author: CARLTON, J„

text:
    James Christopher SKINNER a/k/a Christopher Skinner, Appellant. v. STATE of Mississippi, Appellee.
    No. 2011-KA-00901-COA.
    Court of Appeals of Mississippi.
    Jan. 8, 2013.
    Rehearing Denied May 21, 2013.
    Certiorari Denied Aug. 29, 2013.

      Percy Stanfield, Beverly D. Poole, Jackson, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   CARLTON, J„

for the Court:

¶ 1. A jury before the Rankin County Circuit Court convicted James Christopher Skinner of disorderly conduct, and the court sentenced him to six months in the Rankin County Jail. Skinner also was convicted of felony evasion and sentenced as a habitual offender to life in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or probation.

¶ 2. Skinner now appeals, raising the following assignments of error: whether (1) the circuit court erred in using his 1994 felony convictions in Florida to qualify him as a violent habitual offender under Mississippi Code Annotated section 99-19-83 (Rev.2007), since he was only fifteen years old at the time of those convictions and was sentenced as a “youthful offender” under the Florida Youthful Offender Act; (2) the circuit court imposed sentences disproportionate to the crimes for which the jury convicted him; and (3) whether the verdict for felony evasion is against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS

¶ 3. Around 2:00 a.m. on August 28, 2009, the Brandon Police Department set up a safety checkpoint just off of exit 54 of Interstate 20. During this safety check, a red SUV approached the area. Officer Chad McClain, a patrolman with the Brandon Police Department, signaled for the driver to pull up to where he was checking drivers for a valid driver’s license and proof of insurance. Skinner, the driver of the red SUV, pulled the vehicle up near the officer. Officer McClain asked Skinner for his license and proof of insurance. Skinner explained that he did not have his license with him. Officer McClain asked Skinner to drive the vehicle up and park behind another SUV that Officer Josh Arnold, also with the Brandon Police Department, had stopped. Skinner complied.

¶4. Thereafter, Officer McClain again approached Skinner’s vehicle and requested a form of picture identification. Skinner denied having any picture identification, and Officer McClain asked him to step out of the vehicle. When Skinner asked him “why,” Officer McClain replied: “because I asked you to.” Skinner explained that he recently had fallen off a ladder at work and had broken some ribs, so he lacked to the ability to get out of his vehicle. Officer McClain opened the driver’s door and asked Skinner where he had been that night, to which Skinner replied that he had gone to pick someone up from Club Zodiac. Officer McClain responded that if he could go to a club to pick up a friend, then he could get out of the vehicle. Officer McClain again asked Skinner to remove himself from the vehicle. Officer McClain informed Skinner that he could be charged with disorderly conduct and failure to comply if he did not step out of his vehicle.

¶ 5. Officer Arnold overheard the exchange and walked over to Skinner’s location. Officer Arnold explained to Skinner that Officer McClain had given him a lawful order with which he needed to comply or he would be pepper sprayed. Skinner continued to argue and refused to get out of his vehicle. Officer Arnold told Skinner that he had until the count of three to step out of his vehicle or he would pepper spray him, and then he began to count. When Officer Arnold counted to two, Skinner punched Officer Arnold in the chest. As a result, Officer Arnold pepper sprayed him. As Officer Arnold sprayed Skinner, Officer McClain tried to reach into the vehicle to pull Skinner out of the vehicle. As he did, Skinner threw the vehicle in drive and punched the gas. Officer McClain testified that Skinner’s vehicle dragged him for several feet before he freed himself from the vehicle.

¶ 6. As this occurred, Officer Arnold got into his police vehicle and followed Skinner’s vehicle. When Officer McClain freed himself, he also followed Skinner’s vehicle. As Skinner drove on Highway 18, Officer McClain observed a red cooler fly out of the passenger’s window of Skinner’s vehicle. The two officers continued to pursue Skinner’s vehicle at a high rate of speed. Both Officer McClain and Officer Arnold testified that Skinner’s vehicle’s speed at times exceeded 120 miles per hour. Skinner ignored traffic signals and stop signs, and showed a lack of regard for the lines painted on the roadways. At one point, Skinner pulled his vehicle off the road and completed a U-turn. Other law-enforcement agencies were dispatched, and additional officers arrived to aid in the stop of Skinner’s vehicle.

¶ 7. Officer McClain testified that Skinner’s vehicle finally came to a stop after Skinner swerved, causing him to travel airborne off of the roadway and onto some railroad tracks. Officers thereafter approached the vehicle with their weapons drawn. Simeon Hauer, the passenger of Skinner’s vehicle, immediately got out of the vehicle and onto the ground. Officer McClain testified that Skinner continued to struggle and resist, trying to break away from the officers. Several officers from the different law-enforcement agencies worked together to secure Skinner. These officers noticed that Skinner was bleeding and contacted emergency medical personnel.

¶ 8. During this time, the officers noticed Skinner pushing something back toward his buttocks. Officer Arnold testified that when the paramedics arrived, the officers pulled down Skinner’s pants so that the paramedics could remove whatever Skinner had placed in or near his buttocks. Officer Arnold stated that Skinner clenched his buttocks, and the officers assisted the paramedics in the removal of what appeared to be a coffee filter. The coffee filter was later determined to contain less than .1 gram of methamphetamine.

¶ 9. After securing both men, the officers noticed suspicious chemicals in the vehicle and contacted narcotics officers. The officers also located the red cooler previously thrown from the vehicle, which contained items used in the manufacture of methamphetamine.

¶ 10. Hauer, the passenger in Skinner’s vehicle, testified at trial about the events from earlier in the night prior to the chase. Hauer testified that he and Skinner had been at two different houses that night with methamphetamine present. Hauer admitted to using methamphetamine, and he testified that he witnessed Skinner making methamphetamine during the night in question. Skinner denied Hauer’s allegations.

PROCEDURAL HISTORY

¶ 11. A grand jury before the Rankin County Circuit Court indicted Skinner for the following crimes: Count I — simple assault on a law-enforcement officer in violation of Mississippi Code Annotated section 97-3-7 (Supp.2012); Count II — possession of precursor chemicals in violation of Mississippi Code Annotated section 41-29-313 (Rev.2009); Count III — felony evasion in violation of Mississippi Code Annotated section 97-9-72 (Rev.2006); Count IV— manufacture of a controlled substance in violation of Mississippi Code Annotated section 41-29-139 (Supp.2012); Count V— aggravated assault on a law-enforcement officer in violation of Mississippi Code Annotated section 97-3-7; and Count VI— possession of less than .1 gram of methamphetamine in violation of Mississippi Code Annotated section 41-29-139.

¶ 12. On September 9, 2010, the State filed a motion to amend the indictment to charge Skinner as a habitual offender under section 99-19-83, which the circuit court granted at a pretrial hearing on March 17, 2011. The circuit court’s order filed on March 17, 2011, shows that it granted the State’s motion to amend the indictment based on Skinner’s convictions of the following crimes and the resulting sentences: (1) Circuit Court of Rankin County cause number 18714 — possession of a controlled substance and sentence of eight years in the custody of the MDOC, with four years suspended, leaving four years to serve, followed by four years of post-release supervision; (2) Circuit Court of Escambia County, Florida case number 94-5154CFA4M-01 — attempted carjacking with a firearm (Count I) and sentence of four years in the custody of the Florida Department of Corrections (FDOC), followed by two years’ supervised probation; and (3) Circuit Court of Escambia County, Florida case number 94-5154CFA4M-01— aggravated assault with a firearm (Count II) and sentence of four years in the custody of the FDOC, to be served concurrently with the sentence for Count I, followed by one year of supervised probation.

¶ 13. Prior to trial, the State notified the circuit court that it did not intend to proceed on Counts IV (manufacture of a controlled substance) and V (aggravated assault on a law-enforcement officer). A jury trial took place from March 22 to March 25, 2011. At the conclusion of the trial, the jury found Skinner guilty of disorderly conduct, the lesser-included offense of simple assault upon a law-enforcement officer, charged in Count I. As to Count III, the jury found Skinner guilty of felony evasion. The circuit court declared a mistrial with regard to both Count II, possession of precursors, and Count VI, possession of less than .1 gram of methamphetamine, since the jury failed to reach a verdict on those counts.

¶ 14. A sentencing hearing commenced on March 29, 2011. At the sentencing hearing, in support of its request for a life sentence for Skinner based on his habitual status, the State entered into evidence Skinner’s indictment, judgment of conviction, sentence instanter, and pen-pack in Rankin County cause number 18714. In support of the underlying Florida convictions in cause number 94-5154CFA4M-01, the State entered into evidence certified records from the FDOC and the Office of the Clerk of the Escambia County Circuit Court.

¶ 15. After entering evidence substantiating Skinner’s habitual-offender status with the prior offenses, the circuit court sentenced Skinner to six months in the custody of the Rankin County Jail for his conviction of disorderly conduct. As for his crime of felony evasion, the circuit court sentenced Skinner as a habitual offender under section 99-19-88 to life imprisonment in the custody of the MDOC without eligibility for parole or probation. The circuit court ordered that the sentences imposed in Count I and Count III were to run concurrently with each other.

¶ 16. Skinner filed a post-trial motion, which the circuit court denied after holding a hearing. Skinner now appeals.

DISCUSSION

I. Habitual Offender

¶ 17. Skinner alleges that, at the age of fifteen, he pled nolo contendere in Florida for the crimes of attempted carjacking with a firearm and aggravated assault with a firearm. Skinner asserts that the trial court sentenced him as a “youthful offender” under the Florida Youthful Offender Act to four years for each count, with two years of supervised probation, with both sentences to run concurrently. Skinner also claims that he served this time in a youth offenders’ camp. Skinner argues that the circuit court erred by using these convictions to classify him as a violent habitual offender under Mississippi Code Annotated section 99-19-83 in order to sentence him to life imprisonment without the possibility of parole. Skinner asks this Court to reverse his sentence and remand for resentencing under Mississippi Code Annotated section 99-19-81 (Rev.2007), claiming he possesses two qualifying nonviolent prior felony convictions.

¶ 18. The requirements to impose a sentence as a habitual offender are “that the accused be properly indicted as a 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) (internal citations omitted).

¶ 19. After reviewing the record, we find no merit to Skinner’s assignment of error. Prior to trial, the State filed a motion to amend Skinner’s indictment to charge him as a habitual offender under section 99-19-83, which the circuit court granted. In support of charging Skinner as a habitual offender under section 99-19-83, the State’s motion to amend the indictment cited Skinner’s underlying convictions and sentences: (1) Rankin County, Mississippi cause number 18714 — conviction of possession of a controlled substance and sentence of eight years in the custody of the MDOC, with four years suspended and four years to serve, followed by four years’ post-release supervision; (2) Es-cambia County, Florida case number 94-5154CFA4M-01 — conviction of Count I, attempted carjacking with a firearm, and sentence of four years in the custody of the FDOC, followed by two years of supervised probation; and (3) Escambia County, Florida case number 94-5154CFA4M-01— conviction of Count II, aggravated assault with a firearm, and sentence of four years in the custody of the FDOC, to run concurrently with the sentence in Count I, followed by one year of supervised probation. The record reflects that Skinner served at least a year or more in a penal institution for each underlying conviction, establishing habitual-offender status. The prior convictions sufficiently established his habitual-offender status as charged in the amended indictment, and the circuit court provided Skinner with a fair opportunity to present a defense to the amended indictment charging habitual-offender status.

¶ 20. A review of the plain language of section 99-19-83 shows that this statutory provision does not require that the underlying felony convictions be committed at any certain age but does require separate and distinct felonies with sentences of one year or more imposed. Specifically, section 99-19-83 states:

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

¶ 21. Furthermore, we recognize that this Court has previously held that Mississippi’s nonviolent-habitual-offender statute, section 99-19-81, does not require that the underlying felony convictions supporting the habitual-offender status must have been committed at any certain age. See Kelley v. State, 913 So.2d 379, 382 (¶ 4) (Miss.Ct.App.2005) (finding specifically that section 99-19-81 “does not require that underlying felonies have been committed after the age of twenty one”). Similar to section 99-19-81, the violent-habitual-offender statute, section 99-19-83, includes no language requiring that the underlying felonies must have been committed at or above a certain age.

¶ 22. The plain language of section 99-19-83 imposes the maximum punishment for the conviction of a felony if the person convicted possesses two prior distinct felonies, where at least one year was served for each felony in any state or federal penal institution, and one of these felonies is a crime of violence. The record shows that Skinner was sentenced to and served the requisite imprisonment, as previously discussed. The offenses of armed carjacking and aggravated assault both constitute felonies under the laws of the state of the prior conviction, Florida. Further, the record and Mississippi jurisprudence reflect that Skinner’s offenses are crimes of violence. Accordingly, we find that the circuit court in the present case committed no error in relying on Skinner’s previous convictions in determining his status as a habitual offender under section 99-19-83. This issue is without merit.

II. Eighth Amendment

¶23. Skinner claims that his sentence of life without the possibility of parole constitutes cruel and unusual punishment under the Eighth Amendment. He asserts that his sentence is wholly disproportionate to the crimes for which he was convicted: felony evasion, which carries a maximum sentence of five years, and disorderly conduct, which carries a maximum sentence of six months in jail.

¶ 24. Generally, “a sentence that does not exceed the maximum period of time allowed by statute will not be disturbed on appeal.” Cummings v. State, 29 So.3d 859, 861 (¶ 4) (Miss.Ct.App.2010) (citation omitted). In determining whether a sentence is proportional to the offense, this Court eonsider[s] the three factors set forth in Solem, which are:

(1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions.

Brown v. State, 37 So.3d 1205, 1218 (¶ 36) (Miss.Ct.App.2009) (citation omitted and footnote added). However, this Court only applies the Solem factors “when a threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross disproportionality.’ ” Id. (citation omitted).

¶ 25. Skinner’s sentence of life imprisonment complies with the applicable habitual-offender statute, section 99-19-83. “Our supreme court has consistently held that sentences under the habitual-offender statute do not constitute cruel and unusual punishment.” Cummings, 29 So.3d at 861 (¶ 5). The circuit court’s order amending Skinner’s indictment to charge him as a habitual offender under section 99-19-83 listed Skinner’s prior convictions of possession of a controlled substance, attempted carjacking with a firearm, and aggravated assault with a firearm. In light of the gravity of Skinner’s current offense and his prior offenses, the circuit court’s imposition of a life sentence fails to give rise to an Eighth Amendment proportionality analysis. Therefore, this Court will not proceed with such an analysis. Since the record reflects no gross disproportionality in the sentence, and the sentence falls within the statutory-maximum period, we find no abuse of discretion in the sentence imposed by the circuit court. See Cummings v. State, 58 So.3d 715, 719 (¶ 19) (Miss.Ct.App.2011) (“This Court reviews the terms of a sentence under an abuse-of-discretion standard.”).

¶ 26. This issue is without merit.

III. Weight of the Evidence

¶ 27. Skinner argues that his conviction of felony evasion is against the overwhelming weight of the evidence. In support of his claim, Skinner points to the following: he suffers from bipolar disorder and attention deficit hyperactivity disorder; he was not on his medications at the time of arrest; the police profiled him due to his long hair and tattoos; the police demanded he exit his vehicle but failed to make such a demand to another person receiving a ticket at the police checkpoint; and the police threatened to give him a “good a* * whipping” if he failed to exit his vehicle, and he fled in terror. Skinner also claims that when the police pursuit ended, the police kicked, punched, and beat him, causing him to suffer seven broken ribs, a punctured lung, and a broken nose on both sides.

¶ 28. “In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence that supports the verdict and will reverse only when convinced that the trial court has abused its discretion in failing to grant a new trial.” Cole v. State, 8 So.3d 250, 254 (¶ 16) (Miss.Ct.App.2008) (citation omitted). “This Court will overturn a verdict only when to allow it to stand would sanction an unconscionable injustice.” Id.

¶ 29. A grand jury before the Rankin County Circuit Court indicted Skinner for felony evasion under Mississippi Code Annotated section 97-9-72, which states:

(1) The driver of a motor vehicle who is given a visible or audible signal by a law enforcement officer by hand, voice, emergency light or siren directing the driver to bring his motor vehicle to a stop when such signal is given by a law enforcement officer acting in the lawful performance of duty who has a reasonable suspicion to believe that the driver in question has committed a crime, and who willfully fails to obey such direction shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine not to exceed One Thousand Dollars ($1,000.00) or imprisoned in the county jail for a term not to exceed six (6) months, or both.
(2) Any person who is guilty of violating subsection (1) of this section by operating a motor vehicle in such a manner as to indicate a reckless or willful disregard for the safety of persons or property, or who so operates a motor vehicle in a manner manifesting extreme indifference to the value of human life, shall be guilty of a felony, and upon conviction thereof, shall be punished by a fíne not to exceed Five Thousand Dollars ($5,000.00), or by commitment to the custody of the Mississippi Department of Corrections for not more than five (5) years, or both.

¶ 30. A review of the record shows that ample evidence existed to support the jury’s verdict finding Skinner guilty of felony evasion. The testimony at trial indicated that Skinner led police on a high-speed chase during which speeds exceeded 120 miles per hour. Both Officer McClain and Officer Arnold testified that Skinner ignored traffic devices and stop signs. Officer McClain also testified that Skinner’s vehicle drug him for several feet as Skinner began his attempt to evade the officers. Testimony at trial also showed that Skinner continued to fight and struggle with the officers even after his vehicle finally came to a halt after crashing onto the railroad tracks.

¶ 31. Viewed in the light most favorable to the verdict, we find that Skinner’s driving evidenced a reckless or willful disregard for the safety of others. Consequently, the jury’s verdict finding Skinner guilty of felony evasion is not so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. It follows that we find no merit to this issue.

¶ 32. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, DISORDERLY CONDUCT, AND SENTENCE OF SIX MONTHS IN THE RANKIN COUNTY JAIL; AND COUNT III, FELONY EVASION, AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IMPRISONMENT WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, WITH THE SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., NOT PARTICIPATING.

      . At the pretrial hearing, Skinner offered no objection to the State's motion to amend the indictment.

      . "[I]n the context of determining habitual[-]offender status, the majority view is that a judgment based on a nolo contendere plea is a conviction.” Bailey v. State, 728 So.2d 1070, 1073 (¶ 13) (Miss.1997).

      . Mississippi courts have recognized aggravated assault as a crime of violence. Davis v. State, 680 So.2d 848, 851 (Miss.1996). The Mississippi Supreme Court has also acknowledged that
      [fjederal sentencing guidelines further define "crime of violence" as "any offense under federal or state law punishable by imprisonment for a term exceeding one year that ... has as an element the use, attempted use, or threatened use of physical force against the person of another” and include within that definition "murder, manslaughter, kidnap[p]ing, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.”

        Davis, 680 So.2d at 851 (quoting United States v. Fry, 51 F.3d 543, 546 (5th Cir.1995)). Carjacking in Mississippi is similarly considered a crime of violence against a person. See Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 23:120 (2001); see also Miss.Code Ann. § 97-3-117 (Rev.2006).

      .Section 99-19-81 states:
      Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

      .We pause to note that Skinner was previously convicted in Florida of the crime of attempted carjacking with a firearm. See Miss.Code Ann. § 97-3-117 ("A person who is convicted of attempted carjacking shall receive the same punishment as the person who is convicted of carjacking ... Any person who is convicted of attempted armed carjacking shall receive the same punishment as the person who is convicted of armed carjacking.”).

      . See generally Davis, 680 So.2d at 851; see also Miss.Code Ann. § 97-3-117; Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 23:120 (2001).

      . Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    Billy ARD, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01317-COA.
    Court of Appeals of Mississippi.
    Jan. 8, 2013.
    Rehearing Denied May 21, 2013.
    Certiorari Denied Aug. 29, 2013.

      Billy Ard, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., CARLTON and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. In 1988, Billy Ard plead guilty to armed robbery and was sentenced to serve thirty years in the custody Mississippi Department of Corrections. The Madison County Circuit Court dismissed his 2011 motion for post-conviction relief (PCR) as time-barred. Ard now appeals claiming that his guilty plea was involuntary and that he received ineffective assistance of counsel. On appeal, Ard argues that he was illegally sentenced as a habitual offender. He claims that he only signed the plea petition because the State agreed not to pursue habitual-offender status.

STANDARD OF REVIEW

¶ 2. The trial court may summarily dismiss a PCR motion “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief....” Miss.Code Ann. § 99-39-11(2) (Supp.2012). This Court will affirm the summary dismissal of a PCR motion if the movant has failed to “demonstrate a claim procedurally alive substantially showing the denial of a state or federal right.... ” Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999) (quotation marks omitted).

DISCUSSION

¶ 3. Mississippi Code Annotated section 99-39-5(2) (Supp.2012) states that when no appeal is taken, a motion for post-conviction relief must be made within three years after the time for taking an appeal from the judgment of conviction or sentence has expired. Ard’s 2011 PCR motion was filed over twenty years after his 1988 conviction. It is time-barred. However, “errors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act].” Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss.2010). “[The] right to be free from an illegal sentence is fundamental.” Kennedy v. State, 732 So.2d 184, 186 (¶ 8) (Miss.1999) (citing Sneed v. State, 722 So.2d 1255, 1257 (¶ 11) (Miss.1998)).

¶ 4. Ard contends that his guilty plea was not voluntarily entered because he was sentenced as a habitual offender after the State promised not to pursue habitual-offender status. He also asserts that this mistake evidences ineffective assistance of counsel.

¶ 5. In Brown v. State, 923 So.2d 258, 259 (¶ 4) (Miss.Ct.App.2006) (citing House v. State, 754 So.2d 1147, 1150 (¶ 4) (Miss.1999)), the defendant argued that her motion for post-conviction relief should be excepted from the three-year time-bar because she was serving an illegal sentence. She based this argument on an assertion that her guilty plea was involuntary. Id. at 260 (¶ 4). In denying Brown’s argument, we held:

[ P]ast precedent regarding the fundamental right to be free from an illegal sentence does not provide a “back door” method for raising an untimely post-conviction relief claim based on a claim of involuntariness of a guilty plea. An illegal sentence in this context is one which exceeds the statutory maximum.

Id. Ard cannot overcome the time-bar by asserting that his sentence is illegal because of an involuntary guilty plea. He plead guilty to being a habitual offender; therefore, his sentence as a habitual offender is not illegal. Ard has failed to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right. We affirm the circuit court’s dismissal of Ard’s motion for post-conviction relief as time-barred.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT. JAMES, J., NOT PARTICIPATING.


author: LEE, C.J.,

text:
    Donald Foster ESTES a/k/a Donald Estes a/k/a Donald F. Estes, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00071-COA.
    Court of Appeals of Mississippi.
    Feb. 19, 2013.
    Rehearing Denied June 25, 2013.
    Certiorari Denied Aug. 29, 2013.

      Donald Foster Estes, appellant, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On April 9, 2006, Donald Foster Estes entered the Walgreen’s pharmacy in Olive Branch, Mississippi. He approached the counter, lifted his shirt to show the pharmacist a plastic toy pistol, and demanded that she give him the painkiller Lortab. She gave Estes the Lortab, and he exited the store.

¶ 2. Estes was indicted by a DeSoto County grand jury for armed robbery under Mississippi Code Annotated section 97-8-79 (Rev.2006). Estes pleaded guilty and was sentenced to twenty years, with twelve years to serve in the custody of the Mississippi Department of Corrections and eight years of post-release supervision, five of those eight years reporting, and a $1,000 fine.

¶ 3. On August 10, 2011, Estes filed a petition for post-conviction collateral relief in the DeSoto County Circuit Court. The petition was summarily denied on December 6, 2011.

¶ 4. Estes now appeals, arguing his counsel was ineffective for: (1) allowing Estes to enter a guilty plea when the State could not prove the elements of armed robbery; (2) failing to move to suppress Estes’s statements; (3) failing to investigate Estes’s case and prepare a defense; and (4) failing to subject the State’s case to meaningful adversarial testing. We will address issues one, three, and four together, as they are related.

STANDARD OF REVIEW

¶ 5. When this Court reviews the trial court’s denial of a petition for post-conviction relief, it “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised[,] the applicable standard of review is de novo.” Terry v. State, 755 So.2d 41, 42 (¶ 4) (Miss.Ct.App.1999) (internal quotations omitted). When a defendant pleads guilty, “he must show unprofessional errors of substantial gravity.” The defendant must show his counsel’s conduct “proximately resulted in his guilty plea, and but for counsel’s errors, he would not have entered the plea.” Cole v. State, 918 So.2d 890, 894 (¶ 10) (Miss.Ct.App.2006).

DISCUSSION

¶ 6. To succeed on an ineffective-assistance-of-counsel claim, the appellant must satisfy the two-pronged test laid out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468 (Miss.1984). “First, the defendant must show that counsel’s performance was deficient. ... Second, the defendant must show that the deficient performance prejudiced the defense.” Id. at 477 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

I. DEADLY WEAPON

¶ 7. Estes contends that the State could not prove each element of the armed robbery, and therefore, his counsel was ineffective for allowing him to plead guilty. Specifically, Estes claims that the State could not prove that he put the pharmacist “in fear of immediate injury to his person by the exhibition of a deadly weapon,” because he had a plastic toy pistol and not a “deadly weapon.” Estes also argues that his counsel was ineffective for failing to prepare a defense against the State’s contention that he possessed a deadly weapon, and that because of that failure, the State’s case was not subject to a meaningful adversarial testing.

¶ 8. When Estes pleaded guilty, he “waive[d] his constitutional right[ ] against self-incrimination, [his right] to confront witnesses, and the requirement to have each element of the offense proved beyond a reasonable doubt.” Bishop v. State, 812 So.2d 934, 945 (¶ 39) (Miss.2002).

¶ 9. Even so, the only element of the offense that Estes contends the State could not prove was the requirement of a “deadly weapon.” Relying on Gibby v. State, 744 So.2d 244 (Miss.1999), Estes asserts that because he showed the pharmacist a toy pistol, she could not have “definite knowledge” that the deadly weapon existed. The Mississippi Supreme Court overruled Gibby in Dambrell v. State, 903 So.2d 681, 683 (¶ 6) (Miss.2005) and held that “when a defendant makes an overt act and a reasonable person would believe that a deadly weapon is present, there is no requirement that a victim must actually see the deadly weapon in order to convict pursuant to ... [section] 97-3-79.” Dambrell, 903 So.2d at 683 (¶ 6).

¶ 10. Furthering the holding of Dambrell, this Court in Lyons v. State, 942 So.2d 247, 250-51 (¶¶ 13-16) (Miss.Ct.App.2006), upheld an armed-robbery conviction where the defendant produced a note saying he had a gun. The Court noted that act was an overt act that led the victim to reasonably believe the defendant did possess a deadly weapon, which satisfied the purposes of section 97-3-79. Additionally, this Court stated in Trammell v. State, 62 So.3d 424, 428-29 (¶¶ 16-17) (Miss.Ct.App.2011), “[t]he fact that [the victim] never saw the weapon was of no matter” because the defendant had produced a note saying he had a gun, and the victim testified that she feared for her life.

¶ 11. At the plea hearing, the State asserted it could prove that the pharmacist was “in fear of immediate injury to her person by the exhibition of a deadly weapon, to wit, a gun.” When questioned by the court if Estes disagreed with anything the State claimed it could prove, Estes answered, “No, sir.”

¶ 12. Estes has not shown that his counsel’s performance was deficient, as required under Strickland. Furthermore, he has not shown that his counsel’s allegedly deficient performance “proximately resulted in his guilty plea, and [that] but for counsel’s errors, [he] would not have entered the plea.” Cole, 918 So.2d at 894 (¶ 10). This issue is without merit.

II. ESTES’S STATEMENTS

¶ 13. Estes argues that his counsel was ineffective for failing to move to suppress his statements because they were not voluntarily given, as he was under the influence of drugs.

¶ 14. This Court has found that “a plea of guilty waives any evidentiary issue.” Jefferson v. State, 855 So.2d 1012, 1014 (¶ 11) (Miss.Ct.App.2003) (citing Bishop v. State, 812 So.2d 934, 945 (¶ 39) (Miss.2002)). This waiver includes his “constitutional rights against self-incrimination....” Bishop, 812 So.2d at 945 (¶ 39).

¶ 15. Estes only makes bare assertions that his statements were involuntary. He offers no argument that but for his counsel’s errors, he would not have entered the plea. This issue is without merit.

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

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


author: JAMES, J.,

text:
    David Sidney NICHOLS a/k/a David S. Nichols a/k/a David Nichols, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00214-COA.
    Court of Appeals of Mississippi.
    April 30, 2013.
    Rehearing Denied Aug. 27, 2013.
    David Sidney Nichols, appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. David Sidney Nichols (pro se) appeals the judgment of the Circuit Court of Tate County dismissing his motion for post-conviction collateral relief (PCR). The circuit court found that Nichols’s PCR motion was proeedurally barred as a successive writ and time-barred. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 12, 2002, Nichols and Dennis Wynne Stepp were each indicted for conspiracy to commit capital murder and two counts of capital murder for the deaths of Sandra Lipsey and Bryan Warner. Nichols pleaded guilty to two counts of murder on April 14, 2004, and was sentenced to serve two life sentences, to run consecutively in the custody of the Mississippi Department of Corrections. On March 20, 2008, Nichols filed his first PCR motion, which the circuit court dismissed. Citing multiple assignments of error, Nichols appealed, and this Court affirmed the circuit court’s judgment on May 20, 2008.

¶ 3. Nichols filed a second PCR motion on December 5, 2011. The circuit court dismissed the motion as time-barred and successive-writ barred. Nichols now appeals, arguing that he was illegally sentenced, as the circuit court dismissed the indictment ten months prior to his conviction.

STANDARD OF REVIEW

¶ 4. We will not reverse a circuit court’s dismissal of a PCR motion unless the circuit court’s findings are clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). For issues involving questions of law, the applicable standard of review is de novo. Id. (citing Pace v. State, 770 So.2d 1052, 1053 (¶ 4) (Miss.Ct.App.2000)).

DISCUSSION

¶ 5. The Mississippi Uniform Post-Conviction Collateral Relief Act prohibits successive attempts to obtain post-conviction relief. The relevant section reads:

[ A]ny order dismissing the petitioner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article. Excepted from this prohibition is a motion ... raising the issue of the convict’s supervening mental illness before the execution of a sentence of death.... Likewise excepted from this prohibition are those cases in which the petitioner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole[,] or conditional release has been unlawfully revoked. Likewise excepted are those cases in which a petitioner has filed a prior petition and has requested DNA testing under this article, provided the petitioner asserts new or different grounds for relief related to DNA testing not previously presented or the availability of more advanced DNA technology.

Miss.Code Ann. § 99-39-23(6) (Supp.2012).

¶ 6. The circuit court properly dismissed Nichols’s PCR motion as procedurally barred as a successive writ. Nichols bears the burden of proving that he satisfied at least one of the exceptions to the successive-writ bar. Dobbs v. State, 18 So.3d 295, 298 (¶ 10) (Miss.Ct.App.2009) (citing Carbin v. State, 942 So.2d 231, 233 (¶ 9) (Miss.Ct.App.2006)). Because Nichols failed to show that an exception applies, his PCR motion is barred under section 99-39-23(6).

¶-7. Nichols’s motion is also time-barred, and the circuit court properly dismissed the motion as such. Nichols was convicted on April 14, 2004. The instant PCR motion was filed over seven years later on December 2, 2011. Mississippi Code Annotated section 99-39-5(2) (Supp. 2012) states that where a guilty plea has been entered, motions seeking post-conviction relief must be filed no later than three years after the entry of the judgment of conviction. However, “errors affecting fundamental constitutional rights are excepted from ... procedural bars ...” Rowland v. State, 42 So.3d 503, 506 (¶ 9) (Miss.2010).

¶ 8. Nichols argues that his constitutional rights were violated because he was illegally sentenced; thus, the three-year statutory limitation period should be waived. He bases this argument largely on the fact that the circuit court entered an order dismissing the indictment on May 29, 2003, over ten months before the entry of his guilty plea and sentencing. Our review of the record shows that the circuit court’s order to dismiss the indictment pertained solely to Dennis Stepp. On August 23, 2002, an immunity agreement was entered between the State and Stepp. The circuit court approved the agreement, and Stepp was granted transactional immunity. The court entered an order to that effect on May 29, 2003, dismissing the indictment as to Stepp only. The order did not include Nichols. For this reason, Nichols’s assignment of error based on an illegal sentence is without merit.

¶ 9. Nichols’s PCR motion is procedurally barred as a successive writ. The motion is also time-barred, as it was filed beyond the statutory three-year time limit. Nichols has failed to show that an exception to the successive-writ bar or the time-bar applies. Furthermore, Nichols’s argument that his constitutional rights were violated due to an illegal sentence is without merit. Accordingly, we affirm the circuit court’s dismissal of Nichols’s PCR motion.

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

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

      . Nichols v. State, 994 So.2d 236, 238 (¶ 11) (Miss.Ct.App.2008).


author: ROBERTS, J.,

text:
    Jerry HUNTER, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2012-CC-00689-COA.
    Court of Appeals of Mississippi.
    May 14, 2013.
    Rehearing Denied Aug. 27, 2013.

      Jerry Hunter, appellant, pro se.
    Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Jerry Hunter was discharged from his employment with McClellan’s Security Service (McClellan’s) on October 10, 2011. He applied for and received unemployment benefits until McClellan’s appealed the Mississippi Department of Employment Security’s (MDES) decision granting Hunter these benefits. On appeal, an administrative law judge (ALJ) found that Hunter was not eligible for unemployment benefits. Hunter appealed the ALJ’s decision to the MDES Board of Review and then to the Bolivar County Circuit Court. The Board of Review adopted the ALJ’s findings, and the circuit court affirmed the Board of Review’s decision. Based on this finding, Hunter perfected the current appeal.

FACTS AND PROCEDURAL HISTORY

¶ 2. Hunter was a security-system salesman for McClellan’s from June 15, 2010 until October 10, 2011. According to McClellan’s, Hunter was terminated for his refusal to retake the State’s mandatory licensing exam after he failed a previous exam. Hunter continued improperly completing paperwork and sales contracts after being warned to correct his errors.

¶ 3. Hunter filed for unemployment benefits, and a claims examiner with the MDES determined that Hunter was eligible to receive benefits. McClellan’s experience-rating record would also be charged for the benefits paid to Hunter. On December 14, 2011, McClellan’s appealed the claims examiner’s determination, and a telephonic hearing before an ALJ was held on January 10, 2012. At the hearing, Hunter testified as well as Jimmy McClellan (Jimmy), the owner of McClellan’s, and Kevin Nolette, the sales manager at McClellan’s. Jimmy testified that after failing the required licensing exam, Hunter did not reapply to take the exam at his own expense and quit coming to work. Nolette testified that not only did Hunter fail the initial exam and not make any effort to retake the exam, but Hunter also repeatedly filled out and submitted paperwork without getting the customers’ signatures. Further, on more than one occasion, Hunter used phony credit-card numbers when the customers later claimed they did not even have a credit card. Hunter testified that no one at McClellan’s informed him that he needed to retake the test until after he was terminated. He also stated that Nolette fired him because Hunter told Jimmy that Nolette sent a technician to install an alarm system at one of Hunter’s customer’s homes without having the proper paperwork. Additionally, Hunter testified that he did not know that the credit-card numbers were phony because the customer filled out that portion of the form.

¶ 4. After hearing the testimony and evidence, the ALJ reversed the claims examiner’s decision to award Hunter unemployment benefits. He determined that Hunter was disqualified from receiving unemployment benefits due to misconduct connected with work. Hunter then appealed this decision to the Board of Review on January 12, 2012. The Board of Review adopted the ALJ’s findings and affirmed the ALJ’s decision. Hunter timely appealed the Board of Review’s decision to the Bolivar County Circuit Court. On March 27, 2012, the circuit court entered its order affirming the Board of Review’s decision.

¶ 5. Hunter now appeals and argues that the ALJ’s decision was “based on [the] fabricated testimony” of Nolette and that the ALJ’s decision was not based on any other evidence, proof, or testimony.

ANALYSIS

¶ 6. When reviewing the circuit court’s judgment to affirm or deny the Board of Review’s decision, this Court employs the abuse-of-discretion standard. Miss. Dep’t of Emp’t Sec. v. Clark, 13 So.3d 866, 870 (¶ 8) (Miss.Ct.App.2009) (citing Howell v. Miss. Emp’t Sec. Comm’n, 906 So.2d 766, 769 (¶ 7) (Miss.Ct.App.2004)). Judicial review of the Board of Review’s decisions is confined to questions of law. Miss. Emp’t Sec. Comm’n v. Blasingame, 237 Miss. 744, 747, 116 So.2d 213, 214 (1959). Findings of fact by the Board of Review are conclusive if they are supported by substantial evidence and are without fraud. Hoerner Boxes, Ine. v. Miss. Emp’t Sec. Comm’n, 693 So.2d 1343, 1347 (Miss.1997) (citations omitted). Ultimately, the scope of review of this Court and the circuit court is limited to the findings of the Board of Review, and, as stated above, its findings of fact are conclusive if supported by substantial evidence and absent fraud. Melody Manor, Inc. v. McLeod, 511 So.2d 1383, 1385 (Miss.1987).

¶ 7. In his brief, Hunter’s primary assertion is that the ALJ’s decision was based on Jimmy’s and Nolette’s untruthful and distorted testimonies. Hunter additionally claims that Nolette’s testimony should not have been considered, as he was not listed as an official witness at the hearing.

¶ 8. In his findings of fact and conclusions, the ALJ stated:

While [Hunter] maintains that he was not asked to retake the license exam[,] ... the testimony of the employer that [Hunter] was requested to take this exam[,] and he refused to take the exam[,] is considered the more credible testimony. This refusal accompanied by his entering inaccurate credit card numbers on applications and not getting client signatures on sales contracts is considered conduct not in the best interests of the employer constituting misconduct.

The Mississippi Supreme Court has defined “misconduct” in unemployment-benefits cases to mean “conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee.” Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982). This Court has held that “[b]ehavior that is careless and negligent to such degree, or recurrence thereof, as to manifest culpability, wrongful intent, or evil design[,] can be classified as misconduct.” Nevels v. Miss. Dep’t of Emp’t Sec., 39 So.3d 995, 998 (¶ 11) (Miss.Ct.App.2010) (citing Wheeler, 408 So.2d at 1383). We have also held that “an employee would be disqualified from receiving unemployment benefits where the employee violated an employer’s policy or otherwise failed to meet a required condition of employment.” Clark, 13 So.3d at 871 (¶ 11) (quoting Halbert v. City of Columbus, 722 So.2d 522, 526-27 (¶ 19) (Miss.1998)). Lastly, where “[c]onflicting testimony presents a fact question for the Board [of Review], ... our standard of review does not permit this Court to second guess how the Board [of Review] resolves conflicting testimony.” Quinn v. Miss. Dep’t of Emp’t Sec., 56 So.3d 1281, 1283 (¶ 9) (Miss.Ct.App.2011).

¶ 9. A review of the evidence in the record indicates that there is substantial evidence to support the decision that Hunter committed misconduct and is not entitled to receive unemployment benefits. There is no dispute that Hunter was aware that he was required to retake the licensing exam to maintain his employment with McClellan’s. Hunter claims he was not told when he needed to retake it and that McClellan’s had rescheduled his training several times. However, Jimmy and No-lette both testified that Hunter may not have explicitly stated he was not going to retake the test, but he made no effort to retake the test within the mandatory one-year period with the knowledge that doing so was required to continue his employment. There was also testimony that Hunter repeatedly incorrectly filled out his contracts and paperwork even after he was corrected. Incorrectly completed paperwork could have potentially cost McClellan’s close to $1,000 for lost equipment and services. Jimmy testified that most of the issue McClellan’s has with Hunter “is [that] he does [not] follow our guidelines that we put down.”

¶ 10. The Board of Review was presented with conflicting testimony, requiring it to determine which testimony was more credible. Ultimately, it found that Jimmy’s and Nolette’s testimonies were more credible. Based on this decision, the Board of Review further found that Hunter had committed misconduct sufficient to warrant a reversal of the award of unemployment benefits. Keeping in mind our standard of review, we find that the circuit court did not abuse its discretion in affirming the Board of Review’s decision, since the decision that Hunter committed misconduct was supported by substantial evidence, and there is no evidence of fraud.

¶ 11. Therefore, Hunter’s claims are without merit.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY IS AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


author: IRVING, P.J.,

text:
    Warren WILLIAMS, Appellant v. MATTRESS DIRECT, INC. and Kenton A. Williams, Appellees.
    No. 2012-CA-01081-COA.
    Court of Appeals of Mississippi.
    Aug. 27, 2013.

      Gerald Maples, attorney for appellant.
    Jeffrey Stephen Moffett, Ridgeland, Jeremy Thomas England, Gulfport, attorneys for appellees.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On May 3, 2010, Warren Williams filed a complaint in the Hancock County Circuit Court against his coworker Kenton A. Williams and their employer Mattress Direct Inc., alleging negligence as a result of a vehicular accident involving Warren and Kenton while they were returning from a delivery assignment. Kenton and Mattress Direct filed a motion for summary judgment, which the circuit court granted. Feeling aggrieved, Warren appeals and claims that the court erred in holding that he and Kenton were both in the course and scope of their employment with Mattress Direct at the time of the accident and that Warren’s exclusive remedy is under the Louisiana Workers’ Compensation Act.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On July 16, 2008, Warren and Kenton, both of Louisiana, were instructed by Mattress Direct to deliver a mattress to a customer in Hancock County, Mississippi. They traveled to Hancock County in a Mattress Direct delivery truck, and Kenton was the driver. After completing the delivery, Warren and Kenton headed back to Louisiana on Interstate 10. While still in Hancock County, Warren and Kenton were involved in a single-vehicle accident in which Warren sustained injuries and was taken to a nearby hospital. Warren’s patient-registration form lists workers’ compensation as the insurance provider. Mattress Direct filed an employer report of injury/illness with Louisiana’s Office of Workers’ Compensation. Warren admitted in his responses to the defendants’ first set of requests for admissions, interrogatories, and requests for production of documents that the workers’ compensation insurer paid his hospital bills.

¶ 4. Warren’s complaint alleged that the accident was due to Kenton’s negligent operation of the delivery truck and Mattress Direct’s negligent entrustment of the vehicle to Kenton. Kenton and Mattress Direct’s motion for summary judgment asserted that Warren’s exclusive remedy was under Louisiana’s workers’ compensation law; therefore, he was barred from asserting common-law tort claims against Kenton and Mattress Direct.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 6. Appellate courts review a circuit court’s grant or denial of a motion for summary judgment de novo. Buchanan v. Ameristar Casino Vicksburg, Inc., 852 So.2d 25, 26 (¶ 3) (Miss.2003). “The evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Id. (quoting Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393 (¶ 10) (Miss.2001)). When there is no genuine issue of material fact, summary judgment must be granted. Id.

¶ 7. To support their motion for summary judgment, Kenton and Mattress Direct submitted the following documents: all pleadings filed in the tort action, Warren’s hospital records, Mattress Direct’s report of injury filed with Louisiana’s Office of Workers’ Compensation, a letter from the company that was managing Warren’s workers’ compensation claim on behalf of the workers’ compensation insurance carrier, a final report from Advanced Medical Center, and an itemization of payments for medical services provided to Warren.

¶ 8. The parties agree that Louisiana law should be applied to the issues at hand. We agree, because the parties have a more significant relationship with Louisiana than with Mississippi. Additionally, Warren has received benefits under Louisiana’s Workers’ Compensation Act. Thus, the critical question is whether Warren was properly awarded the workers’ compensation benefits. The answer is dependent upon whether Warren was in the course and scope of his employment with Mattress Direct at the time of the accident.

I. Course and Scope of Warren’s Employment

¶ 9. Warren argues that because Mattress Direct had an “unwritten policy” in which employees were considered officially off the clock after making a delivery, he was not in the course and scope of his employment while he was en route back to Mattress Direct when the accident occurred. Consequently, he argues that Mattress Direct is not entitled to immunity from a separate tort suit.

¶ 10. “An employee is acting within the course and scope of his employment when the employee’s action is of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer.” Timmons v. Silman, 761 So.2d 507, 510 (La.2000) (citation and internal quotation marks omitted). “The requirement that an employee’s injury ‘arise out’ of the employment relates to the character and origin of the injury suffered by the employee and whether this injury was incidental to the employment.” Martin v. Pride Offshore Co., 950 So.2d 805, 808 (La.Ct.App.2006) (citing McLin v. Indus. Specialty Contractors, 851 So.2d 1135, 1140 (La.2003)). “The terms ‘in the course of and ‘arising out of employment constitute a dual requirement. [They] are not viewed as separate and unrelated concepts” but are mutually interdependent. Fortenberry v. C.R. Bard, Inc., 830 So.2d 1025, 1029 (La.Ct.App.2002) (internal citations omitted).

¶ 11. Warren’s argument that he was not in the course and scope of employment because he was off the clock due to Mattress Direct’s “unwritten policy” fails. The circuit court correctly found that Warren and Kenton were still in the course of fulfilling their employment duties at the time of the accident. Warren and Kenton were on Interstate 10 returning to their place of employment in their employer’s vehicle, an action that they were employed to perform for the purpose of serving their employer. As a result, Warren’s injuries arose out of his employment.

¶ 12. Warren also asserts that his and Kenton’s travel from Hancock County back to Mattress Direct falls under the “going and coming” rule which is usually considered outside of the course and scope of employment. See McLin, 851 So.2d at 1140. This assertion is without merit, as this rule is premised on the theory that “the employment relationship is suspended from the time the employee leaves work to go home until he resumes his work.” Id. (citing Phipps v. Bruno Constr., 773 So.2d 826, 828 (La.Ct.App.2000)). Warren and Kenton were not commuting to work from home or vice versa. They were on their way back from a delivery and returning the delivery truck to Mattress Direct. Warren has failed to offer any authority in which the “going and coming” rule has been applied to facts similar to those in this case. Accordingly, we find that Warren was in the course and scope of his employment at the time of the accident, and his sole remedy against Mattress Direct is under Louisiana’s Workers’ Compensation Act.

II. Course and Scope of Kenton’s Employment

¶ 13. Warren maintains that even if he was in the course and scope of his employment at the time of the accident, Kenton was not in the course and scope of his employment at that time and is not immune from a tort lawsuit. Warren points out that Kenton was having a heated phone conversation with his girlfriend while driving at a high rate of speed in the rain, causing the delivery truck to flip several times. Warren reasons that Kenton’s argument with his girlfriend while operating the delivery truck constituted a significant and unpredictable deviation from Kenton’s employment duties, which removed Kenton from the course and scope of his employment with Mattress Direct. “The courts have consistently held that an employee is protected during work hours, despite minor deviations from instructions or place of work, if what he does could reasonably be contemplated as humanly incidental to his service as an employee and does not unreasonably increase the risk of injury.” Hoy v. Gilbert, 754 So.2d 207, 209 (La.1999) (citing Robinson v. F. Strauss & Son, Inc., 481 So.2d 592 (La.1986)). An act is considered unrelated to the employment when there is “a significant and unpredictable deviation and departure from [an employee’s] employment duties[.]” Puccio v. Finch, 454 So.2d 272, 274 (La.Ct.App.1984) (quoting Normand v. City of New Orleans, 363 So.2d 1220, 1223 (La.Ct.App.1978)).

¶ 14. Although Kenton was on the phone talking to his girlfriend when the accident occurred, he was still driving Mattress Direct’s delivery truck with the purpose of getting the delivery truck back to Mattress Direct. Therefore, we agree with the circuit court’s decision that Kenton’s phone call was not a significant and unpredictable deviation from his employment duties. Accordingly, we also find that Kenton was in the course and scope of his employment at the time of the accident.

¶ 15. Louisiana has an exclusivity provision that bars a claimant who is eligible for compensation under the state’s workers’ compensation act from pursuing tort claims against his employer or an employee of that employer. La.Rev.Stat. Ann. § 23:1032(A)(l)(a) (2010); see also O’Regan v. Preferred Enters., Inc., 758 So.2d 124, 131-32 (La.2000) (superseded by La. Rev.Stat. Ann. § 23:1031.1(2010) on other grounds). Because Warren is barred from filing a tort action against Mattress Direct and Kenton in Louisiana, he is also barred from filing such a claim in Mississippi.

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

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

      . Mattress Direct is a Louisiana corporation with its principle place of business in Jefferson Parish, Louisiana.


text:
    John F. WOOD, Appellant v. MOSSY OAK PROPERTIES, INC., Howell and Howell Estates & Land, LLC and Brent Frederick, Appellees.
    No. 2011-CA-01825-COA.
    Court of Appeals of Mississippi.
    Aug. 27, 2013.

      K.F. Boackle, Rigland, attorney for appellant.
    Joe S. Deaton III, Jackson, G. Todd Burwell, William Watkins Cunningham Jr., Ridgeland, attorneys for appellees.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. John F. Wood filed suit in the Leake County Circuit Court against Mossy Oak Properties Inc., Howell & Howell Estates & Land LLC (Howell & Howell), Glen Watkins, Brent Frederick, and John Does 1-10 raising numerous causes of action stemming from the purchase of real property. Howell & Howell filed a motion for summary judgment, which the circuit court granted on August 31, 2011. Thirteen days later, Wood filed a motion to reconsider and a motion to amend his complaint. The court denied both motions. Feeling aggrieved, Wood appeals and argues that the circuit court erred in granting summary judgment in favor of Howell & Howell and in denying his request to amend his complaint.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. In the fall of 2008, Watkins purchased the subject property using Howell & Howell as his brokerage firm and Frederick as his real estate agent. On February 3, 2009, Wood purchased the subject property from Watkins. Frederick, still employed by Howell & Howell as a real estate agent, facilitated the transaction between Wood and Watkins. Wood never employed Howell & Howell as his brokerage firm, and he never met Watkins in person prior to purchasing the property. After closing, Wood discovered numerous defects with the property. The roof of the building, located on the property, leaked, and the building would consistently flood. There was no paths of ingress and egress to and from the property. Wood also learned that Frederick had misrepresented the property’s appraised value. Wood alleged that the failure to disclose this information constituted fraud, negligence, a breach of the covenant of good faith and fair dealing, and a breach of fiduciary duty.

¶ 4. In his deposition, Wood testified that he had contacted Frederick a year before buying the subject property regarding a different parcel of property. According to Wood, the signs on the other properties that he had viewed read “Mossy Oak Properties, Brent Frederick, [telephone number].” Regarding the subject property, Wood testified that Frederick contacted him and told him that the property’s appraised value was $135,000, but that he would sell the property to Wood for $95,000. Wood knew that Frederick was a real estate agent with Howell & Howell but did not know who actually owned the property until after he had purchased it. He stated that he had met with Frederick at his office at Howell & Howell about purchasing other properties. However, Wood never met with Frederick at Howell & Howell’s offices to discuss the purchase of the subject property. Wood eventually visited the property with Frederick and walked the property boundaries. Wood never signed any papers with Howell & Howell’s logo on them; he never entered into a buy/sell agreement with Howell & Howell or Frederick; and he never signed a sales contract for the subject property. Wood gave Frederick $4,000 as a down payment on the purchase and financed the remainder of the purchase with a bank loan.

¶ 5. Frederick testified that he began working for Howell & Howell in 2007 as a sales agent. After Frederick sold the subject property to Wood, Howell & Howell requested that Frederick “put [his] license on inactive status.” He has not been employed since then. Frederick stated that while he was employed at Howell & Howell, he retained the authority to sell properties that were not managed by Howell & Howell. Frederick admitted that the subject property may have had a Howell & Howell sign on it because it had been previously managed by Howell & Howell. However, the property was not managed by Howell & Howell at the time that he sold it to Wood. Frederick testified that he was selling the subject property as a personal venture, that no one at Howell & Howell knew that he was selling the property, and that no one from Howell & Howell assisted him in selling the property to Wood. Frederick also stated that he never told Wood that the sale of the subject property would be completed through Howell & Howell.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

I. Summary Judgment

¶ 7. “[I]n determining whether the [circuit] court properly granted a motion for summary judgments appellate courts] con-duett] a de novo review of the record.” Hankins v. Md. Cas. Co./Zurich, Am. Ins. Co., 101 So.3d 645, 658 (¶ 15) (Miss.2012) (quoting Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995)). According to Rule 56(c) of the Mississippi Rules of Civil Procedure, a circuit court may grant summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “A fact is material if it ‘tends to resolve any of the issues, properly raised by the parties.’ ” Webb v. Jackson, 583 So.2d 946, 949 (Miss.1991) (quoting Mink v. Andrew Jackson Cas. Ins. Co., 537 So.2d 431, 433 (Miss.1988)). “The moving party bears the burden of showing that no genuine issue of material fact exists[.]” Hooker v. Greer, 81 So.3d 1103, 1108 (¶ 16) (Miss.2012) (citing Waggoner v. Williamson, 8 So.3d 147, 152 (¶ 11) (Miss.2009)). Additionally, the circuit court must view the evidence in the light most favorable to the nonmoving party. Russell v. Orr, 700 So.2d 619, 622 (¶ 8) (Miss.1997).

¶ 8. In his complaint, Wood alleged that Howell & Howell was vicariously liable for Frederick’s breach of the covenant of good faith and fair dealing, breach of fiduciary duty, and fraudulent misrepresentation. A principal may be held liable for the torts of its agent that are committed within the scope of the agent’s employment. See Children’s Med. Grp., P.A. v. Phillips, 940 So.2d 931, 935 (¶ 13) (Miss.2006). “To be “within the scope of employment,’ the [agent’s conduct] must have been committed in the course of and as a means to accomplishing the purposes of [his] employment [with the principal] and therefore [be] in furtherance of the [principal’s] business.” Robinson v. Hill City Oil Co., Inc., 2 So.3d 661, 669 (¶ 31) (Miss.Ct.App.2008) (quoting Adams v. Cinemark USA, Inc., 831 So.2d 1156, 1159 (¶ 9) (Miss.2002)).

¶ 9. Howell & Howell attached the following items to its motion for summary judgment: Wood’s complaint naming it as a defendant, excerpts from Wood’s deposition, and excerpts from Frederick’s deposition. Through Frederick’s and Wood’s deposition testimony, Howell & Howell demonstrated its complete absence from the transaction between Frederick and Wood. Frederick consistently stated that he sold the subject property as a personal venture. Although Howell & Howell was involved in Watkins’s purchase of the property in 2008, it was not involved in the subsequent sale of the property to Wood. It is undisputed that Howell & Howell had not listed the property as being for sale, did not assist Frederick in advertising the property as being for sale, and did not receive a commission after Frederick sold the property to Wood. Additionally, Wood testified that he never signed any papers that indicated that Howell & Howell was involved in the transaction and never visited Frederick at Howell & Howell’s offices to discuss the purchase of this property. Wood never produced any evidence to demonstrate that Howell & Howell was involved in his purchase of this property or that a genuine issue of material fact remained that would make Howell & Howell hable for any of Frederick’s actions.

¶ 10. Nevertheless, Wood maintains that Howell & Howell is liable for Frederick’s conduct because Frederick acted with apparent authority. The Mississippi Supreme Court has stated:

Apparent authority exists when a reasonably prudent person, having knowledge of the nature and usages of the business involved, would be justified in supposing, based on the character of the duties entrusted to the agent, that the agent has the power he is assumed to have.

Mladineo v. Schmidt, 52 So.3d 1154, 1167 (¶ 49) (Miss.2010) (quoting Andrew Jackson Life Ins. Co. v. Williams, 566 So.2d 1172, 1180 (Miss.1990)). “To recover under the theory of apparent authority, ... three factors must be present: (1) acts or conduct on the part of the principal indicating the agent’s authority, (2) reasonable reliance on those acts, and (3) a detrimental change in position as a result of such reliance.” Id. (citing Williams, 566 So.2d at 1180). Also, while the question of whether the evidence meets the three factors is a question of fact for the jury, “if evidence on any of the three elements is missing, summary judgment [on this issue] is appropriate.” Hutton v. Am. Gen. Life & Accident Ins. Co., 909 So.2d 87, 94 (¶ 21) (Miss.Ct.App.2005) (citing Barhonovich v. Am. Nat’l Ins. Co., 947 F.2d 775, 778 (5th Cir.1991)).

¶ 11. Frederick’s and Wood’s deposition testimonies demonstrate the absence of a genuine issue of material fact as to Frederick’s apparent authority. Frederick testified that he was not selling this property on Howell & Howell’s behalf. Wood testified that he never signed any papers that would indicate that Howell & Howell was involved in the sale of this property. Wood failed to present any evidence of conduct by Howell & Howell that would indicate that it gave Frederick authority to sell the subject property on its behalf. While it is undisputed that Frederick worked for Howell & Howell and that Wood had previously visited with Frederick at Howell & Howell’s offices in connection with other parcels of property, the course of past dealings is just one factor for the finder of fact to consider in determining the scope of an agent’s apparent authority. See Alexander v. Tri-County Co-op. (AAL), 609 So.2d 401, 404 (Miss.1992). With no evidence to demonstrate that Howell & Howell acted in any way to convey to Wood that Frederick was selling the subject property on its behalf, any evidence supporting the remaining two factors is irrelevant, and this issue was proper for disposal at the summary-judgment stage. Accordingly, this issue is without merit.

II. Motion to Amend

¶ 12. Wood- argues that the circuit court erroneously denied his request to amend his complaint, which he filed with his request for reconsideration thirteen days after the circuit court entered its final judgment granting summary judgment in favor of Howell & Howell. “Motions for leave to amend a complaint are at the sound discretion of the [circuit] court.” Harmon v. Regions Bank, 961 So.2d 693, 701 (¶ 28) (Miss.2007) (citing Wal-Mart Super Ctr. v. Long, 852 So.2d 568, 570 (¶ 6) (Miss.2003)). Therefore, we review a circuit court’s denial of such a request under an abuse-of-discretion standard. Moeller v. Am. Guar. & Liab. Ins. Co., 812 So.2d 953, 961 (¶ 26) (Miss.2002). Our supreme court has previously held that “[a] motion to amend is not timely where it is filed after summary judgment is entered.” Harmon, 961 So.2d at 701 (¶ 29) (citing Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1219-20 (¶ 49) (Miss.2001)).

¶ 13. Wood’s motion to amend his complaint proposed to add alleged areas of liability for Howell & Howell, despite the circuit court’s previous grant of summary judgment in favor of Howell & Howell. Accordingly, as Wood filed his motion to amend his complaint after the entry of summary judgment in favor of Howell & Howell, the circuit court properly denied Wood’s request to amend his complaint. This issue is without merit.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, CONCUR.

      . Wood's lawsuit initially listed Howell & Howell and Mossy Oak Properties as two separate entities. However, during discovery, the circuit court learned that Howell & Howell’s proper name is Mossy Oak Properties Howell & Howell Estates & Land LLC. As such, the circuit court dismissed Mossy Oak Properties Inc., as a separate entity, prior to the filing of Howell & Howell’s summary-judgment motion.

      . The circuit court granted summary judgment with respect to Howell & Howell only and certified it as a final judgment pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure.


text:
    Ernest T. JONES, Appellant v. ALCORN STATE UNIVERSITY; Darren J. Hamilton, Ph.D.; George E. Ross, Ph.D.; and The Mississippi Institutions of Higher Learning, Appellees.
    No. 2011-SA-01004-COA.
    Court of Appeals of Mississippi.
    Aug. 27, 2013.

      Wayne E. Ferrell Jr., Paul Anderson Koerber, Jackson, attorneys for appellant.
    Alan M. Purdie, Grenada, Christopher Hailey Corkern, Ridgeland, attorney for appellees.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On February 20, 2009, Ernest T. Jones filed a petition for a writ of certiora-ri in the Claiborne County Circuit Court, contesting the findings of the Alcorn State University (ASU) Grievance Committee (Committee) that resulted in his termination as ASU’s head football coach. The circuit court dismissed Jones’s petition. Feeling aggrieved, Jones appeals and argues that the circuit court (1) misapplied the law regarding the constitutional and statutory violations committed by ASU, Dr. Darren J. Hamilton, Dr. George E. Ross, and the Board of Trustees of State Institutions of Higher Learning of the State of Mississippi (Board) in wrongfully violating his employment contract; (2) erred in failing to address Jones’s property interest in his employment; and (3) erred in failing to address the arbitrary and capricious manner in which ASU violated his employment contract.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On August 11, 2008, Jones entered into an employment contract with the Board. The contract reads, in pertinent part:

The Employee is hereby employed as Head Football Coach and Instructor ... at [ASU] ... for the period beginning January 2, 2008[,] and ending on December 31, 2011, at and for the sum of $140,000, payable in 12 monthly installments starting at the close of the months of January 2008 through December 2011, inclusive.

This employment contract is subject to the following terms and conditions:

1. The laws of the State of Mississippi and policies and by-laws of the Board....
3. The Board shall have the authority to terminate this contract at any time for the following [reasons]:
a. Financial exigencies declared by the Board;
b. Termination or reduction of programs, or academic or administration units as approved by the Board;
c. Malfeasance, inefficiency[,] or contumacious conduct;
d. For cause.

One of the additional clauses of the employment contract provides that

[ i]n the event that the Board decides to terminate this contract on the basis of [the] employee’s malfeasance, inefficiency, contumacious conduct!,] or for cause, both the coaching and instructional positions of [the] employee are terminable at any time, subsequent to written notice of the reasons for termination and a pre-termination hearing!.]

¶ 4. Hamilton, ASU’s athletic director, gave written notice to Jones that ASU was considering terminating Jones’s employment as head football coach. In the letter, Hamilton cited inefficiency and malfeasance and identified the following reasons for recommending Jones’s termination:

Opening [the Run-N-Gun] bank account in your name and depositing fundraising monies for ASU’s football program without proper authority to do so and without following the proper procedures,
Improperly purchasing and receiving footwear on behalf of ASU with a non-approved Nike vender when ASU has an exclusive footwear contract with Nike, Inefficiency in resolving the $11,000 goods order from Russell Athletics without authority to do so and without following proper procedures!,] and
Contractually binding ASU for rooms reserved at the Marriott Hotel in Jackson, [Mississippi,] during the Capital City Classic without authority to do so and without following proper procedures.

The letter also informed Jones of his rights, pursuant to the Board’s policy, to have a due-process hearing and to have an attorney present at the hearing. Specifically, the letter stated that if Jones chose to bring an attorney to the hearing, the attorney could “act only as an advisor and [would] not be allowed to present evidence or cross-examine witnesses,” but that Jones could present evidence, invite witnesses to speak on his behalf, and question witnesses.

¶5. Jones wrote a letter to Hamilton stating that he “expect[ed] and demand[ed]” a due process hearing. Keyla McCullum, special assistant attorney general, "wrote to Jones’s attorney and informed him that she would be acting as legal counsel for the Committee, which consisted of three full-time employees of ASU. Her letter also informed him of the hearing procedures.

¶ 6. On January 16, 2009, the Committee held Jones’s due-process hearing. After the hearing, the Committee recommended to Ross, ASU’s president, that Jones be terminated on the grounds of malfeasance and contumacious conduct and included their findings on each accusation. On January 26, 2009, President Ross wrote a letter to Jones informing him that he concurred with the Committee’s recommendation and that Jones was terminated as head football coach, effective January 28, 2009. Jones filed his petition for a writ of certiorari in circuit court, which dismissed the petition on the ground that Jones did not meet his burden of proof regarding the Committee’s decision.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 8. “The State’s public universities are considered a part of the executive branch of State government.” Smith v. Univ. of Miss., 797 So.2d 956, 959 (¶ 11) (Miss.2001) (citing Van Slyke v. Bd. of Trs. of State Insts. of Higher Learning, 613 So.2d 872, 879 (Miss.1993)). “State universities, like other executive branch agencies, have adopted appellate procedures for employees who wish to contest an adverse employment decision and have formed administrative, quasi-judicial tribunals to hear and rule upon employee appeals.” Id. at 960 (¶ 11). The Mississippi Supreme Court has held that the decisions of these tribunals may be reviewed by writ of cer-tiorari. Id. at (¶ 12). On appeal, the circuit court and this Court’s standard of review is limited to determining whether the decision “(1) was unsupported by substantial evidence, (2) was arbitrary and capricious, (3) was beyond the power of the [tribunal] to make, or (4) violated some statutory or constitutional right of the complaining party.” Miss. Bureau of Narcotics v. Stacy, 817 So.2d 523, 528 (¶ 17) (Miss.2002). In reviewing those decisions, the circuit court must not substitute its judgment for that of the tribunal. Id. at 526 (¶ 9).

I. Constitutional and Statutory Rights

¶ 9. Jones argues that the circuit court erred in not making any findings of fact and “merely recit[ing] general elements of law without making any application of such law to the facts addressed in the [p]etition, ... in violation of Rule 52(a) of the Mississippi Rules of Civil Procedure.” However, because the circuit court was sitting as an appellate court in this instance, it was not required to issue findings of fact. See Charles E. Morgan Constr. Co. v. City of Starkville, 909 So.2d 1145, 1149 (¶ 12) (Miss.Ct.App.2005).

¶ 10. Next, Jones claims that he was denied procedural due process and that the circuit court failed to address this issue in its order. “Proeedural[-]due[-]process claims require a two-step analysis: (1) does the plaintiff have a property interest entitled to procedural[-]due[-]process protection; and (2) if yes, what process is due.” Harris v. Miss. Valley State Univ., 873 So.2d 970, 985 (¶ 40) (Miss.2004) (citing Bluitt v. Houston Indep. Sch. Dist., 236 F.Supp.2d 703, 733 (S.D.Tex.2002)). “Under Mississippi law, public employees who have contracts with definite terms have property interests and an expectancy of continued employment and[,] therefore[,] are entitled to the protections of the [D]ue [P]roeess [C]lause of the Fourteenth Amendment to the U.S. Constitution.” Diamondhead Country Club & Prop. Owners Assoc., Inc. v. Montjoy, 820 So.2d 676, 681 (¶ 9) (Miss.Ct.App.2000) (citations omitted). Public employees who have a property interest in their employment must be given notice of impending termination and an opportunity to respond. Harris, 873 So.2d at 985 (¶ 40). Notice to the employee is effective once the employee receives an oral or written explanation of the charges against the employee. Id. An adequate opportunity to be heard consists of at least a hearing, but it does not require the procedural safeguards of a trial. Id.

¶ 11. As Jones was a public employee with a contract with definite terms, he was entitled to due-process protections. Hamilton’s letter to Jones cited malfeasance and inefficiency as grounds for recommending his termination. The letter also included specific allegations against Jones and informed him of his right to a hearing. Therefore, Jones received adequate notice as required by procedural due process. Also, ASU granted Jones a hearing that gave him a fair opportunity to be heard and to rebut the allegations being made against him. Jones argues that the hearing was unfair, as his attorney was not allowed to cross-examine witnesses or present evidence, and that McCullum acted as if she were a judge presiding over the hearing. However, Hamilton explained in his letter to Jones that Jones’s attorney would only serve as an advisor and could neither present evidence nor cross-examine witnesses. Also, it is clear in the transcript that McCullum effectively ran the hearing based on proper protocol and procedure. Accordingly, ASU did not violate Jones’s due-process rights. This issue is without merit.

II. Arbitrary and Capricious

¶ 12. Jones insists that ASU “possessed no reason or judgment” in the decision to terminate him and that the termination of his contract was arbitrary and capricious. According to our supreme court, “the terms arbitrary and capricious are open-textured and not susceptible to precise definition or mechanical application.” Miss. Transp. Comm’n v. Anson, 879 So.2d 958, 964 (¶ 17) (Miss.2004) (quoting Miss. State Dep’t of Health v. Sw. Miss. Reg’l. Med. Ctr., 580 So.2d 1238, 1240 (Miss.1991)) (internal quotation marks omitted). “[A]n act is capricious when it is done without reason, in a whimsical manner, implying either lack of understanding of or a disregard for the surrounding facts and settled controlling principles.” Id. (quoting Sw. Miss. Reg’l. Med. Ctr., 580 So.2d at 1240) (internal quotation marks omitted). An act is arbitrary when done “capriciously or at pleasure.” Sw. Miss. Reg’l. Med. Ctr., 580 So.2d at 1240 (citation omitted).

¶ 13. We cannot find that the Committee’s findings were without reason or implied a lack of understanding. The evidence throughout the record and transcript supports the Committee’s findings. Jones opened the Run-N-Gun account as a separate account for fundraising monies for ASU-football radio and television shows. Jones was the only person who had control over the account. When told to close the account because he did not have approval to open the account, Jones wrote a $7,674.67 check to the ASU Foundation out of the account, leaving $2,506 unaccounted for, which Jones claims was used to pay for concessions for one of the fundraisers. Hamilton stated that he knew of and approved these fundraisers, but did not know that the money that was raised was going into a separate personal account instead of the Foundation’s account. The Committee found that there was no administrative oversight on how the Run-N-Gun account was operated, how cash and check receipts were processed, or how withdrawals were made.

¶ 14. With regard to the purchase of footwear on behalf of ASU from a non-approved Nike vendor, the Committee found that Jones had previously been allowed to purchase goods from vendors of his choice without prior approval. The Committee further found that Jones had no knowledge of ASU’s exclusive Nike contract. As for the inefficiency in resolving the issue of an $11,000-goods order that was made without authority, the Committee found that Jones himself did not initiate the order. However, the Committee also found that Jones was uncooperative in assisting ASU’s athletic department in resolving the problem. Further, Jones made no effort to confirm the meeting date or attend the meeting scheduled for the purpose of addressing the outstanding bill.

¶ 15. Finally, regarding the allegation that Jones did not follow the proper procedure or obtain authority to bind ASU for rooms at the Marriott Hotel in Jackson, Mississippi, for the Capital City Classic, the Committee found that “[Jones’s] self-interest had taken precedence over the university’s interests.” The Committee also found that Jones contractually bound ASU without initiating a requisition or obtaining the purchase order. Even though ASU was able to recoup expenses for some of the unused hotel reservations, ASU still incurred additional expenses for the remaining unused hotel reservations.

¶ 16. The Committee considered the testimony and exhibits from the hearing and made recommendations that were neither arbitrary nor capricious. The Committee supported its recommendation with the evidence and testimony presented at the hearing, indicating that there was no lack of reasoning or understanding, or disregard for the surrounding facts and settled controlling principles. Thus, the Committee’s decision was not arbitrary and capricious, and the circuit court did not err in dismissing Jones’s petition for a writ of certiorari.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.