author: ISHEE, J.,

text:
    James M. JOHNSON, Appellant v. E.H. ANDERSON, Ruby Anderson and Thomas Kohler, Appellees.
    No. 2010-CP-01356-COA.
    Court of Appeals of Mississippi.
    Nov. 8, 2011.
    Rehearing Denied June 5, 2012.

      James M. Johnson, appellant, pro se.
    Jason Brooks Purvis, Gulfport, Robert Thomas Schwartz, Jeffrey Ward Bertucci, Biloxi, attorneys for appellees.
    Before GRIFFIS, P.J., MYERS and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In this appeal, we are asked to decide if a landowner who lost his land at a tax sale was given adequate notice of a suit to quiet title in the purchaser before a default judgment was entered against him and whether he was protected by the bankruptcy laws. The chancellor found that a diligent search and inquiry had been conducted for the landowner before service by publication was made and that the bankruptcy laws were inapplicable. The landowner appeals pro se, raising the following issues: whether he received proper notice of the default judgment and whether he was under the protection of the bankruptcy court at the time of the tax sale and its redemption period. On appeal, the landowner also raises several other issues, but he failed to raise them at the trial level. Thus, we will only consider those issues the landowner raised at trial. Finding no error, we affirm the chancery court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. James M. Johnson at one time owned five lots in the Forrest Park Subdivision (the property) in Biloxi, Mississippi. However, he failed to pay his 2005 city, county, and school taxes in the amount of $719.44. The Harrison County Tax Collector held an auction on August 28, 2006. Ruby and E.H. Anderson were the highest bidders, paying $719.44 for the property and chancery fees of $80.50. The two-year redemption period expired on August 28, 2008, without Johnson coming forward to redeem the property. The property was conveyed to the Andersons via a tax deed on October 8, 2008, by the Chancery Clerk of Harrison County. The tax deed was recorded in the office of the Chancery Clerk of Harrison County on October 21, 2008.

¶ 3. The documents placed in the record by Johnson show that he filed for Chapter 13 bankruptcy protection first on April 28, 2008, and the case was dismissed on September 25, 2009. He said that he filed another Chapter 13 bankruptcy. During the hearing, one of the attorneys for the Andersons said that the second Chapter 13 bankruptcy action had been dismissed.

¶ 4. The Andersons found a buyer for the property, Thomas Kohler. On August 26, 2009, they filed a complaint to confirm and quiet title. The complaint referenced two exhibits that were not included and served with the complaint. The Andersons only realized the error in October 2009 when one of the defendants pointed out in its answer that there were no exhibits attached. On October 28, 2009, the Andersons supplemented the complaint with two exhibits: “A,” which was the Conveyance of Land Sold for Taxes, and “B,” which was the Conveyed Property History from the tax collector’s office. The exhibits were sent to a deputy chan-eery clerk with a letter requesting that they be added to the filed copy of the complaint. However, there is no evidence that either document was served on the defendants.

¶ 5. It is obvious from the record that Johnson did not receive a copy of documents “A” and “B,” as his statements in the record show his confusion about them. The complaint to confirm and quite title named Johnson as one of the defendants because he was the record title holder at the time of the tax sale. The Andersons’ attorney attempted to serve personal process on Johnson twice, as is shown by a note on the docket on September 3, 2009, where a deputy clerk recorded the following: “RETURNED TO ATTORNEY FOR PUB.” The attorney for the Andersons said that personal process on Johnson was attempted twice at 954 1/2 Howard Avenue in Biloxi, a location where Johnson was doing business as Johnson Property Investment, LLC, a property rental business. The Andersons put into evidence various documents from Johnson’s bankruptcy filings showing that he listed his address as 954 1/2 Howard Avenue.

¶ 6. The Andersons next issued summons by publication in the local newspaper, The Biloxi Sunr-Herald, running the summons on October 9, October 16, and October 23, 2009. Proof of publication was filed with the chancery court on November 2, 2009. On January 4, 2010, the Andersons filed an application to the clerk for an entry of default and supporting affidavit stating that Johnson had failed to plead or otherwise defend the suit to confirm and quiet title. On the same day, the clerk executed and filed the entry of default against Johnson. The following day, without a hearing, the chancellor entered a final judgment of default against Johnson and confirmed title in the Andersons. After obtaining the judgment in their favor, the Andersons sold the property via warranty deed to Kohler on January 22, 2010.

¶ 7. On February 1, 2010, Johnson timely filed a pro se motion to set aside the default judgment claiming that he failed to receive proper notice of the suit to quiet title and also claiming that the judgment should be set aside because the property at issue was under the jurisdiction of the bankruptcy court.

¶ 8. A hearing was set for Johnson’s motion. Prior to the hearing, the Andersons and Kohler sought and received a preliminary injunction against Johnson after he had tried to put a trailer on the property. The injunction provided that the property was to be maintained in “status quo” until the chancery court’s ruling.

¶ 9. Johnson represented himself at the hearing on the motion to set aside default judgment. He had two arguments. The first was that the Andersons had failed to exercise due diligence to find him before they took the default judgment. His main point was that he had a postal forwarding address from 954 1/2 Howard Avenue to 230C Baker Street in Biloxi, but there was no attempt to serve him by mail. Johnson put into the record a copy of a letter sent to him by the Andersons’ law firm at the 954 1/2 address which was forwarded by the United States Postal Service to the forwarding address of 230C Baker Street. He argued that if the service had been by mail he would have received it at the 230C Baker Street address because his mail from his former business was forwarded to that address. Johnson was asked by the Andersons’ attorney if there was any power or water turned on at the 230C Baker Street address, and he said that there was not. Johnson said that he used the 230C Baker Street address for receiving his mail, but he actually resided at 222C Baker Street. Also, Johnson placed into the record a copy of a summons showing personal service on him of the order granting a temporary restraining order. The Andersons’ attorney responded that when Johnson filed his motion to set aside default judgment, he supplied the Andersons with the 230C Baker Street address and from that he was personally served.

¶ 10. Johnson’s other argument was that he was under the protection of the bankruptcy court at the time of the suit to quiet and confirm title was taken against him. He produced various copies of bankruptcy documents, which we shall discuss further during our analysis. The chancellor denied Johnson’s motion to set aside the default judgment. As to the issue of diligent search and inquiry, the chancellor noted that Johnson had had multiple addresses over the last few years. She found that the Andersons attempted to serve Johnson at the 954 1/2 Howard Avenue address, which was the address listed for Johnson on the tax assessor’s rolls as well as on Johnson’s bankruptcy filings. The chancellor also noted that counsel for the Andersons stated by sworn affidavit that he had not been able to ascertain Johnson’s post office box or street address after diligent search and inquiry at the time the process was issued. The chancellor concluded that the Andersons had attempted to locate Johnson using his last known address of record and further that the bankruptcy documents had been searched to obtain his address. Based upon this evidence, she found that Andersons had made a diligent search and inquiry as to Johnson’s whereabouts and that the summons by publication was proper.

¶ 11. The dates of filing and of discharge and closing of Johnson’s two chapter 13 bankruptcy filings were never conclusively proven by the record before this Court. From Johnson’s pro se brief and rebuttal brief, it is hard to understand what Johnson’s argument is on the bankruptcy issue. However, at trial, he appeared to argue that he was in bankruptcy when the property was ultimately-sold for taxes. Johnson agreed that he was not in bankruptcy when the tax sale occurred in August 28, 2006. However, he asserted that he filed for bankruptcy on August 19, 2008, at a time when his two-year right of redemption had not expired. The chancellor, citing bankruptcy law which we will discuss in our analysis, held that the equitable right of redemption becomes a part of the bankruptcy estate and that the real property involved in the sale itself is not an asset. When Johnson filed for bankruptcy, the trustee had only nine days to redeem the property plus thirty additional days given by bankruptcy law in Johnson’s situation. The trustee on behalf of Johnson did not redeem the property, and on October 8, 2008, a tax deed was issued to the Andersons. Johnson further argued that the automatic stay, which was enacted upon filing for bankruptcy, should have prevented the default judgment. However, the chancellor held the automatic stay was not applicable to Johnson’s second bankruptcy filing because the bankruptcy rules only allow a thirty-day automatic stay when a bankruptcy petition is filed within one year after the dismissal of a previous filing. The record shows that Johnson filed his second bankruptcy petition almost immediately after the dismissal of his first bankruptcy action. Thus, the chancellor denied Johnson’s motion to set aside.

ANALYSIS

¶ 12. “This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied.” Rush v. Wallace Rentals, LLC, 837 So.2d 191, 194 (¶ 11) (Miss.2003) (citing Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990)). However, we employ a de novo standard of review for questions of law “and will only reverse for an erroneous interpretation or application of the law.” Morgan v. West, 812 So.2d 987, 990 (IT 8) (Miss.2002).

I. Whether Johnson was Properly Served

¶ 13. Johnson challenges the service of process on him in the suit to quiet title which resulted in a default judgment for the Andersons to award them the property. Johnson claims the Andersons failed to make a diligent inquiry to find him before resorting to summons by publication.

¶ 14. Rule 4 of the Mississippi Rules of Civil Procedure governs how a party is to be served. “The principal purpose of process is to give to the party to whom it is addressed notice of the proceeding to be defended.” Mid-South Pipeline Contractors, Inc. v. Citizens Nat’l Bank of Meridian, 239 Miss. 621, 627, 124 So.2d 697, 700 (1960).

¶ 15. The Andersons twice attempted personal service upon Johnson pursuant to Rule 4(c)(1) by using a process server. The address on the summons was 954 1/2 Howard Avenue in Biloxi. This was the address that was listed on the Harrison County tax rolls as Johnson’s last known address. The Andersons presented the chancellor with copies of Johnson’s own bankruptcy filings from 2008, which listed 954 1/2 Howard Avenue as his address. After two attempts, the process server returned the summons acknowledging that Johnson could not be found in Harrison County. The chancellor also recognized that the attorney for the Andersons stated by sworn affidavit that he had not been able to ascertain, after diligent search and inquiry, the post office box or street address for Johnson. Johnson’s main argument was that he had a postal forwarding address from 954 1/2 Howard Avenue to 230C Baker Street in Biloxi, but there was no attempt to serve him by mail. Johnson put into the record a copy of a letter sent to him by the Andersons’ law firm at the 954 1/2 address which was forwarded by the United States Postal Service to the forwarding address of 230C Baker Street. He argued that if the service had been by mail he would have received it at the 230C Baker Street address because his mail from his former business was forwarded to that address.

¶ 16. In Page v. Crawford, 883 So.2d 609, 611-12 (¶ 11) (Miss.Ct.App.2004), overruled in part on other grounds by East Mississippi State Hospital v. Adams, 947 So.2d 887, 891 (¶ 10) (Miss.2007), we held that there was “no bright line rule as to how many efforts must be made by a plaintiff to locate a named defendant to satisfy the requirement of diligent inquiry.” Instead, we said that determining diligent inquiry involves balancing the quality of the inquiries for the summoned party with their quantity. Id. “Standing on a street corner and asking passersby if they know the defendant’s location would clearly not constitute diligence, no matter how many persons were asked in that manner. Beyond that, it becomes a matter of balancing quantity, quality[,] and the interests of the parties.” Id. at 612. The Andersons’ attorney’s affidavit is not a part of the record as it was not designated by Johnson to be included. However, the chancellor, in her ruling, states that the attorney said in the sworn affidavit that he had been unable to ascertain Johnson’s post office or street address after diligent search and inquiry. The chancery court found that Johnson had multiple addresses over the last few years. She ruled that the Andersons had attempted to locate Johnson by a diligent search and inquiry before resorting to summons by publication; thus, she found summons by publication was proper. We agree that the Andersons’ attempts to locate Johnson were proper, with two personal service summons returned unfound at an address, which Anderson himself used on various documents including his own bankruptcy filings. Therefore, we find this issue is without merit.

II. Whether the Chancellor Erred in Her Application of Federal Bankruptcy Law

1117. In this issue, Johnson claims that he was under the jurisdiction of the bankruptcy court at the time the suit to confirm and quiet title was filed; thus, any action in the chancery proceeding was stayed by the automatic stay under bankruptcy law.

¶ 18. There is no doubt Johnson was not in bankruptcy when the tax sale was held on August 28, 2006. However, he said that he had filed for Chapter 13 bankruptcy on August 19, 2008. The chancellor and the attorney for the Andersons must have accepted this date for filing as the Andersons’ argument and the chancellor’s decision to use the date in their analysis. Under Mississippi Code Annotated section 27-45-3 (Rev.2010), the owner of land sold for taxes may redeem the land if he comes forward to do so within two years after the date of sale. Accordingly, Johnson would have had the nine days between August 19, 2008, when he filed for bankruptcy, and August 28, 2008, when the two-year redemption period expired, in which to redeem his property. He admitted that he did not redeem his property during this time. However, he claims that the stay of the bankruptcy court tolled the running of the redemption period.

¶ 19. First, under bankruptcy law, the right to redeem property from a tax sale is an asset that becomes the property of the estate. The real property involved in the sale is not itself an asset. In re Isom, 342 B.R. 743, 744 (Bankr.N.D.Miss.2006). Under 11 U.S.C. § 108(b), if the period of redemption has not expired when the bankruptcy petition is filed, then a period of sixty days is given to the debtor or his representative to redeem. Id. at 745. The law makes no mention of tolling the running of the redemption period other than for the sixty days. The Isom court said that once a foreclosure sale has been conducted and the debtor thereafter files bankruptcy, the automatic stay does not toll the running of the state law foreclosure period. Id. at 746. One of the cases Isom cites for this proposition is In re Canney, 284 F.3d 362, 372 (2nd Cir.2002). In Canney, the federal court held that section 108(b), not section 362(a) (which sets out the automatic stay), governs the tolling of a period of equitable redemption. Id. The court said that “the automatic stay prevents only certain affirmative acts taken by a creditor, and the running of time is not one of those acts.” Id. The court noted that although section 362 would give the debtor greater protection, “where one section of the Bankruptcy Code explicitly governs an issue, another section should not be interpreted to cause an irreconcilable conflict”; thus, section 108 controls the period of time a trustee has to redeem the debtor’s property. Id.

¶ 20. The chancellor found that neither Johnson nor his bankruptcy trustee had taken any action to redeem the property and that the time period for doing so had long since passed. Further, the chancellor found the automatic stay did not apply. She based this finding on 11 U.S.C. § 362(c)(3) which states that a bankruptcy petition filed within one year after the dismissal of a previous bankruptcy case, which Johnson did, only carries a thirty-day automatic stay. She found that the thirty-day period had long expired without Johnson taking any action. Under either of these applications of bankruptcy law, Johnson is precluded from setting aside the default judgment. This issue lacks merit.

¶ 21. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The Conveyed Property History of the Harrison County Tax Collector shows that notice of the sale was sent to Johnson three times-twice to 369 East Dr., Biloxi, Mississippi, and once to 954 1/2 Howard Avenue, Biloxi, Mississippi.

      . Originally, there were other defendants, each of whom answered that he had no interest in the property. For a month between September 29, 2009, to October 26, 2009, the chancery action was removed to the United States District Court for the Southern District of Mississippi by the United States Small Business Administration (SBA) which had a mortgage lien on the property. The SBA determined that because it was in a third lien position and the post-Hurricane Katrina value of the property was minimal, that it was not economically feasible to pursue an interest in the property, and it had the district court remand the action to the chancery court.

      . Kohler, as record title holder of the property, was allowed to intervene in the action.


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    Amy Danielle WILKERSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CA-01102-COA.
    Court of Appeals of Mississippi.
    Nov. 8, 2011.
    Rehearing Denied Feb. 28, 2012.
    Certiorari Denied June 7, 2012.

      George S. Shaddock, Pascagoula, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before IRVING, P.J., MAXWELL and RUSSELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Amy Danielle Wilkerson appeals the Jackson County Circuit Court’s dismissal of her motion for post-conviction relief (PCR). On appeal, she argues (1) her guilty plea was involuntary, and (2) her trial counsel was ineffective. Wilkerson’s first argument is procedurally barred because she failed to raise the voluntariness of her plea in her PCR motion. But this procedural bar aside, we find Wilkerson was properly advised of the consequences of her plea, and no error by her counsel rendered her plea involuntary. Finding no error, we affirm.

FACTS

¶ 2. During the early morning hours of July 18, 2005, the parents of eight-week-old Tristen Chin followed their normal routine. Tristen’s mother awoke and played with him before going to work. His father then dropped Tristen off at Wilkerson’s home for Wilkerson to babysit him that day. Tristen was in perfect health when his father left him under Wilkerson’s care.

¶ 3. About five hours later, 911 received a call reporting that Tristen was not breathing. Responding paramedics arrived to find Wilkerson attempting to perform CPR on the infant. Tristen was taken to the hospital and died a short time later.

¶4. Wilkerson gave several conflicting accounts of the events surrounding Tris-ten’s death. At the hospital, Wilkerson told Tristen’s mother that Tristen had been injured while riding in the car. Wilkerson later told police detectives that Tris-ten’s injury occurred when he fell from the couch and hit his head. Wilkerson eventually confessed that her “couch story” was false and that she had shaken Tristen to death.

¶ 5. A Jackson County grand jury indicted Wilkerson for capital murder. Wilkerson initially pled not guilty but later entered into a plea agreement and pled guilty to depraved-heart murder.

¶ 6. Exactly three years later, Wilkerson filed a PCR motion arguing her trial attorneys were ineffective. The circuit court found it plain from reviewing Wilkerson’s motion that she was not entitled to relief. See Miss.Code Ann. § 99-39-11(2) (Supp. 2011). The circuit court summarily dismissed her PCR motion without holding an evidentiary hearing. Wilkerson now appeals.

STANDARD OF REVIEW

¶ 7. In considering the dismissal of a PCR motion, we review the trial court’s findings of fact for clear error and its determinations of' law de novo. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). The PCR movant has the burden to show by a preponderance of the evidence that he is entitled to relief. Miss.Code Ann. § 99-39-23(7) (Supp.2011). The trial court may summarily dismiss a PCR motion without holding an evidentia-ry hearing where “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]” Mitchell v. State, 58 So.3d 59, 60 (¶ 5) (Miss.Ct.App.2011) (quoting Miss. Code Ann. § 99-39-11(2)). We will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate “a claim proeedurally alive substantially showing the denial of a state or federal right.” Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009).

DISCUSSION

I. Voluntariness of Plea

¶ 8. Wilkerson argues her guilty plea was involuntary because: (1) the circuit court failed to explain to her the minimum and maximum sentences she faced; (2) she was not given an opportunity to explain during her plea colloquy her “own version of the alleged [baby] shaking”; and (3) she only had thirty minutes to contemplate her plea.

A. Procedural Bar

¶ 9. Wilkerson failed to raise any of the issues relating to the voluntariness of her plea in her PCR motion, which is a procedural bar. See Foster v. State, 716 So.2d 538, 540 (¶ 9) (Miss.1998). This bar aside, we find no error on any of the plea-voluntariness issues presented.

B. Legal Standard

¶ 10. A guilty plea is binding if entered voluntarily, knowingly, and intelligently. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). A guilty plea is deemed to meet this standard “where the defendant [was] advised concerning the nature of the charge ... and the consequences of the plea.” Id. The PCR movant has the burden to show by a preponderance of the evidence her plea was involuntary. Sayles v. State, 35 So.3d 567, 569 (¶ 7) (Miss.Ct.App.2010).

¶ 11. In assessing the voluntariness of a plea, the thoroughness of the trial court’s interrogation during the plea colloquy “is the most significant evidence of all.” Gardner v. State, 531 So.2d 805, 809-10 (Miss.1988). A trial court’s explanation to a defendant of her rights and the consequences of her plea may be sufficient to render the plea voluntary. Id.

C.Minimum and Maximum Sentences

¶ 12. Wilkerson claims “the record is totally silent as to any explanation given to [her] about the possible mínimums and máximums in her plea.” Yet in her plea petition, she hand wrote that “Life” was the maximum sentence for murder. And at her guilty-plea hearing, Wilkerson acknowledged she understood “the only punishment for [depraved-heart murder] is life in the penitentiary.” The trial judge also emphasized to her that she “would not be eligible for parole considerations until the age of 65.” He explained, “Your age now is 31, so you are looking at some 34 years in the penitentiary [at] a minimum.” When asked if she understood the terms of her sentence, Wilkerson replied, ‘Wes, sir.”

¶ 13. We find the trial judge thoroughly explained to Wilkerson the consequences of her plea. And Wilkerson’s statements under oath evince she understood the minimum and maximum penalties she faced. The bare assertions she now makes cannot overcome the presumption of truth attached to her sworn in-court statements. See Hill v. State, 60 So.3d 824, 830 (¶ 21) (Miss.Ct.App.2011); cf. Baker v. State, 358 So.2d 401, 403 (Miss.1978).

D.Factual Basis

¶ 14. Wilkerson also seems to challenge the factual basis for her plea. But she makes no argument that the State’s factual basis contained any inaccuracies. She instead argues that for her plea to be valid, the circuit court had to provide her an opportunity to give her version of the baby-shaking incident.

¶ 15. Before accepting a guilty plea, the circuit court must determine there is a factual basis supporting the plea. Pegues v. State, 65 So.3d 351, 358 (¶ 25) (Miss.Ct.App.2011) (citing URCCC 8.04; Reynolds v. State, 521 So.2d 914, 916 (Miss.1988)). The court must also have before it “substantial evidence that the accused [committed] the legally defined offense to which he is offering the plea.” Burrough v. State, 9 So.3d 368, 373 (¶ 14) (Miss.2009). Ultimately, “there must be enough that the court may say with confidence the prosecution could prove the accused guilty of the crime eharged[.]” Corley v. State, 585 So.2d 765, 767 (Miss.1991) (citing United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989)).

¶ 16. Wilkerson pled guilty to depraved-heart murder. Mississippi Code Annotated section 97-3-19(l)(b) defines depraved-heart murder as the unlawful killing of a human being “done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual[.]”

¶ 17. During Wilkerson’s plea colloquy, she agreed to the factual basis recited by the State. In so doing, she acknowledged she had provided several conflicting accounts of the child victim’s (Tristen’s) injury. These included that Tristen was hurt while riding in the car and that he had fallen off of the couch. She ultimately admitted to law enforcement she had shaken Tristen and her “couch story” was not true. She further acknowledged Tristen had died as a result of her shaking him. When specifically asked by the circuit judge whether she had shaken Tristen, Wilkerson responded, “Yes, sir.” We also note that in her plea petition she admitted, “I shook the child.”

¶ 18. A factual basis may be established by an admission of the defendant. Jones v. State, 976 So.2d 407, 411-12 (¶ 10) (Miss.Ct.App.2008) (citing Templeton v. State, 725 So.2d 764, 766 (¶ 2) (Miss.1998)). Here, Wilkerson admitted shaking the eight-week-old child — an act of extreme recklessness and indifference to the value of Tristen’s life. She further acknowledged that shaking Tristen caused his death. At no point did she disagree with the facts offered by the State or request an opportunity to give a differing version of the events leading to Tristen’s death. We find no error in the circuit court’s determination that Wilkerson voluntarily pled guilty to depraved-heart murder.

E. Time to Contemplate Plea

¶ 19. Wilkerson claims her plea was involuntary because she only had thirty minutes to decide whether to plead guilty. Yet neither affidavit attached to her PCR motion supports this claim. Thus, we find Wilkerson falls far short of meeting her burden on this issue.

II. Effectiveness of Trial Counsel

¶ 20. Wilkerson suggests her trial attorneys were ineffective. She argues they were deficient by failing to (1) sufficiently investigate her case, (2) communicate with her about the State’s evidence, and (3) offer mitigation testimony on her behalf.

A.Strickland

¶ 21. To prevail on her claim of ineffective assistance of counsel, Wilkerson must show: (1) her counsel’s performance was deficient, and (2) the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To perform deficiently, an attorney must fail to meet “an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance!;.]” Id. at 689, 104 S.Ct. 2052.

¶ 22. To establish prejudice, Wilkerson must show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “In the context of guilty pleas, this means the defendant must show that, were it not for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Burrough, 9 So.3d at 375 (¶ 22).

¶ 23. “[Wlhere a defendant voluntarily pleads guilty to an offense, he waives all non-jurisdictional rights incident to trial[.]” Hill, 60 So.3d at 827 (¶ 6) (citing Anderson v. State, 577 So.2d 390, 391-92 (Miss. 1991)). “This ‘waiver includes all claims of ineffective assistance of counsel, except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea.’ ” Id. (quoting United States v. Cavitt, 550 F.3d 430, 441 (5th Cir.2008)).

B.Pretrial Preparation

¶ 24. Wilkerson suggests her attorneys’ alleged lack of pretrial preparation rendered her plea involuntary. But she does not explain how information yielded by additional investigation would have aided in her defense or resulted in her deciding to exercise her right to a jury trial. See Burrough, 9 So.3d at 375 (¶ 22) (explaining burden to show Strickland prejudice). Though she suggests her attorneys should have discovered exculpatory witnesses, she fails to identify any such witnesses. Thus, we find she fails to plead this issue with the specific detail required to support a prima facie showing of prejudice. Jenkins v. State, 986 So.2d 1031, 1035 (¶ 14) (Miss.Ct.App.2008) (citing Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990)) (explaining both prongs of Strickland standard must be pled with specific detail). We further note Wilkerson does not contend anyone else witnessed the incident. And her trial attorneys pointed out during her plea hearing that after consulting an independent expert, they remained confident a jury would convict Wilkerson of capital murder.

C.Communication

¶ 25. Wilkerson next contends her attorneys were ineffective for not adequately communicating with her. She alleges her attorneys left her “in the dark” about the State’s evidence in the case. Again she fails to plead her allegation with the required specificity. See Jenkins, 986 So.2d at 1035 (¶ 14) (citing Brooks, 573 So.2d at 1354). She does not allege what specific information her attorneys withheld from her. Nor does she explain how her attorneys’ alleged lack of disclosure might have changed her mind about pleading guilty. Without explaining the particulars of how her attorneys’ alleged lack of disclosure affected her decision to forego trial and plead guilty, Wilkerson fails to plead Strickland prejudice with sufficient detail.

D.Mitigation Testimony

¶ 26. Finally, Wilkerson suggests her counsel was ineffective because “[t]here was absolutely no mitigation testimony proffered [on her] behalf.” Because Wilkerson’s argument does not relate to the voluntariness of her plea, we find this issue waived. See Hill, 60 So.3d at 827 (¶ 6) (citing Cavitt, 550 F.3d at 441). Even if mitigation evidence would have been offered, a life sentence is the only punishment available for depraved-heart murder. The sentencing judge has no discretion to depart from that sentence. See Miss.Code Ann. § 97-3-21 (Rev.2006).

CONCLUSION

¶ 27. We find from reviewing Wilkerson’s guilty-plea transcript, her PCR motion and the accompanying affidavits that the trial judge advised her of the consequences of her guilty plea, and she voluntarily pled guilty. Wilkerson has not shown that any alleged error by her trial counsel rendered her plea involuntary or that her attorneys were constitutionally ineffective. We affirm the circuit court’s summary dismissal of her PCR motion.

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

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

      . See Miss.Code Ann. § 97 — 3—19(2)(f) (Rev. 2006).

      . See Miss.Code Ann. § 97 — 3—19(1 )(b) (Rev. 2006).

      . She claims: “The colloquy was precise and textbook, and all points were covered but one. The one missing was [Wilkerson's] own version of the alleged shaking of [the child victim].”

      . This is so even though Wilkerson raises the issue in her brief under the heading dealing with the voluntariness of her plea. We find her argument does not relate to whether she was' advised of the nature of the charge and consequences of her plea.


author: CARLTON, J.,

text:
    Johnny GROGAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01166-COA.
    Court of Appeals of Mississippi.
    Nov. 8, 2011.
    Rehearing Denied Feb. 14, 2012.
    Certiorari Denied June 7, 2012.

      Johnny Grogan, appellant, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before IRVING, P.J., CARLTON and RUSSELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Johnny Grogan appeals the Scott County Circuit Court order dismissing his motion for post-conviction relief as barred as a successive writ under Mississippi Code Annotated section 99-39-23(6) (Supp. 2011). Grogan raises the following assignments of error: (1) whether the trial court properly found that his motion for post-conviction relief was barred as a successive writ; (2) whether he was subjected to a denial of due process of law where the trial court failed to advise him of the right to appeal his sentence to the Mississippi Supreme Court; (3) whether he was denied due process of law where he was convicted without having admitted all elements of the crimes; (4) whether the acceptance of the guilty plea violated Rule 9.06 of the Uniform Rules of Circuit and County Court; (5) whether he was denied his Sixth Amendment right to effective assistance of counsel; (6) whether the sentence imposed by the Court was disproportionate to the offense; and (7) whether his guilty plea was unknowing, involuntary, and constituted an unintelligent waiver of fundamental rights. Finding no error, we affirm.

FACTS

¶ 2. On April 2, 2007, a Scott County grand jury indicted Grogan for one count of sexual battery, pursuant to Mississippi Code Annotated section 97 — 3—95(l)(d) (Rev.2006) in cause number 07-CR-002-SC-G, and he was also indicted by separate indictment for two counts of sexual battery pursuant to section 97 — 3—95(1) (d) in cause number 07-CR-004-SC-G.

¶ 3. On June 1, 2007, Grogan pled guilty to one count of sexual battery in cause number 002, and he also pled guilty to two counts of gratification of lust in cause number 004, instead of the charged sexual battery offenses therein. The trial court sentenced Grogan to serve a term of twenty years in the custody of the Mississippi Department of Corrections (MDOC) for his sexual-battery conviction in cause number 002. The trial court then sentenced Grogan in cause number 004 to two years in the custody of the MDOC for count one, gratification of lust, to run consecutively to the twenty-year sentence imposed in cause number 002, and to two years in the custody of the MDOC for count two, gratification of lust, to run consecutively to the twenty-year sentence imposed in cause number 002 and to the two-year sentence imposed in count one of cause number 004.

¶ 4. On May 27, 2010, Grogan filed a motion for post-conviction relief in cause number 002 in the Scott County Circuit Court. The trial court entered an order on June 28, 2010, dismissing Grogan’s PCR motion as being barred as a second or successive motion under Mississippi Code Annotated section 99-39-23(6). Aggrieved, Grogan appeals.

STANDARD OF REVIEW

¶ 5. “When reviewing a trial court’s denial or dismissal of a motion for post-conviction relief, we will reverse the judgment of the lower court only if its factual findings are clearly erroneous; however, we review the circuit court’s legal conclusions under a de novo standard of review.” Beal v. State, 58 So.3d 709, 710 (¶ 2) (Miss.Ct.App.2011) (citing Doss v. State, 19 So.3d 690, 694 (¶ 5) (Miss.2009)).

DISCUSSION

¶ 6. Before proceeding with our analysis, we must begin with.a procedural matter. Mississippi Code Annotated section 99-39-9(2) (Rev.2007) states: “A motion shall be limited to the assertion of a claim for relief against one (1) judgment only. If a petitioner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions.” See Cook v. State, 990 So.2d 788, 790-91 (¶ 4) (Miss.Ct.App.2008). In the style of his PCR motion, Grogan listed cause number 002 as the cause number to which he sought post-conviction relief. However, in his PCR motion and his brief on appeal, Grogan raised issues regarding not only his sexual-battery conviction and sentence in cause number 002, but also with his gratification-of-lust convictions and sentences in cause number 004. “However, pursuant to section 99-39-9(2), [Grogan] is only able to challenge the validity of his conviction from one judgment per motion for post-conviction collateral relief.” Id. at 791 (¶ 4). Therefore, we will limit our appellate review to those issues surrounding his guilty plea associated with cause number 002 since Grogan listed that cause number in the style of his PCR motion, and the vast majority of issues raised within his PCR motion and appellate brief concern cause number 002.

SUCCESSIVE WRIT

¶ 7. Grogan argues that the trial court erred by dismissing his PCR motion as barred as a successive writ by section 99 — 39—23(6). Grogan contends that the trial court’s findings failed to include the prior order in the record to support its findings that the PCR motion in the present case was barred as a successive writ. Additionally, Grogan argues that his current PCR motion should be excepted from section 99-39-23(6) because his fundamental constitutional rights were infringed upon and because an intervening decision from the Mississippi Supreme Court adversely affects the outcome of his case.

¶ 8. The Uniform Post-Conviction Relief Act generally bars successive motions from our review. White v. State, 59 So.3d 633, 635 (¶ 6) (Miss.Ct.App.2011). Mississippi Code Annotated section 99-39-23(6) provides that “any order dismissing the petitioner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.” Section 99-39-23(6) includes exceptions to the successive-writ bar, stating:

Excepted from this prohibition is a motion filed under Section 99-19-57(2), raising the issue of the convict’s supervening mental illness before the execution of a sentence of death. A dismissal or denial of a motion relating to mental illness under Section 99-19-57(2) shall be res judicata on the issue and shall likewise bar any second or successive motions on the issue. Likewise excepted from this prohibition are those cases in which the petitioner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are those cases in which the petitioner has filed a prior petition and has requested DNA testing under this article, provided the petitioner asserts new or different grounds for relief related to DNA testing not previously presented or the availability of more advanced DNA technology.

¶ 9. Finding Grogan’s PCR motion barred as a successive writ and no applicable exception to such bar, the trial court entered an order dismissing Grogan’s PCR motion. The order states in pertinent part:

ON THIS DAY came petitioner, Johnny Grogan, who petitions this [ejourt to vacate and set aside conviction and sentence thereby taking on the attributes of an appeal under the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss.Code. Ann. § 99-39-1, et seq. The [petitioner previously filed for post-conviction relief under this statute in [c]ause [n]umber 08-CV-355-SC-G. On October 7, 2008, this [c]ourt entered an [o]rder denying [petitioner post-conviction relief. Pursuant to Miss.Code Ann. § 99-39-23(6), a previous denial of post-conviction relief petition is a final judgment and thus bars filing of any second or successive motions, unless he can demonstrate an exception to the statutory bar. Bowie v. State, 949 So.2d 60, 62 (Miss.Ct.App.2006). These recognized exceptions are (1) intervening decisions which would have adversely affected the outcome of the prisoner’s conviction or sentence, (2) newly discovered evidence, not reasonably discoverable at the time of trial, which would have caused a different result in the outcome of the prisoner’s sentence or conviction had it been admitted at trial, and (3) allegations that a petitioner’s sentence has expired or his probation or parole has been unlawfully revoked. [Miss.Code Ann. § 99-39-23(6).] This bar against successive filings applies not only to issues actually determined in a previous post-conviction relief proceeding, but to those issues that could have been raised. Smith v. State, 648 So.2d 63, 66 (Miss.1994). Petitioner has made no claims that would constitute an exception to the statutory bar. Therefore, [petitioner should be barred from filing this and any further petitions for post-conviction relief.

¶ 10. After reviewing the record before this Court, we, like the trial court, find Grogan’s present PCR motion barred as a successive writ. The trial court’s above-stated order provides that Grogan had previously filed for post-conviction relief, and on October 7, 2008, the trial court entered an order denying the relief requested. In making its finding, the trial court cited the previous cause number wherein Grogan previously sought and was denied such relief. In accordance with section 99-39-23(6), this previous denial of Grogan’s PCR motion is the final judgment that bars the filing of a successive motion, such as his present PCR motion, unless he demonstrates an exception to the statutory bar. See Bowie v. State, 949 So.2d 60, 62 (¶ 7) (Miss.Ct.App.2006). Grogan bears the burden of proving by a “preponderance of the evidence that his claims are not barred as successive writs.” Madden v. State, 52 So.3d 411, 412 (¶8) (Miss.Ct.App.2010) (quoting Robinson v. State, 19 So.3d 140, 144 (¶ 16) (Miss.Ct.App.2009)). A review of the record shows that Grogan failed to meet this burden.

¶ 11. Grogan first claims that his current PCR motion is excepted from the statutory bar because the supreme court rendered an intervening decision by entering an order in Nix v. State, 2010-M-00428 (June 15, 2010) instructing the trial court to conduct a hearing to determine the victim’s age as it pertained to Nix’s conviction of touching a child for lustful purposes. Grogan alleges that the trial court in the present case failed to subject his conviction to proof of all the elements of the crimes, specifically the ages of those involved, as required by the recent order in Nix.

¶ 12. The record before this Court, however, shows that Grogan failed to raise Nix as an intervening decision constituting an exception to the statutory bar before the trial court; therefore, we are proee-durally barred from reviewing this argument on appeal. See Powell v. State, 49 So.3d 166, 174 (¶ 25) (Miss.Ct.App.2010). Notwithstanding the procedural bar, we find no merit to Grogan’s claim, as the record provides evidence contrary to Gro-gan’s allegation. The plea colloquy clearly shows that Grogan admitted, under oath, that he committed the crime of sexual battery on September 1 through January 20, 2007, and that he engaged in sexual penetration with a child under fourteen years of age when he was at that time more than twenty-four months older, by inserting his penis into the anus of the child. Accordingly, we find no merit to Grogan’s claim.

¶ 13. We, likewise, find no merit to Grogan’s allegation that the trial court failed to support his findings by not including the prior order in the record to demonstrate that a final order had been entered. “Although there is no proof in the record to either support or deny the existence of [Grogan’s] prior motion for post-conviction relief, the reference in [the trial court’s] order is sufficient to take judicial notice of its existence and to rule that the successive motion was improper.” McGriggs v. State, 877 So.2d 447, 449 (¶ 6) (Miss.Ct.App.2003).

¶ 14. Finally, we find that the successive-writ bar also applies to Gro-gan’s subsequent assignments of error concerning his constitutional rights. While we recognize that “[t]he procedural bars of the UPCCRA do not apply to ‘errors affecting fundamental constitutional rights[,]’ ” White, 59 So.3d at 636 (¶ 11), we note that “mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar.” Id. (citations omitted). Moreover, this Court will affirm the dismissal of a PCR motion if the movant fails to demonstrate “a claim procedurally alive substantially showing the denial of a state or federal right.” Robinson, 19 So.3d at 142 (¶ 6) (citations omitted).

¶ 15. Based on the foregoing, we affirm the trial court’s order dismissing Grogan’s motion for post-conviction relief.

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

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

      . This Court has restated Grogan's assignments of error for clarity.

      . While Grogan does not specifically delineate this as an issue in his appellate brief, he raises the issue in his summary of the argument and within his issue discussing his claim that the trial court violated his due-process rights by convicting him without having him admit all elements required to prove such crimes.

      . We note that Grogan failed to meet the statutory requirements of Mississippi Code Annotated section 99-39-9 by failing to incorporate an affidavit, other than his own, to support his claims. See Jefferson v. State, 855 So.2d 1012, 1014 (¶ 11) (Miss.Ct.App.2003).


author: LEE, C.J.,

text:
    Donald R. WHITFIELD, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01238-COA.
    Court of Appeals of Mississippi.
    Nov. 15, 2011.
    Rehearing Denied March 20, 2012.
    Certiorari Denied May 31, 2012.
    Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE, C.J., ISHEE and CARLTON, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. A jury in the Monroe County Circuit Court convicted Donald R. Whitfield of Count I, fondling, and Count II, sexual battery. The jury was unable to reach a unanimous verdict with regard to Count III, sexual battery. In regard to Count I, Whitfield was sentenced to seven years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended and five years post-release supervision. In regard to Count II, Whitfield was sentenced to serve thirty years in the custody of the MDOC. The trial court ordered the sentence in Count I to be served consecutively to the sentence in Count II, and the court ordered Whitfield to pay $1,000 in restitution to the Mississippi Children’s Trust Fund.

¶ 2. Whitfield filed post-trial motions, which were ultimately denied. Whitfield filed this appeal arguing that the guilty verdict for sexual battery is against the overwhelming weight of the evidence.

FACTS

¶ 3. On April 8, 2007, D.W., who was ten years old, was spending the weekend with her father and stepmother. D.W. became upset at having to return to her mother’s house and informed her father that her mother’s boyfriend, Whitfield, had molested her on several occasions, the most recent time on April 5, 2007. D.W.’s father took her to Gilmore Memorial Regional Medical Center in Amory, Mississippi.

¶ 4. Deborah Rogers, a social worker at the hospital, was called in to interview D.W. Rogers indicated that D.W. was crying and acting anxious, scared, and apprehensive. D.W. told Rogers that Whitfield had been touching her in her vaginal and rectal area with his penis. Carla Horn, a children’s counselor, conducted the forensic interview on April 11, 2007. Horn testified that D.W. disclosed a series of abuses by Whitfield which began when D.W. was approximately five years old. D.W. told Horn that during these assaults, “white stuff came out [of Whitfield’s penis] about twelve times.” D.W. also stated that Whitfield had put his “boy thing inside of her butt” several times, and he made her “suck on his boy thing” approximately fifteen times. During the most recent episode, on April 5, 2007, D.W. stated that Whitfield rubbed his penis on her vagina until “white stuff came out all over the outside of her [vagina.]”

¶ 5. Shalotta Sharp, a registered nurse who is also certified as a sexual assault nurse examiner, performed a sexual-assault examination on D.W. on April 11, 2007. D.W. had complained of genital discomfort, itching, and discharge. Sharp noted a white discharge, healed vesicular lesions around D.W.’s genitals, and an abnormal hymen, which was consistent with sexual penetration. Sharp stated that she took a sample of the discharge on D.W.’s outer genitals and sent it to the laboratory for testing. Sharp indicated that the test for trichomonas, a sexually transmitted disease (STD), came back negative. However, Sharp testified that the white discharge experienced by D.W. was consistent with a response to trichomonas. Sharp stated that trichomonas can be dormant for months to years at a time without the patient experiencing any symptoms. Due to the healed lesions, Sharp conducted a herpes test, which came back positive. The particular test conducted on D.W. did not distinguish between the two types of herpes viruses, Herpes Simplex Virus I (HSV-I) or Herpes Simplex Virus II (HSV-II).

¶ 6. In September 2009, D.W. was sent to Lisa Cooper, a nurse practitioner, for further testing. Cooper indicated that she performed a non-specific herpes test on D.W. The test was used to determine the presence of two antibodies, IGG and IGM. The IGG test was negative, and the IGM test was positive. Cooper testified that the IGM test indicated that D.W. had been exposed to the herpes virus at least one time. Cooper testified that D.W. also tested positive for trichomonas. Cooper also tested Whitfield for trichomonas on December 22, 2009. The test came back positive.

¶ 7. Cooper tested D.W. again in October 2009 for herpes. D.W. was tested for both HSV-I and HSV-II, and the results were negative for both. Cooper opined that D.W. had been exposed to the virus, but she had not experienced an outbreak, so her body had not produced the antibodies against the herpes virus.

¶ 8. D.W. testified at trial. She described the most recent time Whitfield had molested her. D.W. stated that Whitfield ordered her into the room shared by her mother and Whifield. Whitfield pulled D.W. onto the bed, pulled her pants off, took off his own pants, touched her breast, and inserted his penis into her vagina until “white stuff came out.” D.W. testified that the “white stuff’ got on her, and Whitfield gave her a towel to wipe it off. D.W. stated that this encounter hurt her and caused her to cry. D.W. further testified that Whitfield had “made [her] suck his penis” on several occasions, and he had been touching her inappropriately for a long time. D.W. stated that she had told her aunt about the molestation, but her aunt told her not to tell anyone.

¶ 9. Over the course of the investigation, Whitfield was tested several times for herpes and/or other STDs. On April 16, 2007, Dr. Dennis Smith tested Whitfield for herpes. Whitfield tested positive for HSV-I, but negative for HSV-II. In February 2009, Dr. Harold Thomas tested Whitfield for herpes. The test results were similar to the test conducted in April 2007, indicating that Whitfield tested positive for HSV-I, but negative for HSV-II. Dr. Thomas testified that HSV-I was commonly known as a cold sore virus, and it rarely manifests itself in the genital area. On December 22, 2009, Whitfield tested positive for trichomonas. Wanting a second opinion, Whitfield saw Dr. David Bell the next day, December 23, 2009. Dr. Bell testified that he did not test Whitfield for trichomonas because he had no apparent symptoms.

¶ 10. Whitfield denied the allegations.

DISCUSSION

¶ 11. In his only issue on appeal, Whitfield contends that the guilty verdict for sexual battery is contrary to the overwhelming weight of the evidence. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). Furthermore, it is well-settled law that the jury determines the credibility of the witnesses and resolves conflicts in the evidence. Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct.App.2003).

¶ 12. Whitfield was indicted for committing sexual battery upon D.W. “by inserting his penis inside the mouth of [D.W.] ” between September 6, 2000, and April 5, 2007. Pursuant to Mississippi Code Annotated section 97—3—95(l)(d) (Rev.2006), “[a] person is guilty of sexual battery if he or she engages in sexual penetration with ... [a] child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.” According to Mississippi Code Annotated section 97-3-97(a) (Rev.2006), “sexual penetration” includes fellatio.

¶ 13. Whitfield contends that the State failed to prove “sexual penetration” occurred. The only witness to testify as to the sexual penetration was D.W. D.W. testified that Whitfield had made her perform fellatio on him on several occasions. Horn testified that D.W. had also told her what Whitfield had forced her to do. The uncorroborated testimony of a sex-crime victim is sufficient to support a conviction if accepted as true by the finder of fact. Bell v. State, 835 So.2d 953, 957 (¶ 17) (Miss.Ct.App.2003). The jury as the fact-finder determined the testimony of D.W. to be more credible than that of Whitfield. There is no reasoned basis for this Court to now declare that the jury erred in so finding.

¶ 14. Whitfield contends that the STD test results contradict D.W.’s testimony. However, although the test was non-specific, D.W. did test positive for the herpes virus. Whitfield tested positive for HSV-I.D.W. and Whitfield also tested positive for trichomonas. It was the jury’s job to make inferences from the testimony concerning the test results. Regardless of any test results, D.W. testified that Whitfield had sexually assaulted her on numerous occasions, and the jury found her testimony to be more credible than Whitfield’s testimony.

¶ 15. Having fully reviewed the record, including the transcript of D.W.’s testimony, we cannot find that allowing the guilty verdict to stand would sanction an unconscionable injustice.

¶ 16. THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, FONDLING, AND SENTENCE OF SEVEN YEARS, WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND COUNT II, SEXUAL BATTERY, AND SENTENCE OF THIRTY YEARS, WITH THE SENTENCE IN COUNT I TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY $1,000 IN RESTITUTION TO THE MISSISSIPPI CHILDREN’S TRUST FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONROE COUNTY.

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

      . The Court of Appeals declines to name minor victims of sexual crimes.


author: GRIFFIS, P.J.,

text:
    Lee Alexander BROOKS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01071-COA.
    Court of Appeals of Mississippi.
    Nov. 29, 2011.
    Rehearing Denied June 5, 2012.

      Lee Alexander Brooks, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Lee Alexander Brooks appeals the dismissal of his motion for post-conviction collateral relief. Brooks claims: (1) he received ineffective assistance of counsel, and (2) his guilty plea was not knowingly and voluntarily entered. We find no error and affirm.

FACTS

¶ 2. Brooks was indicted on two counts of burglary of a dwelling house under Mississippi Code Annotated section 97-17-23 (Rev.2006). On July 31, 2008, Brooks pleaded guilty to both counts. Brooks was sentenced to serve twenty-five years in the custody of the Mississippi Department of Corrections for each count of burglary, with the sentences to run- concurrently. The trial court suspended five years of each sentence and placed Brooks on five years of post-release supervision.

¶ 3. On May 28, 2010, Brooks filed a motion for post-conviction collateral relief. The Adams County Circuit Court dismissed Brooks’s motion and found that Brooks did not receive ineffective assistance of counsel because: (1) his counsel filed the motion to suppress that Brooks requested, and (2) Brooks voluntarily pleaded guilty after being advised of his rights. Brooks appeals from this judgment.

STANDARD OF REVIEW

¶ 4. A circuit court’s dismissal of motion for post-conviction collateral relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

ANALYSIS

1. Ineffective Assistance of Counsel

¶ 5. Brooks claims that his counsel was ineffective because: (1) counsel did not pursue Brooks’s alleged suppression issue; (2) counsel requested to withdraw and failed to investigate his claims adequately; and (3) counsel misinformed Brooks of his ineligibility for parole. Brooks claimed that he would not have pleaded guilty if he had effective counsel that properly investigated his case.

¶ 6. To prove ineffective assistance of counsel, Brooks must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Brooks to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, Brooks must “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In cases involving post-conviction collateral relief, “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).

¶ 7. Brooks argues that his counsel failed to file a motion to suppress evidence. The record indicates that an extensive motion to suppress evidence was filed on Brooks’s behalf. A hearing was held on the suppression motion. Thus, there is no merit to this contention.

¶ 8. Brooks also claims that his appointed attorney requested to withdraw and did not adequately investigate Brooks’s claims. The circuit judge addressed the issue of counsel’s withdrawal from the case. Previously, Brooks was appointed different counsel who was removed at Brooks’s request. The circuit judge explained to Brooks that his current counsel had filed an extensive pretrial motion on Brooks’s behalf, and the attorney had a good track record in the courtroom. The circuit judge did not allow Brooks to remove his second court-appointed attorney without cause on the day of trial and to further delay proceedings as Brooks previously had done. The circuit judge explained to Brooks that he had the option of representing himself or to continue with his current representation after the judge found no merit to Brooks’s request to remove his second counsel. We find no merit to this assignment of error.

¶ 9. Lastly, Brooks argues that he would not have pleaded guilty if his counsel had adequately informed him that he would not be eligible for parole. Brooks had the opportunity to confer with counsel, and he had a family member, his uncle, present during the conference on his plea bargain. Brooks has failed to show any specific evidence of how his counsel misinformed him regarding his eligibility for parole. During Brooks’s plea colloquy, the circuit judge asked the following questions:

Q: Has anyone threatened you to plead guilty?
A: No, sir.
Q: Has anyone offered you any money or held out any promise of reward to get you to plead guilty?
A: No, sir.
Q: And do you understand what I said about the most and the least that you can get on these charges?
A: Yes, sir.
Q And you understand that that’s up to me as the Judge to decide?
A: Yes, sir.
Q: We have been sitting here and you’re not pleading guilty because you’ve been promised any particular sentence or anything?
A: No, sir.

¶ 10. A judge is not required to make a determination that a defendant understands his eligibility for parole before accepting a guilty plea. Ware v. State, 379 So.2d 904, 907 (Miss.1980). The Mississippi Supreme Court has held “that failure to mention something concerning parole eligibility may be no problem, but erroneous information concerning parole and sentencing at least entitles the petitioner to an evidentiary hearing on whether he relied on the erroneous information.” Fairley v. State, 834 So.2d 704, 707 (¶ 8) (Miss.2003).

¶ 11. Here, Brooks was not erroneously informed of his possibility of parole by the circuit judge, and Brooks failed to offer any evidence to support his claims that his counsel misinformed him. Brooks stated in the record that his guilty plea was not the result of being promised a specific sentence. The record is void of any instance where Brooks was misinformed regarding his eligibility of parole.

¶ 12. The circuit judge informed Brooks of the minimum and maximum sentences that each charge carried. Brooks has failed to offer any evidence other than his own statements that his counsel was ineffective. Because Brooks has failed to prove the first prong of the Strickland test, his claim for ineffective assistance must fail. Therefore, this issue has no merit.

2. Voluntariness of Brooks’s Guilty Plea

¶ 13. Brooks argues that his guilty plea was involuntary because he pleaded guilty out of fear of going to trial with unprepared counsel or without counsel, if Brooks chose to represent himself pro se.

¶ 14. A plea of guilty is binding only if it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). Such a plea is voluntary and intelligent when the defendant is informed of the charges against him and the consequences of his plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992).

¶ 15. Brooks’s claim that he entered an involuntary plea on the basis of unprepared counsel is without merit. As previously discussed, Brooks was represented by adequate counsel. The circuit judge addressed the allegation that counsel was unprepared and found no merit in the allegation citing: (1) an extensive pretrial motion filed by Brooks’s current attorney, and (2) Brooks’s previous request to remove his counsel for baseless reasons.

¶ 16. Brooks was informed of the charges against him, as well as the minimum and maximum sentences each charge carried. The circuit judge further informed Brooks of the result of pleading guilty, asked Brooks if he was threatened to plead guilty, and asked if he had conferred with his attorney concerning his guilty plea. Because we find that Brooks was informed of the charges against him and represented adequately by counsel, Brooks’s claim that his plea was involuntary is without merit.

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

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