author: MAXWELL, J.,

text:
    Henry E. CURTIS, Appellant v. Wanda L. CURTIS, Appellee.
    No. 2009-CA-01644-COA.
    Court of Appeals of Mississippi.
    March 29, 2011.

      Suzanne Baker Steele, Biloxi, attorney for appellant. ,
    Kelly Michael Rayburn, Gulfport, attorney for appellee.
    Before IRVING, P.J., MYERS and MAXWELL,. JJ.
   MAXWELL, J.,

for the Court:

¶ 1. This appeal challenges the notice provided to Henry Curtis of the post-divorce hearing to divide the equity in the real property Henry owned with his ex-wife, Wanda Curtis. In July 2008, the chancery clerk mailed notice of the October 2008 hearing directly to Henry at the marital residence, where he was still living.

¶ 2. Because Henry and Wanda agreed in their property settlement to divide the property at a later hearing, this issue was an unresolved matter at the time of the divorce. Only service under Mississippi Civil Procedure Rule 5 was required. And because Henry was no longer represented by an attorney due to his attorney’s indefinite suspension from the practice of law, Rule 5 instructed that Henry, not his former attorney, be served. Finding Henry was properly served notice of the property-division hearing, we affirm the chancellor’s property-division award.

¶ 3. At the property-division hearing, the chancellor also heard testimony that Henry had failed to pay his portion of his son’s orthodontist bill. Accordingly, the chancellor awarded Wanda a $1,474 judgment against Henry. Because the property settlement had addressed how the spouses would pay for their child’s doctor bills, this was not an unresolved matter in the divorce. Instead it was-an issue of contempt for failure to comply with the property settlement. Contempt matters require a summons under Rule 81. Finding Henry was not properly summoned under Rule 81, we vacate the award of $1,474.

FACTS AND PROCEDURAL HISTORY

¶ 4. After twelve years of marriage and one child together, Henry and Wanda separated in March 2002. Henry remained at the marital residence, while Wanda and their son moved to rented property. They consented to a judgment of divorce in April 2006, incorporating into the judgment a written property-settlement agreement. The property-settlement agreement disposed of all issues of child custody, child support, and ownership of personal property. But two pieces of real property, including the marital residence, had yet to be appraised. Through the settlement agreement, the parties authorized the chancellor to conduct a hearing, post-appraisal, to divide the equity in the real property. At this later hearing, the chancellor would consider any claims or credits , each spouse might have against the other’s half of the equity, including Wanda’s housing expenses since separation!

¶ 5. In October 2006, Wanda filed for contempt against Henry because he refused to allow an appraisal of the real property. An appraisal was eventually obtained, and the hearing to divide the property was finally set for October 1, 2008. In the interim, in January 2008, the Mississippi Supreme Court indefinitely suspended Henry’s attorney, Walter ‘Wes” Teel, from practicing law. So in July 2008 the chancery clerk mailed the notice of the October 1 hearing directly to Henry at the marital residence, where Henry was still living.

¶ 6. Henry did not appear at the hearing. Wanda testified about the value of the properties and her claims against Henry’s equity. The marital residence appraised for $65,000. The other property appraised for $44,000. Neither property had a lien, resulting in $109,000 in total equity or $54,500 in equity for each spouse. But Wanda had made the $20,000 down-payment on the marital residence using her separate property, a personal-injury settlement. She also paid $30,950 in rent during the four years she and Henry were separated but not yet divorced, while Henry lived in the marital residence for free. Wanda also testified Henry had not paid his half ($1,474) of their son’s orthodontist’s bill.

¶ 7. The chancellor credited Wanda the down-payment and rent — $50,950 total— against Henry’s half of the equity and awarded Wanda both pieces of property. He compensated Henry for his remaining $3,550 in equity by awarding him the mobile home on one of the pieces of property. He also separately awarded Wanda the $1,474 Henry allegedly owed on the unpaid orthodontist bill.

¶ 8. A copy of the resulting November 5, 2008 judgment was mailed to Henry, who filed a petition to reconsider within ten days of entry of the judgment. The chancellor set Henry’s motion to reconsider for hearing on October 30, 2009. During the hearing, Henry testified he was working as a truck driver and was. on the road in early July 2008, when the notice was mailed. He also claimed he had experienced problems receiving his mail at this home.

¶ 9. The chancellor denied Henry’s petition, finding the mailed notice of hearing was sufficient to apprise Henry of the October 1 hearing and that service of the notice was complete upon mailing. The chancellor also found that, through the written property-settlement agreement, the parties had agreed to a future hearing to divide the real property, and Henry should have anticipated a hearing would be set at some point in the future. He further reasoned the mere passage of time since the divorce did not require more than mailed notice.

¶ 10. Henry timely appealed.

DISCUSSION

¶ 11. We find Henry waived his first argument that the 2006 divorce was invalid based on a lack of consent to adjudicate because he failed to present this issue at the trial level. We must, however, consider Henry’s second argument — that he was not properly notified of the October 1, 2008 hearing and, consequently, the chancellor abused his discretion by denying his petition for reconsideration, as it applied to the chancellor’s property division and award of medical expenses.

I. Consent to Adjudicate

¶ 12. On appeal, Henry argues the 2006 divorce decree was invalid because there was no consent to adjudicate, as required -by Mississippi Code Annotated section 93-5-2(3) (Supp.2010).

¶ 13. While we note the record contains a written consent by both parties to a judgment of divorce, incorporating a property-settlement agreement, we find Henry waived the issue of the sufficiency of this consent by not first presenting this issue at the trial level. Ory v. Ory, 936 So.2d 405, 409-10 (¶¶ 9, 11) (Miss.Ct.App.2006) (finding husband waived, challenge to divorce at appeal level after failing to raise issue of divorce’s validity, befpre the chancellor).

¶ 14. In his petition to reconsider, , Henry could have argued the 2006 judgment of divorce.was invalid based on a lack of statutorily required consent. In-stead, he took the position the 2009 final judgment violated the terms of the 2006 judgment of divorce and asked the court to enforce the terms of the property-settlement agreement. The only argument Henry presented during the hearing on his petition to reconsider was that he lacked notice of the October 1 hearing. He did not contest the chancellor’s authority to distribute the real property based on the failure to comply with section 93-5-2(3).

¶ 15. We will not entertain Henry’s argument that the judgment of divorce is invalid simply because Henry is displeased with the property division. See Ory, 936 So.2d at 409 (¶¶8-9). Had Henry requested the chancellor set aside the divorce decree based on a lack of consent and had the chancellor refused, our inquiry would include whether the judgment of divorce conformed with section 93-5-2(3)’s requirements. Id. at 410 (¶ 11). But because the issue of the divorce decree’s validity was not raised before the chancellor, we find this issue is outside of our appellate review. Id. at 409^410 (¶¶ 9,11).

¶ 16. We do point out that it was error, albeit harmless error, for the chancellor to divorce Henry and Wanda without first dividing the equity in the real property. See Rounsaville v. Rounsaville, 122. So.2d 909, 911 (¶¶ 8-9) (Miss.1999) (finding harmless error to grant divorce before adjudicating all matters involving property rights between the parties). Mississippi Code Annotated section 93-5-2 provides:

No divorce shall be granted pursuant to this subsection until all matters involving custody and maintenance of any child of that marriage and property rights between the parties raised by the pleadings have been either adjudicated by the court or agreed upon by the parties and found to be adequate and sufficient by the court and included in the judgment of divorce.

Miss.Code Ann. § 93-5-2(3). Although Henry and Wanda agreed to divide the equity in the real property, they left to the chancellor to adjudicate how much equity each spouse would receive, depending on contingent claims and credits. Based on the statutory language, unsettled property-rights issues should be adjudicated, not just pending adjudication, before a divorce is granted. But as in Rounsaville, we find this error to be procedural and harmless. Rounsaville, 732 So.2d at 911 (¶ 9) (citing Johnston v. Johnston, 722 So.2d 453 (Miss. 1998)). Henry has shown no prejudice from being divorced two-and-a-half years prior to the division of the real property. In fact, Henry benefitted from the delay by being allowed to remain in the marital residence, while Wanda had to pay over $30,000 in rent for which she did not receive credit. And the chancellor refused to credit Wanda any rent payments made after April 2006, the time of divorce.

II. Notice of Hearing

¶ 17. Henry next contends that the chancellor should have granted Henry’s petition for reconsideration and conducted a new hearing because he was not properly notified of the October 1 hearing.

¶ 18. “How a court treats a motion for reconsideration turns on the time at which the motion is served. If the motion is served within ten days of the rendition of judgment, the motion falls under. Rule 59(e) [of the Mississippi Rules of Civil Procedure].” Carlisle v. Allen, 40 So.3d 1252, 1260 (¶ 33) (Miss.2010) (quoting Cannon v. Cannon, 571 So.2d 976, 978 (Miss. 1990)). Because Henry filed his petition ■within ten days of the entry of the judgment, we consider his petition for reconsideration as a motion for new hearing under Rule 59. M.R.C.P. 59.

¶ 19. “An appeal from a denial of a Rule 59 motion may address the merits of the entire underlying proceeding, and review of a trial judge’s denial of a Rule 59 motion is limited to abuse of discretion.” Perkins v. Perkins, 787 So.2d 1256, 1261 (¶ 9) (Miss.2001).

¶20. To succeed on a Rule 59(e) motion, “the movant must show: (i) .an intervening change in controlling law, (ii) availability of new evidence .not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.” Brooks v. Roberts, 882 So.2d 229, 233 (¶ 15) (Miss.2004). We must ask whether it was legal error or manifest injustice to let the October 2008 judgment stand based on the notice provided Henry. Because the award for medical expenses was not part of Wanda claim to the equity in the property, we analyze the property division and the medical expenses separately.

A. The Property-Division Award

¶ 21. On appeal, Henry raises the following three arguments why the mailed notice was insufficient: (1) Rule 5 notice is insufficient because thirty-months had passed between the 2006 judgment of divorce and the 2008 hearing; (2) the chancery court failed to comply with Rule 5 because notice was not sent to Henry’s attorney; and (3) Henry proved at the reconsideration hearing that he did not receive actual notice, rebutting the presumption of completed service.

¶ 22. We begin by noting the property-division hearing was a Rule 5 and not a Rule 81 matter. Com/pare M.R.C.P. 5 with M.R.C.P. 81. In civil litigation, once parties are initially served and the trial court gains personal jurisdiction over them, Rule 5 provides expedited procedures for serving subsequent pleadings, orders, and notices, including the notice of hearing mailed to Henry in July 2008. M.R.C.P. 5(a) & cmt. (noting Rule 5 “presupposes that the court has already gained jurisdiction over the parties”). In domestic matters, the chancery court retains jurisdiction over the parties in matters concerning the divorce, even after the divorce is final. Powell v. Powell, 644 So.2d 269, 274 fn. 4 (Miss.1994). However, our rules recognize that new disputes may arise between divorced couples that require special procedures, provided in Rule 81, for notifying the other party of the new dispute. Carroll v. Carroll, 976 So.2d 880, 885 (¶ 9) (Miss.Ct.App.2007) (“A summons under M.R.C.P. 81 serves to provide due process and notify a party of a new dispute.”) (citing Sanghi v. Sanghi, 759 So.2d 1250, 1254 .(¶ 16) (Miss.Ct.App.2000)). But in contested matters that have yet to be resolved, Rule 5(b) notice “is all that is required for setting a hearing in the process for reaching the final judgment.” Id.

¶ 23. Although the Curtises divorced in April 2006, how the equity in the property was to be divided remained unresolved. Thus, the October 1, 2008 hearing did not concern a new dispute, requiring Rule 81 notice. Instead, both Henry and Wanda were aware of the impending hearing, having agreed in the property-settlement agreement to ■ hold a hearing after the properties were appraised. Henry cannot rely on the amount of time that passed between the 2006 property-settlement agreement and 2008 hearing to support his argument Rule 5 notice was insufficient. The record indicates Henry was at' least partially responsible for the delay in the appraisal and in dividing the property. Henry enjoyed full possession of the marital home for over two years post-divorce and knew the day was coming when the equity would, be divided. Because the property division was an on-going matter and because Henry was aware of the need for a hearing on this issue, we find Rule 5 the appropriate procedure to provide Henry notice of the hearing.

¶ 24. Rule 5(b)(1) directs:

Whenever under these rules service is required or permitted to be made upon a party who is represented by an attorney of record in the proceedings, the service shall be made upon such attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him; or by transmitting it to him by ¿lectronic means; or by mailing it to him at his last known address, or if no address is known, by leaving it with the clerk of the court, or by transmitting it to the clerk by electronic means.... Service by mail is complete upon mailing.

M.R.C.P. 5(b)(1).

¶25. Because Rule 5(b) requires notices be mailed to a party’s attorney, Henry argues the chancery, clerk violated Rule 5 by mailing the notice to him instead of Teel. But under the circumstances, the opposite is true. Had the chancery clerk sent the notice to Teel, the notice would not have been sufficient. “There are two basic exceptions to the rule that papers be served on the attorney. Under the first, service on a party is valid — indeed it is obligatory — if a party does not have an attorney or if the attorney has ceased to represent the party.” Duckworth v. Strite, 748 So.2d 794, 797 (¶.11) (Miss.Ct.App.1999) (quoting 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and-Procedure § 1145 (1987)). As of January 2008, the date of Teel’s suspension, Henry was no longer represented by Teel. See Telephone Man, Inc. v. Hinds County, 791 So.2d 208, 211-212 (¶¶ 14-16) (Miss.2001) (holding loss of right to practice law in Mississippi prevents attorney from being agent for client). And “[w]hile it is clear that service on a party’s attorney is sufficient, it is equally clear that service upon one not the attorney for the party is not.” Barber v. Barber, 608 So.2d 1388, 1340 (Miss.1992) (further noting notice is only validly served on attorney if attorney represents party in proceeding for which notice is given).

¶26. In Duckworth, notice of hearing sent directly to the defendant was proper because the defendant’s prior counsel had formally withdrawn, and the defendant had not notified the plaintiff that he had retained new representation. Duckworth, 748 So.2d at 797 (¶ 11). This court found the plaintiff “correctly mailed the notice directly to [the defendant] because at the time [the defendant] was not represented by counsel.” Id. at (¶ 12). Henry testified he knew Teel had been suspended. And Teel’s suspension was a matter of public record. Miss. Bar v. Teel, 35 So.3d 1206 (Miss.2008) (ordering Teel’s indefinite suspension from the practice of law in Mississippi). Between the January 2008 suspension and July 2008, when the notice was sent, no other attorney appeared as Henry’s attorney of record. Therefore, the chancery clerk correctly mailed the notice of hearing directly to Henry.

¶27. Finally, Henry argues the chancellor denied his petition for reconsideration because the chancellor erroneously relied on the “postal-acceptance rule,” a concept that specifically applies to insurance law, not chancery matters. According to Henry, he proved at the reconsideration hearing that he had trouble with the delivery of his mail and did not actually receive the notice of hearing, rebutting any presumption that service was complete upon mailing. While the chancellor did discuss at the reconsideration hearing the postman being Henry’s agent, we need not get into the “postal-acceptance rule” to affirm the chancellor’s decision. Puckett v. Stuckey, 683 So.2d 978, 980 (Miss.1993) (finding appellate court not restricted by lower court’s reasoning when right result reached).

¶ 28. Rule 5 is explicit that “[s]ervice by mail is complete upon mailing,” not receipt. M.R.C.P. 5(b). And actual notice was neither required to satisfy Rule 5 nor necessary to comply with federal and state procedural due process requirements. U.S. Const., Amend. 14; Miss. Const., Art. 3, § 14; M.R.C.P. 5. See Aarco Oil & Gas Co. v. EOG Res., Inc., 20 So.3d 662, 669 (¶ 23) (Miss.2009) (citing Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798 fn. 4, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983)) (noting actual notice is not required to satisfy due process in every instance). What due process did require was “notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Aarco Oil, 20 So.3d at 669 (¶ 22) (quoting Mennonite, 462 U.S. at 795, 103 5,Ct. 2706).

¶ 29. The United States Supreme Court has “repeatedly recognized that mail service is an inexpensive and efficient mechanism that is reasonably calculated to provide actual notice.”' Tulsa Prof l Collection Servs., Inc. v. Pope, 485 U.S. 478, 490, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988). The chancery clerk testified at the reconsideration hearing that she mailed the notice of hearing to Henry’s residence more than two months prior to the hearing. While Henry testified he was often away from home for long stretches driving his truck, he was afforded a sufficient window of time prior to the hearing to find the notice when he returned home between jobs. Further, while Henry testified he experienced problems with mail delivery to his home, there was no evidence he ever notified Wanda or the chancery clerk about these problems or requested they use another address to send him correspondence. Therefore, we find the notice of hearing mailed to Henry’s last-known addresses more than two months prior to the hearing was reasonably calculated under these circumstances to apprise Henry of the October 1 hearing and provide him an opportunity to be heard.

¶ 30. Because the notice of hearing complied with both Rule 5 and due-process requirements, we find no abuse of discretion in the chancellor’s denying Henry’s petition to reconsider the property award and, therefore, affirm.

B. The Medical-Expense Award

¶ 31. Although the hearing to determine the parties’ equities in the real property was proper, the chancellor’s permitting Wanda to present evidence of their child’s unpaid orthodontist bill and awarding Wanda $1,427' against Henry was not.

¶ 32. W^nda claims the expense was incurred pre-divorce and related to a temporary custody order issued prior to the 2006 judgment of divorce and property-settlement agreement. But nothing in the record supports this contention. What the record does contain is the property-settlement agreement. And in paragraph (D)(6) of the property settlement, Henry had agreed to pay half of his son’s doctor and hospital bills not covered by insurance. Therefore, unlike the real-property division, the issue of Henry’s obligation toward his son’s medical expenses was not a contested matter yet to be resolved. Carroll, 976 So.2d at 885 (¶ 9). Instead, Henry had agreed in the divorce judgment to pay Wanda half of the bill. At the October 1 hearing, Wanda was not presenting a claim or credit against the equity in the property but was instead attempting to enforce the divorce judgment requiring Henry to pay half the orthodontist bill.

¶ 33. Enforcing compliance with a court order is a matter of civil contempt. Dennis v. Dennis, 824 So.2d 604, 608 (¶ 8) (Miss.2002) (describing a civil contempt order as one that’s “primary purpose is to enforce the rights of private party litigants or enforce compliance with a court order”). As such, the. medical-expenses issue required service under Rule 81. M.R.C.P. 81(d). See Chasez v. Chasez, 935 So.2d 1058, 1061 (Miss.Ct.App.2005) (holding Rule 81 applies to a contempt issue arising in domestic matter).

¶ 34. A Rule 81 summons must contain “a statement notifying a party of the time and place for the hearing, and that no answer is needed.” Chasez, 935 So.2d at 1061 (¶ 9) (citing Sanghi v. Sanghi, 759 So.2d 1250, 1256 (¶ 28) (Miss.Ct.App. 2000)). In Chasez, after the mother filed a motion for contempt for the father’s failure to pay his child-support obligation, the mother’s attorney mailed the notice of hearing to the father, who was not represented by an attorney. Chasez, 935 So.2d at 1060 (¶ 4). “While these ‘notices’ did contain most of the required information, they did not contain a statement that the respondent was not required to respond in writing.” Id. at 1061 (¶ 10); see Sanghi, 759 So.2d at 1256 (¶ 28). This court found the notices “were clearly not Rule 81 summonses.” Id.

¶ 35. Here, as in Chasez and Sanghi, there was no statement that Henry was not required to respond in writing. Moreover, because there was no petition for contempt filed, there was no petition for contempt attached to the notice of hearing that would have notified Henry that Wan-da was seeking a judgment for the unpaid bill. Unlike the property-division issue, which Henry knew was an “old dispute” still pending for resolution before the chancellor, Henry had no reason to know from the notice of hearing about the “new dispute” over the orthodontist bill. Carroll, 976 So.2d at 885 (¶ 9) (Rule 81 summons not only satisfies due process but also notifies party in a domestic matter of a new dispute.). Therefore, the notice of hearing was not reasonably calculated to apprise Henry of his opportunity to contest an award for unpaid medical expenses. Aarco Oil, 20 So.3d at 669 (¶.22) (quoting Mennonite, 462 U.S. at 795, 103 S.Ct. 2706).

¶ 36. Because it was a clear error to hear evidence on the medical-expense issue and award Wanda $1,474 without properly summoning Henry, the chancellor should have granted Henry’s motion to reconsider on this issue. Instead of reversing and remanding on this issue, we vacate the award as no motion for contempt was ever made, and no Rule 81 summons was properly given.

CONCLUSION

¶ 37. Mississippi’s civil procedure rules regarding service are designed to provide litigants due process. In an unresolved domestic matter, where the parties have already been properly summoned before the chancery court and are aware of the on-going nature of the litigation, Rule 5 provides an efficient means of providing notice of hearing. But when, post-divorce, an ex-spouse brings before the chancery court an issue that had been resolved by the divorce judgment, Rule 81 specific summons requirements are designed to provide notice that a new dispute has arisen.

¶ 38. Under the unique facts of this case, we find that while service under Rule 5 was sufficient to provide notice of the hearing to divide the equity in the marital real property, service of a summons under Rule 81 was required before conducting a hearing on unpaid medical expenses for the minor child. We, therefore, affirm the denial of Henry’s petition to reconsider as it concerns the property division award but vacate the award of $1,474 for medical expenses.

¶ 39. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS AFFIRMED IN PART AND VACATED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE PARTIES.

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

      . Mississippi Code Annotated section 93-5-2 (Supp.2010) allows divorcing couples to agree in writing to all child-custody, child-maintenance, and property-rights issues, subject to the chancellor finding the provisions of their agreement adequate and sufficient. Massingill v. Massingill, 594 So.2d 1173, 1176 (Miss.1992). But if the parties cannot agree on particular child-custody, child-maintenance, or property-rights issues, they may consent to be divorced and permit the chancellor to decide the particular issues not agreed upon. Id. at 1176-77. Such consent: (1) must be in writing and signed personally by both parties, (2) must state that the parties voluntarily consent to permit the court to decide the issues upon which the parties cannot agree, (3) must specifically set forth the issues upon which the parties are unable to agree, and (4) must state that the parties understand that the decision of the court shall be a binding and lawful judgment. Id. at 1177.

      . We nevertheless affirmed the chancery court based on the father’s failure to contest insufficiency of service of process when he appeared before the chancery court. Chasez, 935 So.2d at 1062 (¶ 12).


source: Caselaw Access Project

license: Public Domain

text:
    Mikel WHITE, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01574-COA.
    Court of Appeals of Mississippi.
    April 12, 2011.

      Mikel White, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, Scott Stuart, Jackson, attorneys for appellee.
    Before IRVING, P.J., MYERS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. In 1981, the Madison County Circuit Court sentenced Mikel White to life imprisonment after a jury found him guilty of capital murder. White later pled guilty to several other crimes. In 2008, he filed a pro se motion for post-conviction relief (PCR), which the circuit court dismissed as a successive writ. Because his PCR motion is successive-writ barred, time-barred, and without merit, we affirm the circuit court’s judgment.

FACTS

¶ 2. From our review, it appears that on June 18, 1980, White was indicted separately for aggravated assault and armed robbery. He was also charged with capital murder with a different armed robbery serving as the underlying felony. The capital-murder case proceeded to trial, and the jury convicted White. Because the jury could not agree on the death penalty, the circuit judge sentenced White on December 23, 1981, to life imprisonment. It appears White later pled guilty to the remaining crimes. The circuit judge sentenced him to fifteen years for aggravated assault and thirty years for each armed-robbery charge. The sentences were ordered to run consecutively for a total of seventy-five years.

¶ 3. Since his 1981 conviction, White has filed at least three PCR motions prior to the motion now under our review. On July 30, 2008, he filed the present PCR motion, arguing that he had received ineffective assistance of counsel during his capital-murder trial. The circuit court summarily dismissed this motion finding it barred as a successive writ.

STANDARD OF REVIEW

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

DISCUSSION

¶ 5. White argues his attorney was ineffective because he: (1) failed to conduct an independent investigation into the State’s case against him, (2) did not present his defense that he was under the “strong domination” of another person, (3) limited his defense to a strategy designed to avoid the death penalty, (4) neglected to instruct him on the applicable law to his defense during pretrial preparation, and (5) failed to pursue a fair sentence.

I. Procedural Bars

¶ 6. Under the Uniform Post-Conviction Collateral Relief Act, successive motions are generally barred from our review. Miss.Code Ann. § 99-39-23(6) (Supp.2010). And a three-year limitations period applies to claims for relief under the UPCCRA. Miss.Code Ann. § 99-39-5(2) (Supp.2010).

¶ 7. White’s present PCR motion is a successive writ because it is at least his fourth PCR motion. He has also alleged in a prior PCR motion, the- exact same issue asserted in, this appeal — ineffective assistance of counsel. -Further, because he is challenging a 1981 conviction, his PCR motion was filed well outside the three-year statute of limitations.

¶ 8. So we look to see whether an exception to these procedural bars applies. The burden falls on the movant to show he has met a statutory exception. Adams v. State, 954 So.2d 1051, 1053 (¶ 7) (Miss.Ct.App.2007) (citing Jackson v. State, 860 So.2d 653, 661 (¶ 16) (Miss.2003)). “[Errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRÁ.” Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss.2010).

II. Exception for Newly Discovered Evidence

¶ 9. The only statutory exception asserted by White is one of newly discovered evidence. The successive-writ bar does not apply where a PCR movant shows “he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the-conviction or sentence.” Miss. Code Ann. § 99-39-23(6). • There is also a newly-discovered-evidence exception to the three-year statute of limitations that is, in substance, identical to this provision. See Miss.Code Ann. § 99-39-5(2).

¶ 10. White contends he was under the “strong domination” of another person during the commission of his crimes. And his claim centers on the allegation that he has “new” evidence to prove it. The alleged “new” evidence includes the testimony of family members. However, he neither attached their supporting affidavits to his PCR motion, nor does he explain how the “new”- evidence was not reasonably discoverable at the time of trial, or how it would be practically conclusive of his innocence. We find these unsupported assertions fall far short of meeting the requirements of the statutory exception for newly discovered evidence.

III. Ineffective Assistance of Counsel

¶ 11. The procedural bars of the UP-CCRA do not apply to “errors affecting fundamental constitutional rights.” Rowland, 42 So.3d at 507 (¶ 12). But mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar. Chandler v. State, 44 So.3d 442, 444 (¶8) (Miss.App.2010). “There must at least appear to be some basis for the truth of the claim before the [procedural bar] will be waived.” Id. (emphasis added).

¶ 12. To prevail on a claim of ineffective assistance, White must demonstrate: (1) his trial attorney’s performance was deficient, and (2) this deficiency deprived him of a fair trial. Beene v. State, 910 So.2d 1152, 1155 (¶ 10) (Miss.Ct.App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We find White fails to make the required showing on either prong. White has not ensured that the record is adequate to support his assignments of error, as is his responsibility. Austin v. State, 971 So.2d 1286, 1287 n. 1 (Miss.Ct.App.2008). And he relies merely on his own affidavit and unsupported allegations in his brief, which the Mississippi Supreme Court has found insufficient to establish an ineffective-assistance-of-counsel claim. See Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

¶ 13. Since there is no support for his claimed exceptions to the several procedural bars, we affirm.

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

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

      . Only one of the charging documents, the capital-murder indictment, appears in the official record. The remaining dates cited here come from a 1996 order dismissing one of White’s prior PCR motions.


text:
    MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellant v. Paul R. PENNINGTON, Jr., Appellee.
    No. 2009-CC-01595-COA.
    Court of Appeals of Mississippi.
    April 12, 2011.

      Office of the Attorney General by Jane L. Mapp, David K. Scott, Jackson, attorneys for appellant.
    John W. Whitten, Jr., Lee Turner, attorneys for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. The Employee Appeals Board (EAB) cannot alter an agency’s employee-discipline decision when the agency properly followed its regulations. But the EAB can reinstate a dismissed employee who has shown the acts leading to his termination did not occur. The Mississippi Department of Corrections (MDOC) dismissed its employee, Paul Pennington Jr., claiming he had used inmates to construct a deer stand on the grounds of the Mississippi State Penitentiary (Parchman) and then lied about it to investigators. Pennington appealed to the EAB, which reinstated him, finding he had met his burden to show the evidence did not support the MDOC’s allegations. The Hinds County Circuit Court affirmed the EAB’s decision. Because we find the EAB’s decision was supported by substantial evidence, we affirm the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. For more than ten years, Pennington worked for the MDOC’s Inmate Legal Assistance Program (ILAP) at Parchman. In November 2007, someone tipped off MDOC’s Corrections Investigation Division (CID) that he was building a deer stand behind the ILAP building.

¶ 3. Pennington admitted to CID investigators that he was building and painting a deer stand on Parchman’s grounds, which he intended to place on his hunting land. He explained he was using his own tools, was not working on the stand while on the clock at work, and had not used inmate labor.

¶ 4. The CID enlisted a polygraph examiner to question Pennington about the deer stand. The CID also questioned inmates. One inmate, Alvin Rochelle, who had green paint on his hands at the time of the interview, initially told investigators he was helping Pennington paint the deer stand. However, he later recanted and refused to sign a statement admitting he had helped with the deer stand.

¶ 5. After an administrative hearing, the MDOC sent Pennington a Notice of Termination of Employment. The notice informed Pennington he was being dismissed because the MDOC found Pennington guilty of the following Group III offense:

An act or acts of conduct occurring on or off the job which are plainly related to job performance and are of such nature that to continue the employee in the assigned position could constitute negligence in regard to the agency’s duties to the public or to other state employees.

The notice specifically charged Pennington with (1) directing and/or allowing two inmates to construct and paint a deer stand on Parchman’s grounds- and (2) providing false information to CID’s investigators about using his own tools, not working while on the clock, and not having inmates assist him with the stand.

¶ 6. Pennington appealed to the EAB, which conducted a de novo hearing before Hearing Officer Faltón Mason. Pennington testified he did all of the work -on the deer stand himself, with his-own tools, and without inmate help. The MDOC’s polygraph examiner testified that the polygraph results indicated Pennington was not being completely truthful. Pennington called Rochelle, who had initially implicated Pennington during the CID’s investigation. Rochelle explained that he got the green paint on his hands while painting a shelving unit. He testified that when he tried to correct his statement to make clear he did not work on the stand the CID told him that he would receive a rules'-violation report for lying. Pennington also called his supervisor. She testified that she was never contacted during the CID’s investigation. And if she had been, she would have recommended, even if the CID’s allegations were true, that Pennington at most be suspended, not terminated.

¶ 7. Officer Mason found Pennington sustained his burden of proof to show the MDOC’s accusations were not supported by substantial evidence. Officer Mason based his findings on testimony from the hearing, the inconclusiveness of the polygraph examination, and the CID’s failure to interview Pennington’s immediate supervisor. Officer Mason reinstated Pennington but determined some punishment was in order because Pennington had violated security procedures by bringing his personal tools to Parchman. Officer Mason denied him back pay, which essentially amounted to a three-month suspension.

¶ 8. The full EAB affirmed Officer Mason’s decision to reinstate Pennington without back pay. The MDOC appealed to the Hinds County Circuit Court, which found the EAB’s decision was supported by substantial evidence. The MDOC timely appealed the circuit court’s judgment.

LAW

A. Scope of the EAB’s Authority

¶ 9. The MDOC argues the EAB had no authority to reduce Pennington’s punishment because Pennington’s termination was permitted by agency rules and regulations, which allow for dismissal of an employee who commits a Group III offense.

¶ 10. Mississippi Code Annotated section 25-9-131(1) (Rev.2010) gives the EAB authority to conduct a de novo review of an agency’s adverse employment decision. The EAB may modify the decision but cannot increase the severity of the punishment. Id. However, the EAB’s statutory authority is “tempered by the EAB’s own rules.” Miss. Dep’t of Human Servs. v. McNeel, 869 So.2d 1013, 1017 (¶ 18) (Miss.2004) (citing Johnson v. Miss. Dep’t. of Corr., 682 So.2d 367, 370 (Miss.1996)). The EAB must also comply with State Personnel Board Rule 10.44.22(B) (Rev. 1999) — formerly EAB Rule 20(b) — that restricts the EAB’s authority to modify an agency’s decision “if the personnel action taken by the responding agency is allowed under said policies, rules and regulations[.]” McNeel, 869 So.2d at 1017 (¶ 18).

¶ 11. A dismissed employee has the right to appeal his dismissal to the EAB. Miss.Code Ann. § 25-9-131(1). The burden of proof is on the appealing employee. Miss.Code Ann. .§ 25-9-127(1) (Rev.2010). The employee must “furnish evidence that the reasons stated in the notice of dismissal or action adversely affecting his compensation or employment status are not true or are not sufficient grounds for the action taken[.]” Id.

¶ 12. The circuit judge in this case correctly summed up the scope of the EAB’s authority. The EAB may only modify a decision if it concludes: (1) the agency did not act in accordance with published policies, rules, and/or regulations; (2) the employee was punished too severely; or (3) the employee met his burden of proof showing that the alleged acts that led to his termination did not occur. Miss.Code Ann. §§ 25-9-127(1); -131(1). See McNeel, 869 So.2d at 1017 (¶ 18). Therefore, if the EAB found Pennington, had proved the acts alleged by the MDOC did not occur, the EAB had statutory authority to reinstate Pennington, regardless of the MDOC’s strict adherence to its agency rules. McNeel, 869 So.2d at 1019 (¶ 23).

B. Scope of Judicial Review

¶ 13. Although this case involves two agency decisions — (1) the MDOC’s termination and (2) the EAB’s reinstatement— judicial review is limited to the record before the EAB hearing officer. Miss. Code Ann. § 25-9-132(2) (Rev.2010). See Miss. Dep’t of Corr. v. Smith, 883 So.2d 124, 129 (¶ 14) (Miss.Ct.App.2004). The purpose of the review is “to determine if the action of the employee appeals board is unlawful for the reason that it was: (a) Not supported by any substantial evidence; (b) Arbitrary or capricious; or (c) In violation of some statutory or constitutional right of the employee.” ¡Miss.Code Ann. § 25-9-132(2).

¶ 14. Officer Mason found the evidence at the EAB hearing did not support the MDOC’s allegations of a Group III offense. See Miss. Dep’t of Corr. v. Harris, 831 So.2d 1190, 1193 (¶ 15) (Miss.Ct.App.2002) (role of hearing officer to determine whether employee showed agency’s decision was incorrect). Our inquiry turns on whether the EAB’s decision affirming Officer Mason’s reinstatement of Pennington was supported by substantial evidence. Smith, 883 So.2d at 128-30 (¶¶ 14-17) (inquiring whether the EAB’s decision was supported by substantial evidence, as opposed to searching for substantial evidence to support the employing agency’s original decision); see McNeel, 869 So.2d at 1018 (¶ 19) (quoting Delta CMI v. Speck, 586 So.2d 768, 773 (Miss.1991)) (defining “substantial evidence” as “relevant evidence as reasonable minds might accept as adequate to support a conclusion”).

DISCUSSION

¶ 15. We find this case similar to McNeel. In McNeel, the EAB affirmed the same hearing officer’s finding that the Mississippi Department of Human Services’ termination decision was not supported by the substantial weight of the evidence. McNeel, 869 So.2d at 1018 (¶¶ 20-21). Like the MDOC in this case, the MDHS argued its decision to terminate its employee could not be reversed because it had followed its rules and regulations. Id. at 1019 (¶ 23). But the Mississippi Supreme Court affirmed the EAB’s reinstatement of the employee because the “record clearly supported] the hearing officer’s findings that MDHS’s allegations [were] not supported by substantial evidence.” Id. (affirming order to reinstate employee with back pay).

¶ 16. In the case before us, Officer Mason held that the MDOC’s stated reasons for Pennington’s Group III offenses were not supported by substantial evidence. He specifically found Pennington met his burden of proof by showing he neither used inmates to build the deer stand nor lied to investigators. In reaching this decision, Officer Mason found both Pennington’s and his supervisor’s testimony credible. Officer Mason also noted his skepticism of the CID’s version of its interview with two inmates, ■ who both ultimately refused to sign written statements, much less testify that they worked on the deer stand. Finally, Officer Mason was not persuaded by the MDOC’s polygraph results, which he found inconclusive on the charge that Pennington lied to the CID.

¶ 17. As in McNeel, the EAB was not bound by the MDOC’s decision merely because the MDOC followed its rules and regulations. Instead, it had the authority to consider Pennington’s claim that the MDOC’s basis for the termination did not occur. Because we find the EAB’s decision is supported by substantial evidence, we uphold the circuit court’s affirmance of Pennington’s reinstatement without back pay.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . The current version of this EAB policy is found in Mississippi State Personnel Board Employee Appeal Board Rule XXIV(B) (Rev. March 1, 2010).


author: CARLTON, J.,

text:
    Isaac CHAMBERS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00321-COA.
    Court of Appeals of Mississippi.
    April 12, 2011.

      Isaac Chambers, Appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Isaac Chambers appeals the Wilkinson County Circuit Court’s denial.of his motion for post-conviction relief. Chambers asserts that: (1) his guilty plea was not entered voluntarily, knowingly, or intelligently; (2) the circuit court did not grant him an evidentiary hearing before it dismissed his motion for post-conviction relief; and (3) his counsel was ineffective. Finding no error, we affirm.

FACTS

¶ 2. In July 2007, a grand jury indicted Chambers for two counts of aggravated assault and one count of aggravated assault as an accessory after the fact. On October 29, 2007, Chambers pled guilty to two counts of simple assault. He also pled guilty to possession of a Schedule II controlled substance — cocaine—in an amount more than ten grams but less than thirty grams. On November 1, 2007, the circuit judge sentenced Chambers to six months in the Wilkinson County Jail for each count of simple assault, with the sentences to run consecutively. On the charge for possession of cocaine, the circuit judge sentenced Chambers to serve a term of twenty years in the custody of the Mississippi Department of Corrections, with this sentence to be served concurrently with his sentence for the two counts of simple assault.

¶ 3. On July 13, 2009, Chambers filed a motion for post-conviction relief. The circuit judge denied this motion, and she filed the order denying relief on December 15, 2009. A notice of appeal regarding this order does not appear in the record; however, we note that Chambers filed a “Notice of Out of Time Appeal” on February 16, 2010, claiming that he did not learn of the circuit court’s action denying his motion for post-conviction relief until February 3, 2010.

¶ 4. On March 29, 2010, the circuit judge issued an order in response to Chambers’s notice of appeal regarding both his motion for post-conviction relief and his affidavit to proceed in forma pauperis. We find that the language in this order by the circuit court granted Chambers’s notice for appeal and allowed him to proceed in for-ma pauperis; therefore, the order is sufficient to provide this Court with jurisdiction. Chambers now appeals the circuit court’s denial of his motion for post-conviction relief.

STANDARD OF REVIEW

¶ 5. Our standard of review for a denial of a motion for post-conviction relief is well established. We will not reverse the trial court’s judgment unless we find that the court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002) (citing Kirlc-sey v. State, 728 So.2d 565, 567 (¶ 8) (Miss. 1999)). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

I. Guilty Plea

¶ 6. Chambers contends that at the time of the plea hearing, he was under the influence of medication; therefore, he did not knowingly, voluntarily, and intelligently enter his guilty plea. Chambers claims that on the morning of his plea hearing, he ingested more than the prescribed amount of Zoloft, which impaired his mental state and affected his judgment. Chambers argues that his assertions that he had been in and out of mental hospitals in the past and had attempted to kill himself while in jail provide support for his claim of an impaired mental state. However, outside of his own assertions, Chambers provides no evidence or support in the record for the claim that he was mentally impaired at the time of the plea hearing.

¶ 7. In determining whether the entry of a plea of guilty was properly accepted by the trial court, we are bound by the rule that the guilty plea must be entered voluntarily and intelligently. Goss v. State, 730 So.2d 568, 573 (¶ 20) (Miss.1998). The defendant must be advised of the nature of the crime charged and the consequences of the guilty plea. Id.

¶ 8. Although “[i]t is the responsibility of the appellant to designate the record pursuant to Rule 10(b) of the Mississippi Rules of Appellate Procedure in a manner sufficient to allow this Court to review the appellant’s issues[,]” the full plea colloquy, among other relevant documents, does not appear in the record before us. Austin v. State, 971 So.2d 1286, 1287 n. 1 (Miss.Ct. App.2008). However, in its order denying Chambers’s motion for post-conviction relief, the circuit court quoted extensively from the plea colloquy. Chambers also appears to have attached an excerpt from the plea hearing to his brief. The dialogue from the plea colloquy, which we find transcribed in the circuit court’s order, shows that Chambers admitted to taking depression medication on the morning of the plea hearing. The circuit judge then explained that to accept his guilty plea, the court must determine whether or not Chambers knowingly, understandably, freely, and voluntarily entered his plea. Chambers acknowledged that he understood, and agreed that he possessed awareness as to his decision to plead guilty. Chambers expressed that his counsel had informed him of the maximum and minimum sentences that he could receive for his offenses, and Chambers stated that he still wanted to enter a plea of guilty. Chambers’s attorney also testified at the plea hearing that Chambers did not appear intoxicated or under the influence of any drugs.

¶ 9. Chambers’s argument regarding the involuntariness of his guilty plea is contradicted by the plea petition. “The plea petition was not an oral statement in open court, but it was a sworn document presumptively prepared with an appreciation of its fateful consequences.” Ward v. State, 879 So.2d 452, 455 (¶ 11) (Miss.Ct.App.2003). Similar to sworn statements made before the court, the plea petition “may be used to discredit post-plea allegations.” Id. Chambers signed his plea petition on October 29, 2009, and he admitted that at the time of signing, he was neither under the influence of any drugs, nor alcohol, nor suffering from any mental disease. Accordingly, this issue lacks merit.

II. Evidentiary Hearing

¶ 10. Chambers also appears to assert that the circuit court erred when it denied his motion for post-conviction relief without granting him an evidentiary hearing. Mississippi Code Annotated section 99-39-9(1) (Supp.2010) provides, among other things, that a motion for post-conviction relief must include (1) a concise statement of the grounds for relief, (2) a sworn statement of those facts within the prisoner’s personal knowledge, and (3) a statement of facts outside of the prisoner’s personal knowledge and how or by whom these facts will be proven. Affidavits of these persons and any supporting documents should also be attached. Id.

¶ 11. Upon receipt of this information, Mississippi Code Annotated section 99-39-11(1) (Supp.2010) requires the circuit judge to examine “[t]he original motion, together with all the files, records, transcripts and correspondence relating to the judgment under attack[.]” If after doing so, it appears that the movant is not entitled to any relief, the circuit judge is authorized to enter an order of dismissal without- conducting an evidentiary hearing. Miss.Code Ann. § 99-39-11(2) (Supp.2010). The decision to deny an evidentiary hearing is a matter within the sound discretion of the circuit court. Stovall v. State, 770 So.2d 1019, 1021 (¶ 8) (Miss.Ct.App.2000).

¶ 12. Chambers argues that he should have been granted an evidentiary hearing based on his claims that “there was no evidence then and there is not evidence now.” He also claims that at the plea hearing, the prosecutor recited the facts of the case from memory and, thus, never presented any actual evidence of Chambers’s guilt. However, the plea colloquy reflects that Chambers admitted his guilt at the plea hearing. In addition, Chambers informed the circuit judge that he possessed full awareness of the consequence of pleading guilty, and he made his plea freely and voluntarily. In the present case, we find that Chambers’s assertions are substántially contradicted by the court record; therefore, the circuit court did not err in' denying an evidentiary hearing.

, III. Ineffective Assistance of Counsel

¶ 13. Chambers also asserts that he received ineffective assistance of counsel at his plea hearing. He submits that his defense counsel.failed to have him undergo a psychological evaluation, which Chambers claims would have shown that he was under the influence of medication at the time of his plea hearing. The record does not reflect that Chambers raised his ineffective-assistance-of-counsel claim with the circuit court. Therefore, we find that this suggestion of error is procedurally barred from being raised for the first time before the appellate court. Foster v. State, 716 So.2d 538, 540 (¶ 7) (Miss.1998).

¶ 14. In spite of the procedural bar, we acknowledge that in order to prove ineffective assistance of counsel, Chambers must prove that: (1) his counsel’s performance was deficient, and (2) the deficiency prejudiced Chambers’s defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). After reviewing the record before us, we cannot say that Chambers’s counsel provided ineffective assistance, and Chambers has failed to provide any affidavits or evidence in support of his claims of ineffective assistance of counsel. See Miss.Code Ann. § 99-39-9(1). The record reflects that his counsel negotiated a plea, counseled with him, and worked on his behalf. Wé also note that from the scant excerpts of the plea colloquy provided in the record, Chambers admitted that he was guilty of possession of cocaine, stated that he had sold drugs, and the drugs at issue were found in his mother’s, car., Chambers claimed that the drugs did not belong to him, but he admitted he had sold them to someone else. The face of the record fails to provide any support to Chambers’s claims of ineffective assistance of counsel, and Chambers failed to provide any supporting affidavits or evidence with his motion herein.

¶ 15. Chambers also appears to assert various other claims for relief in this' appeal. However, after reviewing the circuit court’s order denying Chambers’s motion for post-conviction relief, these issues do not appear to be raised in his motion for post-conviction relief. As stated, the Mississippi Supreme Court has long held that issues not raised below may not be raised on appeal, stating: “Questions will not be decided on appeal which were not presented to the trial court and that court given an opportunity to rule on them. In other words, the trial court cannot be put in error, unless it has had an opportunity of committing error.” Stringer v. State, 279 So.2d 156, 158 (Miss.1973) (citing Boutwell v. State, 165 Miss. 16, 27-28, 143 So. 479, 482 (1932)). Thus, we find any other suggestions of error to be procedurally barred.

¶ 16. We, therefore, find that the circuit court properly denied Chambers’s motion for post-conviction relief.

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

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

      . Only the first page of this motion appears in the record before this Court.


author: LEE, C.J.,

text:
    Andrea Diane McKAY, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00733-COA.
    Court of Appeals of Mississippi.
    April 12, 2011.

      Leslie S. Lee, Jackson, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Andrea Diane McKay was convicted in the Harrison County Circuit Court of murder and sentenced to life in the custody of the Mississippi Department of Corrections.

¶ 2. McKay filed a motion for a judgment notwithstanding the verdict or a new trial, which was denied by the trial court. McKay now appeals, asserting that the evidence was insufficient to support the jury’s verdict. McKay seeks to be resen-tenced for manslaughter or, in the alternative, granted a new trial. Finding no error, we affirm.

FACTS

¶ 3. McKay and Vincent Weathersby, the victim, have two children together, and the couple had been in an on-again-off-again relationship for three years. Although they had separated, McKay and Weathersby lived across the street from one another in Gulfport, Mississippi. They rented houses from the same landlord.

¶ 4. According to McKay, she saw Weathersby in his driveway on April 21, 2008, and went to ask him if their eight-year-old daughter was at his house. McKay and Weathersby began arguing. McKay accused Weathersby of talking about her to their landlord. McKay testified that she was standing on the passenger’s side of Weathersby’s van, and Weathersby was sitting in the driver’s seat. According to McKay, Weathersby came around to the passenger’s side of the van, pushed McKay to the ground, and ordered her to get out of his yard. McKay’s sixteen-year-old daughter got involved in the altercation. McKay claims that she became angry because Weathers-by hit her daughter in the face. McKay ran across the street to her house and returned with a two-prong barbecue fork in her hand. She intended to stab Weath-ersby with the fork, but she punctured one of Weathersby’s tires instead. McKay then ran back to her house. She returned to Weathersby’s yard once again and picked up a steak knife off the ground near Weathersby’s van. Weathersby was standing in the doorway to his house when McKay came at him with the knife. She stated her intention was to cut him, but she unintentionally stabbed him in the neck. She ran back to her house. Weath-ersby also ran toward McKay’s house, but he collapsed 'in the street. Weathersby stayed in the hospital for ten days before dying as a result of the stab wound to his neck.

¶ 5. McKay turned herself in to the police the day after the stabbing.

STANDARD OF REVIEW

¶ 6. Our standard of review in regard to challenges to the sufficiency of the evidence is well settled. “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]’ ” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction. Id. However, it is well-settled law that the jury determines the credibility of witnesses and resolves conflicts in the evidence. Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct. App.2003).

DISCUSSION

¶7. McKay argues that she acted in the heat of passion; thus, the evidence supported a conviction of manslaughter rather than murder.

¶8. The jury was instructed on both murder and heat-of-passion manslaughter.

¶ 9. Manslaughter is defined in Mississippi Code Annotated section 97-3-35 (Rev.2006) as follows:

The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.

¶ 10. Murder is defined in Mississippi Code Annotated section 97-3-19 (Rev. 2006) as follows:

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:
(a) When done with deliberate design to effect the death of the person .killed, or of any human being;
(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual....

¶ 11. McKay admits that she intentionally stabbed Weathersby, but she argues that she did not act with deliberate design to kill him. She states that she was angry at Weathersby for hitting her daughter in the face, but she did not want to kill Weathersby, as he was the father of two of her children. The State’s position is that ample time had passed between the argument and the stabbing for the jury to find that McKay had acted with deliberate design.

¶ 12. Leonard Bankston, Weathersby’s friend, testified for the State. He testified that after the initial argument between McKay and Weathersby, McKay and her daughter returned to McKay’s house. McKay then returned to Weathersby’s yard and slashed his tire. Bankston estimated that two-and-one-half to three minutes passed between the time McKay went back to her house until she slashed Weath-ersby’s tire. He testified that McKay then ran back to her house and spoke to her daughter and boyfriend before running back to Weathersby’s house with a knife in her hand. He estimated that two to three minutes passed between these events. Bankston testified that when McKay arrived at Weathersby’s door, Weathersby was knelt down hugging his son and facing the inside of his house. Bankston saw something shiny in McKay’s hand and yelled, “Vincent, watch out.” Bankston stated that he saw McKay make one stabbing motion with the knife before she ran back to her house. Bankston testified that, contrary to McKay’s and her daughter’s testimony, he did not see Weathersby strike McKay’s daughter in any way.

¶ 13. Inekia Johnson, McKay’s daughter, testified that Weathersby hit her approximately five times and pulled her hair. Johnson testified that Weathersby also hit McKay until she fell to the ground, and then he got on- top of her and hit her with both of his hands.

¶ 14. Dr. Paul McGarry, a forensic pathologist, testified that Weathersby exhibited a diagonal wound consistent with being stabbed with a knife blade from an overhead motion. Dr. McGarry opined that Weathersby had died from blood loss and blood accumulation in his lungs caused by the knife wound. Dr. McGarry found no scratches or bruises on Weathersby’s hands.

¶ 15. ‘Whether a homicide is classified as a murder or manslaughter is ordinarily an inquiry to be made by the jury.” Hodge v. State, 823 So.2d 1162, 1166 (¶ 16) (Miss.2002). Viewing the evidence in the light most favorable to the State, we find that the essential elements of the crime of murder were sufficiently proven such that a jury could find McKay guilty beyond reasonable doubt. The jury heard conflicting evidence regarding the altercation between McKay and Weathersby. The jury also heard that several minutes had passed between the initial argument and the stabbing. In order to find McKay guilty of murder, the jury had to determine that she had acted with deliberate design or in a way that was “eminently dangerous to others and evincing a depraved heart....” Miss.Code Ann. § 97 — 3—19(l)(a)—(b). We find that the jury’s decision was supported by the evidence. This issue is without merit.

¶ 16. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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