source: Caselaw Access Project

author: ROBERTS, J., LEE, C.J.,

license: Public Domain

text:
    Tommy HAMPTON a/k/a Thomas Hampton, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01641-COA.
    Court of Appeals of Mississippi.
    Feb. 19, 2013.
    Rehearing Denied June 25, 2013.

      George T. Holmes, Jackson, Justin Taylor Cook, Marcus Douglas Evans, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal stems from the October 4, 2011 conviction of Tommy Hampton on one count of armed robbery. Hampton was sentenced, as a habitual offender, to twenty years in the custody of the Mississippi Department of Corrections (MDOC). Feeling aggrieved, Hampton now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 2, 2010, Ashton Van-devender was working as a teller at Citizens National Bank when, at approximately 11:45 a.m., she returned from lunch to her teller window and saw an older, African American male standing close to her teller window. The man, later identified as Hampton, was wearing multiple layers of clothes, a bandana and baseball cap on his head, and clear safety glasses on his face. Vandevender testified that he was not cleanly shaven and was approximately six feet tall. Vandevender asked Hampton if he needed help, and he responded, “No.” Hampton then threw a plastic bag toward her and pointed an antique-looking revolver at her. He told her to put all her twenty dollar bills and one hundred dollar bills into the bag. Vandevender complied with Hampton’s demand. He then took the bag with the money and left the bank. Vandevender pushed the panic button to alert the police of the robbery.

¶ 3. After receiving tips concerning the bank robbery, the police identified Hampton as a suspect. They included his picture in a photographic lineup that was shown to the bank employees and customers that were present the day of the robbery. Vandevender identified Hampton from the photographic lineup. Another employee picked Hampton with sixty percent certainty, while another employee picked him with eighty to eighty-five percent certainty. A bank customer also identified Hampton from the photographic lineup. The police arrested Hampton for the armed robbery of the bank.

¶ 4. Hampton was indicted on March 23, 2011, on one count of armed robbery as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2007). A jury trial was held in the Laud-erdale County Circuit Court on October 4, 2011. Hampton did not testify at trial. After hearing the evidence presented, the jury convicted Hampton of one count of armed robbery. His sentencing hearing was held on October 31, 2011. Pursuant to Mississippi Code Annotated section 97-3-79 (Rev.2006), the circuit judge acknowledged that the jury was not asked to decide if a life sentence was appropriate; and therefore, “it would be up to the [circuit court] to sentence [Hampton] to some sentence reasonably calculated to be less than life....” Hampton was sixty-three at the time of sentencing. Due to Hampton’s habitual-offender status, the circuit judge stated Hampton’s sentence should be a “sentence reasonably calculated to be less than life but that his sentence would be served day for day, without the possibility of any type of early release consideration or any good time.” Both the State and Hampton’s attorney reiterated the correct standard that Hampton’s sentence should be the statutory maximum sentence that is reasonably calculated to be less than life. Hampton’s attorney argued that the State presented no testimony or evidence as to what a Hampton’s sentence should be in this case. However, Hampton’s attorney failed to provide any evidence or testimony on the issue either. When requesting leniency, Hampton’s attorney asked the circuit court to recognize Hampton was sixty-three years old at the time of his sentence and had been an alcoholic most of his life. The circuit judge sentenced Hampton, as a section 99-19-81 habitual offender, to twenty years in the custody of the MDOC. Pursuant to Mississippi Code Annotated section 99-19-23 (Rev.2007), the circuit court credited Hampton with 172 days for time served before he was released on bond plus the time he served after his conviction but before his sentencing hearing. Effectively, the sentence pronounced on October 31, 2011, was for Hampton to serve 19.5 years, as a habitual offender, in the custody of MDOC since Hampton had already completed almost six months in custody at the time of his sentencing.

¶ 5. Hampton filed a motion for a judgment notwithstanding the verdict (JNOV) and a motion for a new trial. The circuit court denied the motions. Hampton executed the current appeal and raised only one issue: “Whether the [circuit] court erred in sentencing Hampton to ... twenty (20) years when such a length equates to a life sentence, which could have only been imposed by the jury.”

ANALYSIS

¶ 6. “[T]he general rule in this state is that sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute.” Hoops v. State, 681 So.2d 521, 538 (Miss.1996) (quoting Fleming v. State, 604 So.2d 280, 302 (Miss.1992)).

¶ 7. Hampton argues that the circuit court erred in sentencing him to twenty years in the custody of the MDOC because it failed to .consult an actuarial table or take into account other evidence of Hampton’s life expectancy. With his brief, Hampton submitted two actuarial tables indicating that the average life expectancy of a sixty-three-year-old is 20.2 years. Hampton continues his argument by stating that his actual life expectancy is much lower than 20.2 years once you also factor in his sex, race, and geographic location. According to Hampton, being an African American male in Mississippi who was raised before advances in healthcare and medical sciences, greatly shortens his life expectancy to well under 20.2 years. Thus, Hampton claims his twenty-year sentence is illegal since it clearly exceeds his actual life expectancy.

¶ 8. We disagree with Hampton’s assertions and affirm the circuit court’s imposition of Hampton’s twenty-year sentence in the custody of the MDOC.

¶ 9. First, it is elemental that a trial judge cannot be placed in error on a matter never presented to him for decision. See Ballenger v. State, 667 So.2d 1242, 1256 (Miss.1995); Haddox v. State, 636 So.2d 1229, 1240 (Miss.1994); Ponder v. State, 335 So.2d 885, 886 (Miss.1976). “A trial judge will not be found in error on a matter not presented to him for decision.” Jones v. State, 606 So.2d 1051, 1058 (Miss.1992) (citations omitted). Hampton failed to register any objection to his sentence at trial. He simply remained mute during and after imposition of his sentence. Therefore, he did not properly preserve the issue for appeal. The circuit judge never had the opportunity to address the merits of this argument at trial. The only possible avenue available for review of Hampton’s claim is the plain-error doctrine.

¶ 10. Mississippi Rule of Evidence 103(d) provides that a court may take notice of “plain errors affecting substantial rights although they were not brought to the attention of the court.” Further, Mississippi Rule of Appellate Procedure 28(a)(3) states that an appellate court may take notice of “a plain error not identified or distinctly specified.” Mississippi case law is replete with definitions of plain error. It is required “that there be an error and that the error must have resulted in a manifest miscarriage of justice.” Flora v. State, 925 So.2d 797, 811 (¶42) (Miss.2006) (emphasis added) and (citation omitted). Next, a substantive or fundamental right of the defendant must be affected. Id. (citing Grubb v. State, 584 So.2d 786, 789 (Miss.1991)). An analysis under the plain-error doctrine “includes a determination of whether there is an error that is some deviation from a legal rule[;] whether the error is plain, clear[,] or obvious[;] and whether the error is prejudicial in its effect upon the outcome of the trial court proceedings.” Fleming v. State, 790 So.2d 888, 892 (¶8) (Miss.Ct.App.2001) (citing Porter v. State, 749 So.2d 250, 260-61 (¶ 36) (Miss.Ct.App.1999)). With this understanding of the correct parameters of plain-error analysis, we find that the circuit court did not commit any error, much less plain error.

¶ 11. According to Hampton, the actuarial tables he attached to his brief show that his life expectancy as a sixty-three-year-old African American male was only 16.4 years. However, these actuarial tables are not proper for our review. In McCullough v. State, 47 So.3d 1206, 1211 (¶ 18) (Miss.Ct.App.2010), this Court held that a recording and affidavit submitted by Johnny McCullough was not part of the trial record since “McCullough cannot make them part of the record by simply attaching copies to his briefs filed with this Court.” It is clear precedent that “through the record, the appellant must establish any facts underlying a claim of error. This Court cannot review an allegation of error without having before it a reviewable record; nor can this Court ... rely on assertions of fact in an appellant’s brief.” Ross v. State, 603 So.2d 857, 861 (Miss.1992). In Ross, Sammy Joe Ross attempted “to support his speedy trial claim by attaching to his brief an uncerti-fied copy of a docket sheet from a previous indictment.” Id. The supreme court stated that it “cannot accept ‘evidence’ asserted in or attached to a brief.” Id.

¶ 12. Procedural bars aside, if we were to take judicial notice of the actuarial tables Hampton includes in his brief, we would look solely to the life expectancy of the average United States citizen to determine if a sentence is reasonably calculated to be less than life. Relying on the actuarial table Hampton provided, a sixty-three-year-old United States citizen has a life expectancy of 20.2 years. The circuit judge actually sentenced Hampton to serve 19.5 years in the custody of the MDOC. Obviously, 19.5 is less than 20.2. A sentence even fractionally shorter than a defendant’s life expectancy is not an illegal sentence. See Payton v. State, 897 So.2d 921, 950 (¶ 112) (Miss.2003); Ware v. State, 410 So.2d 1330, 1332 (Miss.1982); Henderson v. State, 402 So.2d 325, 328-29 (Miss.1981). Further, the record at sentencing contained abundant evidence of Hampton’s age, date of birth, and habitual-offender status, as well as other material normally relevant to sentencing, for the circuit judge to consider.

¶ 13. The dissent agrees with Hampton’s claims that his life expectancy must be measured by factors, such as gender, race, residency in Mississippi, and alleged past chronic alcohol abuse. While both Hampton and the dissent are correct that a sixty-three-year-old African American male’s life expectancy is only 16.4 years, a twenty-year sentence does not exceed the 20.2-year life expectancy of the average American citizen. In establishing maximum sentences, consideration of other factors such as gender, race, and ethnicity is impermissible and likely unconstitutional. To illustrate the point, if Bonnie and Clyde, equally culpable codefendants of the same age, jointly commit armed robbery at the local bank and are convicted, the dissent would find constitutionally tolerable Bonnie’s sentence of five years greater than Clyde’s sentence since Bonnie is a female whose life expectancy exceeds Clyde’s by five years. As explained above, we find the more appropriate and constitutionally sound measure of life expectancy is to rely on that of the average American citizen.

¶ 14. The outcome of Hampton’s case is controlled by the precedent found in the supreme court case of Cox v. State, 793 So.2d 591 (Miss.2001). In Cox, the supreme court held Eddie James Shorty was procedurally barred from claiming his thirty-year sentence for armed robbery exceeded his life expectancy. Id. at 599 (¶ 38). Randy Cox and Shorty jointly robbed the Donnie’s Deli convenience store in Southaven, Mississippi. Id. at 594 (¶¶ 2-4). Shorty, not a habitual offender, was sentenced to thirty years of imprisonment. Id. at (¶ 6). Neither the State nor Shorty introduced any life-expectancy tables into evidence. Id. at 598-99 (¶ 32). The circuit judge simply made a judgment call at what he thought was a sentence reasonably calculated to be less than life. Id. at 599 (¶ 32). Shorty failed to object to his sentence at the sentencing hearing. Id. at (¶ 33). The supreme court rejected Shorty’s plain-error argument and held that Shorty “failed to show any error, much less plain error.” Id. at 599 (¶ 34). The supreme court further stated that “Shorty has provided no evidence that the [thirty]-year sentence imposed is the equivalent of a life sentence.... He has not provided [the supreme court] with expert affidavits to substantiate the claim that [he] has a lower-than-average life expectancy, or anything else that may qualify as evidence.” Id at (¶¶ 36-37). Ultimately, the supreme court held that Shorty had failed to show that his sentence exceeded the maximum sentence allowed, “and[,] in any event[, Shorty was] procedurally barred from raising [this issue].” Id. at (¶ 38).

¶ 15. Ultimately, we are barred from reviewing this issue because Hampton did not properly preserve it for appeal. Additionally, there is no evidence in the record before us that Hampton’s sentence exceeded a sentence reasonably expected to be less than life; therefore, there is no error for us to analyze under the plain-error doctrine, much less any error that is clear or obvious or that resulted in a manifest miscarriage of justice.

¶ 16. Therefore, Hampton’s claim that his sentence is illegal because it exceeds his life expectancy is without merit.

¶ 17. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT SENTENCING THE APPELLANT FOR ROBBERY BY USE OF A DEADLY WEAPON TO TWENTY YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PROBATION, PAROLE, EARNED TIME, OR GOOD-TIME CREDIT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUD-ERDALE COUNTY.

GRIFFIS, P.J., CARLTON, MAXWELL and FAIR, JJ., CONCUR. LEE, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., BARNES AND ISHEE, JJ. JAMES, J., NOT PARTICIPATING.

LEE, C.J.,

dissenting:

¶ 18. With respect to the majority, I find that Hampton’s sentence is illegal, as it exceeds a term reasonably expected to be less than life. Thus, I would vacate Hampton’s sentence and remand the matter to the trial court for resentencing.

¶ 19. In Hampton’s case, the jury did not sentence him to life, leaving the decision to the trial court, which sentenced him to twenty years. Hampton, who was sixty-three at the time of trial, argues that his sentence of twenty years is unlawful because it is tantamount to a life sentence.

¶ 20. Hampton’s counsel informed the trial court of its responsibility to calculate a sentence reasonably less than life; however, he failed to object to the sentence once it was rendered and did not raise this specific objection in his motion for a new trial. Since Hampton failed to make an objection at trial, he must rely on plain error to overcome the procedural bar on appeal. Foster v. State, 639 So.2d 1263, 1288-89 (Miss.1994). The plain-error doctrine is only applied when there has been an error that “resulted in a manifest miscarriage of justice” and when an error “affects a defendant’s substantive/fundamental rights.” Williams v. State, 794 So.2d 181, 187 (¶ 23) 955 So.2d 698(Miss.2001), overruled on other grounds by Brown v. State, 995 So.2d 698, 703 (¶ 20) (Miss.2008). The Mississippi Supreme Court has found “the right to be free from an illegal sentence ... to be fundamental.” Kennedy v. State, 732 So.2d 184, 186 (¶8) (Miss.1999) (citing Sneed v. State, 722 So.2d 1255, 1257 (¶ 11) (Miss.1998)). Thus, Hampton is entitled to have his claim considered on the merits.

¶ 21. Hampton argues that the trial court should have consulted actuarial tables to determine his life expectancy before sentencing him, and the failure to do so resulted in essentially a life sentence. Hampton states that the average life expectancy for a sixty-three-year-old African American male is 16.4 years, but he notes that the number should be reduced to account for the fact that Mississippians have the lowest life expectancy in the nation.

¶ 22. In several cases where the court has looked to life expectancy, the sentences were not reduced. In Henderson v. State, 402 So.2d 325, 329 (Miss.1981), the supreme court upheld a sentence of 41 years where the defendant’s life expectancy was 41.6 years. In Ware v. State, 410 So.2d 1330, 1332 (Miss.1982), a 40-year sentence was upheld where the defendant’s life expectancy was 40.51 years. And in Wilson v. State, 390 So.2d 575, 580 (Miss.1980), the defendant’s life expectancy was 22 years, and the court upheld a 20-year sentence. The distinguishing factor in those cases is the sentence was shorter, albeit fractionally, than the defendant’s life expectancy. Here, Hampton’s sentence exceeds his life expectancy by more than three years.

¶ 23. The majority speaks about on of the codefendants, Shorty, in Cox v. State, 793 So.2d 591 (Miss.2001). In its analysis of that case, the majority notes Shorty’s failure to provide evidence that his sentence was equivalent to life. The majority fails to address the fact that at the time of sentencing, Shorty was thirty-eight years old. His thirty-year sentence would have ended when he was sixty-eight years old, which is clearly reasonably less than his life expectancy.

¶ 24. When sentencing, a trial court must “make a record of and consider all relevant facts necessary to fix a sentence for a definite term reasonably expected to be less than life. The court should consider the age and life expectancy of the defendant and any other pertinent facts which would aid in fixing a proper sentence.” Stewart v. State, 372 So.2d 257, 259 (Miss.1979). A court may take judicial notice of actuarial tables. Henderson, 402 So.2d at 328.

¶ 25. Hampton’s counsel advised the trial court of its “responsibility to determine what is reasonably calculated or calculate something to be reasonably less than life.” Hampton’s counsel informed the court that Hampton was sixty-three years old and had been an alcoholic “all his life.” Although no actuarial tables were submitted to the court, nothing in the record shows that the trial court took Hampton’s age into consideration. Under Stewart, the trial court must make a record of and consider all relevant facts necessary.

¶ 26. The jury failed to sentence Hampton to life; therefore, under Mississippi Code Annotated section 97-S-79 (Rev. 2006), the trial court was required to sentence him to a term less than life. The trial court sentenced Hampton to a term greater than his life expectancy, which exceeds the maximum term allowed by section 97-3-79. Therefore, I would vacate the sentence and remand this issue to the trial court for resentencing.

IRVING, P.J., BARNES AND ISHEE, JJ., JOIN THIS OPINION.

      . United States Census Bureau, Statistical Abstract of the United States: 2012, http://www. cen sus.gov/compendia/statab/2012/ta-bles/12s0107.pdf (last visited Nov. 19, 2012).

      . "Under current law, and absent any proof that rehabilitation or deterrence are more easily accomplished in the case of females rather than males, we deem the factor of sex an impermissible one to justify a disparity in sentences." United States v. Maples, 501 F.2d 985, 987 (4th Cir.1974) (citations omitted); see also Williams v. Currie, 103 F.Supp.2d 858, 861-62 (M.D.N.C.2000). In Zant v. Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), the United States Supreme Court held that a trial judge allowing the jury to consider the defendant’s past crimes during sentencing was permissible because "the ‘aggravating’ label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as[,] for example!,] the race, religion, or political affiliation of the defendant” were not used.


text:
    Eric James FOSTER a/k/a Eric Foster a/k/a Eric J. Foster, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01796-COA.
    Court of Appeals of Mississippi.
    March 26, 2013.
    Rehearing Denied July 16, 2013.

      George T. Holmes, Jackson, Walter Fred Beesley, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. After a jury trial in the Franklin County Circuit Court, Eric James Foster was convicted of one count of armed robbery, and he was sentenced to serve forty years in the custody of the Mississippi Department of Corrections (MDOC). As a result of his conviction and sentence, Foster now appeals arguing that the verdict is not supported by the weight of the evidence and that his sentence is illegal. Finding no error, we affirm Foster’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the afternoon of December 2, 2009, Bank of Franklin tellers Debbie Smallwood and Pat Langston were at their desks when two masked men dressed in camouflage burst through the door. The men jumped over the counter, knocking Langston out of her chair and to the floor, and they were yelling to give them the money. Smallwood testified that one of the men was carrying a large knife. Smallwood and Langston both testified that they feared serious injury or death during the robbery. After taking money from the vault as well as from both the tellers’ desks, the two men left the bank with approximately $92,000.

¶3. Police ultimately arrested Donald James Wilson, Tyrone Butler, and Foster as the men responsible for committing the crimes. Foster was indicted for armed robbery, and his trial began on October 18, 2011. At trial, Smallwood and Langston testified in great detail about the armed robbery. Butler also testified for the State. He testified that he had spent the morning drinking and smoking with Wilson and Foster when they decided to go to the gas station to get something. Wilson indicated that he needed to stop by the Bank of Franklin to cash a check and then told Butler that he had “a plan to do something wrong.” Butler admitted to being the getaway-car driver and to picking them up after the robbery occurred. He testified that Foster and Wilson were wearing camouflage and carrying a blue bag and a white bag filled with money. Foster and Wilson gave Butler over $6,000 of the stolen money. Additionally, the State presented the testimony of the bank’s president and Officer David Blackwell.

¶ 4. The defense called Jewel Farmer and Carlotta Gray. Farmer testified that the day of the robbery she saw two men running away from the bank wearing camouflage. They got in a white truck. She described their heights and builds, but could not identify either of the men. Gray testified that she was personal friends with Foster and that he would come eat lunch with her every day, including the day of the armed robbery. She admitted that she had never informed the police that Foster had eaten lunch with her until Foster’s attorney asked her later. Foster then took the stand in his own defense, and it was his primary contention that he had not left his house the day of the armed robbery and that Gray had brought him lunch that day. He farther testified that he had never even met Wilson. Foster was also questioned about his purchase of a new car shortly after the robbery occurred. This purchase resulted in a conviction of receiving stolen property. He claimed that he had earned the money from working on cars and “hustling.” However, Foster also testified that he had not been working on cars much around that time due to the weather conditions.

¶ 5. After hearing the testimony and evidence presented, the jury deliberated and returned a verdict finding Foster guilty of armed robbery. The circuit judge sentenced Foster to serve forty years in the custody of the MDOC. Foster filed a motion for a judgment notwithstanding the verdict and a motion for a new trial, and the circuit court denied both motions. Foster appeals and raises the following two issues:

I. Whether the verdict is supported by the weight of [the] evidence?

II. [Whether] Foster’s sentence [is] illegal?

STANDARD OF REVIEW

¶ 6. A motion for a new trial is a challenge to the weight of the evidence, and “we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (citation omitted). The evidence must be viewed in the light most favorable to the verdict. Id.

¶ 7. As for Foster’s claim that his sentence is illegal, “[o]ur standard of review for a trial court’s imposition of a sentence is abuse of discretion. ‘Sentencing is within the complete discretion of the trial court and [is] not subject to appellate review if [the sentence imposed] is within the limits prescribed by statute.’ ” Williams v. State, 5 So.3d 496, 505 (¶ 26) (Miss.Ct.App.2008) (quoting Nichols v. State, 826 So.2d 1288, 1290 (¶10) (Miss.2002)).

ANALYSIS

I. WEIGHT OF THE EVIDENCE

¶ 8. Foster’s primary argument on this issue is that his conviction rests solely on the testimony of Butler, a co-conspirator and habitual offender. According to Foster, Butler’s testimony implicating Foster was “unreasonable, contradictory!,] and impeached on several fronts.” Citing Flanagan v. State, 605 So.2d 753, 758 (Miss.1992), Foster submits that when the only evidence presented is the testimony of alleged co-conspirators, and this testimony is found to be conflicting, self-serving, and unworthy of belief, it is “inadequate as the sole evidence upon which to sustain a conviction.”

¶ 9. Foster was charged with violating Mississippi Code Annotated section 97-3-79 (Rev.2006), which states: “Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery. ...” The Mississippi Supreme Court consistently has held that “[t]he uncorroborated testimony of an accomplice may be sufficient to sustain a guilty verdict.” Catchings v. State, 394 So.2d 869, 870 (Miss.1981) (citations omitted). As Foster points out in his brief, accomplice testimony should be viewed with caution and “must be reasonable, not improbable, self-contradictory[,] or substantially impeached.” Id.

¶ 10. The record is clear to us that Butler’s testimony was corroborated in part by Smallwood, Langston, and Farmer. All three witnesses described the camouflage clothing the men were wearing during and after the robbery; Butler also testified that when he picked Foster and Wilson up after the robbery, they were wearing camouflage. Butler’s testimony regarding the color of the getaway truck was again corroborated by Farmer. Additionally, Butler testified that Foster and Wilson were carrying a blue bag and white bag when they got back into the truck. This fact was corroborated by the bank’s surveillance video and the testimony of Smallwood and Langston. There is no doubt that Butler’s testimony attempted to minimize his culpability; however, his testimony was not unreasonable, improbable, self-contradictory, or substantially impeached. He admitted he received and spent approximately $6,000 from the proceeds of the armed robbery, possibly as payment for being the getaway driver. A large part of Butler’s testimony was corroborated by other evidence or testimony; therefore, we cannot find that his testimony was inherently unreliable or substantially impeached.

¶ 11. Further, it is well-settled law that the jury determines the credibility of the witnesses and resolves conflicts in the evidence. Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct.App.2003). In the present case, the jury heard the testimony of Butler, Smallwood, Langston, and Farmer and weighed this testimony against the testimony of Foster and Gray. Based upon its return of a guilty verdict, the jury resolved any conflicts in favor of the State. We cannot find that the jury’s verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.

¶ 12. This issue is without merit.

II. ILLEGAL SENTENCE

¶ 13. Foster next claims that his sentence is illegal because it exceeds his life expectancy. However, the claim that Foster’s forty-year sentence is illegal was never presented to the circuit court for consideration. The record demonstrates that Foster’s attorney did not object to Foster’s sentence before, during, or after sentencing. Additionally, his attorney filed two post-trial motions raising a variety of issues, none of which included the legality of the sentence. “Under Mississippi law, if an appellant raises for review an issue not raised in the pleadings, transcript, or rulings, the appellant must have preserved the issue by raising it in a motion for [a] new trial.” Ross v. State, 603 So.2d 857, 861 (Miss.1992) (citations omitted). Because Foster did not preserve the issue at trial or in his post-trial motions, the only available avenue for review would be under the plain-error doctrine. A plain-error analysis “includes a determination of whether there is an error that is some deviation from a legal rule; whether the error is plain, clear[,] or obvious[;] and whether the error is prejudicial in its effect upon the outcome of the trial court proceedings.” Fleming v. State, 790 So.2d 888, 892 (II8) (Miss.Ct.App.2001) (citing Porter v. State, 749 So.2d 250, 260-61 (¶ 36) (Miss.Ct.App.1999)).

¶ 14. Prior to commencement of trial, the State announced that it would not be submitting the question of a life sentence to the jury. Foster was sentenced on October 17, 2011. During sentencing, the circuit court stated that Foster could be sentenced to “any sentence less than life, not less than three years.” A circuit court must “make a record of and consider all relevant facts necessary to fix a sentence for a definite term reasonably expected to be less than life. The [circuit] court should consider the age and life expectancy of the defendant and any other pertinent facts which would aid in fixing a proper sentence.” Stewart v. State, 372 So.2d 257, 259 (Miss.1979). The circuit court acknowledged in Foster’s sentencing order that it considered the following before sentencing Foster to forty years in the custody of the MDOC: “the seriousness of the crime, the impact on the victims, ... [Foster’s] prior conviction of aggravated assaultf,] and [Foster’s ] age of thirty-five.” One victim, Langston, testified at sentencing regarding the impact of Foster’s violence during the bank robbery on her life. Foster also gave a statement at his sentencing in which he adamantly refused to accept any responsibility for his actions and stated in open court and in the victim’s presence: “Why you sit there, I done f-d your life up. You f-d your own life up.” The record is clear that the circuit court did properly consider relevant factors, including Foster’s vulgarity in the victim’s presence, when sentencing Foster to forty years in the custody of the MDOC.

¶ 15. A circuit court may take judicial notice of actuarial tables pursuant to Henderson v. State, 402 So.2d 325, 328 (Miss.1981). However, Foster neither submitted an actuarial table for the circuit court to consider nor asked the circuit court to take judicial notice of an actuarial table. Any taking of judicial notice in this case was discretionary by the circuit judge. The very first time this issue has been raised for review is on this direct appeal where Foster attached two actuarial tables to his brief for this Court to review. These actuarial tables are not proper for our review. It is clear precedent that “through the record, the appellant must establish any facts underlying a claim of error. This Court cannot review an allegation of error without having before it a reviewable record; nor can this Court ... rely on assertions of fact in an appellant’s brief.” Ross, 603 So.2d at 861.

¶ 16. Further, even if the actuarial tables are appropriate to judicially notice on appeal and the plain-error doctrine applies, those tables show the life expectancy for a thirty-five-year-old American citizen to be from 44.6 to 45.6 years. Foster’s sentence was only forty years, well below the life expectancy according to the actuarial tables presented. Moreover, the armed robbery occurred on December 2, 2009. Foster was arrested thereafter and was convicted on October 18, 2011. Foster was also in custody on May 19, 2011, when he had a preliminary hearing, was bound over to the grand jury, and had a $200,000 appearance bond set. Even though the record before us does not specify the total length of Foster’s pretrial custody, it appears to be significant since Foster was adjudged an indigent and unable to post bond. When the circuit judge announced the forty-year sentence, he simultaneously gave Foster credit for all of his pretrial custody time pursuant to Mississippi Code Annotated section 99-19-23 (Rev 2007). This ultimately shortened Foster’s announced sentence to under forty years.

¶ 17. In 2001, the Mississippi Supreme Court held that Eddie James Shorty was procedurally barred from claiming his thirty-year sentence exceeded his life expectancy. Cox v. State, 793 So.2d 591, 599 (¶ 38) (Miss.2001). Neither the State nor Shorty introduced any actuarial tables into evidence, and Shorty was sentenced to a sentence the circuit judge reasonably believed to be less than life. Id. at 598-99 (¶ 32). Shorty also did not object to his sentence at any time until his appeal. Id. at 599 (¶ 33). According to the supreme court, Shorty “failed to show any error, much less plain error.” Id. at (¶ 34). Ultimately, the supreme court found that Shorty failed to show that his sentence exceeded the maximum sentence allowed, “and[J in any event[, Shorty] is procedurally barred from raising [this issue] at this time.” Id. at (¶ 38). The Cox case is clearly on point and controlling.

¶ 18. Ultimately, we are barred from reviewing this issue because Foster did not properly preserve it for appeal, and with the record currently before us, there appears to be no error, plain or any other kind, in Foster’s forty-year sentence.

¶ 19. THE JUDGMENT OF THE FRANKLIN COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF FORTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FRANKLIN COUNTY.

GRIFFIS, P.J., CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. LEE, C.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., BARNES AND ISHEE, JJ.

LEE, C.J.,

concurring in part and dissenting in part:

¶ 20. While I concur with the majority’s affirmation of Foster’s armed-robbery conviction, I respectfully dissent from its findings regarding Foster’s sentence. I find that Foster’s sentence is illegal, as it exceeds a term reasonably expected to be less than life. Thus, I would vacate Foster’s sentence and remand the matter to the trial court for resentencing.

¶ 21. Foster failed to object to the sentence once it was rendered and did not raise this specific objection in his motion for a new trial. Since Foster failed to make an objection at trial, he must rely on plain error to overcome the procedural bar on appeal. Foster v. State, 639 So.2d 1263, 1288-89 (Miss.1994). The plain-error doctrine is only applied when there has been an error that “resulted in a manifest miscarriage of justice” and when an error “affects a defendant’s substantive/fundamental rights.” Williams v. State, 794 So.2d 181,187 (¶ 28) (Miss.2001), overruled on other grounds by Brown v. State, 995 So.2d 698, 703 (¶20) (Miss.2008). The Mississippi Supreme Court has found “the right to be free from an illegal sentence ... to be fundamental.” Kennedy v. State, 732 So.2d 184, 186 (¶8) (Miss.1999) (citing Sneed v. State, 722 So.2d 1255, 1257 (¶ 11) (Miss.1998)). Thus, Foster is entitled to have his claim considered on the merits.

¶ 22. In Foster’s case, the jury did not sentence him to life, leaving the decision to the trial court, which sentenced him to forty years. Foster, who was thirty-five years old at the time of trial, argues that his sentence of forty years is unlawful because it is tantamount to a life sentence. Foster argues that the trial court should have consulted actuarial tables to determine his life expectancy before sentencing him, and the failure to do so resulted in essentially a life sentence. Foster states that the average life expectancy for a thirty-five-year-old African American male ranges from 37.9 to 39 years.

¶ 23. Under Mississippi Code Annotated section 97-3-79 (Rev.2006), if the jury does not sentence the defendant to life imprisonment, it is the trial court’s duty to sentence the defendant to a term less than life. When sentencing, a trial court must “make a record of and consider all relevant facts necessary to fix a sentence for a definite term reasonably expected to be less than life ... [and] should consider the age and life expectancy of the defendant and any other pertinent facts which would aid in fixing a proper sentence.” Stewart v. State, 372 So.2d 257, 259 (Miss.1979). A court may take judicial notice of actuarial tables. Henderson v. State, 402 So.2d 325, 328 (Miss.1981). In his sentencing order, the trial judge did consider the seriousness of the crime, the impact on the victims, Foster’s prior conviction for aggravated assault, and his age of thirty-five in deciding to sentence Foster to forty years. The trial judge did not consider Foster’s life expectancy.

¶ 24. The majority relies upon Cox v. State, 793 So.2d 591 (Miss.2001), in which the Mississippi Supreme Court found a co-defendant, Eddie James Shorty, was procedurally barred from arguing on appeal that his sentence exceeded his life expectancy. In its analysis of that case, the majority notes Shorty failed to provide evidence that his sentence was equivalent to life. The majority fails to address the fact that at the time of sentencing, Shorty was thirty-eight years old. His thirty-year sentence would have ended when he was sixty-eight years old, which is clearly reasonably less than his life expectancy.

¶25. Section 97-3-79 is clear-because the jury failed to sentence Foster to life, the trial court was required to sentence him to a term less than life. The trial court sentenced Foster to forty years, a term greater than his life expectancy, which exceeds the maximum term allowed by section 97-3-79. Therefore, I would vacate Foster’s sentence and remand to the trial court for resentencing.

IRVING, P.J., BARNES AND ISHEE, JJ., JOIN THIS OPINION.

      . Butler was a co-indictee; however, for the purposes of this appeal, we only address Foster’s claims. Foster was tried alone.

      . We note that this Court recently affirmed the identical sentence of forty years on Foster’s equally culpable co-defendant, Donald James Wilson, for his involvement in the same bank robbery. Wilson v. State, 102 So.3d 1200, 1208 (¶39) (Miss.Ct.App.2012). The mandate issued on June 5, 2012. No issue was made of Wilson's forty-year sentence on appeal.


author: CARLTON, J.,

text:
    Harold Leo RUSSELL, Sr., Appellant v. Grade Cochran RUSSELL, Appellee.
    No. 2013-CA-00820-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2014.
    J. Edward Rainer, Brandon, attorney for appellant.
    Earl P. Jordan Jr., attorney for appel-lee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Harold Leo Russell Sr. (Leo) appeals the Scott County Chancery Court’s denial of his petition for modification of alimony. On appeal, Leo raises the following issues: (1) whether the chancellor erred by denying his petition to terminate or modify his alimony payments; and (2) whether the chancellor erred by refusing to admit into evidence certain deposition testimony. Finding no error, we affirm.

FACTS

¶ 2. Leo and Gracie Cochran Russell divorced in 1978. As a result of the divorce judgment, Leo was ordered to pay Gracie $2,500 each month in permanent alimony. In 2006, Leo filed his first petition for termination or reduction of his alimony payments. The chancellor dismissed the petition without prejudice. In 2011, Leo filed a second petition for termination or reduction of his alimony payments, which is the subject of the current litigation between the parties.

¶ 3. In an order entered in May 2012, the chancellor reduced Leo’s monthly alimony payments to $1,553 after determining that Gracie received $947 each month in Social Security benefits from Leo’s earnings. After hearing all the evidence and testimony presented by the parties, the chancellor entered a final order in which he found that Leo failed to demonstrate a material change in circumstances or an inability to meet his alimony obligation. The chancellor therefore denied Leo’s petition for termination or modification of his alimony payments. Leo filed a motion to grant a new hearing or, in the alternative, to alter, amend, or otherwise reconsider the chancellor’s final order. The chancellor denied Leo’s motion. Aggrieved by the chancellor’s ruling, Leo appeals to this Court.

STANDARD OF REVIEW

¶ 4. “This Court’s standard of review in domestic relations matters is extremely limited.” Phillips v. Phillips, 45 So.3d 684, 692 (¶ 23) (Miss.Ct.App.2010). We will not disturb a chancellor’s findings unless the findings were manifestly wrong or clearly erroneous or unless the chancellor applied an erroneous legal standard. Id. Where the record contains substantial evidence to support the chancellor’s findings of fact, we will not reverse his decision. Id.

DISCUSSION

I. Whether the chancellor erred by denying Leo’s petition to terminate or modify his alimony payments.

¶ 5. In his first assignment of error, Leo argues that the chancellor erred by denying his petition to terminate or modify his monthly alimony payments. Leo asserts that the chancellor erroneously found no material change in his circumstances and that his retirement and reduction of income were foreseeable at the time of the parties’ divorce.

¶ 6. With regard to our review of a chancellor’s award of alimony, this Court has previously stated:

An award of alimony, if allowed, should be reasonable in amount, commensurate with the wife’s accustomed standard of living, minus her own resources, and considering the ability of the husband to pay. The amount of an alimony award is largely within the discretion of the chancellor. Unless the chancellor is in manifest error and abused [his] discretion, we will not reverse.

Peterson v. Peterson, 129 So.3d 255, 256-57 (¶ 5) (Miss.Ct.App.2013) (internal citations and quotation marks omitted).

¶ 7. “The general rule has been that periodic alimony terminates upon death or remarriage.” Skinner v. Skinner, 509 So.2d 867, 869 (Miss.1987) (citing Wray v. Wray, 394 So.2d 1341, 1344 (Miss.1981)). When considering a party’s petition to modify or terminate an award of periodic alimony, a chancellor must first determine whether “an unforeseeable and material change in circumstances occurred since entry of the initial divorce decree.” Peterson, 129 So.3d at 257 (¶ 7) (citing Holcombe v. Holcombe, 813 So.2d 700, 703 (¶ 11) (Miss.2002)) (“The change in circumstance must not be anticipated by the parties at the time of the original decree.”). If no unforeseeable and material change has occurred, then a modification of the alimony award is improper. Id. However, where a substantial unanticipated change has occurred, the chancellor should consider the Armstrong factors to determine the proper amount of alimony. Id. at (¶ 8).

¶ 8. In the present case, Leo argues that his retirement and the resulting reduction in his income were unanticipated at the time the parties divorced in 1978. In his brief, Leo asserts the following:

[T]hough it may have been anticipated that at some time in the future [he] might retire and discontinue working, such an event is not an event that the [c]ourt can hold [him] to with respect to [the] same being a “foreseeable future event” that will preclude a termination of alimony or a reduction of alimony at the time of retirement.

¶ 9. In denying Leo’s petition to terminate or reduce his alimony payments, the chancellor found that retirement, by itself, proved insufficient to justify a modification. Although Leo had retired since the parties’ divorce, the chancellor found that Leo still possessed sufficient assets and income to satisfy his alimony obligation. The chancellor noted that Leo’s living expenses were approximately $10,000 a month and that Leo bought a new home about seven years earlier. Other than the remaining home payments, the chancellor found that Leo had finished paying all other significant debt.

¶ 10. The chancellor also noted that Leo’s other financial obligations resulting from the divorce, such as child support, had long since been fulfilled. In addition, the chancellor stated that Leo had received proper credit for the Social Security benefits Gracie received from his past employment earnings. Therefore, based on the evidence presented by the parties, the chancellor found that Leo failed to demonstrate a substantial and material change in his circumstances.

¶ 11. The chancellor also discussed whether any changes in Leo’s circumstances were unanticipated, stating, “There was no mention [made] at the time [of the parties’ divorce] ... of what would transpire when one or the other party retired. Certainly it was foreseeable that [Leo] would retire, [but] it’s not mentioned.” As the record reflects, Leo retired in 2010 after turning seventy-five. Although he found that Leo’s retirement was a reasonably foreseeable event at the time the parties divorced, the chancellor still considered the Armstrong factors. Concluding his analysis, the chancellor stated:

There has been no substantial and material change. The fact that [Leo] is retired was foreseeable. And even if you do a — well, it’s impossible to do much of an analysis because we don’t have beginning information [for 1978,] ... but if you do an analysis under Armstrong and you look at the assets and the income[s] of the parties, not only today but over the years, no reduction in alimony is warranted.

¶ 12. After reviewing the record and relevant caselaw, we find no abuse of discretion by the chancellor’s denial of Leo’s petition for modification of his alimony payments. See Peterson, 129 So.3d at 256-57 (¶ 5). The chancellor found that no material change occurred and that Leo possessed sufficient financial resources to continue paying his monthly alimony obligation. The chancellor also found that no unanticipated event occurred since Leo’s retirement was reasonably foreseeable at the time of the parties’ divorce. Because the record contains substantial evidence to support the chancellor’s findings, we find no merit to this assignment of error.

II. Whether the chancellor erred by refusing to admit into evidence certain deposition testimony.

¶ 13. In his next assignment of error, Leo contends that the chancellor erred by finding inadmissible the deposition testimony of one of his expert witnesses, Dr. Joyce Wade-Hamme. “Our well-established standard of review for the trial court’s admission or suppression of evidence, including expert testimony, is abuse of discretion.” Tunica Cnty. v. Matthews, 926 So.2d 209, 212 (¶ 5) (Miss.2006) (citation omitted). “Unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion, [the] decision will stand.” Id. at 212-13 (¶ 5) (citation omitted).

¶ 14. The record reflects that the chancellor found Dr. Wade-Hamme’s deposition testimony inadmissible because her deposition was taken after the discovery deadline passed. In his May 4, 2012 order, the chancellor extended discovery, beginning on April 18, 2012, for a period of ninety days. Trial on the parties’ matter began on August 24, 2012. However, after finding a need for additional evidence, the chancellor continued the trial to a later date. On December 5, 2012, the chancellor entered an amended order setting the parties’ final hearing for April 15, 2013.

¶ 15. On December 26, 2012, Leo’s attorney filed a notice stating that Dr. Wade-Hamme’s deposition would be taken on January 11, 2013. Gracie’s attornfey filed an objection, asserting that the “deadline for commencing discovery has ceased[,] and this case is in the middle of trial.” On January 17, 2013, Leo’s attorney filed a designation of expert witnesses that designated Dr. Wade-Hamme and a certified public accountant as Leo’s expert witnesses. The document provided that Dr. Wade-Hamme would testify about Leo’s medical conditions and work capabilities.

¶ 16. When trial resumed on April 15, 2013, Gracie’s attorney objected to the testimony of Leo’s expert witnesses. After hearing the parties’ arguments, the chancellor admitted into evidence the expert testimony of Leo’s accountant. The chancellor noted that he specifically continued the trial for the purpose of obtaining the information provided by the accountant. The chancellor further found that Gracie had knowledge of this and therefore suffered no surprise or prejudice by the admission of the accountant’s testimony.

¶ 17. With regard to Dr. Wade-Ham-me’s deposition testimony, however, the chancellor ruled it was inadmissible because the deposition was taken outside the time provided for discovery. As a result, Dr. Wade-Hamme’s deposition was marked for identification purposes only. On appeal, Leo argues that the chancellor abused his discretion by refusing to admit Dr. Wade-Hamme’s deposition into evidence and that the chancellor’s decision greatly disadvantaged Leo’s case.

¶ 18. Rule 1.10(A) of the Uniform Chancery Court Rules provides that, “[a]b-sent special circumstances[,] the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial.” In addition, our caselaw recognizes that “[t]he purpose of the strict discovery rules is ... to avoid trial by ambush and to ensure that all parties involved have a reasonable time for trial preparation.” Poole ex rel. Poole v. Avara, 908 So.2d 716, 725 (¶ 19) (Miss.2005) (citation omitted). Based on our review of the record and applicable caselaw, we find no abuse of discretion by the chancellor’s refusal to admit into evidence Dr. Wade-Hamme’s deposition testimony. See Tunica Cnty., 926 So.2d at 212-13 (¶ 5). As the record reflects, Leo failed to depose Dr. Wade-Hamme within the time limits set by the chancellor even though the chancellor extended the discovery deadline. We therefore cannot say that the chancellor’s ruling amounted to an abuse of discretion or was arbitrary or clearly erroneous. See id. Accordingly, this argument lacks merit.

¶ 19. THE JUDGMENT OF THE SCOTT COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).


author: MAXWELL, J.,

text:
    Daniel JEANTY, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00829-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2014.

      Daniel Jeanty, appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Daniel Jeanty, a native and citizen of Haiti, appeals the dismissal of his second motion for post-conviction relief (PCR). He argues his counsel was ineffective for not informing him he faced deportation if he pled guilty. After review, we find Jeanty’s PCR motion is both untimely and successive to an earlier PCR motion. So it fails on procedural grounds. We also find the motion has no substantive merit because the current law that attorneys must advise clients of the potential risk of deportation resulting from a guilty plea did not exist when Jeanty entered his guilty pleas. We thus affirm the denial of his PCR motion.

Facts and Procedural History

¶ 2. In 1997, Jeanty came to the United States from Haiti. Two years later, he became a “lawful permanent resident.” On May 23, 2005, Jeanty was convicted of business burglary and sentenced to serve seven years, with six years suspended, and five years of supervised probation. His probation was partially revoked in July 2007 after he was charged with motor-vehicle theft and felony evasion. Jeanty was then ordered to serve five years with the Mississippi Department of Corrections (MDOC), with no return to probation.

¶ 3. On July 18, 2007, Jeanty pled guilty to motor-vehicle theft and felony evasion. He was sentenced to serve concurrent sentences of six years and five years. Jeanty’s sentences were fashioned so he would serve one year, then be released on supervised post-release supervision. And these sentences were ordered to run consecutively to his earlier burglary sentence.

¶ 4. On November 13, 2012, Jeanty filed his first PCR motion. He argued his lawyer was ineffective for not advising him he could be deported if he pled guilty. The circuit court dismissed the PCR motion as untimely.

¶ 5. On November 28, 2012, Jeanty received notice to appear at a removal hearing. This notice informed Jeanty his convictions subjected him to removal from the United States.

¶ 6. On March 28, 2013, Jeanty filed a motion for a writ of coram nobis to vacate his guilty pleas. The circuit court properly treated it as a PCR motion. Jeanty again argued the same ground as his first PCR motion—that his lawyer was ineffective for not advising him of the possibility of removal. The circuit court dismissed this PCR motion as time-barred and successive-writ barred. Jeanty appealed.

Discussion

¶ 7. In reviewing the dismissal of a PCR motion, we “will not disturb the circuit court’s factual findings unless they are clearly erroneous.” Smith v. State, 118 So.3d 180, 182 (¶6) (Miss.Ct.App.2013) (citing Holloway v. State, 31 So.3d 656, 657 (¶ 5) (Miss.Ct.App.2010)). We review questions of law de novo. Id.

I.Time-Bar

¶ 8. A PCR motion following a guilty plea is untimely unless filed within three years after entry of the judgment of conviction. Miss.Code Ann. § 99-39-5(2) (Supp.2014). Here, Jeanty’s judgments of conviction were entered on May 23, 2005, and July 18, 2007. So his most recent PCR motion is time-barred since it was not filed until 2013.

II. Successive-Writ Bar

¶ 9. The Uniform Post-Conviction Collateral Relief Act also bars PCR motions from appellate review if the movant has filed a previous PCR motion. Miss. Code Ann. § 99-39-23(6) (Supp.2014). The circuit judge dismissed Jeanty’s first PCR motion on November 13, 2012. And his latest PCR motion raises the same issue as his first one. Thus, Jeanty’s latest PCR motion is also barred as a successive writ.

III. Ineffective Assistance of Counsel

¶ 10. There is also no merit to Jeanty’s claim that his lawyer was ineffective for not telling him he could be deported if he pled guilty. To prove ineffective assistance of counsel, Jeanty had to show (1) his counsel’s performance was deficient and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, Jeanty has failed on both prongs.

¶ 11. While the United States Supreme Court in 2010 held that a lawyer must advise a client “whether his plea carries a risk of deportation,” Padilla v. Kentucky, 559 U.S. 356, 374, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), this rule did not exist when Jeanty entered his guilty pleas in 2005 and 2007. And the Supreme Court has held the new rule announced in Padilla does not apply retroactively. See Chaidez v. United States, — U.S. —, 133 S.Ct. 1103, 1105, 185 L.Ed.2d 149 (2013) (Padilla does not apply retroactively to convictions that became final before Padilla was decided). Because Padilla ⅛ mandate did not exist when Jeanty pled guilty to his various crimes, he cannot show deficiency or prejudice from his attorney’s representation. We thus affirm the dismissal of Jeanty’s most recent PCR motion.

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

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

      . See section 240 of the Immigration and Nationality Act.

      . A hearing was set for April 15, 2013, but there is nothing in the record that shows the hearing took place.

      . In his motion, Jeanty contested several convictions: business burglary, motor-vehicle theft, and felony evasion. We note that a PCR motion "shall be limited to the assertion of a claim for relief against one (I) judgment only. If the petitioner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions.” Miss.Code Ann. § 99-39-9(2) (Supp. 2014). See also McCoy v. State, 941 So.2d 879, 881 (¶ 3) (Miss.Ct.App.2006) ("Where a petitioner seeks post-conviction relief on multiple judgments against him, he must tile one post-conviction motion for each of the challenged judgments."). Here, Jeanty improperly contested several judgments in one PCR motion.

      . The PCR statutes "explicitly replaced the writ of error coram nobis.” Morris v. State, 918 So.2d 807, 808 (¶4) (Miss.Ct.App.2005) (citing Miss.Code Ann. § 99-39-3(1) (Rev. 2007)). This statute states that it "repeals the statutory writ of error coram nobis” and that the "relief formerly accorded by such writs may be obtained by an appropriate motion under this article.” Miss.Code Ann. § 99-39-3(1). Thus, the circuit judge properly treated Jeanty's motion as one for post-conviction relief.


author: PER CURIAM. PARKER, Justice

text:
    S.S. and K.C. v. Lonzo BULLIE and Alicia Campbell.
    1121286.
    Supreme Court of Alabama.
    Jan. 24, 2014.
    Kenneth J. Mendelsohn of Jemison & Mendelsohn, P.C., Montgomery; and Joseph “Jay” H. Aughtman of Aughtman Law Firm, LLC, Montgomery, for appellants.
    Mark S. Boardman and Alicia Fritz Bennett of Boardman, Carr, Bennett, Watkins, Hill & Gamble, P.C., Chelsea, for Lonzo Bullie.
   PER CURIAM.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(E), Ala. R.App. P.

MOORE, C.J., and STUART, BOLIN, MURDOCK, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

PARKER, J., concurs in part and dissents in part.

PARKER, Justice

(concurring in part and dissenting in part).

I concur with the majority’s decision to affirm the summary judgment in favor of Alicia Campbell. I respectfully dissent from the majority’s decision to affirm the summary judgment in favor of Principal Lonzo Bullie.