author: AMY, Judge.

text:
    Camille LANDRY, et al. v. PEDIATRIC SERVICES OF AMERICA, INC., et al.
    No. 14-376.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 15, 2014.

      John L. Hammons, Nelson & Hammons, Shreveport, LA, for Plaintiffs/Appellants, Ryan Landry, et al.
    James P. Lambert, Lafayette, LA, for Plaintiffs/Appellants, Camille Landry, et al.
    J. Michael Veron, J. Rock Palermo, III, Veron, Bice, Palermo & Wilson, L.L.C., Lake Charles, LA, for Defendants/Appel-lees, PSA of Lafayette, LLC PSA of Lafayette, LLC, Pediatric Services of America, Inc.
    Monica A. Frois, Brandy N. Sheely, Baker Donelson Bearman Caldwell & Ber-kowitz, P.C., New Orleans, LA, for Defendants/Appellees, PSA of Lafayette, LLC, PSA of Lafayette, LLC, Pediatric Services of America, Inc.
    Marc W. Judice, James J. Hautot, Judi-ce & Adley, Lafayette, LA, for Defendants/Appellees, Dr. Rosaire Josseline Bel-izaire, Dr. Cong T. Vo.
    Nadia de la Houssaye, Jones Walker, L.L.P., Lafayette, LA, for Defendants/Ap-pellees, .Louisiana Patient’s Compensation Fund, Dr. Vasanth Nalam.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and MARC T. AMY, Judges.
   AMY, Judge.

liThe plaintiffs filed a petition seeking to annul an underlying judgment rendered following a jury trial. The plaintiffs alleged that, during the trial, a juror spoke to the trial court regarding her concerns about continuing to serve on the jury and that the trial court did not advise the parties of that conversation. This decision not to disclose the juror communication, the plaintiffs argued, constituted a condition rendering the judgment null under La.Code Civ.P. art. 2004. The trial court dismissed the plaintiffs’ petition after sustaining the defendants’ motion to strike the affidavit of the juror and, in turn, the defendants’ exceptions of no cause of action. The' plaintiffs appeal. For the following reasons, we reverse the ruling of the trial court and remand for further proceedings.

Factual and Procedural Background

The plaintiffs, Camille Landry and Ryan Landry, are the parents of a minor child who experienced breathing distress and, ultimately, brain damage from a hypoxic brain injury. The plaintiffs filed the underlying matter seeking damages related to that condition from various health care providers and a medical equipment provider. Following a multi-week trial, the jury returned a verdict attributing the fault to a nonparty physician. That verdict was affirmed on appeal. See Landry v. PSA of Lafayette, LLC, 12-277 (La.App. 3 Cir. 11/7/12), 120 So.3d 707. Thereafter, the plaintiffs filed a writ application with the Supreme Court of Louisiana.

Before resolution of that writ application, however, the plaintiffs filed a “Petition to Annul Judgment Pursuant to La. C.C.P. Article 2004.” In that separate proceeding, the plaintiffs alleged that during the course of trial, one of the jurors ■approached the initial trial court judge and first informed him that the multi-week | ¡.trial had created difficulties with her work schedule. Later, and at issue here, the juror informed the trial judge that during the course of the preséntation of evidence she had identified her name and writing on hospital records for the minor child that were published to the jury. She also explained that she recalled having a conversation with fellow nurses about one of the child’s medical conditions. Referencing the attached affidavit of the juror, the petition suggested that the juror expressed to the trial judge “that she did not feel it was appropriate since she had actually treated the child and recalled having discussed the condition of ‘cortical thumb’ with other nurses.”

The petition alleged that the trial judge “responded to [the juror] that she was not to disclose this information to any other jurors and also told her that he was not going to disclose this fact to the lawyers representing the litigants. He then instructed her to continue to serve as a juror.” The plaintiffs asserted, however, that the trial judge “had a legal obligation to notify the parties and to allow them to question this juror in open court.” The failure to do so, the plaintiffs alleged, tainted the verdict and rendered the judgment “null as a matter of law.” For these reasons, the plaintiffs sought a full trial on the petition to annul judgment and a declaration that the underlying judgment is null.

In response, Pediatric Services of America, Inc. (PSA), one of the defendants in the underlying matter, filed an exception of no cause of action and submitted that the plaintiffs’ “nullity action is barred as a matter of law by its failure to exercise due diligence during voir dire.” In a supporting memorandum, PSA developed the argument, noting that the subject juror stated in an affidavit attached to the petition that she had disclosed during voir dire that she previously worked as a neonatal nurse, had been employed at the hospital where the child was |3hospitalized, and that she worked certain cases with several of the defendant physicians. PSA noted therein that the juror did not otherwise retreat from her voir dire admission that she could be a fair and impartial juror. PSA further argued that, in light of the underlying facts revealed at voir dire, the petition does not allege anything regarding the juror’s employment as a nurse that could not have been discovered with more fully developed voir dire questioning by the plaintiffs. Otherwise, PSA asserted that the plaintiffs did not demonstrate that there was any ill practice in the trial judge’s decision not to reveal the conversation with the juror. Instead, PSA suggested that no “rule, regulation, or standard” required the trial court to alert the parties about the conversation with the juror. Finally, PSA argued that the petition did not contain any facts demonstrating a causal relationship between the decision not to disclose the conversation with the juror and the ultimate jury’s verdict. Thus, PSA alleged in its exception, the petition does not set forth a cause of action.

Thereafter, two of the defendant physicians, Dr. Cong T. Vo and Dr. Rosaire Josseline Belizaire, filed a motion to strike/exclude the juror’s affidavit and related allegations. Namely, the defendant physicians argued that the affidavit, attached to the plaintiffs’ petition, violated La.Code Evid. art. 606(B) since it contained statements in an alleged attempt to “impeach the jury’s verdiet[.]” Therefore, the defendant physicians asked the trial court considering the petition to annul to strike the affidavit.

Additionally, the defendant physicians filed an exception of no cause of action and alternative motion for summary judgment. In their memorandum in support, the defendant physicians contend that the plaintiffs’ petition largely advances conclusions and not underlying facts that would demonstrate the |4occurrence of an ill practice. As did PSA, the defendant physicians asserted that there was no legal obligation for the trial judge to reveal the juror disclosure to the parties, the affidavit did not indicate that the juror was not impartial, and the plaintiffs did not allege that the juror discussed her recollections with the other members of the jury. Finally, the defendant physicians also argued that a more complete voir dire process could have revealed the information discovered during the midst of trial. In support of their alternative motion for summary judgment, the defendant physicians attached excerpts from the portions of the jury voir dire in which the juror was questioned regarding her work as a neonatal nurse and her familiarity with some of the medical issues that would be before the court.

The petition to annul judgment was assigned to Judge Edward Rubin, who heard the motion to strike, exceptions of no cause of action and motion for summary judgment. Providing written reasons for ruling in a minute entry, Judge Rubin first granted the motion to strike, finding that the affidavit did, in fact, address areas prohibited by La.Code Evid. art. 606(B). The trial court further granted the defendants’ exceptions of no cause of action and, in turn, determined that the defendant physicians’ alternative motion for summary judgment was rendered moot. Following that ruling, Judge Rubin entered judgment sustaining a motion to strike the juror’s affidavit and an exception of no cause of action filed by the Louisiana Patient’s Compensation Fund and another defendant physician, Dr. Vasanth Nalam. The judgment indicated that it did so upon consideration of its previously rendered minute entry.

The plaintiffs appeal the judgments entered in favor of the various defendants and assign the following as error:

hi. The trial court in the nullity action committed reversible error by striking the Affidavit of Kim Mayer Gis-claire, a civil juror in the underlying cause under Article 606(B)of the Code of Evidence. Since the Affidavit in no way related to jury deliberations but rather dealt with an undisclosed ex parte communication between the juror and the trial judge four days before the end of the trial concerning the juror’s continued ability to be a fair and impartial juror. The trial judge in the nullity action committed reversible error since Article 606(B) of the Code of Evidence is simply not applicable to the Affidavit in question.
II. The trial court in the nullity action committed reversible error in granting an exception of no cause of ' action and in ruling that Judge Edward Broussard had no duty to advise counsel of record of an ex parte communication between himself and a trial juror who expressed doubts to him about her continued ability to be a fair and impartial juror, and in ruling as a matter of law that Judge Broussard had the legal discretion to decide unilaterally to allow the juror to continue to serve without advising counsel of record. The trial court in the nullity action committed clear error since the failure of the judge in the underlying case constitutes a deprivation of the due process right to cross examine jurors in such a situation under Article 1769(B) of the Louisiana Code of Civil Procedure.
III. The trial court in the nullity action committed reversible error in granting an exception of no cause of action and in ruling that plaintiffs failed to allege facts which could establish a causal link between the improper ex parte com-⅞ munication not revealed to counsel and the jury verdict sought to be nullified. The trial court in the nullity action committed reversible error since any verdict and judgment which follows an improper ex parte communication between the judge and a juror is considered tainted and null as a matter of Louisiana law.

Discussion

Motion to Strike

Without elaboration in the minute entry, Judge Rubin granted the motions to strike, finding that the affidavit was inadmissible under La.Code Evid. art. 606(B). |fiThat article, which pertains to the disqualification of a juror as a witness provides, in part, that:

B. Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent fi'om the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether any outside influence was improperly brought to bear, upon any juror ... [.] Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

La. Code Evid. art. 606(B)(emphasis added).

After review, we find that the juror’s affidavit and related allegations do not, on their face, implicate La.Code Evid. art. 606(B). Clearly, the plaintiffs’ petition here seeks to annul the underlying judgment and the affidavit and the related allegations were offered in support of that petition. However, the juror’s affidavit does not address the jury’s deliberation or the juror’s mental processes in connection therewith.

Rather, the affidavit addresses events that occurred before deliberations began and it is offered in support of a petition that questions whether those events should have been made known to the parties so that they could consider the appropriateness of whether the juror should be allowed to continue to serve or whether the use of an alternate juror was required. In this sense, the deliberations |7and the juror’s thought processes at that more distant point in time are largely irrelevant, notwithstanding the fact that such evidence would be excluded by La.Code Evid. art. 606(B).

Accordingly, we reverse the granting of the motion to strike the affidavit of the juror and the petition’s related allegations.

Fraud or III Practices

The plaintiffs’ remaining two assignments of error address the petition to annul judgment pursuant to La.Code Civ.P. art. 2004. That article provides that: “A final judgment obtained by fraud or ill practices may be annulled.” La.Code Civ.P. art. 2004(A). Such an action to annul a judgment on those grounds “must be brought within one year of the discovery by the plaintiff in the nullity action of |sthe fraud or ill practices.” La.Code Civ.P. art. 2004(B). See also Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983).

Notably, the Louisiana Supreme Court has explained that La.Code Civ.P. art.2004 is not limited to situations involving actual fraud or intentional wrongdoing. Kem Search, 434 So.2d 1067. Rather, it is “sufficiently broad enough to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable.” Power Marketing Direct, Inc. v. Foster, 05-2023, p. 16 (La.9/6/06), 938 So.2d 662, 673 (emphasis added). See also Wright v. Louisiana Power & Light, 06-1181, p. 24 (La.3/9/07), 951 So.2d 1058, 1074 (wherein the supreme court addressed a nullity action in the context of a party’s alleged failure to disclose the existence of certain physical evidence. The supreme court concluded that “[ajbsent a specific discovery request or ‘knowing concealment,’ failing to disclose information that might have been helpful to the opposing party’s case does not constitute fraud or ill practice if with, reasonable diligence, the party could have ascertained the information himself.”) However, the supreme court has cautioned that: “It is imperative that courts review a petition for nullity closely as an action for nullity based on fraud or ill practices is not intended as a substitute for an appeal or as a second chance to prove a claim that was previously denied for failure of proof.” Belle Pass Terminal, Inc. v. Jolin, Inc., 01-0149, p. 5 (La.10/16/01), 800 So.2d 762, 766.

With that framework in mind, we turn to consideration of the defendants’ challenges to the petition for nullity.

\ ¿Exception of No Cause of Action

As explained above, both PSA and the defendant physicians filed an exception of no cause of action. Judge Rubin granted those exceptions, finding that the plaintiffs failed to show a basis for the nullity action under either La.Code Civ.P. art. 1769(B) or under the Code of Judicial Conduct.

Within the context of the peremptory exception, a “cause of action” is defined as the operative facts giving rise to a plaintiffs right to judicially assert the action against the defendant. State, Div. of Admin, v. Infinity Sur. Agency, 10-2264 (La.5/10/11), 63 So.3d 940. The exception of no cause of action is used to test the legal sufficiency of the petition and inquires whether the law affords a remedy based on the facts alleged in the pleading. Id. As no evidence may be introduced to support or challenge the exception, the trial court considers whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Id. All well-pleaded allegations of fact are accepted as true and correct, and all doubts are resolved in favor of the sufficiency of a petition so as to afford litigants their day in court. Jackson v. City of New Orleans, 12-2742 (La.1/28/14), 144 So.3d 876. It is the moving party who must bear the burden of demonstrating that the petition states no cause of action. Id. On review of a trial court’s judgment on the exception, an appellate court considers the matter de novo since the exception raises a question of law. Id.

After review of the petition, we find that it does, in fact, sufficiently set forth facts establishing the existence of a cause of action. As noted by the plaintiffs, Louisiana Code of Civil Procedure Article 1769(B) provides that: “Alternate jurors, in the order in which they are called, shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties.” The plaintiffs here alleged facts in support of their view that the subject juror may have become unable or disqualified to Imperform her duties during the course of trial, thereby invoking the operation of Article 1769. Certainly, as recounted by the juror in the affidavit and repeated in the petition, the juror “expressed some discomfort with continuing to serve as a juror” to the trial judge because of the revelations regarding her potential involvement in the care of the child and that “she did not feel that it was appropriate[J” While these statements are perhaps vague and not ultimately indicative that the juror had become unable or unqualified to serve due to bias, the statements are not insignificant. Thus, we find that they are sufficient to allege the existence of a cause of action on the issue of whether some improper procedure or practice deprived the plaintiffs of an opportunity to eonsider/ehallenge the juror’s continued service. Significantly, in consideration of an exception of no cause of action all doubts are resolved in favor of maintaining the petition. See Jackson, 144 So.3d 876.

Accordingly, we find error in the sustaining of the exception of no cause of action. We reverse that ruling and deny the exception.

Finally, we note that the defendant physicians filed an alternative motion for summary judgment and supported that motion with excerpts from the voir dire transcript which contains questioning between the parties and the subject juror regarding her work as a neonatal nurse. However, in light of its ruling on the exceptions of no cause of action, the trial court determined that the motion for summary judgment was moot. As the trial court did not address the alternative motion for summary judgment, we do not review that motion for the first time on appeal. Rather, we remand this matter for the trial court’s consideration of the Inalternative motion for summary judgment and for further proceedings. See, e.g., Mouton v. Hebert’s Superette, Inc., 10-787, pp. 9-10 (La.App. 3 Cir. 12/8/10), 53 So.3d 561, 566 (wherein a panel of this court explained that, in order “[t]o preserve the proper allocation of functions between trial and appellate courts, an appellate court may remand to the trial court instead of conducting a de novo review.”).

DECREE

For the foregoing reasons, the trial court’s judgment is reversed and judgment is entered as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the Motion to Strike Juror Affidavit and Related Allegations by Plaintiff filed by Dr. Cong Vo and Dr. Rosaire Belizaire be, and is hereby, DENIED.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the Peremptory Exception of No Cause of Action filed by Dr. Cong Vo and Dr. Rosaire Belizaire and the Peremptory Exception of No Cause of Action filed by Pediatric Services of America, Inc. be, and are hereby, DENIED.

This matter is remanded for consideration of the Alternative Motion for Summary Judgment filed by Dr. Cong T. Vo and Dr. Rosaire Josseline Belizaire as well as for further proceedings. Costs of this appeal are assigned equally to the defendants ap-pellees, Drs. Vo and Belizaire, Pediatric Services of America, Inc., and The Louisiana Patient’s Compensation Fund on Behalf of Dr. Vasanth Nalam.

REVERSED AND REMANDED.

      . Louisiana Code of Civil Procedure Article 964 provides that: "The court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter.”

      . In the subject affidavit, the juror sets forth the information she provided to counsel when questioned during voir dire, stating:
      In my examination to become a juror, I revealed to the parties that ... I formerly had been a neonatal nurse working at Women’s and Children's Hospital in Lafayette, Louisiana. I further revealed that I had worked certain cases with three of the defendants, Dr. Vasanth Nalam, Dr. Cong Vo and Dr. Rosaire Belizaire. In my questioning, I indicated that despite the fact that I had worked with them, that I could be a fair and impartial juror and I believed this to be so at the outset of the trial.
      Subsequently in the affidavit, the juror explained that, after one week of trial, she began to experience scheduling and financial problems associated with her work and the contemporaneous court proceedings. She explained that she and another juror expressed their concerns to the trial judge, but that he informed them the employer’s actions were beyond his control and that she would have to continue serving as a juror. She stated that she also informed him that she "was feeling very uncomfortable with continuing to serve as a juror because much of the evidence was starting to involve friends and people I had worked with, such as Drs. Vo and Belizaire. He instructed us to continue serving[.]”
      The juror further explained that, later during the trial, she began to associate one of the medical conditions experienced by the minor child with conversations she recalled having about the condition with one of the "staff whose notes were being presented in evidence.” Even later, she recognized her own name and writing as a neonatal nurse treating the minor child when "certain medical records were broadcast onto a screen for viewing by the jury[.]” The juror explained that:
      At the next break, I realized that I needed to speak to Judge Broussard and asked to do so. I spoke to Judge Broussard, who was also accompanied by his law clerk, Casey Blanchette. I told him that I had seen my notes and my name as a treating nurse on the case of Tai Landry. I did not feel it was appropriate since I had actually treated the child and I recall discussing the condition of "cortical thumb” in connection with her treatment. Judge Broussard told me that "you are not to disclose this information to the other jurors and I am not going to disclose this to the lawyers.” He instructed me to continue to serve as a juror.
      - The juror explained that she continued to do so. However, the juror stated in the affidavit that she was "bothered about the meeting with Judge Broussard” and eventually provided the subject affidavit to Ms. Landry’s attorney.


source: Caselaw Access Project

author: PETERS, Judge.

license: Public Domain

text:
    Mark EDWARDS v. SOUTHEASTERN FREIGHT LINES, INC.
    No. WCA 14-871.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 15, 2014.
    James Edward Burks, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellant: Mark Edwards.
    John Joseph Rabalais, Rabalais, Unland & Lorio, Covington, LA, for Defendant/Appellee: Southeastern Freight Lines, Inc.
    Michelle A. Breaux, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellant: Mark Edwards.
    David Paul Bruchhaus, Mudd & Bruch-haus, Lake Charles, LA, for Plaintiff/Appellant: Mark Edwards.
    Court composed of Judges JIMMIE C. PETERS, JAMES T. GENOVESE, and JOHN E. CONERY.
   PETERS, Judge.

|,The defendant in this workers’ compensation litigation, Southeastern Freight Lines, Inc., moves "to dismiss the appeal taken in this case by the plaintiff, Mark Edwards. For the following reasons, we deny the motion to dismiss the appeal.

Mr. Edwards filed the instant workers’ compensation claim against Southeastern Freight Lines, Inc. (Southeastern) asserting that he sustained an injury to his back and legs on October 24, 2012, while moving a piece of steel during the course of his employment with Southeastern. As a result of the accident, Southeastern’s workers’ compensation carrier paid temporary total disability benefits to Mr. Edwards and authorized medical treatment. Subsequently, Southeastern filed a motion for summary judgment seeking termination of his benefits and reimbursement for benefits previously paid to Mr. Edwards. In its motion, Southeastern asserted that pursuant to La.R.S. 23:1208, Mr. Edwards had forfeited his right to receive workers’ compensation benefits because he had made misrepresentations regarding his history of prior accidents, injuries, and workers’ compensation claims. Also, Southeastern filed a reconventional demand seeking restitution for workers’ compensation benefits paid to Mr. Edwards, as well as costs and attorney’s fees. Following a hearing, the workers’ compensation judge (WCJ) granted Southeastern’s motion and dismissed Mr. Edwards’ suit based on the court’s finding that Mr. Edwards had violated La. R.S. 23:1208. The WCJ signed a judgment to that effect on November 6, 2013, and notice of judgment was mailed on November 14, 2013.

On November 8, 2013, Mr. Edwards filed a motion to clarify the judgment wherein he sought to have the WCJ specify the particular section of La.R.S. 23:1208 he was found to have violated. He followed this motion by filing a | ¡¿motion for new trial on November 19, 2013. On May 8, 2014, the WCJ signed a judgment denying both of Mr. Edwards’ motions. The notice of judgment was mailed on May 15, 2014, and on June 30, 2014, Mr. Edwards filed a motion for appeal. The WCJ granted the appeal by an order signed on July 2, 2014.

The appeal record was lodged in this court on August 22, 2014, and in his appeal, Mr. Edwards specifically states that he seeks to appeal the WCJ’s May 8, 2014 judgment. In its motion to dismiss the appeal, Southeastern asserts that the May 8, 2014 judgment is a non-appealable, interlocutory judgment which is only subject to appellate review via an application for supervisory writs and, therefore, should be dismissed. Southeastern has also filed an answer to the instant appeal, arguing therein that if, and only if, the underlying judgment of November 6, 2013, is determined to be the subject of this appeal, then that judgment should be amended to provide Southeastern with a reimbursement award for Mr. Edwards having fraudulently received workers’ compensation benefits.

In considering Southeastern’s motion, we first note that La.Code Civ.P. art. 2083(C) provides that “[a]n interlocutory judgment is appealable only when expressly provided by law.” Additionally, the ruling denying the motion for clarification of the November 6, 2013 judgment is an interlocutory judgment because it does not decide the merits of the litigation. See La.Code Civ.P. art. 1841. Furthermore, a judgment denying a motion for new trial is an interlocutory judgment. McClure v. City of Pineville, 05-1460 (La.App. 3 Cir.12/6/06), 944 So.2d 805, writ denied, 07-0043 (La.3/9/07), 949 So.2d 446. Finally, Mr. Edwards has not asserted any express provision of the law that would cause him to.be able to maintain an appeal on the May 8, 2014 as allowed by La.Code Civ.P. art. 2083(C).

¡.¡However, while we recognize that Mr. Edwards’ motion for appeal expressly states that he seeks to appeal the May 8, 2014 judgment, we also note that in cases in which the motion for appeal states that the appeal is being taken only from the judgment on a motion for new trial but the appellant exhibits the intent to appeal the judgment on the merits, this court has held that the appeal can, nonetheless, be considered as an appeal of the judgment on the merits. McClure, 944 So.2d 805; Thompson v. Nationwide Mut. Ins. Co., 95-258 (La.App. 3 Cir. 10/4/95), 663 So.2d 191. In the instant case, Mr. Edwards raises arguments in his appellate brief which demonstrate that the judgment he actually seeks to have this court review is the judgment of November 6, 2013. Inasmuch as Mr. Edwards has demonstrated his intent to appeal the underlying summary judgment granted on the merits of the ease, we find that the appeal should be considered as an appeal of that judgment. Therefore, we deny Southeastern’s motion to dismiss the appeal.

MOTION TO DISMISS APPEAL DE NIED.


author: PIERCE, Justice, DICKINSON, Presiding Justice,

text:
    Alisha VANWEY a/k/a Alisha Gadd a/k/a Alisha Renae Gadd a/k/a Alisha Renea Gadd a/k/a Alisha R. Gadd a/k/a Alisha R. Vanwey a/k/a Alisha Renee Van Wey a/k/a Alisha R. Vanway a/k/a Alisha Renee Woods a/k/a Alisha Woods a/k/a Alisha Renae Wey a/k/a Alisha Renae Vanney v. STATE of Mississippi.
    No. 2012-CT-00668-SCT.
    Supreme Court of Mississippi.
    July 24, 2014.
    Alisha Vanwey, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   ON WRIT OF CERTIORARI

PIERCE, Justice,

for the Court:

¶ 1. Alisha Vanwey pleaded guilty in 2007 to three counts of selling hydroco-done in DeSoto County, and the trial court sentenced her as a habitual offender under Mississippi Code Section 99-19-81, to eleven years on each count, to run concurrently, in the custody of the Mississippi Department of Corrections. Vanwey filed a petition for post-conviction relief (PCR) in the DeSoto County Circuit Court, claiming, inter alia, that one of the two prior predicate felonies listed in her indictment alleging habitual-offender status did not meet the requirements of Section 99-19-81. Specifically, Vanwey claimed that her sentence of forty-five (45) days in the custody of Mississippi Department of Corrections (MDOC) followed by five (5) years of post-release supervision, reporting, for the conviction of felony forgery, does not meet Section 99-19-81’s requirement that a defendant “have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution.”

¶ 2. The trial court denied the motion, and the Court of Appeals affirmed the trial court’s decision based on the finding that Vanwey’s motion was procedurally barred as a successive writ and time-barred. Vanwey v. State, 2012-CP-00668-COA, — So.3d —, — - —, 2013 WL 4055366, at 2-3 (Miss.Ct.App. Aug. 13, 2013). The Court of Appeals also found no merit to Vanwey’s claim that her sentence was illegal because Vanwey’s sentence of forty-five days plus five years of post-release supervision qualified as a sentence of one year or more for the purpose of Section 99-19-81. See Miss. Code Ann. § 99-19-81 (Rev.2007); Vanwey, — So.3d at —, 2013 WL 4055366, at *3.

¶ 3. We granted Vanwey’s petition for writ of certiorari. We find, in this instance, Vanwey waived whatever contention she might have had with her habitual-offender status when she failed to challenge the sufficiency or validity of her two prior felony convictions and sentences at her plea hearing and then voluntarily and intelligently entered her guilty plea to three counts of selling hydrocodone as a habitual offender.

¶ 4. Even if Vanwey’s sentence for felony forgery did not meet Section 99-19-81’s requirements, Vanwey cannot demonstrate that she suffered a miscarriage of justice by her sentence. Based on the charges alleged in her indictment, Vanwey faced a possible sentence of 245 years in the penitentiary and a $8,005,000 fine. Vanwey petitioned the trial court to enter an open guilty plea to three of the five counts charged in her indictment, which she acknowledged carried a possible sentence of 180 years in the penitentiary and a $6,000,000 fine. The plea petition contained an agreement between Vanwey and the State for a recommended sentence of fifteen years on each count in the custody of the MDOC, as a habitual offender. During the plea hearing, the trial court fully advised Vanwey of her rights and informed her about the minimum and maximum sentence for each count and that the sentences could “run” consecutively. The trial court extensively questioned Vanwey as to her understanding of what it meant to be sentenced as a habitual offender under Section 99-19-81, and whether her attorney had advised her of the same. Vanwey expressly told the trial court that she understood the consequences of being sentenced as a habitual offender and that her attorney had so advised her. The trial court asked Vanwey if she understood that the court was not bound by any agreements between her and the State, and that the court could sentence her to 180 years in prison based on her guilty plea. Van-wey told the trial court that she understood.

¶ 5. After finding that Vanwey’s guilty plea was knowingly, voluntarily, and intelligently given, the trial court accepted Vanwey’s guilty plea. Providing Vanwey even more leniency than what the State recommended, the trial court sentenced her to eleven years for each count, to run concurrently, as a habitual offender.

¶ 6. Vanwey now comes to this Court claiming that her fundamental rights were violated because she received an illegal sentence. We think not.

¶ 7. Having failed to demonstrate how her sentence as a habitual offender prejudiced her in the slightest, Vanwey cannot now be heard to complain that her eleven-year sentence as a habitual offender, which she knowingly, voluntarily, and intelligently agreed to, constituted a miscarriage of justice.

¶ 8. Accordingly, we find this issue is without merit. And we affirm the judgment of the Court of Appeals as well as the trial court’s decision to dismiss Van-wey’s PCR claim.

CONCLUSION

¶ 9. The judgment of the Court of Appeals and the judgment of the DeSoto County Circuit Court dismissing Vanwey’s PCR claim are affirmed.

1110. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., LAMAR AND COLEMAN, JJ„ CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, CHANDLER AND KING, JJ.

DICKINSON, Presiding Justice,

dissenting:

¶ 11. A majority of justices on this Court agree that Alisha Vanwey did not qualify as a habitual offender. But today’s decision holds that when Vanwey pleaded guilty, that fact — standing alone — operated as a waiver of her right to bring her claim of an illegal sentence before this Court. With this I do not agree. Waivers must be knowingly and intelligently made. And the record here includes no evidence whatsoever that Vanway knowingly and intelligently waived her claim. To .the contrary, the record is quite clear that her attorney wrongly advised her that she qualified as a habitual offender. Because today’s decision turns the law of waiver on its head, I respectfully dissent.

Waiver

¶ 12. Before a trial judge accepts a defendant’s guilty plea, the judge must be satisfied that the defendant is fully aware of the rights he or she is waiving, and that the defendant’s waiver of those rights is knowingly and' intelligently made. That is why properly conducted plea hearings last fifteen to thirty minutes, rather than thirty seconds. That is why trial judges ask defendants numerous questions concerning their understanding of the rights they will waive, should the guilty plea be accepted. And that is why a valid guilty plea constitutes a waiver of defenses to the offense.

¶ 13. But a defendant does not — simply by pleading guilty — waive the right to challenge a sentence that is, as a matter of law, illegal. Even if an illegal sentence claim can be waived, the waiver must be voluntarily and knowingly made because “[a] plea of guilty is not binding upon a criminal defendant unless it is entered voluntarily and intelligently.” And for the guilty plea to be voluntarily and intelligently made, the defendant must know “what the elements are of the charge against him including an understanding of the charge and its relation to him, what effect the plea will have, and what the possible sentence might be because of his plea.” That certainly was not true in this case.

¶ 14. Both the United States Supreme Court and this Court have said that when “ ‘a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.’” Here, the plea-hearing transcript clearly indicates that Vanwey relied on the incorrect advice of her counsel that a legal basis existed to prove she was a habitual offender.

¶ 15. Specifically, the judge asked Van-we^s attorney if he was “satisfied that the District Attorney’s office could present credible evidence necessary to meet the applicable burden to ... pro[ve] ... the necessary underlying convictions which establish Ms. Vanwey as a habitual offender pursuant to 99-19-81.” Vanwey’s attorney replied “Yes, Sir.” That response simply was incorrect. Vanwey did not qualify as a habitual offender.

• ¶ 16. As discussed below, Vanwey was not a habitual offender because she did not have two prior felony convictions that met the requirements listed under Section 99-19-81. The majority wrongly concludes that Vanwey waived this argument. She did not. Her attorney misinformed her that she legally qualified as a habitual offender. And because this advice was not “ ‘was within the range of competence demanded of attorneys in criminal cases,’ ” the majority incorrectly concludes that she voluntarily and intelligently pleaded guilty to being a habitual offender.

Illegal Sentence

¶ 17. The relevant habitual-offender statute requires two prior convictions with “separate terms of one (1) year or more in any state and/or federal penal institution.” Common sense should lead us to conclude that any sentence, or portion of a sentence, that is to be served outside “any state and/or federal penal institution” does not qualify. And an order of post-release supervision is not a sentence “in” a state or federal penal institution. Even assuming the statute to be ambiguous as to whether the post-release supervision qualifies as “in” a penal institution, still, we are bound by the “long standing rule that penal statutes are to be interpreted strictly against the state and construed liberally in favor of the accused.”

¶ 18. One of Vanwey’s prior convictions upon which the circuit court relied to sentence her as a habitual offender carried a sentence of forty-five days, followed by five years of post-release supervision. This was not a sentence of “one (1) year or more in any state and/or federal penal institution,” and simply does not qualify under Section 99-19-81.

¶ 19. It is true that we have held in previous Section 99-19-81 cases that, so long as a defendant’s sentence was for more than a year, actual incarceration for less than a year does not disqualify a previous conviction for habitual-offender purposes. For instance, in Jackson v. State, we held that a sentence to “imprisonment in the penitentiary of the State of Alabama for a term of three years ...” satisfied the habitual-offender statute, even though the trial court suspended the sentence. The defendant indeed was sentenced to a term of a year or more in a penal institution, as required by the habitual-offender statute. We stated that “the accused [was] twice previously adjudged guilty of distinct felonies upon which the sentence of one year or more have been pronounced, irrespective of subsequent probation or suspension of the sentence.” Why did we point out that “the sentence of one year or more” was “irrespective of subsequent probation or suspension of the sentence” in Jackson v. State? The answer is simple and should be obvious.

¶ 20. But Vanwey — unlike the defendant in Jackson — was never sentenced to a year or more in any penal institution. Her post-release supervision was not to be served in a penal institution; it was not ordered in lieu of a suspended sentence to a penal institution; and just as it did not count in Jackson, it should not count here. Forty-five days constituted the entirety of Vanwey’s sentence in a penal institution, and that is the only sentence relevant to the habitual-offender statute.

Conclusion

¶ 21. Because Vanwey’s habitual-offender sentence was indeed illegal; and because she did not knowingly and intelligently waive her claim that she was illegally sentenced, I would grant Vanwey’s petition for post-conviction relief and remand this case for the trial court to impose a legal sentence.

KITCHENS, CHANDLER AND KING, JJ, JOIN THIS OPINION.

      . Hannah v. State, 943 So.2d 20, 25 (Miss. 2006).

      . Berry v. State, 722 So.2d 706, 707 (Miss. 1998); see also Burns v. State, 344 So.2d ■ 1189, 1190 (Miss. 1977).

      . Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992) (citing Myers v. State, 583 So.2d 174, 177 (Miss.1991)). .

      . Alexander, 605 So.2d at 1172 (emphasis added) (citing Myers, 583 So.2d at 177).

      . Wilson v. State, 577 So.2d 394, 396 (Miss.1991) (quoting Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970))).

      . Miss.Code Ann. § 99-19-81 (Rev.2007).

      . Wilson, 577 So.2d at 396 (quoting Hill, 474 U.S. at 56, 106 S.Ct. 366 (quoting McMann, 397 U.S. at 771, 90 S.Ct. 1441)).

      . Miss.Code Ann. § 99-19-81 (emphasis added).

      . McLamb v. State, 456 So.2d 743, 745 (Miss.1984) (citing State v. Russell, 358 So.2d 409 (Miss.1978)); Carter v. State, 334 So.2d 376 (Miss.1976); Walton v. State, 219 Miss. 72, 68 So.2d 87 (1953); Terry v. State, 172 Miss. 303, 160 So. 574 (1935).

      . Miss.Code Ann. § 99-19-81 (emphasis added).

      . Jackson v. State, 381 So.2d 1040, 1042 (Miss. 1980).

      . Id.

      . Id. (emphasis added).

      . Miss.Code Ann. § 47-7-34 (Rev.2011).


author: CHANDLER, Justice, COLEMAN, Justice,

text:
    Donald Keith SMITH a/k/a Donald Smith a/k/a Donald K. Smith v. STATE of Mississippi.
    Nos. 2012-CT-00159-SCT, 2012-CT-00926-SCT.
    Supreme Court of Mississippi.
    Oct. 30, 2014.

      Donald Keith Smith, appellant, pro se.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
   ON WRIT OF CERTIORARI

CHANDLER, Justice,

for the Court:

¶ 1. Under Uniform Rule of Circuit and County Court Practice 9.06, a mental evaluation and competency hearing are mandatory if the trial court has a reasonable ground to believe the defendant is incompetent to stand trial. URCCC 9.06. Before Donald Keith Smith entered a guilty plea in the Circuit Court of Jackson County, the trial court ordered a mental evaluation of Smith that never was performed. The record is silent as to the reason the trial court ordered the mental evaluation. We granted Smith’s petition for certiorari on his post-conviction claim that the trial court had erred by accepting his guilty plea without a completed mental evaluation and competency hearing. Because a mental evaluation and hearing were required if the trial court ordered the mental evaluation to assess Smith’s competence to stand trial, we reverse and remand for an evi-dentiary hearing on the issue of why the trial court ordered a mental evaluation.

FACTS

¶ 2. Smith was indicted for two counts of kidnapping, one count of armed carjacking, and one count of felony evading a police officer. The record reveals the following concerning the trial court’s order of a mental evaluation for Smith. His case was set for trial on November 13, 2008. On that date, Smith orally moved for a continuance and a psychiatric examination. Because the proceedings before the trial court were not transcribed, the grounds for the motion are not in the record. The court granted the motion and ordered “that Defendant be examined by some competent psychiatrist(s) for a determination of Defendant’s mental and/or psychiatric condition.” The order contained no explanation of the reason for the mental evaluation. The order continued the trial “until a psychiatric evaluation can be conducted and a report generated.” The same day, the trial court entered an agreed order of continuance that stated “Defendant is to undergo a psychiatric evaluation at his own expense and the parties need additional time for plea negotiations.” The agreed order continued the trial until March 3, 2009. On November 21, 2008, the court entered another agreed order granting Smith’s motion for a continuance until March 3, 2009, for the purpose of obtaining a mental examination of Smith. On January 29, 2009, an order was entered for Smith to be transferred from the Jackson County Adult .Detention Center to the Mississippi State Hospital for evaluation on February 7, 2009.

¶ 3. No further information concerning the mental evaluation appears in the record of the guilty-plea proceedings. On March 3, 2009, the trial court entered another agreed order of continuance on the basis of ongoing plea negotiations. Another agreed order of continuance was entered on April 9, 2009, setting a trial date of June 3, 2009. On June 3, 2009, Smith filed a petition to plead guilty to one count of kidnapping, armed carjacking, and felony fleeing. At the plea hearing that day, Smith stated that he had been treated for depression and “psychosis or something like that,” and was taking medication for those conditions. The trial court found Smith’s guilty plea was knowingly, intelligently, and voluntarily made. The trial court accepted the guilty plea and sentenced Smith according to the State’s recommendation: for kidnapping, to thirty years with twelve years suspended and eighteen years to serve, for armed carjacking, to thirty years with twelve years suspended and eighteen years to serve, and for felony fleeing, to five years, with all sentences to run concurrently. The trial court also ordered that Smith be placed in the Therapeutic Community Treatment Program, that he have a full mental-health examination while incarcerated, and that he must take all prescribed medications.

¶ 4. On December 14, 2011, Smith filed a pro se motion for post-conviction relief (PCR), attacking his armed-carjacking conviction. The trial court dismissed the motion for PCR and Smith appealed. He filed a second, successive pro se motion for PCR on February 22, 2012, arguing that the trial court had erred by accepting his guilty plea because the mental evaluation ordered by the court never had been performed, and no competency hearing had occurred. In this motion for PCR, Smith averred that it was unclear to him why the mental evaluation never had been performed. He stated that his attorney had told his parents the evaluation would cost $2,000. Smith stated that he was taken to the Mississippi State Hospital on February 7, 2009, but “was promptly returned to jail” after being told that no psychiatrist was available. He argued that the trial court should not have accepted his guilty plea because he was “mentally incompetent to fully understand the proceedings against him.” He also argued that his attorney, Victor Carmody, had provided ineffective assistance of counsel by failing to investigate his mental condition and pursue a mental evaluation.

¶ 5. Smith attached affidavits from his parents. In their affidavits, both parents stated that Smith had been institutionalized numerous times for drug addiction and bipolar disorder, and for self-mutilation after he had slashed his arms with a razor. Smith’s father additionally stated that Smith had been prescribed drugs for bipolar disorder. Smith’s father stated that Smith had been transported to the Mississippi State Hospital for a mental evaluation, but he was not seen by a doctor and was returned to jail. He averred that Smith’s attorney had called him and said it would cost $2,000 for the mental evaluation, but they did not have the money.

¶ 6. The trial court dismissed Smith’s motion for PCR as successive. See Miss. Code Ann. § 99-39-23(6) (Rev. 2007). Alternatively, the trial court held that no competency hearing had been required because the court never had made a finding that reasonable ground existed as to Smith’s competency. Smith appealed. This Court assigned both of Smith’s appeals to the Court of Appeals, which consolidated them and affirmed the dismissal of the motions for PCR. Smith v. State, 149 So.3d 1048,1050-51, 2013 WL 5799825, at *1 (Miss.Ct.App. Feb. 18, 2014). Smith filed a pro se petition for certiorari, which this Court granted. We limit our review to Smith’s claim that, because the trial court ordered a mental evaluation, the court could not accept his guilty plea until a mental evaluation and competency hearing had occurred. M.R.A.P. 17(h).

STANDARD OF REVIEW

¶ 7. The trial court may summarily dismiss a motion for PCR “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief....” Miss.Code Ann. § 99-39-11(2) (Rev. 2007). On appeal from the summary dismissal of a motion for PCR, this Court determines whether the motion presents “a claim proeedurally alive ‘substantially] showing denial of a state or federal right.’ ” Gable v. State, 748 So.2d 703, 704 (Miss.1999).

ANALYSIS

¶ 8. We begin by addressing the trial court’s holding that Smith’s second motion for PCR was barred as a successive writ. Mississippi Code Section 99-39-23(6) provides that an order dismissing a motion for PCR acts as a bar to a successive motion for PCR. Miss.Code Ann. § 99-39-23(6) (Rev. 2007). However, this Court has held unequivocally that “errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA.” Rowland v. State, 42 So.3d 503, 507 (Miss.2010). In Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), the United States Supreme Court held “the prohibition [against trying or convicting an incompetent defendant] is fundamental to an adversary system of justice.” The constitutional right not to be tried or convicted while incompetent is a component of a defendant’s due-process right to a fair trial. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Because Smith’s second motion for PCR alleges a violation of his fundamental right not to be convicted while incompetent, we will address the merits of his argument.

K 9. The dissent would eliminate the fundamental-rights exception to the successive-pleadings bar by labeling the bar “substantive” rather than “procedural.” But, as the dissent recognizes, the Uniform Post-Conviction Collateral Relief Act contains no substantive res judicata bar to a second PCR. Dis. Op. at n. 3. This Court consistently has declared that the successive-pleadings bar is a procedural bar. See, e.g., Rowland v. State, 98 So.3d 1032, 1035 (Miss.2012). And we consistently have recognized an exception to the successive-pleadings bar for errors affecting fundamental rights. Rowland, 42 So.3d at 507-08.

¶ 10. To deny relief for a fundamental-rights violation brought to our attention in a successive PCR would ignore the serious due-process concerns underlying the fundamental-rights exception. Id. at 507 (citing Brooks v. State, 209 Miss. 150, 46 So.2d 94 (1950)). In recognition of this principle, this Court has on numerous occasions reviewed errors affecting fundamental rights raised by successive pleadings. Grayson v. State, 118 So.3d 118, 125 (Miss.2013) (ineffective assistance of death-penalty post-conviction counsel); Jones v. State, 119 So.3d 323, 325-26 (Miss.2013) (illegal sentence); Rowland, 98 So.3d at 1035-36 (double jeopardy); Rowland, 42 So.3d at 505-08 (double jeopardy); Kennedy v. State, 732 So.2d 184, 186-87 (Miss.1999) (illegal sentence); Grubb v. State, 584 So.2d 786, 787, 789 (Miss.1991) (illegal sentence).

¶ 11. Most vitally, this Court previously has held that neither the common law nor our own constitutional law applies the doctrine of res judicata to constitutional claims. In Bragg v. Carter, 367 So.2d 165, 165-66 (Miss.1978), this Court considered whether common-law res judicata barred a taxpayer suit alleging a violation of Article 4, Section 95 of the Mississippi Constitution, which prohibits the donation of public lands to private entities. In an opinion joined by all justices, this Court stated:

Although the doctrine of res judicata is based upon the public policy of putting an end to litigation, we nevertheless think the doctrine is not inflexible and incapable of yielding to a superior policy, and particularly so since the confirmation decree has every attribute of tacit consent. The doctrine of res judicata must yield to the constitution.

Id. at 167 (citing C.I.T. Corporation v. Turner, 248 Miss. 517, 157 So.2d 648 (1963); Annotation, Res Judicata as Affected by Fact that Former Judgment was Entered by Agreement or Consent, 2 A.L.R.2d 514, 532 (1948)) (emphasis added). The Bragg Court recognized that a doctrine of judicial expediency and economy must yield to the superior policy of enforcing constitutional provisions. Stated differently, the Court removed claims based in constitutional principle from the bounds of common law res judicata.

¶ 12. And in Ex parte Pattison, 56 Miss. 161 (1878), in considering an appeal from a trial court’s denial of a prisoner’s petition for writ of habeas corpus under the then-existing statutory codification of habeas relief, this Court stated:

At common law, an adverse decision on one writ of habeas corpus did not preclude a second one. Indeed, so tender was the law of the liberty of the subject, that he might, when deprived of it, resort in turn to every judge in the realm, and was entitled to be enlarged if any one of them thought proper to bail or discharge him. Such is still the law in many States of the American Union.

Id. (emphasis added) (internal citations omitted). That is, a petitioner’s right to collaterally attack his unlawful incarceration was not limited by prior adjudication.

¶ 13. No unlawful incarceration is constitutional. The motion for post-conviction relief before us attacks Smith’s unlawful conviction and incarceration. Under Pattison, that procedural mechanism is not limited by common-law res judicata. And Smith challenges the trial court’s failure to determine competency, affecting his fundamental due-process rights. Under Bragg, claims of constitutional dimensions are likewise excepted from common-law res judicata.

¶ 14. Turning to the merits, the constitutional standard for competency to stand trial is “whether [a defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... and whether he has a rational as well as factual understanding of the proceedings against him.” Hearn v. State, 3 So.3d 722, 728 (Miss.2008) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (I960)). This Court has held that a competent defendant is one:

(1) who is able to perceive and understand the nature of the proceedings; (2) who is able to rationally communicate with his attorney about the case; (3) who is able to recall relevant facts; (4) who is able to testify in his own defense if appropriate; and (5) whose ability to satisfy the foregoing criteria is commensurate with the severity of the case.

Hearn, 3 So.3d at 728 (quoting Martin v. State, 871 So.2d 693, 697 (Miss.2004)).

¶ 15. When the evidence raises sufficient doubt as to the defendant’s competency to stand trial, the defendant is deprived of due process of law if the trial court fails to conduct a separate competency hearing. Pate, 383 U.S. at 385, 86 S.Ct. 836. Mississippi’s procedure for determining competency appears in Uniform Rule of Circuit and County Court Practice 9.06, which provides:

If before or diming trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court....
After the examination the court shall conduct a hearing to determine if the defendant is competent to stand trial. After hearing all the evidence, the court shall weigh the evidence and make a determination of whether the defendant is competent to stand trial. If the court finds that the defendant is competent to stand trial, then the court shall make the finding a matter of record and the case will then proceed to trial. If the court finds that the defendant is incompetent to stand trial, then the court shall commit the defendant to the Mississippi State Hospital or other appropriate mental health facility.

URCCC 9.06. A statute provides that a court-ordered mental evaluation to determine competency to stand trial will be at the county’s expense. Miss.Code Ann. § 99-13-11 (Rev. 2007).

¶ 16. This Court has held that, once the trial court has reasonable ground to believe the defendant is incompetent, Rule 9.06 mandates that the trial, court shall order a mental evaluation followed by a competency hearing to determine whether the defendant is competent to stand trial. Sanders v. State, 9 So.3d 1132, 1137 (Miss.2009). We have stated that “it is evident that it would be error not to hold a competency hearing once a trial court orders a psychiatric evaluation to determine competency to stand trial.” Id. In Sanders, the trial court ordered a mental evaluation of the defendant to determine his competency to stand trial. Id. We held that the order for a mental competency evaluation indicated that the trial court necessarily found that some of the defendant’s assertions in his motion for a mental evaluation were sufficient to warrant a mental evaluation. Id. In other words, a trial court’s order of a mental evaluation to determine competency under Rule 9.06 means that the trial court had reasonable ground to believe the defendant was incompetent to stand trial. Id.; see Coleman v. State, 127 So.3d 161, 168 (Miss. 2013) (stating that a trial court’s grant of an order for a mental competency evaluation is “conclusive of its having found reasonable ground to believe [the defendant] was entitled to a mental examination and a competency hearing”). And when the trial court has such reasonable ground, a mental evaluation and competency hearing are required. URCCC 9.06. Thus, in Sanders, the fact that the trial court had ordered a mental evaluation but never held a competency hearing was reversible error. Sanders, 9 So.3d at 1139.

¶ 17. Smith argues that, under Rule 9.06, the trial court’s order of a mental evaluation mandated that the evaluation occur and that it be followed by a competency hearing. The Court of Appeals disagreed and found that the record failed to show the trial court had reasonable ground to believe Smith was incompetent. Smith, 149 So.3d at 1052-53, 2013 WL 5799825, at *3. The Court of Appeals observed that the order for a mental evaluation did not state the reason for the mental evaluation and reasoned that a trial court is empowered to order a mental evaluation to address matters other than competency, such as to support an insanity defense or to generate mitigation evidence for use in sentencing. Smith, 149 So.3d at 1051-54, 2013 WL 5799825, at **2-4 (citing Evans v. State, 984 So.2d 308, 313 (Miss.Ct.App. 2007)) (holding that “if a trial judge orders a psychiatric evaluation without a reasonable question as to the defendant’s competency, he is not also required [to] order a competency hearing”). In particular, the Court of Appeals relied on the facts that the agreed order granting a continuance stated that the mental evaluation was to be at Smith’s expense, and Smith’s father stated that Smith had been returned from the State Hospital after the family was unable to pay for a mental evaluation. Smith, 149 So.3d at 1051-52, 2013 WL 5799825, at *2. The Court of Appeals stated that “if competency was truly the issue, Smith could have required the State to pay for the evaluation pursuant to [Section 99-13-11].” Smith, 149 So.3d at 1052, 2013 WL 5799825, at *2.

¶ 18. According to the Court of Appeals, “without more, we cannot say that the circuit court’s decision to order the mental evaluation was simultaneously a finding that reasonable grounds existed to question Smith’s competency.” Smith, 149 So.3d at 1052-53, 2013 WL 5799825, at *3. We agree that, on this record, no reviewing court can say whether the order for a mental evaluation triggered the requirements that a mental evaluation and competency hearing occur. Simply put, the record is ambiguous as to whether the mental evaluation was ordered for the purpose of determining Smith’s competence to stand trial. The order for a mental evaluation does not state the reason. No notice of insanity defense appears in the record. See URCCC 9.07. Nothing except the agreed order for a continuance stating that the evaluation was to be at Smith’s expense tends to show that the mental evaluation was ordered for some purpose other than competency. But the agreed order is far from conclusive that competency was not the reason for the mental evaluation. Smith was transported to the Mississippi State Hospital, which routinely performs competency evaluations at the county’s expense. And Smith vehemently argues in his motion for PCR that the trial court erred by requiring him to pay for a competency evaluation in violation of Section 99-13-11. Further, evidence was before the trial court that Smith had mental problems; his attorney requested a mental evaluation, and at the plea hearing he stated that he had depression and possibly psychosis, and was on medication for these conditions.

¶ 19. Because significant ambiguity surrounds the reason the trial court ordered a mental evaluation, we reverse and remand for an evidentiary hearing on this issue pursuant to Mississippi Code Section 99-39-19 (Rev. 2007). We note that, although the State now urges this Court to affirm the Court of Appeals, the State conceded this issue in its brief before the Court of Appeals and requested that this case be remanded for a retrospective competency hearing. However, that remedy is unavailable, because in Coleman v. State, 127 So.3d 161, 168 (Miss.2013), a plurality of this Court held that the appropriate remedy for failure to hold a competency hearing is a new trial, not a retrospective competency hearing. Therefore, if, after the evidentiary hearing, the trial court determines that the purpose of the court-ordered mental evaluation was to determine Smith’s competency to stand trial, Smith’s conviction cannot stand, and Smith must be either retried or institutionalized following a mental evaluation and competency hearing under Rule 9.06.

CONCLUSION

¶ 20. The trial court found that it plainly appeared from the face of Smith’s motion for PCR and annexed exhibits that he was not entitled to any relief. The Court of Appeals affirmed that judgment. But we find that Smith presented sufficient evidence supporting the denial of his fundamental right not to be convicted while incompetent to survive the summary dismissal of his motion for PCR. Therefore, we reverse the judgments of the Court of Appeals and the Circuit Court of Jackson County and remand the case to the trial court for an evidentiary hearing.

¶ 21. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON, P.J., KITCHENS AND KING, JJ., CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J.; LAMAR AND PIERCE, JJ., JOIN IN PART.

COLEMAN, Justice,

dissenting:

¶ 22. I respectfully disagree that the case sub judice implicates Uniform Rule of Circuit and County Court Practice 9.06, upon which the majority bases its holding. Accordingly, I dissent.

I. The Court of Appeals correctly held that Rule 9.06 does not apply to the case sub judice.

¶ 23. In short, I agree with the well-reasoned opinion issued by the Court of Appeals in Smith v. State, 149 So.3d 1048, 2013 WL 5799825 (Miss.Ct.App. Feb. 18, 2014), wherein the Court of Appeals noted that nothing in the record indicates that Smith’s competency to stand trial was questioned. Id. at 1052 (¶ 7), 2013 WL 5473569 at *2 (¶ 7). To put it in Rule 9.06 terms, Smith identifies nothing in the record of the criminal proceedings against him to indicate the existence of any “reasonable ground to believe” him “incompetent to stand trial.” URCCC 9.06. As the Court of Appeals pointed out, myriad reasons exist to conduct a mental competency examination aside from a determination that the above-described reasonable grounds exist. Smith, 149 So.3d at 1051-52 (¶ 7), 2013 WL 5799825, *2 (¶ 7). Finally, the Court of Appeals correctly points out that, if the trial court’s order allowing the defendant a mental exam were traveling under Rule 9.06, then, by operation of Mississippi Code Section 99-13-11, the county would have footed the bill. Id. The trial court’s order in the instant case provided that the exam would be conducted at the defendant’s expense. For the above-described reasons as well as the others addressed by the Court of Appeals, I would affirm the trial court’s denial of post-conviction relief.

II. Rowland and whether res judica-ta should apply.

¶ 24. I take the opportunity afforded by writing the instant dissent to address another pertinent issue — the applicability (or inapplicability) of the doctrine of res judi-cata to Smith’s claim for post conviction relief. The issue addressed today, that of the competency hearing, was raised in Smith’s second petition filed on February 22, 2012, after the trial court denied his first petition on January 6, 2012.

¶ 25. In the absence of any reason to disregard it, the doctrine of res judicata operates to bar Smith’s second petition because it bars the petitioner from litigating issues that he placed or could have placed before the court in his first petition. Little v. V & G Welding Supply, Inc., 704 So.2d 1336,1337-1338 (¶ 8) (Miss.1997) (“Res judicata bars all issues that might have been (or could have been) raised and decided in the initial suit, plus all issues that were actually decided in the first cause of action.”) (citing Estate of Anderson v. Deposit Guaranty Nat’l Bank, 674 So.2d 1254, 1256 (Miss.1996)). Nothing in the record indicates that Smith could not have presented the mental examination issue to the trial court in his first petition. In order for res judicata to operate to preclude Smith’s instant claim, the following four identities must exist: (1) the subject matter of the action; (2) the cause of action; (3) the parties to the cause of action; and (4) the quality or character of a person against whom the claim is made. Little, 704 So.2d at 1338 (¶ 9). They do. The subject matter of both his first and second petition was a collateral attack upon his conviction and sentence. The causes of action both rely on the underlying facts and circumstances leading up to his guilty plea, conviction, and sentence. In both petitions, the parties were Smith and the State of Mississippi, and the third and fourth identities are thus satisfied.

¶ 26. We have held — several times— that when a petitioner seeking post-conviction relief puts a fundamental right at issue, -Mississippi courts will not apply various procedural bars that might otherwise foreclose any relief. See, e.g., Rowland v. State, 98 So.3d 1032, 1036 (¶ 6) (Miss.2012) (noting that, as to several fundamental rights, including the protection against double jeopardy, illegal sentencing, and denial of due process at sentencing, the procedural bars found in Mississippi’s Uniform Post-Conviction Collateral Relief Act will not apply) (citing, inter alia, Rowland v. State, 42 So.3d 503, 508 (Miss.2010); Ivy v. State, 731 So.2d 601, 603 (Miss.1999); Kennedy v. State, 732 So.2d 184, 186-87 (Miss.1999); Grubb v. State, 584 So.2d 786, 789 (Miss.1991); Smith v. State, 477 So.2d 191, 195 (Miss.1985)). For the reasons I further develop below, I am of the opinion that the doctrine of res judicata places a substantive — not procedural — bar, and I would apply it even when a petitioner asserts a fundamental right.

¶ 27. Several courts have noted the substantive nature of res judicata. In JP Morgan Chase Bank v. Winthrop Props., 312 Conn. 662, 94 A.3d 622 (2014), the Supreme Court of Connecticut noted that the procedural matter before it was “not intended to alter established definitions and the scope of such terms within the substantive doctrines of res judicata, collateral estoppel, and relation back, which implicate different concerns.” Id. at 684 n. 11, 94 A.3d 622. Ohio’s state courts repeatedly have written that “res judicata is a substantive rule of law[.]” Hopkins v. Dyer, 104 Ohio St.3d 461, 820 N.E.2d 329 (2004). The Supreme Court of Indiana held that a litigant “was entitled to challenge the substantive determination of the trial court that his claims were barred by the substantive defense of res judicata[.]” Smith v. Euler, 956 N.E.2d 657, 658 (Ind. 2011). In the context of post-conviction relief, the Illinois Supreme Court addressed the relationship of res judicata to Illinois’s post-conviction relief statutes and wrote, “Thus, waiver and res judicata are substantive considerations to the extent that they define and limit the scope and purpose of the Act.” People v. Blair, 215 Ill.2d 427, 440, 294 Ill.Dec. 654, 831 N.E.2d 604, 613 (2005). See also Martin v. Amerman, 47 Tex. Sup.Ct. J. 285, 133 S.W.3d 262, 266 (2004); Johns v. Agrawal, 748 So.2d 514, 518 (La.Ct.App.1999) (recognizing that whether the preclusive effect of a federal court decision is subject to the federal law on res judicata because the doctrine is substantive); Jordache Enters., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 204 W.Va. 465, 476, 513 S.E.2d 692, 703 (1998) (the “effect of a judgment as res judicata is ‘substantive’ ”); VanDe-Walle v. Albion Nat’l Bank, 243 Neb. 496, 503, 500 N.W.2d 566, 572 (1993) (“res judi-cata is a substantive rule”); McKinney v. Galvin, 701 F.2d 584, 586 n. 5 (6th Cir. 1983).

¶ 28. I agree with those courts that consider the doctrine of res judicata substantive in nature. Before the doctrine can apply, there must be an earlier determination on the merits. EMC Mortgage Corp. v. Carmichael, 17 So.3d 1087, 1090 (¶ 10) (Miss.2009) (“In addition to the four identities, a fifth requirement is that the prior judgment must be a final judgment that was adjudicated on the merits.”) (citing Anderson v. LaVere, 895 So.2d 828, 833 (Miss.2004)). Accordingly, I am of the opinion that the bar imposed by operation of res judicata differs in a significant way from the bar imposed by, e.g., a statute of limitations. Per the latter, if a petitioner fails to bring an issue before the Court before three years, he may not and loses all opportunity to bring the issue, but without ever having the benefit of a ruling. Per the former, the petitioner has a ruling on the merits. The distinction leads easily to the conclusion reached by so many other courts, that res judicata is a creature of substance and not of procedure.

¶ 29. Looking at the origins of our rule that petitions for post-conviction relief that raise fundamental rights are exempt from the procedural bars reveals why the above-described distinction makes a difference. In Read v. State, 430 So.2d 832, 837 (Miss.1983), the Court wrote as follows:

Today, however, state courts are being allowed not inconsiderable leeway when it comes to enforcing procedural rules to bar litigation of federal constitutional rights. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Given such leeway, it is peculiarly appropriate that state courts be faithful stewards of those fundamental rights adjudication of which is thus entrusted to them. It is appropriate that this Court keep the spirit of [.Brooks v. State, 209 Miss. 150, 46 So.2d 94 (1950) ] alive. The State’s brief would have us take advantage of this leeway — and, in effect, preclude any defendant ever raising the troublesome, unpleasant and no doubt frequently abused claim of ineffective assistance of counsel. The State’s invitation should be rejected.

Read, 430 So.2d at 837. The Read Court declined the State’s invitation because Read “never had a meaningful opportunity to raise the issue in the court below.” Id. In Brooks v. State, 209 Miss. 150, 46 So.2d 94 (1950), cited by the Read Court in the above-quoted paragraph, the Court refused to apply procedural bars when a fundamental right was raised for the first time on appeal. Id. at 155, 46 So.2d 94. See also Fisher v. State, 145 Miss. 116, 110 So. 361, 365 (1926). Based on my reading of the foregoing cases, we excluded petitions that raised fundamental rights from procedural bars because a petitioner whose fundamental constitutional rights had been violated should have the opportunity to present such alleged violation to a court. Res judicata, because it applies only after a decision on the merits, applies only after a would-be petitioner has had that opportunity or could have had that opportunity but, for whatever reason, passed upon it.

¶ 30. “Res judicata reflects the refusal of the law to tolerate a multiplicity of litigation. It is a doctrine of public policy designed to avoid the expense and vexation attending multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibilities of inconsistent decisions.” Hill v. Carroll County, 17 So.3d 1081, 1084 (¶8) (Miss. 2009) (internal citations omitted). For the reasons outlined above, I would hold the doctrine of res judicata to be a substantive bar against further litigation rather than a procedural one and therefore not a member of the class of procedural bars from which petitioners may have relief when they raise fundamental rights.

RANDOLPH, P.J., JOINS THIS OPINION. LAMAR AND PIERCE, JJ., JOIN THIS OPINION IN PART.

      . The Court in Sanders also reviewed whether trial testimony from the defendant's psychiatrist obviated the need for a competency hearing under Hearn v. State, and concluded that a competency hearing had been required. Sanders, 9 So.3d at 1137-38 (citing Heam, 3 So.3d at 730) (holding that a competency hearing was not required because the defendant’s psychiatrist testified at trial as to his competency and was subject to cross-examination, and the defendant had the opportunity to present competing evidence). That issue is irrelevant to Smith’s appeal because this case does not concern the sufficiency of a competency hearing.

      . After his appeal, Smith filed an "Appendix of Exhibits" in the Court of Appeals containing his mental-health records. These records evince Smith's long history of substance abuse and mental illness. The records show that, in August 2008, Smith was transferred to Singing River Hospital after having intentionally cut himself while in jail awaiting trial. On October 31, 2008, thirteen days before the court order for a mental evaluation, a psychiatrist at Singing River performed a mental evaluation that assessed Smith as bipolar and possibly psychotic and recommended that Smith be treated at the State Hospital. The Court of Appeals correctly held that, because these records were not included in Smith's motion for PCR, they could not be considered on appeal. Smith, 149 So.3d at 1052 n. 3, 2013 WL 5799825, at *3 n. 3. These records may be submitted to the trial court at the evidentiary hearing. Miss.Code Ann. § 99-39-23(4) (Rev. 2007).

      . The Legislature encoded the doctrine of res judicata for post-conviction relief purposes in Mississippi Code Section 99-39-21, but-interestingly-as encoded the doctrine would apply only to issues and facts determined at trial or on direct appeal. A bar against successive writs is found elsewhere in the Uniform Post-Conviction Collateral Relief Act, see Mississippi Code Section 99-39-23(6), which would be a statutory enactment of res judicata that more fully applies here. Otherwise, and the látter does not incorporate the identities or by its terms require the denial of relief be on the merits, there appears to be no attempt to statutorily apply res judicata to issues and facts determined in earlier post-conviction proceedings.