author: MAXWELL, J.,

text:
    Andrew MATTHIES a/k/a Andrew K. Matthies, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KM-00783-COA.
    Court of Appeals of Mississippi.
    May 31, 2011.
    Rehearing Denied Sept. 27, 2011.
    Kevin Dale Camp, Jackson, attorney for appellant.
    Office of the Attorney General by John Hedglin, Madison, Billy L. Gore, Scott Stuart, Jackson, attorneys for appellee.

      Before IRVING, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Andrew Matthies appeals his conviction for driving under the influence, first offense. His voluntary breath sample on the Intoxilyzer 8000 administered at the police station registered a blood-alcohol content (BAC) in excess of Mississippi’s legal limit of .08%. He argues the admission of intoxilyzer calibration records violated his confrontation rights because the person who calibrated the machine did not testify. We find the records nontestimonial in character, and the Confrontation Clause does not require the testimony of their preparer. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 13, 2008, at approximately 11:43 p.m., Madison Police Department Officer James Craft stopped Mat-thies for speeding. Officer Craft testified that he smelled alcohol emitting from Mat-thies’s vehicle and observed that Mat-thies’s eyes were red. When questioned whether he had been drinking, Matthies told Officer Craft he had consumed “a few beers.” Officer Craft asked Matthies to step out of the vehicle, and Matthies complied. Officer Craft administered several field sobriety tests and a preliminary breath test. Based on the results of these tests, Officer Craft placed Matthies under arrest. At the City of Madison Police Department, Matthies consented to take an intoxilyzer test, which registered a BAC of .11%.

¶ 3. Matthies was charged with DUI, first offense. He entered a plea of nolo contendere in municipal court. He appealed to the county court, where a trial de novo was conducted by the county judge sitting without a jury. During trial, Officer Craft testified that he administered the intoxilyzer test on Matthies, and Matthies registered a BAC of .11%. Notably for this appeal, the judge found the intoxilyzer calibration certificates admissible over Mat-thies’s Confrontation Clause objection. The calibration certificates were filled out on September 1, 2008, and October 2, 2008, and certify that the Intoxilyzer 8000 machine administered to Matthies was in “working condition” and met “acceptable standards of accuracy.”

¶4. The county judge found Matthies guilty of speeding and driving under the influence, first offense, in violation of Mississippi Code Annotated section 63-11-30(l)(c) (Supp.2010). Matthies appealed to the circuit court, which affirmed.

DISCUSSION

¶ 5. The precise issue before us is whether, for the proper admission of intox-ilyzer calibration records, the Confrontation Clause requires the person who calibrated the intoxilyzer to testify. Matthies readily admits that his identical argument has been rejected by the Mississippi Supreme Court. See Harkins v. State, 735 So.2d 317, 319 (¶¶ 4-5) (Miss.1999) (finding no Confrontation Clause violation in the admission of intoxilyzer calibration certificates without the testimony of the person who performed the calibration); see also Zoerner v. State, 725 So.2d 811, 814 (¶ 13) (Miss.1998) (citing McIlwain v. State, 700 So.2d 586, 591 (¶22) (Miss.1997)). But, as he correctly points out, these cases were decided before the United States Supreme Court restructured Confrontation Clause jurisprudence in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). No Mississippi court has considered this issue in light of Crawford and its progeny, most notably, Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

I. Confrontation Clause

¶ 6. The Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]” U.S. Const, amend. VI. The Clause is applicable to the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

¶ 7. In Crawford, the Supreme Court held that when an out-of-court statement is testimonial, it is inadmissible unless (1) the declarant is unavailable to testify, and (2) the defendant had a prior opportunity to cross examine the declarant. Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354. Conversely, nontestimonial hearsay falls outside the scope of the Confrontation Clause, but still “is subject to evidentiary rules concerning reliability0

¶ 8. In the context of police interrogations, the Supreme Court established in Davis that a statement is testimonial “when the circumstances objectively indicate that there is no ... ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Davis, 547 U.S. at 822, 126 S.Ct. 2266. A statement is nontesti-monial when “made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Id.

II. Melendez-Diaz

¶ 9. In Melendez-Diaz, a plurality opinion authored by Justice Scalia, the Supreme Court held that a Confrontation Clause violation occurred by the admission of “certificates of analysis” without the testimony of the lab analyst who prepared them. Melendez-Diaz, 129 S.Ct. at 2532. These records certified that forensic analysis had shown that the substance seized from the defendant was cocaine. Id. at 2531. The defendant, charged with trafficking cocaine, objected to the admission of the certificates, arguing the Confrontation Clause required the lab analysts to testify in person. Id. The Supreme Court plurality agreed, reasoning: “[T]he analysts’ statements here — prepared specifically for use at petitioner’s trial — were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.” Id. at 2540.

¶ 10. But in excluding the certificates of analysis the Court was careful to emphasize: “we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.” Id. at 2532 n. 1 (emphasis added). This is because “gaps in the chain of custody normally go to the weight of the evidence rather than its admissibility.” Id. The Court further explained that “documents prepared in the regular course of equipment maintenance may well qualify as non-testimonial records.” Id.

¶ 11. Since the Melendez-Diaz Court expressly declined to answer the question before us, we look to other jurisdictions. Courts having occasion to consider intoxi-lyzer inspection, maintenance, or calibration records post-Melendez-Diaz have almost uniformly agreed that such records are nontestimonial in nature. See United States v. Forstell, 656 F.Supp.2d 578, 580-82 (E.D.Va.2009); State v. Linder, 227 Ariz. 69, 252 P.3d 1033, 1035-1036 (Ariz.Ct. App.2010); Jacobson v. State, 306 Ga.App. 815, 703 S.E.2d 376, 379 (2010); People v. Jacobs, 405 Ill.App.3d 210, 345 Ill.Dec. 335, 939 N.E.2d 64, 71-72 (2010); Ramirez v. State, 928 N.E.2d 214, 219-20 (Ind.Ct.App. 2010); State v. Johnson, 43 Kan.App.2d 815, 233 P.3d 290, 299 (2010); State v. Bergin, 231 Or.App. 36, 217 P.3d 1087, 1089 (2009); Settlemire v. State, 323 S.W.3d 520, 521-22 (Tex.Ct.App.2010); Hamilton v. State, 2010 WL 4260608, *3 (Alaska Ct.App.2010) (unreported decision). But see United States v. Gorder, 726 F.Supp.2d 1307, 1314 (D.Utah 2010) (finding “Intoxilyzer 8000 Operational Checklist” testimonial).

¶ 12. In Ramirez, the Indiana Court of Appeals confronted similar calibration certificates and found:

Melendez-Diaz does not hold that routine calibration records are always non-testimonial. But at a minimum it leaves the question unresolved and demands the same type of scrutiny that we have undertaken since Crawford. ... The certificates do not comprise ex parte in-court testimony or its functional equivalent. They are not formalized testimonial materials like sworn affidavits. Moreover, while the certificates contemplate use in criminal trials, they are completed in advance of any specific alleged drunk-driving incident and breath test administration and are not created for the prosecution of any particular defendant.

Ramirez, 928 N.E.2d at 219. We find the Indiana court’s reasoning from Ramirez sound and draw from the other courts that have relied on similar rationales.

¶ 13. The certificates at issue here do nothing more than verify the accuracy of the equipment. Though the intoxilyzer was calibrated for use in criminal prosecutions, the certificates were not specifically prepared with an eye on prosecuting Mat-thies. Therefore, the calibration records in this case are different from the lab analysts’ certificates at issue in Melendez-Diaz, which were prepared after the drug seizure to establish at the defendant’s trial that the substance obtained from him was cocaine.

¶ 14. For these reasons, we affirm the circuit court’s judgment and join the numerous other jurisdictions that have found Melendez-Diaz does not always require the person who calibrated an intoxilyzer to testify for the proper admission of the calibration records.

¶ 15. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE OF FORTY-EIGHT HOURS IN THE CUSTODY OF THE SHERIFF OF MADISON COUNTY, WITH THE SENTENCE SUSPENDED FOR TWO YEARS UNLESS SOONER INVOKED ON CERTAIN SPECIFIED CONDITIONS, AND TO PAY A FINE OF $700 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. RUSSELL, J., NOT PARTICIPATING.

      . We note there is no Confrontation Clause issue with the IP-0 IE form, which shows Matthies registered a .11% BAC, because Officer Craft, who filled out the form, testified and was cross-examined.

      . By statute, the State Crime Laboratory is required to conduct periodic tests of the accuracy of breath-test machines, and to issue certificates certifying their accuracy. Miss. Code Ann. § 63-11-19 (Supp.2010).

      . On appeal, Matthies has not raised any issue concerning his speeding ticket.

      . Section 63 — 11—30(l)(c) prohibits persons over the legal drinking age from operating a vehicle with a blood alcohol concentration above .08%.

      .The Mississippi Supreme Court recently declared the “three-court rule” unconstitutional. Jones v. City of Ridgeland, 48 So.3d 530, 535 (¶ 7) (Miss.2010). The supreme court found the rule deprived appellate courts of jurisdiction where the case originated in municipal or justice court and was then appealed to both county and circuit court, unless the case involved a constitutional question and the circuit judge or a supreme court justice allowed the appeal. Id. at 534 (¶ 6) (citing Miss.Code Ann. § 11-51-81 (Rev.2002)). With this rule no longer in force, we have jurisdiction.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Cecil Junior PRUITT, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CA-00230-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.
    Rehearing Denied Nov. 15, 2011.
    Certiorari Granted March 15, 2012.
    Certiorari Dismissed April 12, 2012.

      James A. Williams, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    GRIFFIS, P.J., MYERS, ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court:

¶ 1. This is an appeal from the denial of post-conviction relief (PCR) from the Circuit Court of Lauderdale County’s revocation of Cecil Junior Pruitt’s (Pruitt) post-release supervision (PRS). Pruitt pleaded guilty to the sale of cocaine. The circuit court sentenced Pruitt to twenty years, with all but one day suspended, and ordered Pruitt to serve three years on PRS.

¶ 2. While on PRS, Pruitt was arrested again for selling cocaine. Pruitt’s PRS was subsequently revoked, and he was ordered to serve the remainder of his twenty-year sentence in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Pruitt now appeals, raising ten assignments of error. Finding that none of Pruitt’s arguments merit relief, we affirm the circuit court’s judgment.

STATEMENT OF THE CASE

¶ 3. In 2005, Pruitt pleaded guilty to the sale of cocaine within 1,500 feet of a church, and was sentenced to twenty years in the custody of the MDOC. The circuit court ordered a suspended sentence of nineteen years, three hundred and sixty-four days, with only one day for Pruitt to serve in jail. The circuit court also ordered that Pruitt serve three years on PRS.

¶ 4. While on PRS, Pruitt was arrested again for selling cocaine within 1,500 feet of a church. An affidavit asserting a violation of PRS was filed on October 10, 2007, and a warrant for Pruitt’s arrest was issued that same day. Trial was set for March 18, 2008, on the second charge for the sale of cocaine, and the PRS revocation hearing was set for the same date. However, on the morning of trial, the State agreed to nolle prosequi the new sale-of-coeaine charge and proceed only on the revocation issue. The circuit court signed a nolle prosequi order and moved forward with the revocation hearing.

¶ 5. During the hearing, the State presented testimony of Karl Merchant (Merchant), an agent with the East Mississippi Drug Task Force, and of Shannon Tension (Tension), the confidential informant. The State also presented the wire-recorded conversation of the drug sale between Pruitt and Tension. Pruitt did not present witnesses or evidence, but his counsel did cross-examine the State’s witnesses.

¶ 6. Tension stated that before the buy, he was searched by task force agents, wired, and given two marked $20 bills to use to purchase drugs. He was then dropped off in the vicinity of the sale. Pruitt, who was driving a car with his girlfriend and baby as passengers, pulled up to Tension. The two began talking, and Tension gave Pruitt money in exchange for cocaine. Once Tension walked away from the car, narcotics agents pulled Pruitt over. Cocaine residue was found in the console of the car he was driving, along with the marked $20 bills. Tension was picked up by the police shortly thereafter, and was found to be in possession of cocaine and without the $20 bills.

¶7. After hearing the testimony, the circuit court determined that Pruitt was involved in a drug sale and as a result, revoked Pruitt’s PRS. Pruitt received credit for time served while he was in jail awaiting the revocation hearing. Pruitt filed a “petition for a writ of habeas corpus and/or motion to reinstate post-release supervision.” The circuit court considered this petition as a request for post-conviction relief and denied relief without an evidentiary hearing.

¶ 8. Pruitt now appeals, asserting ten issues, which we have consolidated for clarity into the following: (1) he was denied due process of law because he did not receive proper notice for the PRS revocation hearing, and he should have first received a preliminary hearing; (2) he was not afforded due process of law because he was denied a right to discovery concerning evidence to prove his guilt of the charge upon which the revocation was based; (3) he was denied due process of law because the State only introduced a copy of a forensic report prepared by the Mississippi State Crime Laboratory concerning the cocaine he was alleged to have sold, and the laboratory technician was not called to testify; (4) the circuit court erred in denying post-conviction relief without conducting an evidentiary hearing; and (5) he received ineffective assistance of counsel.

STANDARD OF REVIEW

¶ 9. This Court will not disturb a circuit court’s decision to deny a petition for post-conviction relief unless the court’s factual findings are clearly erroneous. Forshee v. State, 853 So.2d 136, 139 (¶ 16) (Miss.Ct.App.2003). “However, where questions of law are raised[,] the applicable standard of review is de novo.” Id.

DISCUSSION

I. Notice and Preliminary Hearing

¶ 10. Pruitt first argues that he did not receive adequate notice of the PRS revocation hearing, because the hearing was held in lieu of the trial. For the second charge of selling cocaine near a church, the circuit court set a trial date for March 18, 2008. On the day of the trial, however, the prosecutor dropped the charges against Pruitt and pursued only the PRS revocation. Pruitt argues that he was only notified of the PRS revocation hearing on the day the hearing took place, and because of the late notice, he was unable to adequately prepare a defense. However, we find the record is contrary to his assertions.

¶ 11. Pruitt claims that he was “ambushed” by the revocation hearing because he only received notice of the hearing on the day that the trial was originally set. The State must give prior notice of the grounds upon which it contends PRS should be revoked, and that notice must be specific and timely so as to allow an individual to mount a defense both with cross-examination of State witnesses and the opportunity to gather and present any evidence tending to show revocation is improper. Edmond v. Miss. Dep’t of Corrs., 783 So.2d 675, 679 (¶ 14) (Miss.2001); Grayson v. State, 648 So.2d 1129, 1134 (Miss.1994).

¶ 12. The evidence shows that a written “Warrant and Petition” for revocation of Pruitt’s PRS was entered on October 10, 2007, giving Pruitt notice that the MDOC had asked the circuit court to revoke the PRS due to the new charge of selling cocaine within 1,500 of a church. This petition served as formal written notice to Pruitt of the claim that he had violated his PRS. Further, the hearing transcript shows that both the trial and revocation hearing were scheduled for March 18, 2009:

BY THE COURT: The matter was scheduled — there were two matters that were scheduled today. One is the trial on the new cocaine sale charge. And as I understand it, the State is not pursuing that today.

Both Pruitt’s attorney and the attorney for the State replied in the affirmative that this was the situation. Based on the record, we find that Pruitt received adequate notice for the PRS hearing. This assignment of error is without merit.

¶ 13. Pruitt also maintains that due process requires that he should have received a preliminary revocation hearing before the final revocation hearing. An inmate on PRS has a right to a preliminary hearing as soon as practicable after he receives notice that the State intends to pursue revocation. Rusche v. State, 813 So.2d 787, 789-90 (¶ 7) (Miss.Ct.App.2002) (citing Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). Pruitt contends he was denied this right.

¶ 14. The record shows that Pruitt waived his right to arraignment on the second charge of the sale of cocaine, which led to the revocation hearing. At the revocation hearing, Pruitt did not raise this issue. Failure to raise the issue of denial of a preliminary hearing to revoke post-release supervision waives the issue. Hubbard v. State, 919 So.2d 1022, 1027 (¶ 17) (Miss.Ct.App.2005). Therefore, Pruitt is precluded from now raising this issue.

¶ 15. Moreover, even absent waiver, this issue is without merit. Pruitt’s argument is premised upon the notion that by denying him a preliminary hearing on the revocation, the State intentionally deprived him of the means to inquire into the charges and evidence that would be introduced against him. Yet Pruitt admits that he prepared for trial on the underlying charge, and he only later complained that he was surprised when the State introduced evidence gathered to prosecute this second charge to revoke his PRS. If he was prepared for trial, as he admits, he could not be unfairly surprised by the very evidence the State would have introduced at trial.

¶ 16. Even if we assumed that the issue was not waived, which we do not, Rusche requires that a person asserting that he failed to receive a preliminary hearing must show some harm stemmed from the denial of the hearing. Rusche, 813 So.2d at 790-91 (¶ 13). See also Roach v. State, 938 So.2d 863, 866 (¶ 5) (Miss.2006). Pruitt fails to show that he was prejudiced. Accordingly, there is no merit to this issue.

II. Discovery

¶ 17. Pruitt also contends that: he was denied a right to conduct discovery in preparation of a defense to the allegations leading to the revocation of his PRS, and he was prejudiced by the State’s decision to proceed only on the revocation of his PRS. Pruitt did not raise these issues at the revocation hearing, and we note that he was represented by counsel at the hearing. In fact, the circuit judge explicitly asked if the attorney’s understanding was that they were in court that day to nolle prosequi the second charge for sale of cocaine and proceed on the PRS revocation. Pruitt’s attorney responded: ‘Yes sir.”

¶ 18. Moreover, Pruitt cites no authority for the proposition that he had any right to discovery in a revocation hearing. We have consistently held that arguments “unsupported by cited authority need not be considered by the Court.” Dowdle Butane Gas Co. v. Moore, 831 So.2d 1124, 1136 (¶ 34) (Miss.2002).

¶ 19. However, we will briefly address the due process rights afforded in revocation hearings. In Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the United States Supreme Court noted: “the revocation of parole is not part of a criminal prosecution and thus the panoply of rights due a defendant in such a proceeding does not apply to parole revocations.” The United States Supreme Court has also held that a defendant’s minimum due-process rights in a parole revocation hearing are the same rights provided for probation revocation hearings. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Further, Mississippi has adopted these minimal due-process requirements for probation revocation hearings, which include:

(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the fact[-]flnders as to the evidence relied on and reasons for revoking [probation or] parole.

Riely v. State, 562 So.2d 1206, 1210 (Miss. 1990); See Gagnon, 411 U.S. at 786, 93 S.Ct. 1756. Finally, pursuant to Mississippi Code Annotated section 47-7-37 (Supp. 2010), the procedures associated with the revocation of probation also apply to the revocation of post-release supervision. Thus, Pruitt is only entitled to the aforementioned minimum due-process rights in this regard. Accordingly, his assertion of error has no merit.

¶ 20. Pruitt further contends he was prejudiced by the State when it proceeded with a PRS revocation hearing, rather than a criminal trial. Pruitt’s argument is quite simply that the State presented evidence tending to show more likely than not that he was guilty of the second sale of cocaine, thereby the State avoided the higher burden of proof of beyond a reasonable doubt that it would have had to show if it obtained an actual conviction on the second sale.

¶ 21. In a revocation hearing, the State is not required to prove that an individual committed a second criminal act. Moore v. Ruth, 556 So.2d 1059, 1061-62 (Miss.1990). Rather, the State must prove that it is more likely than not that an individual committed an act in violation of the terms imposed as part of his sentence. Id. at 1062.

¶ 22. In this case, Pruitt was formerly indicted on the charge of selling cocaine. His attorney signed an order setting the case for trial on March 18, 2008. Pruitt’s likely guilt on this charge was the basis for his PRS revocation. Nothing in the record shows that the State failed to comply with any discovery concerning the second sale of cocaine charge. And, in his PCR motion, Pruitt contends he was ready to defend himself against the charge. Pruitt was never punished for the second sale of cocaine because the prosecutor filed a nolle prosse. Pruitt’s present incarceration is a result of his failure to comply with provisions of his PRS, which the circuit court ordered after he had pleaded guilty to the first charge of sale of cocaine.

¶ 23. We find his argument is without merit, as the State could have proceeded with both a revocation and a criminal trial.

III. Forensic Testimony

¶ 24. Pruitt argues that: the circuit court erred in relying upon copies of the Mississippi Crime Laboratory’s chemical analysis of the cocaine found on his person, and pursuant to his Sixth Amendment rights, Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 2530, 174 L.Ed.2d 314 (2009), requires in-person testimony of individuals who conducted the chemical testing. Melendez-Diaz concerned a criminal prosecution. Id. It is well established that Sixth Amendment rights do not extend to parolees and other similarly situation persons who have already been adjudicated guilty of the crime for which they are punished. See United States v. Garcia-Avalino, 444 F.3d 444, 446-47 (5th Cir.2006). This issue is without merit.

IV. Evidentiary Heariny

¶ 25. Pruitt raises the following issues that he contends required an evi-dentiary hearing in order to comply with due process of law: he was denied his right to testify in his own defense; he was denied the right of criminal discovery; and the confidential informant testified untruthfully at the revocation hearing.

¶ 26. A petitioner must demonstrate, by affidavit or otherwise, that there are unresolved issues of fact which, if concluded favorably to the petitioner, would warrant relief. McCuiston v. State, 758 So.2d 1082, 1086 (¶ 9) (Miss.Ct.App.2000). See Miss.Code Ann. § 99-39-19 (Rev.2007). In this case, the record shows that Pruitt was present at the revocation hearing and was represented by counsel. Yet the defense rested without calling any witnesses. Despite Pruitt’s allegation that he was denied the right to testify in his own defense, the record shows that Pruitt was not prevented from testifying at the revocation hearing.

¶ 27. Further, as previously discussed, Pruitt had no right to criminal discovery in the revocation matter, but he had the opportunity to avail himself of full criminal discovery concerning the merits of the charge of the second sale of cocaine. The confidential informant testified at the revocation hearing, and Pruitt’s attorney cross-examined him concerning whether he had any opportunity to conceal money or drugs on his person after being strip-searched by agents of the East Mississippi Drug Force.

¶ 28. The only support for Pruitt’s allegation that the confidential informant perjured himself are bare allegations attached to his PCR motion. Mere allegations in a motion for post-conviction relief are insufficient to survive summary dismissal. Mayhan v. State, 26 So.3d 1072, 1076 (¶ 10) (Miss.Ct.App.2009). Therefore, the circuit court properly summarily dismissed Pruitt’s allegations pertaining to his right to testify, criminal discovery, and to his allegation that the confidential informant committed perjury.

¶ 29. The circuit court entered two lengthy orders in this matter. The circuit court noted that the Mississippi Rules of Evidence do not apply in revocation proceedings, and in any event, the drugs involved in Pruitt’s alleged second sale of cocaine were legally seized from him because there was probable cause to arrest him based upon the agents having listened to him during a drug sale just moments prior to the arrest. Pruitt’s counsel did cross-examine the confidential informant as to the veracity of his testimony. However, the prosecutor objected to Pruitt’s counsel’s cross-examination of a drug-task-force agent, and requested that he be instructed to use “a civil tone of voice” at “the podium.” The circuit judge termed Pruitt’s counsel’s cross-examination as “aggressive questioning.” And, at Pruitt’s counsel’s request, the circuit judge did listen to the audio recording of the drug transaction. Accordingly, we find this issue is without merit.

V. Ineffective Assistance of Counsel

¶ 30. Pruitt additionally contends that: he received ineffective assistance of counsel in the revocation hearing, and due process requires that he should have been afforded an evidentiary hearing on this issue. Claims of ineffective assistance of counsel are governed by the two-part test set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468, 476-77 (Miss.1984). In order to prevail on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel’s performance was deficient, and that but for the deficiency, the outcome of the case would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

¶ 31. Pruitt claims that his counsel was ineffective in failing to suppress seized evidence and statements made by Pruitt, introduce evidence showing that Pruitt had recently purchased the car in which the drug transaction transpired, impeach Tension as to his motivations to commit alleged perjury and his opportunity to get the cocaine from other people, cross-examine drug-task-force agents and Tension regarding contradictions in their statements, advise Pruitt to testify in his own defense, and introduce the audio recording of the drug transaction.

¶ 32. As previously discussed, to revoke an inmate’s PRS, the State is not required to prove that an individual committed a second criminal act. Rather, the State must prove that it is more likely than not that an individual committed an act in violation of the terms imposed as part of his sentence. Moore, 556 So.2d at 1061-62. In this case, the circuit court heard testimony from a drug-task-force agent who had participated in arresting Pruitt, as well as testimony from Tension. Both witnesses stated that Tension was searched and then given $40 to purchase drugs. Tension testified that he purchased cocaine from Pruitt. The drug-task-force agent testified that he and others had listened to the transaction as it occurred and that Tension turned the cocaine over to the task force after the transaction. When the police searched Pruitt’s car, they found cocaine residue, drug paraphernalia, and the marked bills.

¶ 33. The record also shows that Pruitt’s counsel did make some objections to evidence presented to the circuit court. Pruitt’s argument that his counsel failed to ask that the wired conversation be played in open court is not accurate. His counsel insisted that the circuit court listen to the wire-recorded conversations, and they were listened to by the judge in his chambers. In addition, Pruitt has not provided evidence to demonstrate that but for his counsel’s deficiency, his PRS would not have been revoked.

¶ 34. Thus, the circuit court correctly found that the facts did not support a claim of ineffective assistance of counsel; therefore, Pruitt did not meet his burden under the Strickland test. Accordingly, this issue is without merit.

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

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


text:
    Ray Allen NEWBERRY a/k/a Raymond Allen Newberry a/k/a Raymond Allen Wright, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01729-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2011.
    Rehearing Denied April 17, 2012.

      Leslie S. Lee, Jackson, Mollie Marie McMillin, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before IRVING, P.J., MAXWELL and RUSSELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. A jury in the Harrison County Circuit Court found Ray Allen Newberry guilty of cocaine possession. The circuit court sentenced him as a habitual offender to life imprisonment without eligibility for parole or probation. Though the State had moved to amend his indictment to seek habitual-offender status six days in advance of trial, the circuit judge held the motion in abeyance and did not grant the amendment until after trial. On appeal, Newberry claims he was unfairly surprised by the amendment. However, the record shows Newberry was fully aware that based on his qualifying convictions he faced life imprisonment. Yet he rejected the State’s pretrial plea offer to recommend an eight-year sentence. Because we find he was not unfairly surprised by the amendment to his indictment and resulting life sentence, we affirm.

FACTS

¶ 2. A Gulfport Police Officer stopped Newberry’s vehicle for driving without a tag light and a window-tint violation. The officer arrested Newberry for driving without a license. After performing a pat down, the officer discovered two white rocks, later identified as crack cocaine, in Newberry’s pocket.

¶ 3. A Harrison County grand jury returned an indictment charging Newberry with possessing .1 gram but less than 2 grams of cocaine in violation of Mississippi Code Annotated section 41-29-139(c)(l)(B) (Rev.2009). The sentencing range under this section is two to eight years’ imprisonment and up to a $50,000 fine. Id.

¶ 4. Six days before trial, the State filed a motion to amend Newberry’s indictment to charge habitual-offender status under Mississippi Code Annotated section 99-19-83 (Rev.2007), which provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

The State’s motion specifically sought to amend the indictment “to reflect the habitual status of the said RAY ALLEN NEW-BERRY (A.K.A. RAMOND ALLEN WRIGHT).” And it detailed Newberry’s four prior convictions obtained under his alias, which qualified him for habitual-offender status:

(1) On November 23, 1973, ... RAYMOND ALLEN WRIGHT ... was convicted in the Circuit Court of Harrison County, Mississippi, in Cause Number 497 of the felony of Armed Robbery, and ... was sentenced to a term of three (3) years in the custody of the Mississippi Department of Corrections [ (MDOC) ], said crime being a crime of violence, and that he ... did serve one (1) year or more in the state penitentiary on said conviction;
(2) On October 17, 1976, ... RAYMOND ALLEN WRIGHT ... was convicted in the Circuit Court of Harrison County, Mississippi, in Cause Number 16,169 of the felony of Armed Robbery, and ... was sentenced to a term of twenty (20) years in the custody of [MDOC], said crime being a crime of violence, and that he ... did serve one (1) year or more in the state penitentiary on said conviction;
(3) On February 22, 1980, ... RAYMOND ALLEN WRIGHT ... was convicted in the Circuit Court of Sunflower County, Mississippi, in Cause Number 8492 of the felony of Escape, and ... was sentenced to a term of five (5) years in the custody of [MDOC], and that he ... did serve one (1) year or more in the state penitentiary on said conviction;
(4) On November 7, 1985, ... RAYMOND ALLEN WRIGHT ... was convicted in the Circuit Court of Harrison County, Mississippi, in Cause Number 4886 of the felony of Grand Larceny, and ... was sentenced to a term of five (5) years in the custody of [MDOC], and that he ... did serve one (1) year or more in the state penitentiary on said eonviction[.]

After voir dire and the State’s opening statement, but before any witnesses testified, Newberry’s attorneys stated for the record that they had advised Newberry that “the [SJtate’s recommendation was eight years, and that would have been eight years parolable.” They further explained they had told Newberry if he “chose not to accept that recommendation that the [S]tate was going to file a motion to amend him to the status of life habitual ... [meaning] the Court would be obligated to give him a life sentence if he were in fact convicted.” According to Newberry’s attorneys, after numerous consultations with Newberry, he decided to go to trial. The circuit court then questioned Newber-ry to ensure he agreed with his attorneys’ summary of the advice he had been given:

[The Court]: Have your attorneys advised you that the recommendation of the State in this case was an eight year sentence, which would be parola-ble?
[Newberry]: Yes, they did.
[The Court]: And have they advised you that if that recommendation was not taken that the [S]tate was going to move to amend your case to make you eligible as a life habitual, which means that if you’re convicted by this jury the Court would be obligated to sentence you to the rest of your life in the penitentiary without the possibility of parole.
[Newberry]: Yeah, she did.
[The Court]: They told you that?
[Newberry]: Yeah.

Before calling its first witness, the State followed up on its motion to amend the indictment “under Section 99-19-83 making Mr. Newberry a life habitual[.]” New-berry’s attorney objected, responding that “both of the pen packs submitted ... are in the name of Raymond Wright[.]” The State explained that the name “Wright” had been used as an alias by Newberry, and the records showed “Wright” had the same social security number and date of birth as Newberry. Instead of ruling on the State’s motion, the circuit judge held the matter in abeyance “until the sentencing phase of the case if Mr. Newberry is found guilty[.]” The judge made clear that in the event of a conviction, the State would have to prove Newberry and Wright were the same person.

¶ 5. The jury convicted Newberry of cocaine possession. Two days later, the circuit judge held a hearing to determine whether Newberry had obtained prior qualifying convictions under the assumed name “Wright.” At the hearing, the State called Detective Chris Baker, an expert in fingerprint analysis. Detective Baker compared Newberry’s fingerprint cards from the Gulfport Police Department to those associated with the prior convictions under the name ‘Wright” in the pen pack from MDOC. Detective Baker found the comparisons revealed “[b]eyond any doubt” that Newberry was the same person as Wright. Newberry presented no contrary proof. The circuit court amended the indictment based on this evidence without any objection by Newberry. The court then entered a written order amending the indictment, which contained all of the relevant details concerning Newberry’s prior convictions. See URCCC 11.03(1). Following the amendment, the State moved to adjudicate Newberry a habitual offender for sentencing purposes under section 99-19-83. It submitted certified copies of Newberry’s pen packs from MDOC into evidence to establish his prior felony convictions. Finding Newberry qualified as a habitual offender under section 99-19-83, the circuit court sentenced him to the mandated sentence — life imprisonment.

¶ 6. Newberry filed a motion for new trial. Among other claims, Newberry argued the circuit court erred by granting the State’s motion to amend his indictment, although he cited no specific reason why the amendment was error. The circuit court denied the motion.

DISCUSSION

¶ 7. Newberry raises one assignment of error on appeal — that he did not receive fair notice of the State’s intent to charge him as a habitual offender. He requests that we vacate his sentence and remand for resentencing.

I. Waiver

¶ 8. We first consider whether Newberry properly preserved this issue for appeal. When the State first moved to amend Newberry’s indictment, he objected to the amendment for a reason unrelated to the notice-based concerns he now raises. Newberry objected that the State failed to prove he used the alias “Wright.” After deferring ruling on the matter, when the circuit court revisited the issue at sentencing, Newberry raised no objection to the amendment. We find his failure to object is a procedural bar to our consideration of this issue on appeal. Manuel v. State, 813 So.2d 762, 764 (¶4) (Miss.Ct.App.2002) (citing Swington v. State, 742 So.2d 1106, 1112 (¶ 14) (Miss.1999)) (finding failure to object in the trial court to amendment to an indictment bars the issue for appeal); see also Swington, 742 So.2d at 1112 (¶ 14) (explaining a specific and contemporaneous objection is required to preserve an issue for appellate review). Though Newberry raised the issue of the amendment of his indictment in his post-trial motion, we find the objection was not sufficiently specific. He made no mention of issues such as notice or surprise. And it does not suffice to simply state, as Newberry did, that the circuit court erred in allowing an amendment to the indictment, and nothing more. Even assuming his objection had the required specificity, Newberry was precluded from raising the issue for the first time in his motion for new trial. Ross v. State, 954 So.2d 968, 987-88 (¶ 30) (Miss.2007).

¶ 9. Although this issue is procedurally barred, we will address the merits of New-berry’s argument.

II. Amendment to the Indictment

A. General Requirements

¶ 10. Uniform Rule of Circuit and County Court 11.03(1) mandates an indictment:

must include both the principal charge and a charge of previous convictions. The indictment must allege with particularity the nature or description of the offense constituting the previous convictions, the state or federal jurisdiction of any previous conviction, and the date of judgment.

Id. Regarding the amendment of indictments, Uniform Rule of Circuit and County Court 7.09 instructs:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as [a] habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement (e.g., driving under the influence, Miss.Code Ann. § 63-11-30). Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

(Emphasis added). “Thus, an indictment may be amended to charge [habitual-offender status] only if the offender is given a ‘fair opportunity to present a defense and is not unfairly surprised.’ ” Wilson v. State, 935 So.2d 945, 949 (¶ 10) (Miss.2006) (quoting URCCC 7.09). While Rule 7.09 “does not speak to the timing of the amendment,” it instructs that “the defendant must be ‘afforded a fair opportunity to present a defense’ and ‘not be unfairly surprised.’ ” Gowdy v. State, 56 So.3d 540, 545 (IT 16) (Miss.2010) (quoting URCCC 7.09). “This means that the defendant must be afforded due process of law and be given fair notice of ‘the nature and cause of the accusation.’ ” Id. (citing U.S. Const. amends. VI, XIV; Miss. Const. art. 3, §§ 14, 26).

¶ 11. We find no error in the amendment to Newberry’s indictment. The amendment did not affect his defense to the underlying charge of possessing cocaine. Burrell v. State, 726 So.2d 160, 162 (¶ 4) (Miss.1998) (Habitual-offender status “only affects sentencing and does not affect the substance of the offense charged.”); Wilson, 935 So.2d at 949 (¶ 12) (“[Pjrior offenses used to charge the defendant as [a] habitual offender are not substantive elements of the offense charged.”); Adams v. State, 772 So.2d 1010, 1021 (¶ 52) (Miss.2000). Nor does Newberry contend the delayed amendment prejudiced his defense against the habitual-offender charge. Not only did Newber-ry offer no evidence during the sentencing hearing contesting the habitual-offender charge, he makes no argument now that any evidence exists contradicting the State’s proof. Further, there is no unfair surprise. The State filed a motion to amend six days in advance of trial detailing the offenses qualifying Newberry for habitual-offender status. And the record shows Newberry was well aware that he faced a life sentence if he rejected the State’s proposed plea bargain and proceeded to trial.

B. Gowdy

¶ 12. Recently, the Mississippi Supreme Court in Gowdy, 56 So.3d at 544-46 (¶¶ 14-22), held that if a defendant has no pretrial notice of the State’s intent to amend an indictment to seek enhanced penalties based upon habitual-offender status, the amendment is impermissible. Defendant Gowdy, charged with felony DUI, rejected a plea deal where the State would have recommended a one-year sentence. Not knowing the State planned to seek a habitual-offender sentencing enhancement, Gowdy chose to forgo the capped plea recommendation and exercise his right to trial by jury. Immediately after the jury rendered a guilty verdict, the State for the first time provided Gowdy notice of its intent to amend his indictment to charge him as a habitual offender. Two months after trial, and just before the sentencing hearing, the circuit court allowed the amendment over Gowdy’s objection and sentenced Gowdy to life. In discussing the impropriety of the amendment, the supreme court in Gowdy stated:

There is no incentive for the State to be diligent in obtaining a prospective indict-ee’s criminal record in advance of presenting a new charge to a grand jury and timely complying with Rule 11.03 if it may simply amend the indictment at any time before sentencing. Had that occurred in this case, Gowdy would have been in a better position to make an informed and rational decision when presented with a proposed plea bargain. ... [N]otice of the charge includes notice of the applicable minimum and maximum penalties. Under Rule 8.04(A)(4)(b), before a defendant can plead guilty, the trial court has a duty to ensure that he “understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law.” The rule should not be different for defendants who choose to exercise their right to trial by jury.

Id. at 546 (¶¶ 20-21).

¶ 13. The Gowdy court relied on its prior decision in Akins v. State, 493 So.2d 1321 (Miss.1986). Just as in Gowdy, in Akins, the defendant had no notice of the State’s intent to amend the indictment until after trial. The Akins court held the post-trial amendment, which substituted the more severe habitual-offender sentencing enhancement, carrying a mandatory life sentence, for the lesser enhancement, was impermissible. Akins, 493 So.2d at 1322. The Gowdy majority recognized the supreme court had been inconsistent on the issue of post-trial notice of intent to seek habitual-offender status. Thus, the Gowdy majority chose to overrule its previous decision in Torrey v. State, 891 So.2d 188, 194-95 (¶¶ 35-39) (Miss.2004), where the supreme court had found no reversible error in a post-trial amendment to an indictment adding a habitual-offender charge, to the extent it conflicted with Gowdy's holding. Gowdy, 56 So.3d at 546 (¶ 22).

¶ 14. Though Newberry argues Gowdy ⅛ dictates prevent application of the habitual-offender status in his case, we find the procedural and factual posture of Newberry’s case differs vastly from Gow-dy. Unlike in Gowdy, here the State was diligent in obtaining Newberry’s criminal record. The State filed a motion to amend Newberry’s indictment before trial. And the State’s motion properly detailed the qualifying offenses for habitual-offender status. The circuit court heard argument on the amendment before any witnesses testified at Newberry’s trial. Further, when the circuit court ordered the amendment, Newberry failed to object. These are all considerations that were absent from the supreme court’s decision in Gow-dy. We also note that Newberry altogether failed to object to the amendment on the specific ground of unfair surprise or based upon Rule 7.09.

¶ 15. We also emphasize that unlike the defendant in Gowdy, Newberry knew during plea negotiations that the State sought to charge him as a habitual offender. Confronted with obvious notice of the potential life sentence, Newberry rejected the State’s offer. We therefore find New-berry’s complaints about unfair surprise are unfounded.

¶ 16. Sufficient formal notice of the State’s intent to seek habitual-offender status is the controlling aspect, not the timing of the court’s ruling on the requested amendment. We do not find that our supreme court in Gowdy intended to establish an absolute, indispensable rule that a trial judge’s decision to withhold ruling on the State’s request to amend an indictment to allege habitual-offender status creates an unfair surprise. Indeed, if that were the case, a circuit judge could frustrate the Legislature’s clear sentencing directives for qualifying habitual offenders, by simply holding in abeyance his or her decisions on motions to amend indictments to seek habitual-offender status.

¶ 17. Without question, Newberry had sufficient pretrial notice of the habitual-offender charge, including the prior convictions relied on by the State. We find the notice provided was ample to allow him to prepare a defense against the habitual-offender charge, to which he apparently had no defense. The pretrial notice also allowed Newberry to make an informed decision whether to accept the State’s proposed plea recommendation, which he chose to reject fully knowing the potential consequences of doing so.

¶ 18. For these reasons, we affirm Newberry’s conviction and sentence.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF LIFE AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON AND RUSSELL, JJ., CONCUR. MYERS, J., NOT PARTICIPATING.

      . The State filed its motion to amend the indictment on March 11, 2009. Newberry's trial took place on March 17, 2009.

      . Defense counsel declined to give an opening statement.

      . We note Newberry objected to the admission of the certified copies of the pen packs into evidence.

      . See Mississippi Code Annotated section 99-19-83.

      . See Mississippi Code Annotated section 99-19-81 (Rev.2007).


author: GRIFFIS, P.J., RUSSELL, J.,

text:
    Jay McCALPIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00269-COA.
    Court of Appeals of Mississippi.
    April 10, 2012.

      Jay McCalpin, appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Jay McCalpin appeals the denial of his motion for post-conviction collateral relief. He claims the State failed to prove that it was more likely than not that he committed a crime while on post-release supervision. We find no error and affirm.

FACTS

¶ 2. McCalpin pleaded guilty to one count of fondling and two counts of sexual battery. He was sentenced to ten years in the custody of the Mississippi Department of Corrections (“MDOC”) with seven years suspended and four years of post-release supervision. On June 16, 2009, during the period of his post-release supervision, McCalpin was arrested by the Belmont Police Department and charged with felony stalking under Mississippi Code Annotated section 97-3-107 (Rev.2006). MDOC initiated revocation proceedings following McCalpin’s arrest.

¶ 3. The circuit court held a revocation hearing on August 6, 2009. McCalpin’s probation officer, Melinda Whited, testified regarding two affidavits made during the police investigation — one sworn to by Lindsey, a sixteen-year-old girl, and one sworn to by Lindsey’s mother. Lindsey reported that a man in a truck passed several vehicles and started to follow her vehicle closely while she was driving down Highway 25. He stayed right on her vehicle’s bumper as she turned into her mother’s place of business. After she pulled her vehicle into a parking space in front of the business, he parked right behind her so that the vehicles were almost touching. This action effectively trapped Lindsey’s vehicle as she could not back out of the parking space.

¶ 4. Lindsey’s mother approached Lindsey’s vehicle and asked whether Lindsey knew the man parked behind her. When Lindsey replied that she did not know the man, Lindsey’s mother asked him if there was a problem. Lindsey’s mother later told police that the man never replied to her question. He did not take his gaze off of Lindsey when Lindsey’s mother spoke to him. He started to leave, but he stopped his vehicle again and continued to stare at Lindsey.

¶ 5. Lindsey got out of her vehicle and went inside the business to get the owner, Boyd Lee Tidwell. When Tidwell came outside, the man drove off at a high speed. Investigator Donald Thomas with the Belmont Police Department testified that Tid-well got in his vehicle and followed the man. Tidwell was able to report a partial license plate number to the police who later matched that number to McCalpin’s licence plate. The police drove Lindsey and her mother past McCalpin’s house where they both identified his truck as the one involved in the incident.

¶ 6. McCalpin’s uncle testified in McCal-pin’s defense. He stated that McCalpin was with him on the day of the incident; therefore, according to the uncle’s testimony, it could not have been McCalpin who followed Lindsey.

¶ 7. The State claimed that it had shown there was probable cause that McCalpin had committed the crime of felony stalking. McCalpin argued that even assuming it was him in the truck, he could not have committed felony stalking because his actions were never repeated but were part of a single event.

¶8. The circuit judge recognized that this was a one-time event. But the judge found that the conduct was a willful and malicious act of “harassment”; thus, McCalpin’s conduct constituted felony stalking. See Miss.Code Ann. § 97-3-107(1). McCalpin’s post-release supervision and suspended sentence of seven years were revoked. McCalpin was sentenced to serve four years in the custody of the MDOC and three years of post-release supervision.

¶ 9. McCalpin filed a motion for post-conviction collateral relief, claiming that his post-release supervision was unlawfully revoked because the State had failed to prove that a crime had been committed and that it was more likely than not that he had committed the crime. The circuit judge noted that this was a “close call”; he held that it was more likely than not that McCalpin had committed felony stalking. McCalpin’s motion was denied.

STANDARD OF REVIEW

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

ANALYSIS

¶ 11. It is certainly true that McCalpin need not be convicted of the crime of felony stalking to have his post-release supervision revoked. Younger v. State, 749 So.2d 219, 222 (¶ 12) (Miss.Ct. App.1999) (citation omitted). Yet when the State is unable to show proof of a conviction, it must show “that a crime has been committed and that it is more likely than not that the probationer committed the offense.” Brown v. State, 864 So.2d 1058, 1060 (¶ 9) (Miss.Ct.App.2004) (citations omitted).

¶ 12. We find ample evidence to support the circuit judge’s finding that it was more likely than not that McCalpin followed Lindsey. His vehicle was identified by Lindsey and her mother. His license plate matched the partial number seen by Tidwell. And McCalpin’s only alibi witness was a family member. We have no reason to dispute the circuit judge’s finding in this respect.

¶ 13. We further find evidence to support the circuit judge’s conclusion that the crime of felony stalking was committed. Id. At the time McCalpin was charged, section 97-3-107(1) stated:

Any person who willfully, maliciously and repeatedly follows or harasses another person, or who makes a credible threat, with the intent to place that person in reasonable fear of death or great bodily injury is guilty of the crime of stalking, and upon conviction thereof shall be punished by imprisonment in the county jail for not more than one (1) year or by a fine of not more than One Thousand Dollars ($1,000.00), or by both such fíne and imprisonment. A violation of this subsection by a person required to register as a sex offender for a sex offense listed in Section 45-33-23, in this state or another jurisdiction, whether state, federal or military, where the victim is under the age of eighteen (18) years, is a felony subject to a fíne of Two Thousand Dollars ($2,000.00) and imprisonment for two (2) years in the State Penitentiary.

Miss.Code Ann. § 97-3-107(1).

¶ 14. The circuit judge conceded that there was no evidence of any repetitious actions by McCalpin. In fact, Lindsey emphatically stated that she had never seen the man before. Instead, the circuit judge held that McCalpin had engaged in wilful and malicious harassment of Lindsey.

¶ 15. Section 97-3-107(4) provides that a person “harasses” if he engages in “a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person.” Further, “course of conduct” is defined as “a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.” Id. (emphasis added).

¶ 16. While this may have been the only time Lindsey ever saw McCalpin, there is sufficient evidence to show that McCalpin’s conduct was composed of a series of acts over a short period of time that evinced a continuity of purpose. Lindsey testified that McCalpin passed several cars at a high rate of speed and began to follow her closely. He continued to follow Lindsey as she pulled off of the highway into a parking lot. He parked directly behind her so that she could not move her vehicle. He continued to stare at her as her mother addressed him. Even after he began to leave, he stopped his car again to continue to stare at Lindsey. It was not until he was chased by Tidwell that McCalpin left Lindsey’s presence. We find that this evidence constitutes a knowing and willful course of conduct that qualifies as harassment under section 97-3-107(4).

¶ 17. Although the circuit judge made no specific finding on this issue, there was also evidence to find that McCalpin more likely than not made “a credible threat, with the intent to place [Lindsey] in reasonable fear of death or great bodily injury[.]” Miss.Code Ann. § 97-3-107(1). Lindsey stated that, when she saw McCal-pin continue to stare at her while he backed his vehicle down the road, she got scared and asked her mother what to do. And, when McCalpin had trapped her vehicle in the parking space, Lindsey said she was afraid that he was going to get out of his vehicle. Investigator Thomas used the phrase “scared to death” to describe Lindsey’s state of mind after the incident. This evidence further supports the circuit court’s finding that the State had met its burden to revoke McCalpin’s post-release supervision.

¶ 18. We find no error in the denial of McCalpin’s motion for post-conviction collateral relief. The judgment of the circuit court is affirmed.

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

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

RUSSELL, J.,

dissenting:

¶20. I respectfully disagree with the majority’s decision to affirm the denial of the motion for post-conviction relief (PCR). I find the evidence does not support the conclusion that the State met its burden of proving the crime of felony stalking had been committed and that McCalpin “more likely than not” committed it, thus warranting revocation of his post-release supervision. Therefore, I dissent.

¶ 21. On appeal, a reviewing court should not disturb a lower court’s decision to deny a petition for post-conviction relief unless the court’s findings are clearly erroneous. McClinton v. State, 799 So.2d 123, 127 (¶ 4) (Miss.Ct.App.2001). However, where questions of law are raised the applicable standard of review is de novo. Id.

¶ 22. The mere arrest of a probationer is not a violation of probation. Moore v. State, 587 So.2d 1193, 1194 (Miss.1991). Our supreme court has stated that a conviction is not necessary to revoke probation; probation may be revoked upon a showing that the defendant “more likely than not” violated the terms of probation. Younger v. State, 749 So.2d 219, 222 (¶ 12) (Miss.Ct.App.1999) (citing Berdin v. State, 648 So.2d 73, 79 (Miss.1994)).

¶ 23. While an actual conviction is not required, the State is not left without a burden at a revocation hearing. At the time of the alleged offense, Mississippi Code Annotated section 97-3-107(1) (Rev. 2006), which governs the offense of stalking, stated: “Any person who willfully, maliciously, and repeatedly follows or harasses another person, or who makes a credible threat, with the intent to place that person in reasonable fear of death or great bodily injury is guilty of the crime of stalking....” (Emphasis added). Mississippi Code Annotated section 97-3-107(4) (Rev.2006) provides that the element of “harasses” is satisfied by “a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person and which serves no legitimate purpose.” Furthermore, section 97-3-107(4) defines course of conduct “as a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.” Miss.Code Ann. § 97-3-107(4). I submit that the State failed to prove the crime of felony stalking had been committed by McCalpin or anyone else and cannot withstand scrutiny.

¶ 24. The statute first requires that one “wilfully, maliciously, and repeatedly follows or harasses.” Miss.Code Ann. § 97-3-107(1). The language reads and repeatedly. Id. (Emphasis added). Therefore, in addition to the harassment being wilful and malicious, it must have also occurred more than once to satisfy the statutory requirements. In this ease the testimony was undisputed that the incident of June 16, 2009, marked the first time either the alleged harassment victim or her mother had seen McCalpin. The court, in granting the State’s petition for revocation said, “I realize there is no evidence before the Court which says that it was repeatedly done. I do believe that it was wilfully and maliciously done, and the Court so finds.” There is no evidence of any repeated conduct. Furthermore, the statute provides that the harassment must be pattern of conduct composed of a series of acts over a period of time evidencing a continuity of purpose. Miss.Code Ann. § 97-3-107(4). Additionally, the repeated series of acts over a period of time must seriously harass the victim to constitute felony stalking. Id. In granting the state’s petition for revocation the court also said “[t]he preponderance of the evidence shows that you were on her bumper. Whether you meant to be or not, you were. And if you were that close and following her, I can certainly understand and find that that constitutes harassment of her under this statute, [section] 97-3-107.” In the instant case, there was no evidence of a series of acts over a period of time evidencing a continuity of purpose and there was no evidence presented that Young was “seriously” harassed. The evidence presented by the State is inadequate to support this element of the crime of stalking. .

¶ 25. The majority finds that McCalpin more likely than not made “a credible threat, with the intent to place [Young] in reasonable fear of death or great bodily injury.” Miss.Code Ann. § 97-3-107(1). I respectfully disagree. A “credible threat” means a threat made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her life. Miss.Code Ann. § 97-3-107(5). The only evidence presented was Thomas’s description of Young’s state of mind after the incident as “scared to death,” Young’s statement that she was afraid to get out of her vehicle, and her statement that she was scared. While the evidence suggests fear, it does not suggests fear of death or great bodily injury. Neither Young nor her mother expressed any reason to think McCalpin was about to kill or cause great bodily injury to them. In fact, both testified that McCalpin never said a word to them, never got out of his vehicle, never made any gestures or took any act of aggression towards them. Young’s mother testified that, even after she confronted McCalpin, he never said anything. Again, there is no evidence to support this element of the State’s charge of stalking.

¶ 26. McCalpin denied the allegations and stated that he was working with his uncle at the time of the alleged offense. McCalpin’s uncle testified to the same. But, for the sake of Boyd v. State, 754 So.2d 586, 588-89 (Miss.2000), accepting as true all of the evidence that is favorable to the state, including all reasonable inferences that may be drawn therefrom, and to disregard evidence favorable to the defendant, even if McCalpin did all that he is accused of, the statutory requirements for stalking are not met.

¶ 27. That is, even if this Court assumed the testimony of McCalpin and his uncle is untrue, the State did not present ample evidence to support the circuit court’s finding that it was more likely than not that McCalpin harassed Young.

¶ 28. In my view, the State’s case was inadequate. After carefully considering all of the evidence presented, it defies all rational reason that McCalpin more likely than not committed felony stalking. In the absence of evidence to show there was repeated conduct that seriously harassed Young, or that there was a credible threat, the State has failed to meet the statutory requirement. The evidence presented does not show felony stalking. Therefore, I cannot conclude that the crime more likely than not occurred and was committed by McCalpin.

¶ 29. In my opinion the majority’s position that the speeding was one act, the following Young closely another, the parking behind her another, and the staring at her yet another in an effort to find that the conduct was composed of a series of acts over a period of time, somehow evidencing a continuity of purpose stretches the meaning of the felony-stalking statute beyond its plain reading and prior application.

¶ 30. The majority finds that it is irrelevant and without consequence that the alleged conduct was not repeated. In fact, the majority conveniently omits the requirement altogether and looks only to the wilful and malicious elements of the offense. However, the statute reads “and repeatedly,” not or repeatedly. Miss.Code Ann. § 97-3-107(1) (emphasis added). The record is devoid of any mention of whether McCalpin was subsequently convicted of the stalking offence. Such a finding by the majority gives too much power to individuals who do not want sex offenders in their neighborhoods or vengeful ex-spouses to fabricate allegations of criminal activity for the sole purpose of having individuals arrested and charged with the ultimate purpose to have their probations revoked. It is a slippery slope that I choose not to enter.

¶ 31. On the facts and evidence in this case, there was insufficient evidence to show that the crime of felony stalking pursuant to Mississippi Code Annotated section 97-3-107 was committed and therefore McCalpin could not have “more likely than not” committed the offense for which he was arrested and charged.

¶ 32. I find the circuit court’s denial of McCalpin’s PCR motion as a result of the unlawful revocation was erroneous and contrary to the evidence. For these reasons, I dissent.

IRVING, P.J., JOINS THIS OPINION.

      . We use a fictitious name to protect the identity of the minor victim.