author: CARLTON, J., for the Court:

text:
    Marquis T. TOWNES a/k/a Marquistantorin Townes a/k/a Marquis Townes, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-02094-COA.
    Court of Appeals of Mississippi.
    April 10, 2012.
    Rehearing Denied May 31, 2012.
    Certiorari Dismissed July 26, 2012.
    Tommy Wayne Defer, Water Valley, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J., for the Court:

¶ 1. Marquis T. Townes was convicted in the Tate County Circuit Court of conspiracy, burglary of a dwelling, and grand larceny. Aggrieved, he now appeals, arguing that the circuit court erred in denying his challenges for cause as to several members of the venire. Finding no reversible error, we affirm.

FACTS

¶ 2. A grand jury in Tate County, Mississippi, indicted Townes on March 12, 2010, for conspiracy to commit burglary of a dwelling, burglary of a dwelling, and grand larceny. During the jury-selection conference prior to his trial, Townes requested that the circuit judge strike for cause all of the prospective jurors who identified themselves in voir dire as having had their homes burglarized. Townes contended that these prospective jurors, despite their assurances in voir dire to the contrary, would not be able to set aside their personal feelings and give Townes a fair trial.

¶ 3. The State objected to Townes’s proposed challenges for cause. The circuit judge subsequently denied Townes’s challenges, ruling that each of the prospective jurors, other than one already stricken, had stated on the record that they could be fair and impartial, and the fact that these jurors were past victims would not impact them while sitting as jurors in Townes’s trial. Townes objected to the circuit judge’s ruling. Townes ultimately used five of his six peremptory challenges on jurors who he claims should have been excused for cause by the circuit court.

¶ 4. After a two-day trial in Tate County Circuit Court, the jury found Townes guilty on all three counts of his indictment. Following the denial of Townes’s post-trial motions, the circuit judge sentenced Townes as follows: five years in the custody of the MDOC for Count I, conspiracy; ten years in the custody of the MDOC for Count II, burglary of a dwelling, followed by fifteen years post-release supervision, with five years of reporting; and ten years in the custody of the MDOC for Count III, grand larceny, with the sentences in all three counts to run concurrently. As part of the sentence for Count II, the circuit judge also ordered Townes to pay a $1,000 fine and $100 to the Crime Victims’ Compensation Fund, as well as court costs.

¶5. Townes now appeals, arguing that the circuit court erred in denying his challenge for cause to strike the jurors identified in voir dire as past victims of house burglary.

DISCUSSION

¶ 6. In his sole assignment of error, Townes argues that his constitutional right to an impartial jury was violated because he was forced to use five of his six peremptory challenges on jurors who he claims should have been excused for cause by the circuit court. Specifically, Townes claims that the circuit court erred in denying his challenge for cause to strike jurors identified in voir dire as past victims of house burglary. Townes submits that by being forced to use almost all of his peremptory challenges to strike the potential jurors identified as victims of house burglary, he was unable to use his peremptory strikes against others to ensure a more fair and impartial jury of his peers. Townes ultimately exhausted all six of his peremptory challenges during jury selection, using five of the challenges against victims of house burglary. Townes alleges that as a result of the circuit court’s denial of his challenges for cause, he was denied a fair trial. He submits that his case should therefore be reversed and remanded for a new trial.

¶ 7. We acknowledge that the trial judge possesses considerable discretion to determine whether to excuse a potential juror, and we will reverse his decision only if we find that he has abused his discretion. Flaggs v. State, 999 So.2d 393, 400-01 (¶ 23) (Miss.Ct.App.2008). With regard to this issue, the Mississippi Supreme Court has established:

To the extent that any juror, because of his relationship to one of the parties, his occupation, his past experience, or whatever, would normally lean in favor of one of the parties, or be biased against the other, or one’s claim or the other’s defense in the lawsuit, to this extent, of course, his ability to be fair and impartial is impaired. It should also be borne in mind that jurors take their oaths and responsibilities seriously, and when a prospective juror assures the court that, despite the circumstance that raises some question as to his qualification, this will not affect his verdict, this promise is entitled to considerable deference.

Duncan v. State, 939 So.2d 772, 779 (¶ 23) (Miss.2006) (quoting Scott v. Ball, 595 So.2d 848, 850 (Miss.1992)) (citations and emphasis omitted). We further recognize that “selection of jurors [is] a judgment call peculiarly within the province of the circuit judge, and ... we will not on appeal second guess [that judgment] in the absence of a record showing a clear abuse of discretion.” Scott, 595 So.2d at 850.

¶ 8. In Christmas v. State, 10 So.3d 413, 423 (¶ 47) (Miss.2009), our supreme court reiterated:

So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean that the defendant was denied his constitutional rights. Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). This Court has explained that a prerequisite to presentation of a claim of a denial of constitutional rights due to denial of a challenge for cause is a showing that the defendant had exhausted all of his peremptory challenges and that the incompetent juror was forced by the trial court’s erroneous ruling to sit on the jury. Chisolm v. State, 529 So.2d 635, 639 (Miss.1988).

(Quoting Mettetal v. State, 615 So.2d 600, 603 (Miss.1993)). See also Archer v. State, 986 So.2d 951, 957 (¶23) (Miss.2008).

¶ 9. Upon review of the record, we find that Townes fails to establish prejudice because the venire members in question did not actually serve on the jury. While we acknowledge that Townes used his peremptory challenges to remove the venire members at issue who were victims of house burglary, and while Townes did exhaust those challenges, Townes must show that the circuit judge’s ruling forced the seating of an incompetent juror or jurors, to Townes’s detriment. Christmas, 10 So.3d at 423 (¶47). We find that Townes has failed to demonstrate that any impaneled juror was incompetent to sit on the jury in this case.

¶ 10. The record further reflects that the venire members who identified themselves as past victims of burglary assured the circuit judge that they could be fair and impartial jurors. Additionally, although the record does not contain the circuit judge’s instructions to the jury, the transcript shows that during the sentencing hearing, the Assistant District Attorney confirmed that she, the circuit judge, and Townes’s counsel all stressed the importance of having fair and impartial jurors. The Mississippi Supreme Court has stated that appellate courts possess “the right to presume that jurors will adhere to them oaths and follow the instructions given to them by the trial court.” Tate v. State, 20 So.3d 623, 634 (¶ 26) (Miss.2009). As we have previously acknowledged, “that the trial judge is in the best position to determine whether the jury as selected was fair and impartial, and therefore [the appellate court] yields to a trial court’s discretionary finding that a competent jury, under its oath to be fair and impartial, was empaneled to render judgment .... [The appellate court] will not reverse absent clear abuse of that discretion.” Archer, 986 So.2d at 959 (¶ 30). Accordingly, we cannot say that the circuit judge erred in denying Townes’s challenges for cause. This issue is without merit.

¶ 11. THE JUDGMENT OF THE TATE COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, CONSPIRACY, AND SENTENCE OF FIVE YEARS; COUNT II, BURGLARY OF A DWELLING, AND SENTENCE OF TEN YEARS; AND COUNT III, GRAND LARCENY, AND SENTENCE OF TEN YEARS ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE SENTENCES IN COUNTS I, II, AND III TO RUN CONCURRENTLY, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The trial transcript shows that voir dire examination of the prospective jurors was conducted, but those proceedings are not included as part of the record.


source: Caselaw Access Project

author: RUSSELL, J., for the Court:

license: Public Domain

text:
    Benjamin Christopher COOPER, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00294-COA.
    Court of Appeals of Mississippi.
    June 19, 2012.

      Edmund J. Phillips Jr., Newton, Christopher A. Collins, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   RUSSELL, J., for the Court:

¶ 1. Benjamin Christopher Cooper appeals his conviction for possession of methamphetamine and sentence of eight years. He argues that the circuit court erred by denying his motion to suppress the results of a search warrant. Specifically, Cooper argues that because the State failed to prove the veracity of the confidential informant, the search warrant should not have been issued. Upon review, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On March 24, 2010, Deputy Ralph Sciple of the Neshoba County Sheriffs Department received information from a confidential informant indicating that Cooper was selling methamphetamine from his house. Deputy Sciple testified that this confidential informant had provided credible information in the past that led to arrests and convictions. Based on the information obtained from the confidential informant, Deputy Sciple prepared a search warrant, affidavit, and supporting underlying facts and circumstances. That same evening, Deputy Sciple ■ presented these three documents to Justice Court Judge Steve Cumberland for his review and signature. The statement of underlying facts and circumstances Deputy Sciple submitted to Judge Cumberland read as follows:

Affiant, Ralph Sciple[,] has been in law enforcement since 1980. Sciple has served as Constable in Kemper County for 12 years, served with the DeKalb Police Department for 8 years, several of those years as Chief of Police[,] and served as Sheriff of Kemper County for 1½ years. Sciple is presently serving with the Neshoba County Sheriffs Department[,] where he was been for the past 10 plus years and has been an Investigator for over 9 of those years. Sciple is a certified law enforcement officer and a graduate of the Mississippi Law Enforcement Training Academy in Pearl[,] Mississippi^] and has attended numerous in[-]service training[s] on the subject of criminal investigations. Sci-ple has effected numerous felony arrests and investigated numerous cases.
The affiant states the following facts to wit: On 03 — 24—10[,] Inv. Sciple met with a confidential informant that Inv. Sciple knows to be a credible person [who] has given creditable information in the past that has led to arrest[s] and convictions. The informant gave the following information[:] the informant stated that he/ she saw drugs, [m]ethamphetamine[,] being sold in the residence at 14 East-over Drive[,] Philadelphia, MS 39350, this being within the past 24 hours. With this information[,] the affiant requests] a search warrant be issued for 14 Eastover Drive[,] Philadelphia, MS 39350 to include all vehicles and out buildings [sic].

Judge Cumberland reviewed all three documents, found that there was sufficient probable cause, and signed the search warrant.

¶ 3. About a half hour after Judge Cumberland signed the search warrant, Deputy Sciple and other officers executed the search warrant at Cooper’s residence. Upon arriving at the residence, Cooper answered the door.

¶ 4. In searching the residence, officers discovered a plastic bag containing a white substance in Cooper’s bedroom, which was later tested and confirmed to be .5 grams of methamphetamine. Cooper was arrested and taken into custody. After waiving his Miranda rights, Cooper made the following signed, written statement: “The meth that was found in my bedroom on 3-24-10 was mine for personal use. I do not sell meth.”

¶ 5. Cooper was indicted for possession of at least .1 gram but less than 2 grams of methamphetamine under Mississippi Code Annotated section 41 — 29—139(c)(1)(B) (Supp.2011), and a trial was held on February 14, 2011. A jury returned a verdict of guilty, and Cooper was sentenced to eight years in the custody of the Mississippi Department of Corrections. Cooper timely appealed.

DISCUSSION

¶ 6. Cooper argues that the circuit court erred by denying his motion to suppress the results of the search warrant because the State failed to prove that the confidential informant was reliable. “Our standard of review for the admission or exclusion of evidence is abuse of discretion.” Flake v. State, 948 So.2d 493, 496 (¶ 7) (Miss.Ct.App.2007) (citing Stallworth v. State, 797 So.2d 905, 908 (¶ 8) (Miss.2001)). “Our review of a [judge’s] issuance of a warrant is not a de novo determination of probable cause, but whether the [judge] had a substantial basis for concluding that probable cause existed.” Id. (citing Smith v. State, 504 So.2d 1194, 1196 (Miss.1987)). “The standard for determining the existence of probable cause for a search warrant based on an informant is the totality of the circumstances.” Id. (citing Lee v. State, 435 So.2d 674, 676 (Miss.1983)).

¶ 7. “A search warrant is validly issued when based upon probable cause.” Phinizee v. State, 983 So.2d 322, 328 (¶ 18) (Miss.Ct.App.2007) (citing Zinn v. City of Ocean Springs, 928 So.2d 915, 920 (¶ 11) (Miss.Ct.App.2006)). Our supreme court has stated the following regarding probable cause:

Probable cause is a practical, nontechnical concept, based upon the conventional considerations of everyday life on which reasonable and prudent men, not legal technicians, act. It arises when the facts and circumstances within an officer’s knowledge, or of which he has reasonably trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it.

Strode v. State, 231 So.2d 779, 782 (Miss.1970). In other words, “probable cause means more than a bare suspicion but less than evidence that would justify condemnation.” State v. Woods, 866 So.2d 422, 426 (¶ 11) (Miss.2003).

¶ 8. Probable cause exists when based on “information reasonably leading an officer to believe that then and there contraband or evidence material to a criminal investigation would be found.” Phinizee, 983 So.2d at 328 (¶ 18) (citing Rooks v. State, 529 So.2d 546, 555 (Miss.1988)). The veracity of a confidential informant may be established by a statement of the affiant that the confidential informant has given credible information in the past. See Woods, 866 So.2d at 426 (¶ 14). In determining whether there was a substantial basis for the determination of probable cause, we look at both the “facts and circumstances set forth in the affidavit for [the] search warrant and ... sworn oral testimony presented to the issuing judge.” Roebuck v. State, 915 So.2d 1132, 1137 (¶ 12) (Miss.Ct.App.2005) (citing Petti v. State, 666 So.2d 754, 758 (Miss.1995)).

¶ 9. In this case, Deputy Sciple submitted a statement of underlying facts and circumstances to support the issuance of the search warrant, which read in part:

The affiant states the following facts to wit: On 03 — 24—10[,] Inv. Sciple met with a confidential informant that Inv. Sciple knows to be a credible person [who] has given creditable information in the past that has led to arrest[s] and convictions. The informant gave the following information[:] the informant stated that he/she saw drugs, [m]ethamphetamine[,] being sold in the residence at 14 Eastover Drive[,] Philadelphia, MS 39350, this being within the past 24 hours. With this information[,] the affiant request[s] a search warrant be issued for 14 Eastover Drive[,] Philadelphia, MS 39350 to include all vehicles and out buildings [sic].

(Emphasis added). This document was signed by Deputy Sciple and Judge Cumberland on March 24, 2010. Further, Deputy Sciple testified that the confidential informant had provided reliable information in the past, leading to arrests and convictions. Under the totality of the circumstances, we find that there was sufficient evidence of the confidential informant’s veracity, and that the justice court judge had a substantial basis for concluding that probable cause existed. Therefore, we affirm.

¶10. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF METHAMPHETAMINE AND SENTENCE OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHO-BA COUNTY.

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

      . See Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: ROBERTS, J., for the Court:

text:
    James Anthony SWILLEY a/k/a James Swilley, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01198-COA.
    Court of Appeals of Mississippi.
    July 24, 2012.

      James Anthony Swilley, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J., for the Court:

¶ 1. This appeal stems from James Anthony Swilley’s guilty plea entered on July 25, 2011. He pled guilty in the Copiah County Circuit Court to one count of felony shoplifting and was sentenced to four years in the custody of the Mississippi Department of' Corrections (MDOC). Swilley filed an “Interlocutory Appeal” in the circuit court on September 16, 2011. The circuit court reviewed this document as a motion for post-conviction relief (PCR) and denied Swilley’s motion. He now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. On February 13, 2011, Hazlehurst Police Officer Tracy Smith was off-duty and walking into Walmart when he saw Swilley walking out with what Officer Smith believed to be a bulge under his shirt. Officer Smith witnessed Swilley lift his shirt and then put some items from under his shirt in a bag. Officer Smith reported this to the on-duty police officers in the area, and he continued following Swilley from Walmart to the Piggly Wiggly parking lot nearby. Police officers detained Swilley in the Piggly Wiggly parking lot and, after searching him, discovered several packages of steak with Walmart labels. Swilley was arrested and charged with felony shoplifting.

¶ 3. At the omnibus hearing held pursuant to Uniform Rule of Circuit and County Court 9.08 on July 18, 2011, Swilley sought to have any evidence of the steaks suppressed because there was insufficient probable cause to detain and search him. Officer Smith testified at this hearing. He stated that as he was walking into the Walmart, he noticed Swilley walking out with a strange bulge under the shirt indicating that Swilley had something hidden. According to Officer Smith, he followed Swilley outside and saw Swilley “raise his shirt up and put the items in a bag.” Suspecting that Swilley had just shoplifted items from Walmart, Officer Smith continued following Swilley while he called other police officers. The other police officers detained Swilley in the Piggly Wiggly parking lot and searched him, resulting in the discovery of several steaks with Wal-mart labels. At the conclusion of Officer Smith’s testimony, Swilley argued “mere suspicion that a misdemeanor was being committed did not rise to the level of probable cause to arrest him for a felony.” Swilley sought to have any photographs of the steaks excluded because they had not been properly authenticated as coming from Walmart and, primarily, because the photographs were the result of an illegal search and seizure. The circuit court overruled Swilley’s motion on July 25, 2011, and, on the same day, Swilley entered his guilty plea to felony shoplifting.

¶ 4. The circuit judge asked Swilley if he had read all of his guilty-plea petition, discussed it with his attorney, and had his attorney explain everything; Swilley answered yes. He also confirmed that everything contained in the guilty-plea petition was true and correct. The circuit judge next advised Swilley that he was waiving constitutional rights by entering a guilty plea. Swilley indicated that he understood the constitutional rights he was waiving and that his lawyer had advised him of all his possible defenses. Also, Swilley confirmed it was his decision to plead guilty, and he was not influenced by anyone or anything in exchange for a guilty plea. The circuit judge accepted Swilley’s guilty plea and found he “knowingly and intelligently waived his constitutional rights [and] ... freely and voluntarily entered a plea of guilty....” The circuit judge also found “there [was] a factual basis to support the charges against Swil-ley....” Swilley was sentenced to serve four years in the custody of the MDOC.

¶ 5. Swilley filed a document entitled “Interlocutory Appeal” on September 16, 2011. In it, he alleged that there was insufficient probable cause to arrest him for felony shoplifting. Swilley further claimed that the State could not have proved that “the items belonged to Wal-mart as any labeling is hearsay,” and the labels attached to the steaks could not be authenticated. The circuit court found that Swilley’s “Interlocutory Appeal” should be viewed as a PCR motion, and in an order filed on September 19, 2011, the circuit court denied Swilley’s motion. In the order, the circuit court stated: “[I]t plainly appears from the face of the [petition, and the prior proceedings” that Swil-ley was not entitled to any relief because he “was fully apprised of the nature of the charges against him and all the facts and circumstances surrounding said charges[,]” and he “voluntarily and intelligently entered a plea of guilty to Felony Shoplifting.”

¶ 6. Feeling aggrieved by the circuit court’s denial of his PCR motion, Swilley appeals and raises the following issue, which we recite verbatim: “Trial court’s denial of motion to suppress evidence dismissal [sic] and for other relief allowed evidence to be used and the same to be relied upon that was not authentic and inconsistent in procedure and law.”

ANALYSIS

¶ 7. This Court reviews a circuit court’s denial of a PCR motion under the clearly-erroneous standard of review. Holloway v. State, 31 So.3d 656, 657 (¶ 5) (Miss.Ct.App.2010) (citing Moore v. State, 986 So.2d 928, 932 (¶ 13) (Miss.2008)). Questions of law receive a de novo review. Id. Swilley’s primary argument is that the circuit court erred in not suppressing the evidence obtained during the police officers’ search of him because the search and subsequent seizure violated of his Fourth Amendment right to be free from unreasonable search and seizure. Swilley alleged that the police officers lacked reasonable suspicion or probable cause to detain and search him.

¶ 8. Mississippi Code Annotated section 99-39-21(1) (Rev.2007) states that:

Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.

Section 99-39-21(1) prohibits a prisoner from raising certain issues in a PCR motion if they should have been raised prior to filing a PCR motion, and failure to raise these issues acts as a waiver. In Battaya v. State, 861 So.2d 364, 365-66 (¶¶3-5) (Miss.Ct.App.2003), William Battaya claimed his arrest was illegal for lack of a warrant or probable cause; however, this Court found that because Battaya entered a valid guilty plea, a challenge to the legality of his arrest was waived. “A valid [guilty] plea waives the defendant’s right to make certain constitutional challenges, including those under the Fourth Amendment.” Id. at 366 (¶ 5) (citing King v. State, 738 So.2d 240, 241 (¶¶4-5) (Miss.1999)). The United States Supreme Court has also explained that “[w]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he many not thereafter raise independent claims relating to the deprivation of his constitutional rights that occurred prior to the entry of the guilty plea.” Id. (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973)).

¶ 9. In the current case, Swilley argues that his Fourth Amendment right to be free from unreasonable search and seizure was violated by the police officers, and any evidence they obtained from the search was illegal. He also alleges that there was insufficient reasonable suspicion or probable cause to justify his arrest. Swilley does not attack the validity or vol-untariness of his guilty plea. Because Swilley’s guilty plea was valid, he cannot now raise any claim that his arrest, search, or seizure was illegal. In his guilty-plea colloquy, Swilley affirmed that he and his lawyer had discussed the possible defenses to his charge. Swilley also recognized he was giving up constitutional rights by entering a guilty plea. Certainly a violation of the Fourth Amendment would be a possible defense. By pleading guilty and not raising this defense, Swilley waived a Fourth Amendment-violation argument on appeal. Additionally, Swilley has not shown any cause or actual prejudice for this Court to suspend his waiver according to section 99-39-21(1).

¶ 10. Because we find that Swilley’s valid guilty plea waived all claims relating to events occurring prior to entering his guilty plea, such as his arrest, we do not address the merit of Swilley’s assertions that his Fourth Amendment rights were violated. We affirm the circuit court’s denial of Swilley’s PCR motion.

It 11. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

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


text:
    Lisa POSEY, Appellant v. Nancy W. BURROW, M.D., Appellee.
    No. 2011-CA-00423-COA.
    Court of Appeals of Mississippi.
    July 24, 2012.
    Brandon Isaac Dorsey, attorney for appellant.
    Stephen P. Kruger, Jan F. Gadow, Jackson, attorneys for appellee.
    Before GRIFFIS, P.J., ROBERTS, MAXWELL and RUSSELL, JJ.
   ROBERTS, J., for the Court:

¶ 1. In December 2007, Lisa Posey filed a complaint against Dr. Nancy Burrow and Health Management Associates d/b/a Rankin Medical Center as employer of Dr. Burrow. Then, on April 3, 2008, Posey filed an amended complaint alleging medical negligence and malpractice on the part of Dr. Burrow for her failure to diagnose a cavernous malformation, resulting in injury to Posey. Dr. Burrow filed a motion for summary judgment on November 30, 2010, and a hearing in the Rankin County Circuit Court was held on February 7, 2011. The circuit court entered an order on February 14, 2011, granting Dr. Burrow’s motion for summary judgment. Po-sey now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. In June 2004, Dr. Thomas Ellingson ordered an MRI to be conducted on Posey to determine if there were any possibilities of pituitary abnormalities, including a pituitary tumor. Dr. Burrow, a radiologist, reviewed the results of Posey’s MRI on June 7, 2004, and found the MRI to be essentially normal and “no evidence of pituitary abnormalities.” Over a year later, in October 2005, Posey had a seizure. As a result, Posey fell and injured her head, face, shoulders, knees, and teeth. She underwent another MRI and a CT scan, and it was discovered that Posey had a cavernous malformation in her right temporal area. A month later, Posey underwent a “craniotomy for cavernous malformation resection with intraoperative electrocort-iography ane (sic) neuronavigation.” In September 2007, Posey visited Dr. John Lancon, and Dr. Lancon informed her that the cavernous malformations were present on multiple images on her June 2004 MRI.

¶ 3. Posey filed her first complaint in December 2007 and amended her complaint in April 2008. In her complaint, Posey alleged the seizure and resulting injuries due to the fall were caused by the cavernous malformations, and but for Dr. Burrow’s failure to diagnose the cavernous malformations and provide appropriate treatment, the seizure and injuries would not have occurred. Posey sought damages for her physical injuries, pain and suffering, medical expenses, lost past and future wages, and any other damages allowable by law. On March 16, 2009, Posey filed her designation of expert witnesses, listing seven expert witnesses.

¶ 4. Dr. Burrow filed a motion for summary judgment in the circuit court alleging that Posey had failed to meet her burden of proof to survive a motion for summary judgment because there was no “sworn, competent expert testimony articulating the content of the standard of care and opining that Dr. Burrow deviated from that standard of care causing, in whole or in part, the damages claimed.” Dr. Burrow also stated that the expert testimony must also show that the failure to adhere to the standard of care was the proximate cause or proximate contributing cause of Posey’s injuries and that Posey failed to provide any sworn expert proof to support her claims of medical negligence and malpractice. Dr. Burrow also attached her affidavit stating:

I am familiar with the standard of care possessed and exercised by reasonably prudent, minimally competent physicians, who specialize in radiology.... [I]n terms of reasonable medical probability, ... I complied with the standard of care applicable to reasonably prudent minimally competent physicians under like or similar circumstances, at all times during my involvement in the treatment and care of [Posey]. It is further my opinion that my involvement in the medical care of [Posey] in no way caused or contributed to the injuries [Posey] is currently alleging.

Posey filed no affidavits with the circuit court. She only submitted two letters from Dr. Lancon. The circuit court held a hearing on the motion on February 7, 2011, and issued its final judgment in favor of Dr. Burrow on February 14, 2011. In its final judgment, the circuit court found that Posey did not provide “sworn, competent expert testimony to establish the element of proximate causation.” Additionally, Posey “lack[ed] the requisite testimony establishing that had the cavernous malformation been disclosed to [her], or her physician, the standard of care would have required treatment that would have prevented her initial seizure and damages claimed in this matter. Consequently, [Posey] ... failed to created a genuine issue of material fact....”

¶ 5. On appeal, Posey argues that the circuit court erred in granting summary judgment in favor of Dr. Burrow. Finding no error, we affirm.

ANALYSIS

¶ 6. The standard of review applied when reviewing a circuit court’s decision to grant or deny a motion for summary judgment is de novo, and a motion for summary judgment is appropriately granted only when “no genuine issue of material fact exists.” PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 49 (¶ 8) (Miss.2003) (citations omitted). “The moving party has the burden of demonstrating that no genuine issue of material fact exists within the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.’ ” Id. (quoting M.R.C.P. 56(c)).

¶ 7. In her brief, Posey argues that she provided proof of each element of her medical negligence and malpractice claim and established a prima facie case of medical negligence-and-malpractice sufficient to withstand a motion for summary judgment. To support her claim that there was a genuine issue of material fact, Posey relies on two letters from Dr. Lancon stating that Posey’s 2004 MRI showed the cavernous malformations and that the standard of care “would be that a reasonably trained, competent radiologist who interprets MRI brain studies ... should be capable of identifying a probable cavernous brain malformation.” Further, Dr. Lancon opined that “[i]t is reasonably possible that the cavernous malformation cause the seizure .... [, but] the only way to prove this would be to capture a seizure at its moment of onset while performing an EEG [electroencephalography], which is impractical in many cases.” Dr. Lancon found that the standard of treatment in the medical community would have been to discuss the pros and cons of long-term anticonvulsant medication versus a surgical option. He also stated that “[a]t minimum, the patient should be notified of the diagnosis and counseled with respect to [her treatment] options....” It is of extreme importance to note that neither of Dr. Lancon’s letters were sworn to.

¶ 8. Mississippi Rule of Civil Procedure 56(e) provides that:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

In a claim for medical malpractice, “expert testimony must be used.” Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992). Further, “[n]ot only must this expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.” Id. (citation omitted). In Langley ex rel Langley v. Miles, 956 So.2d 970, 976 (¶ 17) (Miss.Ct.App.2006) (citing Phillips v. Hull, 516 So.2d 488, 491 (Miss.1987)), this Court held that “[u]nless the matter is within the common knowledge of laypersons, to establish a prima facie case of medical negligence against a physician, a plaintiff must present competent expert testimony as to the applicable standard of care, breach, and proximate causation.” In Langley, this Court found that Lee County Circuit Court did not err in granting summary judgment because no sworn medical evidence was produced, and “a sworn affidavit of an expert witness attesting to the standard of care and that the defendants’ treatment of Langley [, the plaintiff,] breached the standard of care” was required. Id.

¶ 9. Here, Posey failed to produce an affidavit or any other evidence except Dr. Lancon’s letters, which are not sworn affidavits, and a portion of Dr. Burrow’s deposition. Dr. Burrow provided a sworn-to affidavit stating that she did in fact comply with the standard of care and was not a contributing cause of Posey’s injuries. The evidence Posey submitted alone is insufficient to establish a prima facie case of medical malpractice; therefore, Po-sey failed to dispute Dr. Burrow’s claims in her affidavit and failed to show a genuine issue of material fact.

¶ 10. We find that the circuit court did not err in granting Dr. Burrow’s motion for summary judgment, and this issue is without merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT.


text:
    Derrick Anthony ARNOLD a/k/a Derrick Arnold, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CA-01119-COA.
    Court of Appeals of Mississippi.
    July 24, 2012.

      P. Shawn Harris, Forest, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J., for the Court:

¶ 1. On March 31, 2009, Derrick Anthony Arnold was indicted, as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Supp.2011), on two counts of the sale of marijuana in violation of Mississippi Code Annotated section 41-29 — 139(a)(1) (Supp.2011). At trial on October 5, 2009, in the Scott County Circuit Court, Arnold was absent. Trial resumed the following day, and Arnold was still absent. A jury convicted Arnold on Count I of his indictment, and he was sentenced to serve six years in the custody of the Mississippi Department of Corrections (MDOC). Arnold was not located until almost a year later when he was then taken into custody around August or September 2010. He hired an attorney several months later and filed a motion for an out-of-time appeal in December 2010. The circuit judge denied this motion on May 31, 2011. Arnold now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. A Scott County grand jury indicted Arnold on March 31, 2009, for two counts of selling marijuana in violation of Mississippi Code Annotated section 41-29-139(a)(1). He was indicted as a habitual offender under Mississippi Code Annotated section 99-19-81. Arnold was released on a $25,000 bond. After the circuit court granted a continuance due to a missing witness, Arnold’s trial was set for October 5, 2009.

¶ 3. In the circuit court on October 5, 2009, Arnold’s name was called three times in open court to begin his trial. The State and Todd Sorey, Arnold’s attorney, were present, but Arnold was not present. So-rey informed the circuit court that he had spoken with Arnold on Thursday, October 1, 2009, and reminded him of his trial beginning on Monday, October 5, 2009. Sorey said that Arnold confirmed he would be present for his trial. Sorey had not heard from Arnold since that they spoke on Thursday, and he had no knowledge of where Arnold was. An employee from Sorey’s office attempted to call Arnold; however, the person answering said she did not know where Arnold was either. The circuit court instructed the sheriffs office to locate Arnold, but he could not be located. Sorey moved for a continuance on the ground that it would prejudice Arnold not to be at trial. The circuit court denied this motion, determining that Arnold was aware of his trial date and was willingly and voluntarily absent. The trial proceeded that day and was recessed at approximately 2:00 p.m. with instructions to continue the attempts to locate Arnold. The following day, October 6, 2009, Arnold’s trial resumed, and he was again not present and could not be found by his attorney or local law-enforcement officers. The jury ultimately found Arnold guilty of one count of selling marijuana.

¶ 4. Arnold’s sentencing hearing was held on October 9, 2009, when Arnold was again called in open court but failed to appear, and his attorney had no knowledge of his whereabouts. The sheriff also confirmed that a search for Arnold had been conducted, but Arnold’s whereabouts were still unknown. Arnold was sentenced, as a habitual offender, to serve six years in the custody of the MDOC and pay a $3,000 fine. Almost a year later in August or September 2010, Arnold was finally located and apprehended. He filed a motion for an out-of-time appeal on December 15, 2010. On May 4, 2011, the circuit court held a hearing on Arnold’s motion. At that hearing, Arnold testified that he was aware of his trial date and time but could not get to trial because his car’s alternator was broken, and he had no alternative transportation. However, Arnold also stated that the alternator had been broken for several weeks before trial, and he had relied on his friends and family to take him to work. Arnold never told his attorney that he could possibly have transportation issues. He explained the reason he did not come for his second day of trial was since he missed trial Monday, the police would put a warrant out for his arrest and arrest him if he showed up at trial on Tuesday. Arnold also acknowledged that he was aware that he had been tried and convicted, but he never talked to an attorney about appealing his conviction and sentence until almost one year and a half later.

¶ 5. The circuit court was unpersuaded by Arnold’s reasons for missing his trial and denied Arnold’s motion for an out-of-time appeal. Arnold now appeals and raises the following issue: Whether the [circuit] court erred in refusing to grant an out[-]of[-]time appeal to [Arnold], because he was tried in his absence, without the [circuit] court making an inquiry as to why he was not able to appear at his trial on that date.

ANALYSIS

¶ 6. This Court will review a circuit court’s decision to deny an out-of-time appeal using the abuse-of-discretion standard. Clayton v. Hartsog, 970 So.2d 248, 250 (¶ 4) (Miss.Ct.App.2007) (citing Pre-Paid Legal Servs. v. Anderson, 873 So.2d 1008,1009 (¶4) (Miss.2004)).

¶ 7. Mississippi Rule of Appellate Procedure 4(a) provides that a notice of appeal must be filed “within thirty days after the date of entry of the judgment or order appealed from.” Arnold does not dispute that he is well overdue on filing a notice of appeal under Rule 4(a). Mississippi Rule of Appellate Procedure 4(h) allows an alternative to Rule 4(a). Under Rule 4(h), if the circuit court finds:

(a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 [twenty-one] days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 [seven] days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 [fourteen] days from the date of entry of the order reopening the time for appeal.

There is also no dispute that Arnold was well past even the one-hundred-eighty-day period allowed in Rule 4(h); however, he contends that the circuit court had discretion to allow him to file an out-of-time appeal by extending the period found in Rule 4(a) and Rule 4(h). The provision of the Mississippi Post-Conviction Collateral Relief Act codified in Mississippi Code Annotated section 99 — 39—5(l)(i) (Supp.2011) provides Arnold with the right to file a motion for post-conviction relief (PCR) to argue that he is entitled to an out-of-time appeal.

¶ 8. Arnold primarily argues that the circuit court abused its discretion by not granting his motion for an out-of-time appeal because he was not voluntarily absent from his trial. Instead, Arnold submits that it was car trouble that kept him from attending the first day of trial and fear of arrest that prevented him from coming the next day. Arnold also argues that the circuit court erred in not granting his attorney’s motion for a continuance because Arnold had a constitutional right to be present at his trial and that it was a violation of his constitutional rights to continue to try him without making more of an effort to determine if he was voluntarily absent from his trial.

¶ 9. We disagree with Arnold’s arguments and affirm the circuit court’s denial of his motion for an out-of-time appeal. Arnold argues on appeal that he should not have been tried in absentia because he was not voluntarily absent from his trial. In Sandoval v. State, 631 So.2d 159, 164 (Miss.1994), the Mississippi Supreme Court found that the circuit court erred in trying Francisco Sandoval in his absence because, pursuant to Mississippi Code Annotated section 99-17-9 (1972) as it read at the time, Sandoval was an accused felon not in custody and not consenting to being tried in his absence. At that time, Mississippi Code Annotated section 99-17-9 provided that “the presence of the prisoner may be waived, and the trial progress, at the discretion of the court, in his absence, if he be in custody and consenting thereto.” If the case involved a charge less than a felony, then a defendant “on recognizance or bail or [who had] been arrested and escaped, or [who had] been notified by the proper officer of the pen-dency of the indictment against him, and resisted or fled, or refused to be taken, or [was] in any way in default for nonappearance” could be tried in his absence, at the circuit court’s discretion. Id,. Ultimately, the supreme court held that a defendant appearing at a preliminary hearing and assisting his attorney with trial preparation the day trial before but failing to appear at trial did not waive his right to be present at trial. Sandoval v. State, 631 So.2d at 159. Then, on July 1, 2005, the Mississippi Legislature amended Mississippi Code Annotated section 99-17-9 to read as follows:

In criminal cases the presence of the prisoner may be waived (a) if the defendant is in custody and consenting thereto, or (b) is on recognizance or bail, has been arrested and escaped, or has been notified in writing by the proper officer of the pendency of the indictment against him, and resisted or fled, or refused to be taken, or is in any way in default for nonappearance, the trial may progress at the discretion of the court, and judgment made final and sentence awarded as though such defendant were personally present in court.

Sandoval was based on Mississippi Code Annotated section 99-19-7 prior to its 2005 amendment. The 2005 amendment changed the law on trying an accused felon in his absence and provided that such a defendant may waive his right to be present at trial. Under the current statute as amended in 2005, the circuit court has the discretion to try a defendant in his absence if he appears to have voluntarily waived his right to be present for his trial by resisting, fleeing, refusing to be present, or is in “default for nonappearance[.]” Miss.Code Ann. § 99-17-9 (Rev.2007). In Wales v. State, 73 So.3d 1113, 1120 (¶ 18) (Miss.2011), the Mississippi Supreme Court held that the circuit court did not abuse its discretion in denying Leo Wales’s motion for an out-of-time appeal because Wales voluntarily absented himself from his trial. Wales knew his trial date, participated in the preparation of his defense a few days before trial, and even had his grandmother iron his clothes the night before trial; however, he did not appear and could not be located. Id. We recognize, as did the supreme court in Wales, that the United States Supreme Court has held that a defendant’s right to be present at trial may be waived by his voluntary absence. Id. at 1118 (¶ 12) (citing Taylor v. United States., 414 U.S. 17, 20, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973)). In the present case, it is clear from the record that Arnold voluntarily absented himself from his trial. Arnold knew when and where his trial was to be held. He knew that he had been convicted. He also stated the reason he did not come to- trial was because he had car trouble on the first day of his trial, yet when further questioned, Arnold admitted his wife had a car and his family often drove him to work. Arnold also admitted that the cause of his car trouble was the alternator, but the alternator had been out for a few weeks before trial. Even though Arnold knew he did not have a working car, he never indicated to his attorney that transportation to his trial would be an issue. The record is void of any evidence that Arnold even attempted to call his attorney or the courthouse by phone to inform them of his car trouble on the morning of trial. The record also indicates that Arnold lived approximately nine miles from the courthouse, but he made no attempt to walk or find an alternative way to travel the nine-mile distance. Further, he had no explanation as to why neither his attorney’s office nor the local law enforcement could locate him over the two-day trial and subsequent sentencing hearing.

¶ 10. The supreme court held in Fair v. State, 571 So.2d 965, 967 (Miss.1990): “[I]t is settled that a defendant desiring an out-of-time appeal must, at the very least, show that the failure timely to perfect an appeal was thi-ough no fault of his own.” Similarly in Dickey v. State, 662 So.2d 1106, 1108 (Miss.1995), the supreme court held that a defendant seeking an out-of-time appeal must, by a preponderance of the evidence, demonstrate that he asked his attorney to appeal within the time allowed but that the attorney failed to appeal, and such failure was not the defendant’s fault. The facts before us today show absolutely no effort on Arnold’s part to perfect an appeal timely. Even after Arnold was arrested almost a year later, he waited several months before hiring an attorney to file a PCR motion for an out-of-time appeal. Arnold’s failure to appear for trial as required by his bond and to file a timely appeal after sentencing was of his own making. He has no one to blame save himself.

¶ 11. Based on the evidence before us, we cannot find that the circuit court abused its discretion in denying Arnold’s motion. Arnold made no apparent effort to attend his trial or file an appeal. The circuit court took a brief recess on the first day to attempt to locate Arnold, but he could not be found by his attorney or local law-enforcement officials. We find that Arnold voluntarily absented himself from his trial; therefore, the circuit court properly proceeded to try him in absentia. Additionally, Arnold failed to provide any evidence that he asked his attorney to appeal within the allowable time frame and that his attorney failed to do so. Arnold stated that he had talked to no one about an appeal until over a year after his conviction. Arnold’s argument is without merit, and we affirm the circuit court’s denial of his motion.

¶ 12. THE JUDGMENT OF THE SCOTT 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., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.


text:
    Jeff Wayne TUCKER a/k/a Jeff W. Tucker a/k/a Jeff Tucker, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00790-COA.
    Court of Appeals of Mississippi.
    July 24, 2012.

      Jeff Wayne Tucker, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J., for the Court:

¶ 1. Jeff Wayne Tucker pled guilty to sexual battery in 1997. The Lee County Circuit Court sentenced Tucker to twenty years in the custody of the Mississippi Department of Corrections (MDOC). However, the circuit court suspended sixteen years of Tucker’s twenty-year sentence. Approximately thirteen years later, Tucker filed a motion for post-conviction relief (PCR) and sought to vacate his guilty plea and sentence on the basis that the circuit court had illegally suspended a portion of his sentence. The circuit court found that Tucker’s PCR motion was untimely and dismissed it. Tucker appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 10, 1997, Tucker pled guilty to sexual battery. The circuit court sentenced him to twenty years in the custody of the MDOC, with sixteen years suspended and four years to serve, followed by five years of post-release supervision. In 1999, Tucker began serving his five-year term of post-release supervision.

¶ 3. On March 18, 2003, the circuit court revoked Tucker’s post-release supervision. He was subsequently sentenced to five years in the custody of the MDOC, followed by five years of post-release supervision. Later, Tucker was released again. However, in May 2008, the State filed another petition to revoke Tucker’s post-release supervision because Tucker had been charged with gratification of lust, sexual battery, and failure to register as a sex offender.

¶ 4. On September 24, 2008, Tucker pled guilty to all three charges. For gratification of lust, the circuit court sentenced Tucker to fifteen years in the custody of the MDOC. For sexual battery, the circuit court sentenced Tucker to thirty years in the custody of the MDOC, with fifteen years suspended. The circuit court set Tucker’s sentences for gratification of lust and sexual battery to run concurrently with one another. As for Tucker’s failure to register as a sex offender, the circuit court sentenced Tucker to five years in the custody of the MDOC. However, the circuit court set Tucker’s sentence for failing to register as a sex offender to run consecutively to his sentences for gratification of lust and sexual battery.

¶ 5. In August 2009, Tucker filed a PCR motion and attacked his sentence and conviction for failure to register as a sex offender. Less than a month later, Tucker filed a PCR motion attacking his convictions for gratification of lust and sexual battery. The circuit court denied both PCR motions. Tucker appealed, but this Court affirmed the circuit court’s judgment in Tucker v. State, 60 So.3d 221, 225 (¶ 18) (Miss.Ct.App.2011).

¶ 6. While Tucker’s first two PCR motions were pending, he filed a third PCR motion — styled as a “motion to vacate illegal sentence and involuntary plea of guilty.” In his third PCR motion, Tucker claimed his 2008 sentence for sexual battery was illegal because the circuit court did not have the authority to suspend fifteen years of his thirty-year sentence. Tucker also repeated his claim that he did not voluntarily plead guilty. To be specific, Tucker claimed that “the circuit court, the prosecution, and [his] trial counsel misled [him]” regarding the consequences of his guilty plea. According to Tucker, if he had been informed that the circuit court would suspend a portion of his sentence, he “would have insisted on going to trial.”

¶ 7. On October 18, 2010, Tucker filed his fourth PCR motion. Within his fourth PCR motion, Tucker attacked his 1997 conviction for sexual battery. Similar to his third PCR motion, Tucker argued that the circuit court had no authority to suspend any portion of the sentence he received incident to his 1997 conviction for sexual battery. Again, Tucker argued that he would not have pled guilty if he would have known that he would receive what he characterized as an illegal sentence. Tucker also claimed that there was no factual basis for his guilty plea.

¶8. The circuit court subsequently entered an order dismissing Tucker’s challenge of his 1997 sentence for sexual battery because Tucker’s fourth PCR motion was untimely and meritless. However, the circuit court did not address Tucker’s third PCR motion. It remains unresolved.

STANDARD OF REVIEW

¶ 9. In reviewing a circuit court’s decision to dismiss a motion for post-conviction relief, we will not disturb the circuit court’s factual findings unless they are clearly erroneous. Evans v. State, 61 So.3d 922, 924 (¶ 7) (Miss.Ct.App.2011). “However, we review questions of law de novo.” Id.

ANALYSIS

¶ 10. First and foremost, we note that the circuit court’s order only addressed Tucker’s fourth PCR motion, in which Tucker challenged the sentence he received when he pled guilty to sexual battery in 1997. The circuit court’s order did not address Tucker’s third PCR motion. Consequently, Tucker’s third PCR motion is not before this Court. Thus, we focus on Tucker’s fourth PCR motion.

¶ 11. Tucker’s fourth PCR motion was untimely. Tucker pled guilty to sexual battery on November 10, 1997. He had three years from the circuit court’s entry of the judgment of conviction to file a PCR motion. Miss.Code Ann. § 99-39-5(2) (Rev.2007). Therefore, as the circuit court noted, Tucker had until November 10, 2000, to file a PCR motion attacking his 1997 sexual-battery conviction. His October 4, 2010 PCR motion was approximately ten years too late.

¶ 12. Section 99-39-5(2) does not, however, subject all PCR motions to a three-year statute of limitations. Dobbs v. State, 18 So.3d 295, 298 (¶ 13) (Miss.Ct.App.2009) (citation omitted). The following claims are exceptions to the time-bar rule:

[C]laims that there has been an intervening decision from the Supreme Court of Mississippi or the United States Supreme Court which would have adversely affected the outcome of [a convicted defendant’s] sentence or that [a convicted defendant] has evidence, not reasonably discoverable at the time of trial, that would have caused a different result in the conviction or sentence.

Id. at 298-99 (¶ 13) (citing Miss.Code Ann. § 99-39-5(2)). Additionally, “the three-year statute of limitations may be waived when a fundamental constitutional right is implicated.” Id. at 299 (¶ 13) (citing Luckett v. State, 582 So.2d 428, 430 (Miss.1991)). Nevertheless, Tucker has not demonstrated that he suffered any prejudice based on a violation of his fundamental rights. It follows that we find no merit to Tucker’s claim that the circuit court erred when it found that Tucker’s fourth PCR motion was time-barred.

¶ 13. Notwithstanding that Tucker’s fourth PCR motion was time-barred, there is no merit to Tucker’s underlying claim. Tucker argues that the circuit court had no authority to suspend sixteen years of his twenty-year sentence because he had previously been convicted of a felony. He claims he would have insisted on going to trial if he would have known that the circuit court planned to suspend a portion of his sentence. In other words, Tucker attempts to persuade us that he would have insisted on serving twenty years in the custody of the MDOC instead of serving four years with the remaining sixteen years suspended.

¶ 14. To support his argument, Tucker cites Mississippi Code Annotated section 47-7-33(1) (Rev.2004). However, section 47-7-33(1) prohibits a sentencing court from suspending a sentence and placing a defendant on probation if that defendant “has been convicted of a felony on a previous occasion.” Although the circuit court suspended a portion of Tucker’s 1997 sentence for sexual battery, the circuit court did not place Tucker on probation. Instead, the circuit court sentenced Tucker to twenty years in the custody of the MDOC with sixteen years suspended followed by five years of post-release supervision. Mississippi Code Annotated section 47-7-34 (Rev.2004) governs post-release supervision. Section 47-7-34 does not prohibit a sentencing court from suspending a portion of a sentence and including a term of post-release supervision when a defendant has been previously convicted of a felony.

¶ 15. Even if the circuit court would not have had the authority to suspend a portion of Tucker’s 1997 sentence for sexual battery, Tucker’s argument would still fail. Although we do not find that Tucker received an illegal sentence, when “a convicted defendant receives an illegal sentence, the sentence must be vacated and the case remanded to the trial court for resentencing because the defendant suffered prejudice.” Felton v. State, 18 So.3d 328, 330 (¶ 6) (Miss.Ct.App.2009) (citation omitted). That principle “applies to situations where the [convicted] defendant is forced to suffer a greater sentence” than the law allows. Id. But a convicted defendant who receives an illegally lenient sentence suffers no prejudice. Id. Thus, an illegally lenient sentence amounts to harmless error. Id. Accordingly, even if Tucker had been correct that the circuit court had no authority to suspend a portion of his 1997 sentence for sexual battery, there would still be no merit to his claim that his guilty plea should be set aside.

¶ 16. Tucker’s fourth PCR motion is time-barred. Even if it was not time-barred, the circuit court had the discretion to suspend a portion of Tucker’s 1997 sentence for sexual battery and place him on post-release supervision. Therefore, we affirm the circuit court’s judgment dismissing Tucker’s fourth PCR motion.

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

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