text:
    In the Matter of the ESTATE OF Patricia McDaniel LANGSTON, Deceased: Mansfield Langston, Appellant v. Ethel Williams, Appellee.
    No. 2008-CA-01090-COA.
    Court of Appeals of Mississippi.
    March 30, 2010.
    Rehearing Denied Aug. 3, 2010.

      Lindsey C. Meador, Cleveland, attorney for appellant.
    Alsee McDaniel, Indianola, attorney for appellee.
   GRIFFIS, J.,

for the Court:

¶ 1. Mansfield Langston appeals the chancellor’s judgment setting aside the creation of certain joint tenancies with his wife, Patricia McDaniel Langston. He claims that the chancellor: (1) erred as a matter of law in finding that a confidential relationship existed between Mansfield and Patricia and (2) made certain findings of fact that are not supported by substantial credible evidence. We find that the chancellor applied the incorrect standard of law to the particular facts of this case; therefore, the judgment of the chancery court is reversed and rendered.

FACTS

¶ 2. Mansfield and Patricia were married on May 29,1994. At the time of marriage, Mansfield was forty-four years old, and Patricia was forty years old. This was the second marriage for both parties, and they both had children from previous marriages. Patricia suffered from several chronic health problems throughout the marriage including heart and kidney problems. In 2001, she was a class-action plaintiff and received a settlement following litigation involving the diet drug Phen-Phen.

¶ 3. From August 23, 1997, until March 11, 2002, the couple owned their marital home on Kentwood Lane, in Indianola, Mississippi, as joint tenants with the right of survivorship. On March 11, 2002, Patricia quitclaimed the marital home to Mansfield because Patricia had purchased a home on French Road, also in Indianola.

¶ 4. On March 15, 2002, Patricia executed a will naming Mansfield as executor. The will divided Patricia’s entire estate equally among her three adult children and one of her sisters. A clause in the will expressly stated that: “MANSFIELD LANGSTON, my husband, has his own estate in his name, therefore no provision for him is made in this will.” At the time this will was executed, Patricia owned the French Road home solely in her name.

¶ 5. On May 9, 2002, three deeds were prepared by the Langstons’ attorney, Richard Noble. The first deed was executed by Patricia and created a joint tenancy with the right of survivorship in the French Road home, which then became the couple’s marital home. The second deed conveyed the home on Kentwood Lane to Patricia’s mother, Ethel Williams. Mansfield testified that the home was sold to Williams at a discounted price. In the third deed, Williams sold and conveyed her home in Indianola.

¶ 6. On June 11, 2002, Patricia executed a second will that was identical to her first will except it named Patricia’s mother as executor instead of Mansfield. On September 4, 2003, Mansfield and Patricia executed a $200,000 certificate of deposit as joint tenants with the right of survivorship.

¶ 7. On May 11, 2005, Patricia died due to a sudden illness. Patricia’s estate was opened by her mother. The estate sought to set aside the joint tenancies in the marital home and the certificate of deposit in order to bring those assets into the estate for distribution to the will beneficiaries— Patricia’s adult children and Patricia’s sister.

¶8. Following the trial, the chancellor found that a confidential relationship existed between Mansfield and Patricia. Therefore, the chancellor ruled that the burden shifted to Mansfield to prove by clear and convincing evidence that the creation of the joint tenancies was not the result of undue influence. The chancellor held that Mansfield did not meet this burden, and both joint tenancies were set aside and brought into Patricia’s estate.

STANDARD OF REVIEW

¶ 9. “This Court will not disturb a chancellor’s findings of fact in a will contest unless the findings are clearly erroneous, manifestly wrong, or the chancellor applied an incorrect legal standard.” In re Estate of Thornton v. Thornton, 922 So.2d 850, 852 (¶ 6) (Miss.Ct.App.2006). “Questions of law, however, are reviewed de novo.” Id.

ANALYSIS

Whether the chancellor erred as a matter of law in finding that a confidential relationship existed between MaEsfield and Patricia.

¶ 10. Mansfield claims that the chancellor erred as a matter of law in finding that Mansfield and Patricia were in a confidential relationship for the purpose of raising the presumption of undue influence. Specifically, Mansfield contends that the factors used by the chancellor to find a confidential relationship are factors that would be found in any trusting, healthy relationship between a husband and wife. Williams responds that the relationship between Mansfield and Patricia clearly met all of the factors which constitute a confidential relationship. Thus, Williams claims that the presumption of undue influence automatically applies to the two inter vivos transfers.

¶ 11. The supreme court defines a confidential relationship as:

Whenever there is a relation between two people in which one person is in a position to exercise a dominant influence upon the other because of the latter’s dependency upon the former, arising either from weakness of mind or body, or through trust, the law does not hesitate to characterize such relationship as fiduciary in character.

Madden v. Rhodes, 626 So.2d 608, 617 (Miss.1993) (citation omitted). “[T]he relationship must reflect ‘a dominant, overmastering influence [which] controls over a dependent person or trust justifiably reposed.’ ” Taylor v. Welch, 609 So.2d 1225, 1231-32 (Miss.1992) (quoting Mullins v. Ratcliff, 515 So.2d 1183, 1191-92 (Miss.1987)). The factors to be considered in determining whether a confidential relationship exists between the parties are:

(1) whether one person has to be taken care of by others,
(2) whether one person maintains a close relationship with another,
(3) whether one person is provided transportation and has their medical care provided for by another,
(4) whether one person maintains joint accounts with another,
(5) whether one is physically or mentally weak,
(6) whether one is of advanced age or poor health, and
(7) whether there exists a power of attorney between the one and another.

Thornton, 922 So.2d at 852-53 (¶ 7).

¶ 12. The chancellor examined each of these factors and made the following findings. Patricia suffered from a variety of health problems including chronic heart disease, kidney problems, asthma, gout, high blood pressure, and swelling of the feet. Mansfield helped Patricia get her medication and drove her to various doctors’ appointments. Mansfield testified that he and Patricia had a close relationship. The couple shared joint bank accounts during their marriage. The chancellor found that Patricia’s chronic health problems made her physically and mentally weak, and although she was not of an advanced age, she did have poor health. Finally, both Mansfield and Patricia granted each other power of attorney.

¶ 13. The chancellor concluded that a confidential relationship existed between Mansfield and Patricia. We find substantial evidence to support the chancellor’s conclusion; however, our review does not end there. We must determine whether the chancellor correctly applied the presumption of undue influence as it relates to Mansfield and Patricia as husband and wife.

¶ 14. As the supreme court discussed in Madden, 626 So.2d at 618, the presumption of undue influence operates differently depending on whether a transfer occurs during the grantor’s lifetime or occurs through operation of the grantor’s will. The supreme court stated:

[T]he rules of law are different regarding gifts testamentary and gifts inter vivos where a confidential relationship exists between the testator/grantor and the beneficiary/grantee. The prior holdings of this Court indicate a presumption of undue influence only arises in the context of gifts by will when there has been some abuse of the confidential relationship, such as some involvement in the preparation or execution of the will. On the other hand, with a gift inter vivos, there is an automatic presumption of undue influence even without abuse of the confidential relationship. Such gifts are presumptively invalid.

Id.

¶ 15. Thus, a party claiming that an inter vivos transfer is void because of undue influence must show by clear and convincing evidence that a confidential relationship existed between the grantor and grantee/beneficiary. Estate of Hawkins v. Shiyou, 737 So.2d 432, 434 (¶ 9) (Miss.Ct.App.1999). When such a relationship exists, the presumption of undue influence arises automatically. Lancaster v. Boyd, 803 So.2d 1285, 1289 (¶9) (Miss.Ct.App.2002); Shiyou, 737 So.2d at 434 (¶ 9).

¶ 16. Once the presumption is established, the burden shifts to the grantee to rebut the presumption by clear and convincing evidence. 'Id. In order to overcome the presumption, the grantee must show that: (1) he or she exhibited good faith in the fiduciary relationship with the grantor; (2) the grantor had full knowledge and deliberation when he executed the deed; and (3) the grantor exhibited independent consent and action. Lancaster, 803 So.2d at 1289 (¶ 9).

¶ 17. . Here, the transfers at issue were inter vivos transfers. Therefore, once the chancellor found a confidential relationship, the presumption of undue influence automatically arose. No actual showing of undue influence on the part of Mansfield was required.

¶ 18. While we recognize that our supreme court has set forth such automatic presumption for inter vivos transfers, we also find that the supreme court has found it necessary to distinguish confidential relationships between spouses in a long-term marriage. In Genna v. Harrington, 254 So.2d 525, 528-29 (Miss.1971), the supreme court held that:

It is undoubtedly true that a husband or a wife may exercise undue influence upon the other spouse, but the mere fact that there is a close relationship between the parties in a marriage does not mean that one’s influence upon another is undue influence.
In order to set a will aside upon the grounds of undue influence on the part of a spouse, it must be shown that the devisee spouse used undue methods for the purpose of overcoming the free and unrestrained will of the testator so as to ■ control his acts and to prevent him from being a free agent.

¶ 19. Because it is clear that a husband and wife naturally influence each other as part of their marital relationship, there must be something more to show that such influence was undue. To presume undue influence here, solely based on the existence of a confidential relationship, would discourage certain benefits that are quite common and encouraged among spouses— assistance with health problems, transportation to doctors’ visits, joint accounts, reciprocal powers of attorney, and the most obvious factor — a close relationship. Accordingly, we find that the legal standard used by the chancellor in this case was improper due to the long-term marriage of Patricia and Mansfield.

¶ 20. Our finding is supported by a brief examination of how the facts of this case relate to recent cases in which this Court addressed the issue of a confidential relationship between a husband and wife. First, in Spencer v. Hudspeth, 950 So.2d 238, 243 (¶ 17) (Miss.Ct.App.2007), this Court reversed the chancery court’s denial of a motion to set aside a deed on the ground of undue influence. Ethel Hud-speth executed a deed to forty acres of land to her husband, Montie Hudspeth. Id. at 240 (¶ 6). We found a confidential relationship existed between Ethel and Montie because Ethel was physically and mentally weak. Id. at 241^2 (¶ 12). She had suffered a stroke, a heart attack, and a broken hip. She was bedridden, disoriented, and very weak. Id. at 240 (¶ 4). Ethel’s signature on the deed was misspelled, and Ethel had been in a nursing home for a year before the deed was signed. Id. at (¶ 6). The motion to set aside the deed was filed by Ethel’s niece after both Ethel and Montie were deceased.

¶21. The facts of Spencer are distinguishable from the facts in this case. Ethel’s signature, which was made while she was physically and mentally weak and a resident of a nursing home, was highly suspect. In the instant case, there is no question that Patricia executed the deed and the certificate of deposit. Both Noble, the attorney who prepared the deed, and Paul Townsend, the banker who prepared the certificate of deposit, testified that Patricia was competent, knowledgeable, and did not exhibit any mental weakness.

¶ 22. Next, in In re Estate of Chapman v. Chapman, 966 So.2d 1262, 1263 (¶¶ 1-2) (Miss.Ct.App.2007), this Court affirmed the chancellor’s ruling that no confidential relationship existed between husband and wife, Leslie and Betty Chapman. Gary Chapman, Leslie’s son who was disinherited by Leslie’s will, claimed that a confidential relationship existed between Leslie and Betty. Id. This Court noted that a close relationship was to be expected as an inherent part of a long-term marriage. Furthermore, the testimony revealed that Leslie was a very strong-willed man. Id. at 1264-65 (¶ 16). There was no evidence that Betty prevented Leslie from being a free agent in the signing of his will. Id. at (¶17).

¶ 23. Similarly, here, a close relationship is to be expected as part of Patricia and Mansfield’s long-term marriage. The two were married for eleven years, and the transfers at issue were not executed until eight years into the marriage. There was no evidence that Mansfield prevented Patricia from freely signing the deed or the certificate of deposit. In fact, Townsend testified that Patricia dominated the conversation regarding the certificate of deposit. There was ample testimony that Pati’icia was a strong-willed person.

¶ 24. Finally, in In re Estate of Pope v. White, 5 So.3d 427, 433 (¶ 13) (Miss.Ct.App.2008), we found substantial evidence to support the chancellor’s finding that a confidential relationship existed between husband and wife, Earsel and Juanita Pope. Earsel was a seventy-three-year-old, terminally-ill man suffering from several ailments including Alzheimer’s and dementia. Id. at 430 (¶ 3). Juanita became Ear-sel’s caregiver, and the two married after a very brief courtship. Within days of the marriage, Juanita set up an appointment with an attorney and drove Earsel to the appointment. Juanita met with Earsel and the attorney, and a will was prepared disinheriting Earsel’s children. The will left Earsel’s entire estate to Juanita. Id. at 431 (¶ 6).

¶ 25. The present case is clearly distinguishable from Pope because Patricia and Mansfield’s marriage was not contrived. While Patricia suffered from physical problems, the evidence established that she was a strong-willed person and mentally capable of making her own decisions. Pope is a clear example of a circumstance where the factors used to find a confidential relationship properly lead to the automatic presumption of undue influence between a husband and wife. Such is not the case here.

¶ 26. We further note that the chancellor found that Mansfield failed to rebut the presumption of undue influence by clear and convincing evidence. Again, the factors used against Mansfield are inherent to the relationship between a husband and wife in a long-term marriage. For example, the fact that the attorney who prepared the deeds had also done other legal work for Mansfield was used against Mansfield. Also, the fact that Mansfield was a customer at the bank that held the certificate of deposit was used to prevent Mansfield from showing a lack of undue influence. The chancellor found that Mansfield gave no consideration for the deeds. Further, Patricia only discussed the transfers with Mansfield and not her mother or sister. Each of these factors— using the same attorney or bank, lack of consideration, confidence in each other— are to be expected as part of a relationship between a husband and wife of eleven years.

¶27. The chancellor also found that Patricia did not understand the consequences that the inter vivos transfers would have on the distribution of her estate by will. However, had Mansfield predeceased Patricia, Patricia would have become the sole owner of the property. The property would have then been distributed to her children and sister via her will. Thus, Williams’s argument that the transfers were contrary to Patricia’s specific intent and made Patricia’s will null and void is incorrect. Moreover, the will does not bequeath specific property to the beneficiaries; instead, it gives all of Patricia’s “estate, real and personal, wheresoever situate, of which I may die, seized and possessed.”

¶ 28. We find that the chancellor’s application of the automatic presumption of undue influence based solely on the existence of a confidential relationship was improper based on the specific facts of this case. Mansfield and Patricia were married for eleven years. As part of- that marriage, they assisted each other with business, their health needs, and personal matters. The two shared a close relationship. Under these circumstances, their relationship alone is insufficient to void the joint tenancies created in their marital home and the certificate of deposit. Accordingly, the judgment of the chancellor holding such joint tenancies null and void is reversed and rendered.

¶ 29. THE JUDGMENT OF THE SUNFLOWER COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. IRVING, J„ DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J., LEE AND MYERS, P.JJ.

IRVING, J.,

dissenting:

¶ 30. The majority concludes that the chancellor improperly applied the presumption of undue influence because Patricia McDaniel Langston and Mansfield Langston were a married couple. The majority then decides that the proper remedy is to reverse and render, rather than remand for a consideration of the facts utilizing the proper standard. Based on my review of the record, I find that the chancellor utilized the proper standard, but even if she did not, the proper remedy is not to reverse and render. Therefore, I dissent.

¶ 31. The record reflects that the chancellor’s findings of fact and conclusions of law make up sixteen pages. In her extensive findings of fact and conclusions of law, the chancellor made specific findings regarding Mansfield’s domination of Patricia. In her judgment, the chancellor noted:

The evidence showed that Mansfield engaged in a pattern of systematically alienating Patricia from her family and friends. April Frierson testified that Patricia would not come inside of her home because Mansfield had accused Patricia of having an affair with April’s husband. Prior to the marriage of Patricia to Mansfield, Linda Myles-Williams testified that she and Patricia were long[-]time friends, who talked frequently by phone and visited often in each othei*[’]s home. After her marriage to Mansfield, the calls and visitation virtually ceased. Historically, Patricia talked to her mother and sister about her business and personal affairs. Ethel Williams testified she was not aware that Patricia executed the warranty deed and CD in question. Only Mansfield and those who were connected with him were aware of these inter vivos transactions.

¶ 32. The chancellor made specific findings of fact which support her decision that the two inter vivos transactions by Patricia were a nullity because Mansfield exercised undue influence over Patricia in the procurement and execution of the warranty deed and the certificate of deposit. For the reasons stated, I would affirm the chancellor’s judgment.

¶ 33. However, even if I agreed with the majority’s conclusion that the chancellor applied an incorrect legal standard, I would still find that this case should be reversed and remanded, rather than reversed and rendered. Mississippi appellate courts generally reverse and remand a chancellor’s judgment when an incorrect legal standard has been applied. See In Interest of R.D. v. Linda D., 658 So.2d 1378, 1389 (Miss.1995); Schonewitz v. Pack, 913 So.2d 416, 418 (¶ 6) (Miss.Ct.App.2005); In re Guardianship of Brown v. Wiley, 902 So.2d 604, 606 (¶ 2) (Miss.Ct.App.2004); Johnson v. Johnson, 877 So.2d 485, 495-96 (¶ 45) (Miss.Ct.App.2003). Therefore, if I agreed with the majority’s finding that the chancellor applied an incorrect legal standard, I would reverse and remand this case to the chancellor with instructions to apply the proper legal standard, because I believe that, when applying the standard that the majority believes should be applied, the facts of this case would still compel the result that was reached by the chancellor.

KING, C.J., AND LEE AND MYERS, P.JJ., JOIN THIS OPINION.

      . There were no medical records or testimony introduced at trial concerning Patricia’s cause of death. Despite this fact, the chancellor ultimately concluded that Patricia’s chronic health problems “eventually culminated in her death.”

      . We- note that the chancellor's finding that Patricia was mentally weak was contrary to the testimony of Williams and two of the estate beneficiaries — Patricia’s son, Keith White, and Patricia's sister, April Frierson. Their testimony established that Patricia had no mental problems, was strong willed and strong minded, and that Patricia’s physical health problems did not affect her mental state.

      . Our conclusion is emphasized by the chancellor’s finding under the factor of whether one person maintains a close relationship with another: “Mansfield and Patricia shared a close relationship, as the testimony of Mansfield indicated.' The Court accepted Mansfield’s version inasmuch as it is a statement against interest.”

      . There was undisputed testimony from an employee of Guaranty Bank, the holder of the certificate of deposit, that Patricia did not want to purchase the certificate of deposit from her regular bank because one of her relatives was employed at that particular bank.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Michael T. HENDON, Sherry Hendon and Charles Hendon, Appellants v. Beverly LANG and Robert C. Lang, Appellees.
    No. 2008-CA-00997-COA.
    Court of Appeals of Mississippi.
    Aug. 10, 2010.
    Rehearing Denied Dec. 7, 2010.
    Certiorari Denied March 31, 2011.

      Michael James Brown, attorney for appellants.
    Eduardo Alberto Flechas, Jackson, attorney for appellees.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. Michael T. Hendon, Sherry Hendon, and Charles Hendon brought a claim for breach of contract against Robert C. Lang and Beverly Lang. The contract was a lease agreement with an option to purchase a parcel of commercial property. The jury found that there was no contract between the parties, and a judgment was entered in favor of the Langs. It is from this judgment that the Hendons appeal. The Hendons argue that the circuit court was in error when it denied their motion for a' mistrial, when it set aside a previous order confirming the admission of certain requests for admissions, and when it determined it lacked jurisdiction to award attorney’s fees. We find no error and affirm. However, in the interest of justice, we remand this case for the circuit judge to enter an order awarding attorney’s fees.

FACTS

¶ 2. The Hendons entered into a lease agreement with Billy and Glenda Palmer for the lease of a commercial building located at 308 East Railroad Avenue, Crystal Springs, Mississippi. The Hendons claim that the lease agreement also included an option for the Hendons to buy the leased premises. The Hendons alleged that they were later willing to purchase the property, pursuant to the terms of the lease agreement, but the Palmers had already sold the property to the Langs.

¶ 3. The Hendons commenced this lawsuit in the Circuit Court of Copiah County. Their complaint alleged claims for breach of contract and bad faith against both the Palmers and the Langs. The Hendons dismissed the Palmers from the lawsuit.

¶ 4. The Hendons served requests for admissions on the Langs. The Langs answered requests numbered 1-6, but they failed to answer the requests for admission numbered 7-20. The Hendons then filed a “Motion to Confirm Requests for Admissions as Admitted under Rule 36.” The court subsequently issued an “Order to Confirm as Admitted Requests for Admission under Rule 36.” The order declared that requests numbered 7-20 were admitted by the Langs.

¶ 5. The Hendons then filed a motion for a default judgment. The Langs responded by filing a “Motion to Set Aside the Requests for Admissions Admitted ... And to Allow Defendants Additional Time to Respond to Requests for Admissions ... and Response to Motion for Default Judgment.” The circuit court granted the Langs’ motion and set aside the admissions and allowed the Langs to answer the requests for admissions.

¶ 6. The case proceeded to trial. The jury returned a verdict in favor of the Langs. The Hendons appeal the final judgment.

ANALYSIS

1. Was it reversible error for the circuit court to deny the Hendons' motion for a mistrial?

¶ 7. The Hendons argue that the circuit court committed reversible error when it denied the Hendons’ motion for a mistrial. The motion for mistrial was based on a series of questions that were asked, in the presence of the jury, by the Langs’ attorney.

¶ 8. While completing his cross-examination of Sherry Hendon, the Langs’ attorney asked:

Q: And you would agree with me that you have sued — you sued Billy Palmer, and you sued Glenda Palmer in this litigation for about $6 million.
A: Right.
Q: And you would agree with me that you dismissed the Palmers from this lawsuit.
A: Yes, we did.
Q: Okay. And there was no money paid by the Palmers to you.

(Emphasis added).

¶ 9. The Hendons’ attorney made a timely objection on the grounds that the question was an improper “reference to a settlement.” The circuit judge sustained the attorney’s objection. The question was not answered. The Hendons’ attorney informed the court that he would make “another motion” outside the presence of the jury. The Langs’ attorney then proceeded to another subject.

¶ 10. Later, outside the presence of the jury, the Hendons’ attorney moved the court for a mistrial. He argued that the Langs’ attorney’s reference of the settlement with the Palmers, as former co-defendants, was in violation of Rule 408 of the Mississippi Rules of Evidence. In response, the Langs’ attorney argued that the question was proper and was not a violation of Rule 408. The circuit judge denied the motion for a mistrial. No limiting instruction was requested of or given by the circuit court.

¶ 11. The Hendons do not challenge the circuit court’s evidentiary ruling. Indeed, the Hendons got the ruling they asked for, and the circuit court did not allow evidence of the amount paid by the Palmers, if any. We note, however, that the “[ajdmission or exclusion of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that discretion.” Miss. Dep’t of Trcmsp. v. Cargile, 847 So.2d 258, 263 (¶ 16) (Miss.2003). The circuit court’s evidentiary ruling is not contested in this appeal. Thus, we must consider the circuit court’s ruling to be correct.

¶ 12. The issue to be decided here is whether it was reversible error for the circuit court to deny the motion for a mistrial. In Coho Resources, Inc. v. McCarthy, 829 So.2d 1, 18 (¶ 50) (Miss.2002), the supreme court considered whether prejudicial statements, rather than questions by the plaintiffs’ attorney, required a mistrial. The court held:

Our standard of review of the trial court’s decision whether to grant a mistrial is abuse of discretion:
Case law unequivocally holds that the trial judge is in the best position for determining the prejudicial effect of an objectionable remark. The judge is provided considerable discretion to determine whether the remark is so prejudicial that a mistrial should be declared. Where serious and irreparable damage has not resulted, the judge should admonish the jury then and there to disregard the impropriety.
Roundtree v. State, 568 So.2d 1173, 1177-78 (Miss.1990) (internal citations omitted).

Coho Resources, Inc., 829 So.2d at 18 (¶ 50).

¶ 13. The Palmers were an integral part of the Hendons’ claim. There was no objection when the Langs’ attorney inquired about the fact that the Hendons had sued the Palmers. Likewise, there was no objection to the question that the Hendons had dismissed the Palmers from the lawsuit. The motion for mistrial was based on the Hendons’ argument that the Langs’ attorney improperly sought to bring before the jury the fact that the Palmers were dismissed from the lawsuit, and they had paid nothing to the Hendons for the dismissal.

¶ 14. It is important to our analysis that the Hendons’ attorney promptly objected to the question, as required by Rule 103(a)(1) of the Mississippi Rules of Evidence. The court then sustained the objection. For evidentiary purposes, the question was never answered. Later, when the Hendons’ attorney moved for a mistrial, the circuit court reviewed the motion for a mistrial under the standard set forth in Rule 3.12 of the Uniform Rules of Circuit and County Court, which provides:

Upon motion of any party, the court may declare a mistrial if there occurs during the trial, either inside or outside the courtroom, misconduct by the party, the party’s attorney, or someone acting at the behest of the party or the party’s attorney, resulting in substantial and irreparable prejudice to the movant’s case.

(Emphasis added). Hence, the circuit court determined that the question did not constitute “substantial and irreparable prejudice” to the Hendons’ case.

¶ 15. The circuit judge is in the best position to detei'mine the impact of a particular occurrence. Illinois Cent. R.R. v. Hawkins, 830 So.2d 1162, 1176 (¶ 29) (Miss.2002). We find the circuit court’s evidentiary ruling to be within its discretion. While the question that was asked might not have been permissible, the circuit court dealt with it when the objection was sustained. After hearing argument on the motion for a mistrial, the circuit court did not believe the question, which it deemed to be improper, had resulted in substantial and irreparable prejudice to the Hendons’ case. And the circuit court denied the motion.

¶ 16. In the jury instructions, the circuit court instructed the jury: “You are to disregard all evidence which was excluded by the Court from consideration during the course of the trial.” There is no evidence the jury did not follow this instruction.

¶ 17. We find that the circuit court did not abuse its discretion when it denied the motion for a mistrial. Therefore, we find no merit to this issue.

2. Was it reversible error for the circuit court to set aside the previous order confirming the admission of certain requests for admissions?

¶ 18. In DeBlanc v. Standi, 814 So.2d 796, 801-02 (1126) (Miss.2002), the supreme court held:

While Rule 36 is to be applied as written, it is not intended to be applied in Draconian fashion. If the [r]ule may sometimes seem harsh in its application, the harshness may be ameliorated by the trial court’s power to grant amendments or withdrawals of admissions in proper circumstances. The trial court’s ruling in this regard is subject to review for abuse of discretion. The purpose of the rule is to determine which facts are not in dispute. It is not intended to be used as a vehicle to escape adjudication of the facts by means of artifice or happenstance. Just as a matter admitted is “conclusively established” by the express terms of the [rjule, the trial court is likewise directed to carefully examine a Rule 36(b) motion under the two-prong test there provided.

(Internal citation omitted).

¶ 19. Mississippi Rule of Civil Procedure 36(b) provides: “Subject to the provisions governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.” (Emphasis added). Thus, Rule 36 expressly gives the judge the authority, using his or her discretion, to vacate any prior orders deeming certain requests that were unanswered as admitted.

¶ 20. At the hearing on the motion, the circuit judge heard testimony from Beverly and Robert Lang. The circuit judge, having found there was good cause and that there would be little or no detriment to the Hendons, vacated his previous order deeming all unanswered requests as admitted and allowed the defendants additional time to answer. The circuit court did order sanctions against the Langs. Thus, we find that the circuit judge did not abuse his discretion. This issue lacks merit.

3. Was the circuit court in error when it ruled that it no longer had jurisdiction to enforce an order awarding attorney’s fees?

¶ 21. The circuit court issued an order that sanctioned the Langs for the five-month delay in answering all of the requests for admissions. As their sanction, the Langs were ordered to pay the Hendons’ attorney’s fees incurred during that delay. According to the order, the Hendons’ attorney was directed to submit a bill for his attorney’s fees to the court for approval.

¶ 22. Before the circuit court approved the attorney’s fees submitted by the Hen-dons, the Hendons appealed. The circuit judge then refused to issue an order for the Langs to pay the attorney’s fees because the case had been appealed. The circuit judge determined that he had lost jurisdiction once the case was appealed.

¶ 23. Recently, in Corporate Management, Inc. v. Greene County, 23 So.3d 454, 460 (¶ 13) (Miss.2009), the supreme court ruled:

Filing a notice of appeal transfers jurisdiction from the trial court to an appellate court, thereby removing the trial court’s authority to amend, modify, or reconsider its judgment. In other words, the appeal removes the case ipso facto to the appellate courts. When an appeal has no supersedeas bond, a party may execute on the judgment. However, the lower court cannot “broaden, amend, modify, vacate, clarify, or rehear the decree.” On the other hand, when an appeal has a supersedeas bond it effectively suspends the judgment. Therefore, “enforcement of the rights declared by the decree are suspended until the appeal is determined.” When a trial court’s order broadens, amends, modifies, vacates, clarifies, or rehears a decree, “it must be vacated as null and void because It exceeds the subject matter jurisdiction of the lower court.”

(Internal citations omitted).

¶ 24. The circuit court correctly determined that it had lost jurisdiction when this case was appealed. An order establishing the amount of attorney’s fees that were awarded as a result of a prior sanction order would certainly broaden the court’s judgment. We find no error in the circuit court’s decision to deny the relief. However, in the interest of justice, we remand this case to the circuit court to grant the relief awarded in the court’s previous order. Upon remand, the circuit court will regain jurisdiction and may enter the appropriate order, if it determines it is necessary.

¶ 25. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT IS AFFIRMED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J, CONCURS IN RESULT ONLY.


author: IRVING, J., for the Court:

text:
    Marco S. RAINE, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01878-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.

      Marco S. Raine, appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J., for the Court:

¶ 1. Marco S. Raine pleaded guilty to and was convicted of the felony of issuing a bad check. The Jackson County Circuit Court accepted Raine’s guilty plea and sentenced him to serve two years in the custody of the Mississippi Department of Corrections, with thirteen months to serve and the remaining eleven months to be served as post-release supervision. Less than two years after he was sentenced, Raine filed a motion for post-conviction relief (PCR), wherein he alleged that his plea was involuntary and that he received ineffective assistance of counsel. The circuit court denied the motion without an evidentiary hearing. Feeling aggrieved, Raine appeals the denial of his PCR motion, alleging the same complaints as in his original PCR motion.

¶ 2. We find that the factual basis under-girding the guilty plea, along with the assistance of counsel afforded, is problematic; therefore, we reverse the circuit court’s judgment and remand this case to the circuit court for an evidentiary hearing.

FACTS

¶ 3. In December 2006, Raine was indicted for the felony offense of issuing a bad cheek. The charge came about because of a check for $19,864 that Raine had written to Titan Motorsports, LLC. Raine claims that he postdated the check upon an agreement with Titan Motorsports but that Titan Motorsports unilaterally changed the date on the check and then attempted to cash it. Raine claims that Titan Motorsports agreed to sell him a vehicle for $19,864, with payment made by a check in that amount, with the understanding that the check would not be cashed until a month later. Raine contends that Titan Motorsports agreed to this on the condition that Raine would not receive title to his vehicle until a month later, when the check was cashed. Raine has provided multiple documents which appear to support his contentions that the check was originally postdated and that Titan Motorsports knowingly accepted the postdated check.

¶ 4. On August 17, 2007, Raine appeared before the circuit court to plead guilty. After explaining the rights that Raine was waiving by pleading guilty, the circuit court asked Raine to describe the factual basis for his plea:

Q. All right. Tell me what you did. Mr. Raine?
A. Yes, ma’am?
Q. Tell me about your scam.
A. Your Honor, I had an agreement with the salesman that I could purchase the vehicle with a [postdated check and they would hold it. And, for whatever reason, he altered the date on the check the very next day and I guess deposited it into the bank. And that’s the gist of that.
Q. Well, did you have any money in the bank?
A. No, ma’am, that was the purpose of the [postdate. That was the agreement, he would hold the—
Q. Where were you going to get the money?
A. Your Honor, the deal — the agreement was that I could arrange my own financing later. But I had a check coming in from an insurance company that I was going to cover .that with shortly thereafter.
Q. When was that coming in?
A. I’m sorry?
Q. When was that coming in?
A. Well, it was supposed to come in within two weeks. And then later I got a second denial letter, so it wasn’t going to happen anyway. But I had no foreknowledge of that.
Q. How much was the check for?
A. $19,846,1 believe.
[DEFENSE ATTORNEY]: Your Hon- or, there’s also some issue about the car being for sale several days later in the Sun Herald.
Q. So, you took the car with a [postdated check and then you tried to sell it?
A. Your Honor, I believe the check came back on the 7th of March of '06. He called me and said, you know, [h]ey, I’m going to lose my job. I’ve already been — got paid commission, you know. We need to get money for this car. So the only way I could come up with this money is if I sell the car. That’s the only way. I ran an ad on the 7th of—
Q. Well, why didn’t you just take it back to him?
A. Well, he said that he couldn’t because he would have to pay the commission back. He said that they had to fool their floor plan guy in order to get the title.
[THE COURT]: You know, I don’t really want to — I’ll just tell yah right now, I’m not real excited about accepting any recommendations on people that won’t tell me the truth. Okay? So, you two sit down. I’m over it.
Mr. Raine, you sit down too. I’m over you too. And I’m not going to accept that recommendation either, so sit down.

¶ 5. On December 5, 2007, Raine again appeared before the circuit court to plead guilty. The following exchange occurred between Raine and the circuit court:

Q. All right. • Mr. Raine, you were charged with felony bad check?
A. Yes, ma’am.
* * *
Q. All right.. Now, has anyone threatened ... you to get you to plead guilty?
A. No, ma’am.
Q. Has anyone promised you anything to get you to plead guilty?
A. No, ma’am.
Q. Has your attorney made any kind of threat or promise to you about anything?
A. No, ma’am.
Q. Are ... you pleading guilty to [this charge] because you are guilty and no other reason?
A. Yes, ma’am.
Q. All right. Mr. Raine?
A. Yes, Your Honor?
Q. Tell me what you did.
A. Your'Honor, I—
Q. And don’t' tell me you didn’t do anything. We’ve already been there once.
A. I purchased a. vehicle with a check and had insufficient funds in the account to cover it.
Q. And I assume you knew that?
A. Yes, ma’am.

¶ 6. In September 2009, Raine filed his PCR motion, which was summarily denied.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. The Mississippi Supreme Court has announced the applicable standard of review when a circuit court denies a petitioner’s PCR motion:

When reviewing a lower court’s decision to deny a petition for post[-]conviction relief[,] [an appellate court] will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Bank of Miss[.] v. S[.] Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996). However, where questions of law are raised!,] the applicable standard of review is de novo. Id.

Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

¶ 9. Before the circuit court accepted Raine’s guilty plea, it was required to determine that there was a “factual basis for the plea.” Burrough v. State, 9 So.3d 368, 373 (¶ 14) (Miss.2009) (quoting URCCC 8.04(A)(3)). “The factual-basis component of the rule requires that, ‘before it may accept the plea, the circuit court have before it, inter alia, substantial evidence that the accused did commit the legally defined offense to which he is offering the plea.’ ” Id. (quoting Corley v. State, 585 So.2d 765, 767 (Miss.1991)). Ultimately, enough facts must have been presented to convince the circuit court that “the prosecution could prove the accused guilty of the crime charged.” Id. (quoting Corley, 585 So.2d at 767).

¶ 10. Raine claims that his guilty plea was involuntary because his attorney “erroneously advised him as to the elements of the [c]rime of [f]elony [b]ad [c]heek.... Counsel advised Raine that the only element is that, ‘y°u wrote a check, knowing at the time it was written, that you didn’t have sufficient funds to cover [the] check.’ ” Raine claims that his attorney did not inform him that writing a postdated check is not a crime.

¶ 11. Section 97-19-55 of the Mississippi Code Annotated (Supp.2010), proscribes the uttering of a bad check and states in part:

(1) It shall be unlawful for any person with fraudulent intent:
(a) To make, draw, issue, utter[,] or deliver any check, draft[,] or order to obtain money, delivery of other valuable property, services, the use of property or credit extended by any licensed gaming establishment drawn on any real or fictitious bank, corporation, firm[,] or person, knowing at the time of making, drawing, issuing, uttering or delivering said check, draft or order that the maker or drawer has not sufficient funds in or on deposit with such bank, corporation, firm or person for the payment of such check, draft or order in full, and all other checks, drafts or orders upon such funds then outstanding; [or]
(b) To close an account without leaving sufficient funds to cover all outstanding checks written on such account.

(Emphasis added).

¶ 12. In Henderson v. State, 534 So.2d 554 (Miss.1988), the Mississippi Supreme Court reviewed the conviction of Donna Henderson, who had been convicted of passing a bad check under section 97-19-55. The Henderson court found that the evidence supporting Henderson’s conviction was insufficient, and it reversed and rendered the conviction. Id. at 557. The basis of the court’s reasoning was that: “While this check was written on and dated October 4, by agreement it was not to be presented for payment until October 28.... At most ... Mrs. Henderson obligated herself that when the check would be presented on October 28, there would be sufficient funds on deposit on that date.” Id. at 556.

¶ 13. Unquestionably, if someone writes a postdated check, notifies the recipient of the check that it is postdated, and the recipient then knowingly accepts the check, the writer of the check cannot be found guilty of writing a bad check simply because the recipient unilaterally attempted to present it for payment prior to the agreed-upon date. Some further evidence would have to be presented to show that the check’s writer possessed fraudulent intent at the time he wrote the postdated check, regardless of whether there were sufficient funds to cover the check after it was presented prematurely. •

' ¶ 14. Raine has presented compelling evidence to show that the check that he wrote was postdated and that Titan Motor-sports’ salesman unilaterally altered the date on the check and attempted to cash it weeks before they had agreed that the salesman would do so. In fact, the first time that Raine attempted to plead guilty, he informed the circuit court of those facts. The circuit court then rejected his plea. When the circuit court eventually accepted Raine’s plea, Raine admitted only that he wrote a check at a time when he knew he did not then have funds in his bank to cover the check. However, nothing about that admission precludes the possibility that Raine wrote a postdated check that Titan Motorsports had agreed to present at a later date. Notably, Raine never admitted to possessing fraudulent intent when he wrote the check. Raine’s attorney, who spoke several times during the hearings, never addressed Raine’s contention that he had written a valid postdated check.

¶ 15. Under these circumstances, we find that the circuit court should have granted Raine an evidentiary hearing. Raine has presented evidence suggesting that his attorney counseled him that the postdate on the check was not a viable defense; if this was the case, Raine’s attorney was clearly incorrect and gave him poor legal counsel. Furthermore, in the absence of any evidence that Raine possessed fraudulent intent when he wrote the check, there is an insufficient factual basis for Raine’s guilty plea.

¶ 16. Accordingly, we reverse and remand this case for an evidentiary hearing.

¶ 17. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED, AND THIS CASE IS REMANDED FOR AN EVIDENTIARY HEARING. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. MAXWELL, J.,. CONCURS IN THE RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Mississippi Code Annotated section 99-39-5 (Supp.2010) allows ''[a]ny person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated [or] on parole or probation ... [to] file a motion to vacate, set aside[,] or correct the judgment or sentence ... or a motion for an out-of-time appeal if the person claims....” The statute does not specifically allow an individual serving a period of post-release supervision to file an appeal or motion, but we see no reason to treat a period of post-release supervision differently from a period of probation or parole. Therefore, we find that Raine’s motion and appeal are timely, even if he has served the first thirteen months of his sentence and is now on post-release supervision.

      . Included in the record are documents showing the check before and after the alleged alteration and sale documents related to the vehicle that show the postdate rather than the date of sale. Short of alteration by Raine, there is no explanation in the record for these dates other than Raine and the salesman agreeing to postdate the sale of the vehicle.


author: ISHEE, J.,

text:
    Philvester WILLIAMS and Joyce Williams, Appellants v. AMERICA’S HOME PLACE, INC., Appellee.
    No. 2009-CA-01107-COA.
    Court of Appeals of Mississippi.
    March 15, 2011.

      Sanford E. Knott, attorney for appellants.
    James D. Bell, Jackson, attorney for appellee.
   ISHEE, J.,

for the Court:

¶ 1. On November 7, 2007, Philvester and Joyce Williams received an arbitration award of $12,500 against America’s Home Place, Inc. (AHP), which had been hired to construct the Williamses’ residence in 2002. The Williamses claimed the award was the result of the arbitrator’s “evident partiality” against them. Subsequently, the County Court of Hinds County granted the Williamses’ motion to vacate the award on January 17, 2008. On appeal to the Hinds County Circuit Court, First Judicial District, the circuit court reversed the county court’s judgment and entered a judgment confirming the arbitrator’s award. Aggrieved, the Williamses appeal. Finding no error, we affirm the circuit court’s revérsal of the county court’s judgment and confirmation of the award.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In 2002, the Williamses entered into a contractual agreement with AHP to construct the Williamses’ residence. After construction of the home was near completion, the Williamses claimed that AHP had failed to build the home properly. In June 2005, the Williamses filed suit against AHP in county court alleging approximately $125,000 in damage to the house. The suit was subsequently dismissed with prejudice due to enforcement of a binding arbitration agreement contained in the parties’ contract.

¶ 3. Subsequently, the county court entered orders in September 2005 and May 2006, requiring the parties to submit to arbitration. A hearing was conducted in the Williamses’ home before an arbitrator in May 2007, wherein the Williamses requested damages stemming from the following: the cost of repair and replacement of items per the home inspection report, the cost of replacement of the wastewater-treatment system, and damages caused by a lack of soil treatment. Conversely, AHP asserted that many of fhe Williamses’ claims dealt with the quality of materials provided, all of which were subject to the construction agreement, which both parties read and signed. AHP further alleged that the issues relating to the wastewater-treatment system were due to lack of proper maintenance and that all of the Williamses’ repair estimates were excessive. AHP claimed that it was responsible for approximately $6,000 in repair damages.

¶ 4. After reviewing the evidence, the arbitrator concluded that: the quality of the windows installed and soil treatment were consistent with the construction agreement; the wastewater-treatment system was inadequate as installed; and an award of $12,500 was adequate to cover the cost of repairs. Shortly after receiving the arbitrator’s analysis and award, the Williamses filed a motion in the county court to vacate the award on the basis that the arbitrator was partial -to AHP; therefore, the award was unjust. The county court held a hearing on the matter, and notwithstanding a lack of evidence or testimony, the county judge issued an order simply stating that: “the award should be set aside.” The county judge further announced that the case should be set for trial, despite the case’s prior dismissal with prejudice and previous orders requiring arbitration.

¶ 5. AHP then filed in the county court a motion to reconsider, confirm the award or amend or correct the award, or refer the case back to arbitration. . Simultaneously, AHP filed two petitions for interlocutory appeal with, the Mississippi Supreme Court and the circuit court. The supreme court denied the petition, and the circuit court failed to respond. Meanwhile, the county court denied AHP’s motion, and AHP subsequently filed an appeal in the circuit court.

¶ 6. On March 30, 2009, the circuit court reversed the county court’s vacation of the award and entered a judgment confirming the arbitrator’s award. Following the denial of their motion to reconsider, the Williamses timely filed this appeal.

STANDARD OF REVIEW

¶ 7. The scope of review in arbitration cases is extremely limited. - As stated by the Mississippi Supreme Court: “The scope of judicial review of an arbitration award is quite narrow, and every reasonable presumption will be indulged in favor of the validity of arbitration proceedings.” Craig v. Barber, 524 So.2d 974, 977 (Miss.1988) (quoting Hutto v. Jordan, 204 Miss. 30, 41, 36 So.2d 809, 811 (1948)). Furthermore, this Court will not “disturb [the findings of a circuit judge sitting without a jury] unless they are manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Wilson v. Greyhound Bus Lines, Inc., 830 So.2d 1151, 1155 (¶ 9) (Miss.2002) (internal quotations omitted).

DISCUSSION

¶ 8. Mississippi Code Annotated section 11-15-133(1) (Rev.2004) controls the vacation of arbitration awards. As summarized by the Mississippi Supreme Court:

[T]he only bases in our law for refusal to enforce an arbitration award are: (a) the award was procured by corruption, fraud or other undue means; (b) there was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of the parties.

Barber, 524 So.2d at 978 (quoting Miss. Code Ann. § 11-15-133(1) (Supp.1987)).

¶ 9. In this case, no evidence or testimony was presented to the county court; therefore, the allegation of the arbitrator’s “evident partiality” was left unsupported. In order to show “evident partiality” sufficient .to vacate an arbitration award, a reviewing court must find a personal interest on the part of the arbitrator. Herrin v. Milton M. Stewart, Inc., 558 So.2d 863, 865 (Miss.1990). An arbitrator’s personal interest may not be shown by any means “other than pecuniary interest or some other actual relationship between the parties.” Id. (citation omitted). Furthermore, the partiality “must be direct, definite and capable of demonstration rather than remote, uncertain, or speculative.” Id.

¶ 10. The county court’s order vacating the arbitrator’s award made no mention of any reasoning behind the decision, nor did it glean support for the theory that the arbitrator was “evidently partial.” Instead, the county court gave a vague, general statement that the award should be set aside. On appeal, the circuit court noted that: “[t]he [county court’s] [o]rder [vjacating the [a]ward makes no findings Of fact and states no reason for vacation .... [t]his court finds no evidence of evident partiality on the part of [the] Arbitrator....”

¶ 11. As a matter of public policy, Mississippi courts have consistently allowed parties to arbitrate their differences and have given effect to arbitration awards. Barber, 524 So.2d at 977 (citing Scottish Union & Nat’l Ins. Co. v. Skaggs, 114 Miss. 618, 626, 75 So. 437, 438 (1917)). Such a policy “has even greater force in our present era of overcrowded judicial dockets. If there be any type of arbitration award we should be loath to disturb, it should be that between private contracting parties respecting ... themselves and their respective pocket books.” Id. In the case at hand, the circuit court was proper in reversing the county court’s vacation of the arbitration award and entering an order confirming the arbitrator’s award. We find the Williamses’ claims to be meritless.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR. BARNES, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


text:
    Kamal KARRIEM, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CA-01583-COA.
    Court of Appeals of Mississippi.
    March 15, 2011.

      T.K Moffett, Amory, W. Brent McBride, attorneys for appellant.
    Office of the Attorney General by Laura H. Tedder, attorney for appellee.
   ISHEE, J.,

for the Court:

¶ 1. In November 2005, Kamal Karriem Jr. was sentenced by the Circuit Court of Lowndes County to ten years in the custody of the Mississippi Department of Corrections (MDOC) with ten years suspended and five years of probation following his entrance of a guilty plea to the charge of embezzlement by a public official. Several years later, the circuit court revoked his probation and ordered that he serve his original ten-year sentence due to his violation of the terms and conditions of his probation. Karriem contested the sentence in a motion for post-conviction relief (PCR), which the circuit court denied in August 2009. Aggrieved, Karriem now appeals the circuit court’s decision. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. On November 21, 2005, Karriem pleaded guilty to the charge of embezzlement by a public official for loaning a city-issued cell phone to another person, who made approximately $500 in telephone calls. The circuit court sentenced Karriem to ten years in the custody of the MDOC with ten years suspended and five years of probation and ordered that he pay restitution in the amount of $106.03, which was the balance of the cell-phone bill.

¶ 3. In September 2007, the circuit court held a hearing on a petition filed by the State to revoke Karriem’s suspended sentence. After finding that Karriem had violated the terms and conditions of his probation by testing positive for cocaine, the court ordered him into a one-year drug-treatment program. In April 2008, the State again requested that the court revoke Karriem’s suspended sentence, as he had failed another drug test and had not successfully completed the drug-treatment program. The court then revoked Karriem’s previously suspended sentence after finding that he had tested positive for cocaine once again and had failed to complete the drug-treatment program. He was subsequently ordered to serve the original ten-year sentence. Karriem filed a PCR motion shortly thereafter, which was denied on August 31, 2009.

¶ 4. Karriem now appeals and asserts the following: the circuit court erred in finding his guilty plea was knowingly, voluntarily and intelligently made; the circuit court erred in finding that he received effective assistance of counsel; and, his sentence is inconsistent with other sentences given for the same crime and constitutes cruel and unusual punishment. Finding no error, we affirm.

DISCUSSION

I. Whether the circuit court erred in ruling that Karriem’s guilty plea was knowingly, voluntarily and intelligently made.

¶ 5. It is well settled that when reviewing the voluntariness of guilty pleas, an appellate court “will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous.” Walton v. State, 16 So.3d 66, 70 (¶ 8) (Miss.Ct.App.2009) (quoting House v. State, 754 So.2d 1147, 1152 (¶ 24) (Miss.1999)). Furthermore, “[t]he burden of proving that a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence.” Id. at 70 (¶ 8) (citation omitted).

¶ 6. In this case, Karriem argues that he only agreed to plead guilty to the offense of embezzlement by a public official because he was informed that he would be sentenced under the non-adjudication statute, Mississippi Code Annotation section 99-15-26 (Supp.2010). Application of the statute would have allowed for Karriem’s arrest and felony conviction to be erased from his record.

¶ 7. The record shows that Karriem received a letter from his counsel which indicated that the State would not oppose application of the statute and would affirmatively recommend probation. The letter went on to explain that if Karriem successfully completed his probation and the statute were applied, then there would be no record of Karriem’s arrest or felony conviction. Nonetheless, the record also demonstrates that prior to his guilty plea, Karriem was aware that the State’s sentence recommendation to the circuit court was ten years suspended with five years of probation and that it was the court’s ultimate decision whether or not to enforce the State’s recommendation and to apply the statute. Furthermore, Karriem testified in open court that he understood that by pleading guilty, he was giving up his rights to a public trial by jury, to cross-examine the State’s witnesses, and to call his own witnesses. Finally, Karriem testified he understood that if he went to trial and were found guilty, he could be sentenced to a maximum of ten years in the custody of the MDOC, but he could appeal the jury’s verdict.

¶ 8. While it is indisputable that the court had sole discretion as to Karriem’s sentence, the record also supports the State’s contention that it never agreed to ask the court to apply the statute. When Karriem’s counsel broached the subject of the statute with the court, the State responded that such a recommendation was not an explicit part of their plea agreement. Karriem’s counsel failed to contest the State’s remarks regarding the plea agreement and further stated that she had advised her client that application of the statute was entirely at the discretion of the court. Accordingly, we find this issue is without merit.

II. Whether the circuit court erred in finding that Karriem had received effective assistance of counsel.

¶ 9. It has long been held that in order for a defendant to prevail on an ineffective-assistance-of-counsel claim, • he or she must “show by a preponderance of the evidence (1) that .counsel’s performance was deficient, and (2) but for the deficiencies, the trial court outcome would have been different.” Jones v. State, 976 So.2d 407, 410-11 (¶ 6) (Miss.Ct.App.2008) (quoting Ward v. State, 914 So.2d 332, 336 (¶ 12) (Miss.Ct.App.2005)). Furthermore, under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must show “that counsel’s errors were so serious as to deprive the defendant of a fair trial.” Finally, “[a] presumption exists that the attorney’s conduct was adequate.” Hull v. State, 983 So.2d 331, 333-34 (¶ 11) (Miss.Ct.App.2007) (citing Burns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001)).

¶ 10. The record shows that Karriem’s counsel wrote him a letter advising him of the proposed plea agreement. Within the letter, she told Karriem that she would ask for the statute to be applied to his case and that the State had agreed not to oppose the recommendation. However, the letter also showed that the State did not agree to recommend application of the statute. The letter indicates that the State only agreed to recommend that Kar-riem be given ten years suspended with five years of probation. Indeed, Karriem’s plea petition reflects the State’s recommendation of probation, but it fails to mention application of the statute at all.

¶ 11. Karriem’s counsel failed to petition the court strongly or contest the State’s remarks regarding application of the statute. However, application of the statute could not be guaranteed by Kar-riem’s counsel, as that decision rested firmly with the circuit court. Karriem stated that he understood the petition. Karriem acknowledged in open court that he understood application of the statute was within sole discretion of the circuit court. While Karriem’s counsel offered an overly optimistic prediction that the court may decide to apply the statute and, if applied, the court “would defer accepting [Karriem’s] plea” and would erase Kar-riem’s record of the arrest and conviction upon completion of probation, these actions by his attorney do not rise to the level of constitutional deprivation of counsel. As stated by the Fifth Circuit Court of Appeals regarding ineffeetive-assis-tance-of-counsel claims: “[a] prediction, prognosis, or statement of probabilities ... fail[s] to surmount the ‘formidable barrier’ presented by [a defendant’s] open court assertions that there [are] ‘no promises’ about his sentence.” Harmason v. Smith, 888 F.2d 1527, 1531 (5th Cir.1989) (citing Self v. Blackburn, 751 F.2d 789, 793 (5th Cir.1985)). This issue is meritless.

III. Whether Karri,em’s sentence constitutes cruel and unusual punishment and is inconsistent with other sentences given for'the same crime.

¶ 12. This Court has stated that: “the three factors to look at when determining whether a sentence is proportional are: ‘(1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions.’ ” Gray v. State, 926 So.2d 961, 979 (¶ 63) (Miss.Ct.App.2006) (quoting Willis v. State, 911 So.2d 947, 951 (¶ 17) (Miss.2005)). Furthermore, “when sentences are within the limits of the statute, the imposition of such sentences is within the sound discretion of the trial court, and [an appellate court] will not reverse them.” Presley v. State, 474 So.2d 612, 620 (Miss.1985).

¶ 13. Karriem argues that the ten-year sentence imposed was disproportionate to the crime committed, especially in light , of the minimal amount of the embezzlement approximately $500. However, the original sentence afforded Karriem suspended jail time with only probation to serve. After testing positive for cocaine during his probation, the circuit court offered him yet another alternative to jail time by ordering him into a one-year drug-treatment program as part of his probation. Thereafter, Karriem violated the terms and conditions of his probation once more by testing positive for cocaine again and by failing to complete the drug-treatment program.

¶ 14. Although a ten-year sentence falls within the sentencing guidelines for the crime of embezzlement by a public official, the circuit court gave Karriem the opportunity to avoid jail time through various types of probation. As noted by the circuit court in its order denying Karriem’s motion for PCR, Karriem was forced to serve actual time in prison on his conviction only after he had violated the terms of his probation on two separate occasions. Accordingly, we cannot find that the circuit court erred in its sentencing of Kar-riem. This issue is meritless.

¶ 15. THE JUDGMENT OF THE LOWNDES 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., MYERS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


text:
    Josie ROGERS, Individually and as a Conservator for Chester Rogers, Appellant v. Ernest FORD, Jr., Appellee.
    No. 2009-CA-01933-COA.
    Court of Appeals of Mississippi.
    March 15, 2011.

      Robert C. Latham, Jeremy Peter Diamond, Natchez, attorneys for appellant.
    Mark C. Carroll, attorney for appellee.
   ISHEE, J.,

for the Court:

¶ 1. Josie Rogers, acting individually and as conservator for Chester Rogers, appeals a judgment of the Circuit Court of Adams County, which granted summary judgment in favor of Ernest Ford Jr. Rogers now appeals claiming the circuit court erred in granting summary judgment. Finding no error, we affirm.

FACTS

¶ 2. The undisputed facts and circumstances surrounding this case involve a large pecan tree located on Ford’s property which uprooted and fell on Rogers’s garage. Prior to the uprooting of the tree, E.D. Jennings was hired by Ford to cut and trim some limbs from this tree. Jennings was then approached by Rogers to inquire if he would cut the tree limbs on her side of the tree, which was never done. In September 2008, as a result of strong winds and heavy rains, the tree was uprooted. The tree was of natural growth, and at the time the tree was uprooted, it was still green and alive.

DISCUSSION

¶ 3. “This Court employs a de novo standard of review of a trial court’s grant of summary judgment.” Owens v. Thomae, 904 So.2d 207, 208 (¶ 7) (Miss.Ct.App.2005). Summary judgment is appropriate if there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). “The burden of demonstrating that there is no genuine issue of material fact falls on the party requesting the summary judgment.” Mozingo v. Scharf, 828 So.2d 1246, 1249 (¶ 5) (Miss.2002). “If any genuine triable issues of fact exist, the trial court’s grant of summary judgment will be reversed; otherwise, the decision will be affirmed.” Id. at 1249-50 (¶ 5).

¶ 4. The principal issue before this Court is whether the trial court erred in granting summary judgment. The trial court granted summary judgment on the ground that Rogers had failed to provide any evidence of a genuine issue of material fact.

¶ 5. Rogers asserts that because Ford had pruned or cut limbs off the tree on his side and not hers, that this was negligent pruning and is what caused the tree to fall. Further, Rogers believes that because Ford knew of the limbs that were overhanging Rogers’s property and failed to have them trimmed as well, he is liable for Rogers’s damages. We disagree.

¶ 6. The trial court correctly noted that Griefield v. Gibralter Fire and Marine Insurance. Co., 199 Miss. 175, 24 So.2d 356 (1946), was the applicable law. But for Jennings’s trimming of the limbs, we would have an identical situation to Grie-field. In Griefield, the Mississippi Supreme Court stated:

The test of the appellant’s liability vel non is whether the tree from which this limb overhung the land of the appellee’s assignors was of natural growth or had been planted by the appellant or a former possessor of her land. If the latter is the case, liability appears, 4 Rest., Torts, § 839; Buckingham v. Elliott, 62 Miss. 296, 52 Am. Rep. 188; but if the former is the case the appellant is not liable, 4 Rest., Torts, § 840, Comment (a).

Id. at 180, 24 So.2d at 357.

¶ 7. The supreme court went on to state further:

The appellant was under no obligation to the appellee’s assignors to remove the limb of the tree which overhung their land, and her gratuitous promise so to do was not binding on her, but the ap-pellee’s assignors had the right at all times to bemselves [sic] remove so much of the limb as overhung their land. 1 Am.Jur., Adjoining Landowners, § 56.

Id. at 181, 24 So.2d at 358.

¶ 8. Here, the pecan tree in question was of natural growth; it was healthy and alive; and Rogers had an opportunity to cut the limbs that overhung her property. Rogers asserts that because Ford had pruned or cut limbs off of the tree on his side and not her own side, this was negligent pruning and ultimately caused the tree to fall. But there is no evidence of negligence on behalf of Ford or anything presented to find that the cutting - of the limbs was done improperly. Further, there is no expert testimony to find that Ford was negligent in having the limbs cut.

¶ 9. Ford was under no obligation to cut the limbs from Rogers’s side of the tree. His gratuitous promise to do so was not binding. The tree was alive and green and posed zero threat to Rogers’s property. Aso, had Rogers felt the overhanging tree limbs actually did pose a threat to her or her property, she could have, at any time, had the tree limbs cut down.

¶ 10. Because we find that Rogers has failed to provide any evidence that would create a genuine issue of material fact, this issue is without merit.

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

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


author: ROBERTS, J.,

text:
    Jeremy WRIGHT, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00294-COA.
    Court of Appeals of Mississippi.
    March 15, 2011.

      Jeremy Wright, 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. On July 9, 2008, in the Circuit Court of Warren County, Jeremy Wright pled guilty to a single count of armed robbery. He was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC). Over a year after being sentenced, Wright filed his motion for post-conviction relief (PCR) which was subsequently denied by the Warren County Circuit Court.

¶ 2. Aggrieved by the circuit court’s disposition of his PCR motion, Wright appeals.

FACTS AND PROCEDURAL HISTORY

¶ 3. Wright, age twenty-two, was indicted on two counts of armed robbery pursuant to Mississippi Code Annotated section 97-3-79 (Rev.2006). He pled guilty to one count of armed robbery, and the second count was nol prossed by the State. On August 18, 2008, the circuit judge sentenced Wright to serve twenty years in the custody of the MDOC.

¶ 4. On November 12, 2009, Wright filed his PCR motion with the Warren County Circuit Court. The circuit judge denied his PCR motion on the ground that it was without merit because Wright had failed to show ineffective assistance of counsel.

¶ 5. On appeal to this Court, Wright’s raises the following issues, which we state verbatim:

I. The appellant received ineffective assistance of counsel in violation of his Sixth Amendment right to the United States Constitution: Counsel was defi.cient for recommending a plea to armed robbery instead of pursuing a motion to suppress appellant’s confession, the State’s chief evidence, which [was] inadmissible for the following reasons:
a. The appellant’s confession was involuntary as the result of promises, threats[,] and improper inducements in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Section 23 [a]nd 26 of the Mississippi Constitution.
b. The appellant’s confession to armed robbery is inadmissible on the failure of authorities to provide him with an initial appearance “Without Unnecessary Delay” as required by Unif [.] Crim. R. Cir. Ct. Prac. 6.03 and a violation of his Fifth [a]nd Sixth Amendment to the U[nited] S[tates] Constitution rights.
c. The appellant’s confession [is] inadmissible as an exploitation of an illegal arrest pursuant to an invalid warrant followed by an illegal detention and custodial interrogation in contravention of his rights under the Fourth [a]nd Fourteenth Amendment of the United States Constitution and the corresponding provision of the Mississippi Constitution.
II. The appellant received ineffective assistance of counsel in violation of his Sixth Amendment right of the United States Constitution by counsel’s failure to adequately investigate the circumstances surrounding [appellant’s] confessions and applicable law.

Finding no error, we affirm the judgment of the circuit court.

STANDARD OF REVIEW

¶ 6. “When reviewing a lower court’s decision to deny a motion for post[-]conviction relief[,] this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999) (Citing Bank of Miss. v. S. Mem'l Park, Inc., 677 So.2d 186, 191 (Miss.1996)). However, questions of law are reviewed de novo. Id.

ANALYSIS

¶ 7. Wright’s main assertion in his brief is that he received ineffective assistance of counsel. When assessing an ineffective-assistance-of-counsel claim, Mississippi applies the two-prong test found in the United States Supreme Court case Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first prong requires the appellant to show that counsel’s performance was deficient. Id. The second prong requires the appellant to show that counsel’s deficient performance prejudiced him so greatly “as to deprive the [appellant] of a fair trial.” Id. We find that Wright failed to satisfy both prongs as required under Strickland.

¶ 8. Under prong one of Strickland, Wright asserts that his attorney’s actions were deficient when he failed to pursue a motion to suppress Wright’s confession and,- instead, recommended that Wright plead guilty to one count of armed robbery. Wright claims that his confession, which was the State’s “chief evidence” against him for the armed robbery, was involuntary because the officer promised to “help” him if he confessed to the crime. He asserts that he would not have confessed had he not been in fear of losing the officer’s help. Wright further argues that his confession was inadmissible because he was not provided with an initial appearance without unnecessary delay, and his arrest and subsequent interrogation were illegal. Wright’s final argument is that his attorney’s actions were deficient because the circumstances surrounding his confession were not adequately investigated.

¶ 9. In Pevey v. State, 914 So.2d 1287, 1289 (¶ 6) (Miss.Ct.App.2005), Edward Pe-vey argued that the search of his home and subsequent seizure of marijuana from his home violated the Fourth Amendment to the United States Constitution. This Court held that Pevey “waived his challenge to this constitutional violation by pleading guilty.” Id. at (¶ 7). In Mississippi, “[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 may 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 Battaya v. State, 861 So.2d 364, 366 (¶ 6) (Miss.Ct.App.2003)). Like Pevey, Wright contends that his constitutional rights were violated. Application of Pevey's holding to this case prohibits Wright from raising any constitutional-violation issues that occurred before he entered his guilty plea, including the vol-untariness of his confession, the inadmissibility of his confession due to an illegal arrest and interrogation, and the failure to provide him with an initial appearance without unnecessary delay. At Wright’s guilty-plea hearing, the circuit judge thoroughly questioned Wright, under oath, about the voluntariness of his guilty plea. The transcript provides:

THE COURT: Okay. Now, before I can accept your plea, I have to ask you some questions to determine whether you know what you’re doing, you understand what you’re doing, and whether your actions are free and voluntar[y] in order to determine whether to accept your plea.
THE DEFENDANT: Yes, sir.
THE COURT: You do not have to answer any question I ask you. Your attorney is standing next to you. If you want to talk to him in private at any point during this proceeding, you’re free to do so. You will be under oath. Any answer that you do give can and will be used against you. Knowing these thing, do you still wish to enter a guilty plea? THE DEFENDANT: Yes, sir.
THE COURT: Please raise your right hand.
(THE DEFENDANT IS SWORN BY THE CLERK)
THE COURT: What’s your plea on the charge of armed robbery of Brett Bailess with a firearm?
THE DEFENDANT: Yeah.
THE COURT: What are you pleading?
THE DEFENDANT: Guilty, guilty.
THE COURT: You’re pleading guilty to that? You committed that crime?
THE DEFENDANT: Yes, sir.
THE COURT: Has anybody threatened you in order to make you plead guilty?
THE DEFENDANT: No, sir.
THE COURT: Has anybody promised you anything in order to make you plead guilty?
THE DEFENDANT: No, sir. No, sir. THE COURT: Has your attorney made any threats or promises to you in this case?
THE DEFENDANT: No, sir.
THE COURT: Has anybody told you I’d be easier on you if you pled guilty?
THE DEFENDANT: No, sir.
THE COURT: Do you fully understand the consequences of your act in pleading guilty to the charge? That is, do you understand that you’re admitting that you did, in fact, commit the crime of armed robbery?
THE DEFENDANT: Yes, sir.

¶ 10. By entering a valid guilty plea, Wright “explicitly waived any right to suppress the alleged coerced confession”. Swindoll v. State, 859 So.2d 1063, 1065 (¶ 7) (Miss.Ct.App.2003).

¶ 11. At the guilty plea hearing, the circuit judge also questioned Wright on the adequacy of his attorney’s representation, as follows:

THE COURT: Mr. Wright, are you satisfied with the services of your attorney? THE DEFENDANT: Yes, sir.
THE COURT: Has he threatened you in any manner or promised you anything in order to get you to enter this guilty plea?
THE DEFENDANT: No, sir.
THE COURT: Do you believe he’s properly advised you on this guilty plea?
THE DEFENDANT: Yes, sir.
THE COURT: Do you believe he’s properly represented you in this case?
THE DEFENDANT: Yes, sir.
THE COURT: I’ve attempted to question you thoroughly about your plea of guilty and be satisfied that you’re fully acquainted with your rights. Do you still wish to enter a guilty plea?
THE DEFENDANT: Yes, sir.

(Emphasis added).

¶ 12. Wright clearly indicated at his guilty-plea hearing that he was satisfied with the advice and representation his attorney provided. Wright also indicates his satisfaction with his attorney and his attorney’s representation when he signed the petition to enter plea of guilty. The petition states:

4. I told my lawyer all of the facts and circumstances known to me about the charge(s) against me. I believe my lawyer is fully informed on all such matters. My lawyer has counseled and advised me of the nature of each charge; and on any and all lesser included charges; and on all possible defenses that I might have in the case[.]
5. My lawyer has advised me as to the probabilities of my conviction on the charges with which I am charged and thoroughly discussed all aspects of my case with me. My lawyer has made no threats or promises of any type or kind to induce me to enter this plea of guilty ... and the decision to seek the entry of this plea was my own and mine alone, based on my own reasons and free from any outside coercive influences.
13. I believe that my lawyer has done all that anyone could" do to counsel and assist me. I AM SATISFIED WITH THE ADVICE AND HELP HE HAS GIVEN ME. I recognize that if I have been told by my lawyer that I might receive probation or a light sentence, this is merely his prediction and is not binding on the Court.

¶ 13. Wright represented, orally and in writing, to the circuit court that he was satisfied with his attorney’s performance and advice. At his guilty-plea hearing, Wright mentioned nothing about his attorney’s failure to pursue a motion to suppress or the failure to investigate adequately the circumstances surrounding Wright’s confession. This Court, in holding that Mickeal Swindoll did not receive ineffective assistance of counsel, relied on Swindoll’s affirmative answer when asked about his satisfaction with his attorney’s representation. Swindoll v. State, 859 So.2d 1063, 1067 (¶¶ 18-19) (Miss.Ct.App.2003). We hold the same today. Wright twice answered affirmatively that he was satisfied with his attorney’s representation. His claim is without merit.

¶ 14. Further, Wright has failed to provide sufficient evidence to justify the need for an evidentiary hearing. The Mississippi Supreme Court “has implicitly recognized in the post-conviction relief context that where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995) (citing Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990)). The only evidence Wright has presented to this Court is his unsworn affidavit, which is not sufficient evidence to show ineffective assistance of counsel.

¶ 15. Finding that Wright failed to present sufficient cause to justify an evi-dentiary hearing, we affirm the circuit court’s denial of his PCR motion.

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

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


text:
    Arthur GARDNER, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01999-COA.
    Court of Appeals of Mississippi.
    March 15, 2011.
    Arthur Gardner, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   ISHEE, J.,

for the Court:

¶ 1. In December 2005, Arthur Gardner pleaded guilty in the Lowndes County Circuit Court to one count of sale of cocaine and, under a separate indictment, to one count of possession of marijuana. The circuit court sentenced him to seven years for each count, all in the custody of the Mississippi Department of Corrections (MDOC), with the sentences to run concurrently to each other and consecutively to a prior federal sentence, which Gardner was serving at the time he pleaded guilty in the circuit court. Aggrieved, Gardner filed a motion for post-conviction relief (PCR), which was summarily denied. He now appeals, arguing that the circuit court violated the Interstate Agreement on Detain-ers Act (IAD) in accepting his guilty plea. As Mississippi is not a party, to the IAD, this issue is meritless, and we affirm the circuit court’s denial.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In August 2003, Gardner was indicted on numerous drug charges in the Lowndes County Circuit Court, including several counts of sale of cocaine and several counts of drug possession, including possession with intent to distribute. At the time of his indictment, Gardner was incarcerated in the Yazoo City Federal Correctional Complex, serving time on a federal sentence. Several months after the indictment, state authorities issued an arrest warrant for Gardner regarding the drug charges. After Gardner’s arraignment in December 2003, he was returned to federal custody.

¶ 3. In December 2005, Gardner pleaded guilty to two of the counts contained in the August 2003 indictment: one count of sale of cocaine and one count of possession of more than 250 grams of marijuana. Since Gardner was incarcerated in the Yazoo City Federal Correctional Complex regarding his federal sentence at the time of his pleading guilty to the state charges, he was transported to and from the circuit court on numerous occasions between 2003 and 2005.

¶ 4. In 2009, Gardner filed a PCR motion with the circuit court, which was summarily denied. On appeal, he claims that the circuit court lacked jurisdiction to accept his guilty pleas because his multiple transports to and from a federal institute regarding state charges violated the IAD.

STANDARD OF REVIEW

¶ 5. In reviewing a “lower court’s decision to deny a petition for post[-]conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999). However, we will review questions of law de novo. Id.

DISCUSSION

¶ 6. The IAD is an interstate agreement that was enacted in regard to “de-tainers based on untried indictments, information, or complaints and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions ...” and for the purpose of encouraging “expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints.” 18 U.S.CApp. 2, § 2, Art. I. While most states have become parties to the IAD, to date, Mississippi has not. Accordingly, the provisions of the IAD are not applicable to Mississippi; therefore, this issue is meritless, and we affirm the circuit court’s denial of the PCR motion.

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

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


text:
    Sepeccuss LANGSTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00590-COA.
    Court of Appeals of Mississippi.
    March 15, 2011.
    Sepeccuss Langston, appellant, pro se.
    Office of the Attorney General by Lisa Lynn Blount, Scott Stuart, Jackson, attorneys for appellee.
   ISHEE, J.,

for the Court:

¶ 1. Sepeccuss Langston filed a motion for post-conviction relief (PCR) in the Circuit Court of DeSoto County. After reviewing the record, the trial court dismissed the motion. Aggrieved, Langston timely filed this appeal. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In November 2007, a DeSoto County grand jury indicted Langston on two counts of possession of a controlled substance in a correctional facility. On February 25, 2008, Langston entered a guilty plea to one count of possession of a controlled substance in a correctional facility. During the sentencing, Langston admitted to the trial court that he had twice been convicted of felonies in the State of Tennessee, thus making him a habitual offender. The trial court sentenced Langston to serve seven years in the custody of the Mississippi Department of Corrections (MDOC) and to pay $1,000 fine plus court costs. The second possession charge was remanded to the file.

¶ 3. Langston subsequently filed a PCR motion, wherein he argued that his sentence was unconstitutional and that his trial counsel was ineffective. The trial court denied the motion, finding that Langston’s sentence was legal and that Langston had failed to prove his trial counsel was ineffective.

STANDARD OF REVIEW

¶ 4. In reviewing a trial court’s dismissal of a PCR motion, our standard of review is well stated. We will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Pace v. State, 770 So.2d 1052, 1053 (¶ 4) (Miss.Ct.App.2000). However, where questions of law are raised the applicable standard of review is de novo. Id.

DISCUSSION

¶ 5. Langston has asserted two issues for appeal: whether the trial court erred in sentencing him as a habitual offender and whether his trial counsel was ineffective. We will address each issue in turn.

I. Habitual-Offender Status

¶ 6. Langston asserts that the trial court improperly sentenced him as a habitual offender pursuant to Mississippi Code Annotated section . 99-19-81 (Rev.2007). He contends the State failed to prove that he had been convicted twice previously of a felony within the meaning of the statute.

¶ 7. During sentencing, Langston twice admitted that the State could establish the underlying felony convictions, and he admitted that exhibits were included in his indictment to support the previous convictions. We have previously held that “[a]d-missions to prior criminal convictions are sufficient to permit a finding of habitual status.” Sanders v. State, 786 So.2d 1078, 1082 (¶ 14) (Miss.Ct.App.2001).

¶8. Accordingly, this issue is without merit.

II. Ineffective Assistance of Counsel

¶ 9. In his second issue on appeal, Langston argues that his trial counsel was ineffective for failing to investigate the Tennessee convictions. Prisoners alleging ineffective assistance of counsel in a PCR motion must demonstrate the elements of the claim with specificity and detail. Sandifer v. State, 799 So.2d 914, 918 (¶ 12) (Miss.Ct.App.2001). Specifically, Langston must allege facts showing his counsel’s performance was deficient, and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 10. Langston has failed to meet his burden of proving deficiency and any resulting prejudice. As previously stated, Langston admitted to the two prior Tennessee felony convictions. Accordingly, there was sufficient evidence to meet the requirements of section 99-19-81. Additionally, there was no need for Langston’s trial counsel to investigate the Tennessee felony convictions, as Langston testified to them. This issue is without merit.

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

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


author: NABERS, Chief Justice.

text:
    TOWN OF PIKE ROAD v. CITY OF MONTGOMERY.
    1050151.
    Supreme Court of Alabama.
    Sept. 1, 2006.
    J. Doyle Fuller and Susan G. Copeland of Law Office of J. Doyle Fuller, P.C., Montgomery, for appellant.
    Robert D. Segall and Shannon L. Holli-day of Copeland, Franco, Screws & Gill, P.A., Montgomery; and Walter R. Byars and Kimberly O. Fehl, City of Montgomery Legal Department, for appellee.
   On Application for Rehearing

NABERS, Chief Justice.

The opinion of May 12, 2006, is withdrawn and the following is substituted therefor.

On May 12, 2006, this Court decided an appeal involving competing efforts by the City of Montgomery and the Town of Pike Road to annex a 700-acre tract of land located in Montgomery County. The parties represented to this Court that the facts were undisputed and that the issue for decision was which of two annexations — the City of Montgomery’s annexation by election (initiated in August 2005) or the Town of Pike Road’s annexation by petition (initiated in September 2005)— was entitled to priority. On the basis of those representations and the certified documents filed by each party in its respective annexation proceeding, this Court understood it to be undisputed that the 700-acre tract was in an unincorporated area in Montgomery County and was subject to annexation by either party.

In its application for rehearing, the City of Montgomery argued that the 700-acre tract was actually not located in unincorporated territory. The City of Montgomery advised the Court for the first time that it claimed to have annexed the tract in April 2005—four months before its annexation by election that was the subject of this appeal. Also for the first time, the City of Montgomery disclosed the existence of a pending circuit court action to decide the validity of the April 2005 annexation.

Those statements in the City’s application for rehearing suggested that the appeal in this case was premature. Accordingly, the Court ordered the Town of Pike Road to respond to the City’s application for rehearing. The Town of Pike Road’s response confirmed that the City of Montgomery had attempted to annex the tract in April 2005 and that the Town of Pike Road is challenging the April 2005 annexation in a pending action in the Montgomery Circuit Court. The Town of Pike Road’s response also showed that the Town of Pike Road has amended its complaint in the circuit court action to include the same issues that are the subject of this appeal.

After reviewing both the City’s application for rehearing and the Town of Pike Road’s response to that application, we hold that the appeal was premature. As a general rule, the Court does not consider matters raised for the first time in an application for rehearing. Morgan Keegan & Co. v. Cunningham, 918 So.2d 897, 908 (Ala.2005). However, it is now apparent that the outcome of this appeal depends on the resolution of issues that must still be determined by the circuit court, including the validity of the April 2005 annexation. Until those issues are resolved, the Court cannot decide the case. The appeal is therefore stayed. The parties shall notify the clerk of this Court when a final judgment has been entered in the action pending in the Montgomery County Circuit Court.

APPLICATION GRANTED; OPINION OF MAY 12, 2006, WITHDRAWN; OPINION SUBSTITUTED; APPEAL STAYED.

SEE, HARWOOD, STUART, and BOLIN, JJ., concur.

      . The City of Montgomery filed in the Montgomery County Probate Court a certified resolution stating that the property sought to be annexed "lies within the County of Montgomery, and the boundary of the said real property is contiguous and adjacent to, and borders on, the corporate limits of the City. The said real property does not lie within the corporate limits of any other municipality.” The Town of Pike Road filed a certified copy of an ordinance stating: "The said real property lies within the County of Montgomery, and the boundary of the said real property is contiguous and adjacent to, and borders on, the corporate limits of the Town. The said real property does not lie within the corporate limits of any other municipality.”

      . The parties regrettably failed to present a complete or accurate description of the relevant facts to this Court on original submission. As a result, the parties effectively asked the Court to issue an advisory opinion, apparently hopeful that it would create a tactical advantage or facilitate a settlement in the action pending in the circuit court. The parties’ arguments to this Court thus resulted in a significant and unnecessary waste of judicial resources.