author: LEE, P.J.,

text:
    Paula DENHAM and Pamela Caldwell, Appellants v. Adam HOLMES, a minor by and through Donnie HOLMES, his father & natural guardian, Appellee.
    No. 2008-CA-01933-COA.
    Court of Appeals of Mississippi.
    March 23, 2010.
    Rehearing Denied July 20, 2010.

      Tommy Wayne Defer, Water Valley, Bobby T. Vance, attorneys for appellants.
    John Brian Hyneman, Oxford, attorney for appellee.

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

for the Court:

PROCEDURAL HISTORY

¶ 1. Paula Denham and Pamela Caldwell were involved in a vehicle accident with Adam Holmes. Denham and Caldwell filed a complaint against Holmes in the Circuit Court of Lafayette County, alleging that Holmes was negligent in operating his motor vehicle.

¶ 2. The case was heard by a jury, which returned a verdict in favor of Holmes. Denham and Caldwell filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The motion was denied by the trial court.

¶ 3. Denham and Caldwell now appeal, alleging the trial court erred by: (1) excluding the testimony of their expert witness; (2) allowing Holmes’s attorney to make reference during closing arguments to the lack of expert testimony; (3) granting jury instructions D-4 and D-9; (4) denying their motion for a JNOV; and (5) denying their motion for a new trial. Finding error, we reverse and remand this case to the trial court for a new trial.

FACTS

¶ 4. Denham was attempting a left turn on University Avenue in Oxford, Mississippi when her vehicle collided with a pickup truck driven by Holmes. The front left side of Holmes’s truck struck the front passenger side of Denham’s car as she attempted to turn into the parking lot of Ken Ash Construction Company. Caldwell, Denham’s sister, was a passenger in Denham’s vehicle, and Lee Durham was a passenger in Holmes’s truck. Prior to trial, the parties stipulated that certain physical injuries and medical expenses were incurred as a result of the accident.

¶ 5. Denham testified that she stopped, turned on her left-turn signal, and waited for oncoming traffic to clear before turning. Denham and Caldwell testified that there was no visible oncoming traffic when Denham executed the turn. Denham testified that the front wheels of her car were in the construction company’s parking lot when her car was hit by Holmes’s truck. Denham’s car was pushed across both lanes of traffic on University Avenue, and the car came to rest on the opposite side of the road with the front end of the car completely off the road. Holmes’s truck came to rest seventy-five feet inside the construction company’s parking lot. Both cars were totaled in the accident.

¶ 6. Caldwell testified that she did not see Holmes’s truck until an “instant” prior to impact. She stated that Holmes was driving “crazy fast,” and she did not have time to warn Denham of the approaching vehicle. Holmes testified that he was driving approximately forty-five miles per hour when Denham turned in front of him. Durham testified that he saw Denham’s vehicle make an abrupt left turn as the vehicle was “almost right on them.” Holmes testified that he applied his brakes and steered to the right in an effort to avoid hitting Denham’s car. Deputy Shane Theobald with the Lafayette County Sheriffs Department was the investigating officer at the scene. He testified that the speed limit on University Avenue was forty miles per hour.

DISCUSSION

I. EXPERT TESTIMONY

¶ 7. Prior to trial, Denham and Caldwell designated Donald Rawson, a traffic-collision reconstructionist, as their expert witness. The parties stipulated that Rawson was properly and timely designated and that he would testify by deposition. The parties also stipulated that Rawson was qualified to give an expert opinion on the traffic accident.

¶ 8. At trial, Holmes made an ore tenus motion to exclude Rawson’s testimony on the basis that it would not aid the jury in reaching its decision. Holmes also questioned the reliability of the testimony and noted that Rawson did not view the actual wrecked vehicles or personally speak with Holmes, Durham, or Deputy Theobald. Holmes argued that Rawson’s testimony only reiterated what the police report stated; thus, it was unnecessary. The trial court granted the motion. The trial court allowed Rawson’s deposition, report, and curriculum vitae to be entered as exhibits for identification purposes to serve as a proffer of the proposed testimony. Den-ham and Caldwell objected to the ruling. Their objection was overruled.

¶ 9. The admission of-expert testimony is within the .sound discretion of the trial judge. Roberts v. Grafe Auto Co., 701 So.2d 1093, 1098 (Miss.1997). The admissibility of expert testimony is evaluated in light of Mississippi Rule of Evidence 702, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or- education, may testify thereto in' the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

This rule emphasizes that it is “the gate[-]keeping responsibility of the trial court to determine whether the expert testimony is relevant and reliable.” M.R.E. 702 cmt.

¶ 10. For expert testimony to be admissible, it must be both relevant and reliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Daubert provides an illustrative list of factors 'that trial courts may use in assessing the reliability of expert’ testimony. Id.; see also Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 38 (¶ 16) (Miss.2003). The Daubert factors include:

whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether, in respect to a particular technique, there is a high known or potential rate of error; whether there are standards controlling the technique’s operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community.

McLemore, 863 So.2d at 37 (¶ 13). “Depending on the circumstances of the particular case, many factors may be relevant in determining reliability, and the Daubert analysis is a flexible one.” Id. at 38 (¶ 16).

¶ 11. Denham and Caldwell argue that Rawson’s testimony would have assisted the jury on technical issues such as speed, sight line, and distance between the vehicles. They argue that the exclusion of Rawson’s testimony was prejudicial because several of the jury instructions hinged on the speed of Holmes’s vehicle and distance between the vehicles. Specifically, the jury was instructed to determine if Holmes was driving at a speed that was reasonable and prudent and whether the proximity of Holmes’s vehicle created an immediate hazard to which Denham should have yielded. Denham and Caldwell argue that speed clearly played a role in the accident as evidenced by where the vehicles came to rest after the collision.

¶ 12. Rawson would have testified that based on the police report, which stated that Holmes was traveling forty-five miles per hour, Holmes’s vehicle was 206 feet from Denham’s vehicle when Denham began her turn. He testified that there was no obstruction of view between the vehicles. Based on his calculations, it took Holmes’s vehicle 3.12 seconds to travel the 206 feet to Denham’s car. He testified that Denham could have completed the turn in 3.62 seconds. Therefore, Rawson’s opinion was that Holmes could have taken evasive action to avoid the accident. He testified that if Holmes would have slowed down to thirty-one miles per hour, Denham would have safely made the turn. He stated that his opinion was based on the lack of skid marks on the pavement in the photographs he was given of the scene. He was not sure when the photographs were taken. He noted in his report that there was no method to determine the speed of the vehicles using physical evidence.

¶ 13. The trial court found that Raw-son’s testimony was relevant and would assist the jury. However, the trial court excluded the testimony because it found that Rawson’s conclusions were based on “insufficient facts and data.” Specifically, the trial court noted that Rawson did not factor in the “crush damage” to the vehicles or take into account reaction time in determining speed. Also, the trial court stated that some of Rawson’s opinions were legal conclusions which invaded the province of the jury.

¶ 14. We find that Rawson’s testimony was technical in nature and would have assisted the jury in understanding the evidence and determining the facts in issue. We also find that the testimony was based on the facts available from the accident scene and should have been admitted. At trial, testimony was presented to the jury by Denham; Caldwell; Holmes; Durham; Frances Denham, Denham’s husband; John Caldwell, Caldwell’s husband; and Deputy Theobald. Deputy Theobald testified as to the information in the accident report, but he gave no scientific or technical testimony. Therefore, the jury was given no expert testimony to use to draw a conclusion as to the negligence of the parties. We find that without such testimony, the jury did not have sufficient information from which to reach a verdict. Therefore, we find that the judgment should be reversed, and the case remanded for a new trial with the inclusion of the expert testimony.

II. CLOSING ARGUMENT

¶ 15. Denham and Caldwell argue that because their expert was not allowed to testify, it was reversible error for Holmes’s counsel to comment on the lack of expert testimony in closing arguments.

¶ 16. During closing arguments, Holmes’s counsel stated:

Now, they want to talk about property damage and where the vehicles ended up. There’s no evidence. There’s no evidence here of ... what speeds cause property damage. The plaintiffs’ attorneys] ... got up here and told you that you would hear from the witnesses and you would hear from an experts [sic] get up and testify.

Denham’s counsel objected and asked for a mistrial or for the jury to be instructed to disregard the comment. The objection was overruled by the trial court. Holmes’s attorney continued: “There is no testimony regarding what in any way the speed had to deal [sic] or in any way contributed to this accident. There’s no evidence from anybody, anybody sitting here today, that speed somehow contributed to the accident.”

¶ 17. Denham and Caldwell argue that the comments were particularly harmful because their counsel stated during opening statements that they would present expert testimony to support their position that Holmes was speeding. The supreme court has held that: “The test in determining whether a lawyer has made an improper argument which requires reversal is ‘whether the natural and probable effect of the improper argument ... creates an unjust prejudice against the opposing party resulting in a decision influenced by the prejudice so created.’ ” Eckman v. Moore, 876 So.2d 975, 986 (¶ 38) (Miss.2004) (quoting Davis v. State, 530 So.2d 694, 701-02 (Miss.1988)).

¶ 18. In Shell Oil Co. v. Pou, 204 So.2d 155, 157 (Miss.1967), the supreme court stated that: “The only legitimate purpose of the [closing] argument of counsel in a jury case is to assist the jurors in evaluating the evidence and in understanding the law and in applying it to the facts.” We find that Holmes’s counsel’s comments in closing argument were not made in furtherance of evaluating the evidence or understanding the law; rather, the comments were made to arouse prejudice in the eyes of the jury. Therefore, we find that it was reversible error for the trial court not to instruct the jury to ignore these comments.

III. JURY INSTRUCTIONS D-4 AND D-9

¶ 19. Denham and Caldwell objected to jury instructions D-4 and D-9. “On review of a challenge to a jury instruction, ‘we will not find reversible error where the instructions actually given, when read together as a whole, fairly announce the law of the case and create no injustice.’ ” Lepine v. State, 10 So.3d 927, 944 (¶ 49) (Miss.Ct.App.2009) (quoting Ford v. State, 975 So.2d 859, 864 (¶ 11) (Miss.2008)).

¶ 20. Jury instruction D-4 states:

The violation of any posted speed limit or allegations of driving at an excessive speed are only relevant if the plaintiffs have shown, from a preponderance of the evidence, that the speed of Adam Holmes was the sole proximate cause or proximate contributing cause to the accident. Unlawful speed is not a proximate cause of an accident caused by the intervening negligence of another person.
Therefore, should- you find from a preponderance of the evidence that the motor vehicle accident of July 15, 2004 was the sole proximate cause of the actions of Paula Denham, then any violation of the speed limit or allegations of driving at an excessive speed are irrelevant to your decision.

¶ 21. In jury instruction D-4, the last sentence of the first paragraph states: “Unlawful speed is not a proximate cause of an accident caused by the intervening negligence of another person.” Denham and Caldwell argue that this sentence made the instruction equivalent to a contributory-negligence instruction. Holmes asserts that any confusion by this sentence was remedied by the last sentence of the instruction which goes on to state that only if the accident “was the sole proximate cause of the actions of Paula Denham, then any violation of the speed limit or allegations of driving at an excessive speed are irrelevant to your decision.”

¶22. “Mississippi is a pure comparative[-]negligence state.” Coho Resources, Inc. v. Chapman, 913 So.2d 899, 911 (¶ 36) (Miss.2005) (citing Miss.Code Ann. § 11-7-15 (Rev.2004)). Mississippi Code Annotated section 11-7-15 states:

In all actions hereafter brought for personal injuries, or where such injuries have resulted in death, or for injury to property, the fact that the person injured, or the owner of the property, or person having control over the property may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of the property, or the person having control over the property.

¶ 28. As it implied contributory negligence, we find that jury instruction D-4 was a misstatement of the law and was potentially misleading to the jury. This jury instruction also contradicted jury instruction D-10, which asked the jury to assign a percentage of fault between the parties. We find that it was reversible error for the trial court to grant jury instruction D-4 as it was written.

¶ 24. Jury instruction D-9 states: “When considering who is at fault for an accident, and/or injuries, you may take into account the conduct of those who are not parties to this lawsuit. Although not a party to this lawsuit, you may consider the actions or omissions of Paula Denham in reaching your verdict.” The last sentence of this instruction which states that Paula Denham was not a party' to the lawsuit is a clear misstatement of the facts and could have been misleading to the jury. Therefore, we also find that it was error for the trial court to grant this instruction.

¶ 25. Due to the errors in this case, we find that the parties were denied the right to a fair trial. Therefore, we reverse the judgment and remand this case to the trial court for further proceedings consistent with this opinion.

¶ 26. THE JUDGMENT OF THE LAFAYETTE COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

KING, C.J., MYERS, P.J., GRIFFIS AND ISHEE, JJ., CONCUR. ROBERTS AND MAXWELL, JJ., CONCUR IN PART AND IN THE RESULT. IRVING AND BARNES, JJ., CONCUR IN RESULT ONLY.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    JACKSON COUNTY BOARD OF SUPERVISORS, Appellant v. Crystal HAYES, Carole Mize and Amber Hesler, Appellees.
    No. 2010-CA-00116-COA.
    Court of Appeals of Mississippi.
    April 12, 2011.

      Katherine B. Parker, attorney for appellant.
    Douglas Lamont Tynes Jr., attorney for appellees.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. In 2008, B & B Enterprises requested a change in the zoning of a parcel of land on Dantzler Road in Jackson County, Mississippi. B & B asked for the property to be rezoned from R-1A, single-family dwelling, to R-4, high-density residential. The Jackson County Planning Commission denied the request. B & B appealed the decision to the Jackson County Board of Supervisors. At the hearing before the Board, B & B downgraded its request and asked that the property be rezoned from R-1A to R-2, multi-family dwelling. The Board granted the request with a four-to-zero vote.

¶ 2. Crystal Hayes, Carole Mize, and Amber Hesler, residents of the surrounding area, appealed the decision to the Jackson County Circuit Court. Hayes, Mize, and Hesler asserted that the decision of the Board was not supported by substantial evidence and that concerned residents were excluded from the hearing. The Board denies that anyone was prevented from attending the hearing. The circuit court reversed the decision of the Board.

¶ 3. The Board now appeals, arguing that its decision to rezone the subject property was not arbitrary or capricious and was supported by substantial evidence.

STANDARD OF REVIEW

¶ 4. This Court will not disturb an administrative agency’s findings “unless the agency’s order 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights.” Johnson v. Miss. Employment Sec. Comm’n, 767 So.2d 1088, 1090 (¶ 7) (Miss.Ct.App.2000) (citing Sprouse v. Miss. Employment Sec. Comm’n, 639 So.2d 901, 902 (Miss.1994)).

DISCUSSION

¶ 5. According to the Jackson County Zoning Ordinances, an application for rezoning must show one of the following criteria by clear and convincing evidence: (1) “there was a mistake in the original zoning,” or (2) “[t]he character of the neighborhood has changed to such an extent to justify rezoning.” In addition to one of the above criteria, the applicant must show “that a public need exists for rezoning.” B & B’s request falls under the second criteria.

¶ 6. B & B sought for its three-acre property on Dantzler Road in the Latimer community to be rezoned to allow for duplexes. In support of its request for rezoning, B & B asserted: (1) there were numerous duplexes in the area; (2) the area had grown substantially; (3) there was a great influx of people moving to the area after Hurricane Katrina; and (4) a nearby road was widened to accommodate increased traffic flow. As to public need for a higher-density residential area, B & B cited to the increased need for multi-unit housing after Hurricane Katrina due to higher building costs, higher insurance costs, and the need for additional housing.

¶ 7. Duplexes have been constructed on nine lots on Dantzler Road. A special exception was granted for their construction; however, the property went into foreclosure after the duplexes were constructed. At the time of the hearing, the duplexes were vacant. A mobile-home park exists in the area; however, that area is zoned R-4. The mobile-home park is not directly adjacent to Dantzler Road. Also, there was testimony that the mobile-home park was set up as a temporary measure after Hurricane Katrina.

¶ 8. The surrounding property owners assert that the area has not changed to such an extent as to justify rezoning the area to R-2. They assert that the property is not in a densely populated area; the property is open, undeveloped land; and most of the neighboring property owners each own several acres of land. They also assert that road conditions are such that an increase in traffic would not be practical. Residents testified that parts of Dantzler Road were not regularly maintained by Jackson County, and the street was so narrow that it was difficult for two cars traveling in opposite directions to pass. The residents also expressed concerns about garbage collection and mail delivery. One resident testified that because of the nature of the street, all the residents’ garbage cans and mailboxes were placed in front of one house. The residents objected to the addition of multifamily dwellings in an area that was already congested.

¶ 9. In finding that the Board’s decision was arbitrary and capricious, the circuit court found that there was “no substantial evidence supporting a material change in the character of the neighborhood to justify the zoning change request on the property that is the subject of this cause.” We agree with the circuit court’s decision. In general, a municipal governing board’s decision to zone or rezone is a legislative function and is presumed to be valid. Barnes v. Bd. of Supervisors of DeSoto County, 553 So.2d 508, 510 (Miss.1989); Burdine v. City of Greenville, 755 So.2d 1154, 1156 (¶ 3) (Miss.Ct.App.1999). However, we cannot find evidence in the record to support the Board’s finding that the character of the neighborhood had changed such that rezoning was justified.

¶ 10. B & B’s argument to the Board centered around the changing needs of the area due to the impact of Hurricane Katrina. While there is no question that Hurricane Katrina has affected the public need of residents in the coastal area, we find that B & B failed to demonstrate a change in the Dantzler Road area and Latimer community. Before the issue of public need is reached, it must be proven that “[t]he character of the neighborhood has changed to such an extent to justify rezoning.” We find that the Board’s decision to rezone the property was arbitrary and capricious. The judgment of the circuit court reversing the Board’s decision is affirmed. This issue is without merit.

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

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

      . The area had been rezoned from R-l, a more restrictive single-family zoning district, to R-1A by B & B's request in 2006.


author: GRIFFIS, P.J.,

text:
    Darrel Dewayne EASLEY, Appellant v. STATE of Mississippi, Appellee. Darrel Dewayne Easley, Appellant v. State of Mississippi, Appellee.
    Nos. 2009-CP-01559-COA, 2010-CP-00507-COA.
    Court of Appeals of Mississippi.
    April 26, 2011.

      Darrel Dewayne Easley, Appellant, pro se.
    Before GRIFFIS, P.J., MYERS and ISHEE, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Darrel Dewayne Easley appeals the Calhoun County Circuit Court’s denial of his motion for post-conviction collateral relief. He claims that he was improperly sentenced as a habitual offender because: (1) his plea petition was changed to include the word “habitual” at some point after he had signed the petition; (2) the State failed to prove his prior convictions; and (3) his sentence is illegal. We find no error and affirm.

FACTS

¶ 2. Easley was indicted as a habitual offender on two counts of burglary of a dwelling pursuant to Mississippi Code Annotated section 97-17-23(1) (Rev.2006) and five counts of grand larceny pursuant to Mississippi Code Annotated section 97-17-41(1) (Supp.2010). The indictment alleged that Easley had two prior felony convictions in Arkansas.

¶ 3. On August 8, 2006, Easley entered a guilty plea to all of the charges in the indictment. His sentencing order was filed in the circuit court on September 9, 2006. He was sentenced to twenty years in the custody of the Mississippi Department of Corrections (“MDOC”) with twelve years suspended and eight years to serve on each of the two burglary counts. He was sentenced to ten years in the custody of the MDOC with two years suspended and eight years to serve on each of the five counts of grand larceny. His sentences under each count are to run concurrently. Easley was also placed on five years of post-release supervision.

¶ 4. On September 9, 2009, Easley, represented by counsel, filed his motion for post-conviction collateral relief. In that motion, Easley stated that, at some point after he had entered his guilty plea, “the Petition To Enter Plea of Guilty was altered by the addition of the word ‘habitual.’ ” The only relief requested in the motion was that the habitual-offender status be removed from Easley’s sentence and the records of the MDOC.

¶ 5. The circuit court found that the transcript of the guilty-plea proceedings made clear that Easley had knowingly pleaded guilty as a habitual offender. Easley’s motion was denied on September 14, 2009.

¶ 6. Easley filed his second motion for post-conviction collateral relief on November 10, 2009. Easley stated that his first motion had been filed by his attorney on his attorney’s own initiative. Easley further asserted that the first motion failed to state a claim that he had received an illegal sentence. The circuit court found that Easley’s second motion was both time-barred and barred as a successive writ. The motion was denied on February 25, 2010.

¶ 7. Easley now appeals the denial of both motions for post-conviction relief. The two appeals have been consolidated for our review.

STANDARD OF REVIEW

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

ANALYSIS

1. Addition of the Word “Habitual” to Easley’s Plea Petition-

¶ 9. Easley argues that he was improperly sentenced as a habitual offender. Easley makes it quite clear that he does not claim that he involuntarily pleaded guilty. Instead, he claims that he did not voluntarily enter a guilty plea as a habitual offender. Upon our review of the record in this case, we are unconvinced by this argument.

¶ 10. First, Easley argues that he was improperly sentenced as a habitual offender because the word “habitual” did not appear in the plea agreement portion of his petition to enter a guilty plea at the time he signed the petition. Easley contends that this word was added by someone unknown to him at some point after he had signed the petition. He cites the following exchange during the plea hearing in support of this argument:

BY THE COURT: I had somewhere that this was habitual. It’s not in the plea petition.
[COUNSEL FOR DEFENDANT]: It’s in the indictment.
BY THE COURT: Is it habitual years you are recommending?
([Counsel for the State] nodded his head up and down.)
[COUNSEL FOR DEFENDANT]: That’s what the agreement was.
BY THE COURT: ... As stated earlier, these are all habitual cases. You pled guilty as an [sic] habitual offender, and the Court sentences you as an [sic] habitual offender to the time previously imposed.

(Emphasis added). However, the circuit court’s statement that Easley’s habitual status was not in the plea petition does not prove that Easley was unaware that he would be sentenced as a habitual offender.

¶ 11. Under each of the seven counts in Easley’s indictment, Easley was charged as a habitual offender. The language of the indictment set forth the details of Eas-ley’s two prior felony convictions, which occurred in Arkansas, and it specifically cited Mississippi Code Annotated section 99-19-81 (Rev.2007) — the statutory basis for charging Easley as a habitual offender.

¶ 12. In his signed plea petition, Easley admits his guilt as to all the charges in the indictment, which clearly charged him as a habitual offender. Easley’s plea petition further states: “My lawyer has advised me of the elements of the charge to which I am pleading. I submit that all the elements are proven by the true facts. Therefore, I am guilty and ask the court to accept my plea of guilty.”

¶ 13. Furthermore, the following exchange occurred between the circuit judge and Easley during the plea hearing:

Q: If the Court accepts your guilty plea here today, the crime that you are pleading guilty to will go on your record as a felony or 7th felony. You need to be aware that we have a law in Mississippi call[ed] the Habitual Offender’s Act. It’s also referred to [as] the three-strikes law or the three-time loser law. There are similar laws on the books in many other states and in other jurisdictions.
Under this particular law if you are charged with a third or subsequent felony in your lifetime and if you are indicted as an [sic] habitual offender, if you are then convicted and indicted as [a] habitual offender, you would be sentenced to serve every day of your sentence without the possibility of early release, probation, or parole; and if one or more of those felonies is a crime of violence and you are indicted and convicted as an [sic] habitual offender, you would be sentenced to serve the remainder of your li[f]e in the penitentiary without the possibil-it[y][of] early release, probation, or parole.
And, furthermore, in your case you were indicted as an [sic] habitual offender and your plea, according to your documentation, is being offered as an [sic] habitual offender, which means that you will serve day for day any sentence the Court imposes on you here today. Do you understand this?
A: Yes, sir.

(Emphasis added). Thus, the record refutes Easley’s current assertion that he was unaware he would be sentenced as a habitual offender. Easley was made aware of the consequences of pleading guilty as a habitual offender. Easley accepted those consequences and voluntarily entered his guilty pleas. Accordingly, this issue has no merit.

2. State’s Failure to Prove Easley’s Prior Convictions

¶ 14. Easley further claims that he was improperly sentenced as a habitual offender because the State did not put on proof of his prior convictions during the plea hearing. We note that Easley failed to raise this issue until his second motion, which is both time-barred under Mississippi Code Annotated section 99-39-5(2) (Supp.2010) and barred as a successive writ pursuant to Mississippi Code Annotated section 99-39-23(6) (Supp.2010). As such, this issue is procedurally barred from our review. Nevertheless, we find Easley’s claim is without merit.

¶ 15. To be sentenced as a habitual offender, “[a]ll that is required is that the accused be properly indicted as an [sic] habitual offender, that the prosecution prove the prior offenses by competent evidence, and that the defendant be given a reasonable opportunity to challenge the prosecution’s proof.” Keyes v. State, 549 So.2d 949, 951 (Miss.1989) (citations omitted). However, the requirement that the State prove the existence of the prior convictions beyond a reasonable doubt was negated by Easley’s decision to enter a guilty plea. “A guilty plea operates to waive the defendant’s ... right that the prosecution prove each element of the offense beyond a reasonable doubt.” Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989).

¶ 16. Easley was properly indicted as a habitual offender. In his signed plea petition, he admitted that the charges in the indictment were correct, and he admitted that he was convicted of “burglary in Arkansas, Tennessee, and Mississippi.” “Admissions 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) (citing Jones v. State, 747 So.2d 249, 252 (¶13) (Miss.1999)). Thus, having admitted his prior felonies as set forth in the indictment and having entered a valid guilty plea, Easley was properly sentenced as a habitual offender.

3. Illegal Sentence

¶ 17. In an attempt to overcome the procedural bars, Easley contends that, if he was properly sentenced as a habitual offender, the length of his sentence is illegal. Specifically, Easley contends that, because section 99-19-81 prohibits the suspension of any portion of a habitual offender’s sentence, and because part of his sentence was suspended, the habitual-offender portion of his sentence should be removed.

¶ 18. Mississippi Code Annotated section 99-19-81 states the following:

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

(Emphasis added).

¶ 19. However, this Court has clearly held that “a defendant should not be allowed to reap the benefits of an illegal sentence, which is lighter than what the legal sentence would have been, and then turn around and attack the legality of the illegal, lighter sentence when it serves his interest to do so.” Watts v. State, 1 So.3d 886, 890 (¶ 10) (Miss.Ct.App.2008) (citations omitted). Thus, Easley cannot argue that his more lenient sentence is illegal in order to circumvent procedural bars to our review of his second motion.

¶20. The record clearly shows that Easley was aware he would be sentenced as a habitual offender. Accordingly, we find that the circuit court correctly denied Easley’s motions for post-conviction collateral relief.

¶ 21. THE JUDGMENTS OF THE CIRCUIT COURT OF CALHOUN COUNTY DENYING THE MOTIONS FOR POST-CONVICTION COLLATERAL RELIEF ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CALHOUN COUNTY.

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

      . Easley's motion requested "such other relief as the Court deems to be proper." However, no other specific issues were raised by Easley.


author: IRVING, P.J.,

text:
    Martha J. STANCIL, Appellant v. James Terry FARRIS, Appellee.
    No. 2009-CA-01962-COA.
    Court of Appeals of Mississippi.
    May 3, 2011.

      Michael D. Cooke, Iuka, attorney for appellant.
    R. Shane McLaughlin, D. Kirk Tharp, attorneys for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises out of a land dispute between Martha J. Stancil and James Terry Farris, who own adjacent properties in Itawamba County, Mississippi. Farris had previously been granted an easement to pass over a portion of Stan-cil’s property; in 2008, Stancil filed a complaint alleging that Farris had abandoned the easement. Farris filed an answer and counter-complaint, wherein he alleged that he had not abandoned the easement and that he owned a small portion of Stancil’s property due to adverse possession. In November 2009, the Itawamba County Chancery Court held a hearing regarding the easement and Farris’s adverse-possession claim. The chancellor ruled that the easement had not been abandoned and found that Farris had successfully established his claim of adverse possession. Feeling aggrieved at the chancellor’s judgment, Stancil appeals and asserts that the easement was abandoned and that Farris failed to present sufficient evidence to support a finding of adverse possession.

¶2. Finding no error, we affirm the judgment of the chancery court.

FACTS

¶ 3. Farris has owned the property at issue in this case since 1997. In 2003, the property that Stancil currently owns was owned by her mother, Sybil Prestage Wilburn. In 2003, Wilburn granted a ten-foot easement to Farris so that he could access the southern portion of his property.

¶ 4. In 2008, Stancil and her family members erected yellow metal posts at the end of the easement and constructed a new fence along the easement. Part of this fence was placed along a piece of property referred to throughout the record as the triangular piece of property. Stancil’s son, Destry Stancil, testified that he built the posts and that he placed them over ten feet apart. At trial, Farris testified that the posts prevented him from fully using his easement, as the posts were too close together for him to get all of his equipment through them. Farris also disagreed with the placement of portions of the new fence. There is no question that relations between Stancil and Farris became increasingly inimical after the placement of the metal posts and the new fence.

¶ 5. As a result, in November 2008, Stan-cil filed a motion in the chancery court, alleging that Farris had abandoned his easement and that it should be rescinded. Farris filed an answer and counterclaim, wherein he denied abandonment of the easement and asserted ownership by adverse possession of the triangular piece of Stancil’s property.

¶ 6. At trial, Stancil, Destry, and Allen Stancil, Stancil’s ex-husband, all testified on Stancil’s behalf. They testified that they had never observed Farris using his easement. Stancil testified that the easement was only granted in 2003 because of flooding that prevented Farris from traversing through to the southern portion of his property. Stancil indicated that the flooding has since been resolved by improvements to her property. Destry, who lives near the easement and the disputed land, testified that he has never seen Far-ris use the easement. By contrast, Farris testified that he uses the easement several times a year to access his property. Randy Phillip Boyd, a registered professional land surveyor and registered forester, was hired by Stancil to conduct a survey on the property line that separated Stancil’s property from Farris’s. His survey was admitted into evidence as exhibit 4. He testified that the new fence erected by Stancil was essentially in the same location as an old fence “except for a portion along the south right-of-way of Thrasher Road. The old fence turned about forty feet before reaching the right-of-way.”

¶ 7. Regarding the triangular property, Destry testified that he regularly mowed and maintained the property and that Far-ris never did anything to care for the property. Farris and his father, Terry, both testified that Farris regularly uses the easement to access the southern portion of his pi’operty. Farris testified that he bush-hogs the triangular piece of property every year or so and has always considered that land to be part of his property. Farris stated that he purchased his property from Dr. Tom McDonald, who walked the metes and bounds of the property with him in 1997 and indicated that the triangular piece of property was part of Farris’s land. Terry stated that he has lived in the area for many years and that the triangular piece of property has always been understood to be part of the land that Farris currently owns, which was known for many years as the Thrasher place.

¶ 8. In addition to entering a written order, the chancellor provided extensive findings from the bench, which we find helpful to quote:

This matter is before the Court on two basic issues that were submitted to me this morning, or this afternoon really, really just before lunch, and the issue of whether or not the easement has been abandoned as noted here and the issue of the triangle, for lack of a better description .... The Court will accordingly refer to those as such.
I’ll deal with the matter of the easement first.
The Court has heard the testimony of the parties here today, including, first of all, findings of fact, Mr. Boyd, who testified that the easement about where it was running and what the south right-of-way line of Thrasher Road encompassed and so forth. He testified basically that the new fence was built essentially on the line as established by this Court’s decree earlier even though it varied hither and yond a few feet back and forth.
The next testimony was that of Ms. Stancil. Basically, her testimony was essentially that there never was — never a line between them and the Thrashers basically established as far as the triangle was concerned.... No condition attached to the easement as to the pond. This Court observed from her testimony here that I could find she testified about — she testified, of course, that the easement runs east of the fence line on the Stancil property through a point at the end of the triangle — I mean, a tree at the point of a triangle on cross-examination was sought to be established by [Farris’s attorney]. There were two sets of posts that had been set up by the Stancils as noted in succeeding testimony. She stated that she has a deed to the triangle. I have no evidence per se of the establishment of that line as such before me. Since 1997, basically the testimony was that on cross-examination, that Mr. Farris had owned what was known as the Old Thrasher place. On redirect examination, she indicated the crux of it, as I see it, and she said the red line and the triangle area — the southern red line in the triangle area, “the husband built an old fence on it in the 70s, I think,” as to the time at least. They put another fence on the north line of the triangle. And testimony was that she “thought the land was ours.”
Mr. Allen Stancil then testified. He’s the ex-husband of Ms. Stancil, the Plaintiff in this case. He testified among other things that they had cut pine trees along the triangle area for Ms. Thrasher to observe so she could see down the road. He put back up the fence on the south line of the triangle in 85 or so, as he indicated. He stated that he had bushhogged it but not since the 1980s. He stated that he maintained the land in the triangle to the left. He’s been around the property since 1975 and he testified he used to ride on the Farris property, used to be a road back into his property. Moved the fence — this was on cross-examination, somewhere around the late 70s. He built the south line of the fence in the mid 70s or 80s. Exhibit 14 indicated that he put the [new] fence up last summer. This fence was moved 61 feet to the 200-foot triangle northerly....
Mr. Destry Stancil, who lived on the property off and on since 1990, moved around 2006, two and a [half] years ago. He and his dad put up the new fence on the road. Never saw Farris do anything to maintain the triangle, nor McDonald, Dr. McDonald who never claimed the triangle, he claimed.... He contended that Mr. Farris had another way to get back to Farris’[s] land but there was no water to interfere now.... Farris owns this property so he could have access. The posts actually were put there by them to interfere, I think, with that access. But in any event, they erected these posts on or about June of 2008. The defense came forth with J.T. Farris, the father of the Defendant, Counter-Plaintiff in this case. He has been a supervisor for some 12 years in this area. He was familiar with the property, familiar with the area. He said Terry kept the triangle area bulldozed. It was — Terry bought it in October, I believe, of 97. He treated it as a part of the yard for the Thrasher place. He understood it to be so. He saw Terry maintain the triangle. He saw nobody else maintain the triangle. He lived in the area some 40 years and he noted, of course, ... the yellow posts on the east side of the easement on the north end and the yellow posts on the west side of the easement on the south end. The posts were put parallel. People lived for 30 years, used this as a yard, he testified. That’s the triangle.
Moving on to the rest of this testimony, we get down to the basic point here of the fact that the old fence line on the south end of the triangle [sic]. That line intersects at the old pine tree from the north — toward the northwest, the fence going in that direction. This was Mr. Terry Farris himself. The posts that were erected by the Stancils stopped him from mowing some two and a half years ago. There was the issues [sic] of the light pole and their insisting that it be moved by the electric power company. They moved the fence back 41 [sic] feet. That is the new fence they constructed on the south line of the triangle and put it at the north end and south end of the easement except on the south portion as required by the decree itself. ... This was the old Mat Thrasher home place, he indicated. Dr. McDonald bought the place in 1969 or 70. [Farris] walked this whole place over with [Dr. McDonald] before he bought it from McDonald. [Farris] purchased it in about October of 1997 and has maintained it ever since. There’s been no interruption of his use of the triangle since that time. He uses the easement some four or five times a year as the most efficient route to go down the rest of his property. And basically, this was a crude summation, I’ll admit, of the testimony in this case.
Now, let’s get back to the easement itself.
⅜ * *
The Court here has observed the exhibits that have been reflected in evidence here.... These exhibits clearly indicate to this Court that there is no intent by Mr. Farris to abandon this easement. I point out that this Court granted him that easement by decree when it was established by the decree of this Court by agreement of the parties back on September 18, 2003. That easement was established. He didn’t have to come back here today and establish it. [The plaintiffs attorney] and them have challenged very ably the fact that it was actually abandoned.... I don’t find any evidence here today that Mr. Farris has indicated his intention to repudiate ownership of this easement or to abandon it. This case [Stone ] v. Lea Brent Family Investments L.P., [998 So.2d 448 (Miss.Ct.App.2008) ] pointed out, abandonment is a question of fact that requires non-use for an extended period of time as well as the intent to abandon. There are two elements to it. It cites the case of Bivens v. Mobley, 72[4] So.2d 458 [ (Miss.Ct.App.1998) ], decided by the Mississippi Court of Appeals in 1998. Evidence of abandonment must be full and clear ... there must be some clear unmistakable affirmative act or series of acts indicating a purpose to repudiate ownership. The Court does not find that that existed here on the part of Mr. Farris.
The Court went on to quote the Bivens case and stated protracted non-use for an extended period of time manifests] a presumption of abandonment. [Id. at 461 (¶ 11) ]. But the Court here does not find any such presumption to apply here because there was no protracted non-use for any extended period of time. And the Court in that case went on to so hold as I’ve indicated.
I have not overlooked the memo that [the plaintiffs attorney] submitted in connection with this case wherein he cited the Court of Appeals in Swan v. Hill, 855 So.2d 4[59] [(Miss.Ct.App. 2003) ], a 2003 decision of the Court of Appeals. He said when a trial court determines whether an alternative route is reasonable for the purpose of a claim for easement by necessity, it must look to determine whether [an] alternative route would involve disproportion of expense and inconvenience to the individual. The Court should not award an easement by necessity when an alternate route exists but it is longer and more inconvenient. Well, first of all, this Court has already ordered this easement, so that’s not even an issue before this Court. Now, I realize an alternative route that’s been emphasized here by the testimony would say and show that there was some other way that Mr. Farris could get to his property by non-use of this particular easement that was granted to him by this Court. This Court is not going to disturb that order.
Now, we get down to the matter of the triangle. This, of course, is where the bur comes under the saddle. The testimony to some degree is conflicting here, but this Court cited at the beginning that this Court is one who weighs the credibility of the witnesses, the demean- or of the witnesses. I’m going to be frank with you, I was impressed by J.T. Farris and by Terry Farris and the type of responses and answers that they gave in this case. I was impressed by their credibility in this case....
In the Brent case that I cited earlier, gives to us [sic] as do many other cases the elements of adverse possession. And they cited those quite extensively in that Brent case, which I noted was decided, as I said, December 16th of 2008. There was the issue of adverse possession that’s been raised by both parties as [to] the triangle in this case.
Those elements are simply this: Number one, under claim of ownership. The testimony is here that Terry Farris contends he owns this property. On the conflicting side of it, Ms. Stancil says that they own it by deed. I don’t know that that deed — I’ve not seen a deed that necessarily includes that description of this particular triangle. And consequently, the claim of ownership was obviously made earlier by Dr. McDonald when he bought this property. It was subsequently sold to Mr. Farris, Terry Farris, in 1997, and he has claimed it under ownership for more than 10 years, which is the rule under Section 15-1-13 of the Mississippi Code as to adverse possession, which simply reads as follows: 10 years actual adverse possession by any person claiming to be the owner for that time of any land, uninterrupted is continued for 10 years by occupancy, descent, conveyance, or otherwise, and whatever way such occupancy may be commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, citing the case of Buford v. Logue, 832 So.2d 594 [ (Miss.Ct.App.2002) ], a 2002 case of the Mississippi Court of Appeals. And there they set out these elements as did the Bivens case.
The second element is that of actual or hostile possession. The testimony here of Mr. Farris is that he mowed this property. He has continuously held it out to the world as being his own since 1997. That was some, what, 12 years ago. The actual and hostile use of it, actual possession is not within itself [enough] to give adverse possession, but it must have an effective control over a definite area of land evidence by things visible to the eye or perceptible to the senses....
Here there was the observance and the observation of the old fence line along the south line of this red property, the triangle. That old fence line going down to the old pine tree and then indicating the end of that and going back to the northwesterly direction was something of observation to this Court indicating a definite area of land. That old fence line historically and traditionally and legally has been considered the line in case after case that I won’t go into in this decision here today. And accordingly, this Court finds that that element is met.
The third element in the adverse possession is open, notorious!,] and visible. It was clearly open here[,] that even the Stancils admitted that this property was cut down or some trees were cut along this so that Ms. Thrasher could see the road, down the road. Well, you say that establishes adverse possession in them[,] but I was given no definitive area as such for that. Nevertheless, here comes Mr. Farris[,] and he buys this land and gets it from Dr. McDonald, who had owned it some 12 or 14 years or more, and it was open, notorious!,] and visible to him and to Dr. McDonald. He stated they walked the lines around this property before he ever bought it. And this is one of the old transitional [sic] ways of determining ownership or boundaries or what they might observe there. And it was open, notorious!,] and visible in so far as this Court is concerned.
The next part of this was exclusive. There’s some conflicting testimony here as to whether this was totally exclusive by Mr. Farris, but there is no concluding [sic] testimony here on the part of any of the witnesses that I’ve heard here. To say the element of exclusivity [sic], the claimant’s conduct must afford an unequivocal indication that he is exercising dominion of a sole owner. The case of Keener Properties [, LLC] v. Wilson, 912 So.2d 954 [ (Miss.2005) ], a 2005 decision of the Court of Appeals [sic]. Exclusive use does not mean that no one else uses the land or easement. Moran v. Sims, 873 So.2d 1067 [ (Miss.Ct.App.2004) ] and on and on, we could go. The Court finds that the substantial evidence in this case, the most credible evidence that I’ve seen, admitted some contradictions but that showing that exclusive possession of that triangle has been that for a period of 10 years or more on the part of Mr. Farris. The next element of the adverse possession is peaceful. Peaceful is defined as ‘marked by[,] conducive to[,] or enjoying peace, quite [sie][,] or calm,’ citing the case of Biddix v. McConnell, 911 So.2d 468, [477 (¶25) (Miss.2005)] and that even quoted Webster’s Third International Dictionary. And here we find that this area of this triangle has been peaceably observed until we go out there and Mr. Farris comes and finds them putting up a fence, moving it up 61 feet from the old fence line. And this Court — this indicates an interruption or attempted interruption but not a conclusive one and not a valid one. Therefore, the Court finds that the peaceful possession by Mr. Farris is there as to this triangle.
The next element is continuous and uninterrupted for a period of 10 years. I’ve already touched on that. But this clearly indicates that when this is found to exist for some 10 years, as is the case here since 1997, that it is continuous and except for some minor you might say interruptions about the light pole and the fence, the posts being put up, it was uninterrupted for 10 years.
Accordingly, this Court finds that the triangle ... has become the property of Mr. Farris by adverse possession and the Court so finds and so holds here today.

¶ 9. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 10. We “will not disturb a chancellor’s findings if they are supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard.” Stone, 998 So.2d at 452 (¶ 13). However, we review questions of law under a de novo standard. Id.

1. Easement

¶ 11. The question of whether Farris abandoned the easement was entirely one of fact. As the chancellor properly noted, he was the ultimate fact-finder in this case. Farris and Terry testified that he still used his easement four or five times a year. Furthermore, there was no written provision in the agreed order granting the easement to rescind the easement if the flooding problems on the land were corrected. In fact, the easement did not even mention the flooding problems that were alleged at the 2009 trial. Under these facts, we cannot find that the chancellor abused his discretion or was manifestly wrong.

¶ 12. This contention of error is without merit.

2. Adverse Possession

¶ 13. Stancil primarily argues that the chancellor’s judgment should be reversed as to the finding of adverse possession because advérse possession requires a finding by clear-and-convincing evidence. As the chancellor noted from the bench, the testimony regarding the triangular piece of land was extremely contradictory. Essentially, Stancil and her witnesses testified that Farris never cared for the triangular property and that she owned the land by deed. Farris and his father testified that Farris regularly cleared the same land. According to Farris, the land had been presented as part of his property when he purchased it; Terry testified that the triangular portion had always been understood to be part of the Thrasher property, which is what Farris currently owns.

¶ 14. It is impossible to deny that there was contradictory evidence in this case. However, as the chancellor stated from the bench, he simply found Farris and Terry far more credible as to the ownership of the triangular property. The chancellor believed that Farris had proven adverse possession by clear-and-convincing evidence. We decline to reverse that judgment simply because Stancil and her witnesses testified contrarily. If clear and convincing evidence could never be shown in the presence of contradictory testimonies, virtually no case requiring a showing by clear-and-convincing evidence could be proven. Such is clearly not the case.

¶ 15. Farris and his father presented sufficient evidence to prove adverse possession; according to their testimonies, Farris’s adverse possession of the property was complete in 2007, as he purchased his property in 1997 and exerted an ownership interest in the triangular piece of land from that time. There is nothing to show that the chancellor abused his discretion or that his finding — that Farris successfully proved adverse possession of the triangular piece of property — was clearly erroneous. This contention of error is without merit.

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

LEE, C.J., GRIFFIS, P.J., MYERS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: MAXWELL, J.,

text:
    Robert E. HILL, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00514-COA.
    Court of Appeals of Mississippi.
    May 10, 2011.

      Robert E. Hill, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, Scott Stuart, Jackson, attorneys for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. On July 30, 2008, Robert Hill pled guilty in the Lauderdale County Circuit Court to first-degree arson. He was sentenced pursuant to a plea agreement with the State to eight years without eligibility for parole or probation. On November 12, 2009, Hill filed a motion for post-conviction relief (PCR), which the circuit court denied. On appeal, he argues: (1) his trial counsel was ineffective for not raising his right to a speedy trial, and (2) his guilty plea was involuntary because he was not advised of the essential elements of the crime of first-degree arson.

¶ 2. Because Hill waived his right to a speedy trial by pleading guilty, and he fails to show that any conduct by his attorney rendered that decision involuntary, we find that he has failed to show his attorney was ineffective. Because the record clearly reflects that the elements of first-degree arson were explained to Hill, we reject his argument that his plea was involuntary. Therefore, we affirm.

STANDARD OF REVIEW

¶ 3. In considering the denial of a PCR motion, we review the trial court’s findings of fact for clear error. Rowland v. State, 42 So.3d 503, 506 (¶8) (Miss. 2010). When reviewing questions of law, our standard is de novo. Id. The trial court may summarily dismiss a PCR motion 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 reliefi.]” Miss.Code Ann. § 99-39-11(2) (Supp.2010). See also State v. Santiago, 773 So.2d 921, 923-24 (¶ 11) (Miss.2000). We will affirm the summary 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 v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009).

' DISCUSSION

I. Ineffective Assistance of Counsel

¶ 4. Hill contends his counsel was ineffective for failure to raise his constitutional right to a speedy trial. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (establishing a four-part balancing test to determine whether a Sixth Amendment speedy-trial violation occurred). A period of 367 days passed between Hill’s arrest and his guilty plea.

¶ 5. To show ineffective assistance of counsel, Hill must meet Strickland’s two-part test: (1) his attorney’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 qualify as deficient, the attorney’s performance 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. In the context of guilty pleas, the Fifth Circuit Court of Appeals has explained:

It is the lawyer’s duty to ascertain if the plea is entered voluntarily and knowingly. He must actually and substantially assist his client in deciding whether to plead guilty. It is his job to provide the accused an understanding of the law in relation to the facts. The advice he gives need not be perfect, but it must be reasonably competent. His advice should permit the accused to make an informed and conscious choice.

Childress v. Johnson, 103 F.3d 1221, 1227 (5th Cir.1997). For prejudice to exist, there must be a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. 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 v. State, 9 So.3d 368, 375 (¶ 22) (Miss.2009).

¶ 6. The Mississippi Supreme Court has held that where a defendant voluntarily pleads guilty to an offense, he waives all non-jurisdictional rights incident to trial, including the constitutional right to a speedy trial. Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991). Federal courts have uniformly agreed with this rule. See Thye v. United States, 96 F.3d 635, 637 (2d Cir.1996); Cox v. Lockhart, 970 F.2d 448, 453 (8th Cir.1992); Tiemens v. United States, 724 F.2d 928, 929 (11th Cir.1984); United States v. Gaertner, 583 F.2d 308, 311 (7th Cir.1978); Karcher v. Wainwright, 476 F.2d 179, 180 (5th Cir.1973); United States v. Cook, 463 F.2d 123, 125 n. 6 (5th Cir.1972). 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.” United States v. Cavitt, 550 F.3d 430, 441 (5th Cir.2008) (quoting Smith v. Estelle, 711 F.2d 677, 682 (5th Cir.1983)) (internal quotations omitted).

¶ 7. In keeping with this approach, our courts have found ineffective-assistance claims based on the failure to raise speedy-trial issues waived where the plea was voluntary and intelligent, but they have found such claims not waived to the extent the plea was rendered involuntary by ineffective assistance. Compare Anderson, 577 So.2d at 391-92 (ineffective-assistance claim waived where there is no issue concerning the voluntariness of the guilty plea); Madden v. State, 991 So.2d 1231, 1237 (¶¶ 24-26) (Miss.Ct.App.2008) (same); Goudy v. State, 996 So.2d 185, 188 (¶ 15) (Miss.Ct.App.2008) (same); with Roland v. State, 666 So.2d 747, 749-50 (Miss.1995) (claim not waived to the extent counsel’s ineffective assistance renders guilty plea involuntary); Mason v. State, 42 So.3d 629, 633 (¶ 10) (Miss.Ct.App.2010) (a guilty plea does not waive the right to effective counsel).

¶ 8. In Madden, this court held that an ineffective-assistanee-of-counsel claim based on failure to pursue speedy-trial issues was waived. Madden, 991 So.2d at 1237 (¶¶ 24-26). The petitioner, Madden, claimed his counsel was ineffective for failing to raise his right to a speedy trial during the 1,030-day delay from his arrest until his guilty plea. Id. at 1237 (¶ 24). Because Madden’s plea petition stated that he understood he was waiving his right to a speedy trial, we found the issue waived. Id. at (¶¶ 25-26). Similarly, in Goudy, we concluded the PCR movant had waived his right to claim his counsel was ineffective for failing to pursue a speedy trial where the movant’s signed plea agreement specifically waived this right. Goudy, 996 So.2d at 188 (¶ 15). Both of these decisions cited Anderson where the supreme court found a PCR petitioner had waived his right to complain about a speedy-trial violation. Anderson, 577 So.2d at 391-92.

¶ 9. In Hill’s petition to enter a guilty plea, he acknowledged by writing his initials that he understood that he could plead not guilty. The petition also reflected that he understood that by pleading guilty he was relinquishing various constitutional rights, including the right to a speedy and public trial by jury. Hill agreed to waive these rights.

¶ 10. During his plea hearing, the court specifically asked Hill if he had read the section of his petition pertaining to his constitutional rights that he was waiving. Hill answered that he had. He agreed his attorney had represented him well, and no one had coerced him into pleading guilty. Hill further acknowledged he understood his constitutional rights, and his attorney had explained any questions he had concerning them. After waiving these rights, Hill maintained that he wished to plead guilty.

¶ 11. A guilty plea is binding where it is entered voluntarily, knowingly, and intelligently. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). A plea will be deemed to meet this standard where “the defendant is advised concerning the nature of the charge against him and the consequences of the plea.” Mason, 42 So.3d at 632 (¶ 7). Specifically, the defendant must be advised that his guilty plea waives multiple constitutional rights. Hannah v. State, 943 So.2d 20, 25 (¶ 12) (Miss.2006). The PCR movant has the burden to show his plea was not voluntary. Id. at (¶ 11).

¶ 12. Our supreme court has explained that in assessing the voluntariness of a guilty plea:

[T]he thoroughness with which [the defendant] was interrogated by the lower court at the time his plea was tendered is the most significant evidence of all. For, without regard to the advice or instructions [the defendant] may have been given by his attorney, the lower court’s questioning and explanations to [him] of his rights and of the consequences of his plea were sufficient to render the plea voluntary.

Gardner v. State, 531 So.2d 805, 809-10 (Miss.1988). Additionally, the supreme court has held that “[s]olemn declarations in open court carry a strong presumption of verity.” Baker v. State, 358 So.2d 401, 403 (Miss.1978).

¶ 13. Hill provides no facts or evidence showing why his attorney’s performance rendered his guilty plea unintelligent, other than asserting that the passage of 367 days between his arrest and his guilty plea entitles him to relief. We find this bare allegation insufficient to show his guilty plea was not intelligent or that his counsel rendered ineffective assistance. Hill must show that some error by his counsel prevented him from understanding his right to a speedy trial, which by all indications, he voluntarily waived. His failure to show any unreasonable mistake by his counsel is fatal to his ineffective-assistance-of-counsel claim. Though we find no indication of any error by Hill’s attorney, we further note that the circuit judge ensured that Hill understood his constitutional right to a speedy trial and wished to waive it by pleading guilty.

¶ 14. Hill relies on Robinson to support his claim of ineffective assistance. Robinson v. State, 920 So.2d 1009, 1012-14 (¶¶ 11-18) (Miss.Ct.App.2003) (remanding for an evidentiary hearing on the issue of ineffective assistance of counsel for failure to seek dismissal on speedy-trial grounds). The Office of the Attorney General urges us to overrule Robinson as inconsistent with other Mississippi case law. The Robinson court noted:

The State asserts that Robinson’s [ (the defendant) ] voluntary guilty plea waived his right to raise a speedy trial violation. The State is correct. However, Robinson raises a speedy trial violation in order to establish that he received ineffective assistance of counsel. We review the argument because an ineffective assistance of counsel claim is cognizable on post-conviction relief from a voluntary guilty plea.

Id. at 1012 (¶ 11) (emphasis added). If not for the word “voluntary” in the last sentence of this quote, this rule from Robinson would be accurate. This is so because a cognizable ineffective-assistance-of-counsel claim exists where the guilty plea is rendered involuntary by counsel’s conduct. See, e.g., Cavitt, 550 F.3d at 441. To the extent Robinson holds that an ineffective-assistance-of-counsel claim may be pursued following a voluntary guilty plea, we limit its application.

¶ 15. We also clarify that the two supreme court cases cited for the above quote from Robinson do not stand for the notion that a PCR movant may — from a voluntary guilty plea — contest his counsel’s effectiveness for not raising his right to a speedy trial. See Hymes v. State, 703 So.2d 258, 260-61 (¶¶ 11-14) (Miss.1997); Roland, 666 So.2d at 749. Roland simply suggests that an ineffective-assistance-of-eounsel claim can arise following a guilty plea to the extent the plea was involuntary because of counsel’s conduct. Roland, 666 So.2d at 749-50. Given that the defendant’s plea in Roland was knowing, voluntary, and intelligent, the supreme court found no merit to the ineffective-assistance claim. Id. at 750. In Hymes, the supreme court reversed and remanded for an evidentiary hearing on the issue of ineffective assistance of counsel, which had been alleged on a number of grounds. Hymes, 703 So.2d at 260-61 (¶¶ 10-16). The court did not hold that an ineffective-assistance claim may arise from a voluntary guilty plea.

¶ 16. We conclude by finding Hill has not made the required showing that his attorney’s conduct rendered his guilty plea involuntary. Thus, he cannot prevail on his ineffective-assistance-of-counsel claim.

II. Voluntariness of Guilty Plea

¶ 17. Hill finally argues that his guilty plea is involuntary because he was not specifically advised by the circuit judge of the elements of first-degree arson. However, Hill did not raise this issue with any specificity in his PCR motion, which is a procedural bar. Hamilton v. State, 44 So.3d 1060, 1065 (¶ 15) (Miss.Ct.App.2010) (Ponder v. State, 335 So.2d 885, 886 (Miss.1976)). Still we will address the merits of his claim.

¶ 18. Hill cites our decision in Jones v. State, 936 So.2d 993 (Miss.Ct.App.2006). In Jones, we reversed a trial court’s denial of a PCR motion in which the defendant claimed his guilty plea was involuntary because he was not informed of the elements of the offense. Id. at 994 (¶ 3). We recently explained the proper application of Jones and need not repeat that discussion here. See Simoneaux v. State, 29 So.3d 26, 34 (¶¶ 25-29) (Miss.Ct.App.2009). It suffices to say that Jones went no further than holding that “boilerplate language in a plea petition” cannot in itself show a defendant understood the nature and elements of the crime to which he is pleading guilty. Simoneaux, 29 So.3d at 34 (¶¶ 25-26).

¶ 19. And here, Hill’s plea petition contains more than mere boilerplate language that he had spoken with his attorney about the nature of the charge against him. In Hill’s petition, responding to a question about the basis of his guilty plea, it. is handwritten that: “On July 28, 2007[,] I feloniously [and] maliciously set fire to [and] burned the dwelling house of Jeffery Hill in Lauderdale County, Mississippi.” See Miss.Code Ann. § 97-17-1(1) (Rev. 2006). Later at his plea hearing, Hill swore he was pleading guilty with a full understanding of the matters set forth in the indictment. He also acknowledged his lawyer had advised him of what the State was required to prove at trial to a jury beyond a reasonable doubt. Hill agreed that he understood “those essential elements.”

¶ 20. A trial court need not explain the elements of the offense to the defendant. Bradshaw v. Stumpf, 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005). “Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel.” Id.

Any person who willfully and maliciously sets fire to or burns ... any dwelling house, whether occupied, unoccupied or vacant ... shall be guilty of arson in the first degree[.]

¶ 21. The trial court ensured that Hill’s attorney had explained the elements of the offense and that Hill understood the nature of the charges. We find Hill’s bare assertions in his brief cannot overcome the strong presumption that his sworn statements in open court were true. And though his argument is not framed as one of ineffective assistance of counsel, we again note he has not shown his counsel’s performance was in any way deficient.

¶ 22. We therefore affirm the circuit court’s judgment.

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

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

      . Mississippi Code Annotated section 97-17-1(1) provides: