author: COLEMAN, Justice,

text:
    STATE of Mississippi v. Hattie HAWKINS a/k/a Hattie M. Hawkins.
    No. 2013-KA-00797-SCT.
    Supreme Court of Mississippi.
    Aug. 14, 2014.

      Office of the Attorney General by Patrick Joseph McNamara, Jr., attorney for appellant.
    Michael R. Bonner, Vicksburg, attorney for appellee.
   COLEMAN, Justice,

for the Court:

¶ 1. The trial court sustained the defendant’s demurrer to the indictment, dismissing the case against Hattie Hawkins. The State appealed. We hold that the indictment was sufficient and that the trial judge erred by granting the demurrer.

Facts and Procedural History

¶ 2. Hattie Hawkins was a nursing assistant at Heritage House Nursing Center in Vicksburg. Deserie Edwards, a resident at Heritage House, suffered injuries while under Hawkins’s care. An investigation revealed that Hawkins had lifted Edwards by herself, knowing that two people were required to lift Edwards. Hawkins then improperly placed Edwards into a lift/sling and left her unattended. Edwards fell from the sling and suffered injuries, but Hawkins did not call for assistance. Hawkins was indicted for simple assault of a vulnerable person. Several days before trial, defense counsel demurred to the indictment on the grounds that it did not comport with Mississippi Code Section 97-3-7(1) and was an improper statement of the law. The circuit court dismissed the case saying the indictment failed to state a cause of action against the defendant. The State filed a motion to reconsider, which was denied. The State appealed.

Discussion

¶ 3. The issue is whether the indictment was sufficient on its face such that the trial judge erred by sustaining the demurrer to the indictment. Whether the trial court erred in sustaining a demurrer to an indictment is a question of law. See State v. May, 208 Miss. 862, 45 So.2d 728, 728 (1950). Therefore, the standard of review is de novo. Tapper v. State, 47 So.3d 95, 100 (¶ 17) (Miss.2010) (“whether an indictment is defective is an issue of law and therefore deserves a relatively broad standard of review, or de novo review”) (citations omitted).

¶ 4. Hawkins was indicted for simple assault of a vulnerable person under Mississippi Code Section 97-3-7(1). The indictment read:

HATTIE M. HAWKINS on or about the 23rd day of June, 2010 ... committed] the offense of Simple Assault of a Vulnerable Person in that Hattie M. Hawkins, while employed as a Certified Nursing Assistant at Heritage House Nursing Center, did willfully, negligently!;,] and feloniously inflict pain and/or injury upon Deserie S. Edwards, a vulnerable person as defined by § 43^7-5(n), in that Deserie S. Edwards was a resident of Heritage House Nursing Center; to wit: Hattie M. Hawkins, while knowingly engaged in improper lifting procedures, being aware that the victim required two persons to be moved from her bed, acted alone in knowingly placing the victim in a lift/sling improperly, and then allowed the victim to fall from the lift/sling to the floor by leaving the victim unattended causing multiple serious injuries, and then failed to inform appropriate staff or seek out medical treatment for the injuries inflicted upon Deserie S. Edwards. This act being in violation of § 97-3-7(1), Miss. Code Ann. (1972, as amended), contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

The simple assault statute, Mississippi Code Section 97-3-7(1), referenced in the indictment, provides:

(a) A person is guilty of simple assault if he (i) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; (ii) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (iii) attempts by physical menace to put another in fear of imminent serious bodily harm; and, upon conviction, he shall be punished by a fíne of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both.
(b) However, a person convicted of simple assault ... (iii) upon a person who is sixty-five (65) years of age or older or a person who is a vulnerable adult, as defined in Section 43-47-5, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment for not more than five (5) years, or both.

Miss.Code Ann. § 97-3-7(1) (Supp.2013). Under Section 43-47-5, a “vulnerable person” includes “all residents or patients, regardless of age, in a care facility.” Miss. Code Ann. § 43^f7-5(q) (Supp. 2013) (previously subsection (n), as referenced in the indictment). It is undisputed that Edwards was a resident in a care facility, thus, she was a vulnerable person under Section 43^47-5(q), and Hawkins would have been subject to the more severe sanctions of Section 97-3-7(l)(b).

¶ 5. Hawkins takes issue with the part of the indictment that says Hawkins “willfully, negligently!;,] and feloniously” injured Edwards, claiming that the indictment does not track the language of the statute because Mississippi Code Section 97-3-7(l)(a)(i) requires that one “purposely, knowingly!,] or recklessly’ caused bodily injury to another. Hawkins also asserts that there are no negligent felonies. The State responds that the indictment was brought under subsection (ii) of the statute, which provides that one “negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.” The State maintains that the indictment followed the language of the statute, complied with Rule 7.06 of the Uniform Rules of Circuit and County Court Practice, and gave Hawkins notice of the charge against her.

A. Sufficiency of the Indictment under Rule 7.06

¶ 6. Rule 7.06 of the Uniform Rules of Circuit and County Court Practice discusses indictments and enumerates seven items that must be included in every indictment:

The indictment upon which the defendant is to be tried shall be a plain, concise!,] and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them. An indictment shall also include the following:
1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment is brought;
5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and
7. The words “against the peace and dignity of the state.”
The court on motion of the defendant may strike from the indictment any sur-plusage including unnecessary allegations or aliases.

URCCC 7.06. Each item listed in Rule 7.06 is included in the indictment at issue, therefore, there is no error as to the form of the indictment. See Carroll v. State, 755 So.2d 483, 487 (¶ 11) (Miss.Ct.App.1999) (where all of the requisites of Rule 7.06 were included in the indictment, court held there was “no error as to form”).

¶ 7. Rule 7.06 also requires that indictments provide “a plain, concise!,] and definite written statement of the essential facts constituting the offense charged” and “fully notify the defendant of the nature and cause of the accusation” against him. URCCC 7.06. See Farris v. State, 764 So.2d 411, 421 (¶ 28) (Miss.2000); Gatlin v. State, 724 So.2d 359 (¶32) (Miss.1998). The indictment against Hawkins included the “essential facts constituting the offense charged” as it described what actions Hawkins took that led to Edwards’s injuries. The indictment also clearly stated that Hawkins was charged with simple assault of a vulnerable person under Mississippi Code Section 97-3-7(1). The indictment was sufficient to fully notify Hawkins of the “nature and cause of the accusation” against her.

¶ 8. The language used in the indictment, however, does not track the language of Section 97-3-7(1). “The rule in this state is that an indictment which states the statutory language is generally sufficient to inform the accused of the charge against him.” King v. State, 580 So.2d 1182, 1185 (Miss.1991) (quoting Cantrell v. State, 507 So.2d 325, 329 (Miss.1987)). Although use of the statutory language is generally sufficient, using the exact language from the statute is not necessary if the words used have substantially the same meaning and the indictment is specific enough to give the defendant notice of the charge against her. See Madere v. State, 794 So.2d 200, 212 (¶ 33) (Miss.2001); Ousley v. State, 154 Miss. 451, 122 So. 731, 732 (Miss.1929). As set forth above, Rule 7.06 provides that “[formal or technical words are not necessary in an indictment, if the offense can be substantially described without them.” URCCC 7.06. Discussing that rule, the Court has held:

The rule pretermits any requirement that the indictment include the exact or formal wording of the statute under which the accused is charged. Certainly, the indictment need not (though it may) charge in the exact language of the statute said to have been offended. If from a reading of the indictment as a whole the accused is in fact given fair notice of that with which he has been charged, the indictment is legally sufficient. Applying the above rules of law to the facts, in this instance the form and content of the indictment, there can be no serious question but that the indictment is legally sufficient....

Harbin v. State, 478 So.2d 796, 799 (Miss.1985) (citations omitted).

¶ 9. The Court has .held repeatedly that, “[s]o long as a fair reading of the indictment, taken as a whole, clearly describes the nature and cause of the charge against the accused, the indictment is legally sufficient.” Berry v. State, 996 So.2d 782, 787 (¶ 24) (Miss.2008) (citing Farris v. State, 764 So.2d 411, 421 (¶28) (Miss.2000)). The Court also has held repeatedly that “the ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his defense.” Jones v. State, 856 So.2d 285, 289 (¶ 11) (Miss.2003) (quoting Medina v. State, 688 So.2d 727, 730 (Miss.1996)). Taken as a whole, the indictment provided a clear description of the charges from which Hawkins could prepare her defense.

B. Terms Used in the Indictment

¶ 10. The indictment charged Hawkins with simple assault of a vulnerable person, set out the facts giving rise to the charge, and gave the code section. However, it charged Hawkins with “willfully, negligently^] and feloniously” injuring Edwards. Comparing the indictment to the simple assault statute, it is not clear if Hawkins was charged under subsection (i) with “purposely, knowingly[,] or recklessly” injuring Edwards or under subsection (ii) with “negligently” injuring Edwards, presumably by means other than a deadly weapon. We do not dispute that the indictment was drafted inartfully, but we have held that “inartfully drafted” indictments were sufficient where the charge against the defendant was clear. Harrison v. State, 722 So.2d 681, 686-87 (¶¶ 20-22) (Miss.1998); Henderson v. State, 445 So.2d 1364, 1368 (Miss.1984).

¶ 11. The defense takes issue with the indictment’s charge that Hawkins “willfully, negligently!,] and feloniously” injured Edwards. First, the Court has held that the inclusion of the word “feloniously” in an indictment for simple assault, although the statute does not include the word, does not render the indictment defective. Reining v. State, 606 So.2d 1098, 1103 (Miss.1992). The crime for which Hawkins is charged, simple assault of a vulnerable person, is in fact a felony.

¶ 12. Second, use of the term “willfully” indicates that the charge was brought under subsection (a)(i), that Hawkins “purposely, knowingly[,] or recklessly” caused bodily injury to another. The Court has held that terms “willfully” and “knowingly” have substantially the same meaning in criminal statutes. Ousley, 122 So. at 732 (indictment was sufficient even though it used the words “willfully, unlawfullyf,] and feloniously” rather than “knowingly” as used in the statute). See also Boyd v. State, 977 So.2d 329, 335 (¶ 22) (Miss.2008) (“An act ‘willfully’ done is an act ‘knowingly’ and ‘intentionally’ done.”); Moore v. State, 676 So.2d 244, 246 (Miss.1996) (“willfully” has the same meaning as “knowingly”). Relying on Ousley, the Court of Appeals held that the terms “wilfully and feloniously” had substantially the same meaning as “purposely or knowingly” when ruling on the sufficiency of a jury instruction for aggravated assault. Davis v. State, 909 So.2d 749, 752-53 (¶ 13) (Miss.Ct.App.2005).

¶ 13. The State, however, did not argue that it brought the charge under subsection (a)(i). In fact, the State did not address the word “willfully” in its brief. It did, however, assert that the term “knowingly,” which appears later in the indictment, was meant to “give[] Hawkins the clear understanding that as a trained certified nursing assistant, proof would be made at trial that she was fully aware of the proper ways to have taken care of the victim.” The State argued that it brought the indictment under subsection (a)(ii), which provides that one “negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.” Miss.Code Ann. § 97 — 3—7(l)(a)(ii). Because of the word “or” following “deadly weapon,” the State maintains that a deadly weapon is not required under subsection (ii), and that Hawkins’s conduct falls under the “other means likely to produce death or serious bodily harm” portion.

¶ 14. Although the State did not explain how inclusion of the word “willfully” affects its charge under subsection (a)(ii), the Court has held that “willfully” can be considered surplusage where the actions clearly show negligence. See Gray v. State, 427 So.2d 1363, 1367 (Miss.1983) (citing Yazzie v. State, 366 So.2d 240 (Miss.1979), in which the Court held that the word “willful” was surplusage in an indictment for manslaughter by culpable negligence). See also Miss. Power & Light Co. v. Sumner Gin Co., 156 Miss. 830, 127 So. 284, 286 (1930) (“[Wjhere a declaration charges gross or willful negligence, and the evidence shows simple negligence, there is no variance, as the charge of willfulness is regarded as surplusage.”); Alabama & Vicksburg Ry. Co. v. Hanes, 69 Miss. 160, 13 So. 246, 247 (1891) (“[I]f negligence is sufficiently averred, further allegations that the negligence was willful may be treated as mere surplusage.”).

¶ 15. In the instant case, the indictment clearly charged Hawkins with simple assault. The recitation of the relevant facts showed that Hawkins’s conduct was negligent. Therefore, the word “willfully” in the indictment was surplusage. Comparing the indictment to the statute, Hawkins could have determined that the charge was based on her negligence, and she should have been able to prepare her defense adequately.

C. Mutually Exclusive Subsections

¶ 16. Although the State argued that the indictment was brought under subsection (ii), we hold that the subsections are not mutually exclusive, and the State is not required to distinguish the subsections in every indictment so long as the indictment is sufficient to inform the defendant of the claims against him or her. Under Section 97-3-7, one can be charged with simple assault under 97-3-7(1) or aggravated assault under 97-3-7(2). Simple assault and aggravated assault are different crimes with different elements and different punishments. The distinction between simple and aggravated assault in an indictment has been the subject of numerous cases, but even in those cases, where the indictment used terms from both the simple assault and aggravated assault subsections, the indictments were not rendered defective. If an indictment is not rendered insufficient where it intermingles terms from both the simple and aggravated assault sections, we decline to find that an indictment is insufficient where it intermingles terms from subsections under simple assault only.

¶ 17. One can be found guilty of simple assault in several situations: if he or she “(i) attempts to cause or purposely, knowingly[,] or recklessly causes bodily injury to another; (ii) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (iii) attempts by physical menace to put another in fear of imminent serious bodily harm[.]” Miss. Code Ann. § 97-3-7(l)(a) (Supp.2013). Then, if the victim of any of the above actions is listed in subsection (b), the punishment may be increased. We hold that the three subsections delineating how one can be found guilty of simple assault are not mutually exclusive.

¶ 18. The Court has held that the subsections under aggravated, assault are not mutually exclusive. Stevens v. State, 808 So.2d 908, 920 (¶ 35) (Miss.2002). And the same is true for the subsections of simple assault, found in the same statute. In Stevens, the Court wrote:

Stevens also complains that the indictment should have been dismissed because it did not enumerate the elements of aggravated assault. Stevens argues that without having been informed of the elements of aggravated assault which the State sought to prove at trial, he was unable to adequately prepare his defense. Mississippi] Code [Section] 97-3-7(2) (2000), the aggravated assault statute, provides in pertinent part:
(2) A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm;.... This Court noted in Ward v. State, 479 So.2d 713, 715 (Miss.1985), that this statute may be used to cover “varying factual situations of considerable latitude.” The indictment did not contain a reference to the above statute. However, this Court has stated that aggravated assault has an easily ascertainable statutory definition, and the label “aggravated assault” gives a defendant reasonable notice of what he is charged with even without the code section number. Harbin v. State, 478 So.2d 796, 798 ([Miss.] 1985) (citing Jones v. State, 461 So.2d 686, 692-94 (Miss.1984)). Stevens does not complain of the failure of the indictment to reference § 97-3-7, but takes issue only with the indictment’s failure to specify the particular subsection, (2)(a) or (2)(b). Because Stevens was charged not under a specific single subsection of § 97-3-7(2), it necessarily follows that he was charged under both subsections comprising that section. Stevens was therefore put on notice that he was being charged with aggravated assault under both subsections, i.e., by causing injury under circumstances manifesting extreme indifference to the value of human life and by causing bodily injury with a deadly weapon or other means likely to produce death or serious bodily harm.

Stevens, 808 So.2d at 919-20 (¶¶ 35-36). The Court of Appeals, applying Stevens, reached the same conclusion in Johnson v. State:

We find that Johnson’s actions plainly, clearly, and obviously would qualify as aggravated assault under either subsection (a) or (b) [now 97 — 3—7(2)(a)(i) and (ii) ] of Mississippi Code Annotated § 97-3-7(2), because he (1) used a deadly weapon and (2) caused serious bodily injury through recklessness, manifesting an extreme indifference to human life. Yet, even if there was some doubt about the particular subsection of Mississippi Code Annotated § 97-3-7(2) that was intended to be covered by the indictment, we note that our [S]upreme [C]ourt has held that Mississippi Code Annotated § 97-3-7(2) may be read to cover a “considerable latitude” of varying factual situations. Stevens v. State, 808 So.2d 908, 920 (¶ 35) (Miss.2002). The Stevens [C]ourt also held that one may be simultaneously charged under both subsections of Mississippi Code Annotated § 97-3-7(2); thus, the two subsections are not mutually exclusive. Stevens, 808 So.2d at 920 (¶ 36). The Stevens case supports the finding we alluded to above, namely that the blending of the subsections of this particular statute is not necessarily a defect and in this case does not warrant reversal. See also Stegall v. State, 765 So.2d 606, 614 (¶ 23) (Miss.Ct.App.2000) (Irving, J., concurring).

Johnson v. State, 910 So.2d 1174, 1179-80 (¶ 20) (Miss.Ct.App.2005).

¶ 19. In Harris v. State, another aggravated assault case, the indictment charged that Harris did “recklessly attempt to cause serious bodily injury” to a police officer. Harris v. State, 642 So.2d 1325, 1327 (Miss.1994). Discussing the sufficiency of the indictment, the Court wrote:

As can be readily seen, one violates the statute by simply attempting to cause serious bodily injury. One also violates the statute when one causes serious bodily injury either intentionally or “recklessly under circumstances manifesting extreme indifference to the value of human life.” The indictment mixes the concept of attempt which ... embraces the element of intent, with the concept of actually causing injury through recklessness, which requires no specific intent. The indictment goes on to specify the exact conduct charged and, therefore, standing alone, is salvageable.

Id. Like the indictment in Hams, the indictment at issue mixes the concept of willfulness, or intent, with negligence. However, the indictment clearly charges Hawkins with simple assault of a vulnerable person and specifies the exact conduct charged. The indictment against Hawkins is “salvageable.”

¶ 20. The courts have also held that “the incorrect citation of a statute number does not alone render an indictment defective, but rather is ‘mere surplusage’ and not prejudicial to a defendant.” Shields v. State, 130 So.3d 160, 162 (¶ 12) (Miss.Ct.App.2014) (quoting Brown v. State, 944 So.2d 103, 106 (¶ 8) (Miss.Ct.App.2006)). See also Culp v. State, 933 So.2d 264, 277 (¶¶ 40-41) (Miss.2005) (defendant not prejudiced by citation to wrong subsection); White v. State, 169 Miss. 332, 153 So. 387, 388 (1934) (reference to incorrect statute “was mere surplusage in the indictment” and did not prejudice the defendant). In fact, the Court has held that citing the code section under which the charge is brought is not an absolute requirement, although it is recommended. See Winters v. State, 52 So.3d 1172, 1175 (Miss.2010). See also Culp, 933 So.2d at 277 (¶40) (indictment not required to include citation to specific statute, but should include enough facts to put the defendant “on notice as to the statute that is alleged to have been violated”); Martin v. State, 501 So.2d 1124, 1126 (Miss.1987) (“while it is not always necessary to recite the statute number under which a defendant is being indicted, the better practice is to include it”).

¶ 21. In addition, the Court of Appeals has held that it is not necessary for the indictment to specify a particular subsection of a statute where the subsections provide several variations of the crime. See Shields, 130 So.3d at 162 (¶ 12) (quoting Evans v. State, 916 So.2d 550, 552 (¶ 6) (Miss.Ct.App.2005)) (“When an indictment provides the essential elements of the crime, the statutory subsection under which the defendant was charged need not be specified.”); White v. State, 958 So.2d 241, 244 (¶ 10) (Miss.Ct.App.2007) (same); Brown, 944 So.2d at 106 (¶ 8) (same); Evans v. State, 919 So.2d 231, 236-37 (¶¶ 22-26) (Miss.Ct.App.2005) (no error in form of indictment for shoplifting where it did not specify with which of the five types of actions, set forth in five subsections under Section 97-23-93(2), she was charged); Stewart v. State, 839 So.2d 535, 538 (¶ 12) (Miss.Ct.App.2002) (indictment for burglary was sufficient to provide notice “of the nature of the charge against him and out of what transaction or occurrence it arose despite its failure to note a particular subsection”); Carroll v. State, 755 So.2d 483, 487 (¶ 11) (Miss.Ct.App.1999) (“The indictment’s failure to narrowly focus onto a particular subsection within the section was not necessary to inform Carroll of the essential elements of the crime.”).

¶ 22. If including the code section is not required, as the Court has held, we cannot hold that an indictment must identify the specific subsection. We agree with the previous cases from the Court of Appeals that citing a specific subsection is not required. Further, the Court has held that subsections of aggravated assault are not mutually exclusive, and we hold that the same logic applies to the subsections of simple assault. While the language used in the indictment could have been cleaner, the State is not required to distinguish the subsection under which it brings the charges because the subsections are not mutually exclusive.

Conclusion

¶ 23. The question is not whether Hawkins would have been convicted of the crime as stated in the indictment. The question is whether the indictment gave Hawkins a sufficient description of the charges against her so that she could adequately prepare her defense. See Jones, 856 So.2d at 289 (¶ 11). The indictment clearly charged Hawkins with simple assault of a vulnerable person, provided the code section for simple assault, recited the relevant facts underlying the charge, and included all of the requirements of Rule 7.06. Therefore, we hold that the indictment was sufficient for Hawkins to adequately prepared her defense. Further, the subsections of simple assault are not mutually exclusive and the State was not required to identify which subsection was at issue. The trial court’s grant of Hawkins’s demurrer to the indictment is reversed, and the case is remanded for further proceedings consistent with this opinion.

¶ 24. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, AND PIERCE, JJ„ CONCUR. KING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Yazzie v. State was overruled to the extent it conflicted with State v. Buckhalter, although the Court held that the cases did not actually conflict. State v. Buckhalter, 119 So.3d 1015, 1018-19 (¶¶ 11-13) (Miss.2013).

      . In assault cases, the Court and the Court of Appeals have held that indictments were not defective even where words from both the simple and aggravated assault subsections were used. See Anthony v. State, 349 So.2d 1066, 1067 (Miss.1977) (defendant need only compare the indictment with the statute to know he was charged with aggravated assault rather than simple assault); Toliver v. State, 337 So.2d 1274, 1276 (Miss.1976) (it was clear that defendant was charged only with simple assault, even though indictment included language from both simple and aggravated assault subsections). See also Johnson v. State, 910 So.2d 1174, 1179 (¶ 16) (Miss.Ct.App.2005) (indictment that used “phraseology from both subsections” was not defective).

      . There are exceptions to the general rule, for instance, in an indictment for capital murder "the underlying felony that elevates the crime to capital murder must be identified in the indictment along with the section and subsection of the statute under which the defendant is being charged,” Goff v. State, 14 So.3d 625, 665 (Miss.2009) (citing Bennett v. State, 933 So.2d 930, 952 (Miss.2006); Miss.Code Ann. § 99-17-20).


source: Caselaw Access Project

author: KING, Justice,

license: Public Domain

text:
    Terri BROOME and Paul Broome, v. GENERAL MOTORS, LLC.
    No. 2013-CA-01580-SCT.
    Supreme Court of Mississippi.
    Aug. 14, 2014.

      Shireen Hormozdi, Eric Kaczander, attorneys for appellant.
    Paul V. Cassisa, Jr., Oxford, attorney for appellee.
    Before WALLER, C.J., CHANDLER and KING, JJ.
   KING, Justice,

for the Court:

¶ 1. In today’s case, this Court is presented with an issue of first impression: whether Mississippi Code Section 63-17-159(6) (Rev. 2013), the Motor Vehicle Warranty Enforcement Act, or Mississippi Code Section 75-2-101 (Rev. 2012), et seq. (the Uniform Commercial Code, the “UCC”) is the most analogous state statute to the federal Magnuson-Moss Warranty Act for the purposes of determining the statute of limitations for Magnuson-Moss Act claims filed in Mississippi.

¶ 2. The trial court found that the Motor Vehicle Warranty Enforcement Act was the most analogous state law to the Magnuson-Moss Act and dismissed the plaintiffs’ claim as barred by the statute of limitations. As discussed below, Mississippi’s UCC is the most analogous state statute to the Magnuson-Moss Act. Therefore, the trial court erred in dismissing the plaintiffs’ claim.

FACTS AND PROCEDURAL HISTORY

¶ 3. Paul and Terri Broome (“the Broomes”) purchased a 2010 Chevrolet Equinox from a Chevrolet dealership in April 2010. The vehicle came with a three-year or 36,000 mile warranty. According to the Broomes, the vehicle had various defects which they attempted to have repaired through the dealership. When the dealership was unable to fix the defects, in December 2011, the Broomes filed suit against the manufacturer of the vehicle, General Motors, for breach of written and implied warranty under the Magnuson-Moss Act.

¶ 4. General Motors then filed a motion to dismiss the Broomes’ complaint, alleging that their claims were barred by the statute of limitations. Because the Mag-nuson-Moss Act does not have a statute of limitations, the statute of limitations of the most analogous state law applies. The County Court of the First Judicial District of Jackson County found that the most analogous state statute is the Motor Vehicle Warranty Enforcement Act; which requires an action to be brought either one year after the expiration of the express warranty, or eighteen months after the delivery of the vehicle to the consumer, whichever is earlier. See Miss.Code Ann. § 68-17-159 (Rev. 2018). Because the Broomes filed suit more than eighteen months after delivery of the vehicle, the trial court granted General Motors’ motion to dismiss. The Broomes appealed to the Circuit Court of Jackson County, and the circuit court affirmed the judgment of the county court. The Broomes now appeal to this Court.

ANALYSIS

1. Introduction

¶ 5. The Broomes present one issue on appeal: whether Section 63-17-159(6) or Section 75-2-101, et seq. is the most analogous state statute to the federal Magnu-son-Moss Warranty Act for the purposes of determining the statute of limitations for Magnuson-Moss Act claims in Mississippi.

¶ 6. The Magnuson-Moss Act is a federal private cause of action for breach of warranty and service contract obligations. 15 U.S.C. § 2301, et seq. The Magnuson-Moss Act does not contain a specific statute of limitations. When a federal law creates a cause of action but does not include a statute of limitations, the statute of limitations contained in the most analogous state law applies. See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). If Mississippi Code Section 63-17-159 — the Motor Vehicle Warranty Enforcement Act — is the most analogous state statute to the Magnuson-Moss Act, the claims presented in the Broomes’ complaint are barred. If Mississippi Code Section 75-2-101, et seq. — the UCC — is the most analogous state statute, the claims are not barred because the UCC’s six-year statute of limitations applies.

2. Trial Court’s Findings

¶ 7. The trial court in today’s case found that the most analogous state statute to the Magnuson-Moss Act is Mississippi’s Motor Vehicle Warranty Enforcement Act. In support of its motion to dismiss, General Motors cited Wheeler v. Chrysler Motors Corporation, 1996 WL 408059 (N.D.Miss.1996). In Wheeler, the Northern District of Mississippi was presented with the same issue which is on appeal today, and the district court found that the statute of limitations in the Motor Vehicle Warranty Enforcement Act applied. Id. at *1. Wheeler is the only Mississippi case — state or federal — that addresses the present issue. Wheeler, however, cites Lowe v. Volkswagen of America, Inc., 879 F.Supp. 28 (E.D.Penn.1995); and Lowe held that the UCC — not Pennsylvania’s Lemon Law — was most analogous to the Magnuson-Moss Act. Further, Wheeler does not contain analysis comparing the Motor Vehicle Warranty Enforcement Act and Mississippi’s UCC to the Magnuson-Moss Act. Wheeler, 1996 WL 408059, at *1. The Magnuson-Moss analysis in Wheeler reads, in full:

Magnusorv-Moss Act claim. The Mag-nuson-Moss Act does not contain an express limitations period; therefore, federal courts must apply the time, limit of the most analogous state statute, here, the Motor Vehicle Warranty Enforcement Act. Lowe v. Volkswagen of America, Inc., 879 F.Supp. 28 (E.D.Pa.1995). As set out above, that statute of limitations runs eighteen months after date of delivery of the vehicle. This claim, likewise, is time-barred, and summary judgment will be granted as to any claim under the Magnuson-Moss Act.

Id. Because Wheeler is conclusory and appears to incorrectly cite Lowe, it is not instructive for the issue presented to this Court today. As such, a complete analysis of the Motor Vehicle Warranty Enforcement Act and UCC is necessary.

3. Standard of Review

¶ 8. The issue presented in today’s case requires this Court to interpret the UCC and the Motor Vehicle Warranty Enforcement Act. The interpretation of statutes is a question of law; thus, a de novo standard of review is applied to today’s case. Miss. State Univ. v. People for the Ethical Treatment of Animals, Inc., 992 So.2d 595, 606 (Miss.2008).

4. Motor Vehicle Warranty Act, UCC, and Magnuson-Moss Act

¶ 9. The Motor Vehicle Warranty Enforcement Act applies to motor vehicle purchases and provides consumers with remedies when “the manufacturer or its agent cannot conform the motor vehicle to any applicable express warranty by repairing or correcting any default or condition which impairs the use, market value, or safety of the motor vehicle to the consumer after a reasonable number of attempts .... ” Miss.Code Ann. § 63-17-159(1) (Rev. 2013). The remedies provided are either replacement of the motor vehicle or a refund. Miss.Code Ann. § 63-17-153 (Rev. 2013); see also Miss.Code Ann. § 63-17-159(1). The Motor Vehicle Warranty Enforcement Act, however, is not intended to preclude other remedies: “nothing in Sections 63-17-151 et seq. shall in any way limit the rights or remedies which are otherwise available to a consumer under any other law.” Miss.Code Ann. § 63-17-153. The Motor Vehicle Warranty Enforcement Act includes the following statute of limitations:

Any action brought under Sections 63-17-151 et seq. shall be commenced within one (1) year following expiration of the terms, conditions or limitations of the express warranty, or within eighteen (18) months following the date of original delivery of the motor vehicle to a consumer, whichever is earlier....

Miss.Code Ann. § 63-17-159(6) (Rev. 2013). The Act also allows a prevailing consumer to collect attorneys’ fees. Miss. Code Ann. § 63-17-159(7) (Rev. 2013). There is little caselaw interpreting the Motor Vehicle Warranty Enforcement Act.

¶ 10. Mississippi’s UCC is broader in scope than the Motor Vehicle Warranty Enforcement Act and applies to “transactions in goods.” Miss.Code Ann. § 75-2-102 (Rev. 2012). While the Motor Vehicle Warranty Enforcement Act applies only to express warranties, the UCC applies to both written and implied warranties. See Miss.Code Ann. § 75-2-314 (Rev. 2012). Further, unlike the Motor Vehicle Warranty Enforcement Act, the UCC permits buyers to collect damages for the difference between the contract price and the value of the non-conforming goods:

The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.

Miss.Code Ann. § 75-2-714(2) (Rev. 2012). Buyers also may collect incidental damages under the UCC. Miss.Code Ann. § 75-2-715(1) (Rev. 2012). The UCC contains a six-year statute of limitations. Miss.Code Ann. § 75-2-725 (Rev. 2012). The UCC does not include a provision for the award of attorneys’ fees. Mississippi courts have applied provisions of the UCC to breach-of-warranty claims involving the purchase of new motor vehicles. See Royal Lincoln-Mercury Sales, Inc. v. Wallace, 415 So.2d 1024 (Miss.1982).

¶ 11. The Magnuson-Moss Warranty Act governs written warranties on consumer products. “The purpose of the [Magnuson-Moss] Warranty Act is to regulate written warranties on consumer goods and to provide injured consumers with a cause of action against manufacturers who fail to comply with its requirements.” Edwards v. Hyundai Motor Am., 163 S.W.3d 494, 499 (Mo.App.2005) (citing Price v. Freedom Ford, Inc., 46 Va. Cir. 129, 131, 1998 WL 34178676 (1998)). Like the UCC, the Magnuson-Moss Warranty Act is broad in its application and applies to any consumer product, including motor vehicles. See id.

¶ 12. In today’s case, to support its contention that the Motor Vehicle Warranty Enforcement Act is the most analogous Mississippi statute to the Magnuson-Moss Act, General Motors highlights several similarities between the Motor Vehicle Warranty Enforcement Act and the Mag-nuson-Moss Act. Specifically, General Motors draws attention to the following:

• The Magnuson-Moss Act and the Motor Vehicle Warranty Enforcement Act both permit the award of attorneys’ fees, while the UCC does not. Miss.Code Ann. § 63-17-159(7); 15 U.S.C. § 2310(d)(2).
• The Magnuson-Moss Act and the Motor Vehicle Warranty Enforcement Act both create a cause of action for breach of warranty when a manufacturer cannot comply with an express or written warranty obligation. Miss.Code Ann. § 63-17-157 (express warranty); 15 U.S.C. § 2310(d)(1) (written warranty).
• Both statutes encourage the use of alternate dispute resolution. Miss. Code Ann. § 63-17-163; 15 U.S.C. § 2310(a).

¶ 13. The Broomes respond to General Motors’ comparison by noting similarities between the Magnuson-Moss Act and the UCC and distinguishing the Motor Vehicle Warranty Enforcement Act; specifically:

• The Motor Vehicle Warranty Enforcement Act requires consumers to prove that the vehicle’s defect “impairs the use, market value, or safety of the motor vehicle.” Miss.Code Ann. § 63-17-159(1). The UCC and Magnuson-Moss Act do not contain such a requirement.
• The Motor Vehicle Warranty Enforcement Act requires that a “reasonable number of attempts” be made to conform the vehicle to the express warranty prior to bringing suit under the statute. Miss.Code § Ann. 63-17-159(3). The UCC and Magnuson-Moss Act do not contain this requirement.

¶ 14. General Motors contends that the remedies available under the Magnuson-Moss Act are similar to those available under the Motor Vehicle Warranty Enforcement Act (replacement or refund). See 15 U.S.C. § 2304(a)(4); Edwards, 163 S.W.3d at 500 (The Magnuson-Moss Act provides for the remedies “of repair, replacement, or refund.”). The Broomes, however, contend that the remedies available to a consumer under the Magnuson-Moss Act are similar to those in the UCC when the claim is for breach of express limited warranty, which is the Broomes’ claim. See MacKenzie v. Chrysler Corp., 607 F.2d 1162, 1166 (5th Cir.1979) (quoting Miss.Code Ann. § 75-2-714(2) (Rev. 2012)) (finding that UCC remedy of “the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted” is available remedy for Magnuson-Moss claim).

¶ 15. Clearly, both the Motor Vehicle Warranty Enforcement Act and the UCC have elements in common with the Magnu-son-Moss Act. When other courts have considered the question presented in today’s case, they have found consistently that their states’ UCC is the most analogous state statute to the Magnuson-Moss Act. In Edwards, 163 S.W.3d at 500, the Missouri Court of Appeals compared Missouri’s UCC and Missouri’s Lemon Law and found that the UCC was most analogous to the Magnuson-Moss Act because the UCC and the Magnuson-Moss Act both apply to a broad category of any consumer product, rather than only motor vehicles. The court further considered that the Missouri Lemon Law expressly states that it is not intended to “limit the rights or remedies which are otherwise available to a consumer at law or in equity.” Id. at 498 (quoting Mo.Rev.Stat. § 407.569). Notably, Mississippi’s Motor Vehicle Warranty Enforcement Act includes a similar provision. Miss.Code Ann. § 63-17-153. In addition, the court found the Magnuson-Moss Act and UCC were similar because they both provided remedies for implied warranties, while Missouri’s Lemon Law does not. Edwards, 163 S.W.3d at 500. For comparison, Mississippi’s Motor Vehicle Warranty Enforcement Act applies only to express warranties. Miss.Code Ann. §§ 63-17-157 to -159. Finally, the court found that application of Missouri’s eighteen-month, Lemon-Law statute of limitations was incompatible with the issuing of new-car warranties:

Seller’s argument fails because applying the statute of limitations found in the Lemon Law to all breach of warranty claims would essentially render virtually all new car warranties fraudulent. Although a dealer may entice purchasers with a promise of a six-year or 72,000 mile bumper to bumper warranty, such a warranty would be a fraud because it would be unenforceable unless suit is filed within eighteen months from delivery of the vehicle. This effect simply could not have been what the legislature intended when it enacted the Lemon Law.

Id.

¶ 16. Like Edwards, in Hillery v. Georgie Boy Manufacturing, Inc., 341 F.Supp.2d 1112, 1114-15 (D.Ariz.2004), the district court found that Arizona’s UCC— not Arizona’s Motor Vehicle Warranty Act — was the most analogous state statute to the Magnuson-Moss Act because the UCC and the Magnuson-Moss Act both apply to all consumer goods, while the Motor Vehicle Warranty Act applies only to motor vehicles. Further, in Murungi v. Mercedes Benz Credit Corp., 192 F.Supp.2d 71, 78-79 (W.D.N.Y.2001), the district court found that the New York UCC was the most analogous state statute to the Magnuson-Moss Act because the scope of consumer protection under the Magnuson-Moss Act is similar to that of the UCC. The Eastern District of Pennsylvania in Lowe, 879 F.Supp. at 30, held that Pennsylvania’s UCC was the most analogous state statute to the Magnuson-Moss Act because both laws concern “rules for warranties of consumer products.” See also Brown v. General Motors Corp., 14 So.3d 104 (Ala.2009) (recognizing that limitations period in Alabama’s UCC applied to car buyer’s Magnuson-Moss Act claim against car manufacturer); Mydlach v. DaimlerChrysler Corp., 226 Ill.2d 307, 314 Ill.Dec. 760, 875 N.E.2d 1047, 1055 (2007) (“In suits brought under the Magnuson-Moss Act, our appellate court, as well as courts in other jurisdictions, generally consider the UCC to be the most closely analogous statute and have borrowed the limitations provisions contained therein.”); Pender v. DaimlerChrysler Corp., 2004 WL 2191030, at *4 (Del. July 30, 2004) (finding that the statute of limitations in Delaware’s UCC applies to Magnuson-Moss claims); Poli v. DaimlerChrysler Corp., 349 NJ.Super. 169, 793 A.2d 104, 111 (2002) (“[T]he statutory cause of action that is most analogous to a claim under the [Magnuson-Moss] Act is a breach of warranty claim under the UCC.... ”); Keller v. Volkswagen of America, Inc., 733 A.2d 642, 644 (Pa.1999) (finding that UCC statute of limitations applied to Magnuson-Moss claim); Snyder v. Boston Whaler, Inc., 892 F.Supp. 955, 960 (W.D.Mich.1994) (“[Borrowing the state Uniform Commercial Code statute of limitations would not frustrate the remedial policies of Magnu-son-Moss.”).

¶ 17. Although this Court has not addressed the specific issue presented in today’s case, we have discussed the relationship of the Magnuson-Moss Act and the UCC. In Guerdon Industries, Inc. v. Gentry, 531 So.2d 1202, 1205 (Miss.1988), this Court, when discussing an express warranty issued during the sale of a mobile home, stated: “The area of express warranty law is governed by the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C.A. §§ 2301-2312 (1982) ... and various provisions of the Uniform Commercial Code, as codified under Mississippi Law.” In Royal Lincoln-Mercury Sales, Inc. v. Wallace, 415 So.2d 1024, 1027 (Miss.1982), this Court recognized that the elements of proof for a breach-of-warranty claim under the Magnuson-Moss Act are the same as the elements of proof required'for a UCC breach-of-warranty claim. The Fifth Circuit has held that, because the Magnuson-Moss Act “is virtually silent as to the amount and type of damages which may be awarded for breach of an express limited warranty,” the measure of damages provided by the UCC is applied to these claims under the Magnuson-Moss Act. MacKenzie, 607 F.2d at 1166 (applying Mississippi law).

¶ 18. Although the Motor Vehicle Warranty Enforcement Act does share some characteristics with the Magnuson-Moss Act, when the statutes as a whole are compared to the Magnuson-Moss Act, the UCC is most analogous. The UCC and Magnuson-Moss Act are similar in scope, including claims for any consumer product, rather than the Motor Vehicle Warranty Enforcement Act’s limited application to motor vehicles. Further, the UCC and Magnuson-Moss Act apply to implied and express warranties; again, the Motor Vehicle Warranty Enforcement Act is limited in its application to only express warranties. Finally, the Motor Vehicle Warranty Enforcement Act expressly states that it does not “in any way limit the rights or remedies which are otherwise available to a consumer under any other law.” Miss. Code Ann. § 63-17-153. Thus, the Legislature likely intended for consumers to be able to bring claims similar to the Broomes’ for breach of warranty under statutes other than the Motor Vehicle Warranty Enforcement Act.

CONCLUSION

¶ 19. For the reasons discussed above, Mississippi’s UCC is the most analogous state statute to the Magnuson-Moss Act. As such, the UCC’s six-year statute of limitations applies to the Broomes’ Magnu-son-Moss Act claim. Because the six-year statute of limitations applies, the trial court erred in dismissing the Broomes’ claim. Accordingly, we reverse the trial court’s judgment and remand the case to the County Court of the First Judicial District of Jackson County for further proceedings.

¶ 20. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE AND COLEMAN, JJ., CONCUR.

      . It should be noted that cases from other jurisdictions discussing similar state statutes refer to such statutes as “Lemon Laws.” For purposes of clarity and continuity with the statute’s title, Sections 63-17-155 to -165 are referred to by their title — the Motor Vehicle Warranty Enforcement Act.


author: CHANDLER, Justice, COLEMAN, Justice,

text:
    Weissenger NEWBERRY, III a/k/a Weissenger Newberry v. STATE of Mississippi.
    No. 2012-KA-01910-SCT.
    Supreme Court of Mississippi.
    Aug. 21, 2014.

      Wanda Abioto, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before WALLER, C.J., CHANDLER and KING, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. On appeal of Weissenger Newber-ry’s felony convictions, we reverse and remand for a new trial due to the trial court’s and counsel’s failure to comply with Mississippi Rule of Appellate Procedure 46 governing the admission of foreign attorneys to practice pro hac vice. Most significantly, the trial court erred in waiving the now-mandatory requirement that associated local counsel be present at trial.

FACTS AND PROCEEDINGS BELOW

¶ 2. In 2011, Newberry was pulled over for suspicion of driving under the influence (DUI) after an officer observed him weaving between lanes. He resisted arrest and subsequently was indicted on two counts of assaulting a law-enforcement officer, possession of marijuana, possession of cocaine, and a first DUI. The indictment later was amended to reflect his habitual-offender status. The assault charges eventually were dropped.

¶ 3. Newberry engaged Gerald S. Green, a Tennessee attorney, to represent him. A scheduling order of May 14, 2012, listed Green as attorney of record. On June 15, 2012, Green submitted a verified application and affidavit to appear pro hac vice, listing the enumerated requirements of Mississippi Rule of Appellate Procedure 46(b)(5), including the statement that Green “has associated Attorney Daniel 0. Lofton, a member in good standing of the Mississippi Bar as local counsel in this case.... ” The application included a Certificate of Local Attorney signed by Daniel Lofton and a Certificate of Payment for the pro hac vice fee of $200 to the Clerk of the Mississippi Supreme Court. This was the complete extent of Lofton’s involvement in the case.

¶ 4. Also on June 15, 2012, Green submitted a Motion to Dismiss Prosecution and a Request for Discovery on Newber-ry’s behalf. These two motions were signed and submitted only by Green. Additionally, Green’s bar number as listed next to his signature on these motions did not indicate in which state Green was licensed.

¶ 5. Green represented Newberry at an August 7, 2012, hearing in which the court denied the Motion to Dismiss and granted the State’s Motion to Amend the Indictment charging Newberry as a habitual offender under Mississippi Code Section 99-19-81. Green had not at that time been approved to proceed pro hac vice, and associated attorney Lofton was not present at the hearing. The court subsequently denied an August 17, 2012, Motion to Continue Trial filed by Green.

¶ 6. The trial occurred on August 22, 2012. After the jury was selected, the court approved Green’s application to proceed pro hac vice and waived the requirement that local counsel be present during trial. The State had no objection to the trial proceeding without the presence of local counsel. The portion of the transcript from the start of trial granting Green’s pro hac vice application and permitting the trial to move forward without the presence of local counsel reads as follows:

[STATE]: Your Honor, as a preliminary matter ... [i]t’s my understanding that the Supreme Court has approved him to proceed pro hac vice in the Mississippi court. The state has no objection to that.
Further, it’s my understand of the rule that local counsel is not here. The rule expressly allows the defendant defense counsel to proceed without local counsel if the judge expressly allows that or makes a ruling as such. The state has no objection whatsoever to Mr. Green proceeding without local counsel being present.
THE COURT: All right. It’s my understanding from looking at the court file myself that Mr. Green has complied with the Mississippi rules concerning the admission pro hac vice, and I do hereby rule that he is an attorney in good standing in Shelby County and has been accepted for practice here pursuant to our court rules.
He has paid the necessary fees to the State of Mississippi and to the Mississippi bar, and I’m going to excuse the local counsel from being here participating. ...

¶ 7. After a one-day trial, Newberry was convicted of possession of marijuana, possession of cocaine, and first-offense DUI. Evidence was submitted showing that Newberry’s blood alcohol level several hours after arrest was 0.13. In addition to the testimony of officers present at the scene, the dash-cam video of the incident was shown to the jury.

¶ 8. The Supreme Court never received an order approving Green’s admission to proceed pro hac vice. Green stated at the post-trial motions hearing that “I didn’t submit any order. I didn’t think anything else was required after we had our proceedings in this court. They [Mississippi Supreme Court Clerk] sent back the cases that I had been in, and they approved that I had paid the money.”

¶ 9. Daniel Lofton, the associated attorney, testified at the post-trial motions hearing that he understood his role and obligations to be limited to certifying that Green was an attorney in good standing in Tennessee on Green’s pro hac vice application, and that he would be notified if his involvement was further required. Lofton never met or communicated with Newber-ry. Lofton stated that

Mr. Green is an experienced counsel, and I acted discretionarily under his advice .... I saw none of [the documents/motions filed on Newberry’s behalf] nor was I aware that this matter was going to trial, nor was I aware of the seriousness with which — the charges which Mr. Newberry, faced, especially the habitual offender issue. I had no idea... I basically certified that Gerald Green was an attorney in good standing to the best of my knowledge, which I have direct knowledge of being a Tennessee attorney, as well, no, like I said, I was not part of the contract for services with Mr. Newberry. I didn’t have any arrangement with him to be compensated.

At the post-trial motions hearing, Newber-ry asserted that he never knew Green was not licensed to practice in Mississippi. This contradicts Green’s testimony that he told Newberry up front that he could not practice in Mississippi unless he was admitted pro hac vice and followed the rules governing admission. Newberry hired a new attorney immediately following the trial and was represented by the new attorney at the post-trial motions hearing, sentencing hearing, and on this appeal.

DISCUSSION

¶ 10. Deprivation of counsel and pro hac vice requirements are questions of law, which we review de novo. In re Williamson, 838 So.2d 226, 233 (Miss.2002).

I. Newberry was not denied counsel under the Sixth Amendment.

¶ 11. Newberry argues that he was denied counsel under the Sixth Amendment due to Green’s failure to comply with the requirements to practice pro hac vice, and in particular due to the absence of local counsel at trial. But failure of an out-of-state attorney to comply with the rules for pro hac vice admission is not a per se deprivation of counsel under the Sixth Amendment. Cole v. U.S., 162 F.3d 957, 958 (7th Cir.1998). Addressing a situation where a nonlocal lawyer had provided representation, the Seventh Circuit stated:

The right to the representation of counsel implies some minimum standard of competence, but “the key to adequate representation is not technical license to practice in the jurisdiction involved, but a credential from some forum demonstrating the specialized knowledge of a lawyer.” ... Thus, whether a lawyer has been admitted to practice in the local jurisdiction is not of constitutional dimension.

Id. (quoting U.S. v. Maria-Martinez, 143 F.3d 914, 917 (5th Cir.1998)). The court further observed:

As a general matter, only a few circumstances give rise to a per se violation of the Sixth Amendment right to counsel: no counsel present at all, or counsel not present at critical stages; complete failure to cross-examine or subject the opposing case to the adversarial process; an actual conflict of interest; and failure to file a requested appeal. The Supreme Court has described these as “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”

Id. (quoting U.S. v. Cronic, 466 U.S. 648, 658,104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)). See also U.S. v. Sanders, 377 F.3d 845 (8th Cir.2004) (holding that failure to adhere to formal pro hac vice procedures was not failure to appoint counsel under Sixth Amendment).

¶ 12. Here, Green was a licensed, competent, practicing attorney in Tennessee. Therefore, his failure to satisfy the pro hac vice requirements does not constitute a per se structural violation of the Sixth Amendment.

II. Failure to Comply with Mississippi Rule of Appellate Procedure 46

¶ 13. Green did not completely satisfy the requirements for pro hac vice admission before acting to represent New-berry, and the trial court clearly erred in allowing the trial to proceed without the presence of local counsel.

¶ 14. Rule 46(b)(7) states:

A foreign attorney shall not appear as counsel pro hac vice before any court or administrative agency until the foreign attorney certifies to the court or administrative agency that the foreign attorney has provided a copy of the order authorizing such appearance to the Clerk of the Supreme Court.

¶ 15. The trial court did not authorize Green to practice pro hac vice until well after Green had represented Newberry by filing motions on Newberry’s behalf without listing associated counsel and by representing him in person at pretrial hearings. Additionally, Green should have certified to the trial court that the Clerk of the Supreme Court had been provided a copy of the order authorizing his appearance before he acted to represent Newberry.

¶ 16. The trial court erred in waiving the now-mandatory requirement that associated local counsel be present at trial. As established by the 2003 amendments and comments to Rule 46, the presence of local counsel at trial is now mandatory and may not be excused by the trial judge. Rule 46(b)(4) states:

No foreign attorney may appear pro hac vice before any court or administrative agency of this state unless the foreign attorney has associated in that cause a local attorney. The name of the associated local attorney shall appear on all notices, orders, pleadings, and other papers filed in the cause. The local attorney shall personally appear and participate in all trials, and, unless specifically excused from such appearance by the court or administrative agency, in all pretrial conferences, hearings, other proceedings conducted in open court and all depositions or other proceedings in which testimony is given in this state. By associating with a foreign attorney in a particular cause, the local counsel accepts joint and several responsibility with such foreign attorney to the client, to opposing parties and counsel, and to the court or administrative agency in all matters arising from that particular cause.

M.R.A.P. 46(b)(4) (emphasis added). The comment to Rule 46 states in part:

As amended in 2003, Rule 46(b)(4) departs from prior practice and now requires that associated local counsel personally appear and participate in all depositions or other proceedings in which testimony is given in this state, in addition to all trials, pretrial conferences, hearings other proceedings conducted in open court. The local attorney may be specifically excused by the judge from attending proceedings other than trials.

M.R.A.P. 46 cmt. (emphasis added).

¶ 17. The rule imposes a mandatory requirement that “the local attorney shall personally appear and participate in all trials.” The trial court held that the rule can be read to allow the trial court to excuse the local attorney’s presence at trial. This reading is untenable. The mandatory requirement that “the local attorney shall personally appear and participate in all trials” is structured to stand independent from the subsequent list of proceedings the local attorney must also attend unless excused by the court. M.R.A.P. 46(b)(4). The phrase “and, unless specifically excused from such appearance by the court ...” is a qualifier to the subsequent list of proceedings, a list that does not include “trial.” Id. The phrase “such appearance” does not refer back to the term “trial” in the initial clause of the sentence, but rather refers to the subsequent list of proceedings. The comment clarifies matters and expressly states, “[t]he local attorney may be specifically excused by the judge from attending proceedings other than trials.” M.R.A.P. 46(b)(4) cmt. (emphasis added).

¶ 18. As explained by the comment, by enacting the 2003 amendments to Rule 46, this Court made a deliberate choice to “depart from prior practice” and significantly increase the required involvement of associated local counsel. M.R.A.P. 46 cmt. This heightened-involvement requirement promotes the policy of ensuring that defendants are adequately represented by counsel knowledgeable and experienced in local court rules and practice. Id. Green’s representation did not comply with this requirement, and the trial court clearly erred in interpreting the rule to permit the waiver of local counsel at trial.

¶ 19. We have found strict compliance with Rule 46 appropriate in circumstances where local counsel was absent from the representation. In Taylor v. General Motors Corp., 717 So.2d 747 (Miss.1998), this Court held that the trial court acted appropriately when it struck the plaintiffs complaint because the pro hac vice attorney had not complied with Rule 46 admission requirements and had failed to associate local counsel. In Dinet v. Gavagnie, 948 So.2d 1281, 1284 (Miss.2007), this Court reversed the trial court’s decision to strike pleadings where, even though the name of a foreign attorney who had failed to obtain admission pro hac vice was on the filings, a local attorney had been substituted as counsel and the local attorney’s name was also on the filing. The Court distinguished Dinet from Taylor by pointing out that, in Taylor, “the plaintiffs were represented by only a foreign attorney, who had not been properly admitted pro hac vice.” Dinet, 948 So.2d at 1285.

¶ 20. In Martin v. State, 749 So.2d 375 (Miss.Ct.App.1999), a case decided before the 2003 amendments, the Court of Appeals declined to reverse a guilty plea where associated local counsel was present at the plea hearing but the defendant’s second, pro hac vice attorney was absent. The court stated:

[the pro hac vice attorney] did not appear at the guilty plea hearing. Instead, local counsel, Robert Evans, was present when Martin entered his plea of guilty at the hearing. It is undisputed in the record that Evans was a local attorney who was familiar with the local rules and practice in this area of law. The argument that [the pro hac vice attorney] had not met the requirements of M.R.A.P. 46 in no way impedes the validity of the guilty plea entered by Martin.

¶ 21. Despite the submission of Lofton’s “Certificate of Local Attorney” with Green’s pro hac vice application, Newberry was, for all practical purposes, “represented only by a foreign attorney, who had not been properly admitted pro hac vice.” See Dinet, 948 So.2d at 1285. Consistent with this Court’s precedent and the policies behind amending the rules to required heightened involvement of local counsel, and unlike the scenarios in Martin and Dinet, the involvement of local counsel is not present as a potential mitigating factor to compensate for Green’s failure to satisfy the Rule 46 requirements. Not only did associated local counsel not appear at trial, he was not even aware of the filings made, of the nature of the charges against New-berry (including his habitual-offender status), or even that the case was going to trial.

¶ 22. The State argues that New-berry waived his right to challenge the Rule 46 violation because Newberry allowed Green to represent him at trial knowing that Green was not a Mississippi attorney. But waiver requires that the party knew or with reasonable diligence may have discovered the violation and yet still permitted the representation to proceed. See Terrell v. Tschirn, 656 So.2d 1150 (Miss.1995). Here, at trial, the trial judge, the State, and Newberry’s attorney all represented to Newberry that the absence of local counsel at trial was not a violation, and that Green had complied with all of the requirements for pro hac vice admission. In the face of that representation, Newberry could not be expected to have the requisite knowledge of the violation for a finding of waiver. He also would have no mechanism for objecting to the violation that occurred at trial (since his noncompliant attorney would be his mechanism for objecting), and he did challenge the violation (with a new attorney) at the first post-trial opportunity, the post-trial motions.

¶ 23. We held, in the context of pretrial Rule 46 violations and prior to the 2003 amendments to the rule, in the context of pretrial activity, that “where a party knows or with reasonable diligence may have discovered the Rule 46 violation, the failure to file a motion prior to trial acts as a waiver and procedurally bars him from raising the issue on appeal.” Terrell v. Tschirn, 656 So.2d 1150 (Miss.1995). We are not overruling Terrell, but rather supplementing it in the context of violations that occurred at trial, not merely pretrial, where all parties at trial represented that no violation occurred, and in consideration of the 2003 amendments to the rules.

¶ 24. Our enforcement of Rule 46 goes not only toward protecting clients’ rights, but toward enforcing both society’s and the profession’s respect for this Court and the processes that have been established for seeking redress. Both principles are weakened if a finding of waiver is as simple as a defendant’s awareness that he is represented by an outside attorney, where the trial judge, the State, and the defendant’s attorney all represented that the attorney was in compliance with the rules governing foreign attorney admission. The presence of local counsel may cover a multitude of pro hac vice sins when evaluating prejudice to a defendant, but this Court will take very seriously pro hac vice violations that involve the absence of local counsel.

¶ 25. We hold that, under this set of facts, Newberry did not waive his right to challenge the Rule 46 violation, and that the seriousness of the violation in failing to have local counsel involved at all and especially at trial warrants reversal of Newber-ry’s convictions.

¶ 26. Newberry also argues that his sentencing as a habitual offender is reversible due to the trial court’s failure to admit proof of his prior convictions into evidence at the sentencing hearing, as well as the trial court’s failure to treat the sentencing hearing as the appropriate time for the defendant to challenge the competency of those records with evidence and testimony. See Grayer v. State, 120 So.3d 964 (Miss.2013). Since we are reversing the underlying convictions, we do not address the merits of this argument. Because the conviction is not reversed on grounds of insufficiency of the evidence, jeopardy will not be an issue at sentencing should Newberry be convicted again. See U.S. v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); Denton v. Duckworth, 873 F.2d 144 (7th Cir.1989).

¶ 27. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON, P.J., KITCHENS AND KING, JJ., CONCUR. COLEMAN, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., LAMAR AND PIERCE, JJ.

COLEMAN, Justice,

concurring in part and dissenting in part:

¶ 28. I agree with the majority’s opinion that Newberry was not denied counsel under the Sixth Amendment. I also agree that Green did not comply with the requirements for pro hac vice admission as dictated in Mississippi Rule of Appellate Procedure 46, specifically the requirement that local counsel be present at trial. However, I disagree that the failure to follow Rule 46 constitutes ineffective assistance of counsel per se when the defendant is unaware that his counsel is not licensed to practice law in Mississippi nor admitted pro hac vice, requiring reversal in the instant case. Nonetheless, because the State failed to properly provide evidence supporting Newberry’s status as a habitual offender, I would reverse the trial court’s imposition of the habitual offender sentence enhancement. Finally, the trial court, within its discretion, properly allowed Officer Scallorn to testify on whether Newberry was under the influence. Therefore, I respectfully concur in part and dissent in part.

I. Pro Hac Vice Admission and Rule 46 of the Mississippi Rules of Appellate Procedure

¶ 29. Mississippi Rule of Appellate Procedure 46 controls the admission, withdrawal, and discipline of attorneys, including pro hac vice admissions. Miss. R. App. P. 46. As the majority correctly lays out, Rule 46 lists several requirements for proper pro hac vice admission, including that a foreign attorney “shall not appear as counsel pro hac vice before any court ... until the foreign attorney certifies to the court ... that the foreign attorney has provided a copy of the order authorizing such appearance to the Clerk of the Supreme Court.” Miss. R. App. P. 46(b)(7). Yet, in the instant case, Green was not authorized by the trial court until he had represented Newberry by filing motions on his behalf, and he testified in post-trial proceedings that he never submitted an order admitting him pro hac vice to the Mississippi Supreme Court. Further, it is clear that Green did not comply with the requirements of Rule 46 that local counsel be present at trial. Miss. R. App. P. 46(b)(4) (allowing the Court to excuse local counsel from appearing in pretrial conferences, hearings, and other procedures, but not allowing the Court to excuse local counsel from appearing at trial).

¶ 30. While I concur with the majority that Green violated Rule 46, I respectfully dissent as to the reversal of the defendant’s conviction. Rule 46 contains a section spelling out exactly how Rule 46 should be enforced:

ii. By Courts and Administrative Agencies. The courts ... of this state shall have the duty and authority to enforce the provisions of this rule by denying violators the right to appear. If a foreign attorney engages in professional misconduct during the course of a special appearance, the judge ... may revoke permission to appear pro hac vice and may cite the foreign attorney for contempt. In addition, the judge ... shall refer the matter to the disciplinary counsel of the Mississippi Bar for appropriate action by the disciplinary tribunal.
iii. Violation. Violation of this rule is deemed to be the unlawful practice of law. The Mississippi Bar, or its designated representatives, shall have the right to take appropriate action to enforce the provisions of this rule under the provisions of Miss.Code Ann. § 73-51-1 (1989).

Miss. R. App. P. 46(b)(ll). Nowhere in Rule 46, or elsewhere in our law, is there a provision that states that violation of Rule 46, whether or not the client is aware, equates in and of itself to a violation of an accused’s right to counsel. As the State points out, in Terrell v. Tschirn, 656 So.2d 1150 (Miss.1995), we wrote as follows:

Where a party knows or with reasonable diligence may have discovered the Rule 46 violation, the failure to file a motion prior to trial acts as a waiver and proee-durally bars him from raising the issue on appeal. Terrell should not be allowed to take his chances with a jury and then, after he loses, file his motion. See Buchanan v. Buchanan, 587 So.2d 892, 897 (Miss.1991) (party who knew of grounds for judge’s recusal could not wait until after adverse verdict to file a motion, the point is deemed waived). See also Ryals v. Pigott, 580 So.2d 1140, 1175-76 (Miss.1990); City of Biloxi v. Cawley, 332 So.2d 749, 750 (Miss.1976).

Id. at 1152. In Terrell, a party was represented by an attorney licensed in Louisiana but not in Mississippi. Id. The Louisiana-licensed attorney never obtained pro hac vice admission, and on appeal his client argued that all pleadings signed by him should be struck. Id. Pursuant to the above-quoted reasoning, we held Terrell to be barred from complaining about the failure of his attorney to obtain pro hac vice admission. In the case sub judice, one of the Rule 46 violations of which Newberry complains is that his counsel was allowed to proceed at trial without local counsel present. Clearly, he had reason to know of the Rule 46 violation prior to the start of trial. Absent some sort of showing that his counsel was constitutionally ineffective pursuant to Strickland,, discussed below, he waived any Rule 46 violation.

¶ 31. The majority, discussing Little v. State, 819 N.E.2d 496, 508 (Ind.Ct.App.2004), also appears to hold that the appearance by foreign counsel amounts to per se ineffective assistance of counsel, but I disagree. In Mississippi, ineffective assistance of counsel claims are analyzed pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Parker v. State, 30 So.3d 1222, 1233 (¶ 37) (Miss.2010); Holly v. State, 716 So.2d 979, 989 (Miss.1998). A strong, albeit rebuttable, presumption exists that trial counsel performed in a competent manner and within the broad spectrum of reasonable conduct that one might expect from a trial attorney. Parker, 30 So.3d at 1233 (¶ 37). To successfully rebut the presumption, a defendant must demonstrate that “his attorney’s performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial.” Id. “Only where it is reasonably probable that but for the attorney’s errors, the outcome of the trial would have been different, will we find that counsel’s performance was deficient.” Id.

¶ 32. Based on my review of his brief, the defendant makes no attempt to rebut the presumption that his trial counsel acted competently. He points to no part of the record that shows his defense suffered due to any ignorance of Mississippi law or procedure on the part of his trial attorney. Neither the defendant nor the majority cites the Stnckland standard. The instant case provides a remarkable example of a violation of our rules prohibiting the practice of law by an unlicensed attorney, but I am unwilling to create an exception to our well-settled adherence to Strickland. See United States v. Maria-Martinez, 143 F.3d 914, 916-17 (5th Cir.1998) (declining to apply a per se ineffectiveness rule in situations involving unlicensed attorneys); see also United States v. Mitchell, 216 F.3d 1126 (D.C.Cir.2000) (holding that suspension of an attorney does not, by itself, render counsel per se ineffective under the Sixth Amendment, and that the Strickland analysis still applies); United States v. Ross, 338 F.3d 1054, 1056-57 (9th Cir.2003) (suspension from practice prior to start of petitioner’s criminal trial is not per se ineffective assistance); United States v. Mouzin, 785 F.2d 682, 698 (9th Cir.1986) (disbarment during petitioner’s criminal proceedings did not violate Sixth Amendment right to effective assistance of counsel); United States v. Hoffman, 733 F.2d 596 (9th Cir.1984) (suspension from practice does not automatically violate Sixth Amendment right to effective assistance of counsel).

¶ 33. Because the majority opinion does not reach Newberry’s remaining arguments on appeal as a result of the decision to reverse on the Rule 46 violation, it is necessary to briefly discuss the remaining issues here. In addition to his Rule 46 and Sixth Amendment arguments, Newberry argues that the trial court erred in failing to admit proof of his prior convictions into evidence during sentencing and that the trial court erred in admitting the opinion testimony of Officer Jason Scallorn.

II. Habitual Offender Status

¶ 34. Evidence supporting an habitual offender enhancement imposed pursuant to Mississippi Code Section 99-19-81 must be introduced and made a part of the record of the sentencing hearing. Young v. State, 507 So.2d 48, 50 (Miss.1987). Uniform Rule of Circuit and County Court Practice 11.03(2) requires the trial court to hold a separate trial on the charge of previous convictions. “The state has the same burden of proof as to the habitual offender portion of the indictment as it has on the principal charge. The defendant also has the same rights at both stages of trial.” Young, 507 So.2d at 50 (quoting Seely v. State, 451 So.2d 213, 215 (Miss.1984)).

¶ 35. In Young, the State introduced— during the sentencing hearing — documentary evidence showing that one “Louis Young” had three prior felony convictions. Young, 507 So.2d at 49. Counsel for the defendant, Lewis Oscar Young, objected on the basis that the State never established that the Louis Young named in the documents was the same man as his client. Id. In overruling the objection, the trial judge relied on testimony elicited from the defendant during the guilt phase of the trial, wherein the defendant testified that he was convicted of the three offenses. Id. The Young Court, describing the sentencing procedure as “seriously deficient,” reversed because the testimony upon which the judge relied in overruling the defendant’s objection was never introduced into evidence at the sentencing hearing. Id. at 50.

¶ 36. In the case sub judice, certified copies of Newberry’s convictions, or pen pack, had been attached to the State’s pretrial motion to amend the indictment. At sentencing, the prosecutor offered them into evidence and noted that they had been attached to the earlier-filed motion to amend. As in Young, the defendant contended that the convictions detailed in the pen pack were of someone else. Defense counsel indicated that she wished to place her client on the stand to testify as to whether or not the convictions found in the pen pack pertained to him, to which the trial judge responded, “Well, they’ve already been admitted into evidence, so I’ll have to accept them as they are, ma’am.” However, our review of the record and exhibits reveals that they were not, in fact, introduced into evidence, nor did the trial judge incorporate them into the record by reference. Despite an attempt by defense counsel to inform the court that the pen pack had not been introduced, the trial judge continued to proceed under the mistaken impression that it had.

¶ 37. Young and its predecessor, Seely v. State, 451 So.2d 213 (Miss.1984), clearly stand for the proposition that “[ejvidence which is not admitted cannot be considered proof in the case,” Alphonso v. Deshotel, 417 S.W.3d 194, 201 (Tex.Ct.App.2013). The Seely Court wrote:

A jury is to decide the question of guilt and subsequently the circuit judge is to serve as the finder of fact in determining whether the habitual offender part of the indictment is established by the requisite degree of proof. The state has the same burden of proof as to the habitual offender portion of the indictment as it has on the principal charge. The defendant also has the same rights at both stages of trial. There appears to be some tendency to routinely allow the state to produce some documentation of prior offenses and for the trial court to perfunctorily find the defendant an habitual offender, then routinely pass out the sentence mandated by § 99-19-81. We wish to leave no doubt that the requirement of a bifurcated trial means a full two-phase trial prior to any finding that a defendant is an habitual offender and subject to enhanced punishment. Further, a complete record of the second part of the trial must be made.

Seely, 451 So.2d at 215.

¶ 38. The State argues first that the pen pack had been introduced into the court record as an exhibit to the motion to amend Newberry’s indictment. However, in Young we reversed an habitual offender sentence because the trial court relied upon sworn testimony elicited during the guilt phase of the trial but not reintroduced during sentencing. The Young Court held, in no uncertain terms, that evidence supporting an habitual offender sentence enhancement, if introduced somewhere other than the sentencing hearing, must be reintroduced. Young, 507 So.2d at 50. Moreover, discovery responses and attachments to filings submitted to the Court may not be considered at trial unless admitted into evidence. Adams v. Allstate Ins. Co., 809 So.2d 1169, 1173 (La.Ct.App.2002) (“Evidence not properly and officially offered and introduced shall not be considered, even if it is physically placed in the record.”); Bodo v. Nationwide Ins. Co., 75 Ohio App.3d 499, 599 N.E.2d 844, 848 (1991) (“Materials attached to a trial memorandum are not considered evidence and therefore are not a part of the record to which the court may look for purposes of rendering judgment.”); Donndelinger v. Donndelinger, 107 Idaho 431, 690 P.2d 366, 374 (1984) (Although filed with the court, answers to interrogatories “are not evidence unless offered and admitted at trial” and “do not become incorporated into evidence in a trial merely by allusion, indirect reference or physical presence before the court during the questioning of a witness.”).

¶ 39. The State next contends that Newberry admitted to two prior convictions while testifying on the day of the sentencing hearing. Newberry did admit to convictions in 1992 and 2002, but there is no evidence in the record of the sentencing hearing from him or any other source concerning what the convictions were for or what sentences he received for them. See Miss.Code Ann. § 99-19-81 (Rev. 2007) (to enhance the sentence, the convictions must be for felonies and the defendant must have been sentenced to separate terms of one year or more).

¶ 40. In Grayer v. State, the Court vacated a defendant’s sentence as an habitual offender on the grounds that the State did not provide competent evidence to support such a sentence. Grayer v. State, 120 So.3d 964, 969 (¶ 19) (Miss.2013). In that case, the State failed to move to enter the certified copies of Grayer’s prior convictions into evidence, and the trial court had nothing more to rely on other than a mere recitation of Grayer’s prior felony convictions. Id. The Court held that the State failed to prove Gayer’s prior convictions by competent evidence, which rose to the level of plain error. Id. While the instant case differs from Grayer in that the pen packs are in the court file as an exhibit to a pretrial motion, pursuant to our holdings in Young and Seely, inclusion elsewhere in the court file does not suffice. Actual admission into evidence at sentencing is required.

¶ 41. I would reverse the habitual offender enhancement to Newberry’s sentence, as, pursuant to Young and Grayer, the trial court may not rely on information not introduced as evidence during the sentencing hearing when imparting an habitual offender sentence enhancement.

III. Officer Scallorn’s Testimony

¶ 42. Finally, Newberry argued that the trial court erred in allowing Officer Scallorn to testify at trial on whether, in his opinion, Newberry was under the influence. Specifically, the State asked Officer Scallorn, “Based off of what you personally observed in your training and experience, did this defendant pass the field sobriety test?” to which Officer Scallorn responded, “No, sir.” Newberry appears to assert that Officer Scallorn would need to be qualified as an expert to testify as to such matters. However, the question posed by the State specifically asked Officer Scal-lorn to base his answer “off of what [he] personally observed in [his] training and experience.” Officer Scallorn’s testimony clearly falls under Mississippi Rule of Evidence 701, in that it is “(a) rationally based on [Officer Scallorn’s] perception ..., (b) helpful to the clear understanding of the testimony ..., and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” See Miss. R. Evid. 701.

¶ 43. Additionally, the Court previously has addressed the issue of police officers testifying as to the administration of field sobriety tests without being qualified as an expert witness. In Young v. City of Brookhaven, the Court held that the testimony of an officer as to the administration of a horizontal gaze nystagmus test— which is the same test as in the instant case — was not so complex and technical as to require expert testimony. Young v. City of Brookhaven, 693 So.2d 1355, 1358-61 (Miss.1997). See also Pulido v. City of Oxford, 991 So.2d 1223, 1226-27 (¶¶ 11-19) (Miss.Ct.App.2008); Graves v. State, 761 So.2d 950, 954-55 (¶ 12) (Miss.Ct.App.2000). Similarly, the trial court did not err in admitting the testimony of Officer Scallorn.

¶ 44. In the absence of any rebuttal of the Strickland presumption by the defendant, I disagree with the majority’s reversal of the defendant’s conviction as a result of the Rule 46 violation and would instead affirm the defendant’s conviction. However, I would reverse the habitual offender sentence enhancement.

RANDOLPH, P.J., LAMAR AND PIERCE, JJ„ JOIN THIS OPINION.

      . The motion was based on the submission of a video of the alleged crime five days prior to the trial. Mr. Green viewed the video in the prosecutor's office but was not provided a copy.

      . Lofton is licensed in both Mississippi and Tennessee.

      . Mississippi Rule of Appellate Procedure 46(b)(l l)(i) provides:
      No court clerk or filing officer of any administrative agency of this slate shall accept or file any pleadings or other papers from a foreign attorney who has not complied with the requirements of this rule. Any pleadings or other papers in violation of this rule shall be stricken from the record upon the motion of any party or by the court or administrative agency sua sponte.

        See also Mitchell v. Progressive Ins. Co., 965 So.2d 679 (Miss.2007). While the circuit court clerk did not refuse to accept Green's pretrial motions, that might have been because it was not clear from his signature and bar number on the filings that he was an out-of-state attorney.

      . The separate opinion appears to find the issues in this case indistinguishable from Terrell, however we find this case distinguishable in that the violations were not exclusively pretrial and the requisite knowledge for waiver was not present.

      . We disagree with the separate opinion that this case reduces to a Strickland analysis for ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). While we do not find it necessary to go so far in this case, we note that some jurisdictions have held that "[wjhen a defendant is unaware at the time of trial that his trial counsel is neither licensed to practice law in [the jurisdiction] nor admitted pro hac vice pursuant to [the local rules], [the] court will presume that the defendant suffered prejudice and hold as a matter of law that the conduct of counsel in question was ineffective assistance of counsel per se.” Little v. State, 819 N.E.2d 496, 503 (2004). In Little, the Court of Appeals of Indiana rejected an ineffective-assistance-of-counsel claim where a defendant proceeded to trial (without local counsel) with knowledge that his foreign attorney had failed to comply with the relevant rales governing admission. Id. at 502.

      . The records maintained by the Supreme Court confirmed that he never submitted an order admitting him.

      . I do not agree that we should adopt Little. However, even if we did, it would not apply here. The crux of the Little Court's rule is whether the defendant knows his attorney is not licensed in the jurisdiction of trial. If the defendant knows, then there is no Sixth Amendment issue. Little, 819 N.E.2d at 503. On direct examination, Newberry admitted he knew Green was not licensed in Mississippi, stating that Green "told me he couldn’t practice in Mississippi, and he had another counsel who would practice with him.”

      . Because they were not incorporated by reference, the instant case is distinguishable from our recent holding in Conner v. State, 138 So.3d 143 (Miss.2014). There, we held that incorporating the pen pack by reference, while not preferred, sufficed to support an habitual offender sentence enhancement.