author: JAMES, J.,

text:
    Charles Douglas OWENS, II a/k/a Charles Douglas Owens a/k/a Charles Owens a/k/a Charles D. Owens, II, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-01447-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2014.

      Charles Douglas Owens II, appellant, pro se.
    ■ Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, C.J., ISHEE and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Charles Douglas Owens II pled guilty in the Harrison County Circuit Court, Second Judicial District, to one count of armed robbery and one count of aggravated assault. Owens was sentenced to serve forty years in the custody of the Mississippi Department of. Corrections (MDOC). Owens has had two prior petitions for post-conviction collateral relief (PCR) denied by the trial court. On both occasions, Owens appealed and this Court affirmed. See Owens v. State, 17 So.3d 628 (Miss.Ct.App.2009); Owens v. State, 996 So.2d 85 (Miss.Ct.App.2008). Owens has filed a third PCR petition asserting that his conviction and sentence violate the prohibition against double jeopardy. Owens’s petition also asserted that issues raised in his previous PCR petitions should be revisited in light of intervening decisions of the United States Supreme Court and the Mississippi Supreme Court. The trial court denied the petition and Owens now appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On May 20, 2002, a Harrison County grand jury indicted Owens on one count of armed robbery and one count of aggravated assault. Owens entered voluntary pleas of guilty to both counts on February 4, 2008. On March 17, 2003, Owens was sentenced to thirty years for armed robbery and ten years for aggravated assault, with the sentences to run consecutively for a total of forty years in the custody of the MDOC. Owens filed a pro se motion for reconsideration on March 20, 2003. The following week, Owens’s attorney-of-record filed a motion for reconsideration or, in the alternative, to withdraw his guilty plea, and on April 4, 2003, Owens filed a pro se motion to withdraw his plea. On February 2, 2006, nearly three years later, Owens’s new counsel filed a PCR petition arguing that there were mitigating factors that, if known, would have decreased Owens’s sentence; his plea was involuntarily given; and his plea should be withdrawn, as there was an agreement between the circuit court, the State, and Owens as to his sentence. On January 3, 2007, the trial court denied the 2006 PCR petition and Owens appealed. While that decision was pending on appeal, Owens filed a pro se motion for clarification of his sentence stating that the MDOC’s position on his parole eligibility contradicted the intent of the trial court. This Court affirmed the trial court’s denial of Owens’s 2006 PCR petition. See Owens, 996 So.2d at 94 (¶ 33). In so doing, we noted that there was no indication in the record that the trial court had ruled on Owens’s three post-trial motions. See id. at 89 (¶ 13).

¶ 3. Owens petitioned the Mississippi Supreme Court for a writ of mandamus, attempting to compel the trial court to take action on those motions. On August 11, 2008, while the petition for a writ of mandamus was pending, the trial court denied Owens’s pro se motion for reconsideration; his attorney’s motion for reconsideration or, in the alternative, to withdraw his plea; and Owens’s pro se motion to withdraw his plea. The motion for clarification of Owens’s sentence was denied by a separate order entered on August 11, 2008. Upon entry of those orders, the . Mississippi Supreme Court, on August 15, 2008, dismissed Owens’s petition for a writ of mandamus as moot. Owens then appealed the circuit court’s denial of his 2003 motions and the motion for clarification of his sentence, and this Court affirmed. See Owens, 17 So.3d at 635 (¶ 20).

¶ 4. Undeterred, on June 7, 2013, Owens filed another petition for PCR, asserting that his conviction violated the prohibition against double jeopardy. Owens also asserted that he received ineffective assistance of counsel, and that his plea was involuntary and it should be revisited. On August 1, 2013, the trial court denied Owens’s petition for PCR, finding that Owens’s conviction did not violate the prohibition against double jeopardy, and that Owens’s remaining claims were procedurally barred. Owens now appeals, raising the following issues: (1) whether the trial court erred in finding that Owens’s double-jeopardy claim was without merit; and (2) whether the trial court erred in finding that Owens’s prior claims were proeedurally barred. We find no error and affirm.

STANDARD OF REVIEW

¶ 5. When reviewing a trial court’s denial or dismissal of a PCR petition, we will only disturb the trial court’s factual findings if they are 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

I. Whether the trial court erred in finding that Owens’s double-jeopardy claim was without merit.

¶ 6. Owens argues that he was subjected to double jeopardy because he was indicted for both aggravated assault and armed robbery based on the same set of facts. Thus, Owens argues that his conviction and sentence for armed robbery and aggravated assault constitute multiple punishments, violating his constitutional protections against double jeopardy. We disagree.

¶ 7. We first note that Owens’s present petition is time-barred. Pursuant to the Uniform Post-Conviction Collateral Relief Act (UPCCRA):

A motion for relief under this article shall be made within three (3) years after the time in which the petitioner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction.

Miss.Code Ann. § 99-39-5(2) (Supp.2014). Here, Owens pleaded guilty to armed robbery and aggravated assault, and the judgment of conviction was entered on March 17, 2003. The present PCR petition was filed on June 7, 2013, more than ten years after the entry of the judgment of conviction. Thus, Owens’s present petition for PCR is time-barred.

¶ 8. The Mississippi Supreme Court has held that “errors affecting fundamental constitutional rights are excepted from the procedural bars of the UP-CCRA.” Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss.2010). Likewise, our supreme court has held that the right to be free from double jeopardy is a fundamental right. Id. at 508 (¶ 14). Therefore, we address the merits of Owens’s claim.

¶ 9. “Double jeopardy consists of three separate constitutional protections: (1) protection against a second prosecution for the same offense after acquittal, (2) protection against a second prosecution for the same offense after conviction, and (3) protection against multiple punishments for the same offense.” Row land v. State, 98 So.3d 1032, 1037 (¶ 10) (Miss.2012) (quoting Powell v. State, 806 So.2d 1069, 1074 (¶ 8) (Miss.2001)). Here, it is the third protection that is at issue: whether Owens’s right to be free from multiple punishments for the same offense was violated when he was convicted of aggravated assault and armed robbery arising from the same criminal act. The Mississippi Supreme Court has held that “[i]n determining whether double-jeopardy protection applies, we apply the test enunciated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).” Rowland, 98 So.3d at 1037 (¶ 10) (citations omitted). The Blockburger Court held:

[T]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not'.... A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

Id. (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. 180). Thus, “[e]ven though there may be a substantial overlap in the proof supporting the convictions of the different crimes, the Blockburger test is met where each offense requires proof of an element not necessary to the other.” Greenwood v. State, 744 So.2d 767, 771 (¶ 14) (Miss.1999) (citing Bannister v. State, 731 So.2d 583, 586 (¶ 12) (Miss.1999)). Furthermore, we have held that “[a] criminal defendant may be prosecuted for more than one offense that arises from a single set of facts where each offense requires proof of a different element”. Thomas v. State, 930 So.2d 1264, 1266 (¶ 8) (Miss.Ct.App.2005) (citing Davis v. State, 750 So.2d 552, 563 (¶ 44) (Miss.Ct.App.1999)).

¶ 10. Here, the grand jury re: turned a two-count indictment against Owens. Count I charged Owens with armed robbery pursuant to Mississippi Code Annotated section 97-3-79 (Rev. 2001), which defined the crime as: “[Fjeloniously tak[ing] or attempting] 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 exhibition of a deadly weapon[.]” Count I of Owens’s indictment stated that he “did willfully, unlawfully and feloniously take, stealf,] and carry away from the person and in the presence and against the will of Raleigh Richard Carter, One Thou-' sand Four Hundred Dollars ($1,400.00)[,] ... the personal property of [Carter], by violence to the person of ... [Carter], by the exhibition of a deadly weapon[,] ... a handgun[.]” Likewise, Count II indicted Owens for aggravated assault pursuant to Mississippi Code Annotated section 97-3-7(2) (Rev. 2001), which defined the crime of aggravated assault as:

(a) attempting] to cause serious bodily injury to another, or causing] such injury purposely, knowingly[,] or recklessly under the circumstances manifesting extreme indifference to the value of human life; or (b) attempting] to cause or purposely or knowingly causing] bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm[.]

Count II of the indictment stated that Owens “unlawfully, feloniously, willfully!,] and purposely, cause[d] bodily injury to [Carter], by shooting ... [Carter] in the left chest with a deadly weapon[,] ... a handgun[.]

¶ 11. It is clear that the two crimes for which Owens was indicted and to which he pled guilty required proof of an element which the other did not. The armed-robbery charge required the State to prove that Owens took the personál property of Carter; the aggravated assault charge did not. The aggravated-assault charge required the State to prove that Owens caused bodily injury to Carter by shooting Carter; the armed-robbery charge did not. Stated differently, Owens could have been found guilty of armed robbery without having shot Carter; likewise, Owens could have been found guilty of aggravated assault without taking Carter’s property. See Thomas, 930 So.2d at 1266 (¶ 9). Accordingly, this issue is without merit.

II. Whether the trial court erred in finding that Owens’s prior claims were procedurally barred.

¶ 12. Owens next argues that his prior claim challenging the voluntariness of his plea and his claim that his counsel was ineffective should be revisited. In Owens’s February 2, 2006 PCR petition, Owens claimed that he detrimentally relied on the State’s recommendation of a twenty-five-year sentence when he agreed to plead guilty. Owens asserted that the trial court failed to advise him that it was not bound by the State’s sentencing recommendation and that Owens could be sentenced to serve the statutory maximum sentence. Further, Owens claimed that his trial counsel failed to inform him of the consequences of his plea. Thus, Owens claims that his guilty plea was not intelligently, voluntarily, and freely given because the trial court sentenced him to a term of years in excess of the State’s recommendation and that his counsel was ineffective.

¶ 13. As to the voluntariness of his plea, this Court has already addressed this issue in our prior opinion. Following the trial court’s denial of Owens’s February 2, 2006 PCR petition, this Court affirmed, finding:

The transcript from Owens’s plea hearing clearly shows that he testified under oath that he had read and understood his guilty plea petition, which stated in pertinent part that the trial judge was not required to follow the sentencing recommendation of the State and could sentence Owens to any term within the statutory limits. The transcript also shows that Owens was told the maximum and minimum sentences that he could receive for the crimes with which he was charged. Owens affirmed to the trial judge that he was satisfied with the advice and counsel of his attorney. Importantly, the record shows that Owens was informed of his constitutional rights that he was waiving by pleading guilty. Owens told the trial court that he understood that he was waiving those rights. Owens signed the petition to plead guilty and told the trial court that he was in fact guilty of the two charges. We find that Owens has failed to carry his burden of proof to show that his plea was not voluntarily, intelligently, and knowingly given. This issue is without merit.

Owens, 996 So.2d at 94 (¶ 32).

¶ 14. Nevertheless, Owens’s present petition is procedurally barred by the statute of limitations set forth in section 99-39-5(2)(a)(ii). Likewise, Owens has filed prior petitions for PCR, in which these issues were addressed. The UPCCRA prohibits successive attempts to obtain relief, providing: “[A]ny order dismissing the petitioner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.” Miss.Code. Ann. § 99-39-23(6) (Supp.2014). Thus Owens’s present petition is barred as a successive writ. However, both section 99-39-5 and section 99-39-28 provide that an intervening decision of the United States Supreme Court or the Mississippi Supreme Court which would adversely affect the outcome of a conviction or sentence is an exception to the respective procedural bars. See § 99-39 — 5(2)(a)(ii) (“Excepted from this three-year statute of limitations are those cases in which the petitioner can demonstrate ... [t]hat there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence[.]”); § 99-39-23(6) (“[E]xcepted from this prohibition are those cases in which the petitioner can demonstrate ... that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction!)]”). Owens now argues that his claims should be revisited in light of intervening decisions by the United States Supreme Court and the Mississippi Supreme Court.

• [7] ¶ 15. “The burden of proving that no procedural bar exists falls squarely on the petitioner.” Cosner v. State, 111 So.3d 111, 113 (¶ 13) (Miss.Ct.App.2013) (quoting Crawford v. State, 867 So.2d 196, 202 (¶ 7) (Miss.2003)).

¶ 16. Owens first claims that the United States Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which involves an ineffective-assistance-of-counsel claim, is an intervening decision that would adversely affect the outcome of his conviction. We disagree.

¶ 17. In Padilla, the petitioner, Padilla, a native of Honduras who had been a lawful permanent resident of the United States for more than forty years, faced deportation as a result of his pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the State of Kentucky. Id. at 359, 130 S.Ct. 1473. Padilla alleged that his trial counsel not only failed to discuss the possibility of deportation as a result of his guilty plea, but claimed that his attorney told him that he “did not have to worry about immigration status since he had been in the country so long.” Id. Applying Strickland, the Supreme Court held that “[ajccepting his allegations as true, Padilla has sufficiently alleged constitutional deficiency to satisfy the first prong of Strickland.” Id. at 369, 130 S.Ct. 1473. The Court noted:

In the instant case, the terms of the relevant immigration statute are succinct,' clear, and explicit in defining the removal consequence for Padilla’s conviction .... Padilla’s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute.... Instead, Padilla’s counsel provided him false assurance that his conviction would not result in his removal from this country. This is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect.

Id. at 368-69, 130 S.Ct. 1473. The Court remanded, noting: “Whether Padilla is entitled to relief on his claim will depend on whether he can satisfy Strickland’s second prong, prejudice, a matter we leave to the Kentucky courts to consider in the first instance.” Id. at 369, 130 S.Ct. 1473.

¶ 18. We find that the decision in Padilla is not analogous to the facts here. The case here does not involve deportation, and the decision in Padilla did not announce a new rule regarding ineffective assistance of counsel; instead, it merely continued the Court’s longstanding adherence to Strickland. We find that this decision would not “have actually affected” the outcome of Owens’s conviction and sentence as required by section 99 — 39—5(2)(a) (ii) and section 99-39-23(6).

¶ 19. Owens next claims that this Court’s decision in Salter v. State, 64 So.3d 514 (Miss.Ct.App.2010), is an intervening decision that would adversely affect the outcome of his conviction. Salter concerned a claim that Salter received erroneous advice from both his attorney and the trial court concerning his eligibility for parole. This Court found that Salter’s petition was barred as a successive writ, stating: “Had Salter raised this issue in his first petition for post-conviction collateral relief, it appears that he would have been entitled to an evidentiary hearing.... However, Salter did not raise the issue in his first petition. Instead, he raises it for the first time in this his second petition.” Id. Owens misreads this statement claiming that he did raise this issue in his original petition, but did not receive an evidentiary hearing. Thus, Owens does not argue that this decision would have actually affected his conviction and sentence, but merely states that he was denied an evidentiary hearing. As already stated, the denials of Owens’s prior PCR petitions have been affirmed by this Court. Furthermore, the petitioner in Salter provided the statements of three witnesses in support of his claim. See id. at 516 (¶ 8). Owens has not provided his own affidavit, much less that of a witness. This Court has held that “if a defendant alleges he was given erroneous advice by his attorney as to his eligibility for trusty earned time and that erroneous advice goes uncorrected, and he provides evidence other than his own statement^] ■ • • he is entitled to an evidentiary hearing.” Sylvester v. State, 113 So.3d 618, 623 (¶ 19) (Miss.Ct.App.2013). In affirming the denial of Owens’s prior conviction, this Court found that “[t]he transcript from Owens’s plea hearing clearly shows that he testified under oath that he had read and understood his guilty plea petition, which stated in pertinent part that the trial judge was not required to follow the sentencing recommendation of the State and could sentence Owens to any term within the statutory limits.” Owens, 996 So.2d at 94 (¶ 32). Thus any erroneous advice that Owens may have received was corrected during his plea hearing. We find that the decision in Salter would not “have actually affected” the outcome of Owens’s conviction and sentence as required by section 99-39-5(2)(aj(ii) and section 99-39-23(6).

¶20. Finally, Owens claims that the United States Supreme Court’s decision in Missouri v. Frye, — U.S. —, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), is an intervening decision that would adversely affect the outcome of his conviction or sentence. The issue in Frye was whether defense counsel has an affirmative duty to communicate the terms of a formal offer to accept a plea on terms and conditions that may result in a lesser sentence or a conviction on a lesser charge. See id. at 1408. There, the Supreme Court held that “[a]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Id. Owens’s case does not involve Owens’s counsel’s failure to communicate a formal offer from the State. Therefore, the holding in Frye would have no impact on Owens’s conviction and sentence.

¶ 21. Owens has failed to demonstrate that his present petition for PCR is exempt from either the three-year statute of limitations set forth in section 99-39-5, or the successive-writ bar provided section 99-39-23. Accordingly, this issue is without merit, and the trial court’s denial of Owens’s petition for PCR is affirmed.

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

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

      . The detailed factual history pertaining to Owens’s arrest and conviction has been fully recited in our prior decisions affirming the denial of Owens’s petition for PCR. See Owens, 17 So.3d at 630-631 (¶¶ 2-3); Owens, 996 So.2d at 87-90 (¶¶ 3-17). Therefore, we recite only those facts pertinent to this appeal.

      . Padilla faced deportation pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) (2012), which provides: "Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance ..., other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.”

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on a claim of ineffective assistance of counsel, a defendant must show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. Id. at 687, 104 S.Ct. 2052.


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    .Sammie Smith a/k/a Sammie D. SMITH, Appellant v. STATE Of Mississippi, Appellee.
    No. 2013-KA-00603-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2014.

      Office of State Public Defender by Mollie Marie McMillin, attorney for appellant.
    Office of The Attorney General by Laura Hogan Tedder, Attorney for Appellee.

      Before IRVING, P.J., FAIR and JAMES, JJ.
   FAIR, J.,

for the Court:

¶ 1. On September 25, 2012, Sammie Smith was indicted for burglary of a dwelling. The indictment alleged he broke and entered a dwelling with intent to commit larceny. Smith was found guilty and sentenced to serve ten years in the custody of the Mississippi Department of Corrections, followed by five years of post-release supervision. Smith’s motion for a new trial was denied.

¶ 2. The Office of State Public Defender filed a brief on behalf of Smith, arguing that: (1) the court erred in denying Smith’s proposed jury instructions for a lesser nonincluded offense; and (2) the court erred in denying Smith’s motion for a new trial. Smith subsequently filed a pro se brief, challenging the sufficiency of the indictment. Finding no error, we affirm.

FACTS

¶ 3. On the night of November 11, 2011, Jeremy Williams’s home was burglarized. The burglar broke Williams’s bedroom window and took several items, including his laptop computer. The day after the burglary, Williams went to the Shaw Police Department and filed a report, naming Smith as the burglar.

¶ 4. At trial, Williams, neighbor Dacorious Clark, and Officer Levi Ford testified for the prosecution. Williams testified that he saw Smith running away from his house on the night of the burglary, sometime around 12 a.m. Clark testified that on November 11, Smith showed up at his house after midnight with a computer tucked into his pants. According to Clark, Smith offered to sell him the computer. Clark declined the offer, but Smith asked him to hold onto the computer anyway, which he did. Clark knew the computer belonged to Williams after he opened the computer and saw the login information— Clark returned the computer to Williams a week later.

¶ 5. Smith was the sole witness for the defense. He testified that he was at a football game the night of the burglary and later ran into his cousin, who had a computer with him. Smith stated that he bought the computer for a “quarter bag” of marijuana and then traded it to Clark for $60 worth of cocaine. Additional relevant facts will be discussed below.

DISCUSSION

1. Jury Instructions

¶ 6. Jury instructions are reviewed for abuse of discretion. Bailey v. State, 78 So.3d 308, 315 (¶ 20) (Miss.2012). All instructions should be read together as a whole, and “fairly state the law of the case and create no injustice” to avoid reversible error. Id.

¶ 7. Smith’s theory of defense was that he received the computer as stolen property. Smith claims the crime of receiving stolen property is a lesser nonin-cluded offense of burglary. “An accused is entitled to a lesser-offense instruction only where there is an evidentiary basis in the record.” Thomas v. State, 48 So.3d 460, 472 (¶ 28) (Miss.2010) (citation omitted). “[A] lesser non-included offense applies where there is evidentiary support that a defendant is guilty of a lesser charge arising from the same nucleus of operative facts.” Id. at (¶ 30) (citing Green v. State, 884 So.2d 733, 737 (Miss.2004)). The standard of review for lesser-included-offense and lesser-nonincluded-offense instructions is the same. Dampier v. State, 973 So.2d 221, 231 (¶ 28) (Miss.2008).

¶ 8. To be convicted of receiving stolen property, a person must “intentionally possess[], receivef], retain[,] or dispose[] of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is possessed, received, retained or disposed of with intent to restore it to the owner.” Miss.Code Ann. § 97-17-70(1) (Rev. 2014).

¶ 9. Smith submitted two jury instructions in asserting his defense. Instruction D-l set out the elements necessary to convict Smith of the misdemeanor of receiving stolen property, valuing the computer at less than $500. See Miss. Code Ann. § 97-17-70(7) (Rev. 2014). Instruction D-3 explained both the misdemeanor and felony of receiving stolen property and also included an option for the jury to find Smith not guilty of receiving stolen property. The court refused both instructions, stating that, because neither side presented evidence of the computer’s value, the jury would be unable to determine whether the elements of the crime were met.

¶ 10. We find this case analogous to Thomas, 48 So.3d 460. In Thomas, the defendant was indicted for fourth-degree arson for setting fire to a jail cell. Id. at 465 (¶ 1). The court denied the defendant’s request for jury instructions on the lesser nonincluded offenses of malicious mischief and vandalism. Id. at 469 (¶ 22). On appeal, our supreme court affirmed the trial court’s decision, reasoning:

[T]he felony crime of arson in the fourth degree has no element of value, whereas both the felony and misdemeanor crimes of malicious mischief and vandalism have value as an element. No evidence was presented at trial concerning the value of the destroyed items or repairs. This Court has held that a trial judge may refuse instructions where they are without proper foundation in the evidence of the case.

Id. at 474 (¶ 36) (citation omitted). Here, the indicted crime of burglary of a dwelling has no element of value. See Miss. Code Ann. § 97-17-23 (Rev. 2014). And like malicious mischief and vandalism, receipt of stolen property requires proof of monetary value. See Miss.Code Ann. § 97-17-70.

¶ 11. Smith argues that his testimony provided the jury with a “minimum quantifiable value” of the computer, from which the jury could infer its value. We disagree. Smith testified that he bought the computer from another individual by using marijuana as payment and traded the computer for $60 worth of cocaine. No monetary value was specifically alleged for the computer.

¶ 12. Smith was entitled to a jury instruction on his theory of the case as long as the foundation for the jury instruction is supported by the evidence. See Williams v. State, 797 So.2d 372, 378-379 (¶¶ 20-24) (Miss.Ct.App.2001). But since no evidence of the monetary value of the computer was presented, the proper foundation was not laid. Therefore, we find that the court did not err in refusing Smith’s proposed jury instructions.

2. Weight of the Evidence

¶ 13. “A motion for a new trial falls within a lower standard of review than does that of a judgment notwithstanding the verdict or a directed verdict. A motion for a new trial simply challenges the weight of the evidence.” Sheffield v. State, 749 So.2d 123,127 (¶ 16) (Miss.1999). And as an appellate court, we “will reverse the lower court’s denial of a motion for a new trial only if, by doing .so, the court abused its discretion.” Id. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, 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 (¶ 8) (Miss.2005) (citation omitted). The jury is responsible for evaluating the credibility of witnesses. Johnson v. State, 642 So.2d 924, 927 (Miss.1994). “In a criminal prosecution, the jury may accept the testimony of some witnesses and reject that of others, and may accept in part and reject in part the testimony of any witnesses, or may believe part of the evidence on behalf of the [S]tate and part of that for the accused.... ” Groseclose v. State, 440 So.2d 297, 300-01 (Miss.1983) (citations omitted).

¶ 14. The jury heard testimony from Williams, Clark, Officer Ford, and Smith. Williams testified he saw Smith fleeing his home on the night of the burglary; Clark testified that Smith came to his house that same night with a computer and offered to sell it. The jury’s guilty verdict reflects that it found these witnesses credible. The jury clearly did not find Smith’s testimony credible. Viewed in the light most favorable to the verdict, we cannot say that the evidence weighs heavily against the jury’s decision to find Smith guilty of burglary of a dwelling. Therefore, this argument is without merit.

3. Sufficiency of Indictment

¶ 15. The legal sufficiency of an indictment is an issue of law and therefore requires this court to conduct a de novo review.' Young v. State, 119 So.3d 309, 313 (¶ 10) (Miss.2013).

¶ 16. In order for an indictment to be sufficient, “it must contain the essential elements of the crime charged.” Tran v. State, 962 So.2d 1237, 1241 (¶ 16) (Miss.2007) (citation omitted). This ensures that “criminal defendants have a fair and adequate opportunity to prepare for and defend against the charges brought against them....” Id.

¶ 17. Smith’s indictment stated that he did “unlawfully, willfully, and feloniously break and enter the dwelling house of Jeremy Williams ... with the intent to commit the crime of larceny....” Smith claims that the omission of the term “burglarious” renders the indictment insufficient. We disagree. The crime of burglary of a dwelling has two elements: “(1) the unlawful breaking and entering; and (2) the intent to commit some crime when entry is attained.” Parker v. State, 962 So.2d 25, 27 (¶ 9) (Miss.2007). Smith’s indictment included the essential elements of burglary. Therefore, this argument has no merit.

¶ 18. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, FOLLOWED BY FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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


text:
    Edmond Quintezes MOSLEY a/k/a Edwin Mosley a/k/a Edmound Q. Mosley a/k/a Edmound Quintezes Mosley a/k/a Edmond Mosley a/k/a Edmound Quintez Mosley v. STATE of Mississippi, Appellee.
    No. 2013-CP-00843-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2014.

      Edmond Quintezes Mosley, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, C.J., ISHEE and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Edmond Quintezes Mosley pled guilty in Lauderdale County Circuit Court to two counts of armed robbery, each count arising from a separate incident. Mosley was sentenced to serve forty years in the custody of the Mississippi Department of Corrections (MDOC) on each count, with the sentences to run concurrently. Mosley filed a motion to vacate and set aside his guilty plea, which the trial court treated as a petition for post-conviction relief (PCR), and denied. Mosley now appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 26, 2011, a Lauderdale County grand jury returned two indictments charging Mosley with armed robbery. The first indictment, cause number 157-11, charged Mosley with armed robbery stemming from his participation in the November 16, 2010 armed robbery of Linda Edwards, doing business as Hodgepodge by Linda, and its employee, Mary Gibson. The second indictment, cause number 155-11, charged Mosley with armed robbery stemming from his participation in the November 19, 2010 armed robbery of Nan Casciaro, doing business as Antique Mall. In each case, Mosley was indicted as a habitual offender.

¶ 3. Mosley was also indicted for four additional felonies during the March 2011 term of the Lauderdale County grand jury: burglary of a building or other dwelling, armed robbery, and two separate counts of burglary of an automobile. On August 1, 2011, less than one month before Mosley’s trial date, Mosley was indicted for a seventh felony: grand larceny. In all seven indictments, Mosley was indicted as a habitual offender.

¶ 4. As part of a plea negotiation with the State, five indictments were dismissed in exchange for Mosley’s guilty pleas to armed robbery in cause numbers 155-11 and 157-11. On August 22, 2011, Mosley pled guilty to the two armed robberies and was sentenced to forty years in the custody of the MDOC on each count of armed robbery, with the sentences to run concurrently.

¶ 5. On March 7, 2012, Mosley filed a motion to vacate and set aside his guilty plea, which the trial court treated as a PCR petition and denied. Mosley now appeals, raising the following issues: (1) whether Mosley was denied effective assistance of counsel; (2) whether Mosley’s plea was voluntary and whether the trial court erred in denying Mosley’s petition without first conducting an evidentiary hearing. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. “When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s factual findings if they are clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review.” Purnell v. State, 126 So.3d 949, 951 (¶ 4) (Miss.Ct.App.2013) (quoting Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss.Ct.App.2012)).

DISCUSSION

¶ 7. We first note, as did the trial court, that Mosley’s petition fails to comply with the procedural requirements of the Uniform Post-Conviction Collateral Relief Act (UPCCRA). Here, the trial court properly treated Mosley’s motion to vacate and set aside his guilty plea as a PCR petition pursuant to the UPCCRA. See Barrett v. State, 119 So.3d 396, 398 (¶ 7) (Miss.Ct.App.2013) (“Pleadings that are cognizable under the UPCCRA will be treated as PCR motions that are subject to the procedural rules promulgated therein, regardless of how the plaintiff has- denominated or characterized the pleadings”- (citation and internal quotation marks omitted)). Mississippi Code Annotated section 99-39-9(2) (Supp.2014) provides: “A [PCR petition] shall be limited to the assertion of a claim for relief against one (1) judgment only. If a petitioner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions.” Thus, “a separate motion for [PCR] must be filed for each cause number or conviction.” Rigdon v. State, 126 So.3d 931, 934 (¶6) (Miss.Ct.App.2013) (quoting Bell v. State, 2 So.3d 747, 749 (¶ 5) (Miss.Ct.App.2009)). “This rule applies even when, as [here], the multiple convictions were imposed in the same plea hearing and sentencing order.” Id. See also Hundley v. State, 803 So.2d 1225, 1229 (¶ 9) (Miss.Ct.App.2001) (noting that section 99-39-9(2) requires separate PCR petitions to attack guilty pleas in two different cause numbers, even though the pleas were taken in the same hearing).

¶ 8. Mosley’s PCR petition stated that his petition stemmed from his guilty plea and conviction on August 22, 2011, for the offense of armed robbery in which the trial court sentenced him to serve a term of forty years in the custody of the MDOC. Nowhere in the petition does Mosley specifically identify the proceeding by cause number or reference facts necessary to identify a particular cause number. Thus, it would have been proper for the trial court to dismiss Mosley’s petition on that basis alone. Nevertheless, we address the merits of Mosley’s claims.

I. Whether Mosley was denied effective assistance of counsel.

¶ 9. Mosley first argues that his trial counsel failed to effectively represent him and that a coercive conversation took place with his attorney in which Mosley’s attorney “crossed the line” in advising him to plead guilty.

¶ 10. “There is a strong but re-buttable presumption that trial counsel was competent and that trial counsel performed within the wide range of reasonable conduct expected from counsel.” Pruitt v. State, 53 So.3d 24, 27 (¶ 14) (Miss.Ct.App.2010) (citing Busby v. State, 994 So.2d 225, 227 (¶8) (Miss.Ct.App. 2008)). In order to rebut this presumption, Mosley must show that: “(1) his trial counsel’s performance was deficient, and (2) the trial counsel’s deficiency prejudiced his defense.” Id. In order to challenge his guilty plea on the ground of ineffective assistance of counsel, Mosley must demonstrate that “counsel’s errors proximately resulted in the guilty plea and, but for counsel’s errors, he would not have entered the guilty plea.” Deloach v. State, 937 So.2d 1010, 1011 (¶5) (Miss.Ct.App.2006) (citing Reynolds v. State, 521 So.2d 914, 918 (Miss.1988)).

1111. Mosley claims that his trial counsel used coercive tactics in convincing Mosley to plead guilty, asserting:

Any counsel place[d] in the same position ... would have advised [Mosley] to exhaust his constitutional rights to trial, ... [rather] than plea [sic] guilty to a [forty-]year ... sentence that is beyond the conscience of humanly trying to complete. [Mosley] states that he has supporting affidavits to collaborate [sic][his] claims that a coercive conversation had taken place between ... [Mosley’s attorney,] ... [Mosley,] and members of [Mosley’s] family that really crossed the line when advising your client to accept a plea bargain.

¶ 12. In his affidavit, Mosley stated that his attorney was mad at him on his trial date, subsequent to his plea hearing, because Mosley was indicted on an additional charge that caused the State to withdraw a previous plea deal. In support of his claim, Mosley provided affidavits from two family members, both of whom claimed that Mosley’s attorney told Mosley that if he did not accept the plea offer of a forty-year sentence, Mosley could face life in prison. However, Mosley’s affidavit and the affidavits of his family members merely demonstrate that prior to the trial date, Mosley’s attorney advised Mosley not to accept the plea of forty years; however, the day of the hearing, Mosley’s attorney changed course, advising Mosley to take the plea in light of the latest indictment, which brought Mosley’s total number of felony indictments to seven. There is nothing in the record indicating that Mosley’s attorney did anything but correctly inform Mosley that he could face life in prison if he chose to exercise his rights to a jury trial and was subsequently convicted.

¶ 13. As to the alleged “threats,” Rule 8.04(B)(3) of the Uniform Rules of Circuit and County Court provides in part that: “Defense attorneys must advise [the] defendant of all pertinent matters bearing on the choice of plea, including likely results or alternatives.” It is apparent that Mosley’s attorney did not “threaten” or “coerce” Mosley into pleading guilty, but properly advised Mosley of the possible sentence he faced if Mosley did not accept the State’s plea bargain. Mosley’s attorney would have been in error if he had failed to advise Mosley of the sentence that he faced if convicted by a jury.

¶ 14. We find no evidence that Mosley’s attorney’s performance was deficient, or if so, that Mosley suffered any prejudice. Accordingly, this issue is without merit.

II. Whether Mosley’s plea was voluntary and whether the trial court erred in denying Mosley’s petition without first conducting an evi-dentiary hearing.

¶ 15. Mosley submits several arguments challenging the voluntariness of his guilty plea. Mosley first argues that his plea was involuntary. Mosley also asserts that the trial court failed to find a factual basis for his guilty plea. Finally, Mosley argues that he was misinformed by the trial court regarding his parole eligibility and, therefore, the trial court erred in denying his PCR petition without first holding an evidentiary hearing. We address each argument in turn.

A. Voluntariness

¶ 16. Mosley claims that he had “every intention of pursuing his right to a trial” and that he had a “firm expectation that [he] would go before the court and accept a plea [bargain] for a lesser sentence than actually imposed by the court.”

¶ 17. “A guilty plea is binding if entered voluntarily, knowingly, and intelligently.” Woods v. State, 71 So.3d 1241, 1244 (¶ 8) (Miss.Ct.App.2011). This standard is met if “the defendant is advised concerning the nature of the charge against him and the consequences of the plea.” Mason v. State, 42 So.3d 629, 632 (¶ 7) (Miss.Ct.App.2010) (quoting Alexander v. State, 605 So.2d 1170, 1172 (Miss. 1992)). Similarly, “[t]he defendant must be told that [his] guilty plea waives several constitutional rights[,] including [his] right to trial by jury, the right to confront adverse witnesses[,] and the right to protection against self-incrimination.” Hannah v. State, 943 So.2d 20, 25 (¶12) (Miss.2006). “Solemn declarations in open court carry a strong presumption of verity.” Mason, 42 So.3d at 632 (¶ 7) (quoting Baker v. State, 358 So.2d 401, 403 (Miss.1978)). Finally, “[t]he PCR movant has the burden to show by a preponderance of the evidence that his plea was involuntary.” Woods, 71 So.3d at 1244 (¶ 8) (citing Sayles v. State, 35 So.3d 567, 569 (¶7) (Miss.Ct. App.2010)).

¶ 18. A review of the transcript of Mosley’s plea hearing shows that the trial court advised Mosley concerning the nature of the charges against him and the consequences of the plea. During the hearing, the following exchange between Mosley and the trial court took place in open court:

[Court]: Previously, ... you had entered [a plea] of not guilty. When you enter a plea of not guilty in felony cases like this, you’ve got rights. Those rights include the right to a speedy and public trial by jury; the right to see, heart,] and confront^] in open court[,] witnesses that would testify against you. You have the right to use the power and process of the court to compel witnesses ... to testify in your defense. You have the right to the assistance of your lawyer ... at each stage of trial proceeding. At trial, you’d have the presumption of innocence .... [, and] the State would have the burden of proving beyond a reasonable doubt the elements of the armed[-]robbery charges that are pending against you. At trial, you could testify; or if you chose not to ... you’d have the right to remain silent ... [, and] I’d instruct the jury [that] they can’t hold [that] fact ... against you in determining your guilt or innocence. Finally, if you have a trial and you’re found guilty, you’d have a right to appeal that conviction with the assistance of your lawyers to the Mississippi Supreme Court. But when you change your plea ... from not guilty to guilty ... you’re waiving or giving up those rights. You understand those rights, Mr. Mosley?
[Mosley]: Yes, sir.
[Court]: And in each case of armed robbery, you’re waiving those rights and proceeding on with'your plea of guilty?
[Mosley]: Yes, sir.
[Court]: As we’ve discussed, on armed robbery on each count, you can get three years up to life if set by the jury. You could get up to a $10,000 fine.... Now, as I understand it, in your cases, Mr. Mosley, that if I accept your pleas of guilty in the two cases that we’ve talked about[,] the State’s going to agree to dismiss several other pending indictments against you. They include the indictments] in cause numberfs] 156-11, 112-11, 139-11,189-11[,] and 315-11.
[Court]: And if I accept your plea of guilty in [the two armed robberies,] then in both cases, there would be concurrent time, you know, just you’re serving both sentences at the same time.
[Mosley]: Yes, sir.
[Court]: But in each case, there would be a sentence of [forty] years[.]
[Mosley]: Yes, sir.

The trial court proceeded to confirm that Mosley was not under the influence of drugs or alcohol, that he could read and write, and that he had read over his plea petition with his attorney.

¶ 19. Thus it is clear that Mosley was fully advised by the trial court of the nature of the charge, the effect of his plea on his constitutional rights, and his possible sentence. Mosley responded affirmatively when asked by the trial court if he understood the rights he was waiving and the nature of his possible sentence. We find nothing in the record to indicate that Mosley’s plea was invalid. Accordingly, we find that Mosley’s plea was voluntary and intelligent.

B. Factual Basis

¶ 20. Mosley next argues that the trial court failed to find a. factual basis for his separate guilty pleas to armed robbery. Mosley asserts that “there was absolutely no factual basis stated in the record, or ... in the guilty[-]plea hearing transcript ... which gives [Mosley’s] admission [sic] to the acts of armed robbery.” Mosley further asserts that “he wasn’t the principal actor or agent to his allege[d] offense and had no idea the [armed robbery] was about to take placet.]”

¶ 21. Pursuant to Uniform Rule of Circuit and County Court 8.04(A)(3): “Before the trial court may accept a plea of guilty, the court must determine ... that there is a factual basis for the plea.” “A sufficient factual basis requires an evidentiary foundation in the record which is sufficiently specific to allow the court to determine that the defendant’s conduct was within the ambit of that defined as criminal.” Porter v. State, 126 So.3d 68, 72 (¶ 12) (Miss.Ct.App.201S) (quoting Smith v. State, 86 So.3d 276, 280 (¶ 11) (Miss.Ct.App.2012)). We have held that “[a] defendant can establish a factual basis for a guilty plea simply by pleading guilty; however, the guilty plea ‘must contain factual statements constituting a crime or be accompanied by independent evidence of guilt.’ ” Id. at (¶ 14) (quoting Hannah, 943 So.2d at 26-27 (¶ 16)). Finally, in determining whether a factual basis existed, our review is not limited to the defendant’s plea transcript; instead, this Court may review the record as a whole. Carreiro v. State, 5 So.3d 1170, 1173 (¶ 8) (Miss.Ct.App.2009).

¶ 22. Mosley was indicted for armed robbery in violation of Mississippi Code Annotated section 97-3-79 (Rev. 2006), which sets forth:

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 and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.

Mosley’s indictment in cause number 157-11 stated, in pertinent part, that Mosley:

[O]n or about the 16th day of November ... 2010[,] did willfully, unlawfully[,] and feloniously take the personal property of Linda Edwards d/b/a Hodgepodge [b]y Linda, consisting of approximately one hundred twenty dollars ($120.00) ... and a cell phone, the property of Mary Gibson, an employee of Hodgepodge [b]y Linda, from the person and presence of [Edwards] and [Gibson], against their will, by violence to their persons, by the exhibition of a deadly weapon, ... a handgun, putting them in fear of immediate injury[.]

Likewise, the indictment in cause number 155-11 stated, in part, that Mosley:

[O]n or about the 19th day of November ... 2010, did willfully, unlawfully!,] and feloniously take the personal property of Nan Casciaro d/b/a Antique Mall, between seven hundred and eight hundred dollars ($700.00 and $800.00) in good and lawful currency ..., a cellphone, and a safe, from the person of [Casciaro], against her will, by violence to her person, by the exhibition of a deadly weapon, ... a handgun, putting her in fear of immediate injury[.] ■

¶ 23.. During Mosley’s plea hearing, the following exchanges occurred between the trial court and Mosley:

[Court]: Now, Mr. Mosley ... there are two different matters that you’re wishing to dispose of by your pleas of guilty. The fir§t one deals with a matter that came to the attention of law enforcement here in Lauderdale County back on November the 19th of 2010. It was alleged on that date [that] you participated in the taking at gunpoint [of] between $700 and $800, a cell phone, safe, [and] other items from Nan Casciaro here in Lauder-dale County. That matter was submitted to the March 2011 grand jury ... [which] indicted you[,] along with others[,] for armed robbery in [c]ause [n]umber 155-11. And you’re submitting your plea of guilty in that case right?
[Mosley]: Yes, sir.
[Court]: Also, ... you’re submitting your plea of guilty in connection with a matter that came to the attention of law enforcement here in Lauderdale County back on November 16 of 2010 when it was alleged that you took at gunpoint[,] from Linda Edwards[,] doing business as Hodgepodge by Linda[,] some $120 in cash. That matter also was submitted to the March 2011[g]rand [j]ury ... [, which] indicted you ... for armed robbery. In both cases, they recognize[d] that you’ve got multiple prior felonies, so you were indicted as a habitual criminal. And as I understand it, you’re submitting your plea of guilty in both cases ... with the understanding that the State’s not going to ask that you be sentenced under the habitual[-]criminal day-for-day status; right?
[Mosley]: Yes, sir.
[Court]: Mr. Mosley, you’re pleading guilty to two separate armed robberies.... [Y]ou’re pleading guilty in [c]ause [n]umber 155-11 because on November 19 of 2011, you participated in taking at gunpoint between $700 and $800, various other personal property[,] at gunpoint[,] from Nan Cascia-ro; right?
[Mosley]: Yes, sir.
[Court]: And that happened here in Lauderdale County?
[Mosley]: Yes, sir.
[Court]: Nobody forced you to be involved in that armed robbery of Ms. Casciaro that day?
[Mosley]: No, sir.
[Court]: You’re also pleading guilty in [c]ause [n]umber 157-11 to armed robbery because on November 16 of 2010[,] here in Lauderdale County, you took at gunpoint from Linda Edwards[,] doing business as Hodgepodge by Linda[,] some $120 in cash; right?
[Mosley].: Yes, sir.
[Court]: You knew that you were involved in an armed robbery there?
[Mosley]: Yes, sir.
[Court]: Nobody forced you to be involved in that armed robbery that day?
[Mosley]: No, sir.
[Court]: And in both cases, you knew that there was a gun involved?
[Mosley]: Yes, sir.

Thus, at least twice during the plea hearing, the trial court outlined, and Mosley assented to, the factual basis for each charge of armed robbery. Accordingly, we find that there is an adequate factual basis supporting Mosley’s guilty pleas.

¶ 24.. If, in the alternative, Mosley is asserting that the factual basis of his guilty pleas was inadequate because he was not the “principal actor,” then this argument too must fail because it is contrary to the law regarding a defendant’s liability as an accessory. It is well settled that “an accessory to armed robbery is just as guilty as the principal.” Diggs v. State, 46 So.3d 361, 367 (¶ 20) (Miss.Ct.App.2010) (citing McCuiston v. State, 791 So.2d 315, 317 (¶¶5-6) (Miss.Ct.App.2001)). Accordingly, this issue is without merit.

C. Evidentiary Hearing

¶ 25. Finally, Mosley argues that during his plea hearing, the trial .court gave him incorrect information regarding his parole eligibility; therefore, the trial court erred in dismissing his PCR petition without first conducting an evidentiary hearing.

¶ 26. “Pursuant to the [UP-CCRA], a petitioner is entitled to an in-court opportunity to prove his claims if the claims are ‘procedurally alive and substantially show [a] denial of a state or federal right.’ ” Edge v. State, 962 So.2d 81, 86 (¶ 23) (Miss.Ct.App.2007) (quoting Horton v. State, 584 So.2d 764, 767 (Miss.1991)). The “trial court enjoys wide discretion in determining whether to grant an evidentia-ry hearing.” Williams v. State, 4 So.3d 388, 392 (¶ 11) (Miss.Ct.App.2009). Further, a PCR petition is “properly dismissed without the benefit of an evidentiary hearing where it is manifestly without merit.” Id. Thus, “dismissal is appropriate where it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id.

¶ 27. Rule 8.04(A)(4)(b) of the Uniform Rules of Circuit and County Court provides that, in accepting a guilty plea, the trial court has the duty to ensure “[t]hat the accused understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law.” During Mosley’s plea hearing, the following exchange occurred between Mosley, the trial court, and court officer William Lucy:

[Court]: You understand that, Mr. Mosley?
[Mosley]: Kind of.
[Court]: Huh?
[Mosley]: Kind of.
[Court]: What about it are you confused about?
[Mosley]: Is she saying that ... the whole [forty-year sentence is] going to be day[-]for[-]day?
[Court]: I don’t know that for sure, and I think the way [the] MDOC interprets that now[,] ... the first ten years is day-for-day time.
[Court]: Isn’t that right, William?
[Lucy]: Yes, sir. As of today[,] as far as I know.
[Court]: You know, they change those rules, so — and, you know, but for armed robbery with a gun as it stands right now, the first ten years of it would be day-for-day time. You understand that?
[Mosley]: Yes, sir.
[Court]: Mr. Mosley, ... you’ve got just concurrent sentences [of forty] years, and we’ve gone over in some detail how [the] MDOC classifies armed robbery with a gun. As we understand it at this point, the first ten years of that would be day-for-day time. After that, whether it’s day-for-day time, that’s going to depend on your record as an inmate with [the] MDOC and their rules and regulations. That’s not something that this Court can control. The DA’s office doesn’t control that, nor does [your attorney]. Clear about that?
[Mosley]: Yes, sir.

¶ 28. However, pursuant to Mississippi Code Annotated section 47 — 7—3(1)(d)(ii) (Rev. 2011): “No person shall be eligible for parole who shall, on or after October 1, 1994, be convicted of robbery ... through the display of a firearm[.]” Thus, it is clear that Mosley was given incorrect information regarding his parole eligibility.

¶ 29. This Court has held that “[b]ecause parole is a matter of legislative grace, parole eligibility or non[ Eligibility is not considered a ‘consequence’ of a guilty plea.” Thomas v. State, 881 So.2d 912, 916 (¶ 10) (Miss.Ct.App.2004) (citing Ware v. State, 379 So.2d 904, 907 (Miss.1980)). Thus, “it is not a prerequisite to a voluntary plea that the defendant understand the nature of parole, his eligibility for parole, and the circumstances under which it may be granted.” Id. On the other hand, “a plea is involuntary if a defendant is affirmatively misinformed regarding the possibility of parole and pleads guilty in reliance on the misinformation.” Id. (citing Fairley v. State, 834 So.2d 704, 706 (¶ 8) (Miss.2003)).

¶ 30. However, “[t]he failure of the judge to inform the defendant of the mandatory sentencing requirements does not automatically create an invalid plea.” Burnett v. State, 831 So.2d 1216, 1219 (¶ 10) (Miss.Ct.App.2002) (citing Gibson v. State, 641 So.2d 1163, 1166 (Miss.1994)). The Mississippi Supreme Court has established the “harmless[-]error rule,” which provides that where “the failure to advise a defendant concerning a mandatory sentence or fíne requirement did not play a role in the decision of the accused to plead[,] then the failure is not fatal to the sentence.” Id. (quoting Sykes v. State, 624 So.2d 500, 503 (Miss.1993)). “Where no prejudice is found, the ‘harmless[~]error rule’ applies.” Id. at (¶ 12) (quoting Sykes, 624 So.2d at 502).

¶ 31. We find that, under the facts here, the harmless-error rule applies. It is clear from the record of the proceedings below that Mosley’s overriding motivation to plead guilty was the dismissal of five felony indictments. Mosley was indicted as a habitual offender in seven separate felony causes. In exchange for his plea of guilty to the two armed-robbery charges, the State agreed to dismiss five felony indictments, and agreed that Mosley be sentenced without the habitual-offender status. As the trial court found in its order denying Mosley’s PCR petition:

If this were not a situation where five (5) separate cases were dismissed due to [Mosley’s] guilty pleas in the two (2) cases [that Mosley] is asking this Court' to set aside, then the Court would likely find that [Mosley] is entitled to an evi-dentiary hearing in order to determine whether or not he relied on erroneous information regarding the mandatory day-for-day time required for the offense of armed robbery. Yet, such is not the case.... [I]f the Court sets aside [Mosley’s] plea[s,] ... [Mosley] would be facing re-indictment in five (5) separate cases, in addition to the disposition of the two matters [that Mosley] is asking this Court to set aside[.]
Given the contingencies involved[,] ... the Court finds [that] the incorrect information regarding the mandatory time [Mosley] would be required to serve in the two (2) consecutive armed[-]robbery sentences was harmless error.... [T]he Court finds [that] it is not necessary to conduct an evidentiary hearing ... in order to determine whether or not [Mosley] relied on misinformation in entering his guilty pleas, as the erroneous information was obviously not the motivating factor for [Mosley’s] pleas.

¶ 32. We agree with the trial court’s finding that the motivating factor for Mosley’s pleas was not his parole eligibility and that any misinformation he received concerning parole eligibility was harmless and does not invalidate his voluntary guilty pleas. Accordingly, this issue is without merit.

CONCLUSION

¶ 33. We have found that Mosley’s PCR petition failed to comply with the procedural requirements of the UPCCRA, violating the one-judgment rule. On that basis alone, the trial court’s denial of Mosley’s PCR petition is affirmed. Nevertheless, a review of the record of the proceedings below reveals that Mosley’s trial counsel did not render ineffective assistance; that Mosley’s guilty pleas were voluntarily and intelligently entered and supported by an adequate factual basis; and that Mosley was not entitled to an eviden-tiary hearing.

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

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

      . The record indicates that Mosley was indicted for seven felony offenses in seven separate cause numbers: armed robbery, cause number 157-11; armed robbery, cause number 155-11; armed robbery, cause number 156-11; burglary of a building other than a dwelling, cause number 112-11; burglary of an automobile cause number, 139-11; burglary of an automobile, cause number 189-11; and grand larceny, cause number 315-11.

      . The record reflects that twenty days before Mosley’s trial date, Mosley was indicted for grand larceny in cause number 315-11.


author: ROBERTS, J.,

text:
    Willie Earl RILEY a/k/a Willie Riley a/k/a Willie E. Riley, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-01595-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2014.

      Willie Earl Riley, appellant, pro se.
    Office of the Attorney General by Barbara Wakeland Byrd, attorney for appel-lee.
    Before LEE, C.J., ISHEE, ROBERTS and JAMES, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Willie Earl Riley appeals the Holmes County Circuit Court’s judgment dismissing his sixth motion for post-conviction relief (PCR). Riley claims that the circuit court erred by finding that his most recent PCR motion is untimely and barred as a successive writ. Riley also claims that he received ineffective assistance of counsel, and the circuit court erred when it accepted his guilty plea to murder. Finding that Riley’s sixth PCR motion is barred by the doctrine of res judicata, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. During 1999, Riley was charged with murdering his girlfriend, Ann Weatherall. He confessed that he shot her in the head after she told him that she did not want to be with him anymore. Later, Riley pled guilty to murder. Since then, he has repeatedly attempted to obtain post-conviction relief.

¶ 3. Riley filed his first PCR motion during 2000. Riley v. State, 90 So.3d 112, 114 (¶ 3) (Miss.Ct.App.2011). The circuit court dismissed it, and Riley did not appeal. In July 2001, Riley filed his second PCR motion. He claimed that his guilty plea was involuntary, his sentence was illegal, and he received ineffective assistance of counsel. Id. at (¶ 4). The circuit court dismissed Riley’s second PCR motion, and this Court affirmed the circuit court’s judgment in Riley v. State, 848 So.2d 888, 889 (V 2) (Miss.Ct.App.2003).

¶4. The circuit court summarily dismissed Riley’s third and fourth PCR motions. There is no indication that he appealed the circuit court’s decisions. During late 2009, Riley filed his fifth PCR motion. Riley, 90 So.3d at 114 (¶ 8). After the circuit court summarily dismissed it because it was barred as a successive writ, Riley appealed to this Court. Id. That appeal culminated in this Court’s second reported opinion regarding Riley’s attempts to obtain post-conviction relief. Id. We noted that we had previously addressed Riley’s claims that he did not plead guilty voluntarily, and he received ineffective assistance of counsel. Id. at 115 (¶ 12). Ultimately, this Court found that Riley’s fifth PCR motion was barred as a successive writ. Id. at (¶ 11). We also found no merit to Riley’s claims that the indictment against him was fatally flawed, and newly discovered evidence exempted his PCR motion from all procedural bars. Id. at 116 (¶ 14). Finally, we noted that Riley’s fifth PCR motion was untimely. Id. at (¶ 15).

¶ 5. Undeterred, on July 19, 2013, Riley filed his sixth PCR motion. Within his sixth PCR motion, Riley raised a myriad of claims that primarily focused on the concept that he received ineffective -assistance of counsel. Riley also briefly claimed that the circuit court did not inform him that he was waiving a number of his rights during the guilty-plea hearing. Following the circuit court’s summary dismissal of his sixth PCR motion, Riley appeals.

STANDARD OF REVIEW

¶ 6. We will not reverse a circuit court’s decision to dismiss a PCR motion unless the circuit court was clearly erroneous. Riley, 90 So.3d at 114 (¶ 9). We review questions of law de novo. Id.

ANALYSIS

I. EFFECTIVE ASSISTANCE OF COUNSEL

¶ 7. Riley again repeats his claim that he received ineffective assistance of counsel. This is at least the third time he has raised this issue. Riley, 848 So.2d at 891 (118); Riley, 90 So.3d at 115 (¶ 12). Under Mississippi’s Uniform Post-Conviction Collateral Relief Act (UPCCRA), any order denying or dismissing a PCR motion is a bar to a second or successive PCR motion. Miss.Code Ann. § 99-39-23(6) (Supp.2014). But Riley claims that he has a fundamental constitutional right to effective counsel. Accordingly, Riley reasons that he is entitled to raise this issue repeatedly and perpetually based on the Mississippi Supreme Court’s decision in Rowland v. State, 42 So.3d 503, 506 (¶ 9) (Miss.2010), in which the supreme court stated that “errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA.” In other words, Riley argues that neither the time-bar nor the successive-writ bar applies to an ineffective-assistance-of-counsel claim.

¶ 8. The supreme court has not held that an ineffective-assistance-of-counsel claim invokes a “fundamental right” that circumvents all procedural bars that apply to PCR motions. But it is not necessary for us to decide the question, because the supreme court has held that the principle of res judicata applies in the context of PCR motions. Jones v. State, 119 So.3d 323, 326 (¶ 9) (Miss.2013). Res judicata prevents the litigation of claims that “were made or should have been made” during previous litigation. Hill v. Caroll Cnty., 17 So.3d 1081, 1084 (¶ 8) (Miss.2009). Because Riley already raised his claim that he received ineffective assistance of counsel, he is precluded from relitigating it here. Therefore, the circuit court did not err when it summarily dismissed Riley’s sixth PCR motion.

II. INTELLIGENT AND VOLUNTARY GUILTY PLEA

¶ 9. Riley also repeats his claim that the circuit court erred when it accepted his guilty plea. According to Riley, the circuit court did not inform him that by pleading guilty, he was waiving his rights to be tried by a jury, confront adverse witnesses, and avoid self-incrimination. In Riley, 848 So.2d at 890 (¶ 4), we found “that [during Riley’s guilty-plea hearing, he] was thoroughly questioned on the record by the trial judge regarding [his] understanding of the crime charged, the applicable sentencing, and the waiver of his constitutional rights.” Consequently, this issue is also barred by res judicata.

¶ 10. Moreover, Riley’s claim is patently false. The transcript of Riley’s guilty-plea hearing is in the record. Before the circuit court accepted Riley’s guilty plea, the circuit court told him:

[Y]ou have a right to a public trial by jury. In that trial, you have a right to cross-examine all witnesses that will be called to testify against you. You have a right to subpoena witnesses to testify in your own behalf. You have a right to testify or not testify as you so desire. Should you decide not to testify, this [c]ourt would instruct the jury that they could not hold the fact that you did not testify against you. This [c]ourt will also instruct the jury that they must presume that you are innocent until the State proves your guilt beyond a reasonable doubt.

The circuit court then asked Riley whether he wanted to give up those constitutional rights and plead guilty. Riley answered, ‘Tes, ma’am.” Therefore, this issue is barred and it has no merit.

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

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

      . Under Mississippi Code Annotated section 99-39-5(2) (Supp.2014), a PCR motion challenging a guilty plea must be filed within three years of the entry of the judgment of conviction.

      . Because Riley pled guilty to murder and he was sentenced to life, he is not eligible for earned-time allowance. Miss.Code Ann. § 47-5-139(l)(a) (Rev. 2011). Accordingly, there is no reason to discuss sanctioning Riley by ordering the forfeiture of meritorious earned time under Mississippi Code Annotated section 47-5-138(3) (Supp.2014). However, we caution Riley that an inmate who repeatedly files objectively frivolous PCR motions may face other sanctions. See Miss. Code Ann. § 47-5-76(1) (Rev. 2011); Ivy v. State, 688 So.2d 223, 224 (Miss.1997); Reed v. State, 70 So.3d 1174, 1175-76 (¶ 3) (Miss. Ct.App.2011).


text:
    Elsa PEREZ, Appellant v. HOWARD INDUSTRIES INC., Appellee.
    No. 2013-WC-02083-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2014.

      Mariano Javier Barvie’, Gulfport, attorney for appellant.
    Douglas S. Boone, Parker Ford Leggett, Laurel, attorneys for appellee.
    Before IRVING, P.J., BARNES, ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. On July 13, 2009, Elsa Perez slipped and fell while at work for Howard Industries Incorporated. She filed her petition to controvert on June 9, 2010, claiming injury to her right leg, right ankle, and lower back; however, over a year later, Perez filed an amended petition to controvert adding that she injured her right shoulder when she fell. The administrative judge (AJ) found that Perez failed to show a causal connection between her shoulder injury and her work-related fall; thus, Howard Industries was not responsible for any medical treatment or disability relating to Perez’s shoulder. The Mississippi Workers’ Compensation Commission (Commission) affirmed the AJ’s decision and adopted the AJ’s order. Perez appeals and asks this Court to review the Commission’s decision that Perez failed to show a causal connection between her work-related fall and her shoulder injury. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

I. Medical History

¶ 2. Perez was an employed with Howard Industries on July 13, 2009, as an assembly-line worker, when she slipped on a mixture of oil and water on the floor. Perez fell, landing primarily on her right side. She notified her supervisor, who completed an accident-investigation report. Perez was sent to the MEA Medical Clinic, where she was diagnosed with multiple contusions and a right-wrist sprain. She was released back to work with limited use of her right arm.

¶ 8. Still in pain, Perez was referred by MEA to Laurel Bone and Joint, where she saw Dr. Steven Nowicki on March 2, 2010. Dr. Nowicki examined Perez for her low-back and right-ankle pains. Perez met with Dr. Nowicki four times from March 2010 to April 2010. On April 29, 2010, Dr. Nowicki released her at maximum medical improvement (MMI), with zero percent impairment for her lower back. Perez then saw Dr. Daniel Michael, also with Laurel Bone and Joint. Dr. Michael saw Perez ten times from May 2010 through September 2010. At her September 17, 2010 visit, Perez first informed Dr. Michael of her right-shoulder pain. According to Perez, Dr. Michael told her he could not treat her for a shoulder injury, because it was not a result of her work-related injury. Dr. Michael released Perez at MMI on September 17, 2010. Perez was released to return to work. Perez signed choice-of-physician documents, selecting Dr. Nowicki and then Dr. Michael as her physicians.

¶ 4. Following her release from Dr. Michael, Perez claimed she was still in pain. Without approval from Howard Industries or its carrier, Perez went for treatment at South Central Urgent Care Clinic and the Laurel Family Clinic. Perez was referred to Dr. Victor Bazzone at Spinal and Neurological Surgery of South Mississippi. Dr. Bazzone performed an MRI of Perez’s right shoulder and diagnosed a rotator-cuff tear. Dr. Bazzone recommended that Perez have surgery to correct the tear.

¶ 5. Dr. Rahul Vohra, with NewSouth Neurospine, examined Perez for an independent medical evaluation (IME). After reviewing Perez’s medical history and examining her, Dr. Vohra noted that Perez’s shoulder complaint was not mentioned until a year after her injury, and in his opinion, “her shoulder pain complaints are not causally related to her fall.” Further, Perez required no “further treatment from the perspective of her on[-]the[-]job injury.” Nor did she have any permanent restrictions, and she could return to work full-time. Dr. Vohra agreed “with Dr. Nowicki’s recommendation for evaluation with orthopedic surgery for her rota-tor[-]cuff tear. However, as stated previously, I do not believe this [ (her shoulder injury) ] is a result of her [on-the-job] injury, but rather is a separate process.”

II. Procedural History

¶ 6. Perez filed her petition to controvert on June 9, 2010, and in it, she claimed she fell and landed on her right side, injuring her right leg, ankle, and low back. On August 16, 2010, Perez then requested that the Commission order that Howard Industries provide medical treatment by Dr. Bazzone. Howard Industries responded that Perez had exercised her choice of physician several times by selecting Dr. Nowicki and Dr. Michael; therefore, her request to see Dr. Bazzone should be denied. Howard Industries also filed a motion to compel execution of Perez’s medical documents because Perez refused to provide them or answer questions at her deposition regarding prior accidents or other physicians seen. Following a telephonic hearing, the AJ initially denied Howard Industries’ motion to compel as an attempt “to go beyond the bounds of Mississippi law, as it relates to releasing medical information for body parts that are not currently at issue in litigation.” Then, in response to Howard Industries’ motion for clarification or reconsideration explaining it was only seeking those documents for the body parts at issue, the AJ reconsidered and ordered Perez to provide the documents from 2005-2011 related to her right leg, right ankle, and lower back. The AJ additionally ordered Howard Industries to pay for Perez to see Dr. Baz-zone and that Perez must submit to an exam by Dr. Vohra at Howard Industries’ expense.

¶ 7. Perez filed an amended petition to controvert on December 8, 2011, adding that she injured her right shoulder as a result of her slip and fall, and she moved that Howard Industries be required to pay for the medical treatment related to her shoulder. Howard Industries denied that it should pay for her shoulder treatment due to a lack of a causal connection between her on-the-job accident and her shoulder injury.

¶ 8. The AJ held a hearing on March 20, 2013. After hearing the testimony and reviewing the evidence, the AJ entered an order on May 30, 2013. In his order, the AJ found that Perez “failed to sustain the burden of proof necessary to show that there [was] a causal connection between her right[-]shoulder injury and her July 13, 2009 work-related fall.” The AJ also found that Howard Industries was liable for temporary total disability related to Perez’s injuries to her right wrist, right arm, right knee, and right-lower back, from August 2, 2010, through her MMI date of September 17, 2010, at a weekly rate of $354.72, with credit for any benefits already paid. Additionally, the AJ noted that Perez failed to prove she suffered any permanent disability resulting from her work-related injuries. Perez appealed this decision to the Commission. The Commission entered an order on November 27, 2013, stating, “Having thoroughly studied the record and applicable law, the Full Commission affirms the ‘Order of Administrative Judge’ dated May 30, 2013, and adopts the ‘Order of Administrative Judge’ by reference.”

¶ 9. Perez now appeals the Commission’s decision, and raises the following issues:

I. The ... [Commission] erred in finding that ... [Perez] failed to meet her burden of proof to show that she received an injury to her shoulder as a result of the July 13, 2009 industrial accident, and that ... [Howard Industries] and [its] carrier were not responsible for any medical treatment or disability associated with the shoulder injury.
II. The ... [Commission] erred as the matter of law[,] finding that ... [Perez] failed to prove that she suffered any permanent disability as a result of her work[-]related injuries.

ANALYSIS

¶ 10. At the outset, we note that Perez raises two issues for appeal; however, she fails to provide any argument in her brief on the issue of whether the Commission erred in finding that she did not suffer any permanent disability. Mississippi Rule of Appellate Procedure 28(a)(6) provides that an appellant’s brief “shall contain the contentions of 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.” “Issues cannot be decided based on assertions from the briefs alone. The issues must be supported and proved by the record.” Pulphus v. State, 782 So.2d 1220,1224 (¶ 15) (Miss.2001) (citation omitted). Because Perez does not argue the issue, we decline to address it.

¶ 11. “The standard of review in a workers’ compensation appeal is limited to whether the [Commission’s] decision is supported by substantial evidence.” Om-nova Solutions Inc. v. Lipa, 44 So.3d 935, 940 (¶ 15) (Miss.2010) (quoting Lott v. Hudspeth Ctr., 26 So.3d 1044, 1048 (¶ 12) (Miss.2010)). This Court will reverse the Commission’s decision only when the decision “is clearly erroneous and contrary to the overwhelming weight of the evidence.” Lott, 26 So.3d at 1048 (¶ 12). The Commission’s application of law is reviewed de novo. Ladner v. Zachry Constr., 130 So.3d 1085, 1088 (¶9) (Miss.2014) (citing Gregg v. Natchez Trace Elec. Power Ass’n, 64 So.3d 473, 475 (¶ 9) (Miss.2011)).

¶ 12. Perez argues that the Commission erred in finding that her shoulder injury was not causally related to her work injury. In support of her argument, she contends that because neither Dr. Nowieki nor Dr. Michael was a shoulder specialist, they were not capable of diagnosing a torn rotator cuff. Specifically, Dr. Michael did not request an MRI of Perez’s shoulder after she complained of shoulder pain on September 17, 2010. Additionally, Perez argues that the over-a-year-long delay in reporting her shoulder pain should not act as a bar because her shoulder injury was a latent injury that was not discoverable until she had an MRI and was diagnosed with a torn rotator cuff.

¶ 13. The Commission was pre- ■ sented with evidence from Dr. Michael, who initially treated Perez. Perez never mentioned any shoulder pain to Dr. Michael, or any other doctor prior to him, until the day Dr. Michael determined Perez was at MMI and was releasing her back to work. Upon seeing Dr. Bazzone, Perez informed him that she hurt her shoulder when she fell; however, she did not inform her previous doctors that her shoulder was injured until over a year after her fall. Dr. Bazzone’s opinion was partially based upon this information. Dr. Vohra conducted Perez’s IME, and he reviewed Perez’s medical records, including the records from Dr. Nowicki, Dr. Michael, and Dr. Bazzone. Dr. Vohra opined that Perez’s shoulder pain was not causally related to her work-related injury. “Ordinarily, ‘whenever the expert evidence is conflicting, an appellate court will affirm the Commission whether the award is for or against the claimant.’ ” Miller v. Johnson Controls, 138 So.3d 248, 254 (¶ 26) (Miss. Ct.App.2014) (quoting Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 330, 336 (¶ 13) (Miss.2003)). An appellate court “will not determine where the preponderance of the evidence lies when the evidence is conflicting, the assumption being that the Commission, as the trier of fact, has previously determined which evidence is credible, has weight, and which is not.” Metal Trims Indus., Inc. v. Stovall, 562 So.2d 1293,1297 (Miss.1990).

¶ 14. The Commission, by reviewing the record and adopting the AJ’s opinion, weighed all the evidence regarding whether Perez’s shoulder complaints and injury were related to her work-related fall and resolved the conflicting evidence against Perez. The Commission noted that Perez saw Dr. Bazzone over two years after her fall, and he only examined her three times, whereas she was examined and treated by Dr. Nowieki and Dr. Michael approximately fourteen times within a few months after her fall. Further, according to the Commission, “[n]either Dr. Nowieki, Dr. Michael, nor Dr. Vohra related [Perez’s] right[-]shoulder problem to her July 13, 2009 work-related fall.”

¶ 15. Based upon our review of the record, we do not find that the Commission’s decision was not based upon substantial evidence; therefore, we find this issue to be without merit.

¶ 16. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Perez also requested that she be treated by Dr. Lance Line at Southern Bone and Joint; he declined treating her because he was not a back specialist, which was her primary corn-plaint. Perez next requested Dr. Michael Patterson at the same clinic; Dr. Patterson said he would perform an independent medical examination, but would not treat her.


author: LEE, C.J.,

text:
    Sandra F. HANSON, Appellant, v. DOLGENCORP, INC., A Self-Insurer, Appellee.
    No. 2014-WC-00293-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2014.

      William L. Ducker, Purvis, attorney for appellant.
    Joseph W. McDowell, Purvis, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   LEE, C.J.,

for the Court:

¶ 1. Sandra F. Hanson appeals the judgment of the Mississippi Workers’ Compensation Commission (the Commission) finding that she is not entitled to an award of permanent partial disability and denying certain medical testing. Finding no error, we affirm.

. PROCEDURAL HISTORY

¶ 2. Hanson filed a petition to controvert alleging that she had received a com-pensable injury to her neck and back while working for Dollar General. Dollar General filed its answer, admitting that the injury occurred, but denying that Hanson was temporarily or permanently disabled as a result. After a hearing on the merits, an administrative judge (AJ) determined that Hanson was not entitled to disability benefits. Hanson filed a petition for review with the Commission.

¶ 3. After oral argument, the Commission ordered an independent medical examination (IME) by Dr. Orhan Ilercil. Dr. Ilercil stated in his IME report that the numbness in Hanson’s extremities was not causally related to her work injury and that an electromyogram (EMG) and nerve conduction study (NCS) were not warranted. After reviewing the IME, the Commission, entered its order affirming the AJ’s decision.

¶ 4. Hanson appeals the decision of the Commission and asserts the following: (1) the findings of the Commission are not supported by substantial evidence, and (2) she is entitled to payment for certain medical testing, including an EMG and NCS.

FACTS

¶ 5. On October 16, 2010, Hanson suffered an admittedly compensable injury to her neck and back as a result of a fall at Dollar General. She continued working for Dollar General at her regular duties until May 10, 2011. She was a part-time employee, whose hours were substantially reduced over time. Her weekly wage was $150.89. Hanson asked for more hours, but her request was denied. In May 2011, Hanson was taken off the schedule. Hanson testified that she assumed she had been fired, so she never returned to work, nor contacted Dollar General’s district manager. After leaving Dollar General, she applied for two jobs, but did not obtain employment. Hanson has experience in retail and sales. She has worked as a caregiver, secretary, waitress, and custodian. She was also a self-employed decorator.

¶ 6. Two days after the fall, Hanson’s employer arranged a visit to the emergency room. She was referred to Dr. Kathleen A. Messenger for follow-up. Dr. Messenger examined Hanson on March 2 and April 11 of 2011. She diagnosed Hanson with myalgia, musculoskeletal pain, and degenerative-disc disease. Dr. Messenger reported that Hanson’s neurological exam was normal and that her complaints were subjective. Dr. Messenger noted that Hanson had continued to work at full capacity and that she was able to maintain her employment responsibilities. Dr. Messenger ordered an EMG and NCS to test for possible nerve damage, but workers’ compensation refused to pay. She also noted that because Hanson’s complaints began after the fall, it was presumed that Hanson’s myalgia and pain were a result of her fall.

¶ 7. Seeking additional medical treatment, Hanson contacted workers’ compensation liaison Becky Robinson, who set her up with a workers’ compensation doctor, Dr. David C. Collipp. She complained of neck and back pain and tingling in her extremities. Dr. Collipp examined Hanson on May 18, 2011, noting that she had already been released to regular duty and concluding that it was unlikely that the tingling in her hands was related to the fall. After eight physical-therapy sessions, Hanson was again examined by Dr. Col-lipp, who noted improvement with regard to the neck and back pain. He placed her at maximum medical improvement (MMI) for her work injuries on June 30, 2011, with no restrictions for any of her complaints and assigned her a two percent body-as-a-whole permanent partial impairment rating. He noted again that the tingling sensation was not a result of her neck and back pain and that he intended to follow up with an EMG.

¶ 8. On September 22, 2011, Hanson’s family physician, Dr. Wayne Hughes, examined Hanson. He diagnosed Hanson with unspecified peripheral vascular disease, unspecified hypothyroidism, and unspecified hyperlipidemia. He ordered an ankle-brachial index (ABI) for the tingling in her legs. Hanson’s son paid for the test. Hanson testified that she was aware that the symptoms she complained of were symptoms caused by peripheral vascular disease. Hanson never underwent a functional-capacity evaluation (FCE).

STANDARD OF REVIEW

¶ 9. The standard of review in a workers’ compensation case is well settled. If the findings of the Commission are supported by substantial evidence, then they are binding on this Court. Mitchell Buick, Pontiac & Equip. Co. v. Cash, 592 So.2d 978, 980 (Miss.1991). “The [Commission] sits as the ‘ultimate finder of facts’ in deciding compensation cases, and therefore, ‘its findings are subject to normal, deferential standards upon review.’” Pilate v. Int’l Plastics Corp., 727 So.2d 771, 774 (¶ 12) (Miss.Ct.App.1999) (quotations omitted). “We are bound even though the ‘evidence would convince the [C]ourt otherwise if it were instead the ultimate fact[-]finder.’ We will overturn [the] Commission’s decision only when there is an error of law or an unsupportable finding of fact.” Montana’s Sea Kettle Rest. v. Jones, 766 So'.2d 100, 102 (117) (Miss.Ct. App.2000) (quotation omitted).

DISCUSSION

¶ 10. Hanson contends the Commission’s denial of permanent partial disability is not supported by the evidence. In order to receive permanent partial disability, a claimant must prove (1) a medical impairment, and (2) “the medical impairment resulted in a loss of wage-earning capacity.” Robinson v. Packard Elec. Div., Gen. Motors Corp., 523 So.2d 329, 331 (Miss.1988) (citations omitted). “[Wjhere an injured employee returns to work and receives the same or greater earnings as those prior to his injury, there is created a rebuttable presumption that he has suffered no loss in his wage-earning capacity.” Agee v. Bay Springs Forest Prods., Inc., 419 So.2d 188,189 (Miss.1982) (citations omitted). Once the disability subsides, a claimant must make reasonable efforts to obtain employment. Thompson v. Wells-Lamont Corp., 362 So.2d 638, 640 — 41 (Miss.1978). Otherwise, permanent partial disability will be denied. Id. The claimant bears the burden of proving that her efforts were reasonable. Id. at 641.

¶ 11. The Commission first reserved judgment on the issue of permanent partial disability pending an IME. Based on the conclusions of Dr. Ilercil, the Commission found that Hanson’s ongoing symptoms of tingling in her arms and legs were not causally related to her work injury and affirmed the AJ’s denial of permanent partial disability. Regarding her admittedly compensable work injury, the AJ found that Hanson failed to prove a loss of wage-earning capacity following the date of MMI. Although she was assigned a two percent body-as-a-whole permanent partial impairment rating, she was not assigned any permanent restrictions. Hanson continued working for seven months at her regular duties. She was dissatisfied with the number of hours she was working and asked for more. When she stopped reporting to work at Dollar General, Hanson made two attempts to obtain employment. The AJ found Hanson’s search for employment unreasonable and concluded that she had not met the burden of proving a loss of wage-earning capacity resulting from her work injury. Therefore, we affirm the Commission’s decision.

¶ 12. Hanson also argues that she is entitled to an EMG, NCS, ABI, and FCE at the employer’s expense. Having found that the tingling in Hanson’s arms and legs was a result of peripheral artery disease and not her work injury, the Commission properly denied Hanson’s request for an EMG, NCS, and ABI. These tests were ordered to help in the diagnosis and treatment of Hanson’s peripheral artery disease, not her work injury. An FCE was never ordered by any of her physicians. Hanson continued to work at full capacity. Her doctors released her to regular duty and never placed any restrictions on her activity. Furthermore, the Commission affirmed the AJ’s denial of permanent partial disability. Therefore, we affirm the Commission’s decision.

¶ 13. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING and GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.