¶ 8). Because Brown filed his PCR motion approximately seventeen years after the statute of limitations had run, we agreed with the circuit court’s determination that Brown’s motion was time-barred. Id. at 1268 (¶ 6). We further found that because Brown was no longer in the custody of the MDOC, he was not entitled to relief under Mississippi’s PCR statute. Id. at 1269 (¶ 7).

¶ 5. In his current appeal, Brown again claims his seeond-degree-arson conviction should be overturned because it was involuntarily entered and he received ineffective assistance of counsel. He further asserts this Court should reverse his second-degree-arson conviction so that he would receive a reduced federal sentence since the ACC enhancement would no longer apply to him.

DISCUSSION

¶ 6. “We will not disturb a circuit court’s denial of a PCR motion unless the decision is found to be clearly erroneous.” Id. at 1268 (¶4) (citation omitted). Questions of law are reviewed de novo. Id.

I. Time-Bar and Successive-Writ Bar

117. Mississippi Code Annotated section 99-39-5 (Supp.2011) governs motions for post-conviction relief. The statute provides that a prisoner has three years to request post-conviction relief. After that time, only certain cases are excepted from the procedural bar. Exceptions to the three-year statute of limitations are as follows:

That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of [the movant’s] conviction or sentence or that [the mov-ant] 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; or [t]hat, even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the [movant] would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution. Likewise excepted are those cases in which the [movant] claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

Miss.Code Ann. § 99-39-5(2)(a)-(b). Brown has failed to provide any information or claims evincing an exception to the three-year statute of limitations. As such, his PCR motion is time-barred.

¶ 8. Furthermore, Mississippi Code Annotated section 99-39-23(6) (Supp.2011) provides that a PCR movant cannot raise any issue that has been addressed in a final judgment with specific findings of facts and conclusions of law. Any motion filed after entry of the final judgment and asserting the same issue is procedurally barred as a secondary or successive writ.

¶ 9. We addressed Brown’s prior appeal of the circuit court’s denial of his PCR motion in Brown. Brown’s current appeal merely differs from his prior appeal in his assertion that the reversal of his 1986 second-degree-arson conviction would reduce his current federal sentence. Brown’s argument, however, bears no weight to our adjudication of his appeal. Brown’s claim does not negate the fact that he has failed to prove an exception to the time-bar applies, and his claim is now also successive-writ barred.

II. Entitlement to Relief under the Post-Conviction-Relief Statute

¶ 10. In our prior ruling on Brown’s appeal, we noted that Brown is not eligible for relief under Mississippi’s PCR statute because he is no longer in the custody of the MDOC. Brown, 71 So.3d at 1269 (¶ 8). We held: “Post-conviction relief applies only to a prisoner who is in the custody of the State, serving a sentence imposed by a Mississippi court.” Id. at (¶ 7) (citing Smith v. State, 914 So.2d 1248, 1250 (¶ 7) (Miss.Ct.App.2005)). Specifically, the PCR statute applicable at the time of Brown’s state sentencing reflects that “post-conviction relief ... applies only to a ‘prisoner in custody under sentencing of a court of record of the State of Mississippi....’” Hester v. State, 749 So.2d 1221, 1223 (¶ 8) (Miss.Ct.App.1999) (quoting Miss.Code Ann. § 99-39-5(1) (Rev.1994)).

¶ 11. On March 16, 2009, the PCR statute was amended as follows to expand the reach of the PCR statute to a wider range of individuals:

Any person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated, civilly committed, on parole or probation or subject to sex offender registration for the period of the registration or for the first five (5) years of the registration, whichever is the shorter period, may file a motion to vacate, set aside or correct the judgment or sentence....

Miss.Code Ann. § 99-39-5(1) (Supp.2009). With regard to the very foundation of the PCR statute prior to the 2009 amendment, we stated that “[t]he preeminent requirement of the Post-Conviction Collateral Relief Act [ (PCR statute) ] is that the petitioner be ‘a prisoner in custody under sentence of a court of record of the State of Mississippi.’ ” Willis v. State, 856 So.2d 555, 556 (¶ 3) (Miss.Ct.App.2003) (quoting Miss.Code Ann. § 99-39-5 (Rev. 2000)).

¶ 12. In 2010, we handed down Parker v. State, 47 So.3d 732 (Miss.Ct.App.2010), which bears great factual similarity to Brown’s case. In 1980, Charles Lee Parker pleaded guilty in a Mississippi circuit court to two drug charges and was placed in the custody of the MDOC. Id. at 733 (¶ 3). After being released, Parker was convicted of armed robbery and another drug charge. In 1986, he was sentenced to three years for the drug conviction to run consecutively to the armed-robbery sentence in the custody of the MDOC. Id. at (¶ 4).

¶ 13. Some time after his release from the MDOC, Parker was convicted of a federal crime and sentenced to serve time in a federal prison. See id. at 734 (¶ 7). His federal sentence was enhanced due to his prior state convictions. Id. In 2008, while in federal custody, he filed a PCR motion in the circuit court challenging his 1986 drug conviction on the grounds of innocence and ineffective assistance of counsel. Id. at 733 (¶ 5). We held:

It is undisputed that Parker was incarcerated in a federal correctional facility — and not under custody of a sentence of a court of record of the State of Mississippi — when he filed his 2008 PCR motion. Therefore, this [C]ourt, like the circuit court, lacks jurisdiction to consider his request for post-conviction relief. Further, we decline Parker’s invitation to expand the reach of the pre-March 16, 2009, version of section 99-39-5(1) to all petitioners whose sentences are based on prior Mississippi convictions.

Id. at 734 (¶ 11-12).

¶ 14. A limited exception allows mov-ants who are not in the custody of the MDOC, but are in custody outside of Mississippi, to have a PCR motion heard in a Mississippi court. “The Mississippi Supreme Court has clarified that a prisoner held in another state who, ‘but for that incarceration would be subject to imprisonment here,’ is ‘in custody’ for purposes of section 99-39-5.” Putnam v. Epps, 963 So.2d 1232, 1234 (¶ 6) (Miss.Ct.App.2007) (quoting Unruh v. Puckett, 716 So.2d 636, 639 (¶ 11) (Miss.1998)). In such cases, the State of Mississippi is deemed to have a “hold” on the prisoner, and jurisdiction is conveyed to Mississippi courts to hear the prisoner’s PCR motion. Id.

¶ 15. In sum, the exception, though enunciated prior to the 2009 amendment, references Mississippi’s potential custody over a prisoner in custody in another state. As stated in Unruh, the exception applies when, but for another entity’s incarceration of a prisoner, the prisoner would be in the custody of the MDOC. However, once a prisoner is released from the MDOC, Mississippi has no custody over the person whatsoever. In Brown’s case, as in Parker, Mississippi relinquished any and all custody rights over Brown when he was released from the MDOC.

¶ 16. In Putnam, we referenced the supreme court’s acknowledgment that the PCR statute “is arguably ‘post-conviction habeas corpus renamed.’ ” Putnam, 963 So.2d at 1234 (¶ 5) (quoting Walker v. State, 555 So.2d 738, 740-41 (Miss.1990)). The Mississippi Legislature has determined that petitions for habeas corpus apply to “cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.... ” Johnson v. Miller, 919 So.2d 273, 277 (¶ 12) (Miss.Ct.App.2005) (quoting Miss.Code Ann. § 11-43-1 (Rev.2002)). “A petition for habeas corpus is still a viable option in limited circumstances, such as a challenge of the denial of bail pending an appeal, but ‘purely collateral post-conviction remedies attacking a judgment of conviction or sentence should be sought under authority of [the PCR statute]....’” Putnam, 963 So.2d at 1234 (¶ 5) (quoting Walker, 555 So.2d at 740-41). As such, a PCR motion is meaningless when filed in a court having no authority over the custody of the person being detained.

¶ 17. Here, Brown invites us to widen the PCR statute’s net by liberally interpreting the legislature’s 2009 amendment to allow PCR eligibility for movants who have served time in the custody of the MDOC but who have either been permanently released from the MDOC or whose custody is no longer under the control of the State of Mississippi at the time of the PCR motion’s filing. We decline Brown’s invitation since such an expansion would eviscerate the very purpose of the PCR statute’s enactment.

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

LEE, C.J., IRVING, P.J., BARNES AND RUSSELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, P.J., MAXWELL AND FAIR, JJ.

ROBERTS, J.,

concurring in part and dissenting in part:

¶ 19. While I agree with the majority’s finding that the statutory time and subsequent-writ bars prohibit granting Brown relief under Mississippi’s PCR statute, I must respectfully dissent from the majority’s gratuitous assertions in regard to Brown’s standing to file his PCR motion. I am compelled to clarify my points of concern and dissent from the standing analysis.

¶ 20. It is important to note that in the majority’s opinion, it finds Brown does not have standing to file his PCR motion. If a petitioner lacks standing to file a PCR motion, the circuit court and ultimately this Court likewise lack jurisdiction to address the merits of the PCR motion. The proper disposition is for this Court to dismiss the case for lack of jurisdiction. See Pruitt v. Hancock Med. Ctr., 942 So.2d 797, 801 (¶ 14) (Miss.2006). Inexplicably, the majority finds Brown does not have standing while simultaneously addressing the merits of the case by affirming the circuit court’s decision to dismiss Brown’s PCR motion as time-barred. By affirming the circuit court, the majority is implying that both the circuit court and this Court have proper jurisdiction to hear this case. Therefore, under the majority’s analysis of standing, the proper disposition for this case should be a dismissal of Brown’s appeal for lack of jurisdiction.

¶ 21. Further, the majority relies on Brown v. State, 71 So.3d 1267 (Miss.Ct.App.2011) (Broum I), to support its finding that only prisoners in the custody of the MDOC and serving a sentence imposed by a Mississippi court are eligible to file a PCR motion. However, as stated in my opinion in Brown v. State, 83 So.3d 459 (Miss.Ct.App.2012) (Brown II), I would overrule Brown I and Wilson v. State, 76 So.3d 733 (Miss.Ct.App.2011), for the exact proposition that the majority relies on in the current case. In Brown II, 83 So.3d at 461-62 (¶ 9), we affirmed the circuit court’s dismissal of Brown’s PCR motion on the ground that his PCR motion was time-barred; however, I concurred in only the result and wrote separately to discuss Brown’s standing to bring his PCR motion. I found that Brown did have standing to bring his PCR motion, but two judges opined that Brown lacked standing under the new amendment to the Mississippi Uniform Post-Conviction Collateral Relief Act (UPCCRA). See id. at 463-65 (¶ 16). The UPCCRA was amended on March 16, 2009, as the majority in the current case correctly points out, “to expand the reach of the [UPCCRA] to a wider range of individuals.” Maj. Op. at (¶ 11). In both Brown I and Wilson, the petitioners filed their PCR motions after the effective date of the amendment, and I argued both petitioners should have received the benefit of the expanded language of the statute. Id. at 463-64 (¶ 13). The proposition that any petitioner not in the custody of the MDOC at the time of filing has no standing to file a PCR motion no longer matches the expansive language of the 2009 amendment to the statute.

¶ 22. An additional concern lies with the majority’s language finding that “once a prisoner is released from the MDOC, Mississippi has no custody over the person whatsoever,” and “Mississippi relinquished any and all custody rights over Brown when he was released from the MDOC.” Maj. Op. at (¶ 15). I also have concern with the majority’s statement that “a PCR motion is meaningless when filed in a court having no authority over the custody of the person being detained.” Maj. Op. at (¶ 16). I submit that these statements are incorrect and misleading based on a reading of the current Mississippi Code Annotated section 99-39-5(1) (Supp.2011), which clearly allows “[a]ny person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated, civilly committed, on parole or probation or subject to sex offender registration.” to file a PCR motion. For example, an individual granted parole by the Mississippi Parole Board is not considered to be “in custody” of the MDOC or the circuit court; instead, that individual is under the exclusive authority of the Mississippi Parole Board, though not “in custody.” Miss.Code Ann. § 47-7-5 (Rev. 2011). Similarly, an individual on probation is not “in custody” of MDOC but remains subject to the jurisdiction of the circuit court. Miss.Code Ann. § 47-7-37 (Rev.2011). Prior to the amendment, these individuals on probation or parple whose probation or parole had not been revoked would have no standing to bring a PCR motion since they were not “in custody.” Under the amendment, they clearly do. Another obvious example would be an individual who, at the time of filing, was in custody of a foreign state but still subject to sex-offender registration for a five-year period based on a Mississippi conviction. The amended language would unquestionably give him standing to file a PCR motion in the Mississippi court of conviction to collaterally attack his Mississippi conviction. In such circumstances as enumerated above, the filing of a PCR motion would certainly not be “meaningless” as the majority asserts. The amendment specifically abolished the “in custody” requirement and granted such convicted offenders standing. The future will undoubtedly bring other less obvious scenarios to light that will require this Court’s analysis of the PCR petitioner’s standing. When a convicted offender not on parole, probation, civilly committed, or subject to sex-offender registration files a PCR motion and legitimately claims newly discovered evidence, such as DNA evidence, conclusively proving actual innocence, and the State acknowledges such evidence does prove actual innocence, this Court may well hesitate before dismissing for lack of standing. At that time, this Court may conclude such an individual should not be denied the right to present evidence that could clear his record and relieve him of the collateral consequences placed upon him by his status as a convicted felon. Therefore, I submit that under the present language of the statute, convicted offenders such as Brown do have standing to file a PCR motion even though not in the physical custody of the MDOC at the time of filing.

¶23. Lastly, the majority would find that “[a] limited exception allows movants who are not in the custody of the MDOC, but are in custody outside of Mississippi, to have a PCR motion heard in a Mississippi court.” Maj. Op. at (¶ 14). Relying on Putnam v. Epps, 963 So.2d 1232, 1234 (¶ 6) (Miss.Ct.App.2007) (quoting Unruh v. Puckett, 716 So.2d 636, 639 (¶ 11) (Miss.1998)), the majority submits that a petitioner who is incarcerated in another state and “ ‘but for that incarceration would be subject to imprisonment here [in Mississippi]’ is ‘in custody1 for purposes of section 99-39-5.” Obviously, both Putnam and Unruh predate the 2009 amendment and clearly illustrate circumstances where both this Court and the Mississippi Supreme Court have relaxed, if you will, the standing requirement and held the petitioner may proceed even though he was not “in custody” of the state of Mississippi at the time of filing. In Putnam, James Putnam was a federal inmate serving his sentence in a Kentucky federal facility. Putnam, 963 So.2d at 1233 (¶ 1). However, he was also then serving a Mississippi circuit court sentence that ran concurrently with his federal sentence. Id. Unruh is an unusual case. David Unruh was a convicted felon serving a South Dakota sentence in a South Dakota prison. Unruh, 716 So.2d at 638 (¶ 5). Unruh had been serving a sentence in a Mississippi facility when he agreed to act as an informant and federal witness in a prison money order scam. Id. at (¶ 2). In exchange for his involvement, he was to allowed to serve the remainder of his prison sentence in a federal facility. Id. at (¶ 3). Unruh was transferred to a federal facility in Alabama, but was soon thereafter returned to a Lowdnes County, Mississippi correctional facility. Id. at (¶ 4). He then escaped from the Lowdnes County facility and fled to South Dakota. Id. at (¶¶ 4-5). Unruh committed a crime in South Dakota, resulting in his incarceration there. Id. at (¶ 5). Mississippi had placed a “hold” on him while he was incarcerated in South Dakota. Id. at 639 (¶ 11). Both Putnam and Unruh were found to have standing to file a PCR motion even though not “in custody.” While I recognize that both this Court and the supreme court relaxed the standing requirement in Putnam and Unruh, I do not agree that this exception to the custody requirement remains the only valid exception, particularly after the Mississippi Legislature’s 2009 amendment to the PCR statute.

¶ 24. I agree with the majority’s affirmation of the circuit court’s dismissal of Brown’s PCR motion as time-barred and the majority’s application of the success-writ bar, but I must respectfully dissent from the majority’s gratuitous analysis and discussion of standing and the 2009 amendment to section 99-39-5.

GRIFFIS, P.J., MAXWELL AND FAIR, JJ., JOIN THIS OPINION.

      . We note that the current version of Mississippi Code Annotated section 99-39-5(1) (Supp.2011) remains unchanged from the version in the 2009 Supplement.

      . Although neither party raises standing as an issue in its brief, it is well settled that it is the duty of this Court to determine if there is proper jurisdiction before addressing the merits. See, e.g., Winborn v. State, 213 Miss. 322, 323, 56 So.2d 885, 885 (1952).

      . "To the extent that Wilson and Brown state or imply that a PCR petitioner who filed a PCR petition after March 16, 2009, must still be in custody for the conviction he is currently attacking, I submit that those two cases should be overruled.” Brown II, 83 So.3d at 464 (¶ 15).


author: MAXWELL, J.,

text:
    Robert BOYD a/k/a Robert Ellis Boyd a/k/a Bo Diddly, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00457-COA.
    Court of Appeals of Mississippi.
    June 12, 2012.

      Leslie S. Lee, Jackson, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Robert Ellis Boyd, a/k/a “Bo Diddly,” appeals his most recent felony-shoplifting conviction. He argues the trial court should have granted his motion for a new trial because the jury’s guilty verdict is contrary to the overwhelming weight of the evidence. Based on the evidence, which included a video of a man identified as Boyd stuffing two shirts into his pants and leaving the store, we find the jury’s verdict to be' supported by the evidence. Thus, we affirm.

BACKGROUND FACTS

¶ 2. On March 25, 2010, Carolyn Abadie was working at Book Mart in Starkville, Mississippi. She testified Robert Boyd came into the store and asked if she had gone to Starkville High. When she answered yes, Boyd said they had gone to school together. Boyd then asked to use the restroom. Abadie assented, and Boyd went to the other side of the store near the clothing merchandise. Abadie remembered Boyd later leaving without stopping to talk to her or paying for anything.

¶ 3. When Abadie came to work the next day, another employee had checked for empty clothing hangers, as Book Mart employees did each morning as a means of inventory control. The employee noticed two empty hangers on a rack of Cutter and Buck shirts. The facility manager, Jeff Foster, reviewed the surveillance video from March 25. The video showed a man roll up two shirts, stuff them in his pants, and replace the empty hangers on the rack. The man looked around to see if he was being observed, then left the store. The video was played for the jury, and Abadie identified Boyd as the shoplifter.

¶ 4. Boyd’s indictment charged him with shoplifting in violation of Mississippi Code Annotated section 97-23-93(1) (Rev. 2006). The indictment charged Boyd had already twice been convicted of shoplifting, meaning if convicted for a third time Boyd would be guilty of a felony. Miss.Code Ann. § 97-23-93(6) (Rev. 2006). Boyd was also charged as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007), based on two previous felony-shoplifting convictions.

¶ 5. The jury found Boyd guilty of felony shoplifting. And the circuit court sentenced him as a habitual offender to five years in the custody of the Mississippi Department of Corrections, without eligibility for weekend passes, parole, probation, or early release of any kind.

¶ 6. After an unsuccessful motion for a new trial, Boyd timely appealed.

MOTION FOR NEW TRIAL

¶7. Boyd argues the trial court erred by denying his motion for new trial. We review the denial of a post-trial motion for abuse of discretion. Howell v. State, 860 So.2d 704, 764 (¶ 212) (Miss.2003). “A motion for new trial challenges the weight of the evidence.” Id. (quoting Edwards v. State, 800 So.2d 454, 464 (¶25) (Miss. 2001)). “[T]he evidence should be weighed in the light most favorable to the verdict.” Dilworth v. State, 909 So.2d 731, 737 (¶21) (Miss.2005) (quoting Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005)). “Only in ‘exceptional cases in which the evidence preponderates heavily against the verdict’ should the trial court invade the province of the jury and grant a new trial.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶18) (Miss.2000)). “The verdict must be ‘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)).

¶ 8. The crime of shoplifting is committed when “[a]ny person ... wilfully and unlawfully take[s] possession of any merchandise owned or held by and offered or displayed for sale by any merchant, store or other mercantile establishment with the intention and purpose of converting such merchandise to his own use without paying the merchant’s stated price[.]” Miss.Code. Ann. § 97-23-93(1). A third conviction for shoplifting is a felony. Miss.Code Ann. § 97-23-93(6).

¶ 9. Boyd does not contest the State’s evidence of his two previous felony-shoplifting convictions. Nor does he challenge the previous shoplifting convictions underlying the felony shoplifting charge in this case. Instead he claims his conviction for shoplifting on March 25, 2010 should be reversed because: (1) Abadie did not physically see Boyd take anything from the store; (2) the missing clothing was never recovered or admitted into evidence; and (3) the video did not clearly show the person on the video was Boyd.

¶ 10. Surveillance video from the Book Mart heist showed a man taking two shirts and concealing them in his pants. Abadie identified Boyd as the man in the video. And the next day employees found two empty hangers on the rack where Boyd had taken the shirts. Thus, the jury was free to draw the reasonable inferences that the video depicted Boyd shoplifting. See Pryor v. State, 771 So.2d 958, 960 (¶ 9) (Miss.Ct.App.2000) (citation omitted).

¶ 11. Viewing this evidence in the light most favorable to the verdict, we find the jury’s verdict is supported by the weight of the evidence. See Watson v. State, 939 So.2d 806, 810 (¶ 17) (Miss.Ct. App.2006) (finding jury’s guilty verdict sufficiently supported by surveillance video showing two people taking clothes and witness testimony identifying defendant as one of the people in the video). Therefore, the trial court properly denied Boyd’s motion for new trial.

¶ 12. THE JUDGMENT OF THE OKTIBBEHA COUNTY CIRCUIT COURT OF CONVICTION OF FELONY SHOPLIFTING, THIRD OFFENSE, AND SENTENCE AS A HABITUAL OFFENDER TO FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, RUSSELL AND FAIR, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


author: ISHEE, J., RUSSELL, J.,

text:
    Rebecca LADNER, Appellant v. Michael HOLLEMAN, Appellee.
    No. 2010-CA-01932-COA.
    Court of Appeals of Mississippi.
    June 19, 2012.

      William Alex Brady II, Shannon Adele Ladner, Gulfport, attorneys for appellant.
    Edward J. Currie Jr., Jackson, Jeremy T. Hutto, Tim C. Holleman, Gulfport, attorneys for appellee.
   ISHEE, J.,

for the Court:

¶ 1. This appeal arises from an October 22, 2010 order of the Circuit Court of Harrison County granting Michael Holle-man’s motion for partial summary judgment. Rebecca Ladner argues the trial court erred by granting partial summary judgment based on premises-liability law and by finding no genuine issue of material fact existed. We affirm the trial court’s grant of partial summary judgment, but we do so because Ladner failed to provide any evidence establishing a negligent act by Holleman proximately caused her injuries.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 12, 2005, Holleman invited Ladner to his home in Gulfport, Mississippi, for a bicycle ride. Holleman provided Ladner with a bicycle to use during the ride. After riding a short distance, Lad-ner fell off of the bicycle. The exact cause of the fall is in dispute. However, the issue of why she fell off of the bicycle is not relevant to our current inquiry. As a result of the fall, Ladner had abrasions on her left shoulder, left elbow, and left knee. Nonetheless, she was able to complete the twelve-mile ride despite her injuries.

¶ 3. Upon returning to Holleman’s house, Ladner entered the kitchen while Holleman retrieved some Neosporin, an antibacterial ointment. While Ladner was drinking a Diet Coke in the kitchen, Hollé-man applied the Neosporin to her elbow and knee. Shortly after application of the Neosporin, Ladner experienced tingling and swelling of her lips, which spread to her fingertips. She also felt her throat begin to swell, and she was unable to swallow. Ladner asserts this was due to an allergic reaction to the Neosporin. She admitted to the use of Neosporin in the past, but she had never noticed an allergic reaction to the ointment.

¶ 4. Upon experiencing the symptoms of an allergic reaction, Ladner requested that an ambulance be called to the residence. Instead of calling an ambulance, Holleman suggested she lie down in the living room. Ladner then lay on Holleman’s living room floor while Holleman went to the store to purchase Benadryl, an anti-allergy medication. Upon his return, Ladner took the Benadryl and continued to lie on the floor for approximately two hours. Eventually, Holleman went to the bathroom and called for Ladner so that he could remove the remaining Neosporin. When Ladner attempted to stand, she fell and hit her head. Ladner has no memory of the fall or what caused her to fall. However, the fact that a fall did, in fact, occur is not in dispute.

¶ 5. After the fall, Ladner alleges she again asked for an ambulance, but no ambulance was called. Instead, Holleman helped Ladner to his bedroom, where she laid in his bed for a period of time. Lad-ner claims she requested an ambulance again but was refused. Ladner was able to leave Holleman’s residence later and drive home. She did not seek medical attention at that point, but subsequent medical treatment showed that Ladner suffered permanent loss of her sense of smell and taste.

¶ 6. On June 9, 2008, Ladner filed a complaint in the circuit court. She alleged negligence on the part of Holleman for her fall off of the bicycle and for his administration of aid. On April 9, 2010, Holleman filed a motion for partial summary judgment. He sought partial summary judgment on Ladner’s claims arising from the fall in his home. Holleman argued: (1) Ladner was a licensee at the time of her fall, and there was no evidence Holleman acted with willful or wanton disregard for her safety; (2) Ladner’s injuries were not reasonably foreseeable; (3) there is no duty to render aid, and, even if such a duty exists, Holleman was acting as a “Good Samaritan” and is immune from liability; and (4) there is no proof of proximate causation. At a hearing on September 30, 2010, the trial judge stated that the duty owed is the prime issue in this case and that issue is a matter of law. He stated: “[I]t’s either the issue — or rather the standard under the Good Samaritan Statute, or the standard that’s incumbent under the licensee provisions.” Ultimately, he held the case was a premises-liability action because the fall took place inside the residence. He granted Holleman’s motion for partial summary judgment based on the lack of evidence of any willful on wanton conduct on the part of Holleman. On October 22, 2010, the trial judge entered a Rule 54(b) final judgment dismissing with prejudice all claims arising from the fall in the home. From that ruling, Lander appeals.

DISCUSSION

¶ 7. The standard of review for a trial court’s grant of summary judgment is de novo. Doe v. Jameson Inn, Inc., 56 So.3d 549, 553 (¶ 8) (Miss.2011). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

I. Applicable Duty of Care

¶ 8. On appeal, Ladner argues the trial court erred by granting partial summary judgment based on premises-liability law. She further argues the Good Samaritan Statute, found in Mississippi Code Annotated section 73-25-37 (Rev.2008), applies because Holleman voluntarily rendered aid and, when rendering aid, failed to exercise reasonable care. The statute states:

No duly licensed, practicing physician, physician assistant, dentist, registered nurse, licensed practical nurse, certified registered emergency medical technician, or any other person who, in good faith and in the exercise of reasonable care, renders emergency care to any injured person at the scene of an emergency ... shall be liable for any civil damages to the injured person as a result of any acts committed in good faith and in the exercise of reasonable care or omissions in good faith and in the exercise of reasonable care by such persons in rendering the emergency care to the injured person.

Miss.Code Ann. § 73-25-37(1).

¶ 9. Ladner asserts the applicable duty of care owed is good faith and reasonable care standard under the Good Samaritan Statute and not the duty of care owed to licensees in premises-liability actions to refrain from willfully or wantonly injuring them. She argues Holleman voluntarily rendered aid by applying the Neosporin; thus, he owed her a duty to exercise reasonable care when he rendered the aid. She alleges he failed to use reasonable care by refusing to call an ambulance after she requested for him to do so several times.

¶10. We find that the duty owed to Ladner could have been the applicable standard of care under either theory of liability. The trial court held this was a premises-liability action simply because the fall occurred on the premises. “[P]remises liability is a theory of negligence that establishes the duty owed to someone injured on a landowner’s premises as a result of ‘conditions or activities’ on the land.” Jameson Inn, 56 So.3d at 553 (¶ 11) (quoting Black’s Law Dictionary 961 (7th ed. 2000)) (footnote omitted). Therefore, premises-liability law is only applicable when the injury is a result of conditions or activities on the premises, not based on the fact that the injury simply occurred on the premises. Although the application of Neosporin could technically be considered an activity on the premises, we are hesitant to apply the law of premises liability so broadly particularly when another theory of liability may apply. It is conceivable that the Good Samaritan Statute would govern in circumstances where a premises owner voluntarily renders aid to another person on his premises. Although uncertainty exists regarding the applicable standard of care owed to Ladner, summary judgment is still appropriate because Ladner failed to establish that Holleman’s negligence was the proximate cause of her injuries under either theory of liability.

II. Foreseeability of Injury

¶ 11. Lander also makes a brief argument regarding the foreseeability of her injuries. “Under Mississippi law, for a person to be liable for another person’s injury, the cause of an injury must be of such a character and done in such a situation that the actor should have reasonably anticipated some injury as a probable result.” Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1144 (¶ 32) (Miss.2004) (citation omitted). Thus, some type of injury must be reasonably foreseeable for the negligent party to be held liable. Id. at 1145 (¶ 34).

¶ 12. As discussed above, Ladner has failed to provide any evidence that Hollé-man’s negligence proximately caused her injuries. Because we do not know what negligence, if any, proximately caused her injuries, it is impossible to determine whether some injury was reasonably foreseeable as a result of Holleman’s actions. Accordingly, Ladner has not shown a genuine issue of material fact exists regarding foreseeability. This issue is without merit.

III. Proximate Causation

¶ 13. A negligence claim has four elements: duty, breach of duty, causation, and damages. Price v. Park Mgmt., Inc., 831 So.2d 550, 551 (¶ 5) (Miss.Ct.App.2002) (citing Carpenter v. Nobile, 620 So.2d 961, 964 (Miss.1993)). “To establish a prima facie case, [the plaintiff] must present sufficient evidence on all four elements of the claim to carry the burden of going forward.” Id.

¶ 14. In order to survive summary judgment, Ladner needed to show some evidence that Holleman’s breach of duty caused her injury. In Rod v. Home Depot USA, Inc., 931 So.2d 692 (Miss.Ct.App.2006), Georgina Rod fell in a Home Depot store and subsequently brought suit against the store alleging negligence. During questioning, Rod “admitted that she did not know what caused her to slip and/or trip.” Id. at 693 (¶ 3). The trial court granted summary judgment in favor of Home Depot. Id. at (¶ 5). On appeal, this Court held that Rod could not survive summary judgment without providing “evidence that a negligent act of Home Depot caused her injury because ‘the basis of liability is negligence and not injury.’ ” Id. at 695 (¶ 12) (quoting Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 465 (¶ 6) (Miss.Ct.App.2004)). We further acknowledged that “[p]roof merely of the occurrence of a fall on a floor within business premises is insufficient to show negligence on the part of the proprietor.” Id. (quotation omitted). Because Rod failed to provide any evidence showing negligence on the part of Home Depot proximately caused her injuries, this Court affirmed the trial court’s grant of summary judgment. Id. at 694 (¶6).

¶ 15. Although Rod involved a premises-liability action of an individual whose status was that of an invitee, it is still analogous to the case at hand under either premises liability or the Good Samaritan Statute. Like the plaintiff in Rod, Ladner offered no evidence regarding the cause of her fall. In fact, Lander does not even know how she fell. The relevant section of Ladner’s deposition is as follows:

Q. ... And tell — tell us how it was that you fell. What happened?
A. I don’t recall other than trying to sit up. I sat up and — and I must have stood. I don’t know. I don’t recall.
Q. Your testimony is you do not know how it was you came to fall.
A. Exactly.
Q. Have you ever remembered? In other words, is it something that your memory comes and goes on what happened?
A. No. No.
Q. So you’ve never known what — how you fell?
A. No.

Ladner admitted she does not know what caused her fall. She also provided no evidence, medical or otherwise, to establish the cause of the fall. Ladner’s assertion that the fall was caused by an allergic reaction to the Neosporin is mere speculation. In fact, the fall could have been caused by a variety of different circumstances. Without knowing the reason she fell, it is impossible to determine whether Holleman’s negligence was the proximate cause of her injuries under any theory of liability. Therefore, even if Ladner established duty and breach of duty, her claim would ultimately fail because she did not provide any evidence to establish proximate causation.

¶ 16. Furthermore, even if the application of Neosporin caused Ladner to have an allergic reaction, there is no evidence that Holleman failed to exercise reasonable care in rendering aid. There was no reason for Holleman to suspect that Ladner would have an allergic reaction to the ointment; her testimony even establishes that she had previously used Neos-porin but never had an allergic reaction. Additionally, upon Ladner experiencing an allergic reaction, Holleman promptly went to the store and bought Benadryl in an attempt to alleviate the symptoms. Moreover, Ladner could have called an ambulance herself or left Holleman’s house to seek medical attention at any point. She also failed to seek medical attention after her fall when she drove herself home. Accordingly, there is no evidence to establish that even if Holleman proximately caused Ladner’s injuries, he did so by failing exercise reasonable care. For the foregoing reasons, we affirm the trial court’s grant of partial summary judgment.

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

LEE, C.J., BARNES, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. RUSSELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY IRVING AND GRIFFIS, P.JJ.

RUSSELL, J.,

dissenting:

¶ 18. The majority finds that Ladner failed to provide any evidence establishing a negligent act by Holleman that proximately caused Ladner’s injuries. In my view, Holleman was the proximate cause of Ladner’s injuries because (1) he applied the Neosporin ointment to Ladner’s skin, and (2) he failed to call an ambulance despite several requests by Ladner. At a minimum, there are genuine issues of material fact as to Holleman’s duty, whether his actions or inactions were negligent, and whether Ladner’s injuries were the result of Holleman’s actions or inactions. Therefore, I would reverse the circuit court’s grant of partial summary judgment in favor of Holleman and remand for a trial on the merits.

¶ 19. This Court conducts a de novo standard of review regarding a circuit court’s grant of summary judgment. Rogers v. Barlow Eddy Jenkins P.A., 22 So.3d 1219, 1222 (¶9) (Miss.Ct.App.2009) (citing Bailey v. Wheatley Estates Corp., 829 So.2d 1278, 1282 (¶ 16) (Miss.Ct.App.2002)). Under Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Further, “[t]he circuit court is not permitted to try the issues; the court ‘may only determine whether there are issues to be tried.’ ” Rogers, 22 So.3d at 1222 (¶ 9) (quoting Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 795 (Miss.1995)). “The moving party bears the burden of showing that no genuine issue of material fact exists, whereas the nonmoving party is given the benefit of the doubt as to the existence of a material fact.” Lawson v. Honeywell Int’l, Inc., 75 So.3d 1024, 1026-27 (¶6) (Miss.2011) (citing Monsanto Co. v. Hall, 912 So.2d 134, 136 (¶ 5) (Miss.2005)). “When considering a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party.” Id. at 1027 (¶ 6).

¶ 20. A claim for negligence has four elements: duty, breach, causation, and damages. Price v. Park Mgmt., Inc., 831 So.2d 550, 551 (¶ 5) (Miss.Ct.App.2002) (citing Carpenter v. Nobile, 620 So.2d 961, 964 (Miss.1993)). “To establish a prima facie case, [the plaintiff] must present sufficient evidence on all four elements of the claim to carry the burden of going forward.” Id.

¶ 21. “The general duty is to act as a reasonable prudent person would under the circumstances.” Doe v. Wright Security Servs., Inc., 950 So.2d 1076, 1079 (¶ 12) (Miss.Ct.App.2007) (citing Donald v. Amoco Prod. Co., 735 So.2d 161, 175 (¶ 48) (Miss.1999)). In cases involving the voluntary aid of another, the Restatement (Second) of Torts section 322 provides further guidance:

If the actor knows or has reason to know that by his conduct, whether tor-tious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.

(Emphasis added). Further, “[w]hen the conduct of the actor is a substantial factor in bringing about the harm to another then[,] ‘the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.’” Doe, 950 So.2d at 1079 (¶ 12) (quoting Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1144-45 (¶ 34) (Miss.2004)). “Defendants ‘cannot escape liability because a particular injury could not be foreseen, if some injury ought to have been reasonably anticipated.’ ” Id. (quoting Rein, 865 So.2d at 1145 (¶ 34)).

¶22. This Court has previously held that issues of negligence, contributory negligence, and proximate causation are for the jury:

When reasonable minds might differ on the matter, questions of proximate cause and of negligence and of contributory negligence are generally for determination of [a] jury. [Am.] Creosote Works of [La.] v. Harp, 215 Miss. 5, 12, 60 So.2d 514, 517 (1952). These questions are for the jury to decide under proper instructions of the court as to the applicable principles of law involved. Smith v. Walton, 271 So.2d 409, 413 (Miss.1973). Foreseeability and breach of duty are also issues to be decided by the finder of fact once sufficient evidence is presented in a negligence case. [Am.] [Nat’l]. Ins. Co. v. Hogue, 749 So.2d 1254, 1259 (Miss.Ct.App.2000).

Hankins Lumber Co. v. Moore, 774 So.2d 459, 464 (¶ 11) (Miss.Ct.App.2000); see also Rogers, 22 So.3d at 1225 (¶ 23) (quoting Davis v. Christian Bhd. Homes of Jackson, Miss., Inc., 957 So.2d 390, 410 (¶ 48) (Miss.Ct.App.2007)) (noting that “the issue of proximate cause is generally an issue for a jury to decide[.]”).

¶ 23. Indisputably, Holleman was the one who applied the Neosporin, and but for Holleman’s application of the ointment, Ladner would never have had an allergic reaction, had to lay down for two hours, and fallen when Holleman asked Ladner to get up. Furthermore, the record reflects Ladner asked Holleman to call an ambulance at least three times, but Holleman failed to do so despite these repeated requests. In my view, a jury could find that Holleman breached his duty because his failure to call an ambulance was not reasonable under these circumstances. See Dyche v. Vicksburg, S. & P.R. Co., 79 Miss. 361, 30 So. 711, 712 (1901) (noting that the duty of a person who voluntarily assumes care of an injured person is one of “common humanity, and the jury should [be] allowed to pass upon whether or not it performed this duty”). Further, Mississippi law is clear that Ladner must be “given the benefit of the doubt as to the existence of a material fact.” Lawson, 75 So.3d at 1027 (¶ 6). Had Holleman called an ambulance, a jury could conclude that Ladner would not have fallen because she would have been under the care of paramedics or other medical personnel. Further, even though the parties dispute the exact cause of Ladner’s fall, issues of proximate causation are questions for the jury. Hankins Lumber Co., 774 So.2d at 464 (¶ 11). As such, I would reverse the circuit court’s grant of summary judgment and remand for a trial on the merits.

IRVING AND GRIFFIS, P.JJ., JOIN THIS OPINION.


author: IRVING, P.J.,

text:
    Erica BROWN, Appellant v. PANOLA COUNTY DEPARTMENT OF HUMAN SERVICES, Appellee.
    No. 2010-CP-01874-COA.
    Court of Appeals of Mississippi.
    June 19, 2012.

      Erica Brown, appellant, pro se.
    Sara Harvey Roberts, attorney for ap-pellee.
    Before IRVING, P.J., ISHEE and RUSSELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On October 11, 2010, the Panola County Chancery Court terminated the parental rights of Erica Brown and Steve Hughes. Feeling aggrieved, Erica appeals and argues that the chancery court erred in terminating her parental rights.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Erica is the biological mother of Josh Brown and Kyle Hughes. Steve is the legal father of Kyle and the putative father of Josh. Josh was born on July 26, 2005, and Kyle was born on June 25, 2004. On September 19, 2005, Erica took Josh to his primary-care physician, complaining that he was “fussy” and had a fever. Josh had a seizure in the physician’s office and was airlifted to Le Bonheur Children’s Medical Center in Memphis, Tennessee. The doctors’ evaluations of Josh revealed cerebral edema, retinal hemorrhage, femur fractures, and a left-tibial fracture. Based on Josh’s injuries, the hospital contacted the Panola County Department of Human Services (DHS).

¶ 4. DHS conducted an investigation and determined that Josh and Kyle should be removed from Erica’s care. Additionally, criminal charges were brought against Erica based on Josh’s injuries. However, Erica’s trial resulted in a hung jury, and she was never tried again.

¶ 5. On July 21, 2006, the Panola County Youth Court adjudicated Josh and Kyle, along with three of their siblings, neglected. Consequently, Josh and Kyle were placed in foster care. In accordance with Mississippi Code Annotated section 43-15-13(4) (Rev.2009), DHS met with Erica and developed a service agreement. The service agreement required Erica to attend parenting classes, obtain psychological testing, attend counseling sessions, submit to random drug testing, seek employment, maintain a stable home, and attend monthly visits with Josh and Kyle. DHS informed Erica that reunification with Josh and Kyle was contingent upon successful completion of the service agreement. However, Erica refused to sign the service agreement and failed to fully comply with its requirements. As a result, the youth court determined that reunification with Erica was not in Josh’s and Kyle’s best interests and authorized the initiation of termination proceedings.

¶ 6. DHS filed a petition to terminate Erica’s parental rights based on several grounds, including her alleged abuse of Josh, her failure to comply with the service agreement, and the erosion of her relationship with both Josh and Kyle. On July 22, 2010, the chancery court held a hearing on the petition. Amanda Pittman, a DHS social worker, testified that while Erica called at least once a month to schedule visitation with Josh and Kyle, she had missed scheduled visits on more than one occasion. Pittman testified that Erica’s “sporadic” visitation had resulted in the erosion of her relationship with Josh and Kyle.

¶ 7. Pittman further testified that she had met with Erica to develop a service agreement and that Erica knew that Josh and Kyle would not be returned to her unless she fully complied with the plan. According to Pittman, Erica had secured stable housing and had undergone a psychological evaluation, but she had failed to comply with the other requirements of the service agreement. Based on Erica’s “sporadic” visitation and her failure to complete her service agreement, Pittman believed that termination of Erica’s parental rights was in Josh’s and Kyle’s best interests.

¶ 8. Ronald Windsor, the guardian ad litem (GAL), also testified that termination of Erica’s parental rights was in Josh’s and Kyle’s best interests. Windsor testified that he interviewed Erica as part of his investigation, but he admitted that he had never met Josh or Kyle. According to Windsor, he was scheduled to meet the children during one of Erica’s scheduled visitations, but she had cancelled the visit. Windsor testified that Erica lacked the responsibility to be a successful parent. Windsor further testified that the children had bonded with their foster parents and noted that Josh and Kyle had been in foster care longer than they had been in Erica’s care.

¶ 9. Erica, who appeared pro se, denied any responsibility for Josh’s injuries. Additionally, she claimed that she had completed parenting classes and had applied for a part-time job. However, she admitted that she had not provided DHS with documentation of her efforts. Erica testified that she had attended scheduled visitation with Josh and Kyle. She admitted to cancelling visits on occasion, but claimed that she always notified DHS in advance. Finally, Erica testified that she had moved into her grandfather’s home and that his home would provide a stable environment for Josh and Kyle.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 11. Mississippi Code Annotated section 93-15-103(3) (Rev.2004) sets forth the grounds for involuntary termination of parental rights. The party seeking termination of parental rights must prove “at least one of the grounds enumerated” by clear and convincing evidence. S.R.B.R. v. Harrison County Dep’t of Human Servs., 798 So.2d 437, 443 (¶ 24) (Miss.2001). Even where one of the grounds for termination is proven by clear and convincing evidence, the trial court must still consider whether “termination is in the best interest ] of the child.” Id. A trial court’s finding that “the best interest of the [child] favors termination” must be supported by “substantial evidence.” J.C.N.F. v. Stone County Dep’t of Human Servs., 996 So.2d 762, 767 (¶ 17) (Miss.2008).

¶ 12. DHS sought to terminate Erica’s parental rights based on the following grounds:

A parent has been responsible for a series of abusive incidents concerning one or more childrenf.]
[T]he parent fails to eliminate behavior, identified by the child[-]caring agency or the court, which prevents placement of said child with the parent in spite of diligent efforts of the child[-]caring agency to assist the parent[.]
* * *
[T]here is an extreme and deep-seated antipathy by the child toward the parent or ... there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment[.]
The child has been adjudicated to have been abused or neglected and custody has been transferred from the child’s parent(s) for placement pursuant to [Mississippi Code Annotated] [s]eetion 43-15-13 [ (Rev.2009) ], and a court of competent jurisdiction has determined that reunification shall not be in the child’s best interest.

Miss.Code Ann. § 93-15-103(3)(c), (e)(ii), (f) & (h).

¶ 13. On July 21, 2006, the youth court adjudicated Josh and Kyle neglected and ordered that they be placed in DHS custody. DHS placed Josh in foster care and placed Kyle in the care of his paternal grandmother, Hughes. However, after Hughes returned Kyle to DHS, the agency placed him in foster care. In 2008, the youth court determined that reunification with Erica was not in Josh’s or Kyle’s best interests. Based on these facts, there was sufficient evidence to terminate Erica’s parental rights on the basis of section 93 — 15—103(3)(h). However, our inquiry does not end here. We must next consider whether there is substantial evidence to support the chancery court’s finding that termination of Erica’s parental rights was in Josh’s and Kyle’s best interests.

¶ 14. “It is well-established that [an appellate court] will affirm a chancellor’s findings of fact if there is substantial evidence to support them....” J.C.N.F., 996 So.2d at 765 (¶ 10) (citation omitted). “This standard of review is highly deferential to the chancellor,.who has the opportunity to hear all the testimony and observe the demeanor of all witnesses firsthand.” Id. Given the highly deferential standard of review, we cannot say that the chancery court erred in finding that termination of Erica’s parental rights was in Josh’s and Kyle’s best interests.

¶ 15. Prior to seeking termination, DHS attempted to enter into a service agreement with Erica and reunite her with Josh and Kyle. However, Erica refused to sign the service agreement. Nonetheless, DHS continued to work with Erica in an effort reunite her with her children. In fact, DHS did not seek termination of Erica’s parental rights until 2009-almost four years after the children were removed from her care. During that time, Erica had numerous opportunities to sign a service agreement with DHS and comply with its terms, yet she failed to do so. Based on Erica’s failure to implement a service agreement with DHS, the youth court determined that reunification was not in Josh’s and Kyle’s best interests.

¶ 16. The chancery court also heard testimony from Pittman and Turner that termination of Erica’s parental rights was in the children’s best interests. Both pointed to Erica’s failure to complete a service agreement or cooperate with DHS as a basis for their conclusions that the children’s best interests favored termination. Additionally, the GAL testified that Erica lacked the responsibility to be a successful parent and opined that termination of her parental rights was in the children’s best interests.

¶ 17. Based on the above, there was substantial evidence to support the chancery court’s finding that termination of Erica’s parental rights was in Josh’s and Kyle’s best interests. Consequently, the chancery court did not err in terminating Erica’s parental rights.

¶ 18. THE JUDGMENT OF THE PA-NOLA COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANO-LA COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.

      . Because of the confidential nature of this case and to protect the privacy of the minor children involved, we have used fictitious names for the minor children and their family members.

      . Steve did not appeal the chancery court’s judgment.

      . As a result of his injuries, Josh is confined to a wheelchair, is non-verbal, and will never be able to live independently.

      . DHS did not include a report from its investigation. The only testimony regarding DHS's findings came from its social worker, Tina Turner, who testified that DHS "did an assessment and determined that the children were not safe in the home...."

      . The three other siblings were placed with their respective fathers and were not named in DHS’s petition to terminate Erica's parental rights.

      . In November 2006, DHS placed Kyle in the care of his paternal grandmother, Jane Hughes. However, Hughes later returned Kyle to DHS custody, stating that Erica had failed to provide any financial assistance and that she could not afford to care for him without Erica’s help.

      . Section 43-15-13(4) provides, in pertinent part:
      In the case of any child who is placed in foster care on or after July 1, 1998, except in cases of aggravated circumstances prescribed in [Mississippi Code Annotated] [s]ection 43-21-603(7)(c) or (d), the child’s natural parent(s) will have a reasonable time to be determined by the court, which shall not exceed a six-month period of time, in which to meet the service agreement with the department for the benefit of the child unless the department has documented extraordinary and compelling reasons for extending the time period in the best interest of the child. If this agreement has not been satisfactorily met, simultaneously the child will be referred to the appropriate court for termination of parental rights and placement in a permanent relative's home, adoptive home[,] or a foster/adoptive home.

      . Erica testified that her two other children, ages one and four, also live in the home.

      . The youth court entered orders with its determinations on February 1, 2008, and September 10, 2008, for Kyle and Josh, respectively.