author: LAMAR, Justice,

text:
    CITY OF JACKSON, Mississippi v. Robert SANDIFER, Jr. and Mildred Sandifer, Individually and On Behalf of the Wrongful Death Beneficiaries of Tawanda Sandifer.
    No. 2011-CA-01063-SCT.
    Supreme Court of Mississippi.
    Feb. 21, 2013.

      Kimberly Banks, Pieter Teeuwissen, attorneys for appellant.
    Precious Martin, Sr., Suzanne Keys, Bennie L. Richard, Greenville, attorneys for appellees.
   LAMAR, Justice,

for the Court:

¶ 1. In this Mississippi Tort Claims Act (MTCA) case, we must determine whether the Circuit Court of Hinds County, Mississippi, erred in finding the City of Jackson (the City) liable for the death of Tawanda Sandifer. Finding error, we reverse the judgment of the circuit court and render judgment in favor of the City.

FACTS AND PROCEDURAL HISTORY

¶ 2. Tawanda Sandifer was a chronic runaway. Tawanda’s mother, Mildred Sandifer, testified at trial that Tawanda had excelled in elementary school; however, she began having trouble and behavioral problems by the time she began seventh grade. In 2003, when Tawanda was thirteen years old, she began running away from home for extended periods of time. Tawanda ran away approximately seventeen times before she ran away for the last time in April 2005.

¶ 3. Mildred testified that Tawanda’s relationship with her father, Robert Sandi-fer, was strained to the point that they could not even be in the same room with each other and refused to say each other’s names. Mildred testified that part of the reason Tawanda ran away was because of her father’s discipline, and that one of Tawanda’s sisters also had run away to avoid getting in trouble with their father.

¶ 4. Mildred testified that she had filed a runaway petition for Tawanda every time she had run away, and that Jackson Police Department (JPD) had taken Tawanda into custody on a few occasions. While several runaway petitions were introduced at trial, the Sandifers did not present a runaway petition signed after April 2005. Additionally, JPD Officer Joe Wade, the City’s representative, testified that he was not able to locate a runaway petition signed after April 2005.

¶ 5. Tawanda often returned home approximately two weeks after she ran away. Mildred testified that, if Tawanda came home after the family had filed a runaway petition, the Sandifers were required to call the police to come and pick up Tawan-da and take her to the detention center, where she would stay approximately twenty-four hours before there would be some court proceedings and a judge would “just send her home.” However, Tawanda never remained at home long after she returned. On at least one occasion after she had returned home, Tawanda told the police who came to transport her to the detention center that she could not stay at her parents’ home anymore. Mildred also testified that she asked the court to send Tawanda to “training school,” but she was told they couldn’t do that because Tawan-da had not broken any laws or committed a crime.

¶ 6. In September 2004, Tawanda ran away and eventually was taken into custody by the JPD. During her detention, Ta-wanda, who was fourteen years old at the time, gave a written statement to JPD Detective Wanda Camel listing several men she had engaged in sexual activity with, including JPD Officer Maurice Clark. Tawanda told Detective Camel that she had met Clark at his apartment. Tawan-da further reported that she did not know everyone she had slept with because she had gotten so “drugged, drunk, and or high” that she didn’t remember all the faces or names. Mildred testified that she and Tawanda went to meet with Detective Camel to discuss the allegations against Clark in December 2004, but that she was never contacted by the JPD regarding the allegations after that meeting. However, there is evidence that Detective Camel put together a nonsuggestive photo lineup for Tawanda to identify Clark. While it appears that an investigation into Tawanda’s 2004 allegations began, the outcome of the 2004 investigation is not clear.

¶ 7. In September 2004, Tawanda was evaluated by Dr. Nanolla Yazandi, a youth-court psychologist. Dr. Yazandi described Tawanda as depressed, and recommended Tawanda begin long-term psychiatric treatment. In October 2004, Ta-wanda was admitted to Behavioral Healthcare of Mississippi (Brentwood) for treatment. Tawanda’s medical records indicate that Tawanda had anger and impulse-control issues and that she drank heavily, used drugs, and sold drugs. Ta-wanda reported to her medical providers that her relationship with her father was a big stressor in her life and that she ran away because she did not get along with him. Tawanda also stated that she wanted to live with her grandmother. At one point, Tawanda told her medical providers that she did not want to change and that therapy was not going to help her.

¶ 8. Tawanda was discharged from Brentwood in November 2004. Mildred testified that Tawanda had been prescribed medication for depression, which seemed to help. However, Tawanda soon slipped back into her old routine, running away for longer periods of time and calling home so drunk and high that she couldn’t even identify who she was. As a result, Tawanda was admitted to Brentwood for a second time on March 15, 2005. Although Tawanda’s psychiatrist, Dr. Douglas Byrd, found on March 17, 2005, that Tawanda would benefit from long-term residential treatment due to the chronic nature of her behavioral and emotional problems, Ta-wanda was discharged from Brentwood on March 22, 2005. At the time she was discharged, Tawanda was described as “completely oriented and happy.” Unfortunately, less than a month later, Tawanda ran away for the last time.

¶ 9. On January 9, 2006, approximately nine months after running away, Tawanda died as a result of blunt-force trauma after being beaten by her boyfriend, Toice Wilson. Tawanda was fifteen years old when she died. Tawanda and Wilson had been involved since Tawanda was in seventh or eighth grade, beginning when Wilson had stopped Tawanda on the street to inquire as to whether he could pay her for sexual activities. Wilson testified at trial that Tawanda had told him her name was Ta-wanda McKenzie, that she was eighteen years old, and that she was from Houston, Texas. Wilson also knew Tawanda as Pumpkin, Kera, Kim, and Daja. Wilson testified that he began to see Tawanda every few days after their initial meeting. However, Wilson was married the entire time he and Tawanda were involved, and Tawanda eventually became jealous.

¶ 10. Wilson testified that his relationship with Tawanda began to change around Thanksgiving 2005, when she became angry that Wilson was not spending enough time with her, and she encouraged him to leave his marriage. In November 2005, Tawanda began coming to Wilson’s house, where he lived with his wife, and leaving notes for him on his car. In early January 2006, Tawanda came to Wilson’s house on two occasions, once breaking his car’s windows, and once slashing his car’s seats and breaking CDs in the car. After the seat-slashing incident, Wilson attempted to break off contact with Tawanda; however, a few days later, Wilson found Tawanda pouring gas around his house, trying to set it on fire. Wilson and Ta-wanda had a physical altercation, then drove in Wilson’s car to Presidential Hills Park in Northwest Jackson. Wilson then beat Tawanda and left her in the park, where she ultimately died as a result of blunt-force trauma. Wilson, who has no connection to the City of Jackson or JPD, pleaded guilty to murder and is serving a life sentence in the custody of the Mississippi Department of Corrections.

¶ 11. After Tawanda’s body was found, the investigation into her death revealed the name “K.T.” in her cell phone. When the investigating officers called the number, JPD officer Kenneth Taitón answered the phone. Taitón stated to the JPD officers that he had met Tawanda in December 2005, when he saw her crying on the street. Taitón stated that Tawanda told him her name was “Kaylee,” that she was eighteen years old, that she was from Houston, Texas, and that she was fighting with her boyfriend. Taitón claimed he thought Tawanda was “Kaylee” until he was told otherwise after her death.

¶ 12. Ricky Robinson, who conducted the JPD internal affairs investigation into the allegations against Clark and Taitón, testified that Taitón had stated that Ta-wanda was crying when he first met her, and Taitón had thought she was possibly on medication. After running a warrant check on “Kaylee,” Taitón dropped Tawan-da off at her aunt’s house. Although a JPD general order states that an officer should notify dispatch when transporting a civilian, Taitón did not do so when he gave Tawanda a ride. Additionally, Taitón admitted he gave his phone number to Ta-wanda and that he had oral sex with Ta-wanda at his nephew’s house.

¶ 13. Tawanda’s parents, on behalf of her wrongful-death beneficiaries, filed suit against the City of Jackson, Taitón, and Clark, in their official and individual capacities, for, among other claims, the wrongful death of Tawanda. The Sandifers allege that the City caused or contributed to Tawanda’s death by ignoring its own policies with regard to runaways; by failing to investigate Tawanda’s claims in 2004 that she was having sex with a JPD officer; by negligently failing to train, hire, supervise, instruct, monitor or control its employees; by failing to maintain an adequate system to hire, train, supervise, instruct, monitor, and/or control its employees; by allowing Tawanda to be subjected to assault, battery, physical, mental, and sexual abuse; and by failing to timely apprehend Tawan-da and deliver her to her parents and other appropriate agencies despite knowledge of her status as a runaway.

¶ 14. After a bench trial, the circuit court found the City liable for Tawanda’s death. Specifically, the circuit court found that Taitón and Clark had been acting within the course and scope of their employment during their encounters with Ta-wanda, and that the City’s failure to investigate the 2004 allegations, coupled with the repeated sexual encounters, constituted reckless disregard for Tawanda’s status as a runaway. The circuit court further found that, although Tawanda’s “physical death was caused by the blows from Toice Wilson,” JPD employees put her “in a place of danger,” which contributed to her death.

¶ 15. The circuit court ultimately concluded that the City’s failure to fully investigate Tawanda’s case “caused [Tawanda] to succumb to the brutal and fatal actions of Toice Wilson” and that Wilson and the City were jointly responsible for Tawan-da’s death. The circuit court assessed damages in the amount of $1 million for Tawanda’s death, and further found that the City and Wilson were each fifty percent at fault. Therefore, the circuit court entered judgment against the City in the amount of $500,000, the maximum amount allowed under the MTCA. The City filed this appeal.

DISCUSSION

I. Standard of Review

¶ 16. A circuit court judge sitting without a jury is afforded the same deference as a chancellor. We will not disturb a circuit court’s findings after a bench trial unless “they are manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” The proper application of the MTCA is a question of law, which we review de novo.

II. Governmental Liability Under the MTCA

¶ 17. “A state may not be sued except by its consent.” However, Mississippi has waived immunity under certain circumstances. These circumstances are addressed in the MTCA, which provides the exclusive civil cause of action against a governmental entity, such as the City.

¶ 18. Importantly, governmental immunity is waived for employee misconduct only if an employee is acting within the course and scope of his employment. The MTCA specifically provides that “an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employees if the employee’s conduct constituted ... any criminal offense.”

¶ 19. The MTCA further limits governmental liability in pertinent part as follows:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police ... protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury....

“Reckless disregard is a higher standard than gross negligence and ‘embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.’ ” Additionally, reckless disregard is generally “accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.”

¶ 20. Governmental entities also are immune from liability for any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.” “A two-part ‘public policy function’ test is applied to determine whether conduct is considered a discretionary function subject to immunity.” First, we must determine whether the conduct involved an element of choice; if so, we must then “determine whether that choice or judgment involved social, economic, or political-policy considerations.” Each of these exceptions must be considered here and, to recover on their claims against the City, the Sandifers must prove that the officers’ alleged misconduct was within the course and scope of their employment, was not criminal, was in reckless disregard of Tawanda’s safety, and was not discretionary.

III. The City is immune from liability for the alleged employee misconduct.

¶ 21. The circuit court based its finding that the City was liable for Tawanda’s death on several alleged instances of JPD employee misconduct, specifically Clark’s sexual contact with Tawanda; Talton’s sexual contact with Tawanda; the JPD’s failure to fully investigate Tawanda’s allegations regarding Clark in 2004; and Tal-ton’s and Clark’s failure to take Tawanda into custody after she last ran away in April 2005. We address the City’s liability for Clark’s and Talton’s alleged sexual misconduct together, and for the remaining alleged misconduct individually.

Clark and Talton’s Sexual Contact with Tawanda

¶ 22. The circuit court found that both Clark and Taitón had sex with Tawanda while they were employed by JPD, and that JPD had evidence in 2004 that one of its officers was engaging in criminal activity. The circuit court further found that both Clark and Taitón were acting within the course and scope of their employment “so long as they were on the job.” The circuit court then concluded that JPD’s knowledge of the criminal activity was “enough to overcome the presumption that state entities are not liable for the criminal actions of employees.”

¶ 28. We find that the circuit court erred in finding the City is liable for Clark’s and Talton’s sexual contact with Tawanda. The language of the MTCA clearly provides that an “employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable” for the conduct of its employees if such conduct constitutes “any criminal offense.” In this case, the Sandifers allege that Clark and Taitón engaged in sexual acts with Tawanda which constitute criminal offenses, and the City does not dispute that the sexual acts, if they occurred, constitute criminal conduct. Furthermore, the circuit court expressly found that Clark and Taitón had committed criminal offenses by engaging in sexual acts with Tawanda, including statutory rape.

¶ 24. The circuit court cited no authority for its determination that the MTCA provides a rebuttable “presumption” that governmental entities are not liable for the criminal acts of their employees, and we are not aware of any support for this proposition. We conclude that the circuit court erred in finding the City was liable for the alleged criminal sexual conduct of Clark and Taitón.

¶ 25. Additionally, the City is not liable for Talton’s and Clark’s sexual contact with Tawanda because there is no evidence that Taitón and Clark were acting within the course and scope of their employment when the alleged misconduct occurred. There is'no evidence in the record of when and where the alleged sexual activities occurred and there is no evidence that either Taitón or Clark was on duty when he engaged in sexual activities with Tawan-da. But even if Taitón and Clark were on duty when the alleged conduct occurred, Mississippi law is clear that an employee must be acting in furtherance of his employer’s business to be considered to be in the course and scope of employment. This Court has stated that, “if an employee steps outside his employer’s business for some reason which is not related to his employment, the relationship between the employee and the employer ‘is temporarily suspended and this is so “no matter how short the time and the [employer] is not liable for [the employee’s] acts during such time.” ’ ” Furthermore, “an employee’s personal unsanctioned recreational endeavors are beyond the course and scope of employment.”

¶ 26. As the circuit court found, the purpose of JPD is to protect and serve the citizens of the City of Jackson. There is no question that both Clark and Taitón “stepped outside [their] employer’s business” for “personal unsanctioned recreational endeavors” at the time they allegedly engaged in illegal sexual contact with Tawanda. Therefore, we find that the circuit court erred in finding Clark and Taitón were acting within the course and scope of their employment at the time they engaged in the alleged sexual misconduct.

The Investigation Concerning the 2004 Allegations

¶27. The circuit court noted that the results of the City’s 2004 investigation were unknown, but ultimately found that JPD had failed to fully investigate Tawan-da’s allegations. Specifically, the circuit court found that JPD had evidence that one of its employees was engaging in sexual contact with Tawanda and had begun an investigation into the allegations, but it failed to complete the investigation due to the lead detective taking medical-disability leave. The circuit court then explicitly recognized that “[t]he manner in which a municipality conducts analysis of basic investigative decisions, including the decision of what type of investigation to conduct, arise from the performance of discretionary functions, of which the City of Jackson has sovereign immunity pursuant to Miss. Code Ann. § ll-46-9(l)(d).”

¶ 28. The circuit court then concluded that the fact that an investigation was instituted serves as proof that JPD knew criminal activity was being committed by one of its employees. The circuit court ultimately concluded that, had the investigation been completed, “Tawanda could have received the help she so desperately needed” and that the failure to investigate caused her “to succumb to the brutal and fatal actions of Toice Wilson.”

¶ 29. As stated above, “[a] two-part ‘public policy function’ test is applied to determine whether conduct is considered a discretionary function subject to immunity.” In this case, we are required to determine (1) whether the JPD’s decision to investigate or suspend the investigation of Tawanda’s 2004 allegations and related failure to discipline Clark involved an element of choice, and, if so, (2) whether the choice involved social, economic, or political policy.

¶ BO. We have recognized that a police department’s decision to investigate and/or discipline an officer involves an element of choice. Neither the Sandifers nor the circuit court points to any authority that would support a finding that the City was required to investigate Tawanda’s claims or discipline Clark. Additionally, although Mississippi Code Section 21-31-21 contains a series of reasons a police officer can be terminated, “the statute requires the City of Jackson to exercise its judgment in the manner in which it chooses to supervise its officers.” We have further recognized that a police department’s disciplinary and investigative decisions involve social and public policy, explaining that:

there is no doubt that the choice to employ and the manner of supervision of police officers does affects [sic] public policy, and the make-up of the police force inherently affects the social policy of a city. The manner in which a police department supervises, disciplines and regulates its police officers is a discretionary function of the government and thus the city is immune to suit under [section] 11 — 46—9(l)(d).

¶ 31. Furthermore, the City is not liable for the acts of its employees related to police protection unless the employee acted in reckless disregard of a person’s safety. We have stated that “an inadequate investigation, or a failure to investigate certain acts during the course of an investigation” is “negligence, not reckless disregard.” Thus, assuming arguendo that JPD did fail to properly investigate the 2004 allegations, such failure constitutes negligence, for which the City is not liable.

¶ 32. We find that the City is immune from liability for JPD’s investigation regarding the 2004 allegations, because the investigation was a discretionary function; i.e., the manner in which JPD chose to investigate Tawanda’s allegations and to discipline Clark involved an element of choice, and that choice involved social and public policy. Indeed, the circuit court correctly recognized that the City is immune from liability for its investigative decisions because such decisions are discretionary functions, yet the circuit court then inexplicably found the City was liable for Tawanda’s death due to JPD’s alleged failure to properly investigate Tawanda’s 2004 allegations. Additionally, an inadequate investigation or failure to investigate does not rise to the level of reckless disregard; rather it constitutes negligence, for which the City is not liable.

¶33. We find that the circuit court erred in finding the City was liable for JPD’s alleged failure to complete an investigation into Tawanda’s allegations in 2004 and related failure to discipline Clark before her death.

Clark’s and Talton’s Failure to Follow JPD Policies

¶ 34. The circuit court found that, even if the City was immune from liability based upon Clark’s and Talton’s sexual contact with Tawanda because the conduct constituted criminal activities, the officers had a responsibility under the City’s policies to determine “whether Tawanda was a minor and whether there was a runaway warrant for her.” The circuit court concluded, “[i]t is clear that if Officers Clark and Taitón had done what they were supposed to do, Tawanda would not have been out on the streets, and vulnerable to the attack of Toice Wilson;” therefore, the circuit court found that the actions of Clark and Taitón contributed to Tawanda’s death. Likewise, the Sandifers now argue on appeal that the City’s liability does not rest on the sexual acts themselves, but rather rests “on the City’s failures to follow its own policies with respect to runaways like Ta-wanda. ...”

¶ 35. The Sandifers additionally argue that JPD policy and general orders required Taitón to determine if any adult he encountered had been reported missing if the adult could be mentally incoherent or retarded and also argue that Tawanda met this description at the time Taitón met her on the street, because she was crying and upset. However, this policy is based upon an officer’s subjective assessment of a person’s mental state, and does not require an officer to take every crying individual into custody. Furthermore, the evidence is un-contradicted that Tawanda gave Taitón a fake identity, and there is no evidence that he reasonably could have discovered she was a runaway.

¶ 36. We find no evidence that either Clark or Taitón violated JPD policy or general orders by failing to ascertain that Tawanda was a runaway minor and failing to take her into custody. Although the circuit court found that Clark and Tai-tón had met Tawanda during the scope of their employment and Clark had used his position as a police officer to “give Tawan-da the confidence to engage in sexual acts with him,” there is no evidence that Clark had any interaction with Tawanda while he was on duty or that he had any reason to suspect she was a runaway. As to Taitón, there is no evidence he knew or should have know that Tawanda was not an eighteen-year-old from Texas named Kaylee until after her death.

¶ 37. We have recognized that the Legislature “set an extremely high bar for plaintiffs seeking to recover against a city for a police officer’s conduct while engaged in the performance of his or her duties.” The Sandifers have pointed to no authority that would support a finding that Clark’s or Talton’s alleged violation of JPD general orders or policies would constitute reckless disregard, and this Court has recently rejected such an argument.

¶ 38. There is simply no evidence in this case that Clark or Taitón knowingly and intentionally committed a wrongful act by failing to take Tawanda into custody or that they exhibited a conscious indifference to consequences, amounting almost to a willingness that harm to Tawanda should follow. Although Taitón did not call into dispatch when he transported Tawanda, there is no evidence that would support a finding that his failure amounts to a “willingness that harm should follow” to Ta-wanda or that Taitón would have done anything differently if he had called in the transport.

¶ 39. We find that the City is immune from liability for the alleged failures of Taitón and Clark to follow JPD general orders or policies with respect to Tawanda. The circuit court erred in finding the City liable for Tawanda’s death based upon this alleged misconduct.

CONCLUSION

¶ 40. For the foregoing reasons, we find that the City is immune from liability for the alleged misconduct of its employees at issue in this case under the Mississippi Tort Claims Act. Therefore, we reverse the judgment of the circuit court and render judgment in favor of the City on the Sandifers’ claims.

¶ 41. REVERSED AND RENDERED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ„ CONCUR.

      . Tawanda was the middle child of three girls.

      . After a minor runs away, family members must file a runaway petition with the youth court if they want the police department to detain the minor if she is found. Police officers have no authority to take a runaway into custody unless such a petition is filed. Furthermore, a detention center will not accept a minor unless there is a runaway petition, signed by the family, on file.

      . Clark’s roommate told JPD after Tawanda’s death that he and Clark had met Tawanda when she was hanging around an apartment building while they were moving in, and she asked to stay at their place.

      . Detective Camel was on medical disability leave at the time of trial and did not testify.

      . The circuit court found that Tawanda was sixteen years old at the time of her death. However, Tawanda was bom in April 1990 and died in January 2006.

      . City of Jackson v. Powell, 917 So.2d 59, 68 (Miss.2005) (citation omitted).

      . Id. (citation omitted).

      . Id. (citation omitted).

      . Powell, 917 So.2d at 73 (citing Hall v. State, 79 Miss. 38, 29 So. 994 (1901)).

      . Powell, 917 So.2d at 73.

      . Miss.Code Ann. §§ 11-46-1 to 11-46-23 (Rev.2012). See also Powell, 917 So.2d at 69.

      . Powell, 917 So.2d at 73.

      . Miss.Code Ann. § 11-46-7(2).

      . Miss.Code Ann. § 11-46-9 (emphasis added).

      . City of Jackson v. Presley, 40 So.3d 520, 523 (Miss.2010) (quoting Collins v. Tallahatchie County, 876 So.2d 284, 287 (Miss.2004)).

      . Presley, 40 So.3d at 523 (citing Maldonado v. Kelly, 768 So.2d 906, 910 (Miss.2000)).

      . Miss.Code Ann. § 11 — 46—9(l)(d) (emphasis added).

      . Pratt v. Gulfport-Biloxi Reg’l Airport Auth., 97 So.3d 68, 72 (Miss.2012) (citing Miss. Transp. Comm’n v. Montgomery, 80 So.3d 789, 795 (Miss.2012).

      . Pratt, 97 So.3d at 72 (citing Montgomery, 80 So.3d at 795).

      . Miss.Code Ann. § 11-46-7(2) (Rev.2012). See also L.T. ex rel Hollins v. City of Jackson, 145 F.Supp.2d 750, 757 (S.D.Miss.2000) (finding that plaintiff's claims against the City of Jackson, alleging sexual assault by a JPD officer, would be precluded under the MTCA to the extent the alleged conduct was criminal).

      . Mississippi Code Section 97-3-95(l)(c) provides that "a person is guilty of sexual battery if he or she engages in sexual penetration with ... a child at least fourteen (14) but under sixteen (16) if the person is thirty-six (36) or more months older than the child....” Miss.Code Ann. § 97 — 3—95(l)(c) (Rev.2006). Tawanda was over fourteen and under sixteen at the time she allegedly had sexual contact with Clark and Taitón, who both were more than thirty-six months older than she was.

      .Clark met Tawanda when he was moving into an apartment and she was hanging around the apartment building. There is no evidence regarding when he had sexual contact with Tawanda, other than that it occurred sometime before October 2004. Tai-tón first met Tawanda while he was on duty, and he gave her his cell-phone number. There is no evidence that Taitón was on duty when he had oral sex with Tawanda at his nephew's house.

      . Cockrell v. Pearl River Valley Water Supply Dist., 865 So.2d 357, 361-62 (Miss.2004) (citations omitted).

      . Id. (quoting Estate of Brown By and Through Brown v. Pearl River Valley Opportunity, Inc., 627 So.2d 308, (Miss.1993)).

      . Cockrell, 865 So.2d at 362.

      . See Cockrell, 865 So.2d at 362 (finding City was not liable for the employee’s misconduct because JPD officer stepped outside course and scope of employment when he attempted to kiss motorist, even though he was within course and scope of employment at time he pulled motorist over).

      . Pratt, 97 So.3d at 72 (citing Montgomery, 80 So.3d at 795).

      . Powell, 917 So.2d at 74 (citation omitted).

      . Id.

      . Id.

      . Miss.Code Ann. § 11-46-9 (Rev.2012).

      . City of Greenville v. Jones, 925 So.2d 106, 118 (Miss.2006), overruled on other grounds by Joel v. Joel, 43 So.3d 424, 437-38 (Miss.2010).

      . Presley, 40 So.3d at 523.

      . See Presley, 40 So.3d at 524 (finding plaintiff and court of appeals cited no authority for the "proposition that a violation of an internal police operating procedure constitutes reckless disregard”).


source: Caselaw Access Project

author: RANDOLPH, Presiding Justice,

license: Public Domain

text:
    David H. NUTT, Mary Kirchbaum McAlister, Nutt & McAlister, PLLC, David Nutt, P.A. and David Nutt & Associates, P.C. v. Derek A. WYATT.
    Nos. 2012-CA-00152-SCT, 2010-CA-00122-SCT.
    Supreme Court of Mississippi.
    Feb. 21, 2013.

      Joseph Anthony Sclafani, Christopher A. Shapley, Jackson, Lawrence Elvin Allison, William H. Liston, Jr., William Liston, III, Winona, attorneys for appellants.
    Michael D. Simmons, Donna Marie Mee-han, attorneys for appellee.

      Before DICKINSON and RANDOLPH, P.JJ., and PIERCE, J.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Before the Court is an appeal of the Lafayette County Circuit Court’s denial of a motion to compel arbitration. Nutt & McAlister, PLLC; David Nutt & Associates, PC; David H. Nutt; and Mary Kirchbaum McAlister (“Nutt, et al.”) sought to enforce the mandatory arbitration provision in a contract titled “In Re: Katrina Litigation Joint Venture Agreement” (“Katrina JVA”). In a prior appeal, this Court settled the issue as to whether Appellee Wyatt’s claims were related to the Katrina JVA. The sole issue for determination is whether the trial court erred by finding that Nutt, et al., waived their right to enforce the provision.

112. We conclude that Nutt, et al., did not waive their right to compel arbitration. In their initial responsive pleading, Nutt, et al., denied the validity of Wyatt’s claim to entitlement under the Katrina JVA, and, alternatively, sought enforcement of the provision, should a court find Wyatt’s claims related to the Katrina JVA. The proceedings in the trial court were stayed, pending this Court’s decision on whether Wyatt’s claims were related to the Katrina JVA. This Court reversed the trial court and held that Wyatt’s claims were subject to the arbitration provision of the Katrina JVA. One week after the mandate issued, Nutt, et al., filed their motion to compel arbitration. Finding that Nutt, et al., timely asserted-not once, but twice-a right to enforce the provision, we reverse the judgment of the trial court and remand this matter with instruction to refer Wyatt’s claims to arbitration.

FACTS AND PROCEDURAL HISTORY

¶8. The Scruggs Law Firm, Inc. and Nutt & McAlister, PLLC, among others, formed the Katrina Joint Venture (“KJV”) to represent insureds against insurers for Hurricane Katrina claims. Subsequently, Nutt & McAlister entered into an oral employment contract with attorney Derek Wyatt. Throughout this proceeding, Wyatt has averred that he is entitled to “a minimum 10% fee sharing interest in the Katrina Joint Venture cases.” In contrast, Nutt, et al., have taken the position that they orally agreed to pay Wyatt “an annual salary of $100,000, later increased to $150,000, and a bonus calculated on the basis of 10% of the net fees that Nutt & McAlister, PLLC received from cases on which Wyatt provided substantial services to clients.”

¶ 4. On February 19, 2009, Nutt, et al., filed a “Verified Petition for Replevin and Complaint for Declaratory Judgment to Adjudicate Amount Owed by Nutt & McAlister, PLLC to Wyatt, or Amount Owed by Wyatt to Nutt & McAlister, PLLC” in the Madison County Chancery Court. In that action, Nutt, et al., sought a declaration of obligations related to the oral employment contract with Wyatt; their complaint did not refer to the KJV, and they did not aver that Wyatt was a party to the KJV.

¶ 5. Subsequently, Wyatt elected to file the instant action in the Lafayette County Circuit Court against Scruggs and Nutt, et al., claiming that he was denied his share of KJV attorney fees as agreed upon with Nutt & McAlister. Wyatt then filed an amended complaint. In their first responsive pleading, Answer to the First Amended Complaint, Nutt, et al., pleaded, inter alia, the following:

The Nutt Defendants deny that Plaintiff is or has ever been a member of the SKG/KLG Joint Venture and, thus, has no rights under the SKG/KLG Joint Venture Agreement or the law governing joint ventures. In the event that any claim asserted by Plaintiff is deemed to be governed by the SKG/KLG Joint Venture Agreement or the laws of this State governing joint ventures, then such claim “shall be resolved by mandatory binding arbitration” pursuant to the terms of the November 8, 2005 Joint Venture Agreement attached as Exhibit 1 to the Complaint.

¶ 6. Nutt, et al., also filed a motion to transfer venue to the Madison County Chancery Court or to stay this proceeding pending final judgment in the prior-filed Madison County action. The trial court denied their motion, finding that “there appears from the pleadings and briefs to be a viable claim against the Scruggs defendants and that Wyatt had asserted claims entitling him to a jury trial in circuit court. (Emphasis added.)

¶ 7. Scruggs filed a motion to compel arbitration, seeking to compel Wyatt to arbitrate his claims against them under the arbitration provision in the Katrina JVA. The trial court denied the motion, holding that Wyatt was not subject to the Katrina JVA, because he was neither a signatory nor a third-party beneficiary to whom the provision applied. Scruggs appealed. The trial court stayed all proceedings pending this Court’s decision in that appeal.

¶ 8. We issued our decision in that appeal on March 31, 2011. Scruggs v. Wyatt, 60 So.3d 758, 772 (Miss.2011). We found that the arbitration provision in the Katrina JVA was valid, and that — although Wyatt was not a signatory to the Katrina JVA — the provision applied to Wyatt under the doctrine of direct-benefit estoppel. Id. at 767-71. We explained as follows:

Wyatt’s Complaint ... asserted that he is a “fee sharing participant in the Katrina Joint Venture”; a “fee sharing attorney” under the Katrina Joint Venture; that he has a “fee-sharing interest in the Katrina Joint Venture”; and that the defendants have a “fee sharing relationship” with him. If one assumes the validity of Wyatt’s assertions, these claims allege “direct benefits” are due to Wyatt by virtue of the Katrina JVA.
The foundation of Wyatt’s lawsuit is premised upon a dispute with Nutt & McAlister over his compensation (fee share) directly tied to successful recovery by the Katrina Joint Venture against its client’s insurers. As such, Wyatt’s claims against the Scruggs Defendants are directly dependent on the Katrina JVA, and require reference thereto.
As Wyatt’s claims against the Scruggs Defendants are “determined, by reference to” the Katrina JVA, this Court concludes that direct-benefit estoppel theory requires the nonsignatory claimant, Wyatt, to arbitrate his claims against the Scruggs Defendants.

Id. at 770-71 (emphasis added) (citation omitted). Thus, we found that Wyatt’s claims were subject to the arbitration provision of the Katrina JVA, because the claims asserted in Wyatt’s complaint averred entitlement to direct benefits under the Katrina JVA and were premised upon the Katrina JVA. Accordingly, we reversed the trial court and ordered a stay in the proceedings against Scruggs and a referral of those claims to arbitration. Id. at 773. The mandate in that appeal issued on April 25, 2011.

¶ 9. One week later — on May 2, 2011— Nutt, et al., filed a motion to remove the earlier stay granted by the trial court and to compel arbitration of Wyatt’s claims. The trial court held that, under this Court’s decision in the Scruggs appeal, the arbitration clause of the Katrina JVA likewise applied to Wyatt’s claims against Nutt, et al. The trial court found as follows:

The same reason the arbitration provision of the Katrina JVA is applicable to the Scruggs defendants is also applicable to the Nutt defendants. Wyatt’s first amended complaint cannot be read without reference to the Katrina JVA because the damages he seeks from the Nutt defendants are directly tied to the fees that the Nutt defendants would be entitled to as a result of the Katrina JVA.

(Emphasis added.) However, the trial court denied the motion to compel arbitration, finding that Nutt, et al., had waived their right to compel arbitration by: (1) filing a motion to transfer venue prior to filing their motion to compel arbitration; (2) delaying 595 days before filing their motion to compel arbitration; and (3) filing a prior action in Madison County Chancery Court seeking declaratory judgment regarding Wyatt’s rights under the oral employment contract. Nutt, et al., are before this Court on appeal of that ruling.

LAW AND ANALYSIS

¶ 10. “This Court reviews the grant or denial of a motion to compel arbitration de novo.” Scruggs v. Wyatt, 60 So.3d 758, 766 (Miss.2011) (citations omitted).

¶ 11. We find that the trial court erred by finding that Nutt, et al., waived their right to compel arbitration. We do not favor findings of waiver of the right to compel arbitration. MS Credit Center, Inc. v. Horton, 926 So.2d 167, 179 (Miss.2006) (“This Court has stated that the ‘waiver of arbitration is not a favored finding, and there is a presumption against it.’ ”) (citations omitted). However, we will recognize waiver when the party seeking arbitration takes actions inconsistent with enforcing arbitration, succinctly stated as follows:

This Court has held that arbitration can be waived where a party “actively participates in a lawsuit or takes other action inconsistent with [the right to arbitration ].” ... Ten years later, this Court qualified the precepts of Cox, stating that arbitration may be waived where a party “substantially invokes the judicial process to the detriment or prejudice of the other party.” “[W]e will not hesitate to find a waiver of the right to compel arbitration” for a “delay in pursuing the right, coupled with active participation in the litigation process.” ... In summary, either [1] active participation or substantial invocation of the litigation process which results in detriment or prejudice to the other party, or [2] engaging in conduct inconsistent with timely enforcing the arbitration agreement, constitutes waiver.

Century 21 Maselle and Associates, Inc. v. Smith, 965 So.2d 1031, 1036 (Miss.2007) (emphasis added).

¶ 12. We have found waiver in numerous cases, all of which are factually distinguishable from the case sub judice. We found waiver “due to ‘extensive’ pre-trial litigation, where the party seeking to enforce arbitration had filed a ‘summary judgment motion, requested two continuances, appealed to this Court based on a pre-trial ruling, and had requested various types of discovery.’ ” Horton, 926 So.2d at 179-80 (discussing and quoting Cox, 619 So.2d at 914). Similarly, we found waiver “where the movant delayed for 237 days before moving to compel arbitration, failed to raise the defense of arbitration in the initial pleading, requested a jury trial in its answer, and thereafter proceeded with discovery.” Horton, 926 So.2d at 180 (discussing Pass Termite and Pest Control v. Walker, 904 So.2d 1030, 1035 (Miss.2004)). We again found waiver where a party “answered the original Complaint, but failed to assert arbitration as an affirmative defense, and instead demanded a jury trial[;] ... joined in an agreed ‘Order Setting Trial Date’ and engaged in discovery!;]” and thereafter — “[t]wo-hundred-and-fifty-two (252) days after the Complaint was filed” — attempted to assert a right to arbitration. Lemon Drop Props., LLC v. Pass Marianne, LLC, 73 So.3d 1131, 1135 (Miss.2011) (emphasis added). In Horton, although the defendants asserted their right to arbitration in their answer, they subsequently waived that right because, “rather than proceeding within a reasonable time to file a motion to compel arbitration and request a hearing on the motion, defendants proceeded to substantially engage the litigation process by consenting to a scheduling order, engaging in written discovery, and conducting [a] deposition.” Horton, 926 So.2d at 180. The Horton Court explained that the “[defendants ha[d] provided no plausible explanation for [their] delay.” Id. These cases correctly state the law. However, all are factually distinguishable from the case sub judice.

¶ 13. The defendant’s conduct in each of these cases was inconsistent with the principles set forth in Century 21, Another common thread throughout the cited cases, and not present in the case at bar, is that the defendants had no plausible explanations for the delays in filing their motions to compel arbitration. In contrast, we have found that a request for a jury trial made simultaneously with an assertion of a right to arbitration did not “rise to the level of active participation in the lawsuit ..., substantial invocation of the judicial process ..., or a ‘delay in pursuing the right.’” Century 21, 965 So.2d at 1037. The actions of Nutt, et al., in this case most closely resemble the facts in Century 21.

¶ 14. In their first responsive pleading, before this Court’s decision that the Katrina JVA applied to Wyatt’s claims, Nutt, et al., preserved their right in the alternative to compel arbitration, in the event of a judicial determination that the Katrina JVA applied to Wyatt’s claims. When we declared that the Katrina JVA did apply, they timely filed a motion to compel arbitration, within one week of the mandate. We find that the conduct of Nutt, et al, was consistent with timely seeking to compel arbitration, once this Court held that Wyatt’s claims were related to the Katrina JVA. Accordingly, we conclude that Nutt, et al., did not waive their right to enforce the provision.

1) Motion to Transfer Venue or Stay Proceedings

¶ 15. The Madison County proceeding was predicated on Nutt, et al., seeking judicial resolution of mutual obligations based on an oral agreement. The case made no reference to the Katrina JVA. It was not until Wyatt averred a right to benefits from the Katrina JVA, that the Katrina JVA was interjected as an issue in the parties’ dispute. Consistent with the position of Nutt, et al., that the Katrina JVA did not apply to the oral employment dispute, Nutt, et al., filed a motion seeking to transfer their dispute with Wyatt to Madison County — the venue of their prior-filed action seeking declaration of the terms of the oral employment contract — or, in the alternative, to stay the proceedings in this case pending final judgment in the Madison County action. We find that Nutt, et al., did not waive their right to compel arbitration by filing an alternative motion to transfer venue. Seeking to transfer venue was entirely consistent with the answer of Nutt, et al.— that the Katrina JVA did not apply, and Wyatt’s claims against Nutt, et al., arose solely out of an oral agreement. Nor should a party be penalized for pleading what our law requires. Mississippi Rule of Civil Procedure 12 mandates that Motions to Transfer Venue be served at the time answer is due, either in the Answer or by separate motion as provided in Rule 12(b)(3). Nutt, et al., filed their motion to transfer venue before any court had declared that the Katrina JVA applied to Wyatt’s claims. Accordingly, Nutt, et al., preserved in their initial responsive pleading their right to compel arbitration in the event the Katrina JVA was judicially declared to apply.

2) Stay and Motion to Compel Arbitration

¶ 16. Even though the circuit court denied the motion to transfer or to stay the proceedings pending final judgment in the Madison County action filed by Nutt, et al., it did enter a stay of the proceedings pending this Court’s decision in Scruggs’s appeal. The stay was entered on January 18, 2010, and this Court issued its mandate in the Scruggs appeal on April 21, 2011 — a period of 448 days. Thus, the court-imposed stay assured no detriment or prejudice to either party. The stay was in effect for the majority of the time that the trial judge charged Nutt, et al., with delay. We find that Nutt, et al., did not unreasonably delay filing a motion to compel arbitration by abiding with a court-imposed stay.

¶ 17. One week after the mandate issued in the Scruggs appeal, Nutt, et al., filed their motion to terminate the stay and compel Wyatt to arbitrate his claims against them. We cannot say that filing a motion to lift a stay and compel arbitration one week after the occurrence of the event pending which the proceedings were stayed was an unreasonable delay or operated as a waiver of the right of Nutt, et al., to enforce the provision.

3) Filing of Madison County Action

¶ 18. Nutt, et al., filed an action in Madison County Chancery Court, seeking a declaration of obligations under their oral employment contract with Wyatt, and making no reference to Wyatt’s subsequently-injected claims under the Katrina JVA. First, seeking declaration of the terms of an oral employment contract, without reliance on the Katrina JVA, was not “substantial invocation of the litigation process which resulted] in detriment or prejudice” to Wyatt, for it was Wyatt who interjected the Katrina JVA as the basis for his claim — not the claims of Nutt, et al. — when he filed a separate action. We conclude that Nutt, et al., did not waive their right to enforce the arbitration provision of the Katrina JVA — the basis of Wyatt’s claims in this action — by filing a prior action for declaratory judgment regarding a separate agreement, including no claims premised on the Katrina JVA.

¶ 19. We conclude that Nutt, et al, did not waive the right to enforce the arbitration provision of the Katrina JVA, which was interjected in these proceedings by Wyatt. Their failure to assert the Katrina JVA as an issue in the Madison County dispute, before any authority declared that the Katrina JVA applied to Wyatt’s claims, did not constitute a waiver of their right to invoke the provision upon this Court’s declaration that the Katrina JVA applied. The record in this proceeding reveals that Nutt, et al., initially preserved their right to enforce the provision if the Katrina JVA was found to apply and that, in seeking to transfer venue, they acted consistently with their pending suit regarding an oral agreement — the only issue presented in the Madison County proceeding. They timely invoked their right to enforce the arbitration provision once this Court declared that the Katrina JVA did apply to Wyatt’s claims. Unlike the defendants in Cox, Pass Termite, Lemon Drop, and Horton, there is a plausible explanation for the length of time between the filing of the answer of Nutt, et al., and the motion to compel arbitration — the proceedings were stayed for the bulk of that time, and no authority had yet declared that the Katrina JVA, containing the arbitration provision, applied. We find that Nutt, et al., did not actively participate in litigation or substantially invoke the litigation process in this case before seeking to enforce the provision, nor did they conduct themselves inconsistently with timely enforcing the provision. The trial court erred by finding that Nutt, et al., waived their right to compel arbitration by participating in litigation and delaying filing a motion to compel arbitration.

CONCLUSION

¶ 20. The failure of Nutt, et al., to pursue arbitration in an oral contract dispute — before Wyatt interjected claims related to the Katrina JVA and before any authority had declared that the Katrina JVA applied to the claims averred by Wyatt — did not waive their right to timely enforce the arbitration provision when this Court declared that Wyatt’s claims were within the scope of the Katrina JVA. Rather, Nutt, et al., preserved their right to enforce the provision in the event the Katrina JVA was declared to apply, and, when this Court so declared, they not only timely, but almost immediately, filed a motion to compel arbitration. We conclude that the trial court erred by finding that Nutt, et al., waived their right to arbitration, and reverse the judgment of the trial court and remand with instruction to refer this matter to arbitration.

¶ 21. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ„ CONCUR. COLEMAN, J„ NOT PARTICIPATING.

      . In the Scruggs Law Firm's and Richard Scruggs’s (collectively "Scruggs’s”) appeal of their motion to compel arbitration, we held that the oral employment contract between Wyatt and Nutt, et al., which Wyatt claims gave him a fee-sharing interest in the KJV, was related to the Katrina JVA and that Wyatt's fee-sharing claims were within the scope of the arbitration provision. Scruggs v. Wyatt, 60 So.3d 758, 767-72 (Miss.2011).

      . Wyatt's First Amended Complaint claimed venue in Lafayette County, based primarily on Scruggs, providing that "Scruggs is deemed for purposes of residency and domicile, to be domiciled in Lafayette County, Mississippi!,]” and "SLF, formerly the Scruggs Law Firm, is domiciled in Lafayette County, Mississippi."

      . "Direct-benefit estoppel involve[s] non-signatories who, during the life of the contract, have embraced the contract despite their non-signatory status, but then, during litigation, attempt to repudiate the arbitration clause in the contract.” Scruggs, 60 So.3d at 767 (citations omitted).

      .The same reasoning applies to Wyatt’s claims against Nutt, et al. His initial and amended complaints aver a fee-sharing interest in the Katrina JVA.

      . Citing Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So.2d 908, 914 (Miss.1993) (brackets in original) (quoting Cornell & Co. v. Barber & Ross Co., 123 U.S.App. D.C. 378, 360 F.2d 512, 513 (D.C.Cir.1966)).

      . Citing Univ. Nursing Assocs., PLLC v. Phillips, 842 So.2d 1270, 1278 (Miss.2003).

      . Citing MS Credit Center v. Horton, 926 So.2d 167 (Miss.2006).

      . It was Wyatt who invoked litigation regarding the Katrina JVA, by making it the basis of his claims in the instant action.


author: IRVING, P.J.,

text:
    Rondell WHITE Sr. a/k/a Rondell White and Cherrelle Jones a/k/a Cherrele Jones, Appellants v. STATE of Mississippi, Appellee.
    No. 2010-KA-01885-COA.
    Court of Appeals of Mississippi.
    June 12, 2012.
    Rehearing Denied Nov. 20, 2012.
    Certiorari Denied Feb. 21, 2013.
    Erin E. Pridgen, Teselyn M. Funches, attorneys for appellants.
    Office of the Attorney General by Lisa L. Blount, Jessica L. Perri, attorneys for appellee.
    Before IRVING, P.J., ISHEE and RUSSELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On October 6, 2010, after a joint trial, a jury found Rondell White Sr. and Cherrelle Jones guilty of felony child neglect. The Jefferson County Circuit Court sentenced White to ten years in the custody of the Mississippi Department of Corrections (MDOC), with eight years to serve, two years suspended, and two years of post-release supervision. The court sentenced Jones to ten years in the custody of the MDOC, with four years to serve, six years suspended, and six years of post-release supervision. White and Jones each filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict, which the circuit court denied.

¶ 2. Feeling aggrieved, White and Jones appeal and argue that there is insufficient evidence to support their convictions and that the jury’s verdicts are against the overwhelming weight of the evidence. Additionally, White contends that the circuit court discriminated against him during the trial’s sentencing phase.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. Jones and White are R.J.’s natural parents. On August 21, 2009, White took three-month-old R.J. to Jefferson County Hospital (JCH) in Fayette, Mississippi, after R.J. began having a seizure. When R.J.’s seizure began, he was at home alone with White. Jones was at the grocery store with Jacquawn, her four-year-old son. White called Jones and told her that he was taking R.J. to the hospital, and Jones agreed to meet them there. R.J. was later transferred from JCH to the Blair E. Batson Children’s Hospital (Bat-son) in Jackson, Mississippi.

¶ 5. Jones testified that during the week that R.J. had his seizure, he had been in someone else’s care on two occasions. She had allowed R.J.’s godmother to take him to have his picture taken, and she had left R.J. alone with her younger brother while she went to the store. Additionally, Jones claimed that R.J. had fallen out of bed during the week that he had the seizure. She explained that R.J. had become increasingly fussy after the fall but that she and Wdiite thought that he simply had an ear infection.

¶ 6. Jones stated that on the night before R.J.’s seizure, she had left him alone in the room with Jacquawn and had heard R.J. scream. She asked Jacquawn what had happened, but he denied harming R.J. Additionally, Jones testified that she observed the medical personnel at JCH while they were treating R.J. and claimed that they were “beating and patting” R.J. as they examined him. She testified that she did not see any bruises on R.J.’s body until he arrived at Batson. The doctors who evaluated R.J. at Batson later informed Jones that R.J. had a fractured skull, a broken rib, several bruises, and mild liver damage. Jones claimed that she did not know how R.J. had gotten injured.

¶ 7. Wdiite confirmed that he was taking care of R.J. on the morning of his seizure. R.J. had been fussy that morning, so White had tried to calm R.J. by rocking him. When that technique failed, White laid R.J. on the bed and left the room to prepare R.J.’s bottle. Soon after, he heard R.J. scream. When White returned to the bedroom, R.J. appeared to be going “into a shock.” Similar to Jones, WTiite suggested that JCH personnel had injured R.J. WTiite claimed that he did not see any bruises on RJ.’s body until the doctors examined him at Batson, but he had observed the medical personnel at JCH “pushing [R.J.’s] knees toward his chest trying to loosen him up.” White explained that he did not ask the medical personnel any questions regarding their techniques because he assumed that they “knew what they [were] doing.” Like Jones, White testified that he did not know the source of R.J.’s injuries.

¶ 8. Dr. Scott Benton, a pediatric physician, examined R.J. after he had arrived at Batson. Dr. Benton testified that R.J. had a fractured skull, a fractured rib, extensive bruising, and moderate liver damage. He noted that the bruises that he had observed across R.J.’s thighs and buttocks were shaped like a handprint or a finger. Additionally, Dr. Benton testified that R.J.’s injuries were “relatively fresh” and had all occurred no more than a week prior to R.J.’s seizure.

¶ 9. Dr. Benton confirmed that falling from a significant height could cause skull fractures to infants. However, Jones had described the height of the bed from which R.J. had allegedly fallen to Dr. Benton, and he did not believe that a fall from a bed of that height could have caused R.J.’s skull fracture. Additionally, Dr. Benton testified that, even if R.J. had fallen from a bed, the fall would not explain his other injuries. Furthermore, Dr. Benton noted that neither Jacquawn nor the medical personnel at JCH could have caused R.J.’s injuries, as White and Jones had suggested. Dr. Benton opined that R.J. was a victim of “battered child syndrome.”

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Sufficiency of the Evidence

¶ 11. Both White and Jones argue that there is insufficient evidence to support their felony-child-neglect convictions. “In reviewing a challenge to the sufficiency of the evidence, [appellate courts] determine whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” Wales v. State, 73 So.3d 1113, 1120-21 (¶ 20) (Miss.2011) (citing Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)). The evidence is sufficient where “reasonable!,] fair-minded men[,] in the exercise of impartial judgment!,] might reach different conclusions.” Id. at 1121 (¶ 20) (quoting Bush, 895 So.2d at 843 (¶ 16)). However, “if the facts and inferences, properly considered, point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.” Id. (internal quotations omitted) (quoting Bush, 895 So.2d at 843 (¶ 16)).

¶ 12. Under Mississippi Code Annotated section 97-5-39(l)(c) (Rev.2006), one is guilty of felony child neglect when he “knowingly permits the continuing physical ... abuse of a child-” White and Jones contend that the State failed to prove that they knowingly permitted R.J.’s continuous physical abuse. However, based on our review of the record, there is sufficient evidence to support the jury’s verdict.

¶ 13. The State presented evidence that R.J. was primarily in White’s and Jones’s care when he was injured. Furthermore, White and Jones failed to offer plausible explanations for R.J.’s injuries. Dr. Benton opined that R.J.’s injuries were not self-inflicted or accidental, and he eliminated Jones’s explanations concerning R.J.’s alleged fall from the bed and a possible incident with Jacquawn as the cause of R.J.’s injuries. Based on the evidence in the record, a rational trier of fact could have found Jones and White guilty of felony child neglect beyond a reasonable doubt. Accordingly, this issue is without merit.

2. Weight of the Evidence

¶ 14. White and Jones argue that they are entitled to a new trial because the jury’s verdicts are against the overwhelming weight of the evidence. “On review of a challenge to the weight of the evidence, [appellate courts] will reverse only when the verdict [is] so contrary to the weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Wales, 73 So.3d at 1121 (¶ 23) (citing Bush, 895 So.2d at 844 (¶ 18)). Additionally, a motion for a new trial “should be granted only when the evidence preponderates heavily against the verdict.” Id. (citing Bush, 895 So.2d at 844 (¶ 18)).

¶ 15. The jury found that White and Jones knowingly permitted RJ.’s continuous physical abuse. The evidence supporting the jury’s verdict is that R.J. was primarily in White’s and Jones’s care when he was injured. Additionally, Dr. Benton testified that R.J.’s injuries were not self-inflicted or accidental and were “recognized as being associated with abuse.” Moreover, even though the jury heard conflicting testimony from Jones, White, and Dr. Benton regarding the source of R.J.’s injuries, it is the jury’s role to weigh witness testimony and resolve any conflict therein. See Brown v. State, 995 So.2d 698, 702 (¶ 13) (Miss.2008). Therefore, we cannot say that the evidence preponderates so heavily against the verdict that the circuit court’s failure to grant a new trial would sanction an unconscionable injustice. This issue is without merit.

3. Gender Discrimination

¶ 16. White argues that the circuit court discriminated against him during the trial’s sentencing phase. Specifically, White alleges that the court imposed a greater sentence on him because he is male. “It is well-settled in this state that sentencing is within the complete discretion of the [circuit] court.” Long v. State, 52 So.3d 1188, 1195 (¶ 26) (Miss.2011) (citing Hoops v. State, 681 So.2d 521, 537 (Miss.1996)). Furthermore, as a general rule, “a sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute.” Id. (quoting Hoops, 681 So.2d at 538). Even though White claims that his sentence should have been identical to or less than Jones’s sentence, his sentence does not exceed the maximum term allowed under section 97—5—39(l)(c); therefore, we decline to disturb it on appeal.

¶ 17. THE JUDGMENT OF THE JEFFERSON COUNTY CIRCUIT COURT OF CONVICTION OF RON-DELL WHITE SR. OF FELONY CHILD NEGLECT AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH EIGHT YEARS TO SERVE, TWO YEARS SUSPENDED, AND TWO YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED.

¶ 18. THE JUDGMENT OF THE JEFFERSON COUNTY CIRCUIT COURT OF CONVICTION OF CHER-RELLE JONES OF FELONY CHILD NEGLECT AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FOUR YEARS TO SERVE, SIX YEARS SUSPENDED, AND SIX YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED.

¶ 19. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JEFFERSON COUNTY.

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

      . R.J.'s godmother’s name is not in the record.

      . Jones's brother’s name is not in the record.

      . Jones did not give the numerical height of the bed. She explained the bed’s height to Dr. Benton by comparing it to the height of a couch in the room where she and Dr. Benton were talking.

      . Section 97—5—39(l)(c), states:
      A parent, legal guardian or other person who knowingly permits the continuing physical or sexual abuse of a child is guilty of neglect of a child and may be sentenced to imprisonment for not more than ten (10) years or to payment of a fine of not more than Ten Thousand Dollars ($10,000.00), or both.
      (Emphasis added).


author: MAXWELL, J.,

text:
    Jeffrey Dale CHAPELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CA-00336-COA.
    Court of Appeals of Mississippi.
    June 19, 2012.
    Rehearing Denied Nov. 6, 2012.
    Certiorari Denied Feb. 21, 2013.

      James D. Franks Jr., attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Jeffrey Dale Chapell filed a motion for post-conviction relief (PCR) to challenge his sentence. Chapell had pled guilty to three counts of sexual battery of a child and two counts of fondling a child and was sentenced to three concurrent twenty-five-year terms in prison, followed by two concurrent fifteen-year terms of post-release supervision. In his PCR motion he argued the sentencing court: (1) lacked jurisdiction to impose his sentence; (2) imposed a grossly disproportional sentence, in violation of his Eighth Amendment rights; and (3) failed to credit him time served under house arrest while out on bond. The circuit court dismissed his PCR motion without a hearing. On appeal, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2006, the mother of two of Cha-pell’s minor victims discovered him molesting one her daughters. During the ensuing investigation, Chapell admitted to molesting eight different victims. Four were identified, and the grand jury returned a ten-count indictment charging seven counts of sexual penetration of a child under fourteen (sexual battery) and three counts of gratification of lust by touching a child under sixteen (fondling). Chapell was arrested. He was later released on a ten-percent bond conditioned on his placement under house arrest.

¶ 3. Chapell pled guilty to three of the counts of sexual battery and two of the counts of fondling. At the plea hearing, Chapell’s counsel proffered that Chapell had been examined by a psychologist who is an expert in evaluating defendants regarding competency and legal insanity. While Chapell did have a diminished mental capacity, Chapell’s counsel admitted he was competent to stand trial and enter a plea. Taking into consideration the information about Chapell’s low intelligence quotient (IQ), which indicated some mental retardation, the circuit judge found Cha-pell was competent and accepted his plea of guilty.

¶ 4. At the sentencing hearing, the State requested Chapell be sentenced to forty years in prison. Chapell’s counsel asked the circuit judge to sentence Chapell to continued house arrest, arguing such a sentence would be more appropriate than jail in light of Chapell’s childlike mental capacity. Counsel also relied on the circuit court’s recent sentencing of another defendant convicted of child molestation to house arrest, claiming the circumstances were similar.

¶ 5. In issuing Chapell’s sentence, the circuit judge distinguished the case in which the court had ordered house arrest. That case involved one victim over á three-day period. And everyone interested in the case — the State, the defendant, and the victim’s family — agreed to the sentence. But Chapell’s case involved multiple victims over multiple years, and the State and the victims’ families requested forty years in jail. The circuit judge, noting on the record he had reviewed the information presented about Chapell’s diminished mental capacity, sentenced him to twenty-five years in jail and fifteen years of post-release supervision. The circuit judge gave Chapell sixty-four days’ credit for time served in jail before being released on bond.

¶ 6. Following the July 31, 2007 entry of the judgment against him, Chapell did not directly appeal his sentence. See Hamilton v. State, 44 So.3d 1060, 1065 (¶ 15) (Miss.Ct.App.2010) (citing Trotter v. State, 554 So.2d 313, 315 (Miss.1989)) (explaining that, while a guilty plea could not be directly appealed under Mississippi Code Annotated § 99-35-101 (Rev.2007), a sentence resulting from a guilty plea could be appealed). But see Miss.Code Ann. § 99-35-101 (Supp.2011) (effective July 1, 2008) (amending the statute so that a defendant who “enters a plea of guilty and is sentenced” is not allowed to directly appeal from the circuit court to the Mississippi Supreme Court). But Chapell did file a PCR motion collaterally attacking his sentence within the three-year statutory time limit. See Miss.Code Ann. § 99-39-5(2) (Supp.2011). The circuit court dismissed this motion without a hearing, and Chapell timely appealed.

STANDARD OF REVIEW

¶ 7. We review the dismissal of a PCR motion for abuse of discretion. Burrough v. State, 9 So.3d 368, 371 (¶ 6) (Miss.2009) (citing Billiot v. State, 655 So.2d 1, 12 (Miss.1995)). The circuit court may summarily dismiss a PCR motion “if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Id. (quoting Miss.Code Ann. § 99-39-11(2) (Rev.2007)).

DISCUSSION

I. Jurisdiction

¶8. Chapell first argues he was entitled to relief because the circuit judge who imposed his sentence failed to make an on-the-record finding of personal and subject-matter jurisdiction. Like the circuit court, we are confused about the jurisdictional error Chapell is asserting. The only authority Chapell cites is a completely irrelevant civil case. “Failure to cite relevant authority obviates the appellate court’s obligation to review such issues.” Byrom v. State, 863 So.2d 836, 853 (¶ 35) (Miss.2003) (citing Simmons v. State, 805 So.2d 452, 487 (¶ 90) (Miss.2001)).

¶ 9. Clearly, the DeSoto County Circuit Court had jurisdiction to sentence Chapell. Mississippi’s circuit courts have general jurisdiction “to hear and determine all prosecutions in the name of the state for treason, felonies, crimes, and misdemeanors[.]” Miss.Code. Ann. § 9-7-81 (Rev. 2002). And a circuit court obtains “subject matter jurisdiction over the subject of a particular offense” when “[a]n indictment charging the essential elements of a crime [is] served on a defendant!.]” Neal v. State, 936 So.2d 463, 466 (¶7) (Miss.Ct. App.2006) (citing Jefferson v. State, 556 So.2d 1016, 1021 (Miss.1989)).

¶ 10. The DeSoto County Circuit Court served Chapell with a ten-count indictment that included the five counts to which he pled guilty. Thus, the court had the jurisdiction to accept his plea and impose his sentence. See Jefferson, 556 So.2d at 1020 (noting that a court that has jurisdiction to adjudge the defendant guilty of the charges in his indictment certainly has “jurisdiction to accept his guilty plea, adjudge him guilty, and impose sentence”). We affirm the circuit court’s dismissal of this claim.

II. Chapell’s Sentence

¶ 11. Chapell next argues he is entitled to relief because: (1) his sentence is grossly disproportionate to sentences imposed in the same and surrounding jurisdictions for similar crimes; and (2) the trial court did not take into account mitigation evidence of his low IQ.

A. Procedural Bar

¶ 12. The circuit court, relying on this court’s opinion in Hamilton, found Cha-pell’s sentencing argument had been waived by not raising it on direct appeal. In Hamilton, we found the failure to challenge the proportionality of a sentence following a guilty plea barred raising the issue in a PCR motion. Hamilton, 44 So.3d at 1065-66 (¶ 15) (citing Dennis v. State, 873 So.2d 1045, 1049 (¶ 13) (Miss.Ct.App.2004)); see also Johnson v. State, 39 So.3d 14, 21-22 (1Í16) (Miss.Ct.App.2010) (holding the defendant’s challenge to constitutionality of his sentence raised in his PCR motion was barred by failure to directly appeal the sentence). We note Hamilton, Dennis, and Johnson all relied on the Mississippi Supreme Court’s interpretation of section 99-35-101 in Trotter, 554 So.2d at 315. See Hamilton, 44 So.3d at 1065 (¶ 15); Dennis, 873 So.2d at 1049 (¶ 13); Johnson, 39 So.3d at 22 (¶ 16). Subsequent to the entry of Chapell’s guilty plea and sentence, section 99-35-101 was amended to make not only a plea of guilty but also the sentence that followed ineligible for direct appeal. See Miss.Code Ann. § 99-35-101 (Supp.2011). So while we apply Trotter and the cases relying on Trotter, such as Hamilton, to Chapell’s guilty plea and sentence, we point out this line of cases would not apply to a defendant who has pled guilty after July 1, 2008.

¶ 13. Chapell argues this court made an “illogical jump” in Hamilton by reasoning that, because a sentence following a guilty plea may be appealed, it must be appealed. He also argues this holding “completely ignores” Mississippi’s Uniform Post-Conviction Collateral Relief Act (UPCCRA), which provides:

Any person sentenced by a court of record of the State of Mississippi ... may file a motion to vacate, set aside or correct the judgment or sentence ... if the person claims ... [t]hat the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi!.]

Miss.Code Ann. § 99-39-5(l)(a) (Supp. 2011). But the UPCCRA also instructs:

Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred[.]

Miss.Code. Ann. § 99-39-21(1) (Rev.2007). See Payton v. State, 845 So.2d 713, 717 (¶ 14) (Miss.Ct.App.2003) (citing Miss.Code Ann. § 99-39-21(1)) (holding failure to raise issue of illegal sentence at sentencing hearing waived raising issue in PCR motion).

¶ 14. The stated purpose of the UP-CCRA is “to provide prisoners with a procedure, limited in nature, to review those objections, defenses, claims, questions, issues or errors which in practical reality could not be or should not have been raised at trial or on direct appeal.” Miss. Code Ann. § 99-39-3(2) (Rev.2007) (emphasis added). In Dennis, 873 So.2d at 1049 (¶ 13), this court held that, because the defendant’s “challenge to his sentence existed immediately after the sentencing hearing and was an appropriate issue for a direct appeal[, the defendant’s] failure to raise these issues on direct appeal precludes consideration in post-conviction relief proceedings.”

¶ 15. As in Dennis, we find Cha-pell’s sentencing claims could and should have been raised a direct appeal. Chapell argues his disproportionate-sentence argument could not have been made on direct appeal because it required facts and information not in the trial record. But Cha-pell’s primary ai-gument is that his sentence is unconstitutional because of his diminished mental capacity. This complaint “existed immediately after the sentencing hearing[.]” Id. All the information provided and arguments Chapell makes about his diminished mental capacity are found in Chapell’s criminal trial record. The psychological evaluation Chapell attached to his PCR motion is the exact same evaluation reviewed by the sentencing judge prior to imposing Chapell’s sentence. Chapell’s counsel made the same arguments about Chapell’s low IQ and childlike mental capacity before the sentencing court. And the sentencing judge stated on the record that he considered this mitigation information in imposing Chapell’s sentence. Thus, this issue was appropriate for direct appeal, and the circuit court correctly found Chapell was barred from raising the issue in his PCR motion. Cf. Wilcher v. State, 863 So.2d 776, 795-96 (¶ 30) (Miss.2003) (quoting Foster v. State, 687 So.2d 1124, 1129 (Miss.1996)) (holding “a defendant is procedurally barred by waiver from making a challenge to a capital sentencing scheme as a whole in a petition for post-conviction relief where the issue was capable of determination at trial and/or on direct appeal but was not raised”).

B. Proportionality

¶ 16. Section 99-39-21(1) does give the court discretion to grant relief from the waiver “upon a showing of cause and actual prejudice.” Further, the Mississippi Supreme Court has held courts do not have discretion and must grant relief from the MPCCRA’s procedural bars for “errors affecting fundamental constitutional rights.” Rowland v. State, 42 So.3d 503, 507 (1112) (Miss.2010) (overruling Luckett v. State, 582 So.2d 428, 430 (Miss.1991), which held errors affecting fundamental constitutional rights “may” be excepted). Though Chapell asserts his Eighth Amendment right protecting against cruel an unusual punishment was violated, we find his sentence does not run afoul of his fundamental constitutional rights. See U.S. Const. amends. VIII, XIV.

¶ 17. Procedural bar notwithstanding, the circuit court found the claim of a disproportional sentence in Chapell’s PCR motion could be dismissed on its face because Chapell’s sentence fell well within the statutory limits. Chapell argues the circuit court erred by not conducting a proportionality review under Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). In Solem, the United States Supreme Court gave a three-prong test to analyze for disproportionality under the Eighth Amendment:

(i) the gravity of the offense and the harshness of the penalty;
(ii) the sentence imposed on other criminals in the same jurisdiction; and
(iii) the sentences imposed for commission of the same crime in other jurisdictions.

Nichols v. State, 826 So.2d 1288, 1290 (¶ 11) (Miss.2002) (citing Solem, 463 U.S. at 290-92, 103 S.Ct. 3001). Specifically, Chapell argues the circuit court failed to consider evidence provided about sentences imposed for child molestation in the same jurisdiction.

¶ 18. As the Mississippi Supreme Court has noted, “Solem was overruled in Harmelin v. Michigan, 501 U.S. 957, 965-66, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) ‘to the extent that it found a guarantee of proportionality in the Eighth Amendment.’ ” Nichols, 826 So.2d at 1290 (¶ 12) (quoting (quoting Hoops v. State, 681 So.2d 521, 538 (Miss.1996)); see Harmelin, 501 U.S. at 965, 111 S.Ct. 2680 (“We conclude from this examination that Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee.”). “In light of Harmelin, it appears that Solem is to apply only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross disproportionality.’” Nichols, 826 So.2d at 1290 (¶ 12).

¶ 19. “Generally, sentences that do not exceed the maximum term allowed by statute will not be considered grossly disproportionate[.]” Thomas v. State, 48 So.3d 460, 479 (¶ 59) (Miss.2010) (citing Mingo v. State, 944 So.2d 18, 34 (Miss.2006)); see also Calhoun v. State, 849 So.2d 892, 897 (¶ 19) (Miss.2003) (“When a sentence is within the limits fixed by the statute, the sentence cannot be said to be excessive.”). Chapell faced a potential life sentence for each charge of sexual battery, Miss.Code Ann. § 97-3-101(3) (Rev.2006), and fifteen years’ imprisonment for each charge of fondling, Miss.Code Ann. § 97-5-23(1). The sentencing court imposed a sentence that was only five years more than the minimum for each sexual battery charge and ordered the sentences to run concurrently. See Miss.Code Ann. § 97-3-101(3). The sentencing court imposed no jail time for the fondling charges and ordered the two fifteen-year sentences of post-release supervision to run concurrently-

¶ 20. Further, in Bell v. State, 797 So.2d 945, 951 (¶ 31) (Miss.2001), the supreme court did “not consider the statutory punishment of thirty years for the crime of sexual battery to be excessive, especially when the victim is a child of tender years,” because child molestation caused irreparable emotional, and sometimes physical, harm. The circuit court relied on Bell to find Chapell’s crimes— multiple counts of sexual battery of a minor and fondling — compared to his twenty-five year sentence was not excessive. Because we agree a threshold comparison of the crimes and sentences does not lead to an inference of gross disproportionality, we find the circuit court did not err by not conducting a Solem proportionality review.

¶ 21. Chapell argues his sentence is excessive in light of his diminished mental capacity. Chapell relies on Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held sentencing mentally retarded defendants to death violates the Eighth Amendment. See id. at 321, 122 S.Ct. 2242 (The Eighth Amendment “ ‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender.” (quoting Ford v. Wainwright, 477 U.S. 399, 405,106 S.Ct. 2595, 91 L.Ed.2d 335 (1986))). In reaching this decision, the Supreme Court relied on “evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal.” Id. at 316, 122 S.Ct. 2242. Based on Atkins, Chapell argues he should have received a sentence reflecting his “lesser culpability.” Instead, he asserts, he was given one of the most severe sentences recently imposed on a child molester in DeSoto County and the surrounding jurisdictions.

¶ 22. We first point out this is not a case where Atkins applies. Atkins’s holding did not address penalties less severe than the death penalty, and Mississippi has not applied Atkins to offenses other than capital crimes. Second, we cannot find the sentencing court failed to consider Cha-pell’s evidence of diminished mental capacity and the potential mitigating effect it may have on his sentence. The sentencing judge stated on the record he had reviewed this evidence before imposing a sentence. And the judge essentially sentenced him to serve only twenty-five years in prison, with the remaining fifteen years to be served through post-release supervision. While twenty-five years in prison is by no means insignificant, it is far less than the three consecutive life sentences, followed by thirty more years, the judge could have imposed on Chapell, while still remaining within the statutory limits. See Nichols, 826 So.2d at 1290 (¶ 10) (“Sentencing is within the complete discretion of the trial court .... ” (quoting Wall v. State, 718 So.2d 1107, 1114 (¶29) (Miss.1998))). We cannot say Chapell’s sentence is disproportionate to his admitted predatory crimes against children. Chapell pled guilty to the sexual penetration of two different children and the inappropriate sexual touching of another child. Further, Chapell was found competent to enter a plea to these crimes and was aware the State would ask for forty years in prison in exchange for his open plea.

¶ 28. Because Chapell’s sentence was well within the statutory limits and because the sentencing judge did not abuse his discretion in weighing Chapell’s evidence of diminished mental capacity, we, like the circuit court, find Chapell’s sentence does not violate his Eighth Amendment right against cruel and unusual punishments. We affirm the circuit court’s dismissal of this claim.

III. Credit for Time Served

¶24. Finally, Chapell argues the sentencing judge erred by only crediting him sixty-four days for time served in jail prior to sentencing. Chapell argues the year he spent out on bond under house arrest should also have been credited because he was essentially “incarcerated” during that time by being confined to his home.

¶ 25. This court has held that “a post-conviction relief pleading is not the proper means to calculate and receive credit for the initial time served.” McDonald v. State, 16 So.3d 83, 85 (¶ 6) (Miss.Ct.App.2009) (quoting Murphy v. State, 800 So.2d 525, 527 (¶ 10) (Miss.Ct. App.2001); citing Miss.Code Ann. § 99-19-23 (Rev.2007)). Instead, Chapell “should send such requests to the proper authorities within the Mississippi Department of Corrections’ administrative system.” Id. Only after he is denied proper relief or credit for time served by the MDOC may he “then turn to the courts to seek remedy.” Id. (quoting Murphy, 800 So.2d at 528 (¶ 10)).

¶ 26. Further, we note Chapell’s time spent on house arrest does not fall within the plain language of the time-served statute. Mississippi Code Annotated section 99-19-23 provides:

The number of days spent by a prisoner in incarceration in any municipal or county jail while awaiting trial on a criminal charge, or awaiting an appeal to a higher court upon conviction, shall be applied on any sentence rendered by a court of law or on any sentence finally set after all avenues of appeal are exhausted.

(Emphasis added). Chapell was not in jail the year leading up to his sentence but instead was out on bond. His house arrest was not a de facto “incarceration” but instead a condition of reducing his $500,000 bond from 100% — as required by Uniform Rule of Circuit and County Court 6.02(B) based on the nature of his crimes — to only 10%, or $50,000. See URCCC 6.02(E) (“The circuit judge has the discretion to waive or modify any requirements of this rule, except for the collection of the fee[.]”). Thus, he was not entitled to credit for his time under house arrest under section 99-19-23.

¶ 27. We affirm the circuit court’s dismissal of this claim.

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

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

      . Miss.Code Ann. § 97 — 3—95(l)(d) (Rev.2006) ("A person is guilty of sexual battery if he or she engages in sexual penetration with ... [a] child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.”).

      . Miss.Code Ann. § 97-5-23 (Rev.2006) ("Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child’s consent ... shall be guilty of a felony[.]”).