author: KITCHENS, Justice,

text:
    In the Interest of J.P., a Minor; R.P. and D.O. v. State of Mississippi.
    No. 2013-CA-00688-SCT.
    Supreme Court of Mississippi.
    Nov. 13, 2014.

      Jacob Wayne Howard, Jackson, Robert B. McDuff, Sibyl Byrd, David Neil McCarty, Jody Edward Owens, II, Vanessa Judith Carroll, attorneys for appellants.
    B. Scott Buffington, Christopher Randall Purdum, attorneys for appellee.
    Before DICKINSON, P.J., KITCHENS and CHANDLER, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. The Jefferson Davis County Youth Court held J.P., a minor, in a juvenile detention facility for 103 days, then in the Jefferson Davis County Jail for thirty days more when J.P. attained age eighteen. J.P. was never adjudicated delinquent. No hearing was held on the question of his delinquency. After more than four months in custody, he was released. The court nevertheless ordered his parents to pay the nearly $10,000 cost of J.P.’s 103-day confinement in juvenile detention. We reverse the judgment of the youth court and render judgment in favor of the parents. The State cannot charge the parents of a minor for his detention when that detention was never legally justified.

FACTS AND PROCEDURAL HISTORY

¶ 2. J.P.’s father, D.O., and his mother, R.P., are separate parties in this litigation. While both are contesting J.P.’s 103-day detention and its associated costs, D.O. also is contesting a different five-day detention imposed upon J.P. in 2011, for which D.O. was ordered to pay the costs.

¶ 3. At some point in 2011, J.P. was arrested for the possession of marihuana and was required to wear an ankle monitor as a condition of his release on the marihuana charge. J.P. was brought back to youth court because it was alleged that he repeatedly had allowed the monitor to power down on weekends, making it impossible for his location to be tracked. The hearing for this alleged violation occurred on August 10, 2011. J.P. and his father, D.O., were issued summonses to appear at the hearing. Handwritten notes on the summonses show that both father and child were served on August 8, 2011, two days before the hearing. J.P., the juvenile, was assigned court-appointed counsel for the hearing. At the hearing, the youth court referee stated that, although no petition for contempt had been filed against J.P., the court was within its power sua sponte to find him in contempt and to sentence him to a juvenile detention facility for five days. J.P. was not proven delinquent beyond a reasonable doubt. J.P.’s father, D.O., was ordered to pay the costs associated with J.P.’s detention. The total was $550 for the detention and $100 for the child’s transportation to and from the facility. D.O. alone is contesting these costs.

¶ 4. On June 21, 2012, J.P. was arrested in Jefferson Davis County for possession of marihuana and a handgun. He was placed in the temporary custody of the Pike County Juvenile Detention Center until a detention hearing could be held on June 25, 2012. After the detention hearing, of which there is no transcript, the court ordered that J.P. would remain in the detention center until an adjudicatory hearing could be conducted. No date or time for the adjudication hearing was set, but the boilerplate language of the fill-in-the-blank order states that a prosecutorial petition was to be filed against J.P. within five days of the date of the order. J.P.’s parents were ordered on that same day to pay $55.00 per day each while J.P. was in juvenile detention. The State failed to file a petition within five days of the hearing.

¶ 5. On August 13, 2012, forty-eight days after the detention hearing and forty-three days after the petition was due, the youth court ordered that a formal petition be filed against J.P. The same day, a petition was filed against the juvenile, accusing him of “CONTEMPT OF COURT in violation of § 48-21-153 of the Mississippi Code of 1972, Annotated against the peace and dignity of Mississippi.” The charging document offered no facts in support of the petition. Summonses were issued to J.P. and his parents on August 13, 2012, for a hearing that was to take place on August 15, 2012. However, on that day, the court, on its own motion, ordered a continuance of the matter until October 2, 2012, J.P.’s eighteenth birthday. No reason was given for the continuance ordered on August 15, 2012, except the conclusory statements that good cause was shown and the motion for continuance was well taken. No record was made of this hearing. The court also ordered J.P.’s mother and father to pay $600 each per month to cover the costs of holding J.P. in the detention center in Pike County.

¶ 6. On October 2, 2012, the adjudication hearing was postponed again. As before, no record was made of the proceedings. The court transferred J.P. to the Jefferson Davis County Jail because he had reached the age of eighteen. By that time, he had spent 103 days in the juvenile detention facility. The order stated that 'the court was permitting a continuance to allow JJP.’s parents to obtain counsel. On October 15, 2012, counsel for J.P. entered their appearances and requested permission to access J.P.’s youth court records. Three days after entering their appearances, counsel for J.P. filed a Motion for Immediate Release, arguing that J.P.’s detention was unlawful because it violated the constitutional guarantees of due process and it violated several provisions of the Mississippi Youth Court Law. A hearing was held on the motion on October 31, 2012, after which the court released J.P. from custody and terminated its jurisdiction over him. At the same hearing, J.P.’s mother, R.P., went before the court to explain that she was unable to pay the $600 per month that the court had ordered her to pay for J.P.’s detention fees. The court ordered her to pay $100 per month until her debt was paid. The clerk’s office sent an accounting of costs to the mother which showed that she owed half of $11,420 to cover J.P.’s detention and transportation costs.

¶ 7. On January 16, 2013, R.P. filed a Motion to Vacate Orders to Pay the Costs of Transporting and Detaining [J.P.] She argued that the orders were invalid because J.P.’s detention was unlawful, it violated the Youth Court Law, no adequate formal petition was ever brought against him, he was detained for longer than the youth court was permitted to detain him, and his constitutional rights to due process were violated. After a hearing on the motion, the court reduced the per diem cost of detaining J.P. from $110 to $90, reducing the total amount owed for his detention and transportation from $11,420 to $9,380. The parents each owed half, $4,690, according to the youth court. The court’s final order upholding the majority of the costs levied against J.P.’s parents consisted of a single page which attached the entire 113-page transcript of the hearing of January 16, 2013, as “the Final Order of this Court.”

¶ 8. The parents have filed separate appeals from the order of the court below. Their appeals have been consolidated. Both are appealing from the order assessing $9,380 against them for the detention of J.P., which occurred despite his never having been adjudicated delinquent. D.O. alone is appealing the earlier decision of the same court which charged him $650 for the cost of holding his son, J.P., in a juvenile detention facility for five days.

STANDARD OF REVIEW .

¶ 9. “The appellate standard of review for youth court proceedings is the same as that which we apply to appeals from chancery court_” A.B. v. Lauderdale County Dep’t of Human Servs., 13 So.3d 1263, 1266-67 (¶14) (Miss.2009). J.P.’s parents are arguing that the youth court did not have the power to levy J.P.’s detention and transportation fees against them as a matter of law. This Court reviews matters of law de novo. See Matter of Estate of Mason, 616 So.2d 322, 327 (Miss.1993).

ANALYSIS

I. The 2011 Detainment

¶ 10. J.P. was committed to the Pike County Juvenile Detention Center in August 2011 for five days for violating the conditions of his release on a marihuana charge. His father D.O. attended the hearing and was ordered to pay the costs of J.P.’s detention and his transportation to and from the facility, which amounted to $650. D.O. argues that the youth court did not have jurisdiction to commit J.P. to the detention center and therefore did not have the authority to order D.O. to pay for the cost of that detention. He also argues that he was denied sufficient service of process, and his due process rights were denied as a result.

1. Lack of Jurisdiction

¶ 11. The State did not file a petition against J.P. in the 2011 proceeding. Although no petition was filed, the court went on the record to say that it had the power to sentence J.P. sua sponte for direct contempt for failure to abide by the terms of his release. D.O. argues that the court’s failure to hold a proper delinquency proceeding, with a petition filed against J.P., meant that the court was without jurisdiction to send him to a detention facility, and therefore without jurisdiction to charge D.O. for J.P.’s detention. We agree that the chancellor was without authority to detain J.P. under the Youth Court Law, but for a different reason.

¶ 12. D.O. argues that, because no petition was filed against J.P., his delinquency proceeding was a nullity. However, based upon the representations in the parties’ briefs and the transcript of the hearing, it is clear that the proceeding against J.P. was in the nature of a contempt action. Apparently, J.P. already had been adjudicated delinquent on a marihuana charge, but he was permitted to live with his father on the condition that he wear an ankle monitor. The violation of this “condition,” the requirement of which is not in the record before us, is not the same as a delinquent act which the State must prove beyond a reasonable doubt. The Youth Court Law outlines a youth court’s authority to modify its orders in a delinquency proceeding.

If the youth court finds, after a hearing which complies with the sections governing adjudicatory hearings, that the terms of a delinquency or child in need of supervision disposition order, probation or parole have been violated, the youth court may, in its discretion, revoke the original disposition and make any disposition which it could have originally ordered. The hearing shall be initiated by the filing of a petition that complies with the sections governing petitions in this chapter and that includes a statement of the youth court’s original disposition order, probation or parole, the alleged violation of that order, probation or parole, and the facts which show the violation of that order, probation or parole. Summons shall be served in the same manner as summons for an adjudicatory hearing.

Miss.Code Ann. § 43-21-613(1) (Rev. 2009) (emphasis added).

¶ 13. So the youth court was within its authority to “make any disposition which it could have originally ordered,” but only if a petition had been filed that included the original disposition order, the alleged violation of that order, and the facts showing the violation of that order. Here, no petition was filed, and no copy of the original disposition order is in the record. Accordingly, the youth court was without jurisdiction to modify its previous order, as it did not conduct a hearing in compliance with the laws governing adjudicatory hearings or the laws governing modification of youth court orders.

1114. This Court has spoken forcefully about the importance of the youth court’s abiding by the rules of procedure in delinquency cases.

It naturally follows that a child may not be committed to an institution without a petition and an adjudicatory hearing. Neither can the custody of a child be changed from its parents, guardian or custodian except by consent of the parents, guardian or custodian, or by order of the court after an adjudicatory hearing based on a petition. The Youth Court Law authorizes a temporary change of custody in urgent and necéssi-tous circumstances, but the courts should exercise care to limit temporary changes of custody to urgent and necessitous cases, and see that a petition is filed and a hearing held within the time limits prescribed by statute.

In Interest of Dennis, 291 So.2d 731, 734 (Miss.1974) (emphasis added).

¶ 15. In this case, after hearing the testimony of J.P.’s “house arrest guy” saying that J.P. had been letting his monitor power down, the court simply said it had no choice but to “send” J.P. to the detention center for five days and that the filing of a petition was unnecessary since J.P. was in “direct contempt.” However, Section 43-21-613 makes it abundantly clear that the youth court may modify its delinquency orders in the face of contempt only where a petition has been filed and adequate procedural due process safeguards have been observed. That did not happen here. The youth court failed to follow the procedures put in place to determine delinquency; it failed to articulate the proper burden of proof necessary for its judgment; and, under the precedent of this Court and the Youth Court Law it was without authority and jurisdiction to sentence J.P. to a detention facility when no petition had been filed against him and when he was not actually adjudicated delinquent.

2. Insufficient notice and process

¶ 16. D.O. further argues that he was given insufficient notice of the proceedings in 2011, that he was given insufficient notice about the penalties he might be facing as a result of those proceedings, and that he was not informed that he had the right to counsel or appeal. These failures, he argues, deprived him of the right to due process of law under the constitutions of the United States and the State of Mississippi.

¶ 17. “The youth court is without jurisdiction unless the parents or guardian if available, be summoned as required by statute.” Hopkins v. Youth Court of Issaquena County, 227 So.2d 282, 284 (Miss.1969) (emphasis added). Rule 22 of the Uniform Rules of Youth Court Practice requires that “[sjummons shall be served not less than three (3) days before the date set for the adjudicatory hearing of proceedings concerning the child....” URYC 22. Further, before any adjudicatory hearing, the youth court must “ascertain whether the notice requirements have been complied with...Miss.Code Ann. § 43-21-557 (Rev. 2009). It is undisputed that D.O., the father, was served with his summons for the hearing only two days before the hearing occurred. His service did not comply with the rules of service established by the Youth Court Law. Nevertheless, he appeared at the hearing. “A party other than the child may waive service of summons on himself ... by voluntary appearance at the hearing....” Miss.Code Ann. § 43-21-507 (Rev. 2009). Any infirmity in the service was cured by the father’s appearance at the hearing.

¶ 18. However, before the 2011 hearing, D.O. was not told about the amounts he might be assessed for transportation and detention. In fact, the order of the court instructing the father to pay the costs of the detention does not inform him what the amount will be. Further, there is nothing in the transcript of the 2011 hearing indicating that the court made D.O. aware that he had the right to an attorney or the right to an appeal. As a party to the proceedings under Uniform Rule of Youth Court Practice 4, he argues that the trial court’s failure to ascertain whether his due process rights had been satisfied rendered the entire hearing invalid.

¶ 19. Although done in a different context, this Court, in analyzing the ability of a youth court to order the parents of a juvenile who had been adjudicated delinquent to pay restitution costs, has made it clear that due process of law must be safeguarded by sufficient procedural rules. See In Interest of B.D., 720 So.2d 476, 479 (¶ 10) (Miss.1998). A hearing must be held when adjudicating restitution costs to a parent, and that hearing would require, at a minimum, “(1) notice to the defendant that victim restitution was being considered by the court, (2) the nature of such restitution considered, (3) an opportunity to the defendant to be heard and to object, and (4) a finding by the court to afford adequate appellate review.” Id. (quoting Butler v. State, 544 So.2d 816, 821-22 (Miss.1989)). In the 2011 hearing, the father was not notified that he could be charged for J.P.’s detention, nor was he told the cost, nor was he given the opportunity to object to the charge. In 2011, Section 43-21-615 clearly stated that transportation and detention costs could be assessed against the parent of a juvenile only “after giving the responsible parent or guardian a reasonable opportunity to be heard....” Miss. Code Ann. § 43-21-615 (Rev. 2009). The procedure used by the court to charge D.O. for J.P.’s 2011 confinement fell drastically short of the basic procedures which guarantee that a parent’s due process rights are observed.

¶ 20. The assessment of costs against D.O. for his son’s 2011 detention must be reversed for two reasons. The youth court was without jurisdiction to commit J.P. because it failed to comply with the procedural mandates of Section 43-21-613. The State did not file a petition outlining the charges of contempt, and the previous order that J.P. was alleged to have violated was not attached, nor is it in the record. The youth court could not modify its prior order until it followed the procedure outlined in the Youth Court Law. As it had no jurisdiction to detain J.P., it certainly was without jurisdiction to charge his father for the cost of that unlawful detainment." Additionally, the youth court’s failure to notify D.O. that he was at risk of bearing the cost of J.P.’s detention, or even how much that cost might be, fell short of the procedural safeguards put in place to protect the parents of delinquent- or, in this case, allegedly delinquent-children.

II. The 2012 detainment in cause number 12-D-0488

¶ 21. With respect to J.P.’s 2012 detainment, the appellants, J.P.’s parents, raise five issues.

1.Whether Mississippi’s Youth Court Law authorizes a youth court to order parents to pay the costs of detaining a child alleged to be delinquent without first adjudicating the child delinquent.
2. Whether a youth court may order parents to pay the costs of detaining a child when the child is detained in violation of federal and state law.
3. The youth court does not have jurisdiction to sanction a parent when a minor is never committed.
4. J.P.’s parents were deprived of their right to due process by the deficient hearing process.
5. The youth court’s final order does not provide meaningful guidance to JJP.’s parents and strains appellate review.

This Court will address some of the issues together for the sake of clarity and brevity-

1. Whether Section 43-21-615 as it existed in 2012 permitted the youth court to assess costs to the parents of a minor who never was adjudicated delinquent.

¶ 22. It is undisputed that, despite his spending 103 days in juvenile detention and thirty days in the Jefferson Davis County Jail, J.P. was never adjudicated delinquent. The State argues that the wording of the relevant statute at the time permitted this practice. When J.P. was arrested and his parents were ordered to pay the costs of his detention, Mississippi Code Section 43-21-615(2) provided:

Whenever a child is committed by the youth court to the custody of any person or agency other than the custody of a state training school, the youth court, after giving the responsible parent or guardian a reasonable opportunity to be heard, may order that the parent or guardian pay, upon such terms or conditions as the youth court may direct, such sum or sums as will cover, in whole or in part, the support of the child including any necessary medical treatment. If the parent or guardian shall wilfully fail or refuse to pay such sum, he may be proceeded against for contempt of court as provided in this chapter.

Miss.Code Ann. § 43-21-615(2) (Rev. 2009). That statute was amended in 2013, changing the first sentence to say that “[w]henever a child is adjudicated delinquent and committed by the youth court to the custody of any person or agency ..., the youth court ... may order that the parent or guardian pay” the costs associated with housing that child. Miss.Code Ann. § 43-21-615(2) (Supp.2014) (emphasis added).

¶ 23. The State uses the amended language to argue that, prior to the amendment, the law permitted youth courts to hold juveniles in custody and charge their parents for the detention without an adjudication of delinquency. Obviously, if the statute had contained the amended language when the court ordered J.P.’s parents to pay his detention costs, the order would have been illegal because, indisputably, he never was adjudicated delinquent. The State simply has argued that the law in 2012 permitted youth courts to charge parents for their juveniles’ detentions at any stage of the proceedings against that child, and without any requirement that the child be proven guilty of anything. The State makes no substantive argument for why such a rule would be a good idea or would be fair. The State’s statutory interpretation argument is unpersuasive.

¶24. Even in 2012, the word “committed” as used in Section 43-21-615 had a very specific meaning. Children could be “committed” to custody only after they had been adjudicated delinquent. The context in which the term is used in the Youth Court Law indicates that “commitment” occurs only as part of a disposition order which follows an adjudication hearing. See Sorenson v. Secretary of Treasury of U.S., 475 U.S. 851, 860, 106 S.Ct. 1600, 1606, 89 L.Ed.2d 855 (1986) (quotation omitted) (“The normal rule of statutory construction assumes that identical words used in different parts of the same act are intended to have the same meaning.”). Section 43-21-605 states that one of the authorized dispositions of a youth court is to “commit” the child to a juvenile detention facility. A disposition by a court must come only after a hearing has been held and the State’s burden of proof has been met.

¶ 25. Further, the provisions of the law addressing pre-adjudication orders such as arrest warrants and custody orders, temporary custody orders, and detention hearings do not mention “commitment” at all. Several other sections dealing with commitment make clear that it can only occur after a hearing on the matter. See Miss.Code Ann. § 43-21-315(4) (Rev. 2009) (stating that a civil commitment hearing under Section 43-21-73 is required before a youth court may commit a child to the Department of Mental Health); see also Miss.Code Ann. § 43-21-319 (Rev. 2009) (stating that juveniles could be housed in the “committing jurisdiction” where they were “found to be delinquent”). Additionally, Section 43-21-615, which outlines cost assessments against parents for their children’s detention, is located in the “Disposition” section of the Youth Court Law. The placement of that section indicates that, even before the amendment of Section 43-21-615 to include the language “adjudicated delinquent,” the word “commitment” was used in a specific way to indicate that commitment could occur only after a delinquency adjudication.

¶ 26. This understanding of commitment in the youth court context dovetails with the legislative history of the amendment to Section 43-21-615. The history makes clear that another part of the law was the real object of the amendment. As a part of the amendment, the subsection now requires that the parents “be provided an itemized bill of all costs and shall be given an opportunity to request an adjustment of the costs.” Miss.Code Ann. § 43-21-615(2) (Supp.2014). It is that section that J.P.’s parents argue was the real substantive amendment to the statute. They contend that, when the amendment was being discussed by the Legislature, all the relevant discussion focused on the requirement to provide an itemized bill to the parents of juvenile delinquents. Further, the title of H.B. 1516, which amended the statute, was “An Act to Amend Section 43-21-615, Mississippi Code of 1972, To Require Before A Parent Pays Certain Costs For The Support Of Certain Youth Who Have Been Adjudicated Delinquent, The Parent Of The Child Shall Receive An Itemized Bill Pertaining To The Costs; To Require The Youth Court To Provide An Opportunity For The Parent To Request An Adjustment Of Such Costs; And For Related Purposes.” Clearly, the main concern of the Legislature was ensuring that parents could contest costs associated with juvenile delinquent detainments and receive itemized bills in order to do so.

¶ 27. Finally, it simply defies logic that a court could be able to commit a child to a detention facility without having found him or her guilty of anything, and be able to make the child’s parents pay for it. As we stated earlier, without an adjudicatory hearing on the child’s delinquency, the youth court is without jurisdiction or authority to assess costs against the parents. This Court has long recognized “the dominant and natural right of the parent to the custody and care of the child.” In Interest of M.R.L., 488 So.2d 788, 789 (Miss.1986) (quoting Reynolds v. Davidow, 200 Miss. 480, 484, 27 So.2d 691, 691-92 (1946)). Accordingly, to prove a child delinquent and remove him from the custody of his parents, it must be proven beyond a reasonable doubt that the child is delinquent and in need of supervision. “Because an adjudication that a child is in need of supervision confers upon the Youth Court the authority to remove him or her from the home of his parents, our law provides the most stringent burden of proof.” M.R.L., 488 So.2d at 790. A child may be adjudicated delinquent only if the youth court finds that he or she is delinquent “on proof beyond a reasonable doubt....” Miss.Code. Ann. §43-21-561(1) (Rev. 2009). “[A] child may not be committed to an institution without a petition and an adjudicatory hearing” in which the child is proven delinquent beyond a reasonable doubt. Dennis, 291 So.2d at 734 (emphasis added).

¶ 28. J.P. was never adjudicated delinquent in 2012. The youth court had no authority or jurisdiction to send him to a juvenile detention facility indefinitely with no petition against him forthcoming and no adjudication hearing set. J.P.’s detention was invalid as a matter of law. While a youth court does have authority to detain a juvenile pending an adjudication hearing, that authority is very limited. The State is required by law to bring a petition alleging delinquency within five days of a juvenile’s detainment precisely because the youth court has limited power to hold a minor who has not been adjudicated delinquent. The youth court is designed to get the ball rolling and adjudicate delinquency or not quickly, to minimize the amount of time that a juvenile’s status is undecided.

¶ 29. Here, J.P. sat in limbo for 133 days. The youth court never held an adjudication hearing. J.P.’s parents cannot be required to bear the costs of J.P.’s invalid detention because he was never proven delinquent beyond a reasonable doubt. It is only after such a ruling that a child may be committed to a detention facility. The law as it stood in 2012 clearly contemplated that a child must have been adjudicated delinquent before his parents could be required to pay for his transportation and/or confinement. Mississippi’s Constitution guarantees this simple courtesy to acquitted adult criminal defendants. “Defendants, in cases of conviction, may be taxed with the costs.” Miss. Const, art. 14, § 261 (emphasis added). So. it is for unad-judicated juveniles. To hold otherwise would be fundamentally unfair to the parents of children who were never determined to have been delinquent but nevertheless were removed from their parents’ care. The State’s contention that such a practice was not prohibited by law falls flat. Without an adjudication of delinquency, the youth court’s assessment of costs against J.P.’s parents violated their rights to due process of law.

2. J.P.’s detention violated several sections of Mississippi’s Youth Court Law.

¶ 30. The State’s interpretation of the 2012 version of Section 43-21-605 is incorrect. For a youth court to “commit” a child to a detention facility, that child first must be adjudicated delinquent first. That alone is sufficient to reverse the youth court’s assessment of costs against D.O. and R.P. However, the proceedings below so violated Mississippi’s Youth Court Law, and, consequently, D.O. and R.P.’s right to due process, that we are compelled to elaborate on those violations, and how those violations in and of themselves would be sufficient grounds to reverse the assessment of costs.

¶ 31. J.P. spent 103 days in the Pike County Juvenile Detention Facility. Section 43-21-605 forbids the confinement of delinquents in a detention facility for more than ninety days.

¶ 32. Section 43-21^451 requires that a petition alleging delinquent conduct be filed within five days of a detention hearing. The petition against J.P. was filed forty-eight days after his detention hearing.

¶ 33. Section 43-21-551 requires an adjudicatory hearing “not later than twenty-one (21) days after the child is first detained by the youth court....” Miss.Code Ann. § 43-21-551 (Rev. 2009). The hearing may be postponed, but only upon motion of the child, or if process cannot be completed, or if a material witness is unavailable. Id. Here, the court never held an adjudicatory hearing, despite J.P.’s being detained for a total of 133 days. When the court postponed J.P.’s adjudicatory hearing on August 15, it did so on its own motion and merely stated that the hearing was postponed “for good cause shown.” After twenty-one days from the date of J.P.’s detainment, the youth court was without authority to hold him in detention.

¶ 34. Additionally, petitions alleging delinquent behavior must “set forth plainly and concisely and with particularity ... a statement of the facts, including the facts which bring the child within the jurisdiction of the youth court and which show the child is a delinquent child....” Miss. Code Ann. § 43-21-455(1)(c) (Rev. 2009). The law also requires that, in the case of a child alleged to be delinquent, that the petition “recite factual allegations with the same particularity required in a criminal indictment....” Miss.Code Ann. § 43-21-455(4) (Rev. 2009) (emphasis added). J.P.’s petition stated in its entirety: “That on or about 06/21/2012, in JEFFERSON DAVIS COUNTY, MISSISSIPPI, [J.P.] did purposefully, knowingly, and unlawfully commit the act of CONTEMPT OF COURT in violation of § 43-21-153 of the Mississippi Code of 1972, Annotated against the peace and dignity of the State of Mississippi.” Not a single fact was alleged to support the charge. Clearly, were this a criminal indictment it would fall woefully short of the particularity required for such a formal and serious document. The complete failure to provide adequate notice of the charges against J.P. violated the Due Process Clauses of the United States and Mississippi Constitutions. “A minor is entitled to constitutional guarantees including notice of charges, right of counsel, right of confrontation and cross-examination, and the privilege against self-incrimination.” In Interest of Gressett, 272 So.2d 921, 922 (Miss.1973) (citing In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)).

¶ 35. Making matters worse, no transcript was made for several of the proceedings in 2012. On June 25, 2012, the youth court held a detention hearing and ordered J.P.’s parents to pay the costs of his detention. As noted in the father’s brief, nothing in the record indicates whether either parent was present at that hearing; there is no transcript of that hearing, and there is nothing indicating that D.O. or R.P. was informed prior to the hearing that they could be held liable for some of the costs of their son’s detention. No transcript was made of the August 13, 2012, hearing. There is no record indicating whether the youth court ascertained whether J.P.’s parents could afford to pay the fines assessed against them.

¶ 36. Similar to the 2011 proceedings against J.P., here the youth court’s procedure for assessing costs against J.P.’s parents falls short of protecting their basic due process rights. Once again, R.P. and D.O. were ordered to pay for J.P.’s detention by order of the court. There is no indication that they were notified that such a sanction was being considered by the court; there is no record indicating that the court determined whether they could pay such a sanction; and they were able to contest the sanction only when they obtained pro bono legal counsel after J.P. had spent more than ninety days in juvenile detention. As this Court noted in B.D., a hearing must be held when assessing costs on the parents of a juvenile delinquent and that hearing must follow, at a minimum, certain procedures to safeguard the due process rights of the parents. B.D., 720 So.2d at 479 (¶ 10). The Court in that case also noted: “The Youth Court Act provides a fairly detailed procedure for determining whether the juvenile in question is delinquent, and what disposition should be made of the matter, but says little procedurally about how restitution is to be determined.” Id. (¶ 11). Clearly, the Court recognized that only after adjudication had taken place could the youth court reach a disposition, particularly one regarding reimbursement for the detention of the juvenile by his or her parents.

¶ 37. The State argues that J.P.’s parents were properly on notice of the hearings regarding J.P.’s detention, that they were present at the relevant proceedings against J.P., that one continuance was given to them in order for them to obtain counsel, which they did, and that therefore their due process rights were satisfied. The State does not address the complete failure to bring a petition against J.P. until forty-eight days after his detention; it does not address its own failure to file an adequate petition against J.P.; it does not address J.P.’s detention of more than ninety days in violation of the law; and, most importantly, it does not address the failure to hold an adjudicatory hearing on J.P.’s delinquency during the 133 days he spent confined. That State merely argues that J.P.’s parents should have known that they could be charged for his detention because they had been through this before.

¶ 38. The youth court’s lack of compliance with the procedural requirements of the Youth Court Law violated J.P.’s and his parents’ state and federal rights to due process of law. Without an adjudicatory hearing, J.P.’s detention was unjustified. The juvenile was held for longer than was statutorily permitted, he was charged far later than is statutorily permitted, and costs were assessed against his parents in violation of their rights to due process of law.

CONCLUSION

¶ 39. We reverse the judgment of the Youth Court of Jefferson Davis County and render judgment in favor of the juvenile’s parents, D.O. and R.P. Mississippi’s Constitution forbids the assessment of costs against adults who are charged with crimes but who are not convicted. The same rule applies to juveniles. The State cannot charge detention costs to the parents of a juvenile who has not been adjudicated delinquent. J.P.’s detention occurred in violation of several sections of the Youth Court Law, violating both his and his parents’ rights to due process of law under the federal and state constitutions. The youth court was without jurisdiction to sentence J.P. to a juvenile detention facility where no petition was filed against him and where the State did not prove beyond a reasonable doubt that he was, in fact, delinquent. Accordingly, the youth court was without jurisdiction or authority to assess the costs of that detention against J.P.’s parents. The relevant statute regarding costs for detention in 2012 clearly contemplated that a juvenile had to be adjudicated delinquent before those costs could be assessed against his parents. The 2013 amendment only reinforced and clarified that requirement. In almost every way, the proceedings (or lack thereof) against J.P. were constitutionally and procedurally infirm, and the assessment of costs against his parents runs contrary to the procedures and policies of the Youth Court Law itself. Therefore, the judgment of the Youth Court of Jefferson Davis County is reversed, and judgment is here rendered for R.P. and D.O.

¶ 40. REVERSED AND RENDERED.

WALLER, C.J., DICKINSON, P.J., LAMAR, CHANDLER, PIERCE, KING AND COLEMAN, JJ„ CONCUR. RANDOLPH, P.J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . We shall refer to the minor and the minor’s parents by their initials.

      . Youth courts are not permitted to sentence a juvenile to a detention facility for more than ninety days. See Miss.Code Ann. § 43-21-605(1)(Z) (Rev. 2009). Once transferred, J.P. would spend thirty days more in the Jefferson Davis County Jail until he was released on October 31, 2012.

      . The court did not require the parents to pay the cost of J.P.’s thirty-day stay in the county jail.

      . See Miss.Code Ann. § 43-21-301 (Rev. 2009).

      . See Miss.Code Ann. § 43-21-307 (Rev. 2009).

        .See Miss.Code Ann. § 43-21-309 (Rev. 2009).

      . Delinquent, in youth court parlance.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Marco S. RAINE a/k/a Marco Shaunta Raine a/k/a Marco Shuanta Raine a/k/a Marco Raine a/k/a Marco S. Raine, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-01600-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2014.

      Marco S. Raine, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS, MAXWELL and FAIR, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Before the Rankin County Circuit Court, Marco Raine pled guilty to one count of uttering a forgery. On July 1, 2013, Raine filed a motion he labeled as a “writ of habeas corpus, in the alternative, [a] motion to vacate sentence [and] conviction and to set aside guilty plea [and] dismiss charges due to lack of subject[-]matter jurisdiction.” The circuit court summarily dismissed Raine’s motion, and Raine filed the present appeal asking this Court to determine whether the circuit court had subject-matter jurisdiction over his guilty plea and whether the circuit court erred in not giving him an evidentia-ry hearing. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

1Í2. A Rankin County grand jury indicted Raine on March 26, 2008, on one count of uttering a forgery. The indictment charged that Raine:

[O]n or about the 20th day of September 2007, in the county aforesaid [Rankin] and within the jurisdiction of this [circuit e]ourt, did unlawfully, willfully, felo-niously, fraudulently and falsely then and there utter and publish as true to an agent of Priority[One] Bank, a certain forged and counterfeit writing on paper and instrument in writing, commonly know as, called and purporting to be a bank check....

Raine pled guilty to the charge on January 4, 2010. The circuit court accepted his plea as freely and voluntarily given and with a sufficient factual basis. It sentenced Raine to serve ten years in the custody of the Mississippi Department of Corrections, with four years to serve and five years of post-release supervision. Also, he was ordered to pay $1,500 in restitution.

¶ 3. On July 1, 2013, Raine filed a motion he labeled as a “writ of habeas corpus, in the alternative, [a] motion to vacate sentence [and] conviction and to set aside guilty plea [and] dismiss charges due to lack of subject[-]matter jurisdiction.” In it he alleged that because he actually passed the fraudulent check in Hattiesburg, the Rankin County Circuit Court did not have subject-matter jurisdiction to accept his guilty plea. He attached a letter from PriorityOne Bank that stated the transaction did occur at the Hattiesburg branch of PriorityOne Bank. The circuit court, after reviewing Raine’s guilty-plea transcript and the contents of Raine’s criminal file in the case, summarily dismissed Raine’s motion. Raine appeals and raises two issues:

I. Whether ... the [circuit] court had subject[-]matter jurisdiction due to improper venue[.]
II. Whether ... the [circuit] court erred in dismissing [Raine’s motion for post-conviction relief (PCR) ], without an evidentiary hearing, to determine if venue in the criminal proceeding was properly before the [circuit] court[.]

ANALYSIS

¶ 4. While Raine’s motion is titled a writ of habeas corpus, the Mississippi Uniform Post-Conviction Collateral Relief Act (UPCCRA) “abolishes the common law writs relating to post-conviction collateral relief, including ... post-conviction habeas corpus[.]” Miss.Code Ann. § 99-39-3(1) (Supp.2014). Therefore, Raine’s motion is governed by the UPCCRA and reviewed as a PCR motion. The standard of review for the summary dismissal of a PCR motion is the clearly-erroneous standard for a circuit court’s factual findings and de novo for the circuit court’s legal .conclusions. Purnell v. State, 126 So.3d 949, 951 (¶ 4) (Miss.Ct.App.2013) (citing Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss.Ct.App. 2012)).

¶ 5. At the outset, we note that Raine is procedurally barred from filing his PCR motion bécause it was filed more than three years after the judgment of conviction was entered for his guilty plea. See Miss.Code Ann. § 99-39-5(2) (Supp.2014). His judgment of conviction was filed on January 12, 2010; however, Raine did not filed his PCR motion until July 1, 2013, which is more than three years after his judgment of conviction was filed. One of the nine grounds justifying relief under the UPCCRA is “[t]hat the trial court was without jurisdiction to impose [the] sentence.” See Miss.Code Ann. § 99-39-5(1)(b) (Supp.2014). Had Raine timely filed his motion within the three-year window, he could have raised this very issue. He did not. Additionally, Raine’s claims do not fall within any of the exceptions to the time-bar as outlined in Mississippi Code Annotated section 99 — 39—5(2)(a)—(b).

¶ 6. Procedural bar notwithstanding, we will address Raine’s claim that the circuit court lacked subject-matter jurisdiction. “[A] circuit court obtains ‘subject[-]matter jurisdiction over the subject of a particular offense’ when ‘an indictment charging the essential elements of a crime is served on a defendant.’ ” Chapell v. State, 107 So.3d 1003, 1006 (¶ 9) (Miss.Ct.App.2012) (quoting Neal v. State, 936 So.2d 463, 466 (¶ 7) (Miss.Ct.App.2006)). And “[t]rial courts are permitted to rely upon an appellant’s sworn testimony from a plea hearing[,] which contradicts assertions made in the PCR motion.” Conner v. State, 80 So.3d 876, 878 (¶ 6) (Miss.Ct.App.2012) (citing Tolliver v. State, 802 So.2d 125, 127-28 (¶ 11) (Miss.Ct.App.2001)).

¶ 7. Raine was served a one-count indictment by the Rankin County Circuit Court for uttering a forgery in Rankin County, Mississippi; thereby securing the circuit court’s jurisdiction over the case. At his plea hearing, the circuit court read that the State would have to prove the crime of uttering a forgery was committed in Rankin County, Mississippi. Raine agreed that he understood the elements of the crime as outlined and that he did commit the crime. During his guilty-plea hearing, Raine never asserted that the crime did not actually occur in Rankin County. As such, we rely on his sworn statement at his plea hearing that he did commit the crime in Rankin County.

¶ 8. More specifically, the circuit court informed Raine:

[T]he State would have to prove this crime was committed in Rankin County, Mississippi, on or about September 20, 2007, that [Raine] did willfully, unlawfully], feloniously, fraudulently^] and falsely ... utter and publish as true to Priority[One] Bank[,] a certain forged and counterfeit ... instrument in writing, commonly known ... to be a bank check, at a time when you knew that the instrument ... was false, forged[,] and counterfeit!,] and you had the willful and felonious intent to injure and defraud Priority[One] Bank and J. Greer Investment Financial Services.

When asked if he understood the elements of the offense, Raine answered: “Yes, Sir.” When asked if he committed the offense as outlined above, Raine answered, under oath: “Yes, Sir.” Yet, in his sworn PCR motion filed in the circuit court, Raine now swears that the circuit court “lacked subject[-]matter jurisdiction ... to adjudicate him guilty and sentence him in this criminal matter, as the offense actually occurred in Hattiesburg (Lamar County), [Mississippi], which is not within the ... jurisdiction of [the] Rankin County Circuit Court.” (Emphasis added). To his PCR motion, Raine attached an unsworn letter dated May 6, 2013, and purportedly signed by a PriorityOne Bank employee. The letter indicates that a deposit of $3,917.20 was made on September 21, 2007, using a fraudulent check at the Hat-tiesburg branch of PriorityOne. Yet the record contains a sworn affidavit from Christopher McCarver, branch manager of PriorityOne Bank, stating that on September 20, 2007, in Richland, Mississippi, which is located in Rankin County, Mississippi, that Raine “did willfully and unlawfully and feloniously with intent to cheat and defraud Priority [One] Bank, desingedly [sic] and falsely with knowledge of such falseness[,] open two checking accounts and a certificate of deposit with a fraudulent check and obtain from Priority[One] Bank the sum of $1,500.” In a PCR motion, Raine bears the burden to prove by a preponderance of the evidence that he is entitled to relief. When a PCR movant swears before the circuit court to the truth of one material fact during his plea colloquy, yet swears to the opposite fact as truth in his PCR motion, he simply is not entitled to an evidentiary hearing. See Conner, 80 So.3d at 878 (¶ 9). Moreover, he may be inviting an unintended charge of perjury.

¶ 9. In regard to the second issue raised about whether Raine was entitled to an evidentiary hearing, we note that Mississippi Code Annotated section 99-39-11(2) (Supp.2014) provides that “[i]f it plainly appears from the face of the motion ... that the movant is not entitled to any relief, the judge may make an order for its dismissal....” The circuit court reviewed Raine’s motion, his guilty-plea transcript, and his underlying criminal file, and found that Raine was not entitled to an evidentia-ry hearing. We find no error.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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


author: LEE, C.J.,

text:
    Robert Dewayne BARNES a/k/a Robert Barnes a/k/a Robert D. Barnes, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-01016-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2014.

      Robert Dewayne Barnes, appellant, pro se.
    Office of the Attorney General by Lisa L. Blount, attorney for Appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   LEE, C.J.,

for the Court:

¶ 1. In 2005, Robert Dewayne Barnes pleaded guilty to three counts of armed robbery. Barnes was sentenced to serve three years on each count, with the sentences to run concurrently, and five years of post-release supervision. On April 24, 2012, the Jackson County Circuit Court found that Barnes had violated the terms of his post-release supervision and revoked Barnes’s probation.

¶ 2. In August 2012, Barnes filed a motion for reconsideration. In October 2012, Barnes filed a petition to clarify the order of revocation. While these two motions were pending, Barnes filed a motion for post-conviction relief (PCR) on November 1, 2012. By order dated November 20, 2012, the trial court addressed all Barnes’s motions together and denied relief. Barnes did not appeal this order.

¶ 3. On December 7, 2012, Barnes filed another PCR motion, which the trial court denied on March 26, 2013. On June 14, 2013, Barnes sought relief from the Mississippi Supreme Court. The supreme court treated Barnes’s motion as a request for an out-of-time appeal and remanded for the trial court to consider whether Barnes was entitled to proceed with an out-of-time appeal. We note that the trial court’s order denying relief on March 26, 2013, is not in the record. On September 24, 2013, the trial court entered an order denying Barnes’s request for an out-of-time appeal.

¶ 4. Barnes now appeals asserting the trial court erred in denying his request for an out-of-time appeal and revoking his post-release supervision.

STANDARD OF REVIEW

¶ 5. When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s decision if it is clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review. Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss.Ct.App.2012).

DISCUSSION

¶ 6. We first look to whether the trial court abused its discretion in denying Barnes the opportunity to filé an out-of-time appeal. “When a [trial] court summarily denies or dismisses a request for an out-of-time appeal, we review the decision for abuse of discretion.” Johnson v. State, 137 So.3d 336, 338 (¶ 7) (Miss.Ct.App.2014) (citation omitted). The trial court determined that “nothing before it would suggest that [Barnes’s] request was timely made or that there is good cause for same.”

¶ 7. In his reply brief, Barnes contends he never received a copy of the trial court’s order of'March 26, 2013, until May 2013, after which he appealed to the supreme court on June 14, 2013. Barnes must show he failed to appeal “through no fault of his own.” Havard v. State, 911 So.2d 991, 993 (¶ 10) (Miss.Ct.App.2005). However, Barnes has presented no proof other than mere allegations that he failed to receive notice of the trial court’s order.

¶ 8. Even if we found merit to Barnes’s allegations, the PCR motion Barnes filed on December 7, 2012, was his second PCR motion and should have been barred as a successive writ. See Miss.Code Ann. § 99-39-23(6) (Supp.2014). In addition, Barnes’s only issue throughout his numerous filings has been the revocation of his probation. The trial court fully addressed this issue in the November 20, 2012 order denying Barnes’s first PCR motion.

¶ 9. We find no merit to Barnes’s appeal and affirm.

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

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR AND JAMES, JJ„ CONCUR. ROBERTS AND MAXWELL, JJ., CONCUR IN PART AND IN THE RESULT.


author: IRVING, P.J.,

text:
    Anthony Miles FORTENBERRY a/k/a Anthony Fortenberry a/k/a Anthony M. Fortenberry, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CA-01003-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2014.

      Earnestine Alexander, Jackson, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Anthony Miles Fortenberry pleaded guilty to one count of sexual battery in violation of Mississippi Code Annotated section 97 — 3—95(1)(c) (Rev. 2014). The Rankin County Circuit Court sentenced him to a term of twenty years in the custody of the Mississippi Department of Corrections (MDOC), with thirteen years suspended and with five years of supervised probation. Fortenberry filed a motion for post-conviction collateral relief (PCR), alleging (1) he,was denied an evi-dentiary hearing; (2) there was no factual basis for the acceptance of the plea; and (3) he was denied effective assistance of counsel. The trial court dismissed Forten-berry’s PCR motion. Feeling aggrieved, Fortenberry appeals.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Fortenberry was indicted for sexual battery for inserting his finger into the vagina of a then fourteen-year-old girl on or about January 31, 2011. On November 30, 2011, Fortenberry pleaded guilty to the crime, and the trial court sentenced him to serve a term of twenty years, with thirteen years suspended and with five years of supervised probation. In addition, the trial court ordered Fortenberry to pay a $1,000 fine to the Victims’ Compensation Fund, and to register as a sexual offender.

¶ 4. On July 26, 2012, Fortenberry filed a pro se PCR motion. After reviewing Fortenberry’s guilty-plea and sentencing-hearing transcript, in addition to his criminal file, the trial court dismissed the PCR motion, finding that “it plainly appears from the face of the above-mentioned motion that [Fortenberry] is not entitled to any relief.” As stated, Fortenberry now appeals and argues: (1) he was denied an evidentiary hearing, (2) there was no factual basis for the acceptance of his plea, and (3) he was denied effective assistance of counsel.

DISCUSSION

I. Lack of Evidentiary Hearing

¶ 5. The trial court may summarily dismiss a PCR motion without an evidentiary hearing “[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 relieff.]” Miss.Code Ann. § 99-39-11(2) (Supp.2014). An appellate court will not reverse a trial court’s dismissal of a PCR motion unless the trial court’s decision was clearly erroneous. Means v. State, 43 So.3d 438, 441 (¶6) (Miss.2010) (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)). Additionally, a trial court enjoys wide discretion in determining whether to grant an evidentiary hearing. Hebert v. State, 864 So.2d 1041, 1045 (¶ 11) (Miss.Ct.App.2004) (citing Meeks v. State, 781 So.2d 109, 114 (¶ 14) (Miss.2001)). Accordingly, “[n]ot every motion for post-conviction relief filed in the trial court must be afforded a full adversarial hearing.” Id. However, questions of law are reviewed de novo. Means, 43 So.3d at 441 (¶ 6) (citation omitted). Here, the record does not demonstrate that the trial court’s dismissal of Fortenberry’s PCR motion was clearly erroneous.

¶ 6. Fortenberry asserts that he did not voluntarily plead guilty in light of his use of prescription drugs that were mind altering and, as a result, he did “not ... understand his rights and simply signed the documents that were placed in front of him by [e]ounsel.”

¶ 7. The transcript of the plea colloquy clearly indicates that the trial court was made aware of the prescription drugs and did not find this impeded Fortenberry’s decision-making process, specifically his decision to plead guilty. Furthermore, Fortenberry had several opportunities during his hearing to inform the court that he did not understand his plea agreement due to his prescription-drug use:

COURT: Are you under the influence of any drugs or alcohol?
FORTENBERRY: Just prescription.
COURT: What are those prescription?
COUNSEL: It is [unintelligible] ten milligrams, Buspirone [phonetic] 15 milligrams, and Juneprozoa [phonetic], six hundred milligrams. ' Also, Hy-droxacen [phonetic], HCTZ Alorporola [phonetic], Lexicon [phonetic], and Leretolitan [phonetic].
COURT: All right, why are you taking those medications?
FORTENBERRY: Depression and anxiety.
COURT: Has [Fortenberry] been able to assist you in his defense?
COUNSEL: Yes, your Honor.
COURT: At this point, it’s not too late to stop the hearing; but it will be if I accept your guilty plea, and I want to be certain you want to plead guilty. Do you want to plead guilty?
FORTENBERRY: Yes, sir.

¶ 8. While Fortenberry stated that he was on several prescription medications, he did not, at any point, inform the trial court that the medication affected his mental state or that he had doubts about pleading guilty. Furthermore, Fortenber-ry did not attach any medical documentation to his PCR motion in support of his contention that the medication he was taking altered his mental state. We, like the trial court, have been provided only his bare assertions. See Pearson v. State, 945 So.2d 399, 401 (¶8) (Miss.Ct.App.2006). Therefore, we cannot say that the trial court erred in summarily rejecting Forten-berry’s contention that his prescription medication rendered his guilty plea involuntary. This issue is without merit.

II. Lack of Factual Basis to Support Plea of Guilty

¶ 9. Fortenberry also contends that there was no factual basis for his plea. This issue was not presented to the trial court and, therefore, is barred from appellate review. See Moawad v. State, 581 So.2d 632, 634 (Miss.1988).

III. Ineffective Assistance of Counsel

¶ 10. Here, Fortenberry specifically stated that he was denied effective assistance of counsel when he was informed that his choice was either to enter a plea of guilty or “go to trial within twenty-four (24) hours.” A voluntary guilty plea waives claims of ineffective assistance of counsel, “except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea.” Hill v. State, 60 So.3d 824, 827 (¶ 6) (Miss.Ct.App. 2011) (citation omitted).

¶ 11. When a defendant pleads guilty, and later asserts ineffective assistance of counsel, he must demonstrate that his counsel’s “conduct proximately resulted in [the] guilty plea, and [that] but for counsel’s errors, he would not have entered the plea.” Cole v. State, 918 So.2d 890, 894 (¶10) (Miss.Ct.App.2006) (citing Reynolds v. State, 521 So.2d 914, 918 (Miss.1988)). “[H]e must show unprofessional errors of substantial gravity.” Id. Moreover, “[i]n cases involving post; conviction collateral relief, where a party offers only his affidavit, then his ineffective[-]assistance[-of-counsel] claim is without merit.” Cherry v. State, 24 So.3d 1048, 1051 (¶ 6) (Miss.Ct.App.2010) (citation and internal quotation marks omitted).

¶ 12. During the plea colloquy, Forten-berry was asked:

COURT: Are you satisfied with your attorney’s representation of you?
FORTENBERRY: Yes, sir.
COURT: Do you have any complaints you wish to make about him?
FORTENBERRY: No, sir.

The transcript notwithstanding, Forten-berry argues that counsel knew or should have known that he was under the influence of mind-altering drugs. Fortenberry claims that he “simply signed the documents that were placed in front of him by counsel.” Again, Fortenberry merely makes an assertion and does not support his claim — that his mind was altered — with any evidence. He offers only his own affidavit, alleging deficiency on the part of his trial counsel. Fortenberry further contends that he had little or no memory of the events because of his prescription-drug use and drinking on the night of the incident leading up to his written confession. However, the plea hearing was over six months later. Even after this period of time, Fortenberry chose to plead guilty. We find that the trial court did not err in dismissing Fortenberry’s PCR motion. Accordingly, we affirm.

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

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


text:
    Quincy FOX a/k/a Quincy Montray Fox, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-01384-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2014.
    Office of State Public Defender by Benjamin Alen Súber, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Following his trial in the Lauder-dale County Circuit Court, a jury convict,ed Quincy Fox of two counts of kidnapping, one count of armed carjacking, and one count of armed robbery. Fox was sentenced, as an habitual offender, to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC) for each count, with his sentences to run concurrently to one another. Fox initially filed a motion for a new trial, which the circuit court denied. Fox then filed a notice of appeal. However, over two weeks after filing a notice of appeal, Fox filed a second motion for a new trial with the circuit court. In it, he alleged that there was newly discovered evidence that Jessie Jones, a witness for the State and accomplice to the crimes, received a more lenient sentence than what he testified to at trial. The circuit court denied Fox’s second motion for a new trial, and Fox filed the present appeal. He asks this Court to determine whether the circuit court erred in denying his second motion for a new trial and whether the circuit court erred in allowing the State to introduce evidence of Fox’s other crimes. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 2, 2012, Fox and his codefendant, Jones, were indicted jointly for the armed carjacking of Robin Rosen-baum, the kidnapping of Rosenbaum and Amanda Davis, and the armed robbery of Davis. Fox and Jones were also individually indicted, in counts five and six, for felon in possession of a firearm. Fox was also indicted as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 2007), which made him eligible for a life sentence if he was convicted of any of the charges in his indictment. Fox elected to go to trial, and his trial was held in the circuit court on May 28-30, 2013. At the beginning of the first day of his trial, the State moved for a nolle prose-qui on the count of felon in possession of a firearm, and the circuit court entered an order granting the motion. Also on the same day, the circuit court entered an agreed order granting Fox’s motion in li-mine to exclude any reference, in the jury’s presence, to Fox’s prior convictions or pending felony charges.

¶ 3. The State called Davis to testify first. According to her testimony, she and Rosenbaum were nurses who were teaching a class for the Rush Hospital Education Department on the night of January 10, 2012. As they were leaving the facility after 11 p.m., they stood near Rosen-baum’s vehicle talking. Davis testified “[t]he next thing that happened was somebody came behind me, and there was a gun in ... [Rosenbaum’s] face.” Davis explained that there were two men, one taller than the other, wearing blue jeans and hoodies, with the taller one holding the gun. Davis never saw any of the men’s facial features besides their eyes, because the hoodies covered their faces. Davis and Rosenbaum gave the men their purses and keys, because they wanted to avoid getting in the car with the men. Davis and Rosenbaum did not have any money in their purses, so Davis told the men she would get money from the ATM if they would let them leave. Davis and Rosen-baum got in Rosenbaum’s car with the men after the gun was again pointed in their faces. Davis said that she was afraid the men would shoot them if they did not get in the vehicle. The men, with the shorter man driving Rosenbaum’s car, drove to a bank where Davis handed the taller man, who was sitting with her in the back seat, her debit card and her PIN number. The taller man then handed the other man the gun, while he got out of the car to use the ATM. He was unsuccessful in withdrawing money, so he went back to get Davis out of the car too. Davis was able to withdraw $500, which was the maximum she could withdraw from the ATM per day. The bank’s surveillance video captured images as the withdrawal occurred. Davis further testified that “[t]he guy in the back seat with me was the one running the show.” After Davis withdrew the money, the two men took the money, and they stood outside of the car talking to one another while Davis and Rosenbaum were in the car. Davis said, “I looked down. [Rosenbaum] said something to me, and when I looked back, they were gone.” In addition to the $500, the men also took Davis’s cell phone and keys. Davis and Rosenbaum walked to a nearby gas station, where they were able to use another person’s cell phone to call the police.

¶ 4. Rosenbaum also testified and corroborated much of Davis’s testimony. She added that when the women refused to get into the car with the men, the taller man with the gun, “racked that gun and put it in my face and told me B-, get in the car or I’ll shoot you.” And it was only at that point that the women agreed to get into the car. Additionally, both Rosen-baum and Davis identified a gun as one that looked like the one the taller man was holding at the time of crimes. Neither could definitively say it was the same. Rosenbaum also testified that after Davis gave them $500 from the ATM, the men talked and then told the women they could leave, which they did because the men still had the keys to the car. According to her testimony, both men were wearing ski masks with the hoodies pulled tight around their faces, and she was unable to see their faces. The taller man with the gun was wearing a dark-colored ski mask, and the other man was wearing a tan-colored ski mask.

¶ 5. Jones testified next for the State. According to his testimony, he and Fox were in the Family Dollar store parking lot a week later, on the evening of January 17, 2012, when Officer Patrick Gale of the Meridian Police Department, who testified to these events later at trial, pulled in the parking lot to talk with them. Officer Gale testified that when he pulled in to the parking lot, one of the men, later identified as Fox, dropped something to the ground. Officer Gale frisked Jones and Fox, and he discovered a gun in Fox’s coat pocket. At that point, both Jones and Fox ran from Officer Gale. Jones was apprehended, but Fox managed to escape. Fox was later apprehended by officers at an address given to them by Jones. Fox was the current boyfriend of Jones’s girlfriend’s daughter, whom Jones often referred to as his stepdaughter. Officers also questioned Jones about the incident that occurred on January 10, 2012, and Jones admitted that he and Fox were the ones responsible for the crimes. His testimony regarding the events that night were that he and Fox were walking when Fox saw Davis and Rosenbaum. Fox told Jones, “there [are] two ladies over there, I got to get them.” They put on the ski masks and approached the women. Jones testified that Fox had the gun and immediately told the women to get into the car, calling one of them a “B-.” Jones corroborated Davis’s and Rosenbaum’s testimony that they were taken to an ATM where Fox got out of the vehicle to get money from the ATM, but was unable to do so without Davis’s assistance. Jones testified that once Davis got the money from the ATM, Fox took the money and Davis’s cell phone. Jones also positively identified the gun Officer Gale recovered from Fox as the gun that was used on the night of January 10, 2012, for the armed robbery, armed carjacking, and kidnappings.

¶ 6. Jones also informed the jury that his testimony was the truth and was consistent with the version of events he told police officers, but he was offered a deal from the State if he testified against Fox. He explained that he was offered, as part of a plea deal, forty years in the custody of the MDOC, with twenty years suspended. He believed he would serve twenty years with the first ten being served day-for-day, and then he believed he would be eligible for earned-time release on the other half. Additionally, he would be placed on five years of probation. On cross-examination, Jones acknowledged that he was a previously convicted felon and would receive life sentences if he went to trial and was convicted of any of the charges stemming from the crimes of January 10, 2012. He further acknowledged that part of his plea deal required that he testify truthfully and consistently with his previous statements or he would lose his plea deal. However, he denied that this was the reason he testified the way he did. Jones was also cross-examined on letters purportedly written by him while he was in jail; however, he denied ever writing the letters.

¶ 7. On redirect examination by the State, Jones was asked why Fox was the first name that came to his head when he was being interrogated by the police. Jones responded: “Because when we got arrested, Detective Manning [ (sic) ] had brung [ (sic) ] his name up. Detective Manning said he [(Fox)] was on papers for two armed robbery charges.” Fox immediately requested a bench conference, following which the jury was excused to the jury room. Fox moved for a mistrial based upon Jones’s statement that Fox was “on papers for two armed robbery charges,” as it violated the judge’s order on the motion in limine not to make any reference to Fox’s prior or pending felony charges. The circuit court admonished Jones to refrain from any reference to Fox’s prior bad acts. The circuit court further noted that it did not believe the testimony was intentional on the part of the State or Jones, and that Jones “felt like [he] was being responsive.... I don’t think the jury thought anything about it, given the tone of voice that was spoken.” Additionally, in overruling the motion for a mistrial, the circuit court said: “I don’t think it was prejudicial to the point where a mistrial is required. However, ... I will admonish the jury to disregard any reference to any revocation or any other ... papers ... for two armed robberies.” He also gave Fox the option to decline giving the jury the instruction to disregard if he felt that it would emphasize it further, which Fox refused. The circuit court directed the jury to “totally disregard any reference to ‘papers’ as it refers to [Fox].” The jury was polled and unanimously affirmed that they could disregard the statement.

¶ 8. As noted above, Officer Gale also testified for the State. He testified that he received a call from police dispatch to investigate two suspicious males in the parking lot of the Family Dollar store on Highway 45. According to him, when he approached the men in the parking lot on January 17, 2012, he saw Fox drop something. This item was later recovered by Officer Gale, and it was a ski mask and a “doo-rag.” The 9mm Smith and Wesson gun Officer Gale recovered from Fox’s coat pocket was introduced and entered into evidence during his testimony. Following Officer Gale’s testimony, the State rested its case-in-chief, and Fox moved for a di-' rected verdict, specifically as to the armed-carjacking charge. The circuit court overruled Fox’s motion for a directed verdict.

¶ 9. Fox called his first witness: August Fox, his sister. August testified that on January 10, 2012, she drove Fox to Meridian for him to meet his girlfriend; she was with him the entire day at their mother’s house; and she also drove him home that same night. When pressed by the State on cross-examination as to why she would be able to remember that day so clearly as opposed to other days, August stated she remembered that she was off work that day, spending time with her children, and “whatever me and my children do, I remember those days.” The State then asked when her next day off after January 10, 2012, was. August responded it was probably January 15, 2012, but it was just a guess.

¶ 10. Fox called several other witnesses, all fellow inmates. Elton Fairley testified that he was in an adjoining zone to Jones and overheard Jones talking to Kenneth Jordan through a steel door separating the zones. Fairley testified he overheard Jones tell Jordan that he committed the crimes with someone named Wayne. Fairley also testified that he saw a letter Jones passed to Jordan through the side of the door that Jones was going to send an attorney. However, Fairley further explained that he could not see through the door to know it was Jones that passed the letter, but he could recognize his voice. Jacoby Pickett testified next. He stated he did not know Fox, even though they were in the same zone in the jail, but he knew Jones from outside of jail, and they would talk through the door separating the zones. According to Pickett, Jones told him he committed a crime that he also blamed on Fox, and Jones was planning on writing a letter to the State informing it that Fox was not involved. Next, Fox called Demarkeio Pritchett. Pritchett testified that he knew Fox and Jones, and that he was in the same zone as Fox. Pritchett said that Jones told him Fox was not with him at the time of the crimes and was not involved. Pritchett also testified that Jones showed him a letter he had written to recant his statement that Fox was involved. Pritchett never personally read any letter Jones sent through the door. On cross-examination, Pritchett testified that Jones told him he committed the crimes by himself. La-von Tucker also testified; however, his testimony was that he and Jones talked about his charges, but Jones never mentioned Fox. Fox voluntarily chose not to testify.

¶ 11. The State called Jones on rebuttal. Jones testified that he did not know Fairley, Pickett, Pritchett, or Tucker. And he said he never had a conversation with any of them and denied sliding any letter through a door.

¶ 12. After hearing all the testimony and evidence presented, the jury deliberated and returned a verdict finding Fox guilty on all counts. Prior to his sentencing, Fox filed a motion for a new trial, which the circuit court denied on June 11, 2013. Fox was sentenced on August 8, 2013, as a habitual offender pursuant to section 99-19-83, to life in the custody of the MDOC on each of the four counts. Fox’s life sentences were ordered to run concurrently to one another, but consecutively to previously imposed sentences. The sentencing orders were filed on August 9, 2013. Fox filed his notice of appeal on August 13, 2013, and the record was designated. Then, on August 29, 2013, Fox filed a second motion for a new trial. In it, he claimed that Jones’s testimony was instrumental in Fox’s conviction. Jones testified at trial that his sentence would be forty years, with twenty suspended, ten years to serve day-for-day, and eligibility for earned-release supervision after that, and Fox claims the sentence Jones actually received would subject Jones to no more than fifteen years of initial incarceration. Further, Fox claimed he was “never notified. that [Jones’s] offer would change based on how well he testified for the State.” According to the motion, Fox was not provided a meaningful opportunity to confront Jones; the State committed discovery violations by failing to inform Fox of Jones’s sentencing change; and Fox was denied his right to a fair trial. The circuit court summarily denied Fox’s second motion for a new trial on August 29, 2013.

¶ 13. On appeal, Fox raises two issues:
I. The [circuit] court erred in [denying Fox’s motion for a mistrial after] allowing the [State] to elicit evidence of crimes other than the crimes charged in the indictment.
II. The [circuit] court erred in denying Fox’s motion for a new trial based on the newly[ ]discovered reduced sentence of his alleged accomplice.

ANALYSIS

I. ADMISSION OF EVIDENCE OF OTHER BAD ACTS

¶ 14. Fox first argues that the circuit court erred in failing to grant a mistrial when, in response to the State’s question as to why Fox’s name came up during interrogation, Jones testified that the police brought up Fox’s name because he was “on papers” for two other crimes. “Whether to grant a motion for a mistrial is within the sound discretion of the trial court. The standard of review for denial of a motion for [a] mistrial is abuse of discretion.” Gunn v. State, 56 So.3d 568, 571 (¶ 14) (Miss.2011) (quoting Caston v. State, 823 So.2d 473, 492 (¶ 54) (Miss. 2002)).

¶ 15. Prior to trial, the circuit court entered an agreed order granting Fox’s motion in limine to exclude references to any of Fox’s prior convictions or pending felony charges. The following dialogue took place during the State’s redirect of Jones:

STATE: Now, in response to one of Ms. McNair’s questions[,] she said did you implicate or say that Quincy Fox was with you, and that was the first name that came to your head, and you agreed with her?
JONES: Yes, ma’am.
STATE: Why was that the first name that came to your head?
JONES: Because when we got arrested[,] Detective Manning [ (sic) ] had brung [ (sic) ] his name up. Detective Manning said he [ (Fox) ] was on papers for two armed robbery charges.

Immediately, Fox requested a bench conference, the jury was excused, and Fox moved for a mistrial for the violation of the motion in limine ruling. In denying the motion for a mistrial, the circuit court stated:

[W]hat we are dealing with here is somebody [ (Jones) ] that you have proven quite clear has been totally immersed in the criminal justice system- since 1990, and here we are in 2013.... I don’t believe what I heard was an intentional thing. I think it was something that he felt like was being responsive.... I don’t think the jury thought anything about it given the tone of voice that was spoken.
I understand the motion; however, I don’t think it was prejudicial to the point where a mistrial is required.

The circuit court instructed the lay witness, Jones, to avoid any other mention of Fox’s prior convictions or pending felony charges. The circuit court also admonished the jury “to totally disregard any reference to ‘papers’ as it refers to [Fox].” The jury was polled, and each juror affirmed he or she could disregard the statement.

¶ 16. As we found in Hancock v. State, 964 So.2d 1167, 1179 (¶ 27) (Miss.Ct.App.2007) (quoting Hobson v. State, 730 So.2d 20, 24 (¶ 10) (Miss.1998)), “[w]here the witness refers briefly to another crime, and the testimony was not purposely elicited by the district attorney to prove the defendant’s character, no reversible error occurs.” A “trial judge should declare a mistrial when a procedural error results in substantial and irreparable prejudice to the accused.” Pittman v. State, 928 So.2d 244, 249 (¶ 11) (Miss.Ct.App.2006) (citing Gardner v. State, 792 So.2d 1000, 1003 (¶5) (Miss.Ct.App.2001)). “When serious damage does not result, the judge should admonish the jury to disregard the impropriety.” Id. at (¶ 12) (citing Hoops v. State, 681 So.2d 521, 528 (Miss.1996)). And “[i]t is presumed that the jury followed the instruction of the trial judge to disregard the remark.” Id. (citing Dennis v. State, 555 So.2d 679, 682-83 (Miss.1989)).

¶ 17. Jones’s singular and brief reference to Fox’s criminal record was not the result of the State’s attempt to elicit evidence excluded by the motion in limine. The circuit court then instructed the jury to disregard the statement, which the jury agreed it could and would do. We do not see that Fox was seriously damaged by the statement, or that some substantial or irreparable prejudice occurred. Our analysis of the record before us provides no evidence that the circuit court abused its discretion in denying Fox’s motion for a mistrial.

¶ 18. This issue is without merit.

II. DENIAL OF FOX’S SECOND MOTION FOR A NEW TRIAL

¶ 19. Fox next argues that the circuit court erred in denying his second motion for a new trial based on the alleged change in Jones’s sentence from what he testified to at trial. Fox filed his first motion for a new trial on June 10, 2013. The circuit court denied this motion on June 11, 2013. Fox was then sentenced on August 8, 2013, and he filed his notice of appeal on August 13, 2013. Fox did not filed his Second motion for a new trial until August 29, 2013, which was after the date he filed his notice of appeal. It is well settled that “the filing of the notice of appeal perfected the appeal and divested the lower court of jurisdiction.” Estes v. State, 782 So.2d 1244, 1248 (¶ 2) (Miss.Ct.App.2000) (citing Martin v. State, 732 So.2d 847, 851 (Miss.1998)). Because the circuit court lacked jurisdiction to consider Fox’s second motion for a new trial, we also lack jurisdiction to consider the motion.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF ONE COUNT OF ARMED CARJACKING, TWO COUNTS OF KIDNAPPING, AND ONE COUNT OF ARMED ROBBERY AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IMPRISONMENT ON EACH COUNT, WITH ALL SENTENCES TO RUN CONCURRENTLY TO ONE ANOTHER AND CONSECUTIVELY TO PREVIOUSLY IMPOSED SENTENCES, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

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

      . While Fox and Jones were co-indictees, only Fox's trial and present appeal are at issue.

      . Fox had previous convictions in Lauderdale County Circuit Court for armed robbery and simple robbery occurring at different times and involving different victims. He had served over five years in custody for each. On January 10, 2012, Fox was on a suspended sentence and probation for these prior violent felonies.

      . Attached to Fox's second motion was a copy of Jones's sworn guilty-plea petition filed on August 15, 2013. In it, Jones offered to plead guilty to armed robbery in an open or blind plea, with the State recommending a maximum, or "cap,” of fifteen years to initially serve, but the ultimate sentence would be decided by the circuit court. ■


text:
    Betty W. THOMAS, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2014-CC-00238-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2014.
    Betty W. Thomas, appellant, pro se.
    Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellee.

      Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. In May 2013, Betty W. Thomas was discharged from her employment with the Cleveland School District for refusing to or failing to follow directives given by her immediate supervisor. She sought unemployment benefits through the Mississippi Department of Employment Security (MDES), and the administrative law judge (ALJ) denied her request for benefits because her actions leading to discharge constituted misconduct. Thomas appealed to the Board of Review, which adopted the ALJ’s findings and affirmed the denial of unemployment benefits. Thomas then appealed to the Bolivar County Circuit Court; it also affirmed the denial of unemployment benefits. She now appeals to this Court for a review of whether the denial of unemployment benefits was proper. We find no error; therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Thomas began working for the Cleveland School District as an administrative assistant on July 22, 2008, until she received a letter in May 2013, stating that her contract would not be renewed for the upcoming year.

¶ 3. Following her termination, Thomas filed for unemployment benefits. A claims examiner investigated her request and determined that she was not eligible for unemployment benefits due to “disqualifying misconduct.” Thomas appealed the claims examiner’s finding, and a telephonic hearing with an ALJ was held on August 14, 2013. Betty Jones, an executive assistant with the Cleveland School District, and Diane Hill, a principal with the Cleveland School District, both testified at the hearing that Thomas’s nonrenewal was based on her failure to perform her duties properly, as well as other acts of insubordination and unprofessional behavior. Hill testified that Thomas received three written warnings: August 2010,. July 2011, and August 2012. Her warnings were based on her refusal to complete paperwork as requested by Hill and for interrupting a meeting and becoming loud and rude. The final incident occurred in May 2013 when Hill asked Thomas to complete paperwork, but Thomas refused saying it was not part of her job description. Thomas testified that she performed her assigned duties as requested, and that her contract was not renewed because she refused to retire in May 2013. Subsequent to the hearing, the ALJ found: “The facts show that the employer discharged ... [Thomas] because she repeatedly refused or failed to follow the directive given by her immediate supervisor. ... Therefore, ... [Thomas’s] refusal to perform her assigned job duties was a willful disregard of the employer’s best interest, which constitutes misconduct....”

¶ 4. Thomas appealed to the Board of Review, and it found that “after careful review and consideration of all the evidence, the Board of Review adopts the Findings of Fact and Opinion of the ... [ALJ,] and hereby affirms the decision.” Thomas then appealed to the circuit court. The circuit court entered an order on January 27, 2014, affirming the Board of Review’s decision. Thomas then filed the present appeal in which she claims she has unjustly been denied unemployment benefits.

ANALYSIS

¶ 5. “Mississippi Code Annotated section 71-5-531 (Rev. 2011) states: ‘In any judicial proceedings under this section, the findings of the [B]oard of [R]eview as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.’ ” Patterson v. Miss. Dep’t of Emp’t Sec., 95 So.3d 719, 721 (¶ 9) (Miss.Ct.App.2012). Further, “[w]here there is the required substantial evidence, this Court has no authority to reverse the circuit court’s affirmance of the decision of the Board of Review.... Therefore, [the appellate court] must not reweigh the facts of the case or insert its judgment for that of the agency.” Id at (¶ 10) (quoting Broome v. Miss. Emp’t Sec. Comm’n, 921 So.2d 334, 337 (¶ 12) (Miss.2006)).

¶ 6. This Court must now determine whether there was substantial evidence to support the denial of unemployment benefits to Thomas, because she committed disqualifying misconduct pursuant to Mississippi Code Annotated section 71—5—513(A)(1)(b) (Rev. 2011). Section 71-5-513(A)(1)(b) provides that an individual may be disqualified from receiving unemployment benefits if “[s]he was discharged for misconduct connected with [her] work.” The term “misconduct” was defined in the seminal case of Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982), as:

[C]onduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered “misconduct” within the meaning of the statute.

“Misconduct imports conduct that reasonable and fair-minded external observers would consider a wanton disregard of the employer’s legitimate interests.” Patterson, 95 So.3d at 722 (¶ 13) (quoting Shavers v. Miss. Emp’t Sec. Comm’n, 763 So.2d 183, 185 (¶ 8) (Miss.2000)).

¶ 7. We first note that Thomas failed to cite any authority in support of her argument. Failure to do so acts as a procedural bar to the issue, and this Court is under no obligation to consider her argument on appeal. See M.R.A.P. 28(a)(6) (An appellant’s brief must “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.”); Taylor v. Kennedy, 914 So.2d 1260, 1262 (¶4) (Miss.Ct.App.2005) (“[F]ailure to cite any authority is a procedural bar, and [an appellate court] is under no obligation to consider the assignment.”).

¶ 8. Procedural bar notwithstanding, Thomas’s issue lacks merit. At the telephonic hearing, Jones testified that Thomas was discharged for her inappropriate conduct and failing to perform her job duties. Hill reiterated Thomas’s inappropriate conduct and stated that Thomas was discharged for insubordination. Hill explained that she would ask Thomas to handle certain tasks, such as filling out paperwork and forms, and that Thomas would refuse, saying it was not her job. Hill also testified that Thomas was written up on three separate occasions, all relating to her unprofessional behavior and failure to perform her job duties as requested by Hill. Thomas’s testimony at the hearing consisted of her denial that she failed to perform her job duties. She claimed that she did her work and was not aware of any problems until she received her nonrenewal letter.

¶9. While there was conflicting testimony, the Board of Review is entitled to accept the testimony of one witness over the other. Magee v. Miss. Dep’t of Emp’t Sec., 77 So.3d 1159, 1163 (¶ 9) (Miss.Ct.App.2012). In this case, the Board of Review accepted Hill’s and Jones’s testimony that Thomas repeatedly refused to complete assigned tasks and found Thomas was discharged for misconduct. This Court is not permitted “to second guess how the Board resolves conflicting testimony.” Id. (quoting Quinn v. Miss. Dep’t of Emp’t Sec., 56 So.3d 1281, 1283 (¶ 9) (Miss. Ct.App.2011)). Therefore, based upon our review of the record, we find that there was substantial evidence in the record to support the finding that Thomas committed misconduct, and was appropriately disqualified from receiving unemployment benefits.

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

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