text:
    John P. ALEXANDER a/k/a John Peyton Alexander II a/k/a John Alexander, Appellant v. Christopher B. EPPS, Appellee.
    No. 2011-CP-00814-COA.
    Court of Appeals of Mississippi.
    Aug. 28, 2012.
    Rehearing Denied Jan. 29, 2013.

      John P. Alexander, appellant, pro se.
    Office of the Attorney General by R. Stewart Smith Jr., attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. John Peyton Alexander II, a convicted murderer in the custody of the Mississippi Department of Corrections, requested to leave the state penitentiary and have dental work performed by a privately retained dentist. The MDOC denied his request after determining Alexander sought cosmetic treatment and that any medically necessary treatment could be performed by its dentists. We find the MDOC’s decision was supported by substantial evidence, was not arbitrary or capricious, and did not violate Alexander’s statutory or constitutional rights. Thus, we affirm the dismissal of Alexander’s motion to show cause filed against MDOC Commissioner Christopher B. Epps.

Background

¶ 2. Alexander is a long-time inmate of the Mississippi State Penitentiary in Parchman (Parchman). In 2010, he sought permission to leave Parchman to go to a dentist in Greenville, Mississippi, at his family’s expense. Alexander filed an Offender’s Relief Form. In response, the MDOC’s Chief Medical Officer Dr. Gloria Perry wrote Alexander and explained that the requested work was not medically necessary and, if it became medically necessary, would be performed by an MDOC dentist.

¶ 3. Alexander’s request went through the two-step Administrative Remedy Program and was denied in both steps. His administrative remedies exhausted, he filed a Motion to Show Cause in the Sunflower County Circuit Court against Commissioner Epps. The circuit court dismissed the motion without a hearing. The court held that, based on the reasons given in Dr. Perry’s letter, the MDOC’s decision was supported by substantial evidence and not arbitrary or capricious.

¶ 4. Alexander timely appealed.

Discussion

I. Lack of Jurisdiction for Post-Conviction Relief

¶ 5. In his pro se appeal, Alexander appears to collaterally challenge his murder conviction, arguing that because he was improperly convicted by the trial jury, the MDOC has no legal jurisdiction over him. He suggests that based on this perceived defect he retains all rights as a private citizen — including the right to choose his own dentist.

¶ 6. The circuit court lacked the jurisdiction to consider Alexander’s Motion to Show Cause as a motion for post-conviction relief (PCR). So we find any attempt to collaterally attack his murder conviction through the appeal of an administrative decision fails. Alexander previously directly appealed his 1975 murder conviction to the Mississippi Supreme Court, which affirmed his conviction. Alexander v. State, 358 So.2d 379, 387 (Miss.1978). In 2002, this court found Alexander’s application for release filed with the circuit court was effectively a PCR motion. Alexander v. State, 821 So.2d 869, 869 (¶ 1) (Miss.Ct.App.2002). And because Alexander failed to seek leave from the supreme court to file a PCR motion, we found both the circuit court and this court lacked jurisdiction to consider his motion. Id. at 869-70 (¶¶ 4-6).

¶ 7. Similarly, Alexander did not request permission from the supreme court to file a PCR motion before appealing the MDOC’s decision. So the circuit court lacked jurisdiction to consider Alexander’s administrative claim as one for post-conviction relief. See Miss.Code Ann. §§ 99-39-7, 99-39-27 (Supp.2011). The same is true for this court — we have no jurisdiction to consider the validity of Alexander’s murder conviction. But we do note that in Alexander’s direct appeal of his murder conviction the supreme court found “[f]rom the whole record it appears that the case was well and fairly tried and that no prejudicial error warranting reversal was committed.” Alexander, 358 So.2d at 387.

II. Appeal of an Administrative Decision

¶ 8. Viewing Alexander’s motion to show cause only as an appeal from an administrative decision, we find the circuit court properly dismissed the motion.

¶ 9. “Circuit courts may dismiss actions without a hearing when it is clear from the record that the prisoner is not entitled to any relief.” Clay v. Epps, 19 So.3d 743, 746 (¶8) (Miss.Ct.App.2008) (citing McNabb v. State, 915 So.2d 478, 480 (¶ 5) (Miss.Ct.App.2005); McBride v. Sparkman, 860 So.2d 1237, 1240-41 (¶ 10) (Miss.Ct.App.2003)). Alexander had the burden to rebut the presumption that favors the MDOC’s decision to deny his request to visit a “freeworld” dentist. See Ross v. Epps, 922 So.2d 847, 849 (¶4) (Miss.Ct.App.2006). This court applies its deferential standard of review, refusing to reverse the MDOC’s decision unless unsupported by substantial evidence, arbitrary or capricious, beyond its scope or powers, or violative of Alexander’s constitutional or statutory rights. Id.

A.Decision Supported by Substantial Evidence and Not Arbitrary or Capricious

¶ 10. The circuit court found the MDOC’s decision was supported by substantial evidence and not arbitrary or capricious. We agree. Alexander attached as support for his motion letters from Roger Parkes, D.M.D., M.S.D., and George Bendford, D.M.D. We find neither letter was sufficient to overcome the presumption in favor of the MDOC’s decision.

¶ 11. Dr. Parkes is Alexander’s mother’s dentist, not Alexander’s. Based on her dental history and a list she provided of Alexander’s medications, Dr. Parkes recommended Alexander be “watched closely” for certain medical problems. He expressed that Alexander’s family members “feel like this should be handled in a private setting” but did not give his own opinion that treatment by a non-MDOC dentist or doctor was medically necessary. Dr. Bedford is a staff dentist with the MDOC. He requested Alexander be released for a private dental appointment because: (1) Alexander “has made the most of his treatment opportunities in the MDOC,” despite how onerous it is to go to the MDOC’s dental facility; (2) Alexander has a comprehensive medical file; and (3) Dr. Bedford personally believed that the taxpayers had spent enough on Alexander’s medical and dental care. But Dr. Bedford did not affirmatively state the private treatment Alexander requested was medically necessary and could not be performed by the MDOC.

¶ 12. Alexander also attached the letter he received from Dr. Perry explaining that Parchman’s dentist had reported to her he could perform all necessary dental work and that off-site dental work was not medically necessary at that time. However, Dr. Perry assured Alexander, should it become necessary, the MDOC would make dental arrangements because Alexander’s mother “is not required nor allowed” to pay for his healthcare while he is in MDOC’s custody. We find Dr. Perry’s letter to be substantial evidence supporting the. MDOC’s decision, demonstrating the decision was not arbitrary or capricious.

B.No Violation of a Statutory Right

¶ 13. We also find MDOC’s denial of Alexander’s request does not violate his statutory rights. Alexander argues he has a statutory right to leave Parchman under Mississippi Code Annotated section 47-5-173 (Rev.2011). This section gives Commissioner Epps the discretionary authority to grant leave to MDOC inmates. But it obviously does not give prisoners the statutory right to leave the penitentiary. Further, in exercising this discretionary authority, Epps and his deputies “may take into consideration sickness or death in the offender’s family.” Miss.Code Ann. § 47-5-173 (emphasis added). Section 47-5-173 does not concern requests for leave based on an inmate’s own health concerns.

C.No Violation of a Constitutional Right

¶ 14. Alexander also failed to present a claim that the MDOC violated his constitutional rights. To present a cognizable constitutional claim based on lack of adequate medical care, Alexander had to “allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Clay, 19 So.3d at 747 (¶ 13) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Dr. Perry’s letter to Alexander shows the MDOC was not indifferent to Alexander’s medical needs. Rather, the MDOC assured him that, when and if a procedure becomes medically necessary, it will arrange for treatment. And while Dr. Bedford expressed his wish that Alexander be treated by private doctors, he made no allegation that the MDOC’s actions had been harmful to Alexander — let alone so harmful as to show a deliberate indifference to his medical needs.

¶ 15. Because Alexander failed to show he was entitled to any relief, we affirm the circuit court’s dismissal of Alexander’s motion.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, RUSSELL AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . More details of Alexander's murder conviction, transfer to Parchman, parole, and later revocation of parole can be found in Alexander v. State, 358 So.2d 379 (Miss.1978) and Alexander v. State, 667 So.2d 1 (Miss.1995).


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Dennis L. PEARSON, Appellant v. Patricia S. Pearson BROWNING, Appellee.
    No. 2010-CA-02096-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2012.
    Rehearing Denied Jan. 29, 2013.

      Dustin Norman Thomas, Pascagoula, attorney for appellant.
    E. Foley Ranson, Ocean Springs, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Dennis L. Pearson (“Pearson”) appeals from a judgment of the Chancery Court of Jackson County that held him in willful contempt. The chancellor also granted his ex-wife, Patricia S. Pearson Browning (“Browning”) a judgment in the amount of $53,528.22. On appeal, Pearson argues that the chancery court did not have jurisdiction, pursuant to Mississippi Rule of Civil Procedure 81, when it entered the judgment. We agree. Accordingly, we reverse and render the chancellor’s judgment without prejudice.

FACTS

¶ 2. Pearson filed a petition for custody of one of the parties’ children, a reduction in child support, and contempt. He based the contempt allegation on Browning’s failure to list both of the children’s savings bonds as required by the Final Judgment of Divorce. Browning’s counterclaim and “motion,” the only claims tried on November 3, 2010, were for contempt. She argued that Pearson had not paid part of his retirement that the original divorce decree had ordered him to pay to her.

¶ 3. On February 2, 2009, the chancery court dismissed all of Pearson’s claims with prejudice. Pearson was not present.

¶ 4. The court set a new date of August 6, 2009, to hear Browning’s claims. There is no order on or before August 6, 2009, that set the trial date from August 6, 2009 to November 3, 2010. There is a court administrator’s notice, dated June 11, 2010, that set the trial date for November 3, 2010.

¶ 5. On November 1, 2010, Pearson received a letter, dated October 15, 2010, from Browning with the date of trial listed as November 3, 2010. Pearson filed a letter with the court that complained of the short notice. On November 3rd, Pearson appeared before the chancery court pro se and inartfully contested his inability to prepare a defense and bring witnesses on such short notice. Pearson moved for a continuance. The chancery court denied the motion and proceeded with the trial. On November 18, 2010, the chancery court entered an order for Pearson to pay $53,528.22 to Browning.

ANALYSIS

¶ 6. This Court uses a de novo standard when reviewing questions concerning jurisdiction. Sanghi v. Sanghi, 759 So.2d 1250, 1252 (¶ 7) (Miss.Ct.App.2000). “This Court is in the same position as the trial court, with all the facts set out in the pleadings or exhibits.” Id. (citing Sorrells v. R. & R. Custom Coach Works, Inc., 636 So.2d 668, 670 (Miss.1994)).

¶ 7. In this case, jurisdiction is governed by Mississippi Rule of Civil Procedure 81(d)(2), because it includes the “modification or enforcement of custody, support, and alimony judgments” and “contempt.”

¶ 8. A Rule 81 summons is necessary to begin dormant domestic actions listed in Rule 81(d). A Rule 81 summons is not a Rule 4 summons. See M.R.C.P. 4. A Rule 81 summons gives notice to the defendant of the date, time, and place to appear. It does not require a response. A Rule 4 summons requires a written response in thirty days. A Rule 4 summons and a Rule 5 notice have no effect with Rule 81 matters. Sanghi, 759 So.2d at 1258 (¶¶ 11, 14) (citing Leaf River Forest Prods., Inc. v. Deakle, 661 So.2d 188, 194 (Miss.1995); Powell v. Powell, 644 So.2d 269, 278-74 (Miss.1994)); see M.R.C.P. 5.

¶ 9. In a matter that requires a Rule 81 summons and does not use a Rule 81 summons, the resulting judgment is void because it is made without jurisdiction over the parties. See Bryant, Inc. v. Walters, 493 So.2d 933, 938 (Miss.1986); Duvall v. Duvall, 224 Miss. 546, 555, 80 So.2d 752, 755 (1955); Roberts v. Roberts, 866 So.2d 474, 476-77 (¶¶7-8) (Miss.Ct.App.2003). If an action under Rule 81(d)(1) or (2) “is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent.” M.R.C.P. 81(d)(5). For no additional Rule 81 summons to be required, the order that continues the trial date must be signed on or before the original trial date.

¶ 10. In this appeal, Pearson argues that Browning failed to comply with Rule 81(d)(5). Specifically, Pearson argues that jurisdiction lapsed because a court administrator’s notice changed the trial date of January 22, 2008 to January 23, 2008; an order dated October 24, 2008 changed the trial date of September 18, 2008 to February 2, 2009; a court administrator’s notice dated June 11, 2010 changed the trial date of August 6, 2009 to November 3, 2010; and Pearson received a letter on November 1, 2010 about the November 3, 2010 trial.

¶ 11. Our review is limited to events that occurred after February 2, 2009. Because Pearson was the plaintiff prior to February 2, 2009, he cannot properly raise a jurisdictional issue before that date. By the fact that a plaintiff brought his claim, he consents to personal jurisdiction in that court. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 779, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984).

¶ 12. Rule 81(d)(5) governs the need for additional summons on the defendant. Before February 2, 2009, Pearson simply was not entitled to a Rule 81 summons because he was the plaintiff.

¶ 13. On February 2, 2009, the chancery court dismissed all of Pearson’s claims with prejudice. The only claims left before the court were Browning’s contempt claims against Pearson. Hence, after February 2, 2009, Pearson was no longer the plaintiff.

¶ 14. Whether an additional Rule 81 summons was required and, thus, whether the chancery court had jurisdiction over Pearson on November 3, 2010, depends on: (1) whether Browning’s “motion” was actually a petition for contempt; (2) whether the court administrator’s notice was sufficient to substitute for the lack of a Rule 81 summons; (3) whether Pearson’s case is similar to Bailey v. Fischer, 946 So.2d 404 (Miss.Ct.App.2006); and (4) whether Pearson made an appearance, thereby waiving the lack of a Rule 81 summons. We conclude with whether the judgment entered in November 2010 was void.

1. Whether Browning’s “motion” was actually a petition for contempt.

¶ 15. Browning filed a motion for a retirement-benefits order on July 30, 2008. Browning argues the document was a motion and service of it was governed by Rule 5 of the Mississippi Rules of Civil Procedure. As defined by Black’s Law Dictionary 860 (9th ed.2009), civil contempt is the “failure to obey a court order that was issued for another party’s benefit.” In the original divorce proceeding, Pearson had been ordered to pay Browning a portion of his retirement benefits. It is that original order which Browning sought to enforce through her “motion.” Browning’s “motion” is actually a petition for contempt. Rule 81(d)(6) only authorizes Rule 5(b) notice for temporary hearings. The matters here are not temporary hearings.

¶16. The parties in Carter v. Carter, 735 So.2d 1109, 1112 (¶ 6) (Miss.Ct.App.1999), “persist[ed] in calling their pleadings ‘motions,’ [though] the comment [to Rule 81(d) ] specifically states that ‘[i]nitiating Rule 81(d) actions by ‘motion’ is not intended.’ ” “[I]t is envisioned that these recurring disputes[,] including contempt and custody modification proceedings, will be brought to the court’s attention ‘by complaint or petition only.’ ” Id. (citing M.R.C.P. 81 cmt.). Rule 81(d)(8) “provides instruction for initiating contempt actions.” Barfield v. State, 749 So.2d 331, 333 n. 1 (Miss.Ct.App.1999) (addressing a motion for contempt as a petition). “[F]iling a ‘motion’ is not proper procedure.... ” Glass v. Glass, 857 So.2d 786, 792 (¶ 22) (Miss.Ct.App.2003) (Bridges, J., concurring); see also Magee v. Magee, 754 So.2d 1275, 1281 (¶15) (Miss.Ct.App.1999). Parties should begin “proceeding^] with a properly served complaint or petition.” Glass, 857 So.2d at 792 (¶ 22).

¶ 17. Calling a “petition for contempt” a “motion” and using motion procedures with contempt actions is incorrect according to Rule 81. Harris v. Harris, 879 So.2d 457, 458 n. 1 (Miss.Ct.App.2004). We recognized in Sanghi that the petitions there were denominated and noticed procedurally as “motions.” No summons was included with those “motions,” just as in the instant case. See Sanghi, 759 So.2d at 1253 (¶ 10). A petition, not a motion, is to be filed where a party is seeking contempt. Id. at 1255 (¶ 26).

¶ 18. Motions may be served by first-class mail. M.R.C.P. 5(b). The procedural mechanisms that apply to motions do not apply to contempt matters. Sanghi, 759 So.2d at 1256 (¶ 30). This has been the case since 1986 when Rule 81 was amended to that effect. Accordingly, service by mail of only Browning’s “motion,” without a Rule 81 summons, was not appropriate.

2. Whether the court administrator’s notice was sufficient to substitute for the lack of a Rule 81 summons.

¶ 19. Pearson was entitled to the rights of a defendant after February 2, 2009. In February 2009, the chancery court set a new trial date of August 6, 2009, to hear Browning’s claims against Pearson. On August 6, 2009, there was no court order or clerk’s setting, as required by Rule 81(d)(5) if no additional Rule 81 summons was issued on or before the original trial date, that changed the trial date from August 6, 2009 to November 3, 2010.

¶ 20. Also, on or before August 6, 2009, there was no court administrator’s notice that changed the trial date. The court administrator did not send notice of the trial-date change from August 6, 2009 to November 3, 2010, until ten months after August 6, 2009.

¶ 21. The court administrator’s notice of the change from August 6, 2009 to November 3, 2010, was not a Rule 81(d) summons. It did provide some of the relevant information. But, Rule 81 requires that a party be told the time and place to appear and that no answer is required. See M.R.C.P. 81(d)(4)-(5). The administrator’s notice did not provide all of this information.

¶ 22. The chancery court here used a court administrator’s notice in lieu of a Rule 81(d) summons. Rule 81 does allow the court clerk to set matters for a hearing. M.R.C.P 81(d)(5). We have previously “read that [rule] to permit the clerk to set the date and time for hearings without the need for a chancellor’s signature on an order.” Sanghi, 759 So.2d at 1256 (¶ 29) (emphasis added). However, that part of the rule “is not an authorization for the chancellors of a district to bypass the summons requirement by using [a] court administrator’s] notice, even if there were a local rule adopted providing for that.” Id. “[A]n order entered on that day [originally set] may continue the cause to a later date without a new summons being issued.” Sanghi 759 So.2d at 1257 (¶ 82); see also M.R.C.P. 81(d)(5).

¶ 23. A Rule 81 summons must be issued if a set trial date is not continued on or before that trial date. Therefore, the court administrator’s notice in June 2010, resetting the August 6, 2009 trial date to November 3, 2010, was not sufficient to constitute proper process and service of Pearson under Rule 81.

3. Whether Pearson’s case is similar to Bailey v. Fischer.

¶ 24. Browning argues that the instant case is similar to Bailey v. Fischer. There, the defendant’s attorney had requested a continuance from the plaintiffs attorney. Bailey, 946 So.2d at 406 (¶ 3). The plaintiff agreed to the schedule change. Id. The court administrator issued notice of the new hearing date, August 6, 2002. Both attorneys appeared on that date. Id. The chancellor postponed the matter. Id. Both attorneys went to the court administrator, who then issued a new notice for August 12, 2002. Id. At the hearing on August 12, 2002, the defendant was held in contempt. Id. The defendant argued that there was no jurisdiction because no new Rule 81 summons was issued. Id. at (¶ 7).

¶ 25. The essence of the Bailey decision is that a party cannot ask for the scheduling change, agree to it, and then, using the scheduling change that he requested, offensively argue improper notice. Id. We found “the postponements of th[e] hearing were at the initiation and agreement of [the defendant’s] own counsel....” Id. at 409 (¶ 16). The defendant had an “unimpaired opportunity for an aggressive defense.” Id. Thus, in Bailey, the defendant waived “any defects in the issuance of the notice by the court administrator.” Id.

¶ 26. Here, there were no mutual agreements between parties about the dates. Pearson had been proceeding pro se since May 2008. Pearson made no requests to change the August 6, 2009 trial date. The two days’ actual notice did not afford Pearson an “unimpaired opportunity for an aggressive defense.” Id.

¶ 27. Four years after Bailey, this Court still instructed that “in Rule 81 matters, a Rule 81 summons must be issued; otherwise, service is defective.” Clark v. Clark, 43 So.3d 496, 499 (¶ 12) (Miss.Ct. App.2010). “Actual notice does not cure defective process.” Id. In Pearson’s case, a Rule 81 summons was not issued when it should have been. Pearson’s case is not similar to Bailey.

i. Whether Pearson made an appearance, thereby waiving lack of a Rule 81 summons.

¶ 28. At this stage of the analysis, we have concluded that Browning’s “motion” was a petition for contempt; an additional Rule 81 summons should have been issued in June 2010 instead of a court administrator’s notice; and Pearson’s case is unlike Bailey. The only avenue where the chancery court still would have jurisdiction over Pearson on November 3, 2010, is if Pearson waived the lack of a Rule 81 summons by appearing.

¶ 29. “The most expansive definition of ‘appearance’ ” is “when ‘the non-movant has manifested to the movant a clear intent to defend the suit.’ ” Sanghi, 759 So.2d at 1257 (¶ 34). The defendant has to have “done something to waive his right to insist upon proper service.” Id. at 1258 (¶ 36).

¶ 30. In Chasez v. Chasez, 957 So.2d 1031, 1037 (¶ 15) (Miss.Ct.App.2007), we held the defendant had waived his objection to service of process. The plaintiff filed a petition for contempt and mailed notice without a Rule 81 summons. Cha-sez, 957 So.2d at 1033-34 (¶ 2). The defendant, “acting pro se, appeared and indicated his willingness to proceed.” Id. at 1033 (¶2). However, Pearson never indicated willingness to proceed, but contested notice and asked for a continuance. Pearson demonstrated that because of the two days’ notice, he did not have time to get counsel, make arrangements for witnesses to appear, and bring documents. In Cha-sez, the defendant appeared and made no objection to a lack of notice, unlike Pearson who continually objected.

¶ 31. In Dennis v. Dennis, 824 So.2d 604, 611 (¶ 18) (Miss.2002), the defendant “announced ready at the beginning of the hearing, defended the allegations against him[,] and even subpoenaed witnesses to rebut the allegations.” This was a waiver of any procedural defects in process or service. The court in Isom v. Jemigan, 840 So.2d 104, 107 (¶ 10) (Miss.2003), held that the defendant waived the issue of the Rule 81 summons never having been served because she “obviously was prepared to defend herself and did so as her attorney presented evidence on her behalf to the court.” Unlike the defendants in Isom and Dennis, it is evident from the record that Pearson was not prepared to defend himself due to the lack of notice.

¶ 32. “With regard to a contempt proceeding, ‘[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.’ ” Vincent v. Griffin, 872 So.2d 676, 678 (¶ 6) (Miss.2004) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). The record shows Pearson was not given a meaningful opportunity to present evidence on his behalf.

¶ 33. Even though Pearson appeared on November 3, 2010, he protested his lack of notice, regardless of how inartful, such that his appearance cannot be labeled a waiver of insufficient notice. At trial, Pearson stated, “I have no idea what is being brought against me at this time. The only information that I got was from the court website.... ” Pearson also testified that had “Mr. Ransom [ (Browning’s attorney) ] done his job in notifying me ... of what was going on, I would have been present today with legal counsel.”

¶ 34. When asked by the court if he had any documents, Pearson answered, “I have many, sir. But none with me today. I thought I was the plaintiff!,] not the defendant.” When asked if he had witnesses to call, he said, “I had no one prepared to appear,” presumably because of the two days’ notice. He said he would have called his children as witnesses.

¶ 35. The chancery court denied his motion for a continuance, saying Pearson was notified in June 2010, and it did not have the authority to set aside a prior judge’s order. However, it was not a prior judge’s order that set the trial date. It was a court administrator’s notice.

¶ 36. Even if it is acceptable for someone other than a chancellor or a clerk to reset the trial date under less than strict compliance with Rule 81, the rescheduling must be done on or before the date originally set for the trial. Here, the original date was August 6, 2009. The court administrator’s notice was issued in June 2010 after the August 6, 2009 original trial date.

¶ 37. Regardless of whether strict compliance with Rule 81 is no longer required under Bailey, the rule nonetheless requires compliance. The notice to Pearson by letter without an additional Rule 81 summons was not acceptable compliance with Rule 81(d)(5). Pearson did not waive this issue by appearing and contesting jurisdiction for lack of sufficient notice under Rule 81.

¶ 38. Therefore, for all of the above reasons, the chancery court lost jurisdiction over Pearson when Pearson was not given sufficient notice under Rule 81.

5. Whether the judgment entered in November 2010 was void.

¶ 39. The chancery court lost jurisdiction over Pearson when no additional Rule 81 summons was issued. Without proper service of process or without an appearance that operates as a waiver, the chancery court did not have jurisdiction over Pearson. See Sanghi, 759 So.2d at 1257 (¶ 33). “Actual notice does not cure defective process.” Clark, 43 So.3d at 499 (¶ 12); see also Mansour v. Charmax Indus., Inc., 680 So.2d 852, 854-55 (Miss.1996) (citing Brown v. Riley, 580 So.2d 1234, 1237 (Miss.1991)). “jurisdiction is not obtained by a defendant’s informally becoming aware that a suit has been filed against him.” Sanghi, 759 So.2d at 1257 (¶ 33) (citing Mansour, 680 So.2d at 854-55).

¶ 40. The judgment here is void because it was entered without jurisdiction over Pearson. See Bryant, Inc. v. Walters, 493 So.2d at 938; Duvall, 224 Miss, at 555, 80 So.2d at 755; Roberts, 866 So.2d at 476-77 (¶¶ 7-8). The failure to comply with the appropriate rules for service of process in matters like contempt, even if a defendant is aware of the suit, prevents a judgment from being entered against him. Pearson was never properly summoned to the November 3, 2010 trial. Two days’ actual notice was not sufficient to provide a meaningful opportunity to defend. There was no basis for jurisdiction for what occurred from November 3, 2010 onward. Thus, the judgment in the amount of $53,528.22 is void.

¶ 41. Therefore, we reverse the judgment of the chancery court and render a judgment in favor of Pearson without prejudice.

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

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ., CONCUR. FAIR, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J„ DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . The parties have two children, one of whom had reached the age of majority.


author: CARLTON, J.,

text:
    Darnell WILSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01276-COA.
    Court of Appeals of Mississippi.
    Jan. 15, 2013.
    Leslie S. Lee, Jackson, Justin Taylor Cook, David Clay Vanderburg, attorneys for appellant.

      Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. A DeSoto County jury convicted Darnell Wilson of grand larceny, felony fleeing, and simple assault against a law enforcement officer following a trial in the DeSoto County Circuit Court. The circuit court sentenced Wilson as a habitual offender to three concurrent sentences of life imprisonment without the possibility of parole in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved by the jury verdict and judgment of the circuit court, Wilson appeals his convictions and sentences. The Mississippi Office of Indigent Appeals represents Wilson.

¶ 2. Wilson’s attorney filed a brief pursuant to Lindsey v. State, 939 So.2d 743, 748 (¶ 18) (Miss.2005), asserting that after diligently searching the procedural and factual history of Wilson’s case and also scouring the record, he found no arguable issues for appeal to present to this Court in good faith. Following the procedure set forth in Lindsey, Wilson filed a pro se brief on his own behalf, raising seven assignments of error. Upon review, this Court requested supplemental briefing from both parties regarding the issue of the constitutionality of Wilson’s sentence and requested that the parties address whether Wilson’s sentence reached the threshold necessitating a proportionality analysis by the trial judge. This Court has now fully examined the record and issues raised by Wilson pro se, and we find no meritorious issues. Therefore, we affirm Wilson’s convictions and sentences.

FACTS

¶ 3. On August 21, 2009, Kevin Licht, an employee at Kohl’s Department Store’s loss-prevention department in Southaven, Mississippi, observed what he believed to be suspicious activity in the store. At approximately 4:00 p.m., Licht began to track an individual via surveillance camera from inside the store’s loss-prevention office. Licht identified the individual as Wilson.

¶ 4. Licht called the Southaven Police Department, requesting assistance. Licht stated that he observed Wilson gather merchandise and go to the west side of the store and stuff the merchandise into what appeared to be a black garbage bag. Wilson then left the store through the west doors. Licht followed Wilson and asked him to stop. Wilson refused.

¶ 5. When the police arrived on the scene, Wilson began to run, dropping the garbage bag containing the merchandise. Licht concluded that the total value of everything taken by Wilson from Kohl’s amounted to $934.

¶ 6. Officer Nicholas Kennedy of the Southaven Police Department was dispatched to Kohl’s in response to Licht’s call. When Officer Kennedy arrived on the scene, he set up a perimeter and waited until he could get a visual on someone leaving the store. Officer Kennedy eventually observed Wilson leaving the store. Officer Kennedy stated that when Wilson left the store, he was carrying a large black bag. Wilson dropped the bag when Officer Kennedy made contact with him, and Wilson began running to his vehicle in the Kohl’s parking lot.

¶ 7. When Officer Kennedy arrived at Wilson’s vehicle, other police officers had also arrived at the scene. Officer Kennedy observed Wilson drive the vehicle “backwards and forwards several times,” and Officer Kennedy testified that the other officers were trying to stop the vehicle. When Wilson failed to comply with the officers’ commands to stop and exit the vehicle, Officer Kennedy shot Wilson with a taser gun. At that point, Wilson drove off in the vehicle.

¶ 8. Officer Jeremy Iverson of the Sou-thaven Police Department was also called to the scene. During the encounter in the Kohl’s parking lot, Officer Iverson pulled his vehicle within two feet of Wilson’s vehicle. Officer Iverson exited his vehicle and went to the driver’s side of Wilson’s vehicle in an attempt to stop Wilson and force him and a passenger to exit the vehicle. Wilson then put the vehicle in reverse and hit Officer Iverson’s vehicle. He then put his car in drive, and hit a civilian vehicle. While Wilson drove his vehicle back and forth, Officer Iverson reached his arm into the car and attempted to remove the keys from the ignition. Wilson then drove away in his vehicle, with police officers in pursuit.

¶ 9. As a result of the incident, Officer Iverson testified that he experienced pain and soreness from his shoulder to his fingertips. Officer Iverson went to Baptist Memorial Hospital for treatment, where doctors diagnosed him with a shoulder strain. Officer Steven Raines, another officer at the scene, provided testimony which largely corroborated the testimony provided by Officers Kennedy and Iverson.

¶ 10. Police officers ultimately apprehended Wilson on Queen Elizabeth Drive in Memphis, Tennessee, after following Wilson’s vehicle. While in pursuit of Wilson, police officers observed Wilson run several stop lights and hit another vehicle. Officer Donald Burr testified that when he arrived on the scene, two individuals were being detained — Wilson and his brother, the passenger in Wilson’s vehicle. Officer Burr collected some clothes from the back of the vehicle.

¶ 11. Wilson’s mother, Eunice Wilson, testified in her son’s defense. She stated that after the shoplifting incident, she received a letter from Kohl’s, indicating that there was a $225 penalty for her son’s shoplifting from the store. Eunice claims she paid the entire amount. She also admitted that the letter indicated that the money requested by Kohl’s was for a civil penalty, and not a payment for the merchandise itself. Trinity Bodkins, a loss prevention manager for Kohl’s, also testified and confirmed that the $225 charge was to pay for other expenses incurred and in no way reflected the value of the items taken in the shoplifting incident.

¶ 12. Wilson’s brother, Randolph Wilson, also testified in Wilson’s defense, stating that he was with Wilson on the day in question. Randolph claimed that the police officers were assaulting Wilson, and not the other way around.

¶ 13. Wilson took the stand and testified in his own defense. He admitted to shoplifting from Kohl’s, and he testified that the reason he fled from the police was to return his mother’s vehicle to her so that the police officers would not “tear it up.” Wilson also admitted that he continued to drive away after repeatedly being ordered to stop by the police officers, explaining: “It was only shoplifting. It wasn’t murder, honey.” Wilson claimed that he dated a police officer for seventeen years, so he knew “what’s right and what’s not” regarding when to follow orders from police officers.

¶ 14. Wilson testified that as a result of being shot with the taser gun, his ability to drive was affected, which led to his sideswiping another vehicle while driving away from the police officers. Wilson also denied assaulting Officer Iverson, claiming Officer Iverson should not have continued to try to arrest him.

¶ 15. On cross-examination, Wilson boasted that he had shoplifted numerous times in the past. Wilson stated that whenever he shoplifted, he always made sure he stole less than $500 worth of merchandise, with the exception of one theft where he shoplifted merchandise worth more than $500. Wilson also openly testified to being a prostitute and, without any questioning on the matter, explained his prior convictions for aggravated robbery.

¶ 16. At the conclusion of the trial, the circuit judge granted the requested lesser-offense jury instructions for petit larceny, resisting arrest, and misdemeanor fleeing. The jury ultimately returned a verdict of guilty on all three indicted counts (grand larceny, felony fleeing, and simple assault against a law enforcement officer).

¶ 17. The circuit judge sentenced Wilson as a habitual offender to three concurrent sentences of life imprisonment without the possibility of parole in the custody of the MDOC, pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 2007). The circuit court, on its own motion, performed the Eighth Amendment proportionality analysis and determined that the sentence imposed on Wilson was not constitutionally disproportionate. Field v. State, 28 So.3d 697, 701 (¶ 11) (Miss.Ct.App.2010). Wilson filed both a motion for a new trial and a motion for a judgment notwithstanding the verdict (JNOV). The circuit judge denied these motions. On July 30, 2010, feeling aggrieved by the verdict of the jury and the sentence of the circuit court, Wilson filed a notice of appeal. This Court later ordered supplemental briefing from both parties on the issue of the constitutionality of Wilson’s sentence. Upon review, we find no error.

DISCUSSION

¶ 18. In Lindsey, the Mississippi Supreme Court implemented the following procedure to govern cases in which counsel for indigent defendants find no arguable issues to present on appeal:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(l)-(4), (7)....
(2) As part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Lindsey, 939 So.2d at 748 (¶ 18) (footnotes and internal citations omitted).

¶ 19. Wilson’s counsel complied with the procedures set forth in Lindsey. Wilson’s counsel filed a brief stating that he examined the entire record, including

(a) the reason for the arrest and the circumstances surrounding the arrest of Darnell Wilson; (b) any possible violations of Wilson’s right to counsel; (c) the entire trial transcript and content of the record; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; (h) possible misapplication of the law in sentencing; ... (i) the indictment and all the pleadings in the record; ... [;] any possible ineffective assistance of counsel issues; (k) whether the verdict was supported by the overwhelming weight of the evidence; (l) whether Wilson was properly sentenced as a habitual offender; (m) whether the trial court’s proportionality analysis was proper under the Eighth Amendment of the United States Constitution; (n) whether Wilson’s sexual orientation was in any wa[y] a factor [in the] charges being brought, his sentence as a habitual offender, or the ultimate sentence; [and] (o) whether the jury erred in not finding Wilson guilty of all the lesser offenses.

¶ 20. Further, Wilson’s appellate counsel confirms that he informed Wilson that he found no arguable issues in the record and that he informed Wilson of his right to file a pro se brief. Wilson’s counsel also requested for us to allow additional time for Wilson to file such a brief, which we granted. See Lindsey, 9B9 So.2d at 748 (¶ 18). Wilson then filed a pro se brief on his own behalf, asserting several errors in the circuit court, specifically that the circuit court erred in sentencing him as a habitual offender pursuant to section 99-19-88.

¶ 21. However, after reviewing the record, we find that the State provided sufficient evidence showing no error by the trial court in sentencing Wilson as a habitual offender pursuant to section 99-19-83. The record shows that Wilson met the following statutory requirements for such sentencing: Wilson had been convicted twice previously of felony crimes separately brought and arising out of separate incidents at different times; Wilson had been sentenced to and served separate terms of one year or more in the custody of the Tennessee Department of Corrections; and one or more of those felonies constituted a crime of violence, pursuant to section 99-19-88. At Wilson’s sentencing hearing, the State also provided certified documents from the State of Tennessee reflecting Wilson’s numerous previous convictions, and the trial court acknowledged that many of Wilson’s prior convictions constituted crimes of violence.

¶22. The record also shows that the circuit court provided an on-the-record proportionality analysis when sentencing Wilson for each count. However, the court did not address each Solem factor in its proportionality analysis for each offense. In evaluating whether the trial court’s proportionality analysis was sufficient or even necessary, this Court, on its own motion, requested supplemental briefing from both parties pertaining to the issue of the constitutionality of Wilson’s sentence. Specifically, this Court asked the parties to address the following issues: (1) whether or not in this case a threshold comparison of Wilson’s crime to the sentence imposed meets the inference of gross disproportionality as explained by this Court in Field v. State, 28 So.3d 697, 701 (¶ 11) (Miss.Ct.App.2010), and (2) if Wilson’s sentence met the threshold inference, whether the trial court’s on-the-record proportionality analysis sufficiently satisfied the requirements set forth in Field and Solem to support concurrent life sentences imposed for each of Wilson’s convictions. Solem v. Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

¶ 23. We recognize that “[sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Wall v. State, 718 So.2d 1107, 1114 (¶ 29) (Miss.1998) (quoting Hoops v. State, 681 So.2d 521, 537 (Miss.1996)). We further acknowledge that the supreme court has held that a sentence that does not exceed the maximum term allowed by statute will not be disturbed on appeal. Fleming v. State, 604 So.2d 280, 302 (Miss.1992). This Court, however, “will review a sentence that allegedly imposed a penalty ... disproportionate to the crime.” Nichols v. State, 826 So.2d 1288, 1290 (¶10) (Miss.2002).

¶ 24. We further recognize that Solem has been overruled to the extent that its holding found a guarantee of proportionality within the Eighth Amendment. Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Under current precedent established by the Mississippi Supreme Court, absent an initial threshold showing of gross disproportionality, Mississippi appellate courts will not apply the three-prong test from Solem. See Hoops, 681 So.2d at 538 (citing Harmelin, 501 U.S. at 1005, 111 S.Ct. 2680). If the threshold showing of gross-proportionality has been met, then courts apply the following three-prong proportionality balancing test as set forth in Solem: (1) “the gravity of the offense and the harshness of the penalty”; (2) “the sentences imposed on other criminals in the same jurisdiction”; and (3) “the sentences imposed for commission of the same crime in other jurisdictions.” Solem, 463 U.S. at 292, 103 S.Ct. 3001. “[A] sentence that is within the statutorily defined parameters of the crime[ ] usually is upheld and [is] not considered cruel and unusual punishment.” Nichols, 826 So.2d at 1290 (¶ 12). Thus, “outside the context of capital punishment, successful challenges to the proportionality of a particular sentence will be exceedingly rare.” Clowers v. State, 522 So.2d 762, 765 (Miss.1988) (quoting Solem, 463 U.S. at 289-90, 103 S.Ct. 3001). In Smallwood v. State, 930 So.2d 448, 451-52 (¶ 11) (Miss.Ct.App.2006), this Court acknowledged that “Mississippi appellate courts recognize the broad authority of the [Legislature and trial courts in the area of sentencing” and that appellate courts “will not engage in an extended proportionality analysis where the sentence is not manifestly disproportionate.” (Citation omitted).

¶ 25. In the present case, the circuit judge sentenced Wilson as a habitual offender pursuant to section 99-19-83 to three concurrent sentences of life imprisonment without the possibility of parole in the custody of the MDOC. Section 99-19-83 provides:

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

(Emphasis added). The circuit court, on its own motion, performed the Eighth Amendment proportionality analysis and determined that the sentence imposed on Wilson was not constitutionally disproportionate. See Field, 28 So.3d at 701 (¶ 11). The court noted that without any habitual sentencing, Wilson would have faced up to twenty years in the custody of the MDOC, were his felony convictions to run consecutively. The circuit judge proceeded to make findings on the record where he acknowledged Wilson’s lengthy history of felony and misdemeanor convictions and Wilson’s age (44 years old), and determined that the appropriate sentence for Wilson, as a habitual offender, was life imprisonment on each of the three counts, with all three sentences to run concurrently. Although the circuit court did not specifically use the words “grossly disproportionate,” the judge found that ‘Wilson’s sentence is not disproportionate to [that of] a person with a similar criminal history who stands before the court at [his] age with his history charged with crimes that likewise include ... a conviction for a crime of violence.” Since the circuit judge found no inference of gross disproportion-ality in Wilson’s sentence, the court was not required to apply the Solem factors. See Hoops, 681 So.2d at 521; Field, 28 So.3d at 701 (¶ 11).

¶ 26. In examining gross dispro-portionality of sentences, we turn to Rummel v. Estelle, 445 U.S. 263, 284-85, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), wherein the United States Supreme Court found that the defendant’s sentence was not disproportionate nor in violation of the Eighth Amendment where the defendant was sentenced under a recidivist statute to life imprisonment for his third nonviolent felony conviction, and the total loss for the three property-related crimes amounted to less than $250. The Rummel Court explained that:

The purpose of a recidivist statute ... [is] to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes.

Id. at 284. In light of Rummel, we find no abuse of discretion in the circuit court’s determination that Wilson’s sentence was not grossly disproportionate to the crimes he committed. See also Mosley v. State, 104 So.3d 839, 840-842 (¶¶ 10-11) (Miss.2012) (supreme court found no inferential showing of gross disproportionality in defendant’s sentence as a habitual offender to a total of 126 years in the custody of the MDOC for the convictions of selling cocaine, methamphetamine, and marijuana).

¶ 27. After an examination of Wilson’s pro se supplemental brief and a thorough review of the record in this case, we find that Wilson raises no arguable issues in support of his appeal. Wilson received a life sentence for each of his convictions in compliance with section 99-19-83; thus, we find Wilson’s sentences fall within the statutory limits. See Wall, 718 So.2d at 1114 (¶ 29) (“Sentencing is ... not subject to appellate review if it is within the limits prescribed by statute.”). Therefore, we affirm Wilson’s convictions and sentences. See Bradshaw v. State, 6 So.3d 1123, 1125 (¶ 7) (Miss.Ct.App.2009).

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF COUNT I, GRAND LARCENY, AND SENTENCE OF LIFE IMPRISONMENT; COUNT II, FELONY FLEEING, AND SENTENCE OF LIFE IMPRISONMENT; AND COUNT III, SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER, AND SENTENCE OF LIFE IMPRISONMENT, WITH THE SENTENCES IN COUNTS I, II, AND III TO BE SERVED CONCURRENTLY, ALL AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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

      . This opinion has not been released for publication in the permanent law reports and is subject to revision or withdrawal.


author: LEE, C.J.,

text:
    Jonathan MILLER a/k/a Jonathan Deondra Miller a/k/a Johnathan D. Miller a/k/a John John a/k/a Jon Jon, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CA-01204-COA.
    Court of Appeals of Mississippi.
    Jan. 22, 2013.

      Wanda Turner-Lee Abioto, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY AND FACTS

¶ 1. On March 30, 2010, in the DeSoto County Circuit Court, Jonathan Miller pleaded guilty to sexual battery. Miller was sentenced to twenty years, with ten years to serve in the custody of the Mississippi Department of Corrections and ten years of post-release supervision, with the first five years to be served on a reporting basis. Miller filed a motion for post-conviction relief on February 18, 2011. The trial court subsequently denied Miller’s motion for post-conviction relief.

¶2. Miller now appeals, asserting the following issues: (1) his trial counsel failed to inform him about the nature of an Alford plea; (2) his trial counsel failed to review all the evidence before allowing him to plead guilty; (3) his trial counsel did not prepare properly for the plea hearing; (4) he was denied due process of law during his plea hearing; (5) his sentence was excessive; and (6) the cumulative errors warrant relief. As Miller’s first three issues address whether his trial counsel was ineffective, we will address them together.

STANDARD OF REVIEW

¶ 3. When reviewing a trial court’s denial or dismissal of a motion for post-conviction relief, we will only disturb the trial court’s factual findings if they are clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review. Madden v. State, 52 So.3d 411, 412 (¶ 6) (Miss.Ct.App.2011); Doss v. State, 19 So.3d 690, 694 (¶ 5) (Miss.2009).

I. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 4. In order to prevail on an ineffective-assistanee-of-counsel claim, Miller must show: (1) his counsel’s performance was deficient, and (2) the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because Miller challenges a guilty plea based on ineffective assistance of counsel, he must show “counsel’s errors proximately resulted in the guilty plea[,] and, but for counsel’s error, he would not have entered the guilty plea.” Deloach v. State, 937 So.2d 1010, 1011 (¶ 5) (Miss.Ct.App.2006).

¶ 5. Miller first contends his trial counsel was ineffective for failing to instruct him on the nature of an Alford plea. When a defendant enters into a guilty plea while maintaining his innocence, he has entered what is known as an Alford plea, in accordance with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Alford holds that an express admission of guilt is not constitutionally required in order to be punished criminally. Id. at 37, 91 S.Ct. 160. “An individual accused of [a] crime may voluntarily, knowingly, and understandingly consent to ... a prison sentence even if he is unwilling or unable to admit his participation in the [alleged] acts.” Id.

¶ 6. During the plea colloquy, the trial court asked Miller if he understood “what North Carolina versus Alford mean[t]?” Miller responded that he did not, and the trial court subsequently explained the process. The record reflects Miller understood the purpose of an Alford plea. Miller further stated he had discussed the matter with his trial counsel prior to the plea hearing. According to Miller’s guilty-plea petition, Miller understood the district attorney would recommend Miller’s sentence be capped at ten years in the MDOC, and Miller would be out on bond while awaiting his sentencing. At no point during the plea colloquy did Miller state he was innocent of the crime charged; however, he did agree it was in his best interest to plead guilty. It is well settled that “[g]reat weight is given to statements made under oath and in open court during sentencing.” Gable v. State, 748 So.2d 703, 706 (¶ 11) (Miss.1999). This argument is without merit.

¶ 7. Miller further states his trial counsel was ineffective for failing to perform certain pretrial duties, such as filing a motion to transfer to youth court and obtaining certain documents from the Department of Human Services that might have concerned his victim. Miller’s trial counsel did file a motion to transfer, which the trial court denied. Regarding any documents from DHS, Miller has failed to show any error on the part of his trial counsel or any resulting prejudice. These arguments are without merit.

¶ 8. Miller finally contends his trial counsel failed to consider all the evidence when advising him to plead guilty and was unprepared for the plea hearing. However, with this argument Miller is attempting to challenge the factual basis for his guilty plea. We will address this argument with Miller’s next issue.

II. DUE PROCESS

¶ 9. In his next issue on appeal, Miller contends his due-process rights were violated because there was not a factual basis for his guilty plea. Under Rule 8.04(A)(3) of the Uniform Rules of Circuit and County Court, “[b]efore the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea.” The court must also have before it “substantial evidence that the accused [committed] the legally defined offense to which he is offering the plea.” Burrough v. State, 9 So.3d 368, 373 (¶ 14) (Miss.2009). Ultimately, “there must be enough that the court may say with confidence the prosecution could prove the accused guilty of the crime ehargedf.]” Corley v. State, 585 So.2d 765, 767 (Miss.1991) (citing United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757,102 L.Ed.2d 927 (1989)).

II10. At the guilty-plea hearing, the State informed the trial court that it was prepared to prove that Miller had forced a five-year-old girl to place his penis in her mouth. The child was present in the courtroom and prepared to testify. Another witness was prepared to testify that although she did not see the criminal act, she did see Miller and the victim in a compromising situation. The State also included the results of a forensic interview in which the victim discussed the incident with a trained social worker. The trial court found enough proof to support a strong factual basis. We agree and find this issue to be without merit.

III. EXCESSIVE SENTENCE

¶ 11. Miller next argues his sentence was excessive, disproportionate, and racially biased. Miller, a black male, states white male offenders who committed a similar offense were given lesser sentences. And he alleges his sentence was more excessive because his victim was a white female. Miller was sentenced to twenty years, with ten years to serve. In his brief, Miller lists several examples of white males receiving lesser sentences for similar crimes. However, the trial court addressed the issue and noted several cases in which white males received the same sentence as Miller. In its brief on appeal, the State also includes numerous examples of white males receiving similar or greater sentences for similar crimes.

¶ 12. As a general rule, a sentence that does not exceed the maximum period allowed by statute will not be disturbed on appeal. See Wallace v. State, 607 So.2d 1184, 1188 (Miss.1992). However, a sentence that is “grossly disproportionate” to the crime committed is subject to attack on Eighth Amendment grounds. Id. “So long as the sentence imposed is within the statutory limits, sentencing is generally a matter of trial court discretion.” Williams v. State, 784 So.2d 230, 237 (¶ 19) (Miss.Ct.App.2000). Mississippi Code Annotated section 97-3-101(4) (Rev. 2006) states the following: “Every person who shall be convicted of sexual battery who is thirteen (13) years of age or older but under eighteen (18) years of age shall be sentenced to such imprisonment, fine or other sentence as the court, in its discretion, may determine.” The trial court, in its discretion, sentenced Miller to twenty years, with ten years to serve. Miller’s sentence was clearly within the statutory guidelines.

¶ 13. The United States Supreme Court stated a three-pronged test should be used when a sentence imposed leads to an inference of gross disproportionality. Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), overruled in part by Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). The Mississippi Supreme Court has stated that: “Unless a threshold comparison of the crime committed to the sentence imposed leads to an inference of gross disproportionality,” an analysis under Solem is not necessary. Ford v. State, 975 So.2d 859, 869 (¶39) (Miss.2008) (quotations omitted). Miller was sentenced within the statutory guidelines, and we do not find that his sentence leads this Court to an inference of gross disproportionality. Therefore, a review under Solem is not necessary. This issue is without merit.

IV. CUMULATIVE ERROR

¶ 14. In his final issue on appeal, Miller contends the cumulative errors necessitate reversal. Finding Miller’s arguments to be without merit, we find no cumulative error that would require reversal.

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

GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ„ CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY. JAMES, J., NOT PARTICIPATING.


author: IRVING, J., ISHEE, J.,

text:
    Chase POWELL, Appellant v. Nina CRAWLEY, Appellee.
    No. 2011-CA-01367-COA.
    Court of Appeals of Mississippi.
    Jan. 22, 2013.
    Darryl A. Hurt Jr., attorney for appellant.

      Ronald Alford Herrington Jr., attorney for appellee.
   IRVING, J.,

for the Court:

¶ 1. The George County Chancery Court denied Chase Powell’s request to have the surname of Powell’s child changed to reflect Powell’s surname. Powell appeals, arguing that the chancery court erred. We disagree. Therefore, we affirm the judgment of the chancery court.

STATEMENT OF FACTS

¶ 2. On January 29, 2010, a baby daughter was born out of wedlock to Christina Crawley and Powell, who at the time was just two months shy of his twentieth birthday. The next day, Powell signed two documents: an Acknowledgement of Paternity form and a Name of Child Verification form. The paternity form lists the child’s full name as Carsyn Michelle Craw-ley. In the paternity form is the following printed certification, which Powell signed before a notary public:

I, Chase Dickson Powell[,] certify and acknowledge that I am the natural father of the child whose name appears in item 1 of the birth certificate, and that all information in items 7a-7d and 13-15 is correct. My rights and responsibilities and right to rescind (cancel) paternity have been explained to me. It is also understood that I have the right to request a genetic test through the Department of Human Services within sixty days.

¶ 3. The verification form also lists the child’s full name as Carsyn Michelle Craw-ley. Printed in the verification form is the following statement, which Powell signed:

By my signature[,] I verify and agree that the [cjhild’s name as it appears in Item 1 of the birth certificate and Item 1 of [the verification form] is the name to be given to the child by the mother and I, and the name is spelled in accordance with our wishes.

Also printed in the verification form is the following statement:

The name given a child on the Certification of Live Birth establishes the legal identity of that child, and as such attention to the spelling of the name must be exercised. Traditionally, the [cjhild’s last name is the same as the [fjather’s last name as listed on the Certificate of Live Birth, or, in cases where the mother is not married at any time from conception through birth and there is no “Acknowledgment of Paternity,” the [cjhild’s name is the legal last name of the mother at the time of birth. However, parents are not required to follow tradition and may name the child any name of their choosing.
To ensure accuracy of intent and spelling, any time a child is named in a manner other than the traditional, the parent(s) are asked to verify that the [cjhild’s name listed is the name intended for the child and is spelled in accordance with the parent(s)[] wishes.

(Emphasis added).

¶4. Nine months after executing the forms discussed above, Powell filed a complaint for adjudication of paternity, child support, and visitation with Carsyn. Powell also sought to change Carsyn’s surname from Crawley to Powell. He named Christina as the only respondent.

¶ 5. The matter was set for hearing, and on the morning of the hearing, the parties agreed to paternity, child support, and visitation, leaving only the matter of the change of Carsyn’s surname to be decided by the chancery court. Nothing was offered in support of the change but, by agreement, argument of counsel. There was not even a proffer of what Powell would have testified to if called as a witness.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. Mississippi Code Annotated section 41-57-23(1) (Supp.2012) provides in pertinent part:

Any petition, bill of complaint[,] or other proceeding filed in the chancery court to: ... (b) change the surname of a child ... or (e) make any changes or additions to a birth certificate resulting from a legitimation, filiation ... shall be filed in the county of residence of the petitioner or filed in any chancery court district of the state if the petitioner be a nonresident petitioner. In all such proceedings, the State Board of Health shall be made a respondent therein, and a certified copy of the petition, bill of complaint[J or other proceeding shall be forwarded to the State Board of Health.

(Emphasis added). When Powell filed his complaint, his child already had a birth certificate with her surname listed as Crawley. Therefore, in order to change the child’s surname from Crawley to Powell, Powell was required to comply with the provisions of section 41-57-23(1). He did not, inasmuch as he failed to make the State Board of Health a respondent.

¶ 7. In denying Powell’s request to have his child’s surname changed to his, the chancery court stated: “[B]y signing the ‘Name of Child Verification,’ the plaintiff/natural father waived his right to have the child’s surname changed to his surname. His signature on this statement represents his agreement to allow the child’s surname to be the same as the mother’s.” We need not decide whether the chancery court abused it discretion in refusing to grant the requested relief because, as stated, Powell failed to make the State Board of Health a respondent. Therefore, the chancery court could not have granted the relief even if it had wanted to. See Tillman v. Tillman, 791 So.2d 285, 289 (¶ 13) (Miss.Ct.App.2001) (stating that it is the standard practice to affirm the trial court’s decision when the right result has been reached even if for the wrong reason).

¶8. The dissent, relying on the provisions of Mississippi Code Annotated section 41-57-23(2) (Supp.2012), states that “changing a child’s surname to one other than the father’s surname when a paternity form has been properly executed is a discretionary, exceptional circumstance, while inclusion of the father’s surname is compulsory.” Dissenting Op. at (¶ 13). With all due respect, we must say that the dissent misapplies section 41-57-23(2). Section 41-57-23(2) clearly states that when a father is already listed on a birth certificate, as is the case here, any change to one’s surname must be made pursuant to section 41-57-23(1). Section 41-57-23(2) is applicable when the parties are first deciding what their child’s name should be. Thus, section 47-57-28(2) was applicable when Powell and Christina first decided what to name their new baby. At that time, it was left to their discretion to follow the traditional approach and have their child take the father’s surname or to give the child some other surname. They chose the latter. Therefore, after the expiration of sixty days following Powell’s execution of the acknowledgment of paternity, the name that they agreed to give to their child became final, because thereafter paternity could be challenged only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger. Miss.Code Ann. § 41-57-23(S)(b) (Supp.2012). Any change to the child’s surname would thereafter have to be made pursuant to the procedure set forth in section 47-57-23(1).

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

GRIFFIS, P.J., CARLTON, MAXWELL AND FAIR, JJ„ CONCUR. ISHEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J.; BARNES AND ROBERTS, JJ„ JOIN IN PART. JAMES, J., NOT PARTICIPATING.

ISHEE, J.,

dissenting:

¶ 10. With respect to the majority’s opinion, I must dissent. To reiterate, the chancery court denied Powell’s request to change Carsyn’s surname on the basis that Powell “waived his right to have the child’s surname changed to his surname” based on his signature on the name-verification form. The name-verification form states, with emphasis added:

The name given a child on the Certification of Live Birth establishes the legal identity of that child, and as such[,] attention to the spelling of the name must be exercised. Traditionally, the [c]hild’s last name is the same as the {father's last name as listed on the Certificate of Live Birth, or, in cases where the mother is not married at any time from conception through birth and there is no “Acknowledgment of Patemityl]" ... the [cjhild’s last name is the legal last name of the mother at the time of the birth. However, parents are not required to follow tradition and may name the child any name of their choosing.

The name-verification form then lists the child’s name with Crawley as the surname instead of Powell.

¶ 11. The paternity form lists Powell as Carsyn’s father and states:

Rights and Responsibilities:

Execution of this acknowledgment of paternity shall result in the same legal effect as if the father and mother had been married at the time of the birth of this child.... Once the sixty (60) day time frame expires, execution of this acknowledgment of paternity shall result in the same legal effect as if the father and mother had been married at the time of the birth of this child.

¶ 12. In determining that Powell waived his right to have Carsyn’s surname changed to his own surname, the chancery court cited Rice v. Merkich, 34 So.Bd 555 (Miss.2010), as support for its decision. Rice involved a child born to an unwed mother who failed to inform the father of the child’s birth. Id. at 558 (¶ 10). Accordingly, the child’s father was not given an opportunity to sign a paternity form. Id. The supreme court referenced Mississippi Code Annotated section 41-57-23(2) (Rev.2012) of the Vital Statistics Chapter, which provides:

If a child is born to a mother who was not married at the time of conception or birth, or at any time between conception and birth, and the natural father acknowledges paternity, the name of the father shall be added to the birth certificate if a notarized affidavit by both parents acknowledging paternity is received on the form prescribed or as provided in [Mississippi Code Annotated] [s]ection 93-9-9 [ (Supp.2012) ]. The surname of the child shall be that of the father except that an affidavit filed at birth by both listed mother and father may alter this rule.

(Emphasis added). Ultimately, the supreme court determined that because the mother failed to prove by a preponderance of the evidence that it was in the child’s best interest that the child’s surname not be that of the father, the child should bear the father’s surname. See Rice, 34 So.3d at 559 (¶ 16). In doing so, the supreme court noted that, in addition to conforming with applicable statutes on the topic, the decision also adhered to the Rules Governing the Registration and Certification of Vital Events by the Mississippi State Department of Health. Id. at 558-59 (¶¶ 11-12).

¶ 13. The statute cited by the supreme court in Rice is mandatory in nature, ordering that a child shall bear the surname of his or her father in the event a paternity form is completed. Miss.Code Ann. § 41-57-23(2). While the statute notes the rule may be altered by an affidavit signed by both parents indicating otherwise, the statute does not mandate that the rule must be altered in such an event. Id. Accordingly, changing a child’s surname to one other than the father’s surname when a paternity form has been properly executed is a discretionary, exceptional circumstance, while inclusion of the father’s surname otherwise is compulsory.

¶ 14. I fail to see how, under the present conditions, Powell effectively “waived” his right to have Carsyn’s surname as that of his own. Nowhere in any of the forms, statutes, or applicable rules does it state that execution of a name-verification form waives the father’s right to have the child’s surname as that of his own if he and the mother have executed a paternity form. In contrast, the statutes appear to compel inclusion of the father’s surname to the child as an inherent right given to the father and merely allows another surname based on the parties’ intent. It would be contrary to the purpose of the statute to infer that the right of a father to have his child bear his surname may be waived unintentionally after the father has acknowledged paternity and disputed the child’s maternal surname.

¶ 15. It is obvious that Powell did not understand the consequences of his signing the name-verification form at the hospital and did not intend for his child to bear Crawley’s surname instead of his. Powell was a minor at the time of the execution of these documents and was unaccompanied by a parent, guardian, or counsel when he signed the documents. We afford broad protections to persons under the age of twenty-one. We deem them without the maturity or experience level necessary to participate in such activities as consuming alcohol, entering into a gambling institution, and purchasing real property. Hence, I cannot deem it just to allow a minor to waive parental rights without the assistance of counsel.

¶ 16. Additionally, it was Powell, not Crawley, who initiated the present suit to determine custody and child support. Powell clearly shows a desire to be a part of Carsyn’s life and a desire for her to bear his surname. Furthermore, since Powell filed this action only eight months after the child’s birth, Carsyn should suffer no adverse consequences as a result of the change. She is not of school age and likely does not yet know her surname. Likewise, Crawley has failed to show by a preponderance of the evidence that it is not in the best interest of Carsyn to bear her father’s surname. I find that the chancery court committed manifest error in denying Powell the right to have his child bear his surname. As such, I would reverse and render the judgment of the chancery court.

LEE, C.J., JOINS THIS OPINION. BARNES AND ROBERTS, JJ„ JOIN THIS OPINION IN PART.

      . The order denying change of name lists the appellee's name as Nina, while the judgment adjudicating child support and visitation lists her name as Christina.

      . In the form, the British spelling, rather than the American spelling of the word acknowledgment is used.

      . This section states in pertinent part:
      If a child is bom to a mother who was not married at the time of conception or birth, or at any time between conception and birth, and the natural father acknowledges paternity, the name of the father shall be added to the birth certificate if a notarized affidavit by both parents acknowledging paternity is received on the form prescribed or as provided in [Mississippi Code Anno-

        tated] [sjection 93-9-9. The surname of the child shall be that of the father except that an affidavit filed at birth by both listed mother and father may alter this rule. In the event ... a father is already listed on the birth certificate, action must be taken under [sjection 41-57-23(1) to add or change the name of the father. (Emphasis added).

      . The time allowed for rescission of an acknowledgment of paternity was enlarged from sixty days to one year by a 2012 amendment.


author: GRIFFIS, P.J., CARLTON, J.,

text:
    Shandera Kelsey GILLESPIE, Appellant v. Timmy GILLESPIE, Appellee.
    No. 2011-CA-01270-COA.
    Court of Appeals of Mississippi.
    Jan. 29, 2013.

      Joe Morgan Wilson, Senatobia, attorney for appellant.
    Timmy Gillespie, appellee, pro se.
   GRIFFIS, P.J.,

for the Court:

¶ 1. This case considers whether the chancellor erred in the divorce judgment of Shandera and Timmy Gillespie. Shand-era argues that the chancellor erred when he: (1) granted Timmy a divorce based on habitual cruel and inhuman treatment, (2) granted Timmy a divorce on the ground of adultery, (3) awarded Timmy half of Shandera’s retirement account, and (4) failed to make adequate findings of fact and conclusions of law when he divided the marital property. We affirm as modified the grant of a divorce and affirm as to all other issues.

FACTS

¶ 2. Shandera and Timmy Gillespie were married for fourteen years. They separated in September 2010. They have a daughter, Meagan.

¶ 3. On October 1, 2010, Timmy filed a complaint for divorce. Timmy asked for a divorce on the fault grounds of cruel and inhuman treatment and adultery. Timmy asked for a divorce, division of the marital property, custody of Meagan, child support, and other relief.

¶ 4. At the hearing, Timmy testified that Shandera struck him with her fist, a broom, and a coat hanger. She also cut him and the top of his convertible with a knife. On one occasion, Meagan called 911 when Shandera hit Timmy.

¶ 5. James Moss testified that he saw bruises around Timmy’s eyes and on his arms. Although he did not see Shandera inflict the wounds that caused Timmy’s bruises, Moss testified that Timmy told him that Shandera had hit Timmy with something and that caused the bruises.

¶ 6. Timmy also introduced a ticket for a cruise that Shandera went on with Lavelle McCollough. He also introduced a Mother’s Day card given to Shandera by La-velle that said: “I Love the way you do your do, I love your sexy smile, I love your classy wardrobe, too, and your cool and sassy style for me you’ll always be ‘the one’ who just can’t be replaced, yes, love, when all is said and done I’ve really got good taste.”

¶ 7. Timmy introduced pictures of La-velle and Shandera hugging. Timmy offered evidence that LaveEe sent flowers to Shandera. Lavelle admitted in his deposition that he provided Shandera with a cell phone. However, he explained he gave her the cell phone so that his security-system provider would have someone to contact if it was necessary.

¶ 8. Lavelle testified in his deposition that he met Shandera through her employment at the University of Tennessee Cancer Institute, when she took care of his wife, who had cancer. After his wife passed away, Shandera took care of La-velle’s home while he was away. Lavelle and Shandera argued that the cruise ticket was originally purchased for Lavelle’s wife. After her death, Lavelle gave the ticket to Shandera in appreciation for taking care of his house. Lavelle insisted they did not engage in a sexual relationship during the trip. They also did not stay in the same room.

¶ 9. Lavelle admitted in his deposition he sent flowers and cards to Shandera. However, he claimed that his actions were not those of a lover but rather an appreciative friend. Furthermore, he asserted the pictures that showed him in an embrace with Shandera simply depicted a hug between friends.

¶ 10. Timmy also introduced as evidence photographs of underwear with the phrase “army booty.” Shandera objected and stated that she purchased the underwear herself. Timmy claimed that the underwear was a gift to Shandera from Lavelle.

¶ 11. A letter from a paramour was also introduced. In this letter, the paramour stated he enjoyed “snuggling” and other forms of intimacy with Shandera. Shand-era objected to the admission of the letter into evidence and stated she had nothing to do with the letter.

STANDARD OF REVIEW

¶ 12. We “will not disturb the chancellor’s opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous, or [applied] an erroneous legal standard[.]” Samples v. Davis, 904 So.2d 1061, 1064 (¶ 9) (Miss.2004) (quoting Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)). Also, “[w]e will not reverse a[c]hancellor’s findings of fact where they are supported by substantial credible evidence in the record.” Id. (quoting Hammett v. Woods, 602 So.2d 825, 827 (Miss.1992)).

ANALYSIS

1. The chancellor erred when he granted Timmy a divorce based on cruel and inhuman treatment.

¶ 13. Habitual cruel and inhuman treatment as a ground for divorce must be proved by a preponderance of credible evidence. Chamblee v. Chamblee, 637 So.2d 850, 859 (Miss.1994). This Court has stated:

Conduct that evinces habitual cruel and inhuman treatment must be such that it either (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the nonoffend-ing spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Fulton v. Fulton, 918 So.2d 877, 880 (¶ 7) (Miss.Ct.App.2006) (citation omitted). Generally, the “cruel and inhuman treatment must be shown to be routine and continuous; however, a single occurrence may be [sufficient] for a divorce on this ground.” Boutwell v. Boutwell, 829 So.2d 1216, 1220 (¶ 14) (Miss.2002) (citations omitted).

¶ 14. In Chamblee, the supreme court addressed the requirement that the claims of cruel and inhuman treatment be corroborated by a witness. Chamblee, 637 So.2d at 860. The court noted that the wife produced only one corroborating witness. Id. The witness simply observed the presence of bruises on the wife’s arm and had no independent knowledge of how they got there. Id. Finally, the husband denied abusing the wife. Id. For these reasons, the court determined the chancellor did not err when he denied the wife a divorce on the ground of cruel and inhuman treatment because she failed to prove her case by a preponderance of the evidence. Id.

¶ 15. In Fulton, 918 So.2d at 880-81 (¶¶ 9-10), the wife produced three witnesses to corroborate her claim that her husband abused her. Id. at 880 (¶ 9). Her mother testified she observed bruises. Id. Also, a friend testified that on many occasions the wife called late at night to discuss the altercations between her and her husband. Id. Finally, a cousin testified she took pictures of the wife’s bruises and scratches in her mouth. Id. The cousin also observed tension in the household when she visited. Id. This Court determined that this evidence was sufficient to grant a divorce based on cruel and inhuman treatment. Id. at 881 (¶ 10).

¶ 16. Here, Timmy offered one witness, James Moss, to corroborate his claim of cruel and inhuman treatment. Moss observed bruises on Timmy but had no independent knowledge of how Timmy had received the bruises. Moss’s testimony was based not on his own knowledge or information but on what Timmy had told him.

¶ 17. Timmy also claims that Meagan observed an attack. But, Meagan did not testify to corroborate his claim.

¶ 18. No corroborating witness, with independent knowledge of the instances of cruel and inhuman treatment, testified to establish the claim of cruel and inhuman treatment. As a result, we find that the chancellor’s finding of grounds for a divorce due to cruel and inhuman treatment was not supported by substantial credible evidence in the record. Nevertheless, because we affirm the chancellor as to the grounds of adultery in the following section, this decision does not affect the outcome of this appeal.

2. The chancellor did not err when he granted Timmy a divorce on the ground of adultery based on circumstantial evidence.

¶ 19. To prove adultery as a ground for divorce, the plaintiff “must show by clear and convincing evidence both an adulterous inclination and a reasonable opportunity to satisfy that inclination.” Dillon v. Dillon, 498 So.2d 328, 330 (Miss.1986) (citations omitted). The plaintiff may show “either an infatuation for a particular person of the opposite sex or a generally adulterous nature on the part of the defendant.” Holden v. Frasher-Holden, 680 So.2d 795, 798 (Miss.1996) (quoting McAdory v. McAdory, 608 So.2d 695, 700 (Miss.1992)). The plaintiff may use circumstantial evidence rather than direct evidence due to the secretive nature of adultery. Id. (citation omitted). However, “the evidence must be logical, tend to prove the facts charged, and be inconsistent with a reasonable theory of innocence.” Id. (citing Owen v. Gerity, 422 So.2d 284, 287 (Miss.1982)); see also Banks v. Banks, 118 Miss. 783, 787-88, 79 So. 841, 842 (1918).

¶ 20. The Mississippi Supreme Court affirmed a chancellor’s determination that a wife possessed an adulterous inclination, and a divorce based on adultery was justified. Hassett v. Hassett, 690 So.2d 1140, 1148 (Miss.1997). She had received numerous cards from a man who was not her husband. Id. at 1147. A witness also saw her enter and exit a hotel room with the same man. Id. at 1144. Furthermore, she could not offer any reasonable innocent explanation for her conduct. Id. at 1148. She simply denied the incidents had occurred. Id.

¶ 21. The facts in Hassett are very similar to the evidence in this case. Shandera received cards from Lavelle. She admitted she went on a cruise with Lavelle. She also had a letter from a paramour, which appears to describe their intimate activities. Shandera did not offer a reasonable explanation of innocence. Instead, she simply denied she had anything to do with the letter in her objection when the letter was admitted.

¶ 22. Following Hassett, we find that there was substantial credible evidence in the record to support the chancellor’s decision to grant a divorce on the ground of adultery based on the finding that Shand-era had an adulterous inclination or an infatuation with a particular person as well as an opportunity to satisfy that inclination or infatuation. Accordingly, we find no error in the chancellor’s decision to grant Timmy a divorce on the ground of adultery.

3.The chancellor did not err when he divided the marital property.

¶23. The Mississippi Supreme Court has set forth the following guidelines for equitable division of marital property:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.

Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994).

¶ 24. The supreme court has established that when a chancellor divides marital property, he must follow the Ferguson guidelines and make factual findings as to their application. Lee v. Lee, 78 So.3d 326, 329 (¶ 10) (Miss.2012) (citations omitted). The court has noted it is not necessary to “make ‘findings as to each and every factor set forth in Ferguson [.] ” Id. (quoting Weathersby v. Weathersby, 693 So.2d 1348, 1354 (Miss.1997)). Furthermore, “failure to make an explicit factor-by-factor analysis does not necessarily require reversal where we are satisfied the chancellor considered the relevant facts.” Seghini v. Seghini, 42 So.3d 635, 641 (¶ 21) (Miss.Ct.App.2010) (citation omitted).

A. The chancellor did not err when he determined Timmy substantially contributed to the accumulation of marital property and was entitled to a division of marital assets.

¶ 25. The first issue is whether the chancellor committed manifest error when he determined Timmy directly or indirectly contributed to the acquisition of marital property. In Ferguson, the court stated that a spouse will be deemed to have materially contributed “by virtue of domestic services and/or earned income which both parties have enjoyed rather than invested[.]” Ferguson, 639 So.2d at 934. The court observed that the spouse who did not have a retirement account could have been investing funds for retirement purposes or working outside the home to set aside funds for retirement. Id. In such cases, it is appropriate to divide the retirement fund between both spouses because both parties have materially contributed to the retirement fund in some fashion. Id.

¶ 26. In the bench opinion, the chancellor determined that Timmy had been actively involved in raising Meagan and concluded that Timmy had contributed equally and was entitled to a division of the marital assets. Timmy had a right to equitable division of the retirement account because the in-kind and financial contributions of the spouse without a retirement account constitute material contribution. The chancellor’s finding is consistent with Ferguson and, as such, is not manifest error.

B. The chancellor made adequate findings of fact when he divided the marital ‘property.

¶ 27. The next issue is whether the chancellor made adequate findings of fact when he divided the marital property. In Lee, the chancellor mentioned Ferguson in his ruling from the bench, but he did not apply the factors or make factual findings and conclusions of law. Lee, 78 So.3d at 329 (¶ 11). Also, in the final divorce decree, the chancellor failed to mention Ferguson or apply its guidelines. Id. The Mississippi Supreme Court determined this constituted reversible error. Id. at 329-30 (¶ 14).

¶ 28. Here, we find that the chancellor sufficiently referenced the Ferguson factors in his analysis. The chancellor’s bench opinion sufficiently referenced the Ferguson factors and indicates the chancellor considered and applied the factors in his award. The chancellor ordered Timmy to provide Shandera with a Qualified Domestic Relation Order for her to sign so that neither party would incur any tax liability from the other; but this order was stricken from the final judgment. The chancellor also made one factual finding that pertained to the factor for the substantial contribution to the accumulation of property. The chancellor noted that Timmy had taken an active role in raising Meagan and, as such, contributed equally to the accumulation of property.

¶ 29. Shandera asks this Court to reverse the chancellor’s findings and argues that this case is closely analogous to Lee. While the chancellor acknowledged his duty to apply the factors set forth in Ferguson, the chancellor did make the minimal requisite factual findings. Accordingly, we do not find that the chancellor committed manifest error, and we find no merit as to this issue.

C. The chancellor did not err when he awarded Timmy half of the contents of Shandera’s retirement account.

¶ 30. Finally, Shandera contends the chancellor erroneously found the value of her retirement account to be $38,000. She argues the chancellor also erred when he considered evidence that she owned a savings account that contained approximately $9,000.

¶ 31. This Court will not reverse a chancellor’s determination of fact when supported by substantial credible evidence in the record. Crow v. Crow, 622 So.2d 1226, 1228-29 (Miss.1993) (citations omitted). Even if an amount is vague and imprecise, this Court will not determine the chancellor erred if no other direct evidence was available as to the amount. Id. at 1229 (citing Brown v. Gillespie, 465 So.2d 1046, 1047 (Miss.1985)).

¶ 32. Timmy offered evidence that established Shandera had a savings account in the amount of $9,466.48. Shandera disputed this evidence at trial and also does so on appeal. She asserted she did not possess a savings account that contained that amount. However, no other direct evidence was available that contradicted the amount Timmy claimed was in the savings account. The chancellor is in the best position to determine witnesses’ credibility and the weight of the evidence. Crow, 622 So.2d at 1229 (citation omitted). Furthermore, the chancellor’s factual determinations are afforded a great deal of deference. Id. As to the award of the savings account, we find no error.

¶ 33. As to the retirement account, Timmy produced evidence from Trustmark Bank that Shandera’s retirement account contained $35,273.68 invested in a certificate of deposit earning interest at the rate of 2.96%. The statement presented to the chancellor was dated December 31, 2010, which was more than six months before the final judgment. However, the final divorce judgment established the retirement account contained $38,000. In the chancellor’s judgment, he granted Timmy half of the account and awarded Timmy $19,000. Shandera is correct that the record does not support the conclusion that the account was valued at the exact amount of $38,000. There was evidence the account was valued at $35,273.68, and there was evidence that interest had accrued since the statement that was presented to the chancellor. The chancellor did not discuss how he arrived at a valuation of approximately $2,700 greater than the evidence.

¶ 34. While we prefer preciseness when dealing with financial matters, we must recognize that the chancellor’s final judgment considered additional interest to have accrued in the period from the hearing until the final judgment. The chancellor’s award, in the final judgment, that “the parties shall divide the IRA account (originally with Trustmark Bank in the approximate amount of ... $38,000[,] with the Husband receiving approximately ... $19,000.00,” is an instruction that the account is to be divided equally, or as close thereto as possible. The chancellor’s final judgment used language that should be reasonably interpreted by Shandera, Timmy, and the financial institution to divide the funds of the account equally. In the event of any dispute, the financial institution is to write a check to Timmy in the amount of $19,000. Now that this matter has continued for an additional year and a half, the account may be worth more than $38,000. Regardless, the chancellor’s judgment would be sufficient to make sure that the funds in the account are divided equally based on the amount that was in the account on the day of the final judgment, together with any additional interest that has accrued on such amount. We cannot find the chancellor in error for his use of an approximation. We find no error and affirm.

CONCLUSION

¶ 35. We affirm as modified the chancellor’s decision to grant a divorce to Timmy based on the ground of adultery, and we affirm the chancellor’s division of marital property.

¶ 36. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED AS MODIFIED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. JAMES, J., NOT PARTICIPATING.

CARLTON, J.,

concurring in part and dissenting in part:

¶ 37. I respectfully concur in part and dissent in part. I concur with the majority’s decision affirming the divorce based on adultery.

¶ 88. However, I dissent from the majority opinion in that I would find no error in the chancellor’s decision to grant a divorce to Timmy based on the ground of habitual cruel and inhuman treatment. See Chamblee v. Chamblee, 637 So.2d 850, 859 (Miss.1994) (citations omitted).

¶ 39. Accordingly, I concur in part and dissent in part.