source: Caselaw Access Project

author:
RANDOLPH, Presiding Justice,
      KITCHENS, Justice,

license: Public Domain

text:
    Brett JONES v. STATE of Mississippi.
    No. 2009-CT-02033-SCT.
    Supreme Court of Mississippi.
    July 18, 2013.
    Rehearing Denied Sept. 26, 2013.

      Sylvia S. Owen, New Albany, Thomas Henry Freeland, IV, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Brett Jones was convicted of murder for stabbing his grandfather to death. In accordance with Mississippi Code Section 97-8-21, the trial judge sentenced Jones to life imprisonment. Miss. Code Ann. § 97-3-21 (Rev.2006) (“Every person who shall be convicted of murder shall be sentenced by the court to imprisonment for life in the State Penitentiary.”). Jones’s conviction and sentence were affirmed by the Court of Appeals. Jones v. State (“Jones /”), 938 So.2d 312 (Miss.Ct.App.2006).

¶ 2. This Court granted Jones leave to seek post-conviction relief in the Circuit Court of Lee County. In his petition for post-conviction relief before the circuit court, Jones argued, inter alia, that, because he was fifteen years old at the time of the murder, his life sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The circuit court denied Jones’s motion for post-conviction relief, and the Court of Appeals affirmed that judgment. Jones v. State (“Jones II ”), 122 So.3d 725 (Miss.Ct.App.2011), reh’g denied (Apr. 3, 2012).

¶ 3. Jones then petitioned this Court for writ of certiorari, noting that two cases were pending before the United States Supreme Court which raised the issue of whether the Eighth Amendment forbids a sentence of life without parole for juveniles convicted of homicide. On June 25, 2012, the Supreme Court decided Miller v. Alabama (and the companion case Jackson v. Hobbs), — U.S. -, 132 S.Ct. 2455, 188 L.Ed.2d 407 (2012). This Court granted Jones’s petition for writ of certiorari and ordered supplemental briefing regarding the application of Miller. We have limited our review to that issue.

ANALYSIS

¶ 4. Where an appeal raises a question of law, the applicable standard of review is de novo. Lambert v. State, 941 So.2d 804, 807 (Miss.2006) (citing Brown v. State, 731 So.2d 595, 598 (Miss.1999)).

¶ 5. In Miller, the United States Supreme Court held “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders.” Miller, 132 S.Ct. at 2469 (emphasis added). The Court declined to impose a categorical bar on sentences of life without parole for juveniles, but “require[d] [the sentencing authority] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. The Miller Court identified multiple juvenile characteristics and circumstances which may exist that are precluded from consideration by a mandatory sentencing scheme:

Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfune-tional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth — for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. See, e.g., Graham v. Florida, 560 U.S. 48,130 S.Ct. 2011, 176 L.Ed.2d 825 (“[T]he features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings”); J.D.B. v. North Carolina, 564 U.S. -, -, 131 S.Ct. 2394, 2400-2401, 180 L.Ed.2d 310 (2011) (discussing children’s responses to interrogation). And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.

Id. at 2468.

¶ 6. We recently addressed Miller in Parker v. State, 119 So.3d 987 (Miss.2013) (mandate not issued). Like Jones, fifteen-year-old Parker was convicted for the murder of his grandfather and sentenced to life imprisonment. Id. at 996. Preliminarily, we found that “[p]rior to Miller, our trial courts were not required to hold an individualized sentencing hearing for juveniles before imposing a life sentence.” Id. at 995. Thus, Miller imposed a new obligation with which this State must comport. Id. We held that, although “murder does not carry a specific sentence of life without parole,” the State’s parole statute, Section 47-7-3(l)(h), rendered Parker’s life sentence “tantamount to life without parole.” Id. Therefore, our sentencing and parole scheme “contravenefd] the dictates of Miller” as it made Parker ineligible for parole absent consideration of his youth by the sentencing authority. Id. We vacated Parker’s sentence and remanded his case to the circuit court for a new sentencing hearing. Id. at 997.

¶7. Parker was pending before this Court on direct appeal when Miller was announced. The United States Supreme Court has stated, “[w]hen a decision of this Court results in a ‘new rule,’ that rule applies to all criminal cases still pending on direct review.” Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (quoting Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). After determining that Miller imposed a new obligation, there was little question as to whether that obligation should apply if this Court found that Parker had received a mandatory sentence of life without parole. In contrast, Jones’s conviction and sentence became final in 2006, more than five years before Miller. Jones is before this Court on collateral review. Thus, the issue presented today is whether Miller applies to cases which already have become final. Stated differently, we must determine if Miller applies retroactively to cases on collateral review.

I.

¶ 8. In Teague, a plurality decision, the United States Supreme Court held that, “[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The Teague Court identified two exceptions to the general bar against ret-roactivity. The Court stated,

First, a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe. Second, a new rule should be applied retroactively if it requires the observance of those procedures that ... are implicit in the concept of ordered liberty.

Id. at 307 (internal citations omitted). This Court expressly has adopted Teague’s “very limited retroactive application standard.” Manning v. State, 929 So.2d 885, 900 (Miss.2006).

¶ 9. In ensuing cases, the United States Supreme Court has expounded upon the exceptions articulated in Teague. In Summerlin, the Court determined that Teague’s first exception encompassed rules “more accurately characterized as substantive rules not subject to the bar.” Summerlin, 542 U.S. at 351-352 n. 4, 124 S.Ct. 2519. The Court stated, “[n]ew substantive rules generally apply retroactively ... because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him.” Id. at 351-52, 124 S.Ct. 2519 (internal citations omitted). Miller solely addressed the latter.

¶ 10. Although Miller did not impose a categorical ban on the punishment that the substantive law could impose, it explicitly foreclosed imposition of a mandatory sentence of life without parole on juvenile offenders. By prohibiting the imposition of a mandatory sentence, the new obligation prevents “a significant risk that a [juvenile] ... faces a punishment that the law cannot impose on him.” Id.

¶ 11. “[S]ubstantive rules ... include[ ] decisions that narrow the scope of a criminal statute by interpreting its terms.” Id. at 351-52, 124 S.Ct. 2519 (citing Bousley v. United States, 523 U.S. 614, 620-621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)). Prior to Miller, everyone convicted of murder in Mississippi was sentenced to life imprisonment and was ineligible for parole. Following Miller, Mississippi’s current sentencing and parole statutes could not be followed in homicide cases involving juvenile defendants. Our sentencing scheme may be applied to juveniles only after applicable Miller characteristics and circumstances have been considered by the sentencing authority. As such, Miller modified our substantive law by narrowing its application for juveniles.

¶ 12. The Legislature is the branch of government responsible for enactment of substantive law, which includes both crime and punishment. As we noted in Parker, “[t]he authority to say what constitutes a crime, and what punishment shall be inflicted is in its entirety a legislative question.” Parker, 119 So.3d at 998 (quoting Williams v. State, 708 So.2d 1358, 1361 (Miss.1998)). However, its enactments must comport with both the United States and Mississippi Constitutions. Miller explicitly prohibits states from imposing a mandatory sentence of life without parole on juveniles. Thus, Miller rendered our present sentencing scheme unconstitutional if, and only if, the sentencing authority fails to take into account characteristics and circumstances unique to juveniles. When the Miller Court announced a new obligation prohibiting the application of our existing substantive law, it modified Mississippi substantive law.

II.

¶ 13. The dissent posits that this Court should declare Section 47—7—3(l)(h) unconstitutional as applied to every juvenile. This position was rejected by the Parker Court after full and careful deliberation. See Parker, 119 So.3d 987, n. 14 (“Miller does not require this Court to declare Section 47—7—3(l)(h) per se unconstitutional as applied to juveniles.”) Declaring Section 47-7-3(l)(h) unconstitutional as applied to all juveniles would be an inordinate expansion of Miller’s holding. Application of Section 47-7-3(l)(h) to a juvenile is unconstitutional only absent consideration of the characteristics and circumstances unique to juvenile defendants by the sentencing authority.

¶ 14. To be clear, neither the sentencing statute, Section 97-3-21, nor the applicable parole provision, Section 47-7-3(l)(h), has been abrogated, as posited by the dissent. Section 97-3-21 does not violate the Miller mandate. Section 47-7-3(l)(h) cannot be applied in all cases, but can be applied constitutionally to juveniles who fail to convince the sentencing authority that Miller considerations are sufficient to prohibit its application. Therefore, in order to comply with the United States Constitution and to make Miller considerations more than perfunctory, we put in place a “stop-gap mechanism” which allows the sentencing authority “to annul application of Section 47 — 7—3(l)(h).” Parker, 119 So.3d 987, at 995. This mechanism enables the trial judge to nullify application of subsection (h) to ensure protection of a juvenile’s Eighth Amendment rights.

¶ 15. This mechanism does not, as the dissent suggests, allow a juvenile defendant convicted of murder to be sentenced to life without parole. While we all recognize that a life sentence for murder is tantamount to life without parole, we expressly rejected that a juvenile could be sentenced to life without parole in Parker. See Parker, 119 So.3d 987, at n. 21 (“[T]o-day’s decision only grants the trial court the authority to sentence a juvenile to ‘life imprisonment’ — the maximum sentence allowed by statute.”).

¶ 16. The dissent further posits that declaring Section 47 — 7—3(l)(h) unconstitutional as applied to all juveniles “minimizes our intrusion into any legislative function.” Diss. Op. ¶ 24. Yet, while seeking not to appropriate this legislative function, the dissent would declare a valid legislative enactment unconstitutional, even though it already has been shown that Section 47-7-3(l)(h) can be applied constitutionally to certain juveniles.

¶ 17. Finally, the dissent misconstrues the actual effect of the holding in Parker, and suggests that “the revised sentence will have no effect.” Diss. Op. ¶ 27. I doubt Mr. Jones would agree, given that today’s decision grants him an opportunity to be relieved of a mandatory life sentence. If the sentencing authority concludes, after Miller consideration, that Jones’s eligibility for parole should not be foreclosed by the parole statute, he is to be sentenced to “life imprisonment with eligibility for parole notwithstanding the present provisions of Mississippi Code Section 47-7-3(l)(h).” See supra n. 4. In that event, subsection (h) will have been annulled by the sentencing authority, and Jones will be eligible for parole subject to the general provisions of Section 47-7-3(1).

CONCLUSION

¶ 18. We are of the opinion that Miller created a new, substantive rule which should be applied retroactively to cases on collateral review. We affirm in part and reverse in part the Court of Appeals’ judgment and the trial court’s denial of post-conviction relief. We vacate Jones’s sentence and remand this case to the Circuit Court of Lee County for a new sentencing hearing to be conducted consistently with this Court’s opinion in Parker. See supra n. 4.

¶ 19. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS AFFIRMED IN PART AND REVERSED IN PART. THE SENTENCE IS VACATED, AND THIS CASE IS REMANDED TO THE CIRCUIT COURT OF LEE COUNTY FOR RESENTENCING.

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

KITCHENS, Justice,

dissenting:

¶ 20. For the reasons stated in my separate opinion in Parker, I disagree with the Court’s remanding the present case to the circuit court for resentencing. Parker v. State, 119 So.3d 987 (¶¶ 31-38) (Miss.2013) (Kitchens, J., concurring in part and dissenting in part, joined by Dickinson, P.J., Chandler and King, JJ.). While capital murder may be punished by a sentence of life without parole, Jones received a life sentence for murder, the only punishment that our courts (ie., the “sentencing authority”) may impose for that crime. See Miss.Code Ann. § 97-3-21 (2012). Yet, our probation and parole statutes automatically foreclose the possibility of parole for those convicted of a violent crime. Miss. Code Ann. § 47-7-3(l)(h) (Rev.2011). Our trial courts can impose only those sentences allowed by statute, whereas authority over parole eligibility is vested in the executive branch, specifically, the State Parole Board. See Miss.Code Ann. §§ 47-7-1 to 47-7-55 (the Parole and Probation Law). Thus, it is the parole statute, Mississippi Code Section 47-7-3(l)(h) (Rev. 2011), that violates Miller’s declaration that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishment’.” Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012); U.S. Const, amend. VIII. Accordingly, I would adopt the approach taken by the Wyoming Supreme Court when addressing their statutes and hold Section 47 — 7—3(l)(h) unconstitutional as applied to juveniles convicted of murder, in light of Miller. See Bear Cloud v. Wyoming, 294 P.3d 36 (Wyo.2013) (construed in Parker,). Therefore, rather than remanding the case for resentencing, I would grant Jones’s petition for post-conviction relief as it relates to his sentence, and I would declare that, for juvenile offenders convicted of murder, the parole authorities shall apply only the general parole provision of Section 47-7-3(l).

¶ 21. I agree that Jones’s life sentence for murder is tantamount to a sentence of life without parole. But, under Section 97-3-21, life without parole is a sentencing option for capital murder, but not for murder. Indeed, the State recently argued that the imposition of a sentence of life without parole for murder was legally permissible because Section 47-7-3(l)(h) foreclosed eligibility for parole. Fernando Martinez Parker v. State, 30 So.3d 1222, 1227-28 (Miss.2010). In rejecting that argument, we held that Section 47-7-3 “does not affect a judge’s sentencing prerogative under the criminal statutes.” Id. at 1228. Because a sentence of life without parole “exceeded the statutory maximum,” we vacated the sentence and remanded “for re-sentencing within the statutory guidelines.” Id. at 1228, 1235.

¶ 22. The Court’s having explicitly rejected the notion that, in Mississippi, a sentencing court has the authority to determine parole eligibility for those convicted of murder, mandatory life without parole is a product of Mississippi’s parole and probation statutes, specifically Section 47 — 7—3(l)(h). When recently interpreting Miller under a similar statutory scheme, the Wyoming Supreme Court held that the least intrusive approach would be to leave the sentencing statute undisturbed and hold the statutes which barred parole for offenders serving life sentences “unconstitutional as applied to juvenile offenders.” Bear Cloud, 294 P.3d 36. This solution is simple, preserves judicial resources, respects the legislative authority to prescribe the bounds of sentences, and does not encroach on the executive branch’s statutory authority over parole matters.

¶ 23. Although the Parker majority reasoned that its was “charting] the same course” as Bear Cloud, 294 P.3d 36, it clearly did not. Parker, 119 So.3d at 1000. Unlike Parker, (and Brett Jones), the Bear Cloud case, 294 P.3d 36, involved a juvenile convicted of “murder in the first degree,” i.e., the equivalent of capital murder in Mississippi. The Wyoming Supreme Court explained that, under the “clear and unambiguous” language of the sentencing statute, the permissible sentences for first-degree murder in Wyoming are “life imprisonment without parole or life imprisonment according to law.” Id. at 44 (citing Wyo. Stat. Ann. § 6-2-101(b) (2009)). Although the defendant was sentenced to “life imprisonment according to law,” two other statutes prohibited Wyoming’s parole board from granting him parole. The Bear Cloud opinion held that the least intrusive approach under Miller was to leave the sentencing statute undisturbed and hold the statutes which barred parole for offenders serving life sentences “unconstitutional as applied to juvenile offenders.” Bear Cloud, 294 P.3d at 45-46. The Wyoming Supreme Court explained that:

We find this statutory interpretation most appropriate for two reasons. First, it minimizes our intrusion into any legislative function while allowing trial courts to impose the existing possible statutory sentences for first-degree murder in a constitutionally permissible way. Second, it separates “life imprisonment without parole” from “life imprisonment according to law,” making them truly discrete, individual punishments when applied to juveniles.

Id. at 46.

¶ 24. In contrast, the majority rejects this view and holds that juveniles convicted of murder should be resentenced, following a circuit court hearing, to either life or “life imprisonment notwithstanding the provisions of Mississippi Code Section 47-7 — 3(l)(h), as it presently provides.” Despite its insistence to the contrary, the majority holds that a juvenile convicted of murder may now be sentenced to life or life without parole. This decision ignores the clear distinctions between capital murder and murder. By explicitly providing harsher sentencing options for capital murder (one of which is death if the offender is an adult), it cannot be doubted that the Mississippi legislature views capital murder as a more heinous crime than murder. Thus, rather than our disturbing “the existing possible statutory sentence” for murder under Mississippi Code Section 97-3-21, finding the parole statute unconstitutional as applied to juveniles convicted of murder “minimizes our intrusion into any legislative function,” while preserving distinct sentences for murder and capital murder. Bear Cloud, 294 P.3d at 46. Under this approach, subsection (l)(h) is inapplicable, and the juvenile would be subject to the general provisions, i.e., subsection (1) only, of the parole statute, which permits release on parole after the serving of ten years of a life sentence. Miss.Code Ann. § 47-7-3(1).

¶ 25. Notably, this approach was advocated by the State in Parker, 119 So.3d at 996. The Parker majority rejected this view. Id. The majority decision in the present case renders the same result, finding that Miller requires our trial courts “to hold an individualized sentencing hearing” which may result in a sentence of life with eligibility for parole or life without parole. Maj. Op. ¶ 6.

¶ 26. Yet, the main holding of Miller is that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishment’.” Miller, 132 S.Ct. at 2460; U.S. Const, amend. VIII. This requires our Court to apply Miller to Mississippi’s relevant statutes in light of our own precedent. A sentencing hearing might be warranted if life without parole were a permissible sentence; but, based on our case law and the interplay between Mississippi’s sentencing statute and its parole statute, it is clear that Miller requires this Court to find Section 47 — 7—3(l)(h) unconstitutional as applied to juveniles convicted of murder. The majority, however, abrogates both the parole statute and the applicable sentencing statute. Miss.Code Ann. § 97-3-21; Miss.Code Ann. § 47-7-3(l)(h).

¶ 27. Finally, I find the majority’s holding to be a purely procedural pronouncement that fails to provide any meaningful solution. If, on remand, the trial court imposes “life imprisonment notwithstanding the provisions of Mississippi Code Section 47-7-3(l)(h),” the revised sentence will have no effect.

¶ 28. Our circuit courts (ie., the “sentencing authority”) have no authority to impose anything other than a life sentence upon a conviction of murder. Miss.Code Ann. § 97-3-21 (Rev.2006). Yet, the majority adds an additional sentencing option of life without parole. This holding is in clear conflict with the legislature’s clear and unambiguous declaration that the Parole Board “shall have exclusive responsibility for the granting of parole as provided by Sectionf ] 47-7-3.... ” Miss.Code Ann. § 47-7-5(3) (Rev.2011) (emphasis added). Because the executive branch, not the judiciary, has jurisdiction over parole matters, any language regarding parole in a sentencing order for murder constitutes “surplusage and in no way binds the parole board.... ” Brown v. State, 731 So.2d 595, 599 (Miss.1999). Therefore, to give any effect to Miller’s prohibition on mandatory sentences of life without parole for juveniles convicted of homicide offenses, this Court should declare Mississippi Code Section 47 — 7—3(l)(h) unconstitutional as applied to juveniles and leave the sentencing statute undisturbed. Accordingly, I dissent and would grant and render post-conviction relief to Jones regarding his Miller claim.

CHANDLER AND KING, JJ., JOIN THIS OPINION.

      . Mississippi Code Sections 97-3-19 and 97-3-21 have recently been amended by the Legislature to provide for three classifications of murder: capital, first-degree, and second-degree. See 2013 Miss. Laws Ch. 555 (S.B. 2377).

      . See Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) ("In general ... a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government.").

      . Miss.Code Ann. § 47-7-3(l)(h) (Rev.2011) (“No person shall be eligible for parole who is convicted except that an offender convicted of only nonviolent crimes ... 'nonviolent crimes’ means a felony other than homicide. ... ”).

      . In instructing the trial court on remand, this Court stated:
      After consideration of all circumstances required by Miller, the trial court may sentence Parker, despite his age, to "life imprisonment.’’ See Miller, 132 S.Ct. at 2469 (“[W]e do not foreclose a sentencer’s ability to make that judgment in homicide cases....”). However, if the trial court should determine, after consideration of all circumstances set forth in Miller, that Parker should be eligible for parole, the court shall enter a sentence of "life imprisonment with eligibility for parole notwithstanding the present provisions of Mississippi Code Section 47-7-3(l)(h).”

      . Our disposition in this case comports with the disposition of Miller's companion case, Jackson. Jackson was before the United States Supreme Court on collateral review. Upon remand, the Supreme Court of Arkansas remanded Jackson's case to the trial court for resentencing. Jackson v. Norris, - S.W.3d - (Ark.2013)

      . On July 8, 2013, Parker filed a motion for rehearing now pending before the Court. Mot. for Reh’g, Parker, 2011-KA-01158-SCT (Mot. No. 2013-2030).

      . The sentencing statute in effect at the time provided:
      Every person who shall be convicted of murder shall be sentenced by the court to imprisonment for life in the State Penitentiary.
      Every person who shall be convicted of capital murder shall be sentenced (a) to death; (b) to imprisonment for life in the State Penitentiary without parole; or (c) to imprisonment for life in the State Penitentiary with eligibility for parole as provided in Section 47 — 7—3(1 )(f).
      Miss.Code Ann. § 97-3-21 (Rev.2006). As noted by the majority, this statute has been amended, and, effective July 1, 2013, there will be three types of murder under Mississippi law: first-degree murder, second-degree murder, and capital murder. 2013 Miss. Laws WL No. 269 (S.B.2377). Under these 2013 revisions, Jones’s crime would be designated as "first-degree murder.” The only sentence for "first-degree murder” — imprisonment for life — will be the same as the sentence currently provided for murder. The corresponding parole statute was not amended. Miss.Code Ann. § 47-7-3 (Rev.2011).

      .Section 47-7-3(1) provides:
      Every prisoner who has been convicted of any offense against the State of Mississippi, and is confined in the execution of a judgment of such conviction in the Mississippi Department of Corrections for a definite term or terms of one (1) year or over, or for the term of his or her natural life, whose record of conduct shows that such prisoner has observed the rules of the department, and who has served not less than one-fourth (1/4) of the total of such term or terms for which such prisoner was sentenced, or, if sentenced to serve a term or terms of thirty (30) years or more, or, if sentenced for the term of the natural life of such prisoner, has served not less than ten (10) years of such life sentence, may be released on parole as hereinafter provided.... Miss.Code Ann. § 47-7-3(1) (Rev.2011) (emphasis added).

      . Likewise, in Brown v. State, 731 So.2d 595 (Miss.1999), this Court rejected the defendant’s argument that his sentencing order amounted to a mandatory minimum sentence without parole. The Court explained that ”[e]xclusive power over the granting and revoking of parole is vested in this State’s parole board.” Id. at 598 (citing Miss.Code Ann. § 47-7-5 (Supp.1998)). The opinion noted that, while "certain statutes specify that a trial court may or must impose a sentence 'without the possibility of parole’ ... this sentencing authority is separate and distinct from the parole board’s authority to grant or revoke parole.” Id. (citing Miss.Code Ann. § 97-3-21 (1994) (capital murder conviction permitting sentence of life without parole); Mitchell v. State, 561 So.2d 1037, 1039 (Miss.1990)). Citing Mitchell, 561 So.2d at 1039, the Court reiterated that “where the trial court has no statutory authority to limit parole, language purporting to do so is without legal effect.” Brown, 731 So.2d at 599.

      . The defendants in Miller, - U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407, also were convicted of capital murder.

      . For adult offenders, the death penalty is a third option, but the statute specifically prohibits a death sentence “for any murder committed before the defendant attained the age of eighteen (18) years.'' Id.

      . Otherwise, there is no distinction between a sentence of life and "life imprisonment notwithstanding the provisions of Mississippi Code Section 47-7-3(l)(h), as it presently provides.”


author: RANDOLPH, Presiding Justice, CHANDLER, Justice,

text:
    Carlos TAYLOR v. STATE of Mississippi.
    No. 2009-CT-00669-SCT.
    Supreme Court of Mississippi.
    Aug. 1, 2013.

      Office of State Public Defender by Erin Elizabeth Pridgen, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   ON WRIT OF CERTIORARI

RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Carlos Taylor appealed his sentence of life without parole, claiming that “the trial court abused [its] discretion in sentencing Taylor under Miss.Code Ann. Section 99-19-83, as the prosecution failed to prove all essential elements under the statute.” The Court of Appeals affirmed. Taylor v. State, 122 So.3d 742 (Miss.Ct.App.2011). We granted Taylor’s petition for writ of certiorari. We hold that the trial court did not abuse its discretion by sentencing Taylor under Section 99-19-83. Accordingly, we affirm Taylor’s sentence of life imprisonment without the possibility of parole.

PROCEDURAL HISTORY

¶ 2. In November 2007, Taylor was indicted for possession of a controlled substance in a prison facility and as a habitual offender under Mississippi Code Section 99-19-83 in cause number 2007-0328. Taylor also was charged in separate, consecutively numbered indictments for possession of a firearm by a felon and assault on a law-enforcement officer as a habitual offender (cause number 2007-0326) and possession of a firearm by a felon, felony evasion, and simple assault on a law-enforcement officer as a habitual offender (cause number 2007-0327). Prior to trial, Taylor filed a motion to dismiss all charges (cause numbers 2007-0326, 2007-0327, and 2007-0328) for failure to provide a fast and speedy trial, which the trial judge denied. A jury trial was held in cause number 2007-0328 on the charge of possession of a controlled substance in a prison facility. Taylor was convicted of that offense.

¶ 3. After the jury’s verdict was returned, the court held a hearing to determine whether Taylor should be sentenced as a recidivist under Mississippi Code Section 99-19-83. At the hearing, the State introduced certified copies of two separate, prior felony indictments. The State also introduced two separate sentencing orders, which revealed that Taylor had pleaded guilty to separate felonies, the sale of marijuana and sexual intercourse with a child under age. The sentencing orders revealed that Taylor was sentenced to three years’ imprisonment for the sale conviction and six years for the sex-crime conviction. The pen pack confirmed that Taylor had served the required terms. Taylor was given a reasonable opportunity to challenge the prosecution’s proof. Taylor offered no evidence to rebut or contest the State’s proof. The trial judge adjudicated in the sentencing order that “one (1) of [Taylor’s prior] felonies [was] a crime of violence.” Taylor was sentenced as a habitual offender to life imprisonment without parole.

¶ 4. Thereafter, Taylor filed in the trial court two post-trial motions: a “Motion for a New Trial or, in the Alternative, Judgment of Acquittal Notwithstanding the Verdict,” and a separate “Motion to Reduce Mandated Sentence,” arguing that his sentence “is grossly disproportionate to the maximum sentence of seven years he would have received had he not been [charged] as an habitual offender[,]” and that “a sentence of life without parole would be cruel and unusual punishment under these circumstances.” Both motions were denied. Taylor appealed, and his case was assigned to the Court of Appeals.

¶ 5. In his brief, Taylor asserted that “[t]he trial court erred in sentencing Taylor as a habitual offender under Miss.Code Ann. § 99-19-83. During the sentencing hearing, the prosecution presented evidence that Taylor was previously convicted of sex with an underage child.... ” Taylor argued that “[t]here is absolutely no implication that a violent act took place during the commission of this felony.” In its brief, the State argued that “[b]ased on the standard in Bandy, [] statutory rape, or sexual intercourse with a child underage, is per se violent.” In his reply brief, Taylor described the State’s position as being that “Taylor was correctly sentenced ... because Taylor’s previous conviction of sex with an underage child was per se a crime of violence.”

¶ 6. A good measure of confusion was injected into the appellate proceedings by the failure to furnish the Court of Appeals with a complete record of the evidence admitted at the sentencing hearing in the trial court. The “certified” copy of the pen pack presented to the Court of Appeals failed to include either the indictment or the sentencing order regarding Taylor’s felony sex crime. Even after the Court of Appeals ordered the parties to submit supplemental briefs addressing whether Taylor’s conviction for “sexual intercourse with a child under age” was a crime of violence, neither the appellant nor the State discovered the oversight or argued that the documents were not part of the record. The Court of Appeals concluded that Taylor’s prior sex-crime conviction was a crime of violence and affirmed Taylor’s sentence.

¶ 7. Taylor filed a petition for writ of certiorari, claiming that the Court of Appeals’ holding conflicts with prior decisions of this Court. The petition reasserted that the pen pack did not include the sentencing order for Taylor’s conviction of “sexual intercourse with a child under age,” while at the same time asking this Court to adopt the Court of Appeals’ dissent. (Emphasis added.) After granting Taylor’s petition, we held oral argument, during which the attorneys for both parties asserted that the record did not include the sentencing order for the felony conviction for the sex crime against an underage child. Recognizing that all evidence considered by the trial court was significant for this Court’s determination of whether Taylor was lawfully sentenced as a habitual criminal, this court directed the Clerk of Court to obtain a duplicate certified copy of the pen pack. The copy furnished in response contained the indictment charging Taylor with a prior sex offense and the sentencing order. The indictment alleged that Taylor, “being a person over eighteen (18) years of age ... did unlawfully, wilfully, and feloniously have sexual intercourse with [Jane Doe], a child under the age of fourteen (14) years.” The sentencing order reads that Taylor entered a plea of guilty to “sexual intercourse with a child underage.” Thus, we know with certainty that the previous conviction at issue was for “sexual intercourse with a child under age.”

LAW AND ANALYSIS

I. Standard of Review

¶ 8. “It is well-settled in this state that sentencing is within the complete discretion of the trial court. ‘Further, the general rule in this state is that a sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute.’ ” Long v. State, 52 So.3d 1188, 1195 (Miss.2011) (citations omitted). “The trial court’s rulings are presumed correct, and this presumption will prevail unless the record shows otherwise.” Hardy v. Brock, 826 So.2d 71, 76 (Miss.2002) (citations omitted). Under an abuse-of-discretion standard of review, “[t]he trial court’s decision will be affirmed unless there is a ‘definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.’ ” Plaxico v. Michael, 735 So.2d 1036, 1039 (Miss.1999) (citation omitted).

¶ 9. This Court has provided that: [w]e must decide cases on the facts shown by the record, not by assertions of fact made in briefs or suggestions of error, however sincere counsel may be in those assertions. Facts asserted to exist ought to, and must, be definitely proved and placed before us by a record thereof certified as required by law; otherwise we cannot, in law, know them.

Alexander v. Hancock, 174 Miss. 482, 164 So. 772 (1935), on suggestion of error, 174 Miss. 482, 165 So. 126 (1936). “Stated differently, our task on appeal is to review the actions and decisions of the trial court judge within the context of the situation as it existed at that time.” Phillips v. State, 421 So.2d 476, 478 (Miss.1982) (addressing Alexander, 165 So. at 126).

II. The trial court did not abuse its discretion by sentencing Taylor as a violent habitual offender under Mississippi Code Section 99-19-83.

¶ 10: “At the bifurcated hearing required under the recidivist statutes, the State must prove, beyond a reasonable doubt, that the defendant meets the requirements for sentencing as a habitual offender. The defendant has the right to be heard at this hearing.” Bandy, 495 So.2d at 491 (citing Seely v. State, 451 So.2d 213, 215 (Miss.1984)). For a defendant to be sentenced under Section 99-19-83, the State must prove that he was:

convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and ... 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 ... any one (1) of such felonies shall have been a crime of violence....

Miss.Code Ann. § 99-19-83 (Rev.2007). This Court has explained that:

for determining the defendant’s status as an habitual offender, the prosecution must show and the trial court must determine that the records of the prior convictions are accurate, that they fulfill the requirements ..., and that the defendant sought to be so sentenced is indeed the person who was previously convicted.
Once the above mentioned factors have been ascertained, the trial court is not required to go beyond the fact of the prior convictions sought to be used in establishing the defendant’s status as an habitual offender.... [T]he trial court must not be placed in position of “retrying” the prior case. Certainly any such frontal assault upon the constitutionality of a prior conviction should be conducted in the form of an entirely separate procedure solely concerned with attacking that conviction.

Bandy, 495 So.2d at 491 (citing Phillips v. State, 421 So.2d 476, 481 (Miss.1982)).

¶ 11. We have further provided that “[a]ll that is required is that the accused be properly indicted as an habitual offender ...; that the prosecution prove the prior offenses by competent evidence ...; and that the defendant be given a reasonable opportunity to challenge the prosecution’s proof.” Keyes v. State, 549 So.2d 949, 951 (Miss.1989) (citations omitted). Each of these requirements was satisfied in the ease sub judice. All agree that Taylor was indicted as a habitual offender. The sentencing orders presented by the State were competent evidence of Taylor’s separate felony convictions for sale of marijuana and sexual intercourse with a child under age. McIlwain v. State, 700 So.2d 586, 589 (Miss.1997) (“We have regularly upheld sentences under the habitual criminal statutes where the proof of prior convictions was made by certified copies of the judgments of conviction.[] This accords -with the basic principle that the best evidence of a conviction is the judgment of conviction.” (citations omitted)). Moreover, “[w]e have repeatedly held that orders of a court having competent jurisdiction are presumed valid.” Farris v. State, 764 So.2d 411, 422 (Miss.2000) (citations omitted). “Certified copies of the indictments and sentencing orders in these prior convictions were introduced into evidence at the sentencing hearing. [Neither the majority nor Taylor] dispute[s] their accuracy.... [TJhese records constitute sufficient evidence that he was a habitual offender within this statute.” Moore v. State, 681 So.2d 805, 805-06 (Miss.1994). Finally, Taylor had a reasonable opportunity to challenge the sufficiency of the evidence presented by the State at the sentencing hearing, but he declined to do so. Thus, the State presented un-contradicted, competent evidence for Taylor to be sentenced under Section 99-19-83, and the trial court did not abuse its discretion by doing so.

¶ 12. The dissent opines that “the evidence offered to identify the crime for which Taylor was convicted was vague and inconsistent.” (Dissent at ¶ 32). There is no vagueness or inconsistency in the sentencing order-Taylor was convicted of “sexual intercourse with a child under age.”

¶ 13. The trial court did not err by concluding that Taylor’s sex-crime conviction was a crime of violence. In McQueen v. State, 473 So.2d 971 (Miss.1985), this Court concluded that the term “crime of violence” is not .unconstitutionally vague, citing authorities from numerous jurisdictions:

“[Violence is a general term and includes all sorts of force.”
“Violence” is force, physical force; force unlawfully exercised. Bouvier in his Law Dictionary, 2 Bouvier Law Dictionary, Rawle’s 3rd Rev., p. 3402, defines “violence” as: “The abuse of force. That force which is employed against common right, against the laws, and against public liberty.”
“Violence” is a relative term. No particular degree of force is required to constitute violence. Violence is broadly defined in Webster’s New International Dictionary, 2nd ed., as “the exertion of any physical force considered with reference to its effect on another than the agent.” It is not necessary that the impact be of sufficient force to inflict damage.
The terms “violence” and “force” are synonymous when used in relation to assault, and include any application of force even though it entails no pain or bodily harm and leaves no mark.

McQueen, 473 So.2d at 972-73 (emphasis added) (citations omitted). Sexual intercourse between an underage child and an adult clearly is a crime of violence, for sexual intercourse cannot occur without the exertion of some degree of physical force, even if it entails no pain or bodily harm and leaves no mark. Under Mississippi law, such force is “unlawfully exercised” and is “against the law.”

¶ 14. The same is true for any other sex-crime victim who lacks the capacity to consent. It matters not whether a victim is a ninety-year-old Alzheimer’s patient or a one-day-old infant, whether he or she is a mentally handicapped person or a child. No overt act of resistance to force or violence, no matter how slight, is required for sex crimes against such defenseless victims to be crimes of violence.

¶ 15. Sexual intercourse with a child under age is forceful, because, by operation of law, the child is unable to consent. See Phillipson, 943 So.2d at 672 (“The age of a minor is [a] complete bar to the legal exercise of consent to sexual intercourse.”); Collins, 691 So.2d at 924 (‘“[t]he child was under the age of consent, and it was not material whether the rape was accomplished by force or violence and against the will of the child.’ Consent is no defense to the charge.” (quoting McBride, 492 So.2d at 584) (emphasis added)); Brooks v. State, 242 So.2d 865, 867 (Miss.1971) (“It is immaterial whether the rape was accomplished by force or violence or against the will of the child, because she was under the age of consent.” (emphasis added)); Wilson v. State, 221 So.2d 100, 103 (Miss.1969) (where the victim in a rape case was incapable of consent, “it was not necessary to prove ‘actual force’ beyond the mere force of penetration so that actual resistance was not necessary to constitute the offense”). Federal courts have held the same. United States v. Herrera, 647 F.3d 172, 180 (5th Cir.2011) (“because a minor lacks legal capacity to consent to sexual relations, any such relations are ‘foreible’ ”) (citing United States v. Remoi, 404 F.3d 789, 795 (3d Cir.2005)).

¶ 16. Further, this Court consistently has held that sex crimes against underage children are different. In Long v. State, 52 So.3d 1188, the defendant previously had been convicted of two counts of sexual assault upon a child and one count of aggravated incest with his own daughter when she was seventeen years old. We found that at least one of the prior convictions was for a crime of violence, citing U.S. v. Vigil, 334 F.3d 1215 (10th Cir. 2003), as follows:

“psychological brutilization is inherent in an offense like [aggravated incest] and incest and rape are in the same category as both being crimes of violence inherently whether or not raw force is used.” The Vigil court found that even consent by the child-victim would not eliminate the risk of physical harm and that the age of the victim was immaterial.

Long, 52 So.3d at 1196 (citing Vigil, 334 F.3d at 1220, 1223-24) (emphasis added).

¶ 17. The language in Long is consistent with our holding in Bandy v. State, 495 So.2d 486 (Miss.1986). Bandy was charged with gratifying his lust by touching a child under the age of fourteen years. Bandy, 495 So.2d at 488. He was indicted as a habitual offender under Section 99-19-83, based on prior convictions for indecency with a child under Texas law and assault with intent to commit a felony, to wit: sodomy under Iowa law. Id. Bandy made the same argument as Taylor does today, by challenging his sentence under Section 99-19-83 that “[t]he proof of prior convictions for enhancement did not sustain the charge.” Id. at 487. At the habitual-offender hearing in trial court, Bandy testified that neither of the previous crimes was violent. Id. at 490. A review of the record reveals that Bandy testified that his previous sodomy conviction was not a violent crime, because “the information ... where it mentions assault, was served to me ... as being simple assault nonviolent by touching, and that is what assault they mean. There was no violence.” He further testified that “[t]he charges I had in ... Iowa was fondling. Which was termed to sodomy because of oral copulation of the penis and it was not assault.” The trial court found that both prior convictions “were per se violent, and that ‘beyond a reasonable doubt,’ Bandy could be sentenced under § 99-19-83.” Id. at 490. In Bandy, this Court approvingly cited a California Court of Appeals holding that “the word ‘violence’ ... applies to any criminally lewd act upon the body of the witness child.” Bandy, 495 So.2d at 492 (quoting People v. Brown, 262 Cal.App.2d 378, 68 Cal.Rptr. 657 (1968)) (emphasis added). Bandy explicitly declared that “[i]n the absence of a legislative standard, we adopt the rationale that a separate standard of determining violence applies when the victim is a child.” Bandy, 495 So.2d at 492 (emphasis added).

¶ 18. In Lee v. State, 322 So.2d 751 (Miss.1975), we held that “intercourse with a female unable to consent because of tender years ... establishes the common law crime of rape, the essential element being the inability to consent rather than the requirement of force.” Lee, 322 So.2d at 752 (emphasis added). In 1997, we applied the same standard when addressing a charge of capital rape. Collins, 691 So.2d at 924. Collins held that “capital rape does not require that the act be ‘forcefully done against the will of the child.’. Rather, ... ‘[t]he child was under the age of consent, and it was not material whether the rape was accomplished by force or violence and against the will of the child.’ Consent is no defense to the charge.” Id. (quoting McBride, 492 So.2d at 584) (emphasis added).

¶ 19. Long addresses the psychological harm inherent in sex crimes against children and the immateriality of the child’s consent. Long, 52 So.3d at 1196. All three of Long’s previous convictions involved felony sex crimes by an adult defendant upon a minor. Sexual intercourse with an underage child is the conviction we consider today. If incest — sexual penetration with a person’s own seventeen-year-old daughter — was the violent crime in Long, then sexual intercourse with a child who is not the daughter of the defendant also is violent, for it is the act of sexually penetrating a child that makes either a crime. The other crimes referenced in Long were sexual assaults. If sexual assault was the violent crime in Long, then it follows that sexual intercourse with an underage child (which meets all the elements of sexual battery) also is a violent crime.

¶ 20. Taylor’s argument that the decision of the Court of Appeals conflicts with this Court’s decision in Hughes v. State, 892 So.2d 203 (Miss.2004), is misplaced. Taylor argues that the Court of Appeals’ decision conflicts with a remark in Hughes that “there may be instances of consensual, nonviolent sex which nonetheless violate the statutory rape laws.... ” Hughes, 892 So.2d at 211. As the Court of Appeals astutely recognized, this remark from Hughes is dicta and cannot control our decision today. Taylor v. State, 122 So.3d 742, at 744 (Miss.Ct.App.2011). Hughes was before this Court on appeal of a conviction for kidnapping, rape, and murder of a sixteen-year-old. Hughes, 892 So.2d at 208. The quoted statement appears in the Hughes Court’s analysis of the admission at trial of the defendant’s prior conviction for raping a seven-year-old girl under Arkansas law. Id. at 211. Neither the conviction on appeal nor Hughes’s prior conviction was under Mississippi’s statutory-rape law. In other words, this Court did not have under consideration a case of statutory rape. It follows that the statement that some consensual, nonviolent sex acts could violate Mississippi’s statutory-rape statute was not essential to the determination of any issue before the Hughes Court. The statement does “not embody the resolution or determination of the court,” and “is not decisive of, nor precedent for, the case at bar.” Deer Island Fish & Oyster Co. v. First Nat’l Bank of Biloxi, 166 Miss. 162, 146 So. 116, 119 (1988); see also Lee v. Mem’l Hosp. at Gulfport, 999 So.2d 1263, 1266, n. 3 (Miss.2008) (“[T]his Court has held on more than one occasion that a statement which qualifies as dictum does not have a binding effect”) (citing Collins v. McMurry, 539 So.2d 127, 130-31 (Miss.1989)); City of Jackson v. Wallace, 189 Miss. 252, 196 So. 223, 225 (1940) (“Language beyond the litigation in which it is used is limited to the facts involved in the litigation, and all beyond that, necessary or proper for the construction of the particular subject matter before the Court, is mere dictum — not decision.... [C]onsequently[,] the expressions beyond the necessities of the case are mere dicta.”); Aetna Ins. Co. v. Commander, 169 Miss. 847, 153 So. 877, 879-80 (1934) (declaring that an earlier decision was “not a precedent here for the ... reason that the decision therein on the question here under consideration was not necessary for, and did not affect, the decision of the case”). Hughes “has been carefully considered, and we are of opinion that the language relied on ... formed no part of the real decision of the court.” State v. Tingle, 103 Miss. 672, 60 So. 728, 729 (1913). Accordingly, Hughes does not control our decision today.

¶ 21. Neither does the result of Brown v. State, 102 So.3d 1087 (Miss.2012) (Dissent at ¶ 28), control our decision today. However, we can heed the language from Brown that when “some other provision of law ... clearly and unambiguously requires us to [label a crime ‘violent,’]” we should do it. Brown, 102 So.3d at 1089. In Brown, this Court considered whether the offense of burglary of a dwelling was a crime of violence.

¶ 22. Prior to Brown, no body of law had developed regarding whether burglary is a crime of violence. In contrast, preceding the case sub judice, this Court explicitly has established that a separate standard of violence applies to sex crimes against children, as discussed supra. Thus, a body of law developed regarding sex crimes against children, compared to the void that existed regarding a crime against property, the issue in Brown. We stand on our predecessors’ holdings that sex crimes against underage children are violent to provide us with guidance. Our caselaw clearly and unambiguously provides that sexual intercourse with an underage child is a crime of violence.

¶ 23. Moreover, our Legislature consistently has provided that sex crimes are crimes of violence in other Mississippi statutes addressing the penalty or punishment to be imposed for crimes of violence. See Miss.Code Ann. § 47-7-3(l)(h) (Rev.2011) (addressing parole eligibility and defining “nonviolent crime” as “a felony other than ... sex crimes ... ”); Miss.Code Ann. § 97-1-5(2) (Supp.2012) (“[f]or the purposes of [sentencing upon conviction of accessory after the fact], ‘violent crime’ means ... sex crimes ... ”). Thus, the Legislature unambiguously has declared that sex crimes are crimes of violence, consistent with our holdings.

¶ 24. Our holdings that sex crimes against underage children are crimes of violence also comport with the holdings of courts in other states. In State ex rel. Spaulding v. Watt, 188 W.Va. 124, 423 S.E.2d 217 (1992), the West Virginia Supreme Court noted that “the word ‘violence’ in our ... statute is not limited by the adjective ‘physical.’ There can be no dispute that even in the absence of any significant physical trauma, sexual assaults on young children result in severe emotional and psychological harm.” Watt, 423 S.E.2d at 219. The Court held that:

[W]e decline to resolve the question presented here solely on the ground that physical violence is not an element of the crimes of which [the defendant] was convicted. The fact that the State elected to prosecute ... sexual assault ... based on the age of the children rather than upon a theory of forcible compulsion, does not mean that the children were not the victims of violence.

Id. at 220. Accordingly, the Watt Court concluded that the sexual assault of children involved “violence to a person” for purposes of West Virginia’s post-conviction bail statute. Id.

¶ 25. In Jarrett v. State, 166 Ind.App. 19, 338 N.E.2d 794 (1975), the Indiana Court of Appeals considered whether the intent to have intercourse with a minor satisfied the assault requirement of intent to commit a violent injury. The Court held that, “where the female is incapable of consent, the attempt to have intercourse satisfies the requirement ... that the attempt be one to commit ‘a violent injury.’ ” Jarrett, 333 N.E.2d at 796. In State v. Sprouse, 719 S.E.2d 234 (N.C.Ct.App.2011), the North Carolina Court of Appeals held that “an act of sexual intercourse with a person deemed incapable of consenting as a matter of law is a violent act.” Sprouse, 719 S.E.2d at 242 (quoting State v. Clark, 211 N.C.App. 60, 714 S.E.2d 754 (2011) (holding that first-degree rape, which, under North Carolina law, involves a victim under the age of thirteen years, was a violent act)).

CONCLUSION

¶ 26. Because Taylor’s prior conviction was for sexual intercourse with an underage child, we conclude that, under the facts presented in this case, it was a crime of violence. Thus, the trial court did not abuse its discretion by sentencing Taylor under Section 99-19-83. Accordingly, we affirm the result reached by the Court of Appeals and Taylor’s sentence of life imprisonment without the possibility of parole.

¶ 27. THE SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, AFFIRMED.

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

CHANDLER, Justice,

dissenting:

¶ 28. I respectfully dissent. In this Court’s most recent pronouncement on crimes that are per se violent under Mississippi Code Section 99-19-83, we held that “we will not place a ‘violent crime’ label on a crime where there was no proof of a violent act, unless the statute itself— or some other provision of law (such as the definitions within the chapter that include the statute) — clearly and unambiguously requires us to do so.” Brown v. State, 102 So.3d 1087, 1089 (Miss.2012). Taylor’s crime of “sexual intercourse with a child underage” is not defined by any statute identified by the State or by this Court. The majority errs by deeming Taylor’s sex crime to be one of violence in the absence of an applicable statute. I would hold that, because the record established only that Taylor previously had served six years for some unknown sex crime, the State failed to prove beyond a reasonable doubt that Taylor had a prior conviction of a crime of violence. And because the State bore the burden of proof beyond a reasonable doubt, Taylor had no burden to refute the State’s evidence. Due to this failure of proof, I would reverse and remand for resentencing under Mississippi Code Section 99-19-81.

¶ 29. I begin by clarifying that the question of whether a prior felony is a per se “crime of violence” under Section 99-19-83 is a question of law subject to de novo review, not a matter within the trial court’s discretion. Brown, 102 So.3d at 1089. It is well settled that the State must prove habitual-offender status beyond a reasonable doubt before the trial court can impose an enhanced sentence under Mississippi Code Sections 99-19-81 and 99-19-83. See e.g., Gilbert v. State, 48 So.3d 516, 524-25 (Miss.2010) (citing Dalgo v. State, 435 So.2d 628, 630-31 (Miss.1983)); Seely v. State, 451 So.2d 213, 215 (Miss.1984) (“The State has the same burden of proof as to the habitual offender portion of the indictment as it has on the principal charge.”). In most cases, the State can meet this burden by providing certified copies of indictments and sentencing orders. Duplantis v. State, 708 So.2d 1327, 1347 (Miss.1998) (Moore v. State, 631 So.2d 805, 806 (Miss.1994)). Of course, this assumes that the indictments and sentencing orders clearly and correctly reflect the nature of the prior offenses. See Brown v. State, 222 Miss. 863, 77 So.2d 694 (1955) (reversing conviction of unlawful possession of intoxicating liquors, second offense, based on inconsistencies in the judgment of conviction for first offense). Here, the trial court found that Taylor had been previously convicted of a violent crime for the purposes of habitual-offender sentencing. The Court of Appeals stated that the trial court had determined that Taylor’s prior crime was “statutory rape,” and found that statutory rape is a per se violent crime. However, the record reveals that the State failed to prove that Taylor’s crime was statutory rape or any other specific crime defined by statute.

¶ 30. The indictment for the prior sex offense alleged that Taylor, “being a person over eighteen (18) years of age ... did unlawfully, wilfully, and feloniously have sexual intercourse with [Jane Doe], a child under the age of fourteen (14) years.” Thus, the charge alleged statutory rape, a violation of Mississippi Code Section 97-3-65(l)(b), and, because Taylor was nineteen at the time, the potential penalty ranged from twenty years to life imprisonment. Miss.Code Ann. § 97-3-65(3)(c) (Rev. 2006). However, the court order reflects that Taylor was sentenced to six years’ imprisonment, referencing a guilty plea to “sexual intercourse with a child underage.” No subsection of the statutory-rape law authorizes a six-year sentence when the offender is eighteen years of age or older.

¶ 31. The records custodian for the Mississippi Department of Corrections (MDOC) and the Leflore County Sheriff testified that the prior conviction was for “sexual intercourse of a child underage.” The sheriff once described the offense as “sexual assault” but stated that he did not know any of the underlying facts. Throughout the hearing, the prosecutor was the only person to use the term “statutory rape,” at one point describing the conviction as “basically statutory rape.” Finally, when imposing the sentence, the trial judge referred to the prior conviction as a “sex crime,” and the sentencing order simply stated that Taylor was a habitual criminal as defined by Mississippi Code Section 99-19-83, without identifying his prior convictions.

¶ 32. As noted above, the documents in the pen pack establish that Taylor had pleaded guilty to a crime designated “sexual intercourse with a child under age” or “sex offense,” and none of the documents cited a particular statute. The indictment related to the present conviction, possession of marihuana in a correctional facility, charged Taylor as an habitual offender, and alleged that he had been “previously convicted of the felony crime of statutory rape, a crime of violence.” Although the indictment sufficiently alleged “the nature or description of the offense,” the evidence offered to identify the crime for which Taylor was convicted was vague and inconsistent. All of the relevant evidence described a conviction for “sex with an underage child” or a “sex offense,” and Taylor’s sentence of six years’ imprisonment does not fall within any of the permissible ranges for statutory rape. Miss. Code Ann. § 97-3-65.

¶ 33. It is true that six years’ imprisonment is a permissible sentence for sexual battery. Miss.Code Ann. § 97-3-101(1) (Rev.2006) (providing sentence of not more than thirty years’ imprisonment for conviction of sexual battery under Mississippi Code Section 97-3-95(1)(a),(b), or (2)). But this punishment is limited to “sexual penetration with (a) another person without his or her consent; (b) a mentally defective, mentally incapacitated or physically helpless person,” or “a child under the age of eighteen (18) years if the person is in a position of trust or authority over the child.” Miss.Code Ann. § 97-3-95(l)(a),(b), and (2) (Rev.2006). “Sexual intercourse with a child under age,” does not describe precisely the elements of any of these crimes. Sexual battery is not a lesser-included offense of statutory rape, for which Taylor was indicted. For these reasons, Taylor’s crime cannot be characterized as sexual battery.

¶ 34. Taylor’s status as a habitual offender under Section 99-19-83 was contingent upon proof beyond a reasonable doubt of a prior conviction of a crime of violence. The most the State proved was that Taylor had pleaded guilty to violating an unspecified provision of Mississippi’s sex-offense statutes. Because the State bore the burden of proof, Taylor had no burden to refute the State’s evidence. Lacking sufficient clarity, the proof did not establish that Taylor’s prior convictions warranted a sentence of life without parole pursuant to Mississippi Code Section 99-19-83.

¶ 35. This Court has held that “we will not place a ‘violent crime’ label on a crime where there was no proof of a violent act, unless the statute itself — or some other provision of law (such as the definitions within the chapter that include the statute) — clearly and unambiguously requires us to do so.” Brown, 102 So.3d at 1089. Because the State did not prove that Taylor was convicted of a specific crime, there is no applicable criminal statute, and this Court is unable to examine the elements of the specific crime to determine whether that crime is per se violent. The majority’s blanket categorization of all sex crimes involving anyone underage as per se violent crimes doubtless will result in unintended consequences as the rule is applied in particular cases. Because the State did not prove beyond a reasonable doubt that Taylor had a prior conviction of a violent crime, I would reverse and remand for resentencing under Mississippi Code Section 99-19-81.

DICKINSON, P.J., KITCHENS AND KING, JJ., JOIN THIS OPINION.

      . Bandy v. State, 495 So.2d 486 (Miss.1986).

        . See Miss. R. Evid. 803(22) (judgments of conviction are not excluded by the hearsay rule, and are admissible to prove any essential fact).

      . Numerous statutes prohibit sexual contact between an adult and a minor. See Miss. Code Ann. § 97-3-65 (Rev.2006) (statutory rape); Miss.Code Ann. § 97-3-95 (Rev.2006) (sexual battery); Miss.Code Ann. § 97-5-23 (Rev.2006) (fondling of a child); Miss.Code Ann. § 97-5-24 (Rev.2006) (sexual involvement of a school employee over the age of eighteen years with a student under the age of eighteen years); Miss.Code Ann. § 97-5-41 (Rev.2006) (carnal knowledge of certain children). This Court also clearly has provided that a child cannot consent to engage in sexual activity with an adult. Phillipson v. State, 943 So.2d 670, 672 (Miss.2006); Collins v. State, 691 So.2d 918, 924 (Miss.1997); McBride v. State, 492 So.2d 581, 584 (Miss.1986).

      . Appellate records for criminal cases in which the mandate was handed down more than ten years ago are available to the public at the Mississippi Department of Archives and History.

      . See also People v. Parker, 74 Cal.App. 540, 545, 241 P. 401 (Cal.Ct.App.1925) ("The reason is that in such cases the female cannot consent to the assault. The law resists for her.”) (emphasis added).

      . It would be absurd to find incest — but not sexual intercourse with a child who is not the daughter of the defendant — violent, the only distinction being the existence of a familial relationship. It would be equally absurd to find sodomy, but not sexual intercourse with an underage child, to be a crime of violence.

      . The dissent concedes that six years' imprisonment is a permissible sentence for a conviction of sexual batteiy for "sexual penetration with (a) another person without his or her consent!,]” but suggests that the elements are not met. (Dissent at ¶ 33). "A person is guilty of sexual battery if he or she engages in sexual penetration with ... [a]nother person without his or her consent.” Miss.Code Ann. § 97 — 3—95(l)(a) (Rev.2006). "Sexual intercourse” meets the element of sexual penetration, and the law supplies the absence of consent when the victim is an underage child.

        .Cf. Bandy, 495 So.2d 486 (this Court’s finding that sex crimes against children are crimes of violence was essential to its adjudication of the defendant’s assignment of error that the State had failed to prove that he previously had been convicted of a crime of violence).

      . See URCCC 11.03 ("In cases involving enhanced punishment for subsequent offenses under state statutes ... [t]he indictment must allege with particularity the nature or description of the offense constituting the previous convictions....").

      . See, e.g., Taylor v. State, 122 So.3d 742, at 751 (Miss.Ct.App.2011) (Roberts, J., dissenting).


author: WALLER, Chief Justice,

text:
    Kathy ALLEGREZZA v. GREENVILLE MANUFACTURING COMPANY and The Travelers Insurance Company.
    No. 2011-CT-00090-SCT.
    Supreme Court of Mississippi.
    Sept. 12, 2013.
    Rehearing Denied Sept. 26, 2013.

      Lawrence J. Hakim, Batesville, attorney for appellant.
    Marjorie T. O’Donnell, Oxford, attorney for appellee.
   ON WRIT OF CERTIORARI

WALLER, Chief Justice,

for the Court:

¶ 1. Kathy Allegrezza filed separate workers’ compensation claims against her employer Greenville Manufacturing alleging an injury to her upper extremities (carpal tunnel syndrome) in 1997 and a separate injury to her back in 1998. An administrative law judge (ALJ) granted disability benefits for Allegrezza’s carpal-tunnel-syndrome claim but found that Alle-grezza had not proven a loss of wage-earning capacity to support her back-injury claim. The administrative judge also denied Allegrezza’s claim to amend her petition to controvert to include a psychological-overlay claim, finding that Allegrez-za had been treated by physicians outside the proper chain of referral. The Mississippi Workers’ Compensation Commission affirmed the administrative judge’s findings regarding Allegrezza’s carpal-tunnel-syndrome claim and the denial of the motion to amend. However, the Commission found that Allegrezza had sustained some loss of wage-earning capacity due to her back injury and awarded her disability benefits for that injury. Allegrezza appealed to the Circuit Court of Washington County, which affirmed the Commission’s decision in all respects. She then appealed to this Court, and the case was assigned to the Court of Appeals. The Court of Appeals affirmed the Commission’s decision, finding that substantial evidence supported each of the Commission’s findings. This matter is now before this Court on Allegrezza’s petition for writ of certiorari.

FACTS

¶ 2. Allegrezza began working for Greenville Manufacturing in 1993, working in both the sewing department and the quality control department. In 1997, she received a transfer to the “cutter department.” After her transfer, Allegrezza began to experience pain and swelling in her hands and wrists and sought treatment from her primary physician Dr. Joe Pul-liam. Greenville and Travelers also referred her to Dr. Jim Adams for an evaluation. Dr. Adams then referred Allegrezza to Dr. Don Carpenter and Dr. Aubrey Lucas, a hand specialist. Tests performed by Dr. Carpenter revealed that Allegrezza suffered from bilateral carpal tunnel syndrome. Dr. Lucas confirmed the diagnosis and recommended that Allegrezza undergo surgery. Allegrezza sought evaluations from Dr. Larry Field and Dr. Shelby Brantley, who both confirmed the diagnosis of bilateral carpal tunnel syndrome and recommended surgery... Dr. Lucas performed bilateral carpal-tunnel releases on Allegrezza on January 8, 1998, and Alle-grezza returned to work on modified duty on January 12,1998.

¶ 3. On January 21, 1998, while still on modified duty, Allegrezza was walking through Greenville’s plant when she tripped over a wooden pallet and fell on her left side. She returned to Dr. Lucas the following day for him to examine her wrists after the fall. Dr. Lucas indicated that Allegrezza’s fall did not change or worsen the condition of her wrists. Dr. Lucas placed Allegrezza at maximum medical improvement (MMI) on April 2, 1998, and assigned a five-percent impairment rating to each upper extremity.' Dr. Lucas released Allegrezza to return to her regular work duties on April 3, 1998. Dr. Lucas’s final restrictions stated that Alle-grezza could return to regular duty for two hours per day, but that any repetitive work should be restricted for the remaining six hours of the work day.

¶ 4. Following her fall, Allegrezza was evaluated by Dr. Jim Adams, and x-rays were performed. She then returned to Dr. Pulliam, her primary physician, for another examination. Dr. Pulliam- diagnosed Allegrezza with a back strain and referred her to Dr. Rodney Frothingham, a neurosurgeon. Dr. Frothingham performed an MRI on Allegrezza. Based on his examination and the MRI results, Dr. Frothingham indicated that Allegrezza was not a candidate for surgery. Dr. Froth-ingham then referred Allegrezza to Dr. Jo Travis, an anesthesiologist. Dr. Travis treated Allegrezza for a short time but could not provide her any relief from her back pain. Dr. Travis then referred Alle-grezza to Dr. David Collip, a physician specializing in physical medicine and rehabilitation. Dr. Collip evaluated Allegrezza and referred her to several other specialists for various tests and treatments, including a lumbar myelogram/CT scan. The myelogram revealed no abnormalities and essentially read as normal. Based on these results, Dr. Collip indicated that Al-legrezza’s complaints were mostly subjective and were not substantiated by her medical records.

¶ 5. Greenville Manufacturing also had Allegrezza evaluated after her back injury. On August 11, 1998, Dr. John Brophy performed a physical examination of Allegrez-za and agreed with Dr. Frothingham’s recommendations for treatment. Dr. Brophy indicated that it was his opinion that the source of Allegrezza’s back pain was sa-croiliitis with possible mild lumbar radicu-lopathy. Dr. Brophy later testified in his deposition that, based on the results of Allegrezza’s myelogram/CT scan, Allegrez-za was not a candidate for surgery.

¶ 6. After reviewing the results of Alle-grezza’s myelogram/CT scan, Dr. Collip referred Allegrezza to Christopher Men-hard, a physical therapist. Menhard performed a functional capacity evaluation (FCE) of Allegrezza on November 3, 1998, and later performed an on-site job analysis. Based on these evaluations, Menhard indicated that it was his opinion that Alle-grezza could return to work and perform a light-to-light-medium duty job. He stated that Allegrezza could perform her job as a cutter because it was a medium-to-light-medium duty job and because there was no forceful repetition in her movements. Dr. Collip examined Allegrezza again on November 19, 1998, and placed Allegrezza at MMI on that date, assigning a ten percent permanent partial impairment rating to her body as a whole. He anticipated that no further treatment or work-up should be considered appropriate, and that she could return as needed.

¶ 7. After Dr. Collip released her to return to work, Allegrezza returned to Dr. Pulliam, who then referred her to Dr. Michael Steuer, another anesthesiologist and pain specialist. Dr. Steuer placed Alle-grezza on pain medication and referred her to Dr. Adam Lewis, a neurosurgeon in Jackson. Dr. Lewis then sent Allegrezza to Dr. Greg Wood to evaluate her candidacy for lumbar fusion surgery. Dr. Wood examined Allegrezza on July 1, July 14, and July 21 of 1999. Dr. Wood performed a discogram on Allegrezza, as well.as another myelogram/CT scan. Based on the results of these tests, Dr. Wood indicated that Allegrezza was not a surgical candidate. Nevertheless, Dr. Lewis performed surgery on Allegrezza in September of 1999, releasing her to Dr. Steuer for postoperative treatment. Allegrezza testified that this surgery provided her with significant relief from her back pain. Dr. Steuer also referred Allegrezza to Dr. Margaret Cassada, a board-certified psychiatrist. Dr. Cassada opined that Allegrezza suffered from depression and problems with her psychosocial environment.

¶ 8. The record reflects that Allegrezza’s last day at work at Greenville Manufacturing was February 9, 2000. Allegrezza claimed that she was terminated because she could not perform her job duties. However, the record is not clear whether Allegrezza actually was terminated. On subsequent job applications, Allegrezza indicated that she had left Greenville Manufacturing because she had been placed on medical leave due to her injuries.

STATEMENT OF THE CASE

¶ 9. Allegrezza filed petitions to controvert with the Commission, claiming that she had sustained compensable injuries to her upper extremities and her back. She later moved to amend her petition to allege a claim of psychological overlay. Following a hearing, the ALJ found that Alle-grezza’s carpal-tunnel claim was compen-sable and awarded Allegrezza temporary total disability benefits for a period of six weeks, as well as permanent partial disability benefits for a period of fifty weeks. The ALJ also found that Allegrezza had suffered a compensable back injury, but that she had failed to demonstrate a loss of wage-earning capacity. Thus, the ALJ awarded Allegrezza no benefits for her back injury. Finally, the ALJ found that the treatments provided by Dr. Steuer, Dr. Cassada, and Dr. Lewis were “without the chain of referral, are not the financial responsibility of the employer or carrier, and are not reasonable and necessary to the process of claimant’s recovery.” Accordingly, the ALJ denied Allegrezza’s motion to amend her petition to include the psychological-overlay claim.

¶ 10. Allegrezza then appealed the ALJ’s decision to the Commission. The Commission affirmed the ALJ’s findings and decision on the issue of Allegrezza’s carpal-tunnel claims. The Commission also affirmed the ALJ’s findings and decision on the issue of Allegrezza’s psychological-overlay claim, concurring that the motion to amend should be denied. The Commission failed to make any additional factual findings regarding these claims. The Commission reversed the ALJ’s decision regarding Allegrezza’s back injury, finding that Allegrezza had suffered some loss of wage-earning capacity. The Commission found that, although the evidence suggested that Allegrezza was capable of working despite her injury, the record was also clear that “[s]he was fired from Greenville Manufacturing because she could not perform the job[,]” she had performed an adequate job search, and that she had not found employment at the time of the hearing.

¶ 11. The Washington County Circuit Court and the Court of Appeals both affirmed the Commission’s decision in all respects, relying on the deferential “substantial evidence” standard of review for administrative-agency decisions. Allegrez-za now seeks certiorari review of the Commission’s decision. Allegrezza claims the Commission applied incorrect legal standards in determining the date of her MMI and the extent of her disability, and in denying her claim of psychological overlay. We granted certiorari and limit our review to Allegrezza’s claim that the ALJ and the Commission disregarded the testimony of Dr. Steuer, Dr. Lewis, and Dr. Cassada, physicians outside Allegrezza’s proper chain of referral. See Miss.R.App. P. 17(h).

STANDARD OF REVIEW

¶ 12. “Absent an error of law, where substantial credible evidence supports the Commission’s decision, this Court, as well as the circuit court, may not interfere.” Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.1992). This is so even if we, as the fact-finder, would have been convinced otherwise. Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988). “As to matters of law, our review is de novo, but the interpretation of the Commission of the Workers’ Compensation Law is to be accorded great weight and deference.” KLLM, Inc. v. Fowler, 589 So.2d 670, 674 (Miss.1991).

DISCUSSION

I. Whether the Commission failed to consider the testimony of physicians outside the chain of referral.

¶ 13. The ALJ correctly found that Allegrezza’s treatment by Drs. Steuer, Lewis, and Cassada fell outside the appropriate chain of referral under Section 71-3-15(1) of the Mississippi Code, and that treatment by those physicians was not the financial responsibility of Greenville Manufacturing and Travelers. Allegrezza does not challenge this particular ruling in her petition for certiorari. Rather, she claims that the ALJ erroneously refused to consider testimony from the unauthorized physicians that supports her assertion that she is totally disabled.

¶ 14. A determination of the claimant’s loss of wage-earning capacity should be made only after considering the evidence as a whole. McGowan v. Orleans Furniture, Inc., 586 So.2d 163, 167 (Miss.1991) (citing Piggly Wiggly v. Houston,, 464 So.2d 510, 512 (Miss.1985)). “This Court will not determine where the preponderance of the evidence lies when the evidence is conflicting, the assumption being that the Commission, as the trier of fact, has previously determined which evidence is credible, has weight, and which is not.” Metal Trims Indus., Inc. v. Stovall, 562 So.2d 1293, 1297 (Miss.1990). This Court has further held that where medical evidence is conflicting, this Court will affirm the Commission “whether the award is for or against the claimant.” Kersh v. Greenville Sheet Metal Works, 192 So.2d 266, 268 (Miss.1966). On the other hand, “if the medical proof of disability is undisputed and is not inherently improbable, incredible, unreasonable or untrustworthy, it may not be rejected and must be given effect.” Id. at 268-269 (citing Dunn, Workers’ Compensation § 52 (1957)). See, e.g., Univ. of Miss. Med. Ctr. v. Smith, 909 So.2d 1209, 1222 (Miss.Ct.App.2005) (finding that the Commission erred in completely disregarding the uncontradicted testimony of the claimant regarding the disabling effects of headaches caused by work-related injury).

¶ 15. In denying Allegrezza’s motion to amend her petition to controvert, the ALJ noted that Allegrezza had been treated by “an excessive number [of physicians] under a strict interpretation of the Act, § 71-3-15(1).” The ALJ also found the testimony of Dr. Cassada to be “suspect” due to her connection to Drs. Steuer and Lewis, whose treatment Greenville Manufacturing and Travelers strenuously challenged. Later in the opinion, when discussing Alle-grezza’s back injury, the ALJ stated, “Since the issues of Dr. Steuer’s treatment and all following treatment for the back and alleged psychological injuries have been previously addressed, no further medical .testimony regarding those issues will be considered.” Allegrezza interprets this statement to mean that the ALJ completely disregarded the testimony of Drs. Steuer, Lewis, and Cassada. Because the Commission affirmed the ALJ’s findings without making any additional factual findings regarding the medical evidence, Alle-grezza argues that the Commission failed to consider the evidence as a whole.

¶ 16. After reviewing the record, it does not appear that the ALJ actually ignored the testimony of the unauthorized physicians, as Allegrezza suggests. Clearly, the ALJ did not consider Drs. Steuer, Cassa-da, or Lewis to be credible witnesses in this case. Most glaringly, Allegrezza was not treated by these physicians until after she was released by Dr. Collip to return to work. In fact, Dr. Lewis performed surgery on Allegrezza after at least three other physicians — Dr. Frothingham, Dr. Brophy, and Dr. Wood, who was Dr. Lewis’s own referral — had recommended that Allegrezza was not a candidate for surgery. The ALJ found that the weight of the evidence suggested that Allegrezza could perform her job fully within the restrictions imposed upon her. In light of these facts, the ALJ found that Allegrezza had received reasonable and necessary medical care from her authorized physicians, and that her treatment by Drs. Steuer,. Lewis, and Cassada was not only unauthorized, but also unreasonable and unnecessary.

¶ 17. The record suggests that the ALJ at least considered the testimony of the unauthorized physicians before finding the opinions of the authorized physicians to be more credible. It was the Commission’s responsibility to examine any conflicting evidence and determine which evidence is credible. See Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1224-1225 (Miss.1997) (citing Stovall, 562 So.2d 1293 (Miss.1990)). The Commission affirmed the ALJ’s finding that the treatment by Drs. Steuer, Lewis, and Cassada was not reasonable or necessary for Alle-grezza’s recovery. This finding is supported by more than the mere scintilla of evidence or lack of evidence required for reversal. Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 330, 336 (Miss.2003). Because the Commission’s findings were supported by substantial evidence, we have no authority to interfere with its decision. Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1247 (Miss.1991).

CONCLUSION

¶ 18. The record does not support Alle-grezza’s assertion that the administrative law judge and the Commission disregarded the medical testimony of her unauthorized physicians. In addition, the Commission’s findings were supported by substantial evidence. Accordingly, we affirm the judgments of the Court of Appeals and the circuit court and the order of the Mississippi Workers’ Compensation Commission.

¶ 19. AFFIRMED.

DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.