author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Jermaine PERRY.
    No. 08-1304.
    Court of Appeal of Louisiana, Third Circuit.
    May 6, 2009.

      James C. Downs, District Attorney-9th Judicial District Court, Monique Yvette Metoyer, Assistant District Attorney-9th Judicial District Court, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.
    Timothy D. Shumate, The Shumate Law Firm, LLC, Alexandria, LA, for Defendant/Appellant, Jermaine Perry.
    Jermaine Perry, F.W.C.C. (East Max C-2), Keithville, LA.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

_[/The Defendant, Jermaine Perry, appeals his convictions and sentences of armed robbery and conspiracy to commit armed robbery. We affirm.

ISSUES

We shall consider whether:

(1) the evidence was sufficient to prove guilt beyond a reasonable doubt;
(2) a Daubert hearing should have been conducted on the shirt and footprints; and,
(3) the Defendant’s concurrent sentences of twenty-five years at hard labor for armed robbery and ten years at hard labor for conspiracy to commit armed robbery are excessive.

LAW AND DISCUSSION

A. Sufficiency of the Evidence

Armed Robbery

The analysis for a claim of insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La.1983).

State v. Freeman, 01-997, p. 3 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580.

Furthermore:

|2In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Johnson, 00-1552 (La.App. 5 Cir. 3/28/01) 783 So.2d 520, 527, writ denied, 01-1190 (La.3/22/02), 811 So.2d 921. The question of the credibility of the witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. Id. The credibility of the witnesses will not be re-weighed on appeal. Id.

State v. Dixon, 04-1019, p. 12 (La.App. 5 Cir. 3/15/05), 900 So.2d 929, 936.

The Defendant was convicted of armed robbery and conspiracy to commit armed robbery. Armed robbery is defined in La. R.S. 14:64(A), as follows:

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

Criminal conspiracy is defined in La. R.S. 14:26(A), as follows:

Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.
If the intended basic crime has been consummated, the conspirators may be tried for either the conspiracy or the completed offense, and a conviction for one shall not bar prosecution for the other.

At approximately 1:30 a.m. on July 28, 2004, two employees of the Sonic Drive-In located on McArthur Drive in Alexandria, Louisiana, were robbed as they approached their vehicles. Shania “Pepper” Garner (Pepper), an assistant manager, and Chris Warner, a management-trainee, had just exited the building, and as they separated and walked to their vehicles, two men appeared from the trash pdumpster area and began demanding money. According to Pepper and Chris, the men were in possession of one or more guns.

The males approached Chris first, demanding money and ordering him to the ground. He dropped his work uniform items he had been carrying, as well as the red- or pink-colored “slushie” drink he held. As Chris was forced to the ground, he told the men that he did not have any money but Pepper did. One of the males pressed Chris’ forehead into the concrete and put his knee in his back, while the other male ran towards Pepper. The man on Chris’ back knew Chris’ name even though he wasn’t wearing a name tag. The man told him, “Chris, do not move, we’ll shoot you.”

Pepper was carrying about $1,500.00 in a money bag that she was going to deposit that night. As she handed the money bag to the male who approached her, he struck her in the head with a gun. She fell to the ground, and the men ran. Chris lay on the ground and watched as the men ran. When they left, he ran to assist Pepper who was bleeding from a wound to her forehead. He also called 911.

Neither Chris nor Pepper saw the faces of the men who robbed them. Chris stated that he believed the men’s faces were obscured by white t-shirts tied around them. Pepper said the men were both wearing hats. Pepper stated that the man who hit her with the gun and took the money from her was the shorter, stockier individual. She also testified that one of the men’s voices sounded familiar to her, although she could not identify the voice.

The Defendant, Jermaine Perry, was detained and ultimately arrested within a few hours after the robbery in front of Eddie’s Barbecue, which was near McArthur Drive in the vicinity of the Sonic Drive-In. The Defendant was wearing a white t-shirt that contained pink spots or stains on it. His cousin and co-conspirator, |.,Travis Sewell, had been detained nearby as well. Sewell was found on the other side of McArthur Drive, sitting in the driver’s seat of a Chevrolet Suburban owned by a friend of the Defendant’s family. The Defendant’s wallet and identification were located in the vehicle. The vehicle was found parked very closely behind the business, the Weiner Works.

Sewell testified against the Defendant. He stated that he and the Defendant drove the Suburban and parked behind the Weiner Works so they could watch the Sonic Drive-In and determine if it was feasible to commit the robbery. Sewell, who had worked for the Sonic Drive-In for about three years, knew that night deposits were typically made after closing at approximately 1:30 a.m. or 2:00 a.m. He testified that he waited in the Suburban while the Defendant got out of the vehicle to take a closer look. He denied knowing that the Defendant would commit the robbery that morning and denied participating in the robbery. He claimed to have fallen asleep in the Suburban while waiting for the Defendant to return.

When initially detained, the Defendant gave a false name to the officer questioning him, but when confronted with his identification that had been found in the Suburban, he provided his correct name. He admitted that he and Sewell had parked the Suburban and were watching the Sonic Drive-In, waiting for it to close; however, he claimed that he witnessed other men rob the employees that night.

Melanie Bordelon, an employee of the Ramada Inn located across the street from the Sonic Drive-In, later identified the Defendant from a single photograph and then at trial, as someone who entered the lobby of the hotel, acting suspiciously, shortly after the robbery occurred. She testified that he entered the lobby, dripping with sweat and stating that he wanted to use the ATM machine. He was in the lobby for two to three minutes and watched the police across the street, | ¿¡making inquiring comments about what the police were possibly doing. She claims the Defendant left the lobby within seconds of her calling a security guard to the lobby area. The Defendant attempted to re-enter the lobby soon after, but was unable to because Ms. Bordelon had locked the doors.

Photographs of impressions of footprints in the grass leading away from the Sonic Drive-In were taken by investigating officer, Sergeant Bates, in the hours following the robbery. He testified that the footprint impressions shared “similar class characteristics” with shoes being worn by the Defendant when he was apprehended on the night of the robbery. The money taken during the robbery, the money bag, and any weapons that may have been used were never located.

The evidence clearly establishes all the elements of armed robbery. At trial, Pepper testified that she and Chris were leaving Sonic Drive-In when they were approached by two individuals. One individual instructed Chris to get down on the ground, and the other ordered her to hand over the money, which amounted to about $1,500.00. Pepper testified that after she handed over the bag of money the individual hit her on the head with a gun. The pictures taken by the investigating officer show Pepper bleeding profusely and depict a gash on her forehead about an inch and a half long. Additionally, Chris stated that he also saw a gun during the robbery. Because the sole testimony of the victims is sufficient under Jackson to establish the elements of the crime, the victim’s testimony proved, beyond a reasonable doubt, that an armed robbery occurred. Thus, the real issue before this court is whether the evidence is sufficient to link the Defendant to the armed robbery at Sonic Drive-In.

When a key issue at trial is whether the defendant was the perpetrator of the crime, the State is required to negate any reasonable probability of misidenti-fication in order to carry its burden of proof beyond a reasonable | r,doubt. State v. Blight, 1998-0398 (La.4/11/00); 776 So.2d 1134, 1147. The fact-finder weighs the respective credibilities of the witnesses, and a reviewing court will generally not second-guess those determinations. State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983). However, the touchstone of Jackson v. Virginia is rationality and that “irrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). The trier of fact makes credibility determinations, and may, within the bounds of rationality, accept or reject the testimony of any witnesses. State v. Hampton, 98-0331 (La.4/23/99); 750 So.2d 867, 880.

State v. Bedou, 07-1395, p. 11 (La.App. 4 Cir. 5/14/08), 985 So.2d 821, 827 (quoting State v. Holmes, 05-1248, pp. 8-9 (La.App. 4 Cir. 5/10/06), 931 So.2d 1157, 1162).

In this case, the victims could not identify the robbers but did give a physical description. Pepper testified that the robber with a gun was about her height or a little bit taller and of stocky build. Chris testified that one robber was shorter and stockier than him, and the other was taller and skinnier. The record reflects the Defendant was heavier than his co-conspirator. The jury had an opportunity to view the two men standing side-by-side and were able to make this comparison as well.

The record also reveals that both the Defendant and his co-conspirator admitted planning to rob the Sonic Drive-In on McArthur Drive. In particular, the Defendant told Officer Vickers that they planned to rob Sonic Drive-In the next night but some other men beat them to it. The co-conspirator also testified that he and the Defendant had previously discussed robbing Sonic Drive-In, and they were in the area that night to determine whether the robbery was feasible. The Defendant and his co-conspirator were found in the immediate vicinity of Sonic Drive-In and within a couple of hours after the robbery.

17Pink stains were on the shirt and shorts worn by the Defendant when he was arrested. When the robbers approached Chris, he dropped a light pink/ red colored drink. The jury was presented with the Defendant’s shirt at trial and testimony from several officers indicated that the shirt contained some pink stains. Photos also show pink stains on the Defendant’s shorts. The co-conspirator testified that the stains on the Defendant’s clothing came from a wine cooler that he spilled some days before the robbery.

One of the robbers was the co-conspirator. The record reveals that one robber called Chris by his name, despite his name tag being hidden. This evidence suggests that the robber knew Chris before the night of the robbery. The co-conspirator worked at Sonic Drive-In six to seven months prior to the robbery.

Lastly, trial testimony indicated that footprints found near the scene of the crime were shown to have some common characteristics with the shoe impressions collected from both the Defendant and the co-conspirator. The footprints were found in the general area where the robbers reportedly ran after the robbery.

Although no gun or money was produced, based on the foregoing evidence, we find that the identity of the Defendant was proven by circumstantial evidence. Both the Defendant and co-conspirator admitted planning to rob Sonic Drive-In. They were found in the immediate vicinity of Sonic Drive-In and within a couple hours after the robbery. Pink stains were found on the Defendant’s clothing. One robber called Chris by his name despite the fact he was not wearing his name tag nor was it visible. The co-conspirator worked at Sonic Drive-In six to seven months prior to the robbery. Footprints found near the crime scene were similar to the shoe impressions taken from the shoes of the Defendant and the co-conspirator. The jury heard the testimony and weighed the evidence. Thus, viewed in a light most | ^favorable to the prosecution, a rational jury could have found that the identification of the Defendant was proven by circumstantial evidence.

Conspiracy to Commit Armed Robbery

The State bears the burden of proving beyond a reasonable doubt that the Defendant conspired to commit armed robbery and that either the Defendant or the co-conspirator acted in furtherance of committing the armed robbery.

The Defendant contends that there is no direct or circumstantial evidence of a conspiracy between the Defendant and the co-conspirator and sets forth several grounds in support of this contention. First, the Defendant argues that “there was never any fixed terms as to what they were going to do at Sonic and how” and argues that the meeting near Sonic Drive-In was not an “act in furtherance.” Second, the Defendant asserts that he and the co-conspirator “never discussed robbing the Sonic Drive-In at gunpoint.” Finally, he asserts the co-conspirator testified that they “never agreed to rob anything and that they merely discussed if it was feasible.”

The Defendant’s conspiracy charge stemmed from the comments he made to Officer Vickers. In particular, the Defendant told Officer Vickers that he and his cousin were waiting across the street to see what time Sonic Drive-In closed. He also told Officer Vickers that they were watching Sonic Drive-In because they planned to rob it the next night but some other men beat them to it. Officer Vick-ers’s testimony was corroborated by the testimony of the co-conspirator.

The co-conspirator testified that he and the Defendant had previously discussed robbing Sonic Drive-In before the night of the robbery, and stated that they probably discussed it that night but did not plan to do it then. The co-conspirator also testified that he used to work at Sonic Drive-In and that the robbery was his idea. Because the co-conspirator was once employed at Sonic Drive-In, he also knew what 19time it closed and when the managers would be leaving with the night deposit. Thus, the first element of conspiracy is satisfied.

With respect to the second element, the “act in furtherance,” we find that the evidence was sufficient to sustain the conviction of armed robbery. Thus, “[pjerpetration of the actual crime is certainly an act in furtherance of the object of the agreement.” State v. Zeno, 99-69, p. 9 (La.App. 5 Cir. 8/31/99), 742 So.2d 699, 706. Accordingly, we find that the evidence is sufficient to sustain the Defendant’s conviction of conspiracy to commit armed robbery.

Daubert Hearing

The Defendant challenges the admissibility of certain testimony and contends that the trial court erred by its failure to hold a Daubert hearing.

In State v. Foret, 628 So.2d 1116 (La.1993), the Louisiana Supreme Court adopted the test set forth in Daubert v. Meirell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding proper standards for the admissibility of expert testimony which requires the trial court to act in a gatekeeping function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. State v. Chauvin, 02-1188 (La.5/20/03), 846 So.2d 697. To assist the trial courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue, the Supreme Court suggested the following general observations are appropriate: 1) whether the theory or technique can be and has been tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential rate of error; and 4) whether the methodology is generally accepted by the relevant scientific community. Daubert, 509 U.S. at 592-594, 113 S.Ct. 2786, 125 L.Ed.2d 469. In Foret, supra, the court adopted these observations as a helpful guide for our lower courts in considering this difficult issue. Id. Thus, Louisiana has adopted Daubert’s requirement that in order for technical or scientific expert testimony to be admissible under La. C.E. Art. 702, the scientific evidence must rise to a threshold level of reliability. Daubert’s general “gatekeeping” applies not | inonly to testimony based upon scientific knowledge, but also to testimony based on “technical” and “other specialized knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999); Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226. The trial court may consider one or more of the four Daubert factors, but that list of factors neither necessarily nor exclusively applies to all experts or in every case. Id. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determinations. Kumho, supra at 526 U.S. 142,119 S.Ct. 1167,143 L.Ed.2d 238.

State v. Brannon, 07-431, pp. 8-9 (La.App. 3 Cir. 12/5/07), 971 So.2d 511, 517-18, writ denied, 07-2465 (La.5/9/08), 980 So.2d 689 (quoting State v. Allen, 41,548, pp. 11-13 (La.App. 2 Cir. 11/15/06), 942 So.2d 1244, 1254-55).

First, the Defendant contends that a Daubert hearing should have been held regarding “[t]he chemical make[-]up of the drink used at Sonic because Sergeant Claude Russell testified that he had no idea where the yellow and pink stains on [the Defendant’s] shirt came from.” Second, the Defendant contends that a Daubert hearing should have been held regarding the footprints found near the crime scene because “the investigator’s [sic] arbitrarily disregarded some prints in favor of other prints.” The Defendant further contends that “[i]t is a violation of Due [P]rocess to deny a [Daubert ] hearing even when one was not initially requested because of the sixth amendment right to present a defense.” This contention, however, is not supported by Louisiana jurisprudence.

The factual basis for an expert opinion determines the credibility of the testimony. It is the responsibility of the opposing party to explore the factual basis for the opinion and thus determine its reliability, Leard v. Schenker, 06-1116, p. 3 (La.App. 1st Cir.6/16/06), 931 So.2d 355, 357, citing Miramon v. Bradley, 96-1872, p. 6 (La.App. 1st Cir.9/23/97), 701 So.2d 475, 478. Thus, the failure to raise an objection to the admissibility and reliability of expert testimony constitutes a waiver of such |nan objection. La. C.E. art. 103(A)(1); Everhardt v. La. Dep’t of Transp. & Dev., 07-0981, p. 11 (La.App. 4th Cir.2/20/08), 978 So.2d 1036, 1046. A contemporaneous objection to the disputed evidence must be entered on the trial record in order to preserve the objection for appellate review. Furthermore, when the objecting party fails to request an evidentiary “ga-tekeeping” hearing under the rationale of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), his objections to the admissibility of an expert witness’s testimony under Daubert are not preserved for appeal. Brown v. Schwegmann, 05-0830, pp. 5-6 (La.App. 4th Cir.4/25/07), 958 So.2d 721, 724, writ denied, 07-1094 (La.9/21/07), 964 So.2d 333.

Harris v. State ex rel. Dep’t of Transp. and Dev., 07-1566, pp. 28-29 (La.App. 1 Cir. 11/10/08), 997 So.2d 849, 868, writ denied, 08-2886 (La.2/6/09), 999 So.2d 785.

Accordingly, the Defendant’s failure to make a contemporaneous objection or move for a Daubert hearing results in a waiver of those issues on appeal. See also La.Code Crim.P. art. 841. Additionally, there was no need for a Daubert hearing regarding the chemical make-up of the pink stains found on the t-shirt allegedly worn by the Defendant, as Officer Bates explained that a chemical analysis could not be conducted. Likewise, there was no “gatekeeping” issue regarding the footprints. The only issue preserved for appeal was the Defendant’s objection to the qualifications of Officer Bates to testify regarding the similarities between the Defendant’s shoe and the footprints found near the crime scene. This issue, however, has not been argued on appeal.

Next, the Defendant contends that, under La.Code Crim.P. art. 770, “[t]he testimony of Officer Kelly Vicker[s] permitted inflammatory remarks pertaining to the defendant’s conduct on the night in question which included the crime of misrepresenting who he was[,] and[,] therefore!,] the remarks should have never been used or stricken.”

Louisiana Code of Criminal Procedure Article 770 provides, in relevant Impart:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible!.]

At trial, Officer Vickers testified that when she made contact with the Defendant he initially gave her the wrong name. When she showed him the identification she found in the Suburban, he stated that “she had him” and his name was Jermaine Perry. The Defendant argues that her testimony “included the crime of misrepresenting who he was[,] and[,] therefore!,] the remarks should have been stricken.” He further asserts that her testimony was “inflammatory and confusing toward a jury.” However, defense counsel failed to object to Officer Vickers’ testimony at trial. Thus, this issue was not properly preserved for appellate review. La.Code Crim.P. art. 841.

Excessiveness of the Sentences

The Defendant contends that his concurrent sentences of twenty-five and ten years at hard labor were unconstitutionally excessive. The Defendant does not specifically challenge his ten-year sentence for the conviction of conspiracy to commit armed robbery and, instead, urges this court to impose a sentence of ten years, which is the statutory minimum for conviction of armed robbery.

| isThe Defendant asserts that “imprisonment beyond the minimum concurrent sentence would be an excessive hardship on his pregnant fiancé and three children and that [he] would respond well to the minimum sentence of ten years.” Additionally, the jurisprudence cited by the Defendant relates only to sentences imposed for convictions of armed robbery. Thus, the Defendant’s complaint regarding his sentence for conspiracy was abandoned, and the following discussion will address only the sentence imposed for the Defendant’s armed robbery conviction.

A motion to reconsider sentence was not filed by the Defendant in this matter. Because the Defendant failed to comply with La.Code Crim.P. art. 881.1, our review is relegated to a bare claim of excessiveness. State v. Hargrave, 05-1027 (La.App. 3 Cir. 3/1/06), 926 So.2d 41, writ denied, 06-1233 (La.11/22/06), 942 So.2d 552.

This court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331 (alteration in original).

To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

The penalty for a violation of La.R.S. 14:64 is imprisonment at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence. Thus, the Defendant’s sentence of twenty-five years is in the lower one-fourth of the statutory sentencing range.

When sentencing the Defendant in this case, the trial court made the following comments:

All right. Mr. Perry, I remember this case very well, it was the Armed Robbery of the Sonic Drive in, where you and a co-defendant waited until the store closed. Tail waited in the back by where the garbage is, and when the manager and the assistant manager were leaving — I believe that’s who they were. I know one of them was the manager. I don’t know if it was just an employee or an assistant manager, I assume that’s who it was — were | leaving; you and the co-defendant, approached both of them. You went to where the female was that you robbed, you had a gun, you took the money from her and after you took the money from her, you hit her in the head for no reason at all with the gun, causing her an injury, which caused her to be transferred to the hospital. That is the thing that — of course, it’s bad enough to rob somebody, it’s bad enough to rob somebody with a gun, but the thing that was absolutely unnecessary in this case, is that you hit the woman with a gun. So, I am — I’ve been reviewing the sentencing factors under Article 894.1.
I find that there is an undue risk, during a period of suspended sentence or probation, that you will commit another crime. I believe that you’re in need of correctional treatment or custodial environment that can be provided most effectively by your commitment to an institution. I believe a lessor [sic] sentence will depricate [sic] the seriousness of this charge.
I have looked at the aggravating factors; aggravating factor number one, is your conduct during the commission of the offense manifested, [sic] deliberate cruelty to the victim. You knowingly created a risk of death, or great bodily harm to more than one person. You used threats of or actual violence in the commission of this offense. The offender used a dangerous weapon in the commission of an offense. The offender used a dangerous firearm, or other dangerous weapons, while committing or attempting to commit an offense which has ss [sic] an element, the use, attempted use, or the threaten [sic] use of physical force against the person or property of another, by which its very nature involves a substantial risk that physical force may be used in the committing of the offense.
All right. I have reviewed the mitigating factors. I find that none apply in your case. Mr. Shumate. Do you wish to discuss with the Court any mitigating factors that you think would be appropriate?

Counsel for the Defendant then noted several mitigating factors, as follows:

I respectfully request this Court to take cognizance that my client, at the time of the offense was 20 years old, hed-lth grade drop out. However, he was employed for approximately two years prior to the actual incident. He has a pregnant fiancé and three children on the way [sic]. So, prior to the incident, he was an actual 20 year old man, who had been employed for sometime with several children.
Your Honor, additionally, although this was a crime of violence, my client does not have a history of perpetuating violence towards other persons. He does have an arrest history, Your Hon- or, however, he has no prior convictions to date. Since the incident, Your Honor, [h]e has been incarcerated, I believe for more than 9 months. I believe — I believe a brief nine months, but it’s been more than nine months.

In State v. Joseph, 07-1567 (La.App. 3 Cir. 4/30/08), 982 So.2d 310, this court upheld a sentence of thirty years imposed on a first felony offender where the victim of the armed robbery sustained serious and permanent bodily injury. In making this determination, this court relied on the following jurisprudence.

“In State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4, the Louisiana Supreme Court stated that sentences of 35 to 50 years have been found to be acceptable for first offenders convicted of armed robbery, citing State v. Augustine, 555 So.2d 1331, 1332 (La.1990), and State v. Thomas, 98-1144, p. 2 (La.10/9/98), 719 So.2d 49, 50.” State v. Alexander, 03-1291, p. 12 (La.App. 5 Cir. 3/30/04), 871 So.2d 483, 491, writ denied, 04-1063 (La.10/1/04), 883 So.2d 1007.

Id. at 315.

In Smith, 839 So.2d 1, the defendant used a firearm by aiming it at six persons during the robbery, there was a $400,000 value in stolen items, and the defendant had a prior out-of-state conviction for an offense that was a felony in that state. In State v. Jefferson, 40,439 (La.App. 2 Cir. 1/27/06), 920 So.2d 984, a sentence of thirty years at hard labor was affirmed for a first felony offender where a firearm was used in the commission of the offense, the defendant showed no remorse, and the trial court considered the impact on the victims. In State v. Jackson, 04-1388 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, writ denied, 05-1740 (La.2/10/06), 924 So.2d 162, the court upheld a sixty-year sentence imposed for two convictions of armed robbery where the eighteen-year-old first felony offender pointed a gun in the victim’s face, leaving the victim so terrified that she fell on the floor crying when the robbers left.

The Jackson court also took note of the following cases:

In State v. Lewis, 39,263 (La.App. 2 Cir. 1/26/05), 892 So.2d 702, the defendant, a first felony offender, received three concurrent 20 year sentences for the armed robbery of three employees at a bank. The defendant was armed with a BB gun.
In State v. Roddy, 33,112 (La.App. 2 Cir. 4/7/00), 756 So.2d 1272, writ denied, 00-1427 (La.5/11/01), 791 So.2d 1288, a 22-year-old first felony offender defendant received a 20 year sentence for armed robbery of a bank. The defendant was a passenger in the getaway car, but was aware of the plan to rob the bank. The presentence report noted the defendant had spent eight months in a juvenile detention center for a prior adjudication for armed robbery.
In State v. Square, 433 So.2d 104 (La. 1983), the Louisiana Supreme Court upheld the defendants [sic] 25 year sentence for a bank robbery. The defendant was 22 years old, was gainfully employed, lacked a prior criminal record, and there was an absence of personal injury to the victims of the robbery.

Id. at 916-17.

The foregoing jurisprudence suggests that the Defendant’s sentence of twenty-five years at hard labor is within the norm for a first-time offender. Here, the Defendant used a gun during the commission of the offense. After he received the money from the victim, he then used the gun to hit her in the head, causing significant injury to the victim’s forehead. Considering the nature of the offense, including the danger to life and the purposelessness of the violence against the victim, as well as | iSthe sentences imposed for similar crimes, the Defendant’s sentence of twenty-five years is not unconstitutionally excessive. Thus, the sentence is affirmed.

ERRORS PATENT

The transcript of the August 18, 2006 sentencing proceeding reflects that the trial court imposed the Defendant’s twenty-five year sentence for armed robbery without the benefit of probation, parole, or suspension of sentence; however, this is not reflected in the court minutes. “[I]t is well settled that when the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62. Thus, the trial court is instructed to amend the minutes of the August 18, 2006 sentencing to correctly reflect the sentence imposed by the trial court.

CONCLUSION

The Defendant’s convictions and sentences are affirmed. The trial court is instructed to amend the minutes of the August 18, 2006 sentencing to correctly reflect the sentence imposed by the trial court.

AFFIRMED WITH INSTRUCTIONS.


source: Caselaw Access Project

author: RANDOLPH, Justice,

license: Public Domain

text:
    Edward E. SHELNUT v. The DEPARTMENT OF HUMAN SERVICES of The State of Mississippi.
    No. 2007-CA-02157-SCT.
    Supreme Court of Mississippi.
    March 19, 2009.
    Rehearing Denied June 4, 2009.

      Patricia Peterson Smith, attorney for appellant.
    James Jason Bayles, attorney for appel-lee.
   RANDOLPH, Justice,

for the Court.

¶ 1. This case has been litigated for nearly twenty years in the court systems of two sovereign nations, including a foray into this Court. See Dep’t of Human Servs. v. Shelnut, 772 So.2d 1041 (Miss.2000) (“Shelnut /”). The appellant asks this Court to reverse a chancellor’s decree recognizing the registration and enforcement of a foreign judgment for child support. We decline.

HISTORY OF PROCEEDINGS

¶ 2. In 1981, Gaye-Lynn Kern (“Kern”) and Edward Shelnut (“Shelnut”) were married in Saskatoon, Saskatchewan. They moved to Jackson, Miss., after briefly living in Atlanta, Ga. They remained in Jackson for the duration of their marriage. One child, MargareL-Anne, was born on July 31, 1986. In 1989 they experienced marital difficulties.

¶ 3. On April 22, 1989, Kern returned to her native country, Canada, with Margaret-Anne. Kern and Margaret-Anne have lived there ever since. On April 27, 1989, Shelnut filed a complaint for custody in the Chancery Court of the Second Judicial District of Hinds County, but failed to effect service on Kern.

¶ 4. In October 1989, Kern filed an action in the Unified Family Court (“UFC”) in the Queen’s Bench Judicial Centre of Saskatoon, Saskatchewan. Shelnut was served with this action, hired an attorney and answered. He contested personal jurisdiction and child support, inter alia. Kern sought monthly child support of $400 and monthly alimony of $350. The pleadings revealed Shelnut’s address in Mississippi, where the couple had lived while married and where he remained af-terwards. Kern informed the Canadian court that Shelnut had filed an action in Mississippi, and that she had filed a motion to dismiss those proceedings. Shel-nut’s financial statement, which included his annual salary, savings, and property ownership, were filed in the UFC case.

¶ 5. A temporary hearing was held in the Canadian action, although Shelnut did not attend. Shelnut’s Canadian attorney submitted a Brief of Law contesting personal jurisdiction. In an order dated December 4, 1989, the Canadian court exercised its “jurisdiction over the matters of interim custody, interim child maintenance and interim spousal maintenance.” The court ordered Shelnut to pay child support of $300 for the month of December 1989. The court deferred “matters of access, ongoing interim child maintenance and interim spousal maintenance.” On January 17, 1990, another order was entered in which Shelnut was ordered to pay ongoing child support of $325 per month, beginning February 1, 1990. On May 2, 1990, Shelnut filed a divorce complaint in the Chancery Court of the First Judicial District of Hinds County, but never obtained service on Kern.

¶ 6. In June 1990, the Canadian court entered an order declaring that a divorce was granted, to take effect thirty-one days from the date of judgment, unless appealed. The two-page divorce judgment granted custody of Margaret-Anne to Kern, and ordered Shelnut to pay child support of $325 per month, with the payments to be made through the Maintenance Enforcement Office in Regina, Saskatchewan. Visitation and alimony were not mentioned. Shelnut asserts that he was not given notice of the divorce hearing until he received the judgment in the mail. He further asserts that he received the judgment three days before the divorce was final. He testified that he chose not to pursue an appeal. Shelnut testified that he consulted with a Canadian lawyer who told him that such an appeal would require a $16,000 retainer and was not likely to be successful.

¶ 7. In September 1990, the Mississippi divorce complaint was consolidated with his earlier custody filing. The consolidated complaint was dismissed for mootness by an order dated January 8, 1991. The order acknowledged the Canadian court’s jurisdiction to grant a divorce and stated that “no purpose could be served by pursuing a divorce in ... Mississippi.” No appeal was taken of this order.

¶ 8. On January 25, 1999, Kern registered the Canadian judgments for enforcement in Mississippi, through the Mississippi Department of Human Services (“MDHS”). Margaret-Anne was then twelve years old. In August 1999, the Chancery Court of the Second Judicial District of Hinds County dismissed the attempt to enforce the Canadian judgments. The chancellor ruled that the divorce was valid, but that the Canadian court lacked the required personal jurisdiction over Shelnut to require him to pay child support.

¶ 9. This Court reversed the chancery court in Shelnut I, holding that the personal jurisdiction issue was barred by res judicata, because Shelnut had challenged personal jurisdiction in Canada and had lost. The Shelnut I Court ruled that the Canadian court had jurisdiction over both of the parties and the dissolution of the marriage. The case was remanded to chancery court for enforcement. See Shel-nut I, 772 So.2d at 1041. Shelnut did not file a motion for reconsideration.

¶ 10. In September 2003, Shelnut moved to dismiss the enforcement action for failure to prosecute. The chancery court entered a judgment of dismissal after MDHS failed to respond. In November 2003, MDHS successfully moved to set aside the dismissal. In September 2005, MDHS filed a Notice of Registration Amended. Margaret-Anne was then nineteen years old. Shelnut contested the amended registration, but waited two years before claiming that MDHS had not sought leave of the court to amend.

¶ 11. The chancery court held a hearing in September 2007 on the amended registration of the Canadian order. The chancellor ruled from the bench that the hearing would be “treat[ed] as a new hearing for all purposes.” In his memorandum opinion, the chancellor ruled that the Canadian judgments would be enrolled for enforcement. The opinion included a ruling that the 2005 amended registration was proper under Mississippi Rule of Civil Procedure 15(a) and related back to the 1999 registration in accordance with Rule 15(c), as the action was one and the same. Thus, the registration was timely because it related back to 1999, when Margaret Anne was twelve and age of majority was not at issue. Later, the chancellor issued an amended opinion, clarifying his determination that the applicable age of majority in Canada was eighteen. Based on this determination, he ruled that the accrual of child support would cease on Margaret-Anne’s eighteenth birthday, July 31, 2004.

¶ 12. Over the course of these proceedings, MDHS informed the chancery court that it represented Kern in the child-support action. MDHS made no representation that it was representing Margaret-Anne. Margaret-Anne has not filed any pleadings in this matter, nor has she appeared as a party.

¶ 13. Shelnut has not honored any Canadian orders and has never paid any child support. Except for a brief conversation during a court hearing in 1991, he has not seen or spoken to his daughter since 1989. Apart from temporary work assignments, Shelnut has remained in Mississippi, while Kern and Margaret-Anne have remained in Canada.

ISSUES

¶ 14. This court will consider:

(1) Whether the chancellor erred in holding that Shelnut’s arguments against Canadian jurisdiction are precluded by this Court’s holding in Shel-nut I.
(2) Whether Kern’s conduct provided Shelnut a legal excuse for failing to pay child support.
(3) Whether the chancellor erred in determining the applicable age of majority under Canadian law.
(4) Whether the 1999 and 2005 registrations were timely.
(5) Whether the chancellor erred in holding that the 2005 Notice of Registration should be treated as an amended complaint and, if not, whether he erred in relating it back to the 1999 registration.
(6) Whether Margareb-Anne is a necessary party.
(7) Whether the chancellor was biased to such an extent that Shelnut was not afforded a neutral forum.

STANDARD OF REVIEW

¶ 15. “This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 623, 625-626 (Miss.2002). However, “[rjegard-ing legal questions, this Court applies a de novo standard of review.” Wilburn v. Wilburn, 991 So.2d 1185, 1190 (Miss.2008).

ANALYSIS

I. Whether the chancellor erred in holding that Shelnut’s arguments against Canadian jurisdiction are precluded by this Court’s holding in Shelnut I.

¶ 16. Shelnut I lists the alternatives a person has when served with a suit from another jurisdiction, as follows:

First, he may ignore the complaint and summons, and, then, if a default judgment is issued against him, he may challenge that judgment on jurisdictional grounds in a collateral proceeding when the plaintiff seeks to enforce the judgment. Second, he may voluntarily waive any lack of personal jurisdiction and submit to the distant court’s jurisdiction. And third, he may submit to the jurisdiction of the court for the limited purpose of challenging jurisdiction. The Supreme Court has explained that by taking this third route, ... “the defendant agrees to abide by that court’s determination on the issue of jurisdiction: That decision will be res judicata on that issue in any further proceedings.”

Shelnut I, 772 So.2d at 1045-46 (quoting Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)) (internal cites omitted). In the first case, Shelnut conceded that he had received sufficient service of process for the Canadian actions. See Shelnut I, 772 So.2d at 1046 n. 3. He responded to the Canadian complaint by raising the issue of personal jurisdiction. His Canadian lawyer also submitted a Brief of Law on this issue. After asserting its jurisdiction, the Canadian court issued a judgment granting a divorce and ordering Shelnut to pay child support. Shelnut was mailed a copy of the Canadian judgment in time to appeal it, but chose not to do so. Later, in chancery court, he argued that he could collaterally attack jurisdiction after losing a challenge on the same issue in Canada. This Court ruled that he had taken the third route and that res judicata applied to the Canadian decision. See id. at 1046-48. After Shelnut I was decided, if he still felt aggrieved, he had the option of filing a motion for rehearing, but he chose not to do so.

¶ 17. Shelnut seeks to retry an issue decided in Shelnut I, lack of personal jurisdiction. Shelnut now asserts that he received process only in the first Canadian proceeding, but cannot recall receiving service of process as to the second proceeding (divorce and child support). He asserts that because the orders bear different UFC numbers, separate actions must have been filed. However, he offered no proof at trial that two separate actions were filed. Citing the lack of proof, and this Court’s holding in Shelnut I, the chancellor found that there was only one Canadian action.

¶ 18. We conclude that Shelnut has exhausted his right to another day in court, both in Saskatchewan and Mississippi. The chancellor did not err in holding that new arguments over Canadian jurisdiction are precluded.

II. Whether Kern’s conduct provided Shelnut a legal excuse for failing to pay child support.

¶ 19. Shelnut argues that Cole v. Hood, 371 So.2d 861 (Miss.1979), provides a legal excuse for him to avoid paying child support. In Cole, the mother took the children and actively hid them from their father by moving around the country and not informing the father of their addresses. Despite the father’s efforts, he was unable to find the children for eight years. Once he did find them, the mother then attempted to enforce a child-support order against him for the accrued support for those eight years. See id. at 863. This Court affirmed the trial court’s dismissal of the mother’s claim. The trial court had held that she did not come to equity with clean hands. Her actions had made it impossible for the father to comply with the child-support order. See id. at 864.

¶ 20. The facts in this case are more like those of Cunliffe v. Swartzfager, 437 So.2d 43 (Miss.1983). In Cunliffe, the wife took the child to a foreign country and the father did not see his child for several years. See id. at 44. This Court reversed the trial court (in part), which had followed Cole in relieving the father of the requirement to pay. See id. at 45^46. This Court reasoned that it was not impossible for the father to pay. See id. at 45-46. He knew generally where the child was and could have paid the support through his former wife’s relatives, who knew her address. See id. at 45^46.

¶ 21. The chancellor made a finding of fact that “Shelnut knew all along where his daughter was and Kern did not hide his daughter from him.” The chancellor found the following testimony persuasive: (1) When asked how his daughter had survived, Shelnut stated that Kern had a wealthy family. (2) Shelnut’s parents went several times to visit Margaret-Anne. This included one trip to North Dakota in which Shelnut’s parents took Margaret-Anne’s Mississippi cousins to visit with her. Even though Shelnut was aware of these visits, he never showed any interest in joining his parents on any of these trips. (3) When asked why he did not seek a modification of the Canadian orders, Shelnut replied that he could not afford it. The court gave little credence to this response, observing that Shelnut has been able to hire several lawyers to help him avoid his responsibilities over the last two decades. (4) Shelnut had Margaret-Anne’s address during this time, as he showed by mailing letters, cards, and gifts to Margaret-Anne over a ten-year period. (5) In addition, Kern sent cards, pictures and letters, including return addresses, to Shelnut’s family.

¶ 22. We conclude that Kern’s conduct, coupled with Shelnut’s inaction in the Canadian courts, does not provide a legal excuse for failing to pay child support. Shelnut knew generally where Margaret-Anne was and could have paid the support through the Maintenance Support Office, as ordered. We find no error in the chancellor’s analysis and ruling.

III. Whether the chancellor erred in determining the applicable age of majority under Canadian law.

¶ 23. With some exceptions inapplicable to this issue, Mississippi Code Annotated section 93-25-87 calls for the issuing state’s law to apply under the Uniform Interstate Support Act (“UIFSA”). See Miss.Code Ann. § 93-25-87(1) (Rev.2004). That act defines “state” to include “[a] foreign country or political subdivision jurisdiction that ... has enacted a law or established procedures for issuance and enforcement of support orders which are substantially similar to the procedures under this chapter.” Miss.Code Ann. § 93-25 — 3(u)(ii) (Rev.2004). Saskatchewan enacted the Reciprocal Enforcement of Maintenance Orders Act in 1996. See The Reciprocal Enforcement of Maintenance Orders Act, S.S., ch. R-4.2 (1996).

¶ 24. After reviewing the Canadian Divorce Act and the Family Maintenance Act, the chancellor determined that the age of majority in Saskatchewan is eighteen. Shelnut argued an outdated version of the Canadian divorce act which stated:

1. This Act may be cited as the Divorce Act.
2. (1) In this Act, ... “child of the marriage” means a child of two spouses or former spouses who, at the material time,
(a) is under the age of sixteen years, or
(b) is sixteen years of age or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;....

However, the current version of this Act states the following:

2. (1) In this Act, ... “age of majority,” in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarily resides....

Divorce Act, 1985 R.S.C., 1985, ch. 3 (2nd Supp) (Can.) (emphasis added).

¶ 25. Saskatchewan’s Age of Majority Act makes eighteen the age of majority in that province:

Every person attains the age of majority and ceases to be a minor on attaining the age of eighteen years.

The Age of Majority Act, R.S.S., ch. A-6, s.2 (1978).

¶ 26. The 1990 divorce judgment cites the authority of the Canadian Divorce Act, a federal law applicable in Saskatchewan. Margaret-Anne has been a resident of Saskatchewan since 1989, so the Age of Majority Act, a Saskatchewan provincial statute, would apply to her. Thus, we conclude that the chancellor did not err in determining that eighteen is the applicable age of majority.

IV. Whether the 1999 and 2005 registrations were timely.

A. The 1999 Registration

¶ 27. Under the UIFSA, a child-support order “is registered when the order is filed in the registering tribunal of this state.” Miss.Code Ann. § 93-25-85(1) (Rev.2004). MDHS first registered the Canadian order (issued June 1990) in January 1999, when Margaret-Anne was twelve.

¶ 28. In actions for arrears of child support, UIFSA’s choice-of-law provision allows use of either Mississippi’s statute of limitations or that of the issuing state, whichever is longer. See Miss.Code Ann. § 93-25-87(2) (Rev.2004). The chancellor used Mississippi law.

¶ 29. Mississippi’s applicable statute of limitations requires actions to be commenced within three years against Mississippi residents, such as Shelnut.

All actions founded on any judgment or decree rendered by any court of record without this state shall be brought within seven years after the rendition of such judgment or decree, and not after. However, if the person against whom such judgment or decree was or shall be rendered, was, or shall be at the time of the institution of the action, a resident of this state, such action, founded on such judgment or decree, shall be commenced within three years next after the rendition thereof, and not after.

Miss.Code Ann. § 15-1-45 (Rev.2003). However, the statute is tolled while the child remains a minor:

If any person entitled to bring any of the personal actions mentioned shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the actions within the times in this chapter respectively limited, after his disability shall be removed as provided by law....

Miss.Code Ann. § 15-1-59 (Rev.2003).

¶ 30. In Wilson v. Wilson, 464 So.2d 496 (Miss.1985), a mother brought a contempt action twenty years after a divorce decree. Both children were emancipated, but the seven-year statute of limitations had not run. See id. at 497. This Court recognized that child support is a legal duty owed to the child. Even though the action must be brought by a guardian who is not under the disability, the statute of limitations is tolled until the disability of infancy is removed upon emancipation. See id. at 498 (citing Weir v. Monahan, 67 Miss. 434, 7 So. 291 (1890)). The Wilson court detailed the philosophy behind this rule as follows:

To allow the statute of limitations to run during the disability of the minor, the very period through which the minor needs and is entitled to the support of his parents, would defy reason. To bar the child because of a parent’s failure to timely assert the child’s claim for support is to deprive the child of that support which belongs to him for reasons over which the child has no control.

Wilson, 464 So.2d at 499. In Vice v. Dep’t of Human Servs., 702 So.2d 397 (Miss.1997), this Court followed Wilson, affirming a judgment in which a child-support order was enforced even though it was brought six years after the order. Vice, 702 So.2d at 398.

¶ 31. The three-year statute of limitations applicable to Shelnut under Mississippi law was tolled while Margaret-Anne remained a minor. The tolling applied to Kern and MDHS, though neither was under such a disability. Margaret-Anne was twelve years old in January, 1999. Therefore, we conclude that the 1999 registration was timely.

B. The 2005 Registration

¶ 32. The Vice and Wilson cases allowed support orders to be enforced even though they were brought years after the children had become emancipated. In Vice, this court stated, “That the child has been emancipated does not pretermit recovery of vested but unpaid child support.” Id. at 401 (quoting Varner v. Varner, 588 So.2d 428 (Miss.1991)). “We have plainly allowed parents to sue to obtain unpaid child support where the children have been emancipated at the time of the suit.” Id. at 402 (citing Wilson, 464 So.2d at 496; Varner, 588 So.2d at 428).

¶ 33. The three-year statute of limitations applicable to Shelnut under Mississippi law was tolled while Margaret-Anne remained a minor. Tolling ceased when she became eighteen (the Saskatchewan age of majority) on July 31, 2004. Kern and MDHS then had three years to register the order. The order was registered by the submission of the Notice of Registration Amended in September 2005. Margaret-Anne was then nineteen years old. Thus, we conclude that the 2005 registration was timely, and would have been so, even if it were the first attempt to enforce the order. We find no error as to this issue.

V. Whether the chancellor erred in holding that the 2005 Notice of Registration should be treated as an amended complaint and, if not, whether he erred in relating it back to the 1999 registration.

¶34. The chancellor’s determination of the age of majority was not essential to the judgment, but only to the calculation of the amount due. The chancellor based his judgment on his finding that the 2005 registration was an amended complaint which should relate back to 1999, when age of majority was not at issue. The chancellor set the entitlement to child support to the date of Margaret-Anne’s eighteenth birthday, July 31, 2004. As eighteen is the applicable age of majority, even if the 2005 registration were the first attempt to register this judgment, we hold that the statute of limitations would still not bar it.

¶ 35. Further, the issue was not raised in the 2005 motion to contest the validity of the order, but was first raised two years later in the Motion to Dismiss; thus, the issue was waived by Shelnut. We find no error.

VI. Whether Margaret-Anne is a necessary party.

¶ 36. In Vice, this Court held that, even though the child holds the legal right to accrued child support, a former custodial parent may sue to enforce an order even after the child has become emancipated. See Vice, 702 So.2d at 401. See also Brown v. Brown, 822 So.2d 1119, 1121 (Miss.Ct.App.2002). “Either the child or the former custodial parent may bring an action against the defaulting parent.... ” Vice, 702 So.2d at 401 (emphasis added). In Vice, the mother attempted to enforce a Louisiana child-support order for payments that accrued while she was supporting the children before they became emancipated. She filed two years after the child reached majority. See id. at 398.

¶ 37. Shelnut’s reliance on Taylor v. Taylor, 478 So.2d 310 (Miss.1985), is misplaced. In that case, the father attempted to modify a divorce settlement in which there had been no award of custody or child support because all the children were emancipated at the time of the divorce. See id. at 311-12.

¶ 38. Either Margaret-Anne or Kern could have brought the action. MDHS, representing Kern, filed for enforcement. We find no error.

VII.Whether the chancellor was biased to such an extent that Shelnut was not afforded a neutral forum.

¶ 39. Shelnut argues that questions and comments made by the chancellor show that he had a personal bias against Shelnut, thereby denying him a neutral forum. Shelnut directs this Court to the chancellor’s comment that he was not impressed with Shelnut’s self-serving testimony. Shelnut also claims in a post-trial motion that the court “stated to attorneys in chambers that it already knew how it would rule, but would allow [Shelnut] to attempt to make a case.” There is no record following these statements of a request for recusal.

¶ 40. A judge is to be considered “qualified and unbiased unless evidence presented produces a reasonable doubt as to the judge’s impartiality.” Weeks v. City of Clinton (In re City of Clinton), 920 So.2d 452, 458 (Miss.2006) (quoting Turner v. State, 573 So.2d 657, 678 (Miss.1990)). An appeals court is to “ask whether ‘a reasonable person, knowing all of the circumstances, would harbor doubts about ... impartiality.’ ” Id. In In re City of Clinton, the chancellor made a statement of personal opinion that was not based on the applicable rule of decision in the case. This Court held that this alone was not evidence of disqualifying bias, but remanded to allow the chancellor to make the decision on the appropriate law and not on personal opinion. Here, the chancellor heard all the evidence from both sides and then issued a thoughtful opinion based on the appropriate law.

¶ 41. The chancellor also commented on the credibility of a witness. In his memorandum opinion, the chancellor found that Shelnut’s testimony was “self-serving and wholly lacking in factual subtantiation.” However, the chancellor did not make an inappropriate comment showing disqualifying prejudice. He heard all the evidence, and at the conclusion of the evidence, based his opinion on the applicable law and his own findings of fact. Therefore, we conclude that Shelnut was not denied a neutral forum.

CONCLUSION

¶ 42. Based on the analysis above, except for the calculation of the judgment, we affirm the judgment of the Chancery Court of the Second Judicial District of Hinds County. We remand for the limited purpose of recalculating the judgment amount, taking into consideration the December 1989 and January 1990 Canadian orders, along with the statement of arrear-ages prepared by Saskatchewan Maintenance Enforcement Office, attached to the notice of registration.

¶ 43. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.

      . All dollar amounts are in U.S. dollars.

      . The Maintenance Enforcement Office in Regina has maintained Statements of Arrears from the 1990 court orders since that time.

      . The only differences in the 1999 and 2005 registrations were the date and the amount of arrearage.

      . The chancellor concluded that Shelnut believes that support of his child is someone else's responsibility.

      . The Family Maintenance Act is in force in Saskatchewan. "Child” is defined as "a person who is under the age of 18 years.” The Family Maintenance Act, S.S., ch. F-6.2, s.2 (1997).


author: PIERCE, Justice,

text:
    Christopher Jason BURROUGH v. STATE of Mississippi.
    No. 2008-CP-00034-SCT.
    Supreme Court of Mississippi.
    April 2, 2009.
    Rehearing Denied June 4, 2009.

      Christopher Jason Burrough, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, for attorneys for appel-lee.
    Before CARLSON, P.J., DICKINSON and PIERCE, JJ.
   PIERCE, Justice,

for the Court.

¶ 1. Following his guilty plea in the Circuit Court of Carroll County, Christopher Jason Burrough filed a motion for post-conviction collateral relief (PCR) seeking to set aside his conviction and sentence. The trial court found this motion to be without merit, and Burrough now appeals to this Court. Finding no error, this Court affirms the trial court.

FACTS AND PROCEDURAL HISTORY

¶ 2. Christopher Jason Burrough was indicted by the Carroll County Grand Jury for burglary of a dwelling house in violation of Mississippi Code Annotated Section 97-17-23. Burrough petitioned the trial court to enter a plea of guilty, and on May 4, 2006, pleaded guilty to the charge before Circuit Court Judge C.E. Morgan. Judge Morgan found the plea to be freely, voluntarily, and intelligently given, with Bur-rough openly admitting his guilt. The State made a sentencing recommendation to the trial court that Burrough be sentenced to a term of ten years, with five years to be served in the custody of the Mississippi Department of Corrections and the other five under post-release supervision. At that point, the following exchange occurred:

BY THE COURT: Okay. I will postpone sentencing until May the 15th in Carrollton. You are out on bond right now?
BY THE DEFENDANT: Yes, sir.
BY THE COURT: Here is the deal. I’m going to leave you out on bond until the 15th. If you violate the law in any way between now and then, I’m not going to accept this recommendation, and I will just sentence you to whatever I think you ought to have.
BY THE DEFENDANT: Yes, sir.
BY THE COURT: If you do not appear on the 15th, the same thing applies. Do you understand me?
BY THE DEFENDANT: Yes, sir.

¶ 3. Burrough did not appear in court on May 15. A bench warrant was then issued for his arrest. Burrough was arrested that night outside Bill Ashmore’s Wrecker Service establishment by a deputy from the Grenada County Sheriffs Office who had been notified by the Mississippi Highway Patrol that two of its patrolmen had detained Burrough at that location on suspicion of criminal activity at the establishment.

¶ 4. Judge Morgan held a sentencing hearing on May 17, 2006, during which he heard testimony from multiple individuals regarding Burrough’s actions on May 15. At the conclusion of the sentencing hearing, Judge Morgan sentenced Burrough to twenty-five years in the custody of the Mississippi Department of Corrections, the maximum sentence allowed by Section 97-17-23.

¶ 5. Burrough filed a Motion to Vacate and Set Aside Conviction and Sentence (PCR motion) in the trial court on May 8, 2007. Judge Morgan found the issues raised therein to be without merit and denied the motion.

STANDARD OF REVIEW

¶ 6. This Court reviews the dismissal of a post-conviction-relief motion for an abuse-of-discretion standard. Billiot v. State, 655 So.2d 1, 12 (Miss.1995). The trial court may summarily dismiss a motion for post-conviction relief “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Rev.2007).

LEGAL ANALYSIS

¶ 7. Before addressing the merits of Burrough’s appeal, a procedural matter needs to be discussed. The State asserts that two of the four issues presented here by Burrough on appeal are procedurally barred. The State points out that, although all four assignments of error were raised in the PCR motion filed on May 8, 2007, Burrough filed a handwritten PCR motion on August 29, 2006, which contained only two of these issues. The State therefore submits that any additional assignments of error raised by Burrough subsequent to his original PCR motion should be barred from review.

¶ 8. Even though the record demonstrates this to be accurate history, the State’s argument should not be accepted in this matter. The record indeed reveals that Burrough filed a PCR motion on August 29, 2006; however, it does not indicate that a judgment was ever entered with regard to it. Burrough filed a writ of mandamus petition with this Court on January 7, 2008, requesting this Court to command “the Circuit Court of Carroll County to render judgment or conduct an eviden-tiary hearing” on the PCR motion filed by him in that court on May 8, 2007. In his response to the petition, Judge Morgan stated that he had no recollection of ever receiving and examining the August 29, 2006, PCR motion, and that the court’s docket reflected no action was ever taken with regard to that motion. Judge Morgan did, however, recall ruling on Burrough’s May 8, 2007, PCR motion shortly after receiving it, but added that the trial court does not retain executed copies of post-conviction-relief orders, and that the trial court’s civil and criminal dockets both indicated that no order was ever filed. To avoid any confusion, Judge Morgan decided to re-examine the May 8th PCR motion attached to the writ of mandamus petition, together with the plea transcripts in the criminal case and found no merit to the motion. Based on that decision, this Court now sits in a position to review that final judgment, and may address each assignment of error raised in that motion without procedural or doctrinal concern.

I. Whether Burrough was denied due process rights when he was not allowed to withdraw his guilty plea after the trial court determined it would not follow the State’s recommended sentence.

¶ 9. Burrough argues that he should have been given the opportunity to withdraw his guilty plea when the trial court refused to accept the State’s sentencing recommendation of five years to be served in the custody of the Mississippi Department of Corrections and five years under post-release supervision. It is Bur-rough’s position that he would have withdrawn his guilty plea had he known the trial court was not going to follow the State’s recommendation.

¶ 10. First, it is well-settled in Mississippi that the imposition of a sentence upon a criminal conviction belongs within the sound discretion of the trial court (not the prosecutor) and generally is not subject to appellate review if it is within the limits prescribed by the applicable statute. Reynolds v. State, 585 So.2d 753, 756 (Miss.1991); Reed, v. State, 536 So.2d 1336, 1339 (Miss.1988); Boyington v. State, 389 So.2d 485 (Miss.1980); Ains-worth v. State, 304 So.2d 656, 658 (Miss.1974). This includes sentences based on guilty pleas. So long as the judge remains uninvolved in any plea negotiations between the defendant and the State, it will not be reversible error for a trial judge to sentence a defendant to a longer term than that recommended by the State. Edwards v. State, 800 So.2d 454, 470 (Miss.2001) (citations omitted).

¶ 11. Secondly, the decision of whether to allow a defendant to withdraw a valid guilty plea also lies within the discretion of the trial court. Miss. Unif. Cir. & Cty. R. 8.04(A)(5). 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. King v. State, 738 So.2d 240, 241 (Miss.1999). To determine whether the plea is voluntarily and intelligently given, the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea. Harris v. State, 806 So.2d 1127, 1130 (Miss.2002).

¶ 12. The record shows that, prior to accepting Burrough’s plea, Judge Morgan thoroughly queried him with regard to the voluntariness of his plea, carefully explained to him that whatever sentencing recommendation the State offered would not have to be accepted by the court, and informed Burrough that the Court instead could impose any sentence allowed by law. Judge Morgan specifically told Burrough that this particular crime carried with it a minimum of three years and a maximum of twenty-five years in the custody of the Mississippi Department of Corrections. Burrough openly indicated that he fully understood this. He then pleaded guilty to the charge of burglary of a dwelling, and the State offered its recommended sentence. The record does not suggest in the slightest that the trial judge involved himself in any plea-bargaining negotiations that might have occurred between the State and the defendant in this matter.

¶ 13. As evinced by both the plea agreement and the plea colloquy, Bur-rough willfully acknowledged that he fully understood that the State’s promise to recommend a sentence carried with it no guarantee that its recommendation would bind the trial court to a particular sentence upon a plea of guilty. Therefore, neither the trial court’s decision to sentence Bur-rough to the maximum amount allowed by Mississippi Code Section 97-17-23, nor its subsequent decision to deny Burrough’s plea-withdrawal request, was an abuse of discretion. Burrough’s argument with regard to this issue is without merit.

II. Whether Burrough was denied due process of law when the trial court failed to consider the factual basis for the guilty plea.

¶ 14. Pursuant to Rule 8.04(A)(3) of the Uniform Circuit and County Court Rules, “[b]efore the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea.” (Emphasis added). The factual-basis component of the rule requires that, “before it may accept the plea, the circuit court have before it, inter alia, substantial evidence that the accused did commit the legally defined offense to which he is offering the plea.” Corley v. State, 585 So.2d 765, 767 (Miss.1991). What facts must be shown depends on the crime and its assorted elements. Id. There are numerous ways by which the facts may be found, but what ultimately is required is “there must be enough that the court may say with confidence the prosecu tion could prove the accused guilty of the crime charged.” Id. (citing United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 764, 102 L.Ed.2d 927, 936 (1989)).

¶ 15. At the guilty-plea hearing, the State informed the trial court that it had multiple witnesses whose testimonies would show that Burrough broke into a home and therein stole property. The State also told the trial court that it was prepared to offer testimony that Burrough was interviewed shortly after the alleged crime and admitted to taking the property and disposing of it. When asked by the trial court if he did, in fact, do these things which the State intended to prove, Bur-rough stated, “Yes.”

¶ 16. The record before the Court clearly reveals that the trial court accepted Burrough’s voluntarily and intelligently-made plea based on a sufficient evidentiary suggestion of guilt to the charged crime of burglary. Burrough’s argument that the trial court accepted his plea without a factual basis is without merit.

III. Whether Burrough was denied due process of law when the trial court allegedly failed to tell him that his sentence could be appealed to the Supreme Court for direct review.

¶ 17. Burrough contends that the trial court should have informed him of the ability to directly appeal his sentence to the Supreme Court. He argues the trial judge committed fundamental error when he failed to advise Burrough of this avenue of review. We disagree.

¶ 18. Mississippi law prohibits persons who have pleaded guilty to a crime from filing direct appeals to this Court. Miss.Code Ann. § 99-35-101(2006). As such, this Court does not have jurisdiction on direct appeal to address the merits of a guilty plea. Bennett v. State, 865 So.2d 1158, 1159 (Miss.2004). The proper procedure is for these persons to file a petition for post-conviction collateral relief in the circuit court See Miss.Code Ann. §§ 99-39-1 to 99-39-29 (Rev.2007).

¶ 19. Burrough is correct that this Court has found jurisdiction in certain instances over matters involving a direct appeal from a sentence imposed under a guilty plea. See e.g. Trotter v. State, 554 So.2d 313 (Miss.1989). In any such case, however, this Court limited itself to the sentence only. See Berry v. State, 722 So.2d 706, 707 (Miss.1998) (restricting review of a directly appealed conviction and sentence based on a guilty plea to the validity of the sentence); nee aim Bennett, 865 So.2d at 1159 (dismissing altogether petitioner’s appeal, which attempted to argue the merits of enhancement punishment in relation to his guilty plea, for lack of jurisdiction).

¶ 20. Based on his argument for this issue, Burrough uses his sentence to attack his guilty plea. Had he attempted to do so via direct appeal, this Court either would have dismissed his claim outright (nee Bennett, 865 So.2d at 1159), or, for the reasons stated in the first issue, simply would have found his sentence to be within the limit allowed by law (see Bern), 722 So.2d at 707). This, though, is speculative hindsight. For our purposes, as the Court of Appeals recently opined, our law has never required a trial judge to inform a criminal defendant about the right to appeal directly the sentence received based on a guilty plea. Coleman v. State, 979 So.2d 731, 733 (Miss.Ct.App.2008). This issue is without merit.

IV. Whether the actions of Bur-rough’s attorney equated to ineffective assistance of counsel thereby violating his constitutional right to a fair trial.

¶ 21. Burrough asserts that his defense counsel was deficient because he failed to object when the trial court enhanced his sentence without giving him the opportunity to withdraw his guilty plea. Additionally, Burrough asserts that counsel was deficient for not informing him that he could be sentenced as an habitual offender; that his sentence might have been illegal; and that he would not be granted post-release supervision for part of his sentence.

¶ 22. In evaluating an ineffective-assistance charge with regard to guilty-plea proceedings, this Court, essentially, applies the same two-part inquiry as that used for challenges claiming ineffective trial assistance. See Coleman v. State, 483 So.2d 680 (Miss.1986) (adopting the two-pronged test set forth in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203, (1985), which held that the two-part test announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674, 693-95 (1984) for ineffective trial assistance claims also applies to guilty-plea proceedings). This requires the defendant to show: (1) that his counsel’s performance was deficient (fell below the objective standard of reasonableness), and (2) that the deficiency prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. In the context of guilty pleas, this means the defendant must show that, were it not for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Coleman, 483 So.2d at 683 (citations omitted).

¶ 23. Burrough’s charge that his counsel failed to object when the trial court did not accept the State’s recommended sentence chiefly fails under prong two, the “prejudice” prong, of Strickland. Therefore, we proceed directly to this part of the test. See Strickland, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”)

¶ 24. Whether or not counsel’s failure to object to the trial court’s decision not to accept the State’s recommendation fell below the objective standard of reasonableness contemplated by Strickland, is of no matter. The error, if any, is one that originated subsequent to the court’s acceptance of a valid guilty plea, after it was determined to be voluntarily and intelligently given, based on an acknowledged understanding by the defendant that any “consequences” allowed by law could result. Therefore, Burrough cannot properly demonstrate the “prejudice” requirement set forth by Coleman, which contemplates the validity of the plea itself, not the trial court’s discretion thereafter. Coleman,, 483 So.2d at 680.

¶ 25. As for Burrough’s remaining ineffectiveness charges, the record wholly negates the basis for each. Judge Morgan specifically told Burrough that he was not being sentenced as an habitual offender; nor was he so designated in the sentencing order. Also, because Bur-rough’s twenty-five-year sentence lies within the limits prescribed by Section 97-17-23, it is not illegal. Finally, with regard to the assertion that defense counsel failed to tell him that he would not receive post-release supervision, the record (once more) discloses that Burrough’s defense counsel and the trial judge both thoroughly led him through the plea process to ensure that he understood his plea did not guarantee him either post-release supervision or a particular sentence.

¶ 26. It is the finding of this Court that Burrough’s claim that his counsel’s representation was constitutionally ineffective is without merit.

CONCLUSION

¶27. This Court finds the trial court did not err in dismissing Burrough’s petition for post-conviction collateral relief without an evidentiary hearing. The judgment of the Circuit Court of Carroll County is affirmed.

¶ 28. AFFIRMED.

WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS AND CHANDLER, JJ„ CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY.

      . The record indicates that Burrough and another individual were suspected of having broken into Ashmore’s Wrecker Service establishment and removing car "rims.”

      . In his signed plea petition, Burrough acknowledged that he understood a plea of guilty to the crime of burglary of a dwelling house carries with it a possible sentence of three years to twenty-five years imprisonment and that there was no guarantee by the State as to what length the court might impose.

      . Note, that Mississippi Code Section 99-35-101 has been amended since Burrough's conviction and sentence in May 2006. See 2008 Miss. Laws, ch. 457, § 1, eff. from and after July I, 2008. The former section, however, is controlling in this matter, therefore the response and analysis to Burrough’s point in contention will be restricted to this Court’s interpretation of that section as it existed.


text:
    Trey Allen BEAMON v. STATE of Mississippi.
    No. 2007-KP-02170-SCT.
    Supreme Court of Mississippi.
    April 2, 2009.
    Rehearing Denied June 4, 2009.

      Trey Allen Beamon, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.
   RANDOLPH, Justice,

for the Court.

¶ 1. Following his indictment for armed robbery, Trey Allen Beamon elected to file a “Petition to Plead Guilty” to the lesser crime of “strong arm robbery[,]” in exchange for the State’s recommendation of a fifteen-year sentence in the custody of the Mississippi Department of Corrections (“MDOC”). Thereafter, the Circuit Court of Neshoba County, Mississippi, although not required to do so, accepted the State’s recommendation and sentenced Beamon to fifteen years in the custody of the MDOC. Beamon now appeals regarding the constitutionality of his sentence.

FACTS

¶ 2. The record is sparse regarding the underlying incident. According to Beam-on’s testimony, on April 16, 2007, he exhibited a weapon and took “[l]ike $700” from eight Hispanic individuals. Moreover, Beamon testified that he gave no money to April Foster because “she didn’t ask for none.”

¶ 3. On August 28, 2007, Beamon and Foster were indicted for armed robbery pursuant to Mississippi Code Annotated Section 97-3-79, which carries a maximum sentence of life imprisonment. See Miss. Code Ann. § 97-3-79 (Rev.2006). The indictment specifically stated that Beamon and Foster:

did wilfully, unlawfully and feloniously take or attempt to take from the presence of [eight individuals], against the will of [those eight individuals], by putting [those eight individuals] in fear of immediate injury to their persons by the exhibition of a deadly weapon, namely, a firearm, cash money in the form of currency of more than [$10.00] ... belonging to and being the personal property of [those eight individuals] contrary to and in violation of Section 97-3-79, Miss. Code Ann. (1972)....

¶ 4. On November 6, 2007, Beamon filed his “Petition to Plead Guilty” to the crime of “strong arm robbery.” Inter• alia, Beamon’s sworn petition included the following statements/questions and answers:

Q. Do you know and. understand the maximum and minimum sentence for this crime [armed robbery vs. robbery] is
A. max — life + $10,000, min — 0 yrs + $0; Strong arm [robbery] — 15 yrs + $10,000, min — 0 yrs + [$]0.
Q. Has anyone told you that it would be better for you to plead guilty, that the court would be lighter on you, or anything like those statements?
A. No.
Q. Do you understand that ... if you plead guilty, you are waiving your right to appeal your case?
A. Yes.
Q. Do you understand that if you plead guilty, you are waiving your constitutional rights against self-incrimination, the constitutional rights I have just asked you about, and all of your constitutional rights?
A. Yes.
Q. Do you understand that, if your plea of guilty is accepted, the only thing remaining for the court to do is to sentence you, and that sentence could be to
the maximum sentence provided by the law?
A. Yes.
Q. State what sentence the State will recommend, if any to your knowledge, on your [pjlea of guilty.
A. 15 years ... $1,500.00.
Q. Has anyone ever indicated or told you the State’s recommendation would be less?
A. No.
Q. Knowing your personal background, the crime you are charged with committing, the maximum and minimum punishment therefor, that you are waiving all of your constitutional rights, what the State will recommend, and that the court may not accept the recommendation of the State and may sentence you to the maximum sentence provided by law, is it still your desire to enter a plea of guilty to the crime with which you are charged?
A. Yes.

In the “Transcript of Guilty Plea,” Beam-on’s sworn testimony conforms to the sworn answers contained in his “Petition to Plead Guilty.” Regarding whether his plea bargain was for a sentence recommendation of fifteen years for strong-arm robbery, Beamon answered affirmatively. The State then confirmed that its recommendation was for Beamon to “be sentenced to the custody of the [MDOC] for a period of 15 years.” The circuit court subsequently followed that recommendation in sentencing. On November 8, 2007, a “Judgment on Guilty Plea” was entered by the circuit court.

¶ 5. On November 30, 2007, Beamon filed a “Notice of Appeal” pro se regarding “the sentence imposed upon him.... ”

ISSUE

¶ 6. This Court will consider:

(1) Whether Beamon was denied due process of law in sentencing, and whether the resulting term of imprisonment imposed constitutes a disproportionate sentence

ANALYSIS!]

¶ 7. According to Beamon: the trial court violated [his] due process right to be sentenced on accurate information and erred in its exercise of discretion because the [c]ourt relied upon the unverified statements made by [Foster], a co-defendant who had an interest in [Beamon] being convicted and sentenced, without allowing [Beamon] an opportunity to cross[-]examine the statements or to offer his version of the events. The court believed, erroneously, that [Foster] was not involved and because Foster was white and [Beamon] was black, the [c]ourt never allowed [Beamon] to question Foster and simply took Foster’s word. Foster was over five years older than [Beamon] and did bring [Beamon] to the location of the victim of the crime. According to Foster, she was not a participant. [] The [c]ourt reserved the right to vacate and set aside Foster’s sentence. This was a luxury which the [c]ourt did not extend to [Beamon] even though [Beamon] was a first time offender and entered a plea of guilty.

Beamon maintains that the circuit court’s purported reliance upon this alleged “inaccurate information” constitutes a denial of due process of law, which led to the imposition of a “disproportionate” sentence for strong-arm robbery. In sum, Beamon contends that because “the court imposed the maximum, consecutive sentences with the erroneous belief that [Beamon] had been the aggressor in the robbery, had committed an assault during the robbery, [and] had kidnaped Foster, an admitted prostitute, at gun point.” Thus, he argues that his sentence amounts to an abuse of discretion.

¶ 8. Beamon further asserts that the circuit court failed to consider “mitigating circumstances” in imposing the sentence and cites Wisconsin law in arguing that the circuit court failed to “justify the sentence on the record and indicate what factors or evidence was considered in arriving at such sentence[,]” despite Foster’s alleged testimony that “other people were involved in the same offense which others were never charged.”

¶ 9. Procedurally, this Court notes that Beamon failed to challenge the constitutionality of his sentence or raise mitigating circumstances before the circuit court. Therefore, this Court is procedurally barred from considering such arguments on appeal. See Reed v. State, 536 So.2d 1336, 1339 (Miss.1988). Notwithstanding the procedural bar, this Court will address the sentencing issue in Beamon’s appeal.

¶ 10. Without question, “the sentencing process as well as the trial itself, must satisfy the requirements of the Due Process Clause.” Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393, 402 (1977). Moreover, the reliance upon materially false assumptions in sentencing violates due process. See United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 592, 30 L.Ed.2d 592, 596 (1972); Townsend v. Burke, 334 U.S. 736, 740-41, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690, 1693 (1948). However, Beamon’s entire argument on this point is premised upon the alleged “unverified statements” of Foster, which are absent from the record. This Court has stated that:

we must decide each case by the facts shown in the record, not assertions in the brief, however sincere counsel may be in those assertions. Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them.

Mason v. State, 440 So.2d 318, 319 (Miss.1983) (citations omitted). See also American Fire Protection, Inc. v. Lewis, 653 So.2d 1387, 1390 (Miss.1995) (“it is an appellant’s duty to justify his arguments of error with a proper record, which does not include mere assertions in his brief, or the trial court will be considered correct.”). Foster’s testimony is absent from the record. Accordingly, the actions of the circuit court are deemed correct.

¶ 11. Regarding the sentence imposed, this Court has stated that:

“[s]entencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.”[] Wall v. State, 718 So.2d 1107, 1114 (Miss.1998) (quoting Hoops v. State, 681 So.2d 521, 537 (Miss.1996)).... In Fleming v. State, 604 So.2d 280, 302 (Miss.1992), this Court held that the general rule in Mississippi is that a sentence that does not exceed the maximum term allowed by the statute cannot be disturbed on appeal. However, this Court will review a sentence that allegedly imposed a penalty that is disproportionate to the crime. Id.
The United States Supreme Court has set forth the following three-prong test for an Eighth Amendment proportionality analysis:
(i) the gravity of the offense and the harshness of the penalty;
(ii) the sentence imposed on other criminals in the same jurisdiction; and
(iii) the sentences imposed for commission of the same crime in other jurisdictions.
Solem v. Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001, 3010-11, 77 L.Ed.2d 637 (1983).
This Court noted, however, that Solem was overruled in Hannelin v. Michigan, 501 U.S. 957, 965-66, 111 S.Ct. 2680, 2686-87, 115 L.Ed.2d 836 (1991) “to the extent that it found a guarantee of proportionality in the Eighth Amendment. In light of Harmelin, it appears that Solem is to apply only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross dispropoHionality.’ Hoops, 681 So.2d at 538 (citations omitted). The appellate courts will not apply the three-prong disproportionality test when there is a lack of this initial showing. Young v. State, 731 So.2d 1120, 1125 (Miss.1999).... This Court has held that a sentence that is within the statutorily defined parameters of the crime, usually is upheld and not considered cruel and unusual punishment. Barnwell v. State, 567 So.2d 215, 222 (Miss.l990).[]

Nichols v. State, 826 So.2d 1288, 1290 (Miss.2002) (emphasis added). Mississippi Code Annotated Section 97-3-75 provides that “[ejvery person convicted of robbery shall be punished by imprisonment in the penitentiary for a term not more than fifteen years.” Miss.Code Ann. § 97-3-75 (Rev.2006). Beamon’s sentence was within the limits set forth by the applicable statute.

¶ 12. Given that Beamon’s sentence was consistent with the State’s recommendation, which Beamon acknowledged prior to entering his guilty plea, and was within the limits prescribed by Mississippi Code Annotated Section 97-3-75, this Court finds no basis upon which to require an articulated justification by the circuit judge. Nor does the record support an inference of gross disproportionality. Accordingly, this Court finds Beamon’s sentencing argument to be -without merit.

CONCLUSION

¶ 13. We affirm the “Judgment on Guilty Plea” and sentence of the Circuit Court of Neshoba County.

¶ 14. CONVICTION OF STRONG ARMED ROBBERY AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

WALLER, C.J., CARLSON, P.J., DICKINSON, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY.

      1. This Court has consolidated the two issues raised by Beamon into one issue.

      . Preliminarily, this Court notes that, despite Beamon's guilty plea, he retains the right to appeal an “alleged erro[r] in sentencing.” Lett v. State, 965 So.2d 1066, 1070 (Miss.2007). See also Trotter v. State, 554 So.2d 313, 315 (Miss.1989). This Court’s review is limited to the sentencing issue and is not procedurally barred by Mississippi Code Annotated Section 99-35-101 (Rev.2007). While not applicable in this case, this Court adds that Mississippi Code Annotated Section 99-35-101 was amended, effective July 1, 2008, to state "[a]ny person convicted of an offense in a circuit court may appeal to the Supreme Court. However, where the 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.2008).

      . To clarify, the alleged “inaccurate information” is that "Foster was not involved and had been forced by [Beamon] to be a participant or be present at the crime scene."

      . As the State argues, "[t]he [c]ircuit [c]ourt therefore cannot be faulted for having failed to take such evidence into consideration.”

      . This Court has stated that "[i]t is within the legislative purview to define crimes and to assign punishment.” Braxton v. State, 797 So.2d 826, 829 (Miss.2000) (citing Weaver v. State, 713 So.2d 860, 863 (Miss. 1997)).

      . See also Wallace v. Stale, 607 So.2d 1184, 1188 (Miss.1992) (quoting Clowers v. State, 522 So.2d 762, 765 (Miss.1988)) ("outside the context of capital punishment, successful challenges to the proportionality of a particular sentence will be exceedingly rare.”).