author: GRIFFIS, P.J.,

text:
    Tazarius COOPER a/k/a T.C., Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00460-COA.
    Court of Appeals of Mississippi.
    Oct. 15, 2013.
    Rehearing Denied Feb. 18, 2014.

      George T. Holmes, Jackson, Michael Anthony Williams, Phillip Broadhead, attorneys for appellant.
    Office of the Attorney General by Elliott George Flaggs, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Tazarius Cooper appeals his conviction for possession of ecstasy with the intent to distribute, transfer, or sell. In this appeal, Cooper argues it was error for the court to: (1) deny his motion to suppress evidence, and (2) deny his motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. We find no error and affirm.

FACTS

¶ 2. Cooper was indicted for the possession of ecstasy, a Schedule I controlled substance, with the intent to sell, barter, transfer, or deliver to another, in violation of Mississippi Code Annotated section 41-29-139(a)(l) (Rev.2009).

¶ 3. The State presented three witnesses: Detectives Joe Edney and Chari-ton Smith of the Greenville Police Department, and Allison Convide, a forensic scientist for the Mississippi Crime Laboratory.

¶ 4. Det. Edney testified that on July 12, 2012, a concerned citizen phoned the Greenville Police Department’s Special Operations Unit to complain about illegal-narcotics activity at the 500 block of Union Street in Greenville. This was an area known for heavy drug trafficking. Lieutenant Redmond received the complaint and communicated it to Det. Edney. Lt. Redmond stated that the caller complained that “young men, young black men, are standing out on sidewalks, corners, selling drugs.” Det. Edney and Det. Smith went to investigate the tip. Det. Edney testified that they arrived at the scene in a black Ford F-250, flashed the blue lights, and exited the vehicle. He recognized the house and knew the owner of the house, who was not Cooper. According to Det. Edney, the house was very decrepit and had holes everywhere. Det. Edney had previously reported the house to the housing authority, and it was declared inhabitable.

¶ 5. Det. Edney testified that before he exited the vehicle, he saw Cooper and Cooper’s friend, Dennis Wright, standing next to Cooper. After Det. Edney commanded the two individuals not to move, Wright complied. Cooper ran. Cooper then forced himself into the door of the house. Det. Edney followed in pursuit of Cooper. Det. Edney observed Cooper throw a clear bag with a blue substance into a hole in the wall from outside the front steps of the house. Det. Edney claimed that he could see into the living room and observe Cooper’s actions, because the drywall was missing. Det. Edney then detained Cooper and field tested the twenty-one blue, dolphin-imprinted pills in the clear bag. The pills tested positive for ecstasy. Det. Edney arrested Cooper.

¶ 6. Det. Edney also testified that he charged Cooper with possession with intent to distribute. Det. Edney reasoned that, based on his knowledge, the number of pills found in Cooper’s possession would be inconsistent with personal use. Det. Edney further testified, after being questioned by defense counsel, that items such as scales and plastic baggies were not necessary for the sale of ecstasy. Ecstasy pills are handed out individually when sold.

¶ 7. During a pretrial hearing on Cooper’s motion to suppress the evidence of the ecstasy pills, which claimed the evidence was the fruit of an illegal search, Det. Edney gave similar testimony. Based on Det. Edney’s testimony at the pretrial hearing, and after clearing up the factual dispute as to whether Det. Edney stood outside or inside the house when he witnessed Cooper throw the clear bag into the wall (he was outside of the house), the trial judge denied Cooper’s motion to suppress the ecstasy pills. The court held that the pills were not the fruits of an illegal search by Det. Edney, due to a lack of a search warrant, an arrest warrant, or exigent circumstances.

¶ 8. Det. Smith testified at trial that he responded to the anonymous tip with Det. Edney on the day in question. He claimed, as Det. Edney testified, that they arrived at the scene in a black Ford F-250 and activated their blue police lights. As they exited the vehicle, Det. Edney commanded Cooper and Wright to stop. Det. Smith detained Wright, while Det. Edney pursued Cooper as he ran into the house. Det. Smith testified that he saw Cooper run into the house. However, he did not enter the house himself.

¶ 9. Conville testified that she performed a color test and instrumental-analysis test on the twenty-one pills recovered at the crime scene, and the pills tested positive for ecstasy.

¶ 10. In his own defense, Cooper testified at trial that he walked down the street to his friend’s home located on the 500 block of Union Street. Cooper, along with Wright and Wright’s nephew, sat outside of the home. Cooper then walked inside of the home to use the bathroom. Instead of using the bathroom, however, Cooper decided to retrieve his Black & Mild cigar and then go back outside. After the owner of the house told him that the cigar was on the kitchen table, Cooper grabbed the cigar and began walking through the kitchen to go back outside. As he was on his way outside, he could see a white Dodge Charger pull into the driveway of the home. He testified that he did not see any police lights on the vehicle.

¶ 11. Cooper testified that before he could walk outside, Det. Edney met him at the door and aimed a loaded gun at him just as Cooper was explaining that the home was not Cooper’s residence. Det. Edney did not have a search or arrest warrant for Cooper. Cooper testified that Det. Edney entered the home without permission from the owner, slammed Cooper to the kitchen floor, and searched all of the cabinets and throughout the house. After a few moments, Det. Edney returned with a bag containing twenty-one dolphin-imprinted pills that he said he recovered from a hole in the wall in the living room. Cooper denied that he owned the pills or the house. Nevertheless, Det. Edney arrested Cooper and walked him back outside. Det. Edney then field tested the pills. They tested positive for ecstasy.

¶ 12. Wright also testified that he was with Cooper and his nephew on the day of Cooper’s arrest. They were sitting outside of the house at the 500 Block of Union Street. Wright claimed that Cooper went in the house to use the bathroom before the officers came in a white, unmarked Dodge Charger. Wright then claimed that Cooper was getting ready to come out of the house when the officers arrived. He stated that they both heard the officers command them to stop. He also testified that Det. Edney went into the house to pursue Cooper as Det. Smith detained him. Wright claimed that Det. Edney arrested Cooper afterwards. Wright also testified as to the decrepit condition of the residence, particularly that there were holes in the walls of the house.

¶ 13. The jury returned a verdict that found Cooper guilty of possession of ecstasy with intent to distribute pursuant to Mississippi Code Annotated section 41-29-139(a)(1) (Rev.2009). Cooper was sentenced to serve a term of seven years in the custody of the Mississippi Department of Corrections, with two years to serve followed by five years of post-release supervision. The circuit court ordered the sentence to run consecutively to any sentence he is currently obligated to serve. Cooper subsequently filed a motion for a JNOV or, in the alternative, a new trial. The circuit court denied the motion.

ANALYSIS

1. Motion to Suppress Evidence

¶ 14. Cooper argues in his first issue on appeal that the trial court erred when it denied his motion to suppress the bag containing the ecstasy pills. Cooper claims that the bag was the fruit of an illegal search and seizure that violated his Fourth Amendment rights.

¶ 15. This Court applies a mixed standard of review to Fourth Amendment suppression-of-evidence inquiries. Dies v. State, 926 So.2d 910, 917 (¶ 20) (Miss.2006). “Determinations of reasonable suspicion and probable cause should be reviewed de novo.” Id. “However, this Court is restricted to a de novo review of the trial judge’s decision based on historical facts reviewed under the substantial evidence and clearly erroneous standards.” Id. Further, the Court reviews a trial court’s decision to admit or exclude evidence following a motion to suppress under the abuse-of-discretion standard. Lee v. State, 100 So.3d 982, 984 (¶8) (Miss.Ct.App.2012) (citation omitted).

¶ 16. The basis for the alleged violation of Cooper’s Fourth Amendment rights is two-fold. First, Cooper contends that the unreliability of the anonymous tip that led to his arrest resulted in a lack of reasonable suspicion for an investigatory stop or probable cause for his arrest. Cooper asserts that the anonymous call to the Greenville Police Department about drug activity at his location “lacked any detail that could be corroborated by independent investigation.” The anonymous tip, according to Cooper, provided “very general information” that offered no detail beyond location and lacked specificity as to the criminal activity that had occurred. Cooper contends that this lack of specificity would indicate that the “tip was either based on second-hand knowledge or had no basis of knowledge and was just a rumor.” Because such a tip lacks the detailed and predictive information to pass the Gates test for reliability, Cooper contends, the officer lacked the reasonable suspicion or probable cause to permit the warrantless search and seizure. Illinois v. Gates, 462 U.S. 213, 238,103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

¶ 17. Second, Cooper contends that without reasonable suspicion, probable cause, a valid search or arrest warrant, or exigent circumstances, it was unlawful for Det. Edney to make a warrantless entry into the residence to arrest Cooper and seize the bag of ecstasy. Specifically, Cooper argues that exigent circumstances, in the absence of probable cause or a valid warrant, would be the only lawful means by which Det. Edney could have made the warrantless entry into the residence to pursue him. Cooper further contends that the factual circumstances of his pursuit and arrest do not give rise to the exigency exception.

¶ 18. We find that the anonymous tip was sufficient to establish reasonable suspicion for an investigatory stop. Additionally, Det. Edney’s personal observation of Cooper’s actions gave him probable cause and exigent circumstances for Cooper’s subsequent arrest and warrantless entry into the residence for that arrest.

¶ 19. This Court has found that an anonymous tip can provide reasonable suspicion to make an investigatory stop if suitably corroborated to establish its reliability. Williamson v. State, 876 So.2d 353, 355 (¶ 10) (Miss.2004) (quotation marks omitted). Reasonable suspicion for an investigatory stop may be based on the arresting officer’s personal observations or an informant’s tip if indicia of reliability are present. Id. at (¶ 11). Further, an anonymous tip can establish probable cause for a search warrant if it passes the Gates test. Lee v. State, 435 So.2d 674, 676-77 (Miss.1983). The United States Supreme Court in Gates articulated a “totality of the circumstances” test to determine when information obtained through an anonymous tip can establish the probable cause for a search or arrest warrant, which is necessary to protect citizens from unreasonable searches and seizures. Gates, 462 U.S. at 238, 103 S.Ct. 2317. The “totality of the circumstances” test considers (1) veracity, (2) reliability, and (3) basis of knowledge. Id. at 233, 103 S.Ct. 2317.

¶ 20. Here, we decline to undergo a full Gates analysis to determine probable cause, because we find that the anonymous tip was sufficient to provide reasonable suspicion for Det. Edney to make an initial investigatory stop. This Court’s ruling in Baker v. State, 991 So.2d 185 (Miss.Ct.App.2008), is dispositive of this issue and analogous to the facts in the instant case.

¶ 21. In Baker, this Court held that a call by an anonymous informant about several people in a home “cooking drugs,” which led to the seizure of the necessary ingredients for methamphetamine and an arrest for the illegal possession of methamphetamine as well as the intent to distribute, was reliable enough to provide reasonable suspicion that warranted further investigation by the police, which led to the lawful seizure and arrest. Id. at 187 (¶ 7). The court stated that the anonymous tip contained sufficient evidence to warrant further investigation because (1) the caller gave fresh information about the incident in question, as she had just left the residence when she saw people cooking drugs; and (2) the deputies were familiar with Baker’s address because they had responded to drug-related and domestic incidents at his residence in the past. Id. This Court emphasized that some anonymous tips would either require no police response or warrant further investigation before a forcible stop of a suspect would be authorized. Id. at (¶ 8) (citation omitted).

¶ 22. Further, this Court held that “an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest.” Id. (quoting Linson v. State, 799 So.2d 890, 893 (¶10) (Miss.Ct.App.2001)). Therefore, this Court found that Baker’s assertion that the deputies should not have responded to the anonymous tip to be without merit, because the trial judge did not abuse his discretion, as this case “was an instance that required a further investigation [of the anonymous tip].” Id.

¶ 23. Here, as in Baker, Det. Edney lawfully investigated the activity at the 500 block of Union Street based on the anonymous tip and other circumstances, as the circumstances warranted further investigation. It is not disputed, based on the record, that the anonymous tip stated that young black males were on the corner of the 500 block of Union Street selling drugs. The tip was based on fresh, firsthand information witnessed by the anonymous caller, who gave details about the race and sex of the suspects along with the criminal activity going on at the particular location on Union Street. Det. Edney testified that he was familiar with this block because it was known for heavy drug trafficking, and he had responded to numerous narcotics complaints at this block in the past. Based on the anonymous tip and his knowledge of the area’s history of drug trafficking, Det. Edney and Det. Smith went to further investigate the tip. Once they arrived on the scene, not only did they see two black males at the corner, but Det. Edney immediately recognized Cooper from previous narcotics complaints in the area. Therefore, the combination of the information from the anonymous tip, the block’s known reputation for heavy drug trafficking, and Det. Edney’s recognition of Cooper from previous drug complaints corroborated the anonymous tip and gave the officers reasonable suspicion to make an investigatory stop. And that investigatory stop was legally justified, as in Baker, to resolve a potential criminal situation.

¶ 24. Furthermore, after the officers attempted to investigate the matter by asking the suspects to stop in order to question them, and Cooper suddenly fled into the house, it was Cooper’s actions, as witnessed by Det. Edney, that gave him exigent circumstances and probable cause to make a warrantless entry into the home and arrest Cooper. Cooper argues that the anonymous tip was insufficient to give probable cause for his arrest. However, the anonymous tip was sufficient to give reasonable suspicion for an investigatory stop. It was when Cooper fled to the house, broke in, and threw the bag of ecstasy pills inside the wall, as witnessed by Det. Edney, that gave Det. Edney exigent circumstances for the warrantless entry into the home and probable cause for the arrest.

¶ 25. Under Mississippi law, a police officer can arrest an offender without a warrant if an offense is being committed by the offender in his presence, or the officer has reasonable grounds to suspect the offender has committed a felony offense. Miss.Code. Ann. § 99-3-7(1) (Supp.2012). Further, an officer has the right to enter a house in hot pursuit of a defendant to arrest him, and may use force if necessary to enter the house. Miss. Code Ann. § 99-3-11 (Rev.2007). Hot pursuit of a suspected offender, the possibility that the evidence of a crime may be destroyed or removed, and danger to the lives of officers or others in the residence are the types of exigent circumstances that may justify a warrantless entry into a residence to pursue an offender. Elkins v. McKenzie, 865 So.2d 1065, 1084 (¶58) (Miss.2003) (citing United States v. Capote-Capote, 946 F.2d 1100, 1102-3 (5th Cir.1991)). And when officers are authorized to enter a dwelling under exigent circumstances, they are allowed to seize evidence in plain view during the course of the search. Baker v. State, 802 So.2d 77, 80 (¶ 10) (Miss.2001).

¶ 26. Here, we find that Det. Edney had both exigent circumstances and probable cause to make the warrantless entry into the residence and arrest Cooper after investigating the reliable tip concerning drug activity and going in hot pursuit of Cooper after he fled from lawful questioning about that tip. When Det. Edney personally observed Cooper as he tossed the clear bag to the wall inside the house, Det. Edney had reasonable grounds, based on the circumstances, to suspect that Cooper had committed the offense of illegal possession of drugs. His suspicions were confirmed when he entered the house, detained Cooper, and found the bag in the wall and confirmed it was ecstasy.

¶ 27. Further, Det. Edney’s search and seizure of the ecstasy were lawful. This Court has “consistently held that no warrant is necessary to search for drugs when exigent circumstances exist that make the police believe that the evidence will be destroyed.” Williams v. State, 892 So.2d 272, 278 (¶16) (Miss.Ct.App.2004) (citation omitted). Further, this Court in Williams found that when the appellant discarded the drugs before police detained him, he “abandoned it and deprived himself of any right to privacy.” Id. at (¶ 15) (citations omitted). Like the appellant in Williams, Cooper deprived himself of any privacy by attempting to discard the illegal drugs as well as giving Det. Edney reasonable concern that the evidence of the illegal drugs would be destroyed.

¶ 28. Det. Edney’s testimony as to the events of Cooper’s arrest, as corroborated by Det. Smith, demonstrates Cooper had reasonable suspicion to make the initial investigatory stop, and that both exigent circumstances and probable cause existed to make the warrantless entry into the residence, arrest Cooper, and seize the bag of ecstasy. The ecstasy was the fruit of a lawful search and seizure and was properly introduced into evidence at trial. Therefore, we find this issue has no merit.

2. Motion for a JNOV or, in the Alternative, a New Trial

¶ 29. In his next issue on appeal, Cooper claims that the circuit court erred when it failed to grant his motion for a JNOV or, in the alternative, a new trial, because the State failed to prove beyond a reasonable doubt the two elements of the indicted offense. Particularly, Cooper claims that the State failed to prove beyond a reasonable doubt that (1) Cooper was in actual or constructive possession of the ecstasy, and (2) Cooper had an intent to distribute and sell the ecstasy.

¶ 30. We find, however, that the evidence presented against Cooper was legally sufficient to prove beyond a reasonable doubt that Cooper was guilty of the indicted offense of possession of ecstasy with the intent to distribute. And the guilty verdict was not against the overwhelming weight of the evidence, as Cooper contends.

¶ 31. “Motions for a directed verdict and judgment notwithstanding the verdict challenge the legal sufficiency of the evidence, and the standard[s] of review for a directed verdict and judgment notwithstanding the verdict are identical.” Barfield, v. State, 22 So.3d 1175, 1185 (¶ 34) (Miss.2009) (quoting Nelson v. State, 10 So.3d 898, 905 (¶ 29) (Miss.2009)). “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense exist-edId. (quoting Jones v. State, 904 So.2d 149, 153 (¶12) (Miss.2005)). Evidence that fails to meet this test is insufficient for conviction. Id. The sufficiency of the evidence is determined by examining whether “any rational trier of fact,” after “viewing the evidence in light most favorable to the prosecution,” could have “found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Moore v. State, 996 So.2d 756, 760 (¶ 12) (Miss.2008)). This Court accepts all evidence that is favorable to the State as true, which includes inferences reasonably drawn from the evidence in favor of the State. Id. at 1186 (¶ 34).

¶ 32. This Court reviews a trial court’s denial of a motion for a new trial based on an abuse-of-discretion standard. Butler v. State, 102 So.3d 260, 268 (¶ 23) (Miss.2012). Similar to the trial court’s standard, this Court has the authority to grant a new trial when the court determines, in its discretion, that the verdict “is so contrary to the overwhelming weight of the evidence that to allow the verdict to stand would sanction an unconscionable injustice.” Id. (citing Jackson v. State, 90 So.3d 597, 605 (¶31) (Miss.2012)). “If, upon evaluating the evidence in the light most favorable to the verdict, this Court finds itself in disagreement with the jury’s verdict, the proper remedy is to grant a new trial.” Patterson v. State, 37 So.3d 702, 704 (¶ 10) (Miss.Ct.App.2010).

¶ 33. Mississippi law prohibits the possession of an illegal, controlled substance with the intent to sell, manufacture, or distribute that illegal substance. Miss. Code Ann. § 41-29-139(a)(l) (Supp.2012). A defendant may be convicted of a drug-possession offense if he “was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Dampeer v. State, 989 So.2d 462, 465 (¶9) (Miss.Ct.App.2008) (citation omitted). Possession of an illegal drug may be actual or constructive. Id. at (¶ 10) (citation omitted). Actual and constructive possession both include the elements of awareness and conscious intent to possess. Id. at (¶ 9).

¶ 34. Further, actual possession can be established if an officer witnesses the defendant tossing an object later found to be drugs. Id.; see also Boyd v. State, 634 So.2d 113, 116 (Miss.1994); Lee v. State, 767 So.2d 1025, 1027 (¶8) (Miss.Ct.App.2000). An officer’s testimony stating that he observed the defendant throw the drugs is sufficient to show “actual” possession. Lee, 767 So.2d at 1027 (¶8).

¶ 35. Based on the applicable law, the State provided sufficient evidence to prove that Cooper was in actual possession of the ecstasy. Det. Edney testified that he witnessed Cooper throw a clear bag with a blue substance to the wall of the residence while Det. Edney was just outside of it. Det. Smith corroborated Det. Edney’s testimony by stating that Det. Edney indeed pursued Cooper into the residence after he ignored warnings to stop. After Det. Edney detained Cooper, he field tested the twenty-one blue pills in the clear bag, and they tested positive for the drug ecstasy. Det. Edney’s field-test conclusion that the pills were ecstasy was confirmed by Conville of the Mississippi Crime Lab. Therefore, the State met its burden of proof beyond a reasonable doubt to show actual possession of the ecstasy by Cooper.

¶ 36. Cooper argues that Det. Edney’s testimony alone is the only evidence of possession, and such testimony was insufficient to prove the element of possession beyond a reasonable doubt. Particularly, Cooper argues that his along with Wright’s testimony as to the events of his arrest contradicted Det. Edney’s testimony, and the confusion over Det. Edney’s testimony at the pretrial hearing on whether he was inside or outside the residence when he witnessed Cooper throw the drugs inside the wall further puts the sufficiency of his testimony as to evidence of possession into question.

¶ 37. This Court, however, has consistently held that the sole testimony of an officer who witnessed the defendant toss or discard an illegal drug is sufficient to prove possession beyond a reasonable doubt, as it is solely within the province of the jury to resolve any conflicts in testimony and to determine witness credibility. Griffin v. State, 859 So.2d 1032, 1033-34 (¶¶ 2-4) (Miss.Ct.App.2003); see also Patterson,, 37 So.3d at 704 (¶ 12) (finding sufficient evidence to sustain a possession-of-cocaine conviction where the officer testified that he witnessed the defendant drop an object, that he never lost sight of the defendant, and that the recovered object contained an illegal drug); Gales v. State, 29 So.3d 65, 77 (¶ 3) (Miss.Ct.App.2009) (officer testimony of the defendant’s actions was sufficient to find that the defendant was in possession of illegal drugs even though the drugs were not found on him when he was apprehended).

¶ 38. Here, the jury heard Det. Edney’s testimony at trial that he witnessed Cooper throw the drugs to the wall from outside of the residence. The jury heard this testimony and other witness testimony for the State, along with the testimony of the defense witnesses, weighed the testimony, and properly found Cooper guilty of the crime. Therefore, the evidence of Det. Ed-ney’s testimony was sufficient to prove that Cooper was in actual possession of the ecstasy.

¶ 39. Finally, the State’s evidence presented was sufficient to prove that Cooper had an intent to distribute the ecstasy. This Court has held that a “large quantity of a controlled substance can alone establish an intent to distribute.” Blissett v. State, 754 So.2d 1242, 1244 (¶ 10) (Miss.2000) (citations omitted). Officer testimony that the quantity of drugs found in the defendant’s possession was inconsistent with personal consumption is sufficient to establish an intent to distribute the drugs. Id. at 1244-45 (¶ 11); see also Bond v. State, 42 So.3d 587, 593 (¶ 25) (Miss.Ct.App.2010) (officer testimony that the quantity of methamphetamine discovered in the defendant’s residence was “more that what most users would have for personal use,” was sufficient to establish that the methamphetamine was intended for distribution and not mere personal use, thus supporting a conviction for possession of methamphetamine with the intent to distribute).

¶ 40. Det. Edney testified, based on his personal knowledge, that the twenty-one ecstasy pills found on Cooper, in an area known for heavy drug trafficking, was an amount inconsistent with personal consumption. Further, he testified that any other evidence of drug distribution, such as scales and baggies, was unnecessary because ecstasy is distributed by personally handing pills to individuals. Thus, Det. Edney’s testimony, combined with the totality of the factual circumstances, including Cooper’s presence in an area known for heavy drug trafficking and his flight from questioning by Det. Edney, was sufficient to prove the element of “intent to distribute,” as well as the element of possession, beyond a reasonable doubt. His testimony is not contrary to the overwhelming weight of the evidence. A reasonable juror could have found Cooper guilty of possession with intent. Therefore, we find that this issue is without merit.

¶ 41. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF CONVICTION OF POSSESSION OF ECSTASY WITH INTENT TO DISTRIBUTE AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWO YEARS TO SERVE FOLLOWED BY FIVE YEARS OF POST-RELEASE SUPERVISION, WITH THE SENTENCE TO RUN CONSECUTIVELY TO ANY OTHER SENTENCE CURRENTLY BEING SERVED, AND TO PAY A $3,000 FINE AND $500 TO THE CRIME VICTIMS’ COMPENSATION FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

LEE, C.J., BARNES, ISHEE, CARLTON, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., ROBERTS AND MAXWELL, JJ., CONCUR IN PART AND IN THE RESULT.

      . Mississippi Code Annotated section 99-3-7(1) provides:
      An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested.
      And in all cases of arrests without warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense, or is arrested on pursuit.

      . See also Watts v. State, 305 So.2d 348, 351 (Miss.1974) (holding that an officer who pursued a defendant in an effort to arrest him had the right to enter the house in pursuit of the defendant and to use force, if necessary, to enter the house).


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Bruce CHAMBERS, Appellant v. CLAYTON BANK & TRUST CO., Appellee.
    No. 2013-CP-00116-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.
    Rehearing Denied Feb. 25, 2014.
    Certiorari Denied May 8, 2014.

      Bruce Chambers, appellant, pro se.
    Jeffrey D. Rawlings, Jon J. Mims, Madison, attorneys for appellee.
    Before GRIFFIS, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In November 2011, Bruce Chambers purchased a mobile home from a mobile-home-sales company in Carthage, Mississippi. After making a down payment, Chambers executed a retail-installment and security agreement (the agreement) with Clayton Bank & Trust Company for the remainder of the home’s purchase price, using the home as collateral. In October 2012, Clayton filed a complaint in the Leake County Circuit Court stating that Chambers was in default of his payments under the agreement, and sought replevin in the form of the home. Chambers answered the complaint and filed a motion to dismiss. The motion was denied, and Clayton’s request for replevin was granted. The circuit court gave Chambers fourteen days to post a bond for a stay of execution. Chambers failed to do so, and the home was returned to Clayton. Chambers filed the instant appeal. He raised the same issues he filed in his appeal in a complaint filed in the United States District Court for the Southern District of Mississippi. The district court denied Chambers’s requests for relief and ordered that he submit his claims to arbitration. Chambers appeals on claims that the circuit court erred by granting replevin and by failing to consider federal laws and regulations he claims are applicable to Clayton. Because the issues raised are now moot, we dismiss this appeal.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On November 5, 2011, Chambers purchased the mobile home in Carthage. Chambers made a down payment of $7,500 and paid for the remainder of the home through the agreement with Clayton. The terms of the agreement dictated that Chambers would make monthly installment payments to Clayton. The agreement also stated that if Chambers failed to make the requisite payments, Clayton would take possession of the home by means of replevin.

¶3. In October 2012, Clayton filed a complaint in the circuit court asserting that Chambers was in default under the agreement and seeking replevin. Therein, Clayton requested that the circuit court grant it the right to take possession of the home and order Chambers to pay the remainder of the loan amount after the home was disposed. Chambers answered the complaint and filed a motion to dismiss.

¶ 4. The circuit court denied the motion to dismiss and granted Clayton’s request for replevin. In its final judgment issued in December 2012, the circuit court ordered that the home be seized immediately and delivered to Clayton. Chambers petitioned the circuit court for a new hearing. The motion was denied. However, the circuit court granted Chambers a stay of execution if he posted a $51,000 bond within fourteen days of the order. Chambers failed to post the bond, and, subsequently, the home was delivered to Clayton.

¶ 5. Chambers filed an appeal in January 2018. A month later he filed a complaint in the district court asserting the same issues he now appeals. He also sought injunctive relief from the district court. The district court denied Chambers’s request for injunctive relief and ordered him to submit the remainder of his claims to arbitration. We now assess Chambers’s instant appeal.

DISCUSSION

¶ 6. Chambers asserts that the circuit court erred by granting Clayton’s re-plevin request and by failing to consider applicable federal law. However, Clayton argues that Chambers’s issues are moot due to the district court’s final judgment on the matter ordering Chambers to submit his issues to arbitration. We agree.

¶ 7. Chambers’s issues on appeal are almost identical to those he presented to the district court in his complaint filed in February 2013. The district court considered Chambers’s claims, including his assertions that several federal statutes apply to the circumstances, and issued a final judgment ordering him to resolve the matters through arbitration. “[A] final judgment on the merits of an action precludes the parties and their privies from relitigat-ing claims that were or could have been raised in that action.” Robinson v. Hosemann, 918 So.2d 668, 671 (¶ 12) (Miss.2005) (quoting Johnson v. Howell, 592 So.2d 998,1002 (Miss.1991)). As such, any question regarding the grant of replevin or the applicability of federal law to Chambers’s case must now arise through an appeal of the district court’s order and not through the circuit court.

¶ 8. Furthermore, as an aside, Clayton correctly notes that our supreme court has held that “[cjases in which an actual controversy existed at trial but the controversy has expired at the time of review, become moot.” Fails v. Jefferson Davis Cnty. Pub. Sch. Bd., 95 So.3d 1223, 1225 (¶ 10) (Miss.2012). “A case is moot so long as a judgment on the merits, if rendered, would be of no practical benefit to the plaintiff or detriment to the defendant.” Id. Here, Clayton has already received the mobile home and has disposed of the mobile home, leaving the issues at hand moot. The replevin action could not be reversed and the parties returned to their original states at this point even if an appellate court deemed it so. Therefore, we dismiss this appeal as moot.

¶ 9. THIS APPEAL IS DISMISSED AS MOOT. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: ROBERTS, J.,

text:
    Michael ROGOWSKI a/k/a Michael John Rogowski a/k/a Michael J. Rogowski, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KM-00222-COA.
    Court of Appeals of Mississippi.
    Feb. 11, 2014.
    Rehearing Denied June 3, 2014.
    Certiorari Denied Aug. 28, 2014.

      Michael Rogowski, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., ROBERTS and JAMES, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Michael Rogowski was stopped at a driver’s license checkpoint operated by the Lamar County Sheriffs Department. He refused to present his driver’s license, and ultimately he was arrested for disorderly conduct. He was convicted in the Justice Court of Lamar County of that charge. He appealed to the County Court of Lamar County, where after a trial de novo, the county court judge found him guilty of disorderly conduct, and imposed a fine of five hundred dollars. Rogowski appealed to the Circuit Court of Lamar County, which sitting as an appellate court, affirmed the conviction. Rogowski appealed the conviction to the Mississippi Supreme Court, and the appeal was assigned to this Court. Upon appeal, Rogowski, pro se, does not contend there was insufficient evidence to find him guilty of disorderly conduct. Rather, Rogowski contends only that the checkpoint was an illegal seizure that violated his rights secured by the Fourteenth Amendment to the United States Constitution. Finding no error, we affirm.

FACTS

¶ 2. Lamar County Sheriffs Deputy Joshua Craft testified in the county court that, on the night of November 11, 2011, he and five or six other deputies operated a driver’s license checkpoint. It was dark, but the deputies were in uniform, wearing reflective vests, and police cruisers were parked at the checkpoint with their blue lights flashing. Deputy Craft testified Ro-gowski pulled up to the checkpoint. Deputy Craft asked to see Rogowski’s driver’s license, and Rogowski refused to show it. Deputy Craft opened Rogowski’s vehicle door and unbuckled his seat belt. ■ Rogow-ski “locked out his arms and legs,” and refused to get out of the vehicle. Deputy Craft testified Rogowski was then forcibly removed from the vehicle, and they “struggled for a few moments.” Rogowski was then handcuffed and arrested for disorderly conduct.

¶ 3. The only other witness testifying in the county court was Rogowski, who also represented himself in that court. His version of events was quite different. He testified he was driving home from a class project at the University of Mississippi and observed something in the unlit road, which at first he took to be an animal of some kind, but upon getting closer, Ro-gowski realized he was looking at “a human figure in dark clothing standing in the middle of the road in the left turn [Rogow-ski’s] vehicle was in.” Rogowski testified the intersection was not well lit, but the individual turned on a flashlight and waived it at him, so he slowed to a stop by the person, and partially rolled down his window. Rogowski said the individual shined the flashlight directly into his eyes and “blinded” him. At some point in time, Rogowski noticed there was more than one individual. He further noticed that at least one individual wore a “small yellow vest,” but the vest was not at all reflective. Rogowski stated the individual at his vehicle’s window “became angry” and asked for his identification, and before he could ask who the people were or what they were doing, they reached inside his vehicle and tried to remove him from it, so he locked his arms on the steering wheel. He stated he was attempting to engage his vehicle’s clutch and put the transmission in neutral to avoid harming anyone. Only then did he notice the individuals were “police officers.” He was then removed from the vehicle, handcuffed, arrested, and transported to the sheriffs office.

ANALYSIS

¶ 4. The standard of review for determining whether the evidence is legally sufficient to sustain a conviction in a case tried without a jury is the same as the standard for reviewing a denial of a motion for a judgment notwithstanding the verdict. This Court may only reverse where the evidence supporting one or more of the elements of the offense charged is so lacking that the fact-finder could only have found the defendant not guilty. Robinson v. State, 794 So.2d 293, 296 (¶ 12) (Miss.Ct.App.2001). Further, the testimony of one witness is sufficient to sustain a verdict, even when the testimony is contradicted, and it is the duty of the fact-finder to determine the credibility of witnesses. Lewis v. State, 110 So.3d 814, 818 (¶ 7) (Miss.Ct.App.2013).

¶ 5. It is well settled that routine traffic stops are justifiable because they are only minimally intrusive, and the checkpoints themselves are “very effective” in determining whether drivers are properly licensed. Dale v. State, 785 So.2d 1102, 1106 (¶ 11) (Miss.Ct.App.2001); see also McLendon v. State, 945 So.2d 372, 380-81 (¶¶ 17-21) (Miss.2006). Driver’s licensing and highway safety are interests justifying routine traffic checks. City of Indianapolis v. Edmond, 531 U.S. 32, 39-40, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).

¶ 6. Rogowski contends the evidence in this case was insufficient to find the seizure involved in stopping him at the checkpoint satisfied the balancing test of Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). A stop of any kind is a seizure, but such a seizure will be allowed if it was reasonable. Dale, 785 So.2d at 1106 (¶ 11). In determining whether a roadblock is a reasonable seizure, the inconvenience of a typical motorist is balanced against the State’s interest in performing the roadblock. Brown, 443 U.S. at 50, 99 S.Ct. 2637. “Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Id. at 50-51, 99 S.Ct. 2637.

I. WHETHER THE CHECKPOINT SERVED A PUBLIC CONCERN

II. WHETHER THE CHECKPOINT ADVANCED THE PUBLIC INTEREST

¶ 7. Rogowski contends “the gravity of the public concern about ‘driver’s license safety,’ if any even exists, does not outweigh the severity of the interference with individual liberty created by this checkpoint.” Rogowski urges that we find the State must demonstrate that an individual traffic stop has some statistical degree of effectiveness in detecting unlicensed drivers to prove it served a public concern. Similarly, Rogowski contends the State must show this particular traffic stop met some statistical measurement of effectiveness in serving the public interest. Rogowski contends it was arbitrary to conduct the checkpoint “in a remote residential area late at night” because few drivers are stopped. To support his assertion that a degree of statistical success need be shown, Rogowski cites to Michigan Department of State Police v. Sitz, 496 U.S. 444, 454-455, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990).

¶ 8. However, Sitz in no way supports Rogowski’s argument. Rather, the Sitz Court explicitly stated the effectiveness of a traffic stop is not an invitation for courts to inquire into the effectiveness of how “politically accountable” law enforcement agencies allocate their resources. Id. at 445, 110 S.Ct. 2481. Further, the Sitz Court expressly stated the inquiry into effectiveness does not support a “searching examination” of effectiveness. Id. at 453-54, 110 S.Ct. 2481. As this Court discussed in Dale, the “effectiveness” of a particular checkpoint is rarely stated as any degree of how many arrests were made, but rather since every driver passing through is checked for a valid driver’s license, checkpoints themselves are “very effective” in serving the governmental interest of road safety. Dale, 785 So.2d at 1106 (¶ 11).

¶ 9. Rather than determining whether a traffic checkpoint is legally justified by a degree of statistical usefulness, the United States Supreme Court has restrained itself to inquire only as to either the purpose of the stop or the nature of the liberty deprivation. Uniform traffic stops are generally viewed favorably when the purposes are to enhance road safety, protect the public from unlicensed drivers, identify unregistered vehicles, and locate intoxicated drivers. Edmond, 531 U.S. at 46-48,121 S.Ct. 447. However, when traffic stops are used to look for evidence of “ordinary criminal wrongdoing,” such as possession of illegal drugs, then there is a lack of probable cause to support the seizure that results in an illegal seizure. Id. at 41-42, 121 S.Ct. 447. Further, it is not permissible for law enforcement to randomly stop some, but not all, vehicles at a checkpoint, when there is no discernable reason to detain any of the vehicles. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

¶ 10. Deputy Craft testified that he and the other deputies were conducting a routine traffic-safety checkpoint, and vehicles were routinely and regularly stopped. Nothing in the record suggests Deputy Craft and the other deputies were seeking to find evidence of crimes unrelated to traffic safety. Nothing in the record even suggests that Rogowski was subjected to a random stop, in which only some individual motorists were stopped. Thus, Deputy Craft’s testimony established the checkpoint was set up to serve the permissible interest of highway safety. Nothing in the record supports a finding that Rogowski was subjected to any more, or any less, deprivation of liberty than all other motorists passing through the driver’s license checkpoint. Therefore, we find that the checkpoint at issue in this case served a public concern and advanced a public interest, and Rogowski’s liberty interests were not so infringed as to make Rogow-ski’s stop at the driver’s license checkpoint an illegal seizure.

III. WHETHER THE CHECKPOINT PRESENTED A SEVERE INTRUSION ON INDIVIDUAL LIBERTY

¶ 11. Rogowski contends the specific “intensity of the questioning” and “abuse of discretion” by sheriffs department personnel transformed what is typically a minimal intrusion on liberty in a traffic-checkpoint stop into a severe intrusion. Rogowski contends this severe intrusion made the seizure illegal, and therefore requires that we reverse his conviction of disorderly conduct. Deputy Craft’s testimony was that the stop of Rogowski’s vehicle was no different from other stops, and Rogowski’s actions, when he refused to present his driver’s license and then struggled against being removed from the vehicle, disrupted the operation of the checkpoint. Rogowski’s testimony was quite to the contrary, and he contended he was unfairly surprised and then arrested despite behaving in a reasonable manner. Nevertheless, witness credibility is for the finder of fact, and will not be disturbed on appellate review without some showing of manifest error. Reed v. State, 749 So.2d 179, 181 (¶ 3) (Miss.Ct.App.1999). The county court judge found Deputy Craft to be more credible, and this Court will not overturn that finding based on the record.

¶ 12. Additionally, Rogowski contends there were no established procedures or guidelines for the operation of the checkpoint. This Court previously declined to hold sheriffs department officials are required to have “set departmental procedures” for operating traffic-stop checkpoints. Dale, 785 So.2d at 1106 (¶ 13). We do not see any reason to depart from this holding.

¶ 13. In sum, we do not find the record shows Rogowski was subjected to any more intrusion into his liberty interests by the stop/seizure than the intrusion suffered by all other drivers passing through the driver’s license checkpoint. Of course, his arrest deprived him of more liberty interest than the deprivation suffered by those drivers who were not arrested. However, we cannot say the county court judge erred in finding the reason for the arrest was Rogowski’s disorderly conduct.

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

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


author: CARLTON, J.,

text:
    Derrick STOKES, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00887-COA.
    Court of Appeals of Mississippi.
    March 4, 2014.
    Rehearing Denied June 17, 2014.
    Certiorari Denied Aug. 28, 2014.
    Derrick Stokes, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Derrick Stokes pled guilty to the charges of gratification of lust and exploitation of a child. The Madison County Circuit Court sentenced Stokes to serve fifteen years in the custody of the Mississippi Department of Corrections for the gratification-of-lust conviction, and to serve an additional ten years, with five years suspended, for the exploitation conviction. Stokes now appeals from the denial of his second motion for post-conviction relief (PCR). Finding no error, we affirm.

FACTS

¶ 2. On May 14, 2008, Stokes pled guilty to two of the charges in the six-count indictment filed against him. Stokes pled guilty to exploitation of a child and gratification of lust, and the Madison County Circuit Court sentenced Stokes to fifteen years in the custody of the MDOC for the first charge. As for the second charge, the circuit court sentenced Stokes to ten years in the custody of the MDOC, with five years suspended and five years to serve, followed by five years of post-release supervision. Additionally, the circuit court ordered Stokes’s sentences to run consecutively.

¶ 8. On January 25, 2010, Stokes filed his first PCR motion, alleging that his guilty plea was not voluntary and that his lawyer was ineffective. Stokes v. State, 66 So.3d 746, 747 (¶ 2) (Miss.Ct.App.2011). Stokes, who insists that he is legally deaf, also claimed that the trial court erred by accepting his guilty plea without appointing an interpreter to assist him during the guilty-plea proceedings. The circuit court denied Stokes’s first PCR motion on March 5, 2010. Stokes appealed from the trial court’s denial of his PCR motion. On appeal, this Court dismissed Stokes’s appeal for his failure to timely file his notice of appeal. This Court declined to address the issues raised by Stokes in his appeal after finding no justification for Stokes’s failure to timely file his appeal.

¶4. On April 8, 2013, Stokes filed a second PCR motion claiming, once again, that he was legally deaf and that if a qualified sign-language interpreter had been part of the guilty-plea proceedings, Stokes would not have pled guilty. The trial court found Stokes’s claims time-barred and successive-writ barred and entered an order on May 10, 2013, denying Stokes’s PCR motion.

¶ 5. Stokes timely appealed this denial of his PCR motion on May 24, 2013. Stokes asserts that he was denied due process of the law due to the refusal of the trial court to grant him a sign-language interpreter at his plea hearing.

STANDARD OF REVIEW

¶ 6. “When reviewing a [trial] court’s decision to deny a petition for post[-]eonviction reliefj,] this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999). Questions of law are reviewed de novo. Robinson v. State, 904 So.2d 203, 204 (¶ 3) (Miss.Ct.App.2005).

DISCUSSION

¶ 7. Stokes acknowledges that his PCR motion is statutorily barred as a successive writ, but he asserts that the violation of his due-process rights entitles him to overcome this bar. Stokes specifically claims that the trial court’s failure to provide a sign-language interpreter during the plea hearing made it “impossible” for him to understand the proceedings. Stokes agrees that he “may not be totally deaf,” but he claims that he is hearing impaired, and possessed a constitutional right to a sign-language interpreter for the guilty-plea proceedings. The record before us reflects that Stokes has provided no evi-dentiary support for his claim that he is legally deaf or required an interpreter.

¶ 8. However, the State asserts that this Court lacks jurisdiction to hear the merits of Stokes’s claim due to Stokes’s failure to comply with Mississippi Code Annotated section 99-39-7 (Supp.2013). We acknowledge that the State mistakenly claims that Stokes filed a “direct appeal” to the Mississippi Supreme Court after the trial judge denied Stokes’s January 25, 2010 PCR motion. Section 99-39-7 provides that where a prisoner’s conviction and sentence were affirmed on direct appeal, or the appeal was dismissed, the prisoner must obtain the supreme court’s leave before filing a PCR motion. However, the record before us reflects that Stokes pled guilty; thus, no direct appeal occurred. See Jackson v. State, 67 So.3d 725, 730 (¶ 18) (Miss.2011); Payton v. State, 89 So.3d 73, 75-77 (¶ 17) (Miss.Ct.App.2011). As a result, no application for permission from the supreme court was required. See Payton, 89 So.3d at 77 (¶¶ 20-21); see also Graham v. State, 85 So.3d 847, 850-51 (¶ 6) (Miss.2012).

¶ 9. With respect to the application of the successive-writ bar in this case, the record reflects that Stokes filed his first PCR motion on January 25, 2010, and the trial court denied the motion on March 5, 2010. Stokes appealed this denial, claiming: (1) the trial court erred when it denied his PCR motion without conducting an evidentiary hearing; (2) the trial court erred when it accepted his guilty plea without appointing an interpreter to assist him during his guilty plea; and (3) he received ineffective assistance of counsel during his guilty plea. Stokes possessed thirty days to file his appeal of the trial court’s denial of this PCR motion; however, the record shows that Stokes failed to file his notice of appeal until June 4, 2010, nearly two months after the thirty-day deadline set forth in Mississippi Rule of Appellate Procedure 4(a). This Court accordingly dismissed Stokes’s appeal as untimely. Stokes, 66 So.3d at 749 (¶ 8).

¶ 10. Stokes filed his second PCR motion on April 8, 2013. In its May 10, 2013 order dismissing this second PCR motion, the trial court stated that Stokes failed to file his PCR motion within three years as required by Mississippi Code Annotated section 99-39-5(2) (Supp.2013). This statute indeed requires that “[a] motion for relief under this article shall be made ... in case of guilty plea, within three (3) years after entry of the judgment of conviction.” Stokes filed his April 8, 2013 PCR motion nearly five years after his May 14, 2008 guilty plea. Accordingly, we find the instant PCR motion time-barred.

¶ 11. The trial court also held that Stokes’s April 2013 PCR motion constituted a successive writ, stating that all matters raised by Stokes in the April 2013 filing appeared in his prior January 25, 2010 PCR motion. Section 99-39-23(6) provides the successive-writ bar for PCR motions. It states that “any 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.” Miss.Code Ann. § 99-39-23(6). Although the trial court’s March 5, 2010 order denying Stokes’s January 25, 2010 PCR motion does not appear in the record before us, the trial court’s May 10, 2013 order states that “all of the matters raised by Stokes in the instant filing appeared, in some form, in his first claim for relief.” Therefore, since Stokes’s PCR motion constitutes a successive writ wherein he again raises the same issues raised in a previous PCR motion, we find that res judicata applies to those previously raised issues. See Miss. Code Ann. § 99-39-23(6); Torns v. State, 866 So.2d 486, 489 (¶¶ 10-11) (Miss.Ct.App 2003).

¶ 12. The record reflects no evidence supporting an exception to overcome the procedural bars of the Uniform Post-Conviction Collateral Relief Act (UPCCRA). Moreover, the issue Stokes raises herein regarding his hearing, and his alleged need for an interpreter, was previously determined by the denial of his previous PCR motion. Stokes failed to appeal the denial of his prior PCR motion, wherein he raised the same issue now before us on appeal, and res judicata prevents its relitigation. Res judicata bar notwithstanding, we acknowledge that in the record before us, the scant portion of the transcript Stokes provided shows that Stokes willingly and voluntarily entered a plea of guilty to the charges against him, and shows that Stokes acknowledged under oath before the trial court his understanding of the terms of his sentence. We thus find insufficient support in the record to show that Stokes met an exception to the procedural bars of the UPCCRA. Accordingly, we find that the trial court did not err in dismissing Stokes’s PCR motion.

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

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

      . Miss.Code Ann. § 99-39-23(6) (Supp.2013).

      . Stokes's January 25, 2010 PCR motion is not included in the record before us.

      . Only the final page of this order appears in the record.

        .See Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss.2010).

      . See Miss.Code Ann. § 99-39-23(6) (dismissal of PCR motion is a final judgment and bars filing of any second or successive motion under the UPCCRA).

      . The record before us differs from that in Rowland, 42 So.3d at 507 (¶ 12), in that the present appellate record is sufficient to address Stokes's claim of error. Here, the record includes the plea petition and colloquy showing that Stokes entered a knowing, voluntary, and intelligent plea. See Washington v. State, 145 So.3d 1219, 1224-25 (¶¶ 16-17) (Miss.Ct.App.2012). Res judicata bars reliti-gation of issues previously determined by a prior PCR motion.


text:
    Jackson WILLIAMS, Jr. a/k/a Jackson Williams, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01634-COA.
    Court of Appeals of Mississippi.
    May 20, 2014.

      Jackson Williams Jr., appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. On October 20, 2011, Jackson Williams Jr. pleaded guilty in the Tunica County Circuit Court to one count of aggravated assault. He was sentenced to twelve years, with five years of post-release supervision (PRS), all within the custody of the Mississippi Department of Corrections (MDOC). Subsequently, Williams filed a motion to vacate his judgment and sentence. The circuit court, treating it as a motion for post-conviction relief (PCR), dismissed the motion. Williams appeals. Finding no error, we affirm the circuit court’s judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. On April 20, 2009, Williams was convicted by a jury in the circuit court of one count of aggravated assault and one count of felon in possession of a deadly weapon. He was sentenced to fifteen years for the conviction of aggravated assault and five years for the conviction of felon in possession of a deadly weapon, all to be served in the custody of the MDOC. Williams appealed both convictions.

¶ 8. On June 15, 2010, this Court reversed and remanded the conviction of aggravated assault, and reversed and rendered the conviction of felon in possession of a deadly weapon. Williams entered a “best-interest” guilty plea to the aggravated-assault charge pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), on October 20, 2011. Williams was resentenced to twelve years, with credit for time served, to be followed by five years of PRS, all in the custody of the MDOC.

¶ 4. On May 31, 2012, Williams filed a motion to vacate and set aside his judgment and sentence. This motion was filed under the original criminal cause number and not as a separate civil action. The circuit court became aware of the motion only after receiving a petition for a writ of mandamus that was filed by Williams with the Mississippi Supreme Court on October 5, 2012. On October 17, 2012, the circuit court, treating the motion as a PCR motion, summarily dismissed it. Subsequently, the supreme court dismissed Williams’s petition for a writ of mandamus as moot following the circuit court’s dismissal of Williams’s PCR motion.

¶ 5. Williams filed his notice of appeal on November 6, 2012. On that same day, he also filed a motion entitled “Objection Rebuttal to Circuit Court[’]s Response to Writ of Mandamus, Dismissal Order on Motion to Vacate and Set Aside Conviction and Sentence, Also Motion for This Court to Expand the Records and Provide Fact Finding Due Process and Emergency Appeal.” Through this motion, Williams asked the supreme court to expedite his appeal, remand the matter to the circuit court with an instruction to dismiss the charges against him, and order the MDOC to release him immediately. The supreme court denied Williams’s request to expedite his appeal, and found that all other requests shall be determined in due course with the appeal. As such, Williams now appeals.

DISCUSSION

¶ 6. A summary dismissal of a PCR motion is proper “[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.2013). A trial court’s dismissal of a PCR motion will not be disturbed unless the decision was clearly erroneous. Jackson v. State, 67 So.3d 725, 730 (¶ 16) (Miss.2011) (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)). Questions of law are reviewed de novo. Id.

¶ 7. Williams alleges the following errors on appeal: (1) a defective indictment, the denial of bail, as well as his right to a speedy trial; (2) judicial misconduct due to the denial of fact findings and the occurrence of a “mob trial”; (3) entitlement to “emergency relief and rights to compulsory process to expand the record”; and (4) ineffective assistance of counsel.

¶ 8. Williams first asserts that his indictment was defective. In his motion to the circuit court, Williams alleged that the original indictment was defective since the language in the count of aggravated assault failed to include “serious” bodily injury. On appeal, Williams asserts that the original indictment against him was illegally obtained by false testimony and evidence. Further, he argues that this Court’s decision to reverse and remand on the charge of aggravated assault did not cure the defects in the indictment.

¶ 9. “[A] defendant waives all technical and non-jurisdictional defects contained in the indictment by pleading guilty.” Edwards v. State, 90 So.3d 637, 642 (¶ 12) (Miss.Ct.App.2012) (citing Clark v. State, 54 So.3d 304, 308 (¶ 9) (Miss.Ct.App.2011)). “The only exceptions to this waiver are if the indictment fails to charge an essential element of the crime or the court lacks subject-matter jurisdiction.” Whatley v. State, 123 So.3d 461, 467 (¶ 14) (Miss.Ct.App.2013) (citing Kincaid v. State, 711 So.2d 873, 877 (¶20) (Miss.1998)). It is clear from the record that these exceptions do not apply in the present case. Williams also argues that he was denied bail and his right to a speedy trial. However, “[a] valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial.” Montalto v. State, 119 So.3d 1087, 1096 (¶ 20) (Miss.Ct.App.2013) (citing Anderson v. State, 577 So.2d 390, 391 (Miss.1991)).

¶ 10. It is well settled that a guilty plea is valid so long as it was “voluntarily and intelligently made by the criminal defendant before the trial court.” Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss.2009) (citing King v. State, 738 So.2d 240, 241 (¶¶ 3-5) (Miss.1999)). “To determine whether the plea is voluntarily and intelligently given, the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea.” Id. (citing Harris v. State, 806 So.2d 1127, 1130 (¶ 9) (Miss.2002)).

¶ 11. On October 20, 2011, Williams filed his petition to enter his plea of guilty. In doing so, Williams acknowledged that he offered this guilty plea freely and knowingly. He conceded that he was pleading guilty to the charge of aggravated assault as set forth in the indictment in this cause. He also affirmed that he was informed of the maximum and minimum sentences for aggravated assault and that, by pleading guilty, he would be waiving all constitutional rights set forth in the petition. As such, Williams’s guilty plea was voluntarily and intelligently given. Therefore, we find that these issues—the defective indictment, the denial of bail, the right to a speedy trial—were waived and are without merit.

¶ 12. In his next issue, Williams asserts that judicial misconduct occurred due to the denial of fact findings and the conducting of a “mob trial.” Williams argues that the circuit court did not have a factual basis for accepting his guilty plea and that a “mob trial” occurred when the circuit court judge acted with animosity towards Williams because his case had been remanded. We disagree.

¶ 13. It is clear from the record that the circuit court had a factual basis for accepting Williams’s guilty plea. Specifically, the circuit court found that “the [cjourt was able to distinguish the factual basis of the conviction as to Count I [ (aggravated assault) ] without regard to the allegations as contained in Count II [ (of felon in possession of a deadly weapon) ] and the proof adduced in support of Count II[.]” The remaining assertions that judicial misconduct occurred due to a “mob trial” are unsupported by the facts in the record.

Our supreme court ha[s] stated that “we must decide each case by the facts shown in the record, not assertions in the brief, however sincere counsel may be in those assertions. Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them”.

McCullough v. State, 47 So.3d 1206, 1211 (¶ 18) (Miss.Ct.App.2010) (quoting Mason v. State, 440 So.2d, 318, 319 (Miss.1983)). Since the record lacks evidence of judicial misconduct, we find that this issue is without merit.

¶ 14. In his third issue, Williams maintains that he is entitled to “emergency relief and rights to compulsory process to expand the record.” Williams asserts that he is falsely imprisoned because he had to file a request for a writ of mandamus to obtain a ruling on his PCR motion. He argues that, given his age and the length of his incarceration, he is entitled to the aforementioned relief. We disagree.

¶ 15. The circuit court admitted in its order summarily dismissing Williams’s PCR motion that Williams’s motion was not acknowledged until the request for a writ of mandamus that was filed with the supreme court was brought to its attention. The circuit court explained that this confusion was due to the motion being filed in the original criminal file, and not as an original civil action as required by Mississippi Code Annotated section 99-39-7 (Supp.2013). Finding this to be a procedural deficiency, the circuit court chose to address the substance of the motion in an effort to expedite the resolution of the issues. As such, we find that the circuit court was not erroneous, and Williams is not entitled to relief. This issue is also without merit.

¶ 16. In his final issue, Williams argues that he was denied effective assistance of counsel. In his PCR motion, Williams alleged that his counsel prejudiced his defense by failing to object to the defective indictment. On appeal, Williams directs the Court’s attention to Wilson v. State, 577 So.2d 394 (Miss.1991), for examples of issues regarding ineffective assistance of counsel similar to the present case.

¶ 17. In order to make a claim based on ineffective assistance of counsel, Williams must prove that his counsel’s performance was deficient and that his defense was prejudiced by his counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “In the context of guilty pleas, this means the defendant must show that, were it not for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Ivy v. State, 103 So.3d 766, 769 (¶ 11) (Miss.Ct.App.2012) (citation omitted).

¶ 18. Williams asserts that he received ineffective assistance of counsel but fails to offer any evidence but his own assertions to support this claim. “A petitioner must produce more than conclusory allegations on a claim of ineffective assistance of counsel.” McCray v. State, 107 So.3d 1042, 1045 (¶ 12) (Miss.Ct.App.2012) (citation omitted). “In cases involving post-conviction collateral relief, where a party offers only his affidavit, then his ineffective[-]assistance[-]of[-]counsel claim is without merit.” Watts v. State, 97 So.3d 722, 726 (¶ 12) (Miss.Ct.App.2012) (citations omitted). Accordingly, we also find this issue to be without merit. As such, we affirm the judgment of the circuit court.

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

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

      . See Williams v. State, 37 So.3d 717, 718 (¶ 2) (Miss.Ct.App.2010).


text:
    Willie B. McLEOD, Appellant v. Jeanell McLEOD, Appellee.
    No. 2012-CA-01677-COA.
    Court of Appeals of Mississippi.
    Aug. 12, 2014.

      Dean Holleman, attorney for appellant.
    Jennifer Sekul Harris, Ocean Springs, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. This appeal considers the divorce of Willie and Jeanell McLeod. Willie challenges the chancellor’s decision that found the prenuptial agreement invalid and the division of assets. We find reversible error and remand for further proceedings consistent with this opinion.

FACTS

¶ 2. Willie and Jeanell were married on March 27, 2001. They each had children from a prior relationship. There were no children born of their marriage; but Jea-nell had a son with her paramour in 2011.

¶ 3. On the day of their marriage, before the vows were exchanged, Willie and Jeanell signed a prenuptial agreement. The agreement was prepared by Willie’s attorney, Mark Knighten. The agreement provided that both parties would retain their separate property if they divorced. At the time, Willie had several valuable assets. Jeanell’s assets were limited to her furniture and a vehicle.

¶ 4. During their marriage, Willie and Jeanell maintained separate finances and checking accounts. Jeanell testified that they split the bills and both paid for their “own stuff.” They reimbursed each other for big household items and took turns buying dinner and clothing. When they traveled, Willie bought his plane ticket and Jeanell bought her ticket. They would each pay for the expenses of their respective children.

¶ 5. On January 7, 2008, Jeanell filed for divorce on the ground of habitual cruel and inhuman treatment. They later reconciled. Then, on April 11, 2008, Willie filed for divorce on the ground of adultery. The chancellor consolidated these cases.

¶ 6. Jeanell filed a motion for a declaratory judgment. She claimed that the prenuptial agreement was void and unenforceable because:

[T]he agreement presented to [Jeanell] is signed by the parties but is not notarized;
the agreement does not contain the full financial disclosures of the parties as Exhibits which are referenced in the body of the document presented in the course of this litigation;
[Jeanell] was not given the opportunity to review the Agreement with her own counsel prior to entering into the Agreement as the agreement was drafted and allegedly signed the same date as the marriage of the parties;
[Willie] has accumulated substantial assets during the marriage with the help and assistance of [Jeanell] and is attempting to use an invalid [prenuptial] agreement to preclude an appropriate and equitable division of marital assets.

¶ 7. On October 15, 2009, the chancellor issued an order that found that the agreement was invalid. The chancellor determined that there was clear and convincing evidence that Willie fraudulently induced Jeanell to execute the agreement. Willie then timely filed a motion to set aside, alter, or amend the judgment under Mississippi Rule of Civil Procedure 59. In the motion, Willie claimed that it was error to find fraud in the inducement since fraud was never raised. On April 21, 2010, the chancellor executed an order that stated: “Willie is correct, as this court may not sua sponte raise the affirmative defense of fraud and base a portion of the finding on this basis.” The order found that the original finding of the court of fraud in the inducement was erroneous as a matter of law. The chancellor found that because fraud in the inducement was never pled, it was waived. However, the chancellor still found the agreement to be invalid and unconscionable.

¶ 8. The trial was held in October 2010. The chancellor granted Willie a divorce on the ground of adultery and entered a judgment that divided the marital estate. Willie then filed a motion to set aside the judgment under Rule 59. By order dated September 11, 2012, the chancellor granted Willie’s motion and revised parts of the judgment that divided the marital estate. The chancellor found that Willie’s motion had merit insofar as the mathematical calculations were concerned, but the division of the marital estate remained undisturbed. It is from this judgment that Willie now appeals.

STANDARD OF REVIEW

¶ 9. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002).

ANALYSIS

I. Failure to Enforce the Prenuptial Agreement

¶ 10. Willie argues that the chancellor erred when he found the agreement to be invalid. Willie alleges that the chancellor’s findings were not supported by substantial credible evidence.

¶ 11. The Mississippi Supreme Court has held that prenuptial agreements must be fair in the execution, and a duty of disclosure shall be imposed. Smith v. Smith, 656 So.2d 1143, 1147 (Miss.1995) (citing Hensley v. Hensley, 524 So.2d 325, 327 (Miss.1988)).

¶ 12. Prenuptial agreements are enforced like contracts: the first rule of interpretation of contracts is to follow the intent of the parties. Long v. Long, 928 So.2d 1001, 1003 (¶ 14) (Miss.Ct.App.2006). This intent was recognized initially by the prenuptial agreement, which provided:

Each of the parties shall retain all rights in his or her own separate property, as hereinafter defined, whether now owned at the time of the marriage of the parties or acquired thereafter, and each of them shall have the absolute and unrestricted right to dispose of such property during his or her lifetime and upon his or death, free from any claim which may be made by the other by reason of their marriage, and with the same effect as if no marriage had occurred between them, and such separate property shall not be subject to any division between the parties ... as marital property subject to equitable distribution or division under the.laws of Mississippi....

¶ 13. “A contract may be either procedurally or substantively unconscionable.” West v. West, 891 So.2d 203, 213 (¶ 26) (Miss.2004). Procedural uncon-scionability deals with the formation of the contract. Id. (citing East Ford, Inc. v. Taylor, 826 So.2d 709, 714 (Miss.2002)). Substantive unconscionability is apparent “when the terms of the agreement are so one-sided that no one in his right mind would agree to its terms.” Id. (citing In re Last Will & Testament of Johnson, 351 So.2d 1339, 1341 (Miss.1977)).

¶ 14. The chancellor found that Jeanell did not voluntarily enter into the agreement, that there was no full or fair disclosure of assets, that fairness in the execution of the agreement was lacking, and that it was unconscionable. We will address each finding separately.

A. Voluntariness

¶ 15. Each party must enter a prenuptial agreement voluntarily. Deborah H. Bell, Bell on Mississippi Family Law § 23.02[2] (2nd ed. 2011). In In re Last Will & Testament of Cooper, 75 So.3d 1104, 1108 (¶ 11) (Miss.Ct.App.2011), this Court affirmed the chancellor’s judgment and found that there was no evidence to support a claim of involuntariness, because neither party was “forced in any way to sign” the prenuptial agreement.

¶ 16. This Court has held that “it is well established that ‘a person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract.’ ” Ware v. Ware, 7 So.3d 271, 277 (¶ 20) (Miss.Ct.App.2008) (quoting Oaks v. Sellers, 953 So.2d 1077, 1082 (¶ 17) (Miss.2007)). And, as this Court has stated, “it is not now and never has been the function of this Court to relieve a party to a freely negotiated contract of the burdens of a provision which becomes more onerous than had originally been anticipated.” In re Cooper, 75 So.3d at 1107 (¶ 9).

¶ 17. According to the evidence, Willie and Jeanell started to discuss marriage towards the end of 2000, after they had dated for two years. Willie testified that he wanted a prenuptial agreement to protect his assets. Both Willie and Jeanell testified that Jeanell wanted to make sure that in the event someone died, she and her children would be protected. Jeanell knew that Willie would not marry her if they did not execute a prenuptial agreement.

¶ 18. The evidence indicated that Jea-nell discussed the agreement with Knight-en weeks before it was executed. Specifically, at the hearing, a bill was introduced into evidence that showed that Jeanell had discussed the agreement with Knighten. Jeanell and Willie discussed what she wanted and did not want included in the agreement. Before the final agreement was executed, Willie presented drafts of agreements to Jeanell. Both Willie and Jeanell signed the final agreement. There was no credible evidence to support the finding that Jeanell did not enter into the agreement voluntarily.

B. Full and Fair Disclosure

¶ 19. Willie argues that there was full disclosure of assets and that there is no legal necessity that a financial disclosure be attached to a prenuptial agreement. Jeanell has maintained that because the agreement does not contain a full financial disclosure, it is invalid.

¶ 20. Initially, the chancellor found that there was a full disclosure of assets. At the hearing, the chancellor stated:

[Cjertainly by having lived with him for a year to two and a half years, whatever it was, ... prior to the marriage, and her working in his office and her being involved as much as she was, and, of course, one of the exhibits, a voluminous one, in which all of those records were dug out of his storage, showing her signing checks and being aware of the business activities over an extended period of time, she certainly knew. If she doesn’t know of all of his properties, she had a real good idea of them. She knew about most of them. She knew about, you know, basically what kind of lifestyle he had. She knew what kind of business investments, she knew his work habits.
And I think that he was probably a very hard worker during that time. She knew all of that.
And so I would say that there was, in fact, financial disclosure. So I’m not going to need any further argument with regard to voluntariness, or full and fair disclosure....

However, in his final order, the chancellor found that while Jeanell had some knowledge of Willie’s affairs, she did not have full disclosure of assets at the time the agreement was executed.

¶ 21. Willie contends that the chancellor erred when he found that there was not full and fair disclosure of assets. While disclosure is of “paramount importance,” this Court has found that a prenuptial agreement can still be valid even if a financial disclosure is not attached. Mabus v. Mabus, 890 So.2d 806, 819-21 (¶¶ 58, 59, 64) (Miss.2003).

¶ 22. Here, the agreement stated that a full disclosure was made. Specifically, it provided:

[Willie] hereby states: that he has been fully informed regarding the property and estate of [Jeanell] and has examined the statement of her assets set forth in Exhibit “A” annexed hereto prior to signing this Agreement....
[Jeanell] hereby states: that she has been fully informed regarding the property and estate of [Willie] and has examine the statement of his assets set forth in Exhibit “B” annexed hereto prior to signing this agreement.

¶ 28. Jeanell executed the agreement, and in doing so, asserted that she was fully informed regarding Willie’s property. And the facts presented at the hearing support her knowledge of Willie’s assets. She managed his business, including some of his rental property, and she took records to Willie’s accountant for tax-return purposes. In addition, Jeanell has not presented any evidence that would show fraud or misrepresentation on Willie’s part. See Kitchens v. Estate of Kitchens, 850 So.2d 215, 217 (¶ 5) (Miss.Ct.App.2003) (citing Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990)). There was no credible evidence to support the finding that there was no full or fair disclosure of assets.

C. Fairness in the Execution

¶ 24. Prenuptial agreements “must be fair ‘in the execution’ or procedurally fair.” Bell, at § 23.02[5] (citing Mabus, 890 So.2d at 821; Smith, 656 So.2d at 1147). Fairness in the execution can be affected by the presence of individual counsel, whether the parties had time to review the agreement, education of the parties, and whether the agreement was explained. Id.

¶ 25. Jeanell argued that the prenuptial agreement was invalid because she did not have the opportunity to consult independent counsel, nor did she have an opportunity to review the agreement in its entirety before she signed it. The chancellor agreed and further found that Jeanell had little education.

¶ 26. This Court in Ware, 7 So.3d at 277 (¶ 20), found that there was no evidence to suggest that one of the parties was forced to sign the prenuptial agreement, although one party admitted that she did not read the contract nor take it to an attorney to review it before she signed it. This Court held that “it is well established that ‘a person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract.’ ” Id. (quoting Oaks, 953 So.2d at 1082 (¶ 17)). Additionally, “independent counsel is not required to fairly execute a prenuptial agreement.” Id. (quoting Mabus, 890 So.2d at 821 (¶ 63)).

¶ 27. According to the evidence, Jeanell communicated with Knighten over the course of a few weeks about the prenuptial agreement. While she did not retain her own attorney, she had the opportunity to do so. When she signed the prenuptial agreement, Jeanell asserted that she understood the terms of it. Additionally, Jeanell negotiated the prenuptial agreement with Willie for weeks before she signed it. Thus, we find that there was fairness in the execution of the agreement.

D. Substantive Unconscionability

¶ 28. The chancellor found that Jeanell had no “meaningful choice” at the time of the execution of the agreement and that the terms of it were wholly unfavorable to her.

¶ 29. Substantive unconscionability is apparent “when the terms of the agreement are so one-sided that no one in his right mind would agree to its terms.” West, 891 So.2d at 213 (¶ 26) (citing In re Johnson, 351 So.2d at 1341). The Mississippi Supreme Court has defined an unconscionable contract as “one such as no man in his senses and not under a delusion would make on the one hand, and as no honest and fair man would accept on the other.” In re Johnson, 351 So.2d at 1341 (quoting Terre Haute Cooperage, Inc. v. Branscome, 203 Miss. 493, 503, 35 So.2d 537, 541 (1948)).

¶ 30. Two clauses were included in the agreement that provided what would happen if one of the parties died:

Upon the death of either party during their marriage, with the other Party surviving, the Parties agree that all property which is joint tenancy with right of survivorship property or surviv-orship marital property shall pass to the surviving party by right of survivorship. Both parties agree that a Will of the estates and properties will be executed at a later date that will outline estates, beneficiaries, survivorship, and or any other grounds not covered by this agreement.
¶ 31. In his order, the chancellor stated: Under the prenuptial agreement, Jeanell was entitled to only that which Willie promised he would leave her in his Last Will and Testament, whenever he decided to have that document prepared. No specifics regarding what he intended to leave her in order to provide for her as she had requested were provided and are purely speculative. As written, this provision is inequitable and unenforceable and does nothing to provide for Jea-nell at the time of a divorce or at the time of his death. On the other hand, under the laws in Mississippi, without a prenuptial Jeanell would be entitled to an equitable share of the marital estate at the time of divorce.
... As such the court finds that the prenuptial agreement “... was such an agreement that no wife in her senses and not under a delusion would agree to and no fair-minded husband would propose.”

¶ 32. In Crisler v. Crisler, 963 So.2d 1248,1252-53 (¶ 9) (Miss.Ct.App.2007), this Court stated:

[P]arties are bound by what they promise in writing. But, we are not bound to adopt a construction not compelled by the instrument in which we would have to believe no man in his right mind would have agreed to. A construction leading to an absurd, harsh or unreasonable result in a contract should be avoided, unless the terms are express and free of doubt.

(Citing Frazier v. Ne. Miss. Shopping Ctr., 458 So.2d 1051, 1054 (Miss.1984)). Further, in Hensley, the court stated: “[I]t is not now and never has been the function of this Court to relieve a party to a freely negotiated contract of the burdens of a provision which becomes more onerous than had originally been anticipated.” Hensley, 524 So.2d at 328.

¶ 33. Based on the evidence, by executing the agreement, Jeanell acknowledged that she knew the terms she was signing and that she understood that in the event of divorce, she would leave with the few assets she brought into the marriage. The fact that Willie did not execute a Last Will and Testament to provide for Jeanell is not before this Court today, because neither Willie nor Jeanell died during their marriage. This situation involves a divorce, not a death. By signing the agreement, Jeanell acknowledged that she knew that if she and Willie divorced, she relinquished any potential claims to Willie’s property. Therefore, we find that there was no credible evidence to support the finding that the agreement was unconscionable.

¶ 34. Based on these findings, we hold that the chancellor was manifestly wrong when he found that Jeanell did not enter into the agreement voluntarily, that there was no full or fair disclosure of assets, that fairness in the execution was lacking, and that the agreement was unconscionable. Accordingly, the chancellor’s decision is reversed, and this case is remanded for the chancellor to enforce the parties’ agreement in the dissolution of their marriage.

II. Distribution of the Marital Assets and Liabilities

¶ 35. Willie argues that the chancellor erred when he divided the assets and liabilities of the marriage. Willie asserts that the chancellor’s final order did not fix some errors from the chancellor’s previous divisions and that the chancellor created additional errors. The chancellor’s findings were subsequent to his ruling that the prenuptial agreement was invalid. Thus, he considered all property.

¶ 36. A chancellor is required to make findings of fact regarding all applicable Ferguson factors. Pelton v. Pelton, 119 So.3d 1161, 1163 (¶ 11) (Miss.Ct.App.2013) (citing Kilpatrick v. Kilpatrick, 732 So.2d 876, 880 (¶ 15) (Miss.1999); Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994)).

¶ 37. In Johnson v. Johnson, 650 So.2d 1281,1287 (Miss.1994), the court outlined the process that a chancellor must follow to apply the Ferguson factors. First, the chancellor should classify the parties’ assets as marital or nonmarital based on Hemsley v. Hemsley, 639 So.2d 909, 914, 915 (Miss.1994). Johnson, 650 So.2d at 1287. Next, the chancellor must value and equitably divide the assets. Id. Then, after equitable division and in light of the parties’ nonmarital assets, and only if the marital assets will leave one party in a deficit, the chancellor should consider an award of alimony. Id.

¶ 38. In Lauro v. Lauro, 847 So.2d 843, 850 (¶ 17) (Miss.2003), the Mississippi Supreme Court determined that since the case was remanded for further consideration of equitable division, the chancellor should be instructed “to revisit the awards of alimony and child support after he has properly classified and divided the marital assets.” Here, since this case has been remanded for the chancellor to dissolve the parties’ marriage consistent with the terms of the prenuptial agreement, on remand the chancellor will have all the tools of marital dissolution available.

¶ 39. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH

THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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


text:
    Renita BISHOP, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2013-CC-01118-COA.
    Court of Appeals of Mississippi.
    Aug. 12, 2014.
    Renita Bishop, appellant, pro se.
    Albert B. White, Leanne Franklin Brady, for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Renita Bishop voluntarily quit her job as an assistant manager for Gresham Service Stations in Greenville, Mississippi. She sought unemployment benefits through the Mississippi Department of Employment Security (MDES). The administrative law judge found that Bishop was not entitled to benefits because she had voluntarily quit, and the Board of Review affirmed the administrative law judge’s decision. Following her unsuccessful appeal to the Washington County Circuit Court, Bishop now appeals to this Court. However, we find that she is not entitled to relief. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. For approximately three years, Bishop worked as an assistant manager for Gresham Service Stations. On October 26, 2012, Bishop voluntarily quit her job during a verbal altercation with her manager and supervisor. The altercation that led to Bishop’s decision to quit pertained to whether Bishop was required to clock out during breaks.

¶ 3. Bishop sought unemployment benefits. The administrative law judge held that Bishop was not entitled to benefits because she voluntarily left her job without good cause for doing so. The Board of Review affirmed the administrative law judge’s decision. The circuit court affirmed the Board of Review’s judgment. Bishop appeals.

ANALYSIS

¶ 4. We must first note that Bishop did not cite any authority in her brief. Rule 28(a)(6) of the Mississippi Rules of Appellate Procedure requires an appellant’s brief to “contain the contentions of [the] appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” Likewise, Mississippi easelaw has consistently held that “[f]ailure to cite any authority is a procedural bar, and [a reviewing court] is under no obligation to consider the assignment.” Taylor v. Kennedy, 914 So.2d 1260, 1262 (¶ 4) (Miss.Ct.App.2005) (citation omitted). We acknowledge that Bishop is representing herself. Even so, the Mississippi Supreme Court has held that “pro se parties should be held to the same rules of procedure and substantive law as represented parties.” Forrest v. McCoy, 996 So.2d 158, 160 (¶ 7) (Miss.Ct.App.2008) (citations omitted). Consequently, we are not required to address the merits of Bishop’s appeal.

¶ 5. Furthermore, it does not appear that Bishop actually raises an issue on appeal. Although she filed a handwritten brief, we note that it is almost entirely comprised of her recitation of the facts that led to her decision to quit her job. Bishop did not claim that the Board of Review erred in any particular way. She simply disagrees with its decision, because “it was not professional that [she] was approached at [a cash] register while [she] had customers in line.” Otherwise, Bishop states:

[D]uring the telephone interview with the MDES judge[,] [store supervisor] Mary Vernon was asked to leave the room while they spoke with myself and [area supervisor] Laura Byers[.] [Vernon] told me that [Byers told her] not to leave the room, and that every[]time she was asked a question[, Byers] wrote on a piece of paper what to say[.] I personally feel that MDES need[s] to ... have the meetings or hearing[s] at the WIN job center.

In other words, Bishop seems to claim that Byers coached Vernon’s testimony during the telephonic hearing before the administrative law judge. However, Bishop does not direct us to the relevant point in the transcript, and we can find no indication that the administrative law judge ever told Vernon to leave the room.

¶ 6. What is more, Bishop’s claim that Byers coached Vernon’s testimony is entirely unsubstantiated. The record contains no sworn affidavit by Vernon. And “statements in briefs are not evidence[.]” Limbaugh v. Limbaugh, 749 So.2d 1244, 1248 (¶ 19) (Miss.Ct.App.1999). To the extent that Bishop’s statement should be considered as an issue on appeal, there is no merit to it.

¶ 7. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT IS AFFIRMED.

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