author: ISHEE, J., CARLTON, J.,

text:
    Mike McTILLER a/k/a Mike McTiller III, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01662-COA.
    Court of Appeals of Mississippi.
    May 28, 2013.

      George T. Holmes, Michael A. Williams, Jackson, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   ISHEE, J.,

for the Court:

¶ 1. In 2011, Mike McTiller was convicted in the Washington County Circuit Court of aggravated assault. He was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with fifteen years to serve and five years of post-release supervision (PRS). He also received a sentence enhancement as a convicted felon in possession of a firearm and was further sentenced to five years in the custody of the MDOC, with the two sentences to run concurrently. Aggrieved, McTiller now appeals claiming (1) the circuit court erred by granting a jury instruction regarding McTiller’s alleged flight from the scene of the crime; (2) the circuit court erred by granting a jury instruction regarding the defense of accident that was an incomplete statement of the law; (3) the circuit court erred by refusing a jury instruction regarding self-defense; (4) McTiller was prejudiced by the circuit court’s prohibition against the defense counsel’s mention of accident and self-defense during voir dire and opening statements; (5) the evidence was insufficient to support the verdict; and (6) the weight of the evidence does not support the verdict. Finding reversible error, we reverse and remand this case for a new trial consistent with the findings of this opinion.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In August 2010, Angelo Boykins sent a text message to Corina Pam’s cell phone asking if Corina’s sister, Shawanda Pam, a beautician, was back from a trip and would be available to style Boykins’s hair. Corina, who was in a relationship with McTiller and had a child with McTil-ler, had given her phone to McTiller to use. McTiller called Boykins asking who was calling Corina and why. McTiller told Boykins he was calling for Shawanda. McTiller stated that Shawanda was back in town.

¶ 3. Boykins went to the trailer where Shawanda, Corina, their mother, Ruby Preston, and their stepfather, Phil Gibson, lived. Shawanda also ran her beautician business at the trailer. While Shawanda was styling Boykins’s hair, McTiller entered the trailer and immediately walked to the back of the trailer where Corina was located. Boykins and McTiller did not speak during this time. Several minutes later, McTiller, Corina, and their baby left with several other relatives to run errands.

¶ 4. Sometime thereafter, while Shawan-da was still styling Boykins’s hair, McTil-ler returned to the trailer with his cousin, Jemarcus Johnson. Boykins testified that McTiller entered the trailer and began accusing Boykins of arriving at the trailer to see “Wendy,” not Shawanda. Boykins responded that he had a standing appointment with Shawanda at that time every week and that he did not know anyone named Wendy. Boykins later stated he was unaware that Corina also used the name Wendy.

¶ 5. According to Boykins, following his response to McTiller, McTiller reached into his back pocket, pulled out a gun, and started saying, “Oh you don’t know her, you don’t know her?” Boykins then stated that he rushed McTiller to prevent him from shooting the gun. However, McTil-ler testified that Boykins became aggressive when McTiller asked him if he had been calling for Wendy. McTiller testified that Boykins had reached into his own pocket first, and that McTiller reached into his pocket to defend himself with a knife he had in his pocket. McTiller claims that the knife became caught in his pocket and he was unable to get it out, but that Boykins pulled out the gun, causing McTiller to grab Boykins by the wrist in self-defense.

¶ 6. Shawanda witnessed the fight. She testified that McTiller began the hostile conversation with Boykins regarding his phone call to Wendy, and that Boykins stood up in response to McTiller’s question. After that, Shawanda stated McTil-ler reached in his pocket, but she could not see what he had pulled out, Shawanda noted that Boykins then rushed McTiller, and she heard the first shot but still did not see the gun. She heard two to three more shots as she was leaving the room.

¶ 7. Johnson testified that he picked up McTiller to return to the trailer to retrieve some items for the baby that McTiller had mistakenly left behind when they had gone to run errands. Johnson further stated that when he arrived to pick up McTiller, McTiller walked to Johnson’s car, and Johnson did not see anything bulging from any of McTiller’s pockets. He testified that if McTiller had a gun hidden in his pocket, he would have noticed it when he initially picked up McTiller. Johnson further testified that after the two men arrived at the trailer, he witnessed Boykins rush McTiller inside the trailer immediately, and then heard the first gunshot. He took cover, but heard two more shots before peering into the room. He then saw Boykins and McTiller struggling over possession of the gun.

¶8. Gibson testified that he heard the shooting but did not witness the altercation. Gibson stated that when the shooting stopped, he entered the room and saw that McTiller had Boykins in a headlock with a pistol pointed at Boykins’s head. After unsuccessfully attempting to break up the fight, Gibson left the room and instructed Shawanda to call the police. On his way back into the room, he saw McTil-ler meet Boykins, who was coming down the hall with the pistol. Gibson stated that McTiller followed Boykins and asked for the gun, but that Boykins declined. Gibson noted that he told McTiller not to go anywhere, but that McTiller walked away from the trailer before the police arrived.

¶ 9. Shawanda further testified that after the incident, Boykins took the gun and walked out of the house to his vehicle. She stated he sat in his vehicle crying and saying, “I can’t believe I was shot; I can’t believe this happened.” Gibson soon convinced Boykins to give him the gun and to come back into the trailer to wait for the authorities to arrive. The record shows that Boykins was shot once in the left shoulder and was taken by ambulance to the Delta Regional Medical Center in Greenville, Mississippi.

¶ 10. Corina testified that McTiller came to her after the incident claiming he needed to go to the hospital. McTiller testified that after the incident, he walked to his sister’s house and asked his aunt to drive him to Delta Regional Medical Center in Greenville for medical attention. His aunt complied, but en route to the hospital, the vehicle was stopped, and McTiller was arrested for aggravated assault.

¶ 11. A jury trial took place in August 2011. The State presented an ore tenus pretrial motion requesting that all mention of accident and self-defense be prohibited during voir dire and opening statements. The circuit court granted the State’s motion. At trial, Boykins, Corina, Shawanda, Johnson, Gibson, and McTiller all testified. At the close of the trial, the circuit court granted jury instructions which included the State’s offered instruction regarding McTiller’s flight from the scene of the crime. The circuit court also granted the State’s instruction referencing McTiller’s accident defense but refused McTiller’s offered instruction regarding self-defense.

¶ 12. After deliberations, the jury returned a verdict finding McTiller guilty of aggravated assault. McTiller received his sentence, and his defense counsel quickly filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The motion was denied.

DISCUSSION

I. Flight Instruction

¶ 13. In his first argument on appeal, McTiller asserts that the circuit court erred in granting a flight instruction to the jury. The jury instruction in question reads:

The [cjourt instructs the [jjury that “flight” is a circumstance from which guilty knowledge and fear may be inferred. If you believe from the evidence in this case beyond a reasonable doubt that the [defendant, Mike McTiller, III, did flee or go into hiding, such flight or hiding is to be considered in connection with all other events in this case. You will determine from all the facts whether such flight or hiding was from a conscious sense of guilt of shooting Angelo Boykin, or whether it was cause by other things[,] and give it such weight as you think it is entitled to in determining the guilt or innocence of the [defendant, Mike McTiller, III.

¶ 14. We give “abuse-of-diseretion deference to the trial judge’s decision” with regard to giving or refusing jury instructions. Flowers v. State, 51 So.3d 911, 912 (¶ 5) (Miss.2010). However, “an instruction that flight may be considered as a circumstance of guilt or guilty knowledge is appropriate only where that flight is unexplained and somehow probative of guilt or guilty knowledge.” States v. State, 88 So.3d 749, 757-58 (¶ 36) (Miss.2012) (quoting Liggins v. State, 726 So.2d 180, 183 (¶ 10) (Miss.1998)). The Mississippi Supreme Court outlined the following two-prong test with regard to flight instructions: “(1) Only unexplained flight merits a flight instruction; and (2) flight instructions are to be given only in cases where that circumstance has considerable probative value.” Id. at 758 (¶ 36) (quoting Brown v. State, 690 So.2d 276, 294 (Miss.1996)).

¶ 15. The supreme court has upheld the grant of flight instructions in numerous eases. For instance, a flight instruction was affirmed in Tavares v. State, 725 So.2d 803, 807 (¶ 15) (Miss.1998), which involved a woman who failed to appear in court after being subpoenaed to the courthouse. When authorities obtained a warrant for her arrest, she sped away from the police officers and engaged in a high-speed chase. Id. at 807 (¶ 14). Likewise, in Bougon v. State, 883 So.2d 98, 104 (¶ 14) (Miss.Ct.App.2004), a flight instruction was upheld in the trial of a murder suspect. The suspect was questioned by authorities twice and then advised by neighbors and his girlfriend that investigators had come to his home to collect evidence. Id. at 101 (¶ 4). Subsequently, the suspect did not return to his home for some time and was later apprehended by authorities. Id. at 101-102 (¶ 5).

¶ 16. Here, McTiller admitted that he left the scene of the crime. Nonetheless, “evidence of flight is inadmissible when independent reasons exist to explain the flight.” Tavares, 725 So.2d at 806 (¶ 11) (citing Fuselier v. State, 468 So.2d 45, 56-57 (Miss.1985)). The record reflects that McTiller asked his aunt to drive him to a nearby hospital in Greenville for medical attention. While McTiller was unsure if he was injured, the evidence shows that he had blood on his clothing after the shooting. Corina corroborated this testimony and asserted that she was in the vehicle with McTiller and his aunt on the way to the hospital when the vehicle was pulled over and McTiller was arrested.

¶ 17. McTiller’s belief that he was in need of medical attention serves as an independent reason for his retreat from the scene of the crime, thus negating the idea that his flight was unexplained. Furthermore, evidence of McTiller’s retreat is not inherently probative of guilt or guilty knowledge. As such, we find reversible error in the grant of a flight instruction to the jury.

II. Accident and Self-Defense

A. Accident Instruction

¶ 18. In McTiller’s next claim on appeal, he argues that the circuit court erred by refusing his proposed jury instruction on an accident or self-defense defense. McTiller’s proposed jury instruction reads:

The [cjourt instructs the jury that if there is a reasonable doubt arising out of the evidence or lack of evidence that on the occasion of the shooting of Angelo Boykins that the defendant, Mike McTil-ler, III, did not intend to, and was not attempting to, injure said victim or do[ ] him any great bodily harm during an accidental and unintentional discharging of the gun which struck and injured Angelo Boykins, then you must find the defendant, Mike McTiller, III, not guilty.

By contrast, the instruction the circuit court granted to the jury reads:

The [cjourt instructs the [jjury that in order to justify an aggravated assault on the plea of accident or misfortune, the [djefendant must be doing a lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent. Under the laws of the State of Mississippi, carrying a concealed weapon is an unlawful act. If you find, beyond a reasonable doubt, that the [djefendant was in possession of a concealed weapon, then the defense of accident or misfortune would not apply in this case. If you find, beyond a reasonable doubt, that the [djefendant was doing a lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent, then the aggravated assault would be justified on the plea of accident or misfortune[,j and you must find the [djefendant not guilty.

¶ 19. Again, the grant or refusal of a jury instruction is reviewed for abuse of discretion. Flowers, 51 So.3d at 912 (¶ 5). However, “[wjhether or not a killing was the result of accident [orj misfortune is a question for the jury to decide after proper instruction.” Miller v. State, 677 So.2d 726, 730 (Miss.1996) (quoting Day v. State, 589 So.2d 637, 643 (Miss.1991)). The law regarding accident and misfortune lies in Mississippi Code Annotated section 97-3-17 (Rev.2006) and states:

The killing of any human being by the act, procurement, or omission of another shall be excusable:
(a) When committed by accident and misfortune in doing any lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent;
(b) When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation;
(c) When committed upon any sudden combat, without undue advantage being taken, and without.any dangerous weapon being used, and not done in a cruel or unusual manner.

While this statute references homicide, we have held it a natural extension that these principles “should apply to make an assault that does not result in death excusable under the same circumstances.” Rogers v. State, 994 So.2d 792, 802 (¶ 41) (Miss.Ct.App.2008). Furthermore, these three subsections may be read separately and applied separately. Miller, 677 So.2d at 731. Hence, the jury should have been privy to all three subsections of the statute to determine if any of the three subsections applied to McTiller’s case.

¶ 20. The supreme court addressed a similar case in Scott v. State, 446 So.2d 580 (Miss.1984). In Scott, the defendant, Vernon Lee Scott, asserted self-defense when claiming he and the victim, W.C. Turner, had engaged in an altercation after the victim pulled out a gun. Id. at 582. Later, the gun discharged twice, accidentally killing the victim. Id. At the close of the trial, Scott’s defense counsel was granted instruction D-4 regarding self-defense which included the elements of accident, misfortune, heat of passion, and any sudden and sufficient provocation. Id. at 583. However, the circuit court also granted the State’s instruction S-l, which stated the following:

The [cjourt instructs the jury that the killing of a human being is an excusable homicide if, the Defendant acts (sic) which caused the death of W.C. Turner, was a result of sudden combat, without taking undue advantage and without the use of a dangerous weapon and not in a cruel and unusual manner. If you find from the evidence beyond a reasonable doubt that W.C. Turner’s death was caused by being shot with a gun wielded by the Defendant, Vernon Lee Scott, and that it was not in necessary self-defense, and it was not in sudden combat, and he the said Vernon Lee Scott did take undue advantage, then you shall find the Defendant guilty as charged by writing your verdict on a separate sheet of paper.

Id. As such, instruction S-l completely failed to mention accident, misfortune, heat of passion, or. any sudden and sufficient provocation.

¶ 21. In determining whether there was reversible error pursuant to the jury instructions, the supreme court concluded that although instruction D-4 mentioned all of the factors of self-defense, “it [did] not remedy the defect in S-l. This is so because S-l [was] conclusive in nature and therefore in hopeless conflict with an instruction like D-4 which list[ed] other occasions in which a homicide may be excusable.” Id.

¶22. Nonetheless, we have held that a trial court is not required to present jury instructions sua sponte or suggest jury instructions' for the parties to give. Westbrook v. State, 29 So.3d 828, 832-33 (¶ 12) (Miss.Ct.App.2009). Likewise, McTiller’s counsel failed to raise all of the elements of accident in a proffered jury instruction and did not object to jury instruction S-l. As such, McTiller claims that he received ineffective assistance of counsel due to these failures.

¶ 23. We -have upheld claims for ineffective assistance of counsel in the face of inadequate jury instructions. See Blunt v. State, 55 So.3d 207, 210-12 (¶¶ 13-17) (Miss.Ct.App.2011). It is well settled that the standard of review when discussing a claim of ineffective assistance of counsel is the two-prong analysis originally set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prove ineffective assistance of counsel, McTiller must show the following: “First, ... that counsel’s performance was deficient.... Second, ... that the deficient performance prejudiced the defense.” Liddell v. State, 7 So.3d 217, 219 (¶6) (Miss.2009) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). We have reversed criminal convictions on the basis of ineffective assistance of counsel due to the introduction of or lack of objection to jury instructions that “[are] contradictory and confusing and do[ ] not correctly state the applicable law.” Blunt, 55 So.3d at 211 (¶ 14) (citation omitted).

¶ 24. We find the case at hand warrants such a reversal. The jury instruction granted by the circuit court did not correctly state the applicable law on accident since it lacked all elements present in Mississippi Code Annotated section 97-3-17. As stated by the supreme court in Scott, “[t]he instruction completely failfed] to mention accident, misfortune, the heat of passion, or any sudden and sufficient provoation.” Scott, 446 So.2d at 583. Additionally, McTiller’s counsel failed to object to the faulty jury instruction given and did not offer an independent instruction on the law of accident. We find this to be reversible error and ineffective assistance of counsel.

B. Self-defense Instruction

¶ 25. McTiller also argues the refusal of his jury instruction regarding self-defense was improper. The circuit court refused the instruction on the basis that it was contradictory to his accident defense. The instruction in question read as follows:

The [c]ourt instructs the jury that to make an assault justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or do him some bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the defendant acts.

¶ 26. The supreme court has stated that “[a] criminal defendant has a right to assert alternative theories of defense, even inconsistent alternative theories.” Reddix v. State, 731 So.2d 591, 593 (¶ 9) (Miss.1999) (citation omitted). Additionally, “in homicide cases, the trial court should instruct the jury about a defendant’s theories of defense, justification, or excuse that are supported by the evidence, no matter how meager or unlikely.” Brown v. State, 39 So.3d 890, 899 (¶ 34) (Miss.2010) (citation omitted).

¶27. In Brown, Johnny Brown was convicted of murdering Violar Bracey by shooting her. Id. at 891 (¶ 1). At the close of trial, Brown’s defense counsel proffered an instruction regarding self-defense and accident. Id. at 899 (¶ 34). The trial judge denied the instruction, claiming that since he had already granted one of the State’s instructions regarding self-defense, introducing an accident instruction would be contradictory. Id. However, the trial court failed to weigh the accident instruction based on the evidence. Id. The supreme court reversed the conviction and ordered a new trial due, in part, to the improper refusal of the accident instruction. The supreme court found that a proper evidentiary basis existed to present the accident theory to the jury through the defense’s proffered jury instruction. In so concluding, the supreme court stated: “[I]n today’s case, we cannot find harmless error in the trial judge’s failure to give an accidental-shooting instruction to the jury. Certainly, a properly worded accidental-shooting jury instruction may have been the difference between a guilty verdict and a non-guilty verdict.” Id. at 900 (¶ 38).

¶ 28. Similarly, McTiller’s requested self-defense jury instruction was refused as being contradictory to the accident instruction granted by the circuit court. However, McTiller had testified that he saw Boykins reach into his pocket during their verbal altercation and thought Boykins was about to pull out a gun. Additionally, Shawanda testified that while she heard the first shot, she did not see a gun and could not definitively state who pulled out the gun first. Finally, several witnesses stated that Boykins rushed McTiller first. This evidence was sufficient to support a self-defense jury instruction. As such, it was reversible error for the circuit court to refuse McTiller’s proposed self-defense jury instruction.

C. Prohibition Against References to Self-defense and Accident During Voir Dire and Opening Statements

¶ 29. Finally, McTiller argues on appeal that the circuit court erred by granting the State’s pretrial ore tenus motion that McTiller’s defense counsel be prohibited from mentioning the theories of self-defense and accident during voir dire and opening statements. The proper standard for reviewing voir dire is abuse of discretion. See Jackson v. State, 791 So.2d 880, 835-36 (¶ 21) (Miss.2001). When analyzing opening statements, the question is “whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Anderson v. State, 62 So.3d 927, 939 (¶ 39) (Miss.2011) (citation omitted). Uniform Rule of Circuit and County Court 10.03 states that the “defense may make an opening statement to the jury at the conclusion of the [SJtate’s opening statement ... [The opening] statement shall be confined to a statement of the defense and the facts the defendant expects to prove in support thereof.” Additionally, as previously noted, “[a] criminal defendant has a right to assert alternative theories of defense, even inconsistent alternative theories.” Reddix, 731 So.2d at 593 (¶ 9) (citation omitted).

¶ 30. Here, McTiller’s defense counsel supported McTiller’s argument to allow mention of self-defense and accident during voir dire and opening statements by reminding the circuit court that McTiller planned on testifying on his own behalf. As such, the defense argued that it would lay more than the necessary groundwork to allow the introduction of self-defense and accident theories during voir dire and opening statements. However, the circuit court countered by stating:

I’m going to stick with my ruling. Until you lay that predicate in proof, I don’t think we can unring the bell by you arguing self[-]defense[,] and then for some reason [the defendant] doesn’t get on the stand and doesn’t testify. I think it’s going to cause confusion with the jury.

¶ 31. We agree with the circuit court, and have specifically addressed this issue for future reference in a new trial. Although McTiller testified on his own behalf during the trial, the circuit court' had no way of guaranteeing that the testimony would occur. By allowing self-defense and accident to be introduced prior to McTil-ler’s testimony, the jury would have been privy to a defense theory that may or may not have been supported by the facts depending on McTiller’s testimony. Such a ruling does not warrant reversible error. This issue is without merit. Additionally, given our reversal of this case on other grounds, we decline to address McTiller’s remaining arguments regarding sufficiency and weight of the evidence.

¶ 32. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

LEE, C.J., AND JAMES, J., CONCUR. IRVING, P.J., BARNES AND FAIR, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., AND MAXWELL, J., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

CARLTON, J.,

dissenting:

¶38. I would affirm the judgment of conviction of the trial court.

      . Corina Pam also goes by the name Wendy.


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Sharron GAMMAGE, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2012-CC-00523-COA.
    Court of Appeals of Mississippi.
    May 28, 2013.

      Pamela Lynn Huddleston, attorney for appellant.
    Albert B. White, Madison, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Sharron Gammage’s employment with Jasper General Hospital was terminated. Gammage applied for unemployment benefits from the Mississippi Department of Employment Security (“MDES”), which were denied by the MDES administrative law judge (“ALJ”). She appealed to the MDES Board of Review, which affirmed. Gammage then appealed the Board of Review’s decision to the circuit court, and the decision was again affirmed. On appeal, Gammage argues that her actions did not amount to insubordination, her actions did not violate any other policy in the employee handbook, and mere disrespectful behavior does not amount to misconduct; thus, the denial of unemployment benefits was improper. Finding error, we reverse and remand the judgment of the circuit court.

FACTS

¶ 2. Gammage worked for Jasper General Hospital from May 14, 2007 to May 3, 2011. Gammage was a laundry aide in the laundry department.

¶ 3. On May 3, 2011, Gammage was off from work. Gammage contacted Annie Campbell, a coworker, who Gammage believed had written a negative letter about her. Campbell responded that she had not done so. Campbell then called Melissa Blocker, their director, to inform her of the conversation. Blocker called her assistant, Kim Windham, and asked her to contact Gammage.

¶ 4. Windham testified that her conversation with Gammage became heated. Gammage was not pleased that Windham, rather than Blocker, had called her at home on her day off. Windham suggested that Gammage come to the hospital so that Gammage, Windham, and Blocker could discuss the situation with the hospital administrator, Mr. Posey. Gammage declined. She said that she did not want to come to the hospital, because she had just washed her hair, and it was cold outside.

¶ 5. Posey, Windham, and Blocker met to discuss the phone conversation between Windham and Gammage. Initially, they decided to issue Gammage a written warning, because they believed she was disrespectful to Windham.

¶ 6. Before the written warning was prepared, Gammage and Blocker spoke on the phone. Blocker testified that Gammage told her that Windham was not her supervisor and should not call her at home on her day off. Gammage denied making this comment. Blocker also said that Gam-mage raised her voice during this conversation. Gammage denied raising her voice. Blocker testified that she told Gam-mage more than once to calm down. Then, Blocker told Gammage that she was fired. Blocker testified that she fired Gammage for insubordination and improper conduct. Blocker admitted that Gam-mage did not refuse to do anything that she was asked to do.

¶ 7. On May 4, 2011, Gammage was officially terminated from her employment with the hospital for insubordination and improper conduct. Gammage filed for unemployment benefits with MDES. This appeal considers whether it was proper for MDES to deny Gammage’s claim for unemployment benefits.

STANDARD OF REVIEW

¶8. When this Court reviews administrative-agency decisions, the standard of review is that “[a]n agency’s conclusions must remain undisturbed 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.” Maxwell v. Miss. Emp’t Sec. Comm’n, 792 So.2d 1031, 1032 (¶ 7) (Miss.Ct.App.2001) (citation omitted). Upon judicial review, “the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” Miss. Code Ann. § 71-5-531 (Rev.2011). Because we find that MDES’s order to deny Gammage unemployment benefits was not appropriate under the facts, we reverse the circuit court’s judgment.

DISCUSSION

¶ 9. Mississippi Code Annotated section 71-5-513(A)(l)(b) (Supp.2012) provides that if an employee is discharged for misconduct, she is not eligible for unemployment benefits. Gammage argues that she was not guilty of misconduct. To deny unemployment benefits, the employer has the burden of showing “by substantial clear and convincing evidence” that the former employee’s actions amounted to disqualifying misconduct. City of Clarksdale v. Miss. Emp’t Sec. Comm’n, 699 So.2d 578, 580 (Miss.1997) (quoting Foster v. Miss. Emp’t Sec. Comm’n, 632 So.2d 926, 927 (Miss.1994)).

¶ 10. The Mississippi Supreme Court has defined misconduct as:

[Cjonduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer [fall] within the term.

Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982) (citation omitted). This Court noted that “whenever analyzing ‘misconduct,’ we not only assess violations of an employer’s stated policy, but we also consider all action (or inaction) which could be expected of the employee, and which affects the interests of the employer, regardless of whether such actions are included within the stated policy.” Miss. Emp’t Sec. Comm’n v. Percy, 641 So.2d 1172, 1175 (Miss.1994).

A. Gammage’s conduct did not amount to insubordination, and her actions did not violate the employee handbook.

¶ 11. Gammage contends that her behavior did not amount to insubordination. Throughout the hearing, the hospital insisted that Gammage was terminated for insubordination. On the notice to employer of the claim filed and request for information filed by the hospital, the hospital stated that insubordination was the reason for Gammage’s termination from employment.

¶ 12. Under the hospital’s employee handbook, two instances of insubordination may result in dismissal. The handbook divides the various offenses an employee can commit into categories. Certain offenses warrant immediate dismissal. However, a number of offenses, classified as “category-two” offenses, require two violations before the employee may be dismissed. Category-two offenses include:

1. Insubordination
2. Failure to follow supervisor[’]s instructions
3. Violation of safety rules in absence of a threat to human life
4. Unauthorized absence without reasonable and justifiable cause
5. Failure to report to work without appropriate notification to supervisor
6. Leaving the work site without permission
7. Unauthorized use of hospital property or record.

At the hearing, the hospital offered a copy of the handbook and a certification, signed by Gammage, that acknowledged she understood it was her responsibility to read the handbook.

¶ 13. Insubordination is defined as “a constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority.” Gordon v. Miss. Emp’t See. Comm’n, 864 So.2d 1013, 1019 (¶ 27) (Miss.Ct.App.2004) (citation omitted). Gammage argues that she was not ordered to come to the hospital to meet with Posey. Thus, she argues that she did not refuse to obey a direct or implied order.

¶ 14. Gammage also argues that her actions did not violate any rule in the handbook. Mississippi law provides that employees “shall not be found guilty of misconduct for violation of a rule unless: (1) the employee knew or should have known of the rule; (2) the rule was lawful and reasonably related to the job environment and job performance; and (3) the rule is fairly and consistently enforced.” Captain v. Miss. Emp’t Sec. Comm’n, 817 So.2d 634, 637 (¶ 19) (Miss.Ct.App.2002).

¶ 15. Insubordination may rise to the level of misconduct on certain occasions. Young v. Miss. Emp’t Sec. Comm’n, 754 So.2d 464, 466 (¶ 7) (Miss.1999) (citations omitted). The supreme court has held that an isolated incident is not a constant or continuing intentional refusal. Gore v. Miss. Emp’t Sec. Comm’n, 592 So.2d 1008, 1010 (Miss.1992). This Court has held that when an employee repeatedly refuses to perform a task she was ordered to perform and curses at her supervisor, she has committed misconduct through her insubordination. Miss. Emp’t Sec. Comm’n v. Hudson, 757 So.2d 1010, 1014-15 (¶ 12) (Miss.Ct.App.2000).

¶ 16. Gammage asserts that there was neither a single incident of insubordination, nor was there a constant and continuing refusal. The record indicates that Gammage never refused to do anything beyond a mere suggestion. There was never a direct order to come to the hospital for a meeting with Windham, Blocker, and Posey, but rather, a mere suggestion to do so. In fact, Blocker testified that Gammage did not refuse to do anything. Even if Gammage had been ordered to come to the hospital for a meeting, this would have amounted to an isolated incident.

¶ 17. Gammage asserts, and we agree, that there was no evidence in the record that established Gammage committed an offense that amounted to misconduct. Additionally, we find error in the circuit court’s finding that Gammage committed two category-two offenses. MDES asserts that Gammage committed two offenses of insubordination. We disagree. There was no constant and continual direct order to do anything in this situation. At most, there was a mere suggestion to come to the hospital to discuss the previous conversation between Gammage, Blocker, and Windham.

B. Gammage’s disrespectful behavior was not misconduct that warrants a denial of unemployment benefits.

¶ 18. Gammage argues that her conduct, while arguably disrespectful, did not amount to disqualifying misconduct to warrant a denial of unemployment benefits.

¶ 19. This Court has held that a single instance of disrespect and violation of a rule does not amount to misconduct. Gordon, 864 So.2d at 1020 (¶ 32). In Gordon, an employee had brought dirty linens into an area in which dirty linens were forbidden. Id. When alerted to his mistake, he cursed at his supervisors. Id. at 1015 (¶ 9). This Court noted that this single incident did not meet the definition of misconduct. See id. at 1020 (¶ 32). This Court stated:

[I]t is more than a stretch to say that what he did in this one single incident • was the equivalent of a “willful and wanton disregard of [his] employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee.”

Id. at (¶ 30) (quoting Wheeler, 408 So.2d at 1383).

¶ 20. Additionally, in Gordon, this Court noted that “termination for cause does not necessarily mandate that unemployment benefits be denied.” Id. at 1019 (¶ 29). In Acy v. Mississippi Employment Security Commission, 960 So.2d 592, 595 (¶¶ 15, 19) (Miss.Ct.App.2007), an employee who muttered a curse word under her breath in the presence of a customer did not commit misconduct, according to this Court. This Court noted that “an isolated incident of misconduct by an employee does not generally disqualify the employee from receiving the benefit of unemployment compensation.” Id. at (¶ 19) (quoting Daniels v. Miss. Emp’t Sec. Comm’n, 904 So.2d 1195, 1197 (¶ 9) (Miss.Ct.App.2004)).

¶21. MDES cites Swinney v. Mississippi Employment Security Commission, 910 So.2d 742 (Miss.Ct.App.2005), and claims that it is controlling precedent. We disagree. This case is distinguishable from Swinney. There, an employee was discharged for inappropriate behavior. Id. at 744 (¶ 5). Swinney was verbally abusive to her district manager during an argument. Id. She had been previously cited for disrespect and use of profane language and was aware that she would be fired if she used abusive language toward management. Id. Here, Gammage's alleged behavior at most amounted to a single incident of disrespect. Gammage was never warned that she would be fired, nor did her conduct amount to multiple incidences of misconduct warranting a denial of unemployment benefits.

¶ 22. Because we find that Gammage was improperly denied unemployment benefits, we reverse the circuit court’s judgment and remand this case to the MDES for a determination of unemployment benefits.

¶ 23. THE JUDGMENT OF THE JASPER COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED TO THE MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: CARLTON, J.,

text:
    Dwayne BOYD, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01816-COA.
    Court of Appeals of Mississippi.
    May 22, 2012.
    Rehearing denied Oct. 9, 2012.

      Ali Muhammad Shamsiddeen, Jackson, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Dwayne Boyd was convicted of the sale of marijuana, greater than thirty grams but less than one kilogram, within 1,500 feet of a school or within 1,000 feet of the real property of a school. The Madison County Circuit Court sentenced Boyd as a subsequent drug offender to 120 years in the custody of the Mississippi Department of Corrections (MDOC), with sixty years to serve and five years of supervised post-release supervision.

¶ 2. On appeal, Boyd raises the following assignments of error: whether (1) the trial court abused its discretion in denying his request for a continuance; (2) the trial court committed plain error in, among other things, denying this request; and (3) his sentence violated the Eighth Amendment. Finding no error, we affirm.

FACTS

¶ 3. The charges against Boyd stem from an undercover operation in Madison County, Mississippi. On October 27, 2009, Lieutenant Tommy Jones of the Madison County Sheriffs Department’s Narcotics Division, used a confidential informant (“Cl”) to purchase more than thirty grams of marijuana from Boyd at a house in Madison County. Prior to the purchase of the narcotics from Boyd, the Cl and his vehicle were searched, and Lieutenant Jones gave the Cl $200 for the drug purchase. A camera and a bodywire transmitter were secreted upon the Cl’s person, and the transaction was videotaped and shown to the jury during trial.

¶ 4. At trial, five witnesses testified during the State’s case-in-chief, including Lieutenant Jones, the Cl, and Chancey Bass, a lab technician with the Mississippi Crime Laboratory. The Cl testified that, during the drug transaction, Boyd pulled two ziploc bags containing marijuana from his pocket and threw them across the counter to him. The Cl stated that he grabbed the bags and paid Boyd $200. The Cl also made a positive in-court identification of Boyd as the person who sold him the marijuana. Bass, who was accepted as an expert in the field of forensic science specializing in drug identification, testified that she had identified the substance in question as 35.5 grams of marijuana. The defense rested its case without calling any witnesses or presenting any evidence.

¶ 5. The jury found Boyd guilty of selling greater than thirty grams but less than one kilogram of marijuana, a Schedule I controlled substance, within 1,500 feet of a building or outbuilding of Canton Alternative School in Madison, Mississippi, or within 1,000 feet of the real property of Canton Alternative School. The trial court deferred sentencing until the following morning, when the court granted the State’s motion to amend the indictment to charge Boyd as a subsequent drug offender under Mississippi Code Annotated section 41-29-147 (Rev. 2009). The trial court then sentenced Boyd to 120 years in the custody of the MDOC, with sixty years to serve and five years of supervised post-release supervision. Boyd now appeals.

DISCUSSION

I. MOTION FOR A CONTINUANCE

¶ 6. During pretrial matters conducted in the trial court on the morning of trial, Boyd released his privately retained attorney, Wesley T. Evans, and requested a continuance. The trial court allowed Boyd to release Evans but denied Boyd’s ore tenus motion for a continuance. The trial court then offered Boyd the services of a stand-by attorney, Bentley Conner, the chief public defender in Madison County, who was physically present inside the courtroom at that time. Boyd refused Conner’s services. Boyd, by releasing Evans, the attorney he had hired prior to trial, and by later declining the services of Conner as armchair counsel offered by the court, was deemed by the trial judge to have elected to represent himself. In making this determination, the trial judge considered Rule 8.05 of the Uniform Rules of Circuit and County Court. The following exchange occurred between Boyd and the trial judge:

COURT: In accordance with the Uniform Circuit and County Court Rules, Rule Number 8.05, I’m required ... to ... [determine if the [defendant knowingly and voluntarily desires to act as his own attorney.
And Mr. Boyd is here. Mr. Evans was here. Mr. Boyd paid him a fee to represent him. He has discharged Mr. Evans this morning. This case has been set for trial for quite a while. Mr. Evans is willing to go forward and try the case on Mr. Boyd’s behalf. Mr. Boyd does not want him to do so. Now, I’ve also offered Mr. Boyd the services of Mr. Conner as armchair counsel, or I would think that Mr. Conner, if Mr. Boyd qualifies as a public defender appointment, could sit in with him and try the case as a public defender.
Mr. Boyd, you don’t want any of that, do you?
BOYD: No, sir.
COURT: Okay. And you want to act as your own attorney?
BOYD: Not really.
COURT: Well, your case is set for trial today and you have known it for several months. Now, it’s going forward[,] so the question is: Do you want to act as your own attorney or do you want to—
BOYD: I don’t have any other choice.
COURT: All right. Now, you have the right to an attorney. If you can’t afford, one, I’ll appoint one, which I have offered to do. You’ve got the right to conduct your defense[,] and you can let the attorney do whatever you want them to do, if anything, in the case. The rules will not be relaxed for evidence or procedure or protocol. You will be bound and have to conduct yourself the same as an attorney. All rules will apply to you. These are not simple rules. They are complicated[,] and you’re going to be somewhat hampered by not knowing these rules unless you have an attorney to advise you.
Now when you proceed pro se, it will increase the likelihood of an unfavorable outcome for you. Do you understand these issues?
BOYD: Yes, sir.
COURT: Do you still decline the appointment of an attorney?
BOYD: Yes, sir. Because he cannot— he cannot defend me. He don’t know anything about the case. There’s no one can [sic] defend me but my lawyer that’s with, you know, accurate status [sic] and there’s not one here.
COURT: Mr. Evans is here.
BOYD: He’s not. Trust me.
COURT: He’s here.
BOYD: Oh, he gone be here, but he’s not representing me.
COURT: Okay. Well, that’s your decision.
All right. I guess we will not need your services, Mr. Conner.
CONNER: Thank you, your Honor.
COURT: We have talked with Mr. Conner, and he is on standby. Mr. Boyd, at any time you feel like you need to talk to an attorney, all you have to do is tell me that[,] and I’ll send for Mr. Conner. He’s on standby[,] and he will immediately come to this courtroom and ... be able to advise you in any manner ... [on] which you may seek advice.

The record shows that Boyd failed to meet with his attorney prior to trial to view the video recording of the drug transaction, despite his attorney’s requests. The record also reflects that the State notified Boyd during the pretrial proceedings of its intention to amend the indictment to reflect his status as a subsequent drug offender. During the pretrial proceedings, the State offered Boyd a plea deal and explained that if Boyd accepted the plea, the State would not pursue subsequent-offender status. Boyd, however, rejected the plea offered by the State and proceeded to trial.

¶ 7. Boyd argues that the trial court’s denial of his motion for a continuance deprived him of the right to a fair trial, and that the trial court erred in concluding that he voluntarily chose to represent himself. Boyd acknowledges that he failed to file a written motion for a continuance; thus, he alleges that the trial court’s denial of his motion for a continuance constitutes plain error. Boyd also argues that under the plain-error doctrine a manifest injustice occurred by: (1) the State’s advantage of undisclosed information regarding questions to the jury pool the day before Boyd released his retained counsel and requested a motion for a continuance; (2) conflicting testimony presented at trial without objection; (3) lack of objections to the State’s voir dire that he claims would have been made by any reasonable attorney; (4) his lack of knowledge of procedures such as voir dire; (5) two exchanges that occurred with potential jurors during voir dire; and (6) the Cl’s preexisting relationship with the non-defendant owner of the house where the controlled purchase of marijuana occurred. After reviewing the record, we find no merit to Boyd’s allegations.

¶8. “The Mississippi Constitution Article 3, Section 26 and the Sixth Amendment of the United States Constitution grant a defendant the right to be heard by himself or counsel or both.” Fields v. State, 879 So.2d 481, 484 (¶ 12) (Miss.Ct.App.2004). “While a defendant does have the right to counsel of his choice, this right is not absolute.” Sturkey v. State, 946 So.2d 790, 793 (¶ 7) (Miss.Ct. App.2006) (citing Atterberry v. State, 667 So.2d 622, 628 (Miss.1995)). “This right may not be used to thwart the progress of a trial.” Fields, 879 So.2d at 484 (¶ 13) (citing Ladnier v. State, 273 So.2d 169, 173 (Miss.1973)). A denial of a last-minute continuance for the defendant to retain new counsel falls within the discretion of the trial court. Id. “This court will not reverse a trial court’s decision to deny a motion for continuance unless it appears to have resulted in ‘manifest injustice.’ ” Ousley v. State, 984 So.2d 996, 999 (¶7) (Miss.Ct.App.2007). “The burden of showing manifest injustice is not satisfied by mere conclusory allegations but by concrete facts that show particular prejudice to the defendant.” Id.

¶ 9. As stated in Harrison v. State, 520 So.2d 1352, 1353 (Miss.1987), “[I]f [the] defendant wanted other counsel, he had abundant time and should have arranged therefor in advance of the day the trial was begun. The request was untimely. Following the same reasoning, [the] defendant’s motion for a continuance, if motion it was, was not worthy of favorable consideration.” In this case, the record similarly shows that Boyd had ample time to obtain other counsel. Trial was conducted on October 6, 2010. On May 20, 2010, the case was set for trial on October 5, 2010. Boyd’s retained attorney, Evans, entered his appearance on September 22, 2010. Evans subsequently received discovery on or about September 29, 2010. The morning of trial, Evans testified to his pretrial preparation stating, in pertinent part:

I think I was hired at the last-at the last-minute. Abraham Rowe was initially the attorney appointed. He decided to come to me and got me at the last[-] minute. I found out when the trial date was. And, you know, discovery really consists of two pages, the confidential buy and the lab report, and I went over that orally with him when I got the information.
Also, I looked at the videotape on my own time, I went down to the Sheriffs Department, and I’ve been trying to get him for the past days to just watch the videotape so he could make an informed decision.

¶ 10. “The trial court is vested with reasonable latitude in docket management and granting of continuances. The right of a defendant to obtain a continuance for the purpose of seeking counsel of his choosing must be considered in light of the court’s right to manage its docket.” Fields, 879 So.2d at 484 (¶ 17) (internal citation omitted). This Court finds no abuse of discretion in the trial court’s denial of Boyd’s untimely request for a continuance to obtain counsel. We further find that no manifest injustice occurred. This issue is without merit.

II. SENTENCE

¶ 11. Boyd argues that his sentence violates the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States Constitution. We disagree. “A sentence that does not exceed the maximum period allowed by statute will not be disturbed on appeal.” Johnson v. State, 80 So.3d 136, 139 (¶ 9) (Miss.Ct.App.2012). “The imposition of a sentence is within the discretion of the trial court, and appellate courts will not review the sentence, if it is within the limits prescribed by statute.” Id. at 139-40 (¶ 9).

¶ 12. The jury found Boyd guilty of the sale of marijuana, greater than thirty grams but less than one kilogram, within 1,500 feet of a school or within 1,000 feet of the real property of a school. The trial court granted the State’s motion to amend the indictment to charge Boyd as a subsequent-drug offender. The 120-year sentence imposed on Boyd by the trial judge did not exceed the punishment allowed under Mississippi Code Annotated section 41 — 29—139(b)(1) (Supp.2011), which was enhanced by Mississippi Code Annotated section 41-29-142 (Rev. 2009), and then enhanced again by section 41-29-147. Boyd’s sentence clearly falls within the statutory limits as set forth above.

¶ 13. Additionally, although not specifically raised by Boyd on appeal, we find no error in the amendment to Boyd’s indictment. Rule 11.03(1) of the Uniform Rules of Circuit and County Court mandates an indictment:

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

Id. Speaking to the amendment of indictments, Uniform Rule of Circuit and County Court 7.09 provides:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as [a] habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement.... Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

(Emphasis added).

¶ 14. While Rule 7.09 “does not speak to the timing of the amendment,” it instructs that “the defendant must be ‘afforded a fair opportunity to present a defense’ and ‘not be unfairly surprised.’ ” Gowdy v. State, 56 So.3d 540, 545 (¶ 16) (Miss.2010) (quoting URCCC 7.09). “This means that the defendant must be afforded due process of law and be given fair notice of ‘the nature and cause of the accusation.’ ” Id. (citing U.S. Const, amends. VI, XIV; Miss. Const, art. 3, §§ 14, 26).

¶ 15. In this case, we find no error in the amendment to Boyd’s indictment. The amendment neither affected Boyd’s defense to the underlying charge of selling marijuana within 1,500 feet of a school or within 1,000 feet of the real property of a school, nor did it prejudice his defense against the subsequent-drug-offender charge. In fact, Boyd failed to present any evidence during the sentencing hearing contesting the amendment to his indictment. Further, there is no unfair surprise to Boyd. During pretrial proceedings on the morning of trial, the State provided:

But we want Mr. Boyd to know on the record that he’s also a subsequent drug offender for an out-of-state conviction. And should we go to trial on this, the State at sentencing, if we obtain a conviction, we’ll be seeking to double up to 80 years based on he’s a subsequent drug offender.
But if he wants to take advantage and watch the video and do the plea, the State, obviously, has no objection to an open plea as to the indictment as it reads right now.

In response, the following exchange occurred between the trial judge and Boyd:

COURT: No, no, no, no, no, Mr. Boyd. That’s not how it works. Lawyers don’t make decisions about whether or not you plead guilty and accept a plea bargain offer. You make that decision. That’s strictly up to you. A lawyer can’t decide that for you. All a lawyer can do is go over the discovery with you, tell you what evidence the State has and give you their opinion as to your likelihood of conviction or acquittal.
BOYD: Well, I — I don’t — I don’t agree with that, your Honor. I — I really don’t want him to represent me, period.
COURT: That’s fíne, Mr. Boyd—
BOYD: Okay.
COURT: — he doesn’t have to, but I’m starting your trial at about 10:00 o’clock this morning.
BOYD: Yes, sir. If /all gone do me like that, you know, that’s fine. But I’m — I’m not gonna go through it with him like this, no, sir.
COURT: That’s fíne. You don’t have to.
BOYD: This is wrong.
COURT: We’re starting your trial at 10:00 o’clock.
BOYD: That’s fine.
COURT: I would suggest you go look at that video before you make any further decision.
BOYD: No, sir. I’m done anyway.

Boyd then proceeded to trial, and the jury found Boyd guilty of selling more than thirty grams but less than one kilogram of marijuana within 1,500 feet of a school or within 1,000 feet of the real property of a school. The next morning, at the sentencing hearing, the State filed a motion to amend the indictment to charge Boyd as a subsequent drug offender, and attached Boyd’s judgment of conviction to the motion. The trial court ordered the amendment without any objection from Boyd.

¶ 16. Our supreme court in Gowdy, 56 So.3d at 544-46 (¶¶ 14-22), recently held that if a defendant has no pretrial notice of the State’s intent to amend an indictment to seek enhanced penalties based upon habitual-offender status, then the amendment is impermissible. However, we find Gowdy to be both procedurally and factually distinguishable from the case at hand. In Gowdy, the defendant, Tyrone Gowdy, charged with DUI, rejected a plea deal where the State would have recommended a sentence of one year. Without knowledge that the State planned to seek a habitual-offender sentencing enhancement, Gowdy decided to forgo the capped plea recommendation and proceeded to a trial by jury. Following the jury verdict of guilty, the State for the first time provided Gowdy with notice of its intent to amend his indictment to include a habitual-offender charge. Approximately two months after trial, and just prior to the sentencing hearing, the trial court allowed the amendment over Gowd/s objection and sentenced Gowdy to life imprisonment. The Gowdy court, in discussing the impropriety of the amendment, stated:

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

Id. at 546 (¶¶ 20-21).

¶ 17. In making its findings, the supreme court in Gowdy relied on its prior decision in Akins v. State, 493 So.2d 1321 (Miss.1986). In Akins, the defendant was without notice of the State’s intent to amend the indictment until after trial. The Akins court found the post-trial amendment, which substituted the more severe habitual-offender sentencing enhancement, carrying a mandatory life sentence, for the lesser enhancement, was an impermissible amendment. Akins, 493 So.2d at 1322. In recognizing the supreme court’s inconsistency on the issue of post-trial notice of intent to amend an indictment to seek habitual-offender status, the Gowdy court overruled its prior decision, Torrey v. State, 891 So.2d 188, 194-95 (¶¶ 35-39) (Miss.2004), where the supreme court determined that no reversible error had occurred in a post-trial amendment to an indictment adding a habitual-offender charge, to the extent it conflicted with the holding in Gowdy. Gowdy, 56 So.3d at 546 (¶ 22).

¶ 18. As stated, we find that Boyd’s case differs from Gowdy. Unlike the defendant in Gowdy, Boyd knew prior to trial that the State sought to charge him as a subsequent drug offender. Confronted with notice that the State sought to amend his indictment based on his status as a subsequent drug offender, Boyd rejected the State’s plea deal and proceeded to trial. Therefore, no unfair surprise to Boyd occurred.

¶ 19. As noted by this Court in Newberry v. State, 85 So.3d 884, 889 (¶ 16) (Miss.Ct.App.2011), “Sufficient formal notice of the State’s intent to seek habitual-offender status is the controlling aspect, not the timing of the court’s ruling on the requested amendment.” The Newberry court further stated: “We do not find that our supreme court in Gowdy intended to establish an absolute, indispensable rule that a trial judge’s decision to withhold ruling on the State’s request to amend an indictment to allege habitual-offender status creates an unfair surprise.” Id.

¶ 20. Here, Boyd had sufficient pretrial notice of the State’s intention to amend the indictment to include the subsequent-drug-offender charge. We find that the State provided sufficient notice to allow Boyd to prepare a defense against the subsequent-offender charge, to which he apparently had no defense. Additionally, the pretrial notice allowed Boyd to make an informed decision as to whether to accept the proposed plea deal by the State, which he chose to reject with knowledge of the potential consequences of doing so.

¶ 21. Based on these reasons, we affirm Boyd’s conviction and sentence.

¶ 22. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF THE SALE OF MARIJUANA, A SCHEDULE I CONTROLLED SUBSTANCE, WITHIN ONE THOUSAND FIVE HUNDRED FEET OF A BUILDING OR OUTBUILDING OF CANTON ALTERNATIVE SCHOOL IN MADISON COUNTY, MISSISSIPPI, OR WITHIN ONE THOUSAND FEET OF THE REAL PROPERTY OF CANTON ALTERNATIVE SCHOOL, AS A SUBSEQUENT DRUG OFFENDER, AND SENTENCE OF ONE HUNDRED TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, TO BE RELEASED AFTER SIXTY YEARS, AND FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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

      . The State's motion to amend the indictment stated that on or about May 22, 2000, in the Circuit Court, Branch 7, of Brown County, Wisconsin, Boyd was previously convicted of possession of cocaine, with intent to manufacture or deliver, and he was sentenced to serve six years in the custody of the Wisconsin State Prisons. The State attached a copy of Boyd’s judgment of conviction to the motion.

      . For the purposes of brevity, we have corn-bined Boyd’s first and second assignments of error.

      . First, Boyd points to an exchange between the trial court and prospective juror 48. During voir dire, unidentified juror 48 stated, "I just have one question. Why doesn’t he have an attorney? I mean is he not supposed to have one?” The court responded, "Everybody has a Constitutional right to have an attorney.... You can't make someone have an attorney.... I can’t force an attorney on anybody.” Next, Boyd points to an exchange that occurred between Nicole Nichols, another potential juror, and the State during jury selection outside the presence of the venire. After Nichols claimed that she might know Boyd and that it might be "awkward” for her to sit on the jury, the State asked Nichols, "Do you believe that awkwardness would cause you perhaps to not be fair to the State in this case and lean more toward Mr. Boyd?” Nichols responded negatively. The State later peremptorily struck Nichols from the jury.

      . See also Sturkey, 946 So.2d at 793-94 (¶ 8).

      . As previously noted, the State provided pretrial notice to Boyd and his former counsel of the State's intent to amend his indictment to charge him as a subsequent drug offender.


author: CARLTON, J„

text:
    James Allen HIGGINBOTHAM a/k/a James A. Higginbotham a/k/a James Higginbotham, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00972-COA.
    Court of Appeals of Mississippi.
    Sept. 25, 2012.
    Rehearing Denied Feb. 26, 2013.
    Certiorari Denied May 30, 2013.

      James Allen Higginbotham, appellant, pro se.
    Office of the Attorney- General by Lisa Lynn Blount, attorney for appellee.
    Before GRIFFIS, P.J., CARLTON and FAIR, JJ.
   CARLTON, J„

for the Court:

¶ 1. James Allen Higginbotham appeals the Winston County Circuit Court’s denial of his motion for post-conviction relief (PCR). Higginbotham raises the following assignments of error: whether (1) Mississippi Code Annotated section 97-3-21 (Rev.2006) is unconstitutionally broad and vague; (2) he entered an involuntary guilty plea due to mistaken advice of counsel; (3) the circuit court erroneously instructed him that he would be eligible for parole; (4) the circuit court lacked jurisdiction to sentence him for murder, when the indictment set forth that he had only committed a conspiracy or was an accessory after the fact to the murder; (5) the circuit court denied him counsel to effectively aid in his evidentiary hearing and on direct appeal; and (6) the circuit court violated the plea agreement by sentencing him to “capital murder.” Finding no error, we affirm.

FACTS

¶ 2. In 2008, a grand jury before the Winston County Circuit Court indicted Higginbotham for one count of capital murder under Mississippi Code Annotated section 97-3-19(2)(d) (Rev.2006). Higginbotham’s indictment stated, in part, as follows:

JAMES ALLEN HIGGINBOTHAM
On or about the 9th day of December, 2007, in Winston County, Mississippi, and within the jurisdiction of this [cjourt, while acting in concert with J.C. HIGGINBOTHAM, SANDRA RANEA VOWELL, and VICKY RENE HIGGINBOTHAM, or while aiding, abetting, assisting, or encouraging each other, did then and there without authority of law, by any means or in any manner, wilfully, feloniously and with deliberate design to effect death, kill and murder a human being, to-wit: L.S. “Tooter” Vowell, Jr., by shooting him with a firearm, said murder being perpetrated by the said J.C. HIGGINBOTHAM after he had been offered or had received anything of value for committing the murder, and J.C. HIGGINBOTHAM, SANDRA RANEA VOWELL, JAMES ALLEN HIGGINBOTHAM, and VICKY RENE HIGGINBOTHAM, being parties to the murder and charged as principals to said crime, being the crime of murder for hire as defined in section 97-3-19(2)(d) ... and against the peace and dignity of the State of Mississippi!.]

On May 18, 2009, Higginbotham entered a guilty plea to the lesser offense of murder under Mississippi Code Annotated section 97 — 3—19(l)(a) (Rev.2006). The circuit court sentenced Higginbotham to serve the remainder of his natural life in the custody of the Mississippi Department of Corrections (MDOC).

¶ 3. On April 7, 2011, Higginbotham filed a PCR motion. Following an evidentiary hearing, the circuit court denied the motion. Higginbotham now appeals.

STANDARD OF REVIEW

¶ 4. The standard of review in cases involving the trial court’s denial of a PCR motion is well settled. ‘When reviewing a [trial] court’s decision to deny a petition for post-conviction relief, an appellate court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised, the applicable standard of review is de novo.” Ross v. State, 87 So.3d 1080, 1081 (¶5) (Miss.Ct.App.2012).

DISCUSSION

I. CONSTITUTIONALITY OF SECTION 97-3-21

¶ 5. Higginbotham argues that section 97-3-21 is unconstitutionally broad and vague. Specifically, Higginbotham claims that the penalty for murder is life with the possibility of parole; however, he asserts that, according to the MDOC, he is not eligible for parole.

¶ 6. The grand jury indicted Higginbotham for capital murder. As reflected in his plea petition, however, Higginbotham pled guilty to the lesser crime of murder under section 97-3-19(l)(a). The circuit court then sentenced Higginbotham for the crime of murder to life imprisonment. His plea petition provided that he was sentenced under Mississippi Code Annotated section 47-7-3(l)(f) (Rev.2011), which clearly prohibits parole eligibility in this case. Section 47 — 7—3(l)(f) states: “No person shall be eligible for parole who is charged, tried, convicted and sentenced to life imprisonment under the provisions of [Mississippi Code Annotated] [sjection 99-19-101 [ (Rev.2007).]” However, Higginbotham argues that section 97-3-21 entitles him to parole eligibility. Section 97-3-21 states:

Every 'person who shall be convicted of murder shall be sentenced by the court to imprisonment for life in the State Penitentiary.
Every person who shall be convicted of capital murder shall be sentenced (a) to death; (b) to imprisonment for life in the State Penitentiary without parole; or (c) to imprisonment for life in the State Penitentiary with eligibility for parole as provided in [s]ection 47 — 7—3(l)(f).

(Emphasis added).

¶ 7. Higginbotham appears to confuse the penalties for murder and capital murder. He primarily argues that the wording of section 97-3-21 has not been amended and is inconsistent with section 47-7-3(l)(f) regarding parole eligibility. Section 47 — 7—3(l)(f) prohibits parole eligibility for a prisoner sentenced to life imprisonment under Mississippi Code Annotated section 99-19-101 for capital murder or “other capital offense[s].” Since Higginbotham pled guilty to murder, carrying a life sentence, he falls under this prohibition of other capital offenses due to his life sentence. See Miss.Code Ann. § 1-3-4 (Rev. 2005) (“The terms ‘capital case,’ ‘capital cases,’ ‘capital offense,’ ‘capital offenses,’ and ‘capital crime’ when used in any statute shall denote criminal cases, offenses and crimes punishable by death or imprisonment for life in the state penitentiary.”). See generally Williams v. State, 94 So.3d 324, 333-35 (¶¶ 33-35) (Miss.Ct.App.2011) (certiorari denied) (discussing parole eligibility for those convicted of capital murder). Because Higginbotham pled guilty to the lesser crime of murder and received a life sentence, he would be eligible to petition for conditional release at age sixty-five under Mississippi Code Annotated section 47-5-139(l)(a) (Rev.2011).

¶8. Higginbotham’s plea petition references the correct statutory provision for sentencing but improperly uses the term “parole” instead of “conditional release.” However, Higginbotham’s own testimony at the evidentiary hearing on his PCR motion reflects that his attorney advised him of his potential release at the age of sixty-five instead of eligibility for parole after serving only ten years, as Higginbotham now claims he was entitled. Since Higginbotham was thirty-six years old at the time of his plea and sentencing, he will have served substantially more than ten years upon reaching age sixty-five. Notably, at the evidentiary hearing, Higginbotham testified that his attorney advised him that he would be eligible for parole at the age of sixty-five, when he could petition for release.

¶ 9. Higginbotham’s testimony shows that his argument of ambiguity arises from a reading of section 97-3-21 and his attorney’s use of the term “parole eligibility” instead of “conditional release,” but not from his attorney’s advice on his plea. Section 97-3-21 states that upon conviction for murder, a life sentence will be imposed. Section 97-3-21 references parole eligibility when addressing capital murder, but does not address parole for murder. However, section 47 — 7—3(1)(f) prohibits parole eligibility for persons convicted of both murder and capital murder. The Legislature has yet to amend section 97-3-21 to clarify this point. Regardless, the reference in section 97-3-21 to parole eligibility in capital-murder cases fails to impact this case since Higginbotham pled guilty and the trial court sentenced him to simple murder, not capital murder. The affidavits submitted by Higginbotham, along with his PCR motion, contradict his own sworn testimony at his evidentiary hearing regarding his attorney’s advice. However, the testimony at the evidentiary hearing of Higginbotham’s uncle, Prentiss Ray, is consistent with Higginbotham’s testimony that his attorney told him he would be eligible for early release at age sixty-five.

¶ 10. This assignment of error is without merit.

II. VALIDITY OF GUILTY PLEA

¶ 11. Higginbotham argues that he involuntarily pled guilty on the erroneous advice of his defense counsel. Specifically, Higginbotham claims that his attorney advised him that if he pled guilty to murder, he would be eligible for parole after serving only ten years of his life sentence. Higginbotham pled guilty to murder under section 97 — 3—19(l)(a) and received a sentence of life imprisonment. Higginbotham contends that he would not have pled guilty to this crime if he had been correctly advised of his parole eligibility. Higginbotham also asserts that his diminished mental condition rendered his guilty plea involuntary.

¶ 12. Higginbotham’s sworn plea petition states as follows:

I wish to plead GUILTY to the charge(s) of: Murder[. Miss.Code Ann.] § 97 — 3—19(l)(a).
I know that if I plead Guilty to this (these) charge(s), the possible sentence is imprisonment for life in the State Penitentiary with eligibility for parole as provided in [section] 47 — 7—3(l)(f).
I also know that the sentence is up to the [e]ourt; that the [c]ourt is not required to carry out any understanding made by me and my attorney with the District Attorney; and further, that the [c]ourt is not required to follow the recommendation of the District Attorney, if any. The District Attorney ... shall make no recommendations to the [c]ourt concerning my sentence except as follows:
The District Attorney recommends: imprisonment for life in the State Penitentiary with eligibility for parole as provided in [section] 47 — 7—3(l)(f).

¶ 13. On May 18, 2009, Higginbotham’s plea hearing commenced. Higginbotham offered no evidence questioning his competency. See Dillon v. State, 75 So.3d 1045, 1051 (¶ 18) (Miss.Ct. App.2010) (“The key phrase in [Uniform] Rule [of Circuit and County Court] 9.06 in determining whether a competency hearing is required is ‘reasonable ground to believe that the defendant is incompetent.’ The circuit judge is in the best position to view the evidence and to ‘observe the demeanor and behavior of the defendant.’ ”). The circuit court took great measures to ensure that Higginbotham understood his actions in pleading guilty and also the consequences of doing so. Regarding Higginbotham’s potential sentence, the circuit court had the following exchange with Higginbotham:

THE COURT: It’s the [cjourt’s understanding that the district attorney’s office is allowing you to plead guilty from capital murder to the lesser included offense of murder. Do you understand for the lesser included offense of murder, the sentence in this case will be life in prison with-in the custody of [the] Mississippi Department of Corrections? Do you understand that to be the recommendation?
HIGGINBOTHAM: Yes, sir.
THE COURT: And do you understand if you were tried and convicted of the ' crime of capital murder[,] that a jury could affix the death penalty upon you, and you could be sentenced to death?
HIGGINBOTHAM: Yes, sir.
THE COURT: And if they didn’t sentence you to death, the penalty for capital murder would be life in prison without parole.
HIGGINBOTHAM: Yes, sir.
THE COURT: But on the straight life — I mean on straight murder, it is a life sentence. Do you understand that?
HIGGINBOTHAM: Yes, sir.

Higginbotham then testified he was completely satisfied with the representation that he received from Steve Wright, his defense counsel. Higginbotham also confirmed that his plea of guilty was his own free and voluntary act.

¶ 14. At the evidentiary hearing on his PCR motion, Higginbotham testified that prior to entering his guilty plea, Wright advised him that he could petition for early release after age sixty-five:

THE COURT: ... [A ]nd you heard Mr. Wright advise that after age 65— did Mr. Wright tell you when you got to be age 65 you could petition to be released?
HIGGINBOTHAM: Yes, sir.
THE COURT: So then[,] you did know that?
HIGGINBOTHAM: See, at the — when get [sic] convicted after June 1994 on [a] life sentence, ain’t no more parole.
THE COURT: But did Mr. Wright tell you, you would be eligible for release at age 65 if you petitioned to be released—
HIGGINBOTHAM: Yeah, but I read that statute.
THE COURT: Well, I’m not asking you about that statute. I’m asking you if that’s what he—
HIGGINBOTHAM: That’s what he told me.
THE COURT: Well, where did this come from[,] where you’re claiming that he said after you serve ten years, you could be released? Where did that come from?
HIGGINBOTHAM: Out of the statute[,] the guy that done my paperwork for me.
THE COURT: But Mr. Wright didn’t tell you that?
HIGGINBOTHAM: Yeah, he told me that, too.
THE COURT: So which did he tell you, then, that you would be 65 or that you’d — after ten years?
HIGGINBOTHAM: He said ten years and said 65. So I don’t know what he told me. So I read something — I read it in the paper. It said ten years, too.
THE COURT: So you’re basing it now on what you read in some old statute rather than what Mr. Wright told you, then; is that correct?
HIGGINBOTHAM: Yes, sir.

(Emphasis added).

¶ 15. Higginbotham submitted an affidavit from his mother, Mary A. Higginbotham, which stated that Wright told her that her son would be-eligible for parole after serving ten years if he pled guilty. However, Mary testified at the evidentiary hearing that Wright never told her that her son would be eligible for parole in ten years, as she claimed in her affidavit.

¶ 16. Higginbotham also submitted the affidavit of Ray, his uncle. Ray’s affidavit stated that he heard Wright tell Higginbotham that if he pled guilty, he would be eligible for parole in ten years. However, Ray testified at the evidentiary hearing that Wright said Higginbotham would be sixty-five years of age before he could “get out of it.”

¶ 17. Wright testified that he told Higginbotham that he could apply for parole at age sixty-five as long as he had served, at that time, at least ten years. Wright denied ever telling Higginbotham’s mother or his uncle that Higginbotham would be eligible for parole after serving only ten years.

¶ 18. After hearing the testimony of the witnesses, the circuit court determined that Wright did not advise Higginbotham that he would be eligible for parole after only serving ten years in prison. The circuit court instead found that Wright correctly advised Higginbotham that when he reached the age of sixty-five, he could petition to be released from custody under Mississippi Code Annotated section 47-5-139(l)(a). The circuit court found that while Wright may have used the term “parole eligibility” rather than the correct term “conditional release,” Wright correctly advised Higginbotham that he would be eligible for release at age sixty-five.

¶ 19. After reviewing the record, we find no evidence in the record contrary to the finding of the circuit court that Higginbotham entered a knowing, voluntary, and intelligent plea. See Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss.2009) (“A guilty plea will be found valid if it is shown to have been voluntarily and intelligently made by the criminal defendant before the trial court.”). As such, we find no merit to this issue and no abuse of discretion by the circuit court.

¶ 20. We, likewise, find no merit to Higginbotham’s claim that he received ineffective assistance of counsel because his attorney allegedly provided him with the wrong legal advice concerning parole eligibility. The circuit court informed Higginbotham of the charge against him, the effect of his guilty plea, the rights he waived by pleading guilty, and the possible sentence he could receive. The plea petition, the guilty-plea colloquy, and the post-trial PCR evidentiary hearing, taken together, reflect that Higginbotham’s counsel correctly advised him of the life sentence, his potential for release at age sixty-five, and the correct sentencing statutory provision, section 47 — 7—3(l)(f). This statutory provision prohibits parole eligibility because Higginbotham pled guilty to murder and was sentenced to life imprisonment. Higginbotham, however, has the potential for release under section 47-5-139(l)(a) at age sixty-five after serving fifteen years by petitioning for early release at or after age sixty-five. Higginbotham was thirty-six years old at the time of his guilty plea and sentence; therefore, upon reaching age sixty-five, Higginbotham will have served substantially more than fifteen years. At the evidentiary hearing, Higginbotham admitted being advised of eligibility to be released at age sixty five. Further, the testimony from the plea hearing shows that Higginbotham was satisfied with his attorney upon entering his guilty plea, and that Higginbotham entered a voluntary guilty plea.

¶ 21. In order to succeed on an ineffective-assistance-of-counsel claim, Higginbotham must prove that his counsel rendered deficient performance, which prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Higginbotham has failed to meet this burden. Consequently, we find that this argument is also without merit.

III. PAROLE ELIGIBILITY

? 22. Higginbotham contends that the circuit court erroneously advised him that he would be eligible for parole. We recognize, however, that “[ejarly release and parole are matters of legislative grace and are not consequences of a guilty plea. The trial court is not required to explain it.” Robinson v. State, 964 So.2d 609, 613 (¶ 16) (Miss.Ct.App.2007) (internal citations omitted). Here, Higginbotham pled guilty to murder. The circuit judge sentenced Higginbotham to life imprisonment. At his plea hearing, the circuit court informed Higginbotham of the consequences of his guilty plea and of the potential sentences that he stood to receive. The record reflects that the circuit court rendered no advice or comment stating or inferring, that Higginbotham would be eligible for parole. This issue is without merit.

IV. INDICTMENT

¶ 23. Higginbotham argues that the grand jury intended to indict him for either conspiracy or aiding and abetting, i.e., accessory after the fact. According to Higginbotham, his wife was indicted as a co-conspirator, and entered a guilty plea to conspiracy. Therefore, following Higginbotham’s reasoning, the circuit court erred in sentencing him for murder.

¶ 24. The Winston County grand jury indicted Higginbotham for capital murder. Higginbotham subsequently pled guilty under section 97-3-19(l)(a) to the lesser crime of murder. A review of the transcript shows that the circuit court correctly advised Higginbotham of the potential sentences available for both capital murder and murder. The hearing transcript also shows that Higginbotham knew and understood that he had been indicted for capital murder and was pleading guilty to the lesser crime of murder, with a sentence of life imprisonment. “A valid guilty plea waives the right to challenge the sufficiency of the State’s evidence.” Grissom v. State, 66 So.3d 1280, 1282 (¶ 6) (Miss.Ct.App.2011); see Evans v. State, 61 So.3d 922, 925 (¶ 9) (Miss.Ct.App.2011) (stating that a valid guilty plea operates as a waiver against any “non-jurisdictional rights or defects”). See also URCCC 8.04(A)(4). Higginbotham can no longer challenge the sufficiency of the State’s evidence of his guilt regarding murder. See Grissom, 66 So.3d at 1282 (¶ 6). This argument is without merit.

¶ 25. Furthermore, we find no merit to Higginbotham’s contention that the circuit court violated the plea agreement by sentencing him to “capital murder.” As recognized above, Higginbotham pled guilty to murder under section 97-3-19(l)(a), not capital murder. The penalty for murder as defined in section 97-3-19(l)(a) is life imprisonment, which is the sentence Higginbotham received. Additionally, regarding a trial court’s sentencing discretion, we recognize that the Mississippi Supreme Court has held:

[I]t is well-settled in Mississippi that the imposition of a sentence upon a criminal conviction belongs within the sound discretion of the trial court (not the prosecutor) and generally is not subject to appellate review if it is within the limits prescribed by the applicable statute. This includes sentences based on guilty pleas. So long as the judge remains uninvolved in any plea negotiations between the defendant and the State, it will not be reversible error for a trial judge to sentence a defendant to a longer term than that recommended by the State.

Burrough, 9 So.3d at 372 (¶ 10) (internal citations omitted). This issue is without merit.

V. COURT-APPOINTED COUNSEL

¶ 26. Higginbotham argues that he was entitled to legal representation at the post-conviction evidentiary hearing and on this appeal. We disagree. “The trial court may appoint counsel to represent an indigent defendant in a PCR evi-dentiary hearing.” Nance v. State, 766 So.2d 111, 114 (¶ 12) (Miss.Ct.App.2000). However, “a criminal defendant has neither a state nor federal constitutional right to appointed counsel in post-conviction proceedings.’” Watts v. State, 981 So.2d 1034, 1037 (¶ 6) (Miss.Ct.App.2008). “[A]n appeal from a final judgment denying post-conviction relief is provided for by the Mississippi Uniform Post-Conviction Collateral Relief Act, and there is no right to appointed counsel.” Id. Even though no right to counsel exists in most civil cases, the trial court has discretion to appoint counsel in PCR proceedings where the trial court determines that the petitioner qualifies and displays a need for counsel. See, e.g., Unruh v. Puckett, 716 So.2d 636, 641 (¶ 21) (Miss.1998) (recognizing the need for appointed counsel existed because the petitioner had limited case materials, due to imprisonment in South Dakota, and claimed indigent status); Gray v. State, 13 So.3d 283, 296 (¶30) (Miss.Ct.App.2008) (“[Bjecause of the complexity of the issues presented in Gray’s appeal and because the resolution of the issues could potentially affect a class of prisoners, we feel that justice would be best served if Gray, who is indigent, were provided appointed counsel for the evidentiary hearing.”). See Miss.Code Ann. §§ 99-39-23(1), 99-15-15 (Rev.2007 & Supp.2011). However, a review of the record, including the post-trial evidentiary hearing, fails to reflect a need for appointment of counsel for post-trial or appellate proceedings. We, therefore, find no abuse of discretion by the circuit court in denying appointment of counsel for the evidentiary hearing on Higginbotham’s PCR motion. Therefore, this assignment of error is without merit.

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

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

      . Section 47-5~139(l)(a) provides:
      An inmate shall not be eligible for the earned time allowance if ... [t]he inmate was sentenced to life imprisonment; but an inmate, except an inmate sentenced to life imprisonment for capital murder, who has reached the age of sixty-five (65) or older and who has served at least fifteen (15) years may petition the sentencing court for conditional release^]

      . Higginbotham asserts that "he suffers from a mental condition^] one that falls under 'mental retardation,’ " and also that he has a low IQ score.

      . While Higginbotham informed the circuit court that he was in special education in school, the circuit court responded by asking Higginbotham if he was "clear-headed,” understood what was occurring, and knew the difference between right and wrong. Higginbotham responded affirmatively.

      . This Court has stated:
      It will not be suggested by anybody that, before accepting a plea of guilty to an offense with respect to which parole is a possibility the judge must determine whether the defendant understands the nature of parole, his eligibility therefor, and the circumstances in which it may thereafter be granted.

        Stewart v. State, 845 So.2d 744, 747 (¶ 9) (Miss.Ct.App.2003).

      . For purposes of efficiency, we have consolidated Higginbotham's fourth and sixth issues in our discussion.

      . Higginbotham also claims that he received ineffective assistance of counsel when he received a sentence for a crime for which he was not indicted. Because we find that the circuit court properly sentenced Higginbotham for murder, we decline to address this claim.

      . See M.R.A.P. 6 (stating on its face that the procedural rule applies only to criminal cases).

      . The right to counsel exists in limited civil cases, such as certain cases involving termination of parental rights where criminal allegations of abuse arise. J.C.N.F. v. Stone County Dep’t of Human Servs., 996 So.2d 762, 770 (¶¶ 28-29) (Miss.2008).

      .Section 99-15-15 states, in part:
      When any person shall be charged with a felony, misdemeanor punishable by confinement for ninety (90) days or more, or commission of an act of delinquency, the court or the judge in vacation, being satisfied that such person is an indigent person and is unable to employ counsel, may, in the discretion of the court, appoint counsel to defend him.