author: RUSSELL, J.,

text:
    Jeffery Scott LAWRENCE a/k/a Jeffrey Scott Lawrence, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CA-01288-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2012.
    Rehearing Denied Mar. 19, 2013.
    Certiorari Denied June 27, 2013.

      Julie Ann Epps, Canton, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before IRVING, P.J., RUSSELL and FAIR, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Jeffrey Scott Lawrence appeals the Jackson County Circuit Court’s order denying his motion for post-conviction relief (PCR). Lawrence raises five issues for review, which we restate for clarity: (1) whether his attorney’s failure to object to identification testimony from two law-enforcement officers resulted in ineffective assistance of counsel; (2) whether his attorney’s failure to object to hearsay and opinion evidence resulted in ineffective assistance of counsel; (3) whether his attorney’s failure to object to the State’s rebuttal witnesses and introduction of photographs resulted in ineffective assistance of counsel; (4) whether his attorney’s failure to obtain an expert to assist in rebutting the State’s DNA evidence resulted in ineffective assistance of counsel; and (5) whether the cumulative errors of his attorney resulted in prejudice. Finding no error, we affirm the circuit court’s denial of Lawrence’s PCR motion.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 21, 1992, Lawrence was indicted for rape, sexual battery, and burglary. On May 28, 1998, the jury returned a verdict of guilty, and Lawrence received a life sentence for the rape conviction; a ten-year sentence for the sexual battery conviction to run consecutively with the rape sentence; and a five-year sentence for the burglary conviction to run concurrently with the other sentences. His convictions were upheld on direct appeal by this Court in an unpublished opinion. Lawrence v. State, 9S-KA-01202-COA, 695 So.2d 603 (May 20, 1997).

¶ 3. On April 25, 2001, our supreme court granted Lawrence leave to file his PCR motion. On May 16, 2001, Lawrence filed his PCR motion. After an evidentia-ry hearing, the circuit court entered an order denying relief on December 17, 2008. On December 22, 2010, Lawrence was granted a motion for an out-of-time appeal, and on December 28, 2010, Lawrence filed notice of this appeal.

¶ 4. Additional facts will be discussed as they relate to each issue.

DISCUSSION

¶ 5. This Court “will not disturb a lower court’s denial of a petition for post-conviction relief unless it is clearly erroneous.” Johnson v. State, 80 So.3d 136, 138 (¶ 5) (Miss.Ct.App.2012) (quoting Owens v. State, 17 So.3d 628, 632 (¶ 7) (Miss.Ct.App.2009)). However, “the determination of whether [Lawrence] received effective assistance of counsel is a mixed question of law and fact to be reviewed de novo.” Kambule v. State, 19 So.3d 120, 122 (¶ 6) (Miss.Ct.App.2009) (citing Lewis v. State, 798 So.2d 635, 636 (¶5) (Miss.Ct.App.2001)).

¶ 6. “To show ineffective assistance of counsel, [Lawrence] must establish: (1) his attorney[’s] performance was deficient, and (2) the deficiency was prejudicial.” Cooper v. State, 76 So.3d 749, 754 (¶ 17) (Miss.Ct.App.2011) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “To qualify as deficient, [counsel’s] performance must fail to meet ‘an objective standard of reasonableness.’ ” Id. (citing Strickland, 466 U.S. at 688, 104 S.Ct. 2052). However, “[t]here is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” Id. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). “For prejudice to exist, there must be a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Id. at 754 (¶ 17) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

¶ 7. “[Lawrence] has the burden to show both prongs of Strickland are met.” Id. at 754 (¶ 18) (citing Moody v. State, 644 So.2d 451, 456 (Miss.1994)). “We review whether the movant has made the required showing under each prong of Strickland based on the totality of the circumstances.” Id. (citing Carney v. State, 525 So.2d 776, 780 (Miss.1988)).

I. Whether the failure of Lawrence’s attorney to object to identification testimony from two law-enforcement officers resulted in ineffective assistance of counsel.

¶ 8. Lawrence argues that the failure of his attorney to object to identification testimony from two law-enforcement officers resulted in ineffective assistance of counsel. We disagree.

¶ 9. On October 7, 1989, Officer Thomas Lamb and Officer Thomas Tarazano responded to the call reporting Jane Doe’s rape. Both officers testified that on the way, they saw someone who fit the description of Jane Doe’s attacker driving a pickup truck. At trial, Officer Lamb was shown a photograph, and he stated that it resembled the person he saw driving the truck. When asked if he knew who the person in the photograph was, Officer Lamb identified Lawrence. The photograph was then offered into evidence without objection. Officer Tarazano also testified that he saw the driver and confirmed that the photo resembled the person driving the truck.

¶ 10. Lawrence argues that these in-court identifications were based on out-of-court identification procedures that were so unnecessarily suggestive that they created the likelihood that Lawrence would be misidentified. That is, both officers were shown a single photograph by the State prior to trial but three years after witnessing the driver of the truck. Lawrence argues that his attorney’s failure to object to this resulted in ineffective assistance of counsel.

¶ 11. In Collins v. State, 70 So.3d 1144, 1145 (¶ 1) (Miss.Ct.App.2011), Collins was convicted of three counts of sexual battery, one count of touching a child for lustful purposes, and one count of statutory rape. At trial, Dr. Matherne, a clinical psychologist, testified as to whether sexual abuse had occurred. Id. at 1146 (¶ 8). No objection was made to Dr. Matherne’s testimony or his qualification as an expert in clinical psychology. Id. at 1146 (¶ 6). However, the trial court stated that “[i]t was not necessary ... for Dr. Matherne to ... testify ... [and] if there had been an objection to it, [the court] would have sustained [it].” Id. at 1146 (¶ 9).

¶ 12. On appeal, Collins argued that the failure of his attorney to object to Dr. Matherne’s testimony amounted to ineffective assistance of counsel. Id. at 1147 (¶ 15). However, this Court held that Collins failed to establish reasonable probability that, had his attorney objected to Dr. Matherne’s testimony, the result would have been different. Id. at 1148 (¶ 18). This Court found “that persons may be found guilty on the uncorroborated testimony of a single witness.” Id. (citation omitted). In Collins, the victim testified that Collins had sexually abused her. Id. This Court found that even without supporting testimony, the jury could have found Collins guilty. Id. The victim’s testimony alone was sufficient to support the conviction. Id.

¶ 13. Likewise, we cannot conclude that there would have been a different result without the admission of Officer Lamb’s and Officer Tarazano’s testimonies. At trial, Jane Doe stated that she was 100 percent positive that Lawrence was her attacker. Similar to the victim’s testimony in Collins, Jane Doe’s testimony alone was sufficient to support the conviction.

¶ 14. Furthermore, we find that Lawrence’s attorney conducted a thorough cross-examination of both Officer Lamb and Officer Tarazano. Through cross-examination, Lawrence’s attorney questioned whether each officer had an independent basis for identification. Additionally, Lawrence’s attorney made it clear that each officer viewed a single photograph three years after observing the driver of the truck, and neither officer testified to a positive identification. See id. (“It is well settled that the jury determines the weight and credibility to give witness testimony and other evidence.” (internal quotation omitted)). For these reasons, we find this issue to be without merit.

II. Whether the failure of Lawrence’s attorney to object to hearsay and opinion evidence resulted in ineffective assistance of counsel.

¶ 15. Lawrence argues that the failure of his attorney to object to hearsay and opinion evidence resulted in ineffective assistance of counsel.

A. Whether the failure of Lawrence’s attorney to object to hearsay from Jane Doe resulted in ineffective assistance of counsel.

¶ 16. At trial, Jane Doe testified that she identified Lawrence as her attacker to her husband on October 7, 1989. Lawrence argues that the failure of his attorney to object to this hearsay resulted in ineffective assistance of counsel. We disagree.

¶ 17. Under Mississippi Rule of Evidence 801(d)(1)(C), a statement is not hearsay if “[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... one of identification of a person made after perceiving the person[.]” Lawrence failed to provide any evidence that the trial court would have disallowed Jane Doe’s testimony upon objection made by his attorney. Because Jane Doe testified at trial and was subject to cross-examination concerning her statement, and her statement was one of identification of her attacker made after perceiving her attacker, we find this argument to be without merit.

B. Whether the failure of Lawrence’s attorney to object to hearsay and opinion evidence from Officer Ma-bens resulted in ineffective assistance of counsel.

¶ 18. At trial, testimony was offered concerning the fact that there may have been other trucks similar to Lawrence’s truck in the area on October 7, 1989. However, Officer Robert Mabens testified that his investigation led to the conclusion that none of the other trucks were actually present in the area when the crime occurred. Lawrence argues that the failure of his attorney to object to this hearsay and opinion evidence resulted in ineffective assistance of counsel. We disagree.

¶ 19. “Statements are not hearsay when they are admitted to explain [an] officer’s course of investigation.” Smith v. State, 984 So.2d 295, 300 (¶ 8) (Miss.Ct.App.2007) (citing Rubenstein v. State, 941 So.2d 735, 764 (¶ 111) (Miss.2006)). Officer Mabens testified merely as to what occurred during the course of his investigation and how other suspects were eliminated. Furthermore, Officer Mabens was never asked for his opinion as to Lawrence’s guilt. For these reasons, we find this issue to be without merit.

III. Whether the failure of Lawrence’s attorney to object to the State’s rebuttal witnesses and introduction of photographs resulted in ineffective assistance of counsel.

¶20. Lawrence argues that the failure of his attorney to object to the testimony of three rebuttal witnesses and the introduction of photographs during rebuttal resulted in ineffective assistance of counsel. In the alternative, Lawrence argues that the failure of his attorney to ask for a continuance resulted in ineffective assistance of counsel. We disagree.

¶ 21. At trial, Lawrence presented an alibi defense. Pam Haman (Pam) testified that Lawrence spent the night of October 6, 1989, in her apartment in anticipation of their sailing and camping trip with Ron Sartor (Ron) and Margaret Sartor (Margaret) to Horn Island early the next morning, October 7, 1989, to celebrate Margaret’s birthday. Lawrence, Haman, Ron, and Margaret all testified that they spent the entire weekend of October 7 and 8, 1989, on Horn Island and returned just before sundown on October 8,1989.

¶ 22. Margaret testified that she spent her birthday the year before, October 7, 1988, on Horn Island with Donald Check-ley (Donald), Dawn Spatzer (Dawn), and Susan Checkley (Susan). She also testified that she spent her birthday the following year, in 1990, engaged in official military business in Orlando, Florida. Official government records to support this claim were admitted for identification purposes only.

¶ 23. The State then called three rebuttal -witnesses: Donald, Susan, and Timothy Lawton (Timothy). These witnesses all testified that they celebrated Margaret’s birthday on Horn Island in 1989. All three witnesses denied that Lawrence was with them on that day.

¶ 24. Furthermore, Donald identified photographs that Margaret had given to Timothy and his wife for Christmas in 1989. Donald testified that he had an identical copy of one of the pictures and that Margaret had given it to him for Christmas that same year. Both Donald and Timothy testified that the picture, which did not include Lawrence, was from the 1989 outing to Horn Island.

¶ 25. Susan, who lived with Margaret, testified that Pam, Lawrence, Ron, and Margaret went on an outing in 1990, not 1989.

¶ 26. When the State rested, Lawrence’s attorney stated: “Well Judge, we’re going to have to ... call back some rebuttal witnesses of our own. This can’t be standing like it is.” However, surrebut-tal was denied.

¶27. On direct appeal, Lawrence argued that the State’s failure to disclose its rebuttal witnesses and photographs before trial violated the rules of discovery and deprived him of his due process right to a fair trial. Lawrence v. State, 93-KA-01202-COA, 695 So.2d 603 (May 20, 1997). This Court held that where evidence is introduced, surrebuttal should be allowed, especially if it would prejudice the other side if they were denied the opportunity. Id. However, this Court found that there was no resulting prejudice due to this error and concluded that the denial of surre-buttal was harmless error. Id. In reaching this decision, this Court stated that surrebuttal is not allowed if it would be cumulative of evidence already elicited. Id. This Court found that evidence of when the photographs were taken is what Lawrence would have tried to elicit on surre-buttal. Id. Margaret would have adversely testified that the photos were taken in 1988, or she would have cumulatively testified that the photos were taken in 1989. Id.

¶ 28. Lawrence argues that the failure of his attorney to object to the State’s rebuttal witnesses and introduction of photographs amounted to ineffective assistance of counsel. But, as stated, “a presumption exists that the attorney’s conduct was adequate.” Rodgers v. State, 66 So.3d 736, 738 (¶ 8) (Miss.Ct.App.2011) (quoting Hull v. State, 983 So.2d 331, 333-34 (¶ 11) (Miss.Ct.App.2007)). And “[t]o overcome this presumption, ‘the defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.’” Madden v. State, 991 So.2d 1231, 1236-37 (¶ 23) (Miss.Ct.App.2008) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). An attorney’s failure to object to improper rebuttal testimony does not constitute ineffective assistance where there was no likelihood that a different result would have been obtained had the attorney successfully resisted the introduction of evidence. Street v. State, 754 So.2d 497, 504 (¶ 27) (Miss.Ct.App.1999).

¶ 29. We have already determined that the denial of surrebuttal did not result in prejudice. However, Lawrence argues that he presented evidence at his PCR hearing that demonstrated the State’s violation resulted in actual prejudice. Lawrence presented testimony from Margaret that the photos were taken over the course of several different years. However, Margaret offered no evidence or proof other than her own contradicted word. She admitted that she did not have any evidence as to when the photos were taken. Additionally, no evidence was presented that destroyed the credibility of rebuttal. Because Lawrence is unable to show that the result of the proceeding would have been different, we find this issue to be without merit.

IY. Whether the failure of Lawrence’s attorney to obtain an expert to assist in rebutting the State’s DNA evidence resulted in ineffective assistance of counsel.

¶ 30. Lawrence argues that the failure of his attorney to obtain an expert to analyze the State’s DNA evidence and his attorney’s questioning of the State’s DNA expert resulted in ineffective assistance of counsel. We disagree.

¶ 31. At trial, the State’s expert testified that PCR DNA testing showed that the DNA evidence recovered from the crime scene was a “genetic match” to Lawrence. Lawrence argues that on cross-examination, Lawrence’s attorney focused on attacking the methodology of the DNA tests while relying on outdated literature. Lawrence argues that had his attorney hired or requested the appointment of a defense expert, he would not have adopted the strategy that he did. Lawrence further argues that by attacking the methodology of the DNA tests instead of the meaning of its results, his attorney’s strategy resulted in ineffective assistance of counsel.

¶ 32. Our supreme court has held that “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Wilcher v. State, 863 So.2d 719, 733 (¶ 30) (Miss.2003) (citation omitted).

As stated, “[t]here is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, ... the challenged action might be considered sound trial strategy.’ ” Cooper, 76 So.3d at 753 (¶ 17) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). Additionally, counsel is “not deficient merely because he did not conduct the cross-examination ... in every regard as [post-conviction] counsel asserts he should have done.” Manning v. State, 929 So.2d 885, 902 (¶ 48) (Miss.2006).

¶ 33. First, Lawrence’s attorney made the strategic decision not to hire an expert because, at the time, the attorney thought other evidence was more troublesome than the DNA evidence.

¶ 34. Second, although Lawrence argues that his attorney attacked the methodology of the DNA test instead of its results, the record indicates otherwise. On cross-examination, Lawrence’s attorney attacked the DNA methodology used by the State’s witnesses as well as the fact that the DNA testing was merely exclusionary. Further, through cross-examination, Lawrence’s attorney was able to disclose that the DNA testing in this matter did not amount to a “genetic match.” While Lawrence’s attorney may not have conducted the cross-examination in every regard as post-conviction counsel asserts he should have done, Lawrence’s attorney did not have the benefit of hindsight.

¶ 35. We find that Lawrence’s attorney thoroughly and effectively cross-examined the State’s expert. Neither the failure of Lawrence’s attorney to obtain an expert to assist in rebutting the State’s DNA evidence nor the questioning on cross-examination by Lawrence’s attorney amount to ineffective assistance of counsel. For these reasons, we find this issue to be without merit.

Y. Whether the cumulative errors of Lawrence’s attorney resulted in prejudice.

¶ 36. Lawrence argues that the cumulative errors of his attorney resulted in prejudice, thus denying him a fair trial.

¶ 37. Lawrence finds basis for his argument in the cumulative-error doctrine. Pursuant to this doctrine, “individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.” Ross v. State, 954 So.2d 968, 1018 (¶ 138) (Miss.2007) (citing Byrom v. State, 863 So.2d 836, 847 (¶ 13) (Miss.2003)). However, “if there are no individual errors, there can be no cumulative error that warrants reversal.” Harding v. State, 17 So.3d 1129, 1133 (¶ 13) (Miss.Ct.App.2009) (citing Harris v. State, 970 So.2d 151, 157 (¶ 24) (Miss.2007)). Because we find no individual errors, this issue is without merit.

CONCLUSION

¶ 38. We find Lawrence’s claims of ineffective assistance of counsel are without merit. Additionally, because we find no individual errors, Lawrence’s claim that the cumulative errors of his attorney resulted in prejudice is also without merit. Therefore, we affirm the judgment of the Jackson County Circuit Court.

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

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

      . This Court declines to identify victims of sexual crimes.

      . While the October 7, 1989 identification was long before she identified Lawrence to the police, Jane Doe explained that this delay was because she did not want to make an identification until she was 100 percent positive that Lawrence was her attacker. Jane Doe requested a show-up with Lawrence; however, one was never arranged. It was not until Jane Doe ran into Lawrence face-to-face at the hospital where she worked that she was 100 percent positive that Lawrence was her attacker.

      . Lawrence argues that Mississippi has a history of precluding the State from bolstering its witness credibility with self-serving hearsay from that witness reporting crime to friends or family. However, Lawrence cites cases from 1912, 1936, and 1951 to support this assertion. "The Mississippi Rules of Evidence shall govern all proceedings in any action had on or after January 1, 1986.”


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Sam BRADFORD Sr., Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00296-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.
    Rehearing Denied April 23, 2013.
    Certiorari Denied June 27, 2013.
    Sam Bradford Sr., appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Sam Bradford Sr., pro se, filed this motion for post-conviction relief (PCR), asserting the Jefferson County Circuit Court erred by dismissing his PCR motion as time-barred and barred as a successive writ. Finding the circuit court lacked jurisdiction to hear Bradford’s PCR motion, we affirm the circuit court’s dismissal.

FACTS AND PROCEDURAL HISTORY

¶ 2. After a jury trial, Bradford was convicted of murder and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). Bradford v. State, 910 So.2d 1232, 1233 (¶ 3) (Miss.Ct.App.2005). He then filed a direct appeal arguing the verdict was against the overwhelming weight of the evidence because no reasonable jury could have convicted him of anything other than manslaughter. Id. at (¶ 5). This Court affirmed his conviction. Id. at 1234 (¶ 11).

¶ 3. Bradford then filed with the Mississippi Supreme Court an application for leave to proceed in the circuit court. On February 22, 2007, the supreme court denied Bradford’s request. The supreme court found the issues raised by Bradford either were raised on direct appeal or could have been raised at that point. Thus, those issues were procedurally barred. The supreme court further found that Bradford’s claim that his sentence was illegal was without merit. A second application for leave to proceed in the trial court was denied by the supreme court on March 3, 2011.

¶ 4. On December 5, 2011, Bradford filed a motion in the circuit court to vacate and set aside his murder conviction and to resentence him for manslaughter. The circuit court treated his motion as a request for post-conviction relief. On December 29, 2011, the circuit court found Bradford’s PCR motion was time-barred and barred as a successive writ; thus, his PCR motion was dismissed. In addition, the circuit court sanctioned Bradford $250 and prohibited him from filing any additional PCR motions until he either paid the $250 or was granted permission from the supreme court to file an additional PCR motion.

¶ 5. On January 13, 2012, Bradford filed a motion for relief from judgment pursuant to Mississippi Rule of Civil Procedure 60(b)(4). The circuit court denied his motion on January 18, 2012. Bradford now appeals arguing that his murder conviction should be vacated and that he should be resentenced for manslaughter.

DISCUSSION

¶ 6. When considering the dismissal of a PCR motion, we review the circuit court’s findings of fact for clear error. White v. State, 59 So.3d 633, 635 (¶ 4) (Miss.Ct.App.2011) (citing Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004)). We review questions of law de novo. Id.

¶ 7. “When a case is affirmed on direct appeal, permission from the Mississippi Supreme Court must be obtained in order to seek post-conviction relief in the circuit court.” Campbell v. State, 75 So.3d 1160, 1161-62 (¶ 7) (Miss.Ct.App.2011) (citing Miss.Code Ann. § 99-39-7 (Supp.2011)). The dismissal or denial by the supreme court of an application for leave to proceed in the trial court is a final judgment and bars successive applications under the statute. Miss.Code Ann. § 99-39-27(9) (Supp.2012).

¶ 8. Here, the supreme court denied Bradford’s application to proceed in the circuit court on two separate occasions. Nonetheless, Bradford filed a PCR motion in the circuit court on December 5, 2011, which was subsequently dismissed as time-barred and barred as a successive writ. However, because the supreme court never gave Bradford permission to file in the circuit court, the circuit court never had jurisdiction to hear his PCR motion. “Although the circuit court lacked jurisdiction, this Court has appellate jurisdiction to address the merits of the circuit court’s judgment.” Campbell, 75 So.3d at 1162 (¶ 8) (citing M.R.A.P. 16; Miss.Code Ann. § 9-4-3 (Rev.2002)).

¶ 9. The circuit court dismissed Bradford’s PCR motion reasoning it was time-barred and barred as a successive writ. See Miss.Code Ann. § 99-39-5(2) (Supp.2012); Miss.Code Ann. § 99-39-23(6) (Supp.2012). However, as noted above, the circuit court never had jurisdiction to entertain Bradford’s PCR motion. In Mississippi, it is well-settled law that appellate courts may affirm a decision by the circuit court on different grounds than those offered by the circuit court. Campbell, 75 So.3d at 1162 (¶ 9). As such, we affirm the circuit court’s dismissal of Bradford’s PCR motion, but on the ground that the circuit court lacked jurisdiction.

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

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


author: CARLTON, ROBERTS, J.,

text:
    Miriam HOPKINS, Eldon Sewell, Dina Sewell, Abbie Patrick, Jaris Patrick, Jovita Boggan, Rita Wigginton and Ann Womack, Appellants v. CITY OF MENDENHALL, Mississippi, Appellee.
    No. 2011-CA-01633-COA.
    Court of Appeals of Mississippi.
    Jan. 29, 2013.
    Rehearing Denied June 25, 2013.

      Aleita M. Sullivan, Mendenhall, attorney for appellants.
    William Kannan Stubbs, attorney for ap-pellee.
   CARLTON,

J., for the Court:

¶ 1. On June 1, 2010, upon petition by the First Baptist Church of Mendenhall, Mississippi (“the Church”), the City of Mendenhall (“the City”) adopted Ordinance 244, which closed and vacated a portion of East Court Street in Menden-hall. Miriam Hopkins appealed the City’s decision to the Simpson County Circuit Court. After a hearing, the circuit court upheld the City’s adoption of Ordinance 244.

¶ 2. Hopkins appeals to this Court, raising the following issues: whether (1) the petition and amended petition filed on behalf of the Church lacked proper form and was void; (2) the City lacked authority on April 6, 2010, to accept the Church’s petition to close a portion of East Court Street; (3) the April 26, 2010 public hearing on the closing of the street was a valid hearing; (4) the actions of the City in closing that portion of East Court Street and adopting Ordinance 244 were unreasonable, arbitrary and capricious, unlawful, illegal, and a violation of due process; (5) the City conducted any studies or took into consideration all aspects of the street closing and weighed the public interest in the use of the street against the public benefit of the closure; (6) the street is required for public use and convenience, and no public necessity existed for its vacation and closing; (7) the actions of the City in closing the street violate the First and Fourteenth Amendments of the United States Constitution and Article 3, Section 14 of the Mississippi Constitution; (8) the taking of public property and giving the property to a church violates the separation of church and state; (9) the circuit judge erred in upholding the City’s adoption of Ordinance 244 in closing the street; (10) the circuit judge erred in denying the motion to reconsider, to alter or amend, and for a new trial; and (11) the orders entered by the circuit court should be reversed and rendered, and East Court Street should remain a public street.

¶ 3. Upon review, we find that the record contains no findings of fact and reasons for the City’s decision sufficient for appellate review. We therefore reverse the circuit court’s judgment, and remand this case to the circuit court for further proceedings consistent with this opinion.

FACTS

¶ 4. The Church filed a petition and an amended petition with the Mayor and Board of Aldermen (the “Board”) of the City of Mendenhall seeking to close the street known as East Court Street, which lies between East Street and Oak Street in the City of Mendenhall.

¶5. A meeting of the Mayor and the Board commenced in the City Hall on April 6, 2010. At this meeting, a motion was carried by vote to: (1) accept the Church’s petition to close a portion of East Court Street; (2) hold a public hearing on the street closure on April 26, 2010, at 5:00 p.m. at City Hall; and (B) authorize the clerk to publish notice of the public hearing according to the state statute.

¶ 6. Subsequently, Hopkins filed with the City a protest and objection to closing the portion of East Court Street. A public hearing commenced on April 26, 2010, and both proponents and opponents of the proposed street closure were provided the opportunity to debate their positions.

¶ 7. On June 1, 2010, the Mayor and the Board held a meeting and adopted Ordinance 244, closing the portion of East Court Street lying between East Street and Oak Street in Mendenhall. The bill of exceptions, which Hopkins later filed in the circuit court, contains no testimony presented at the public hearing in support of the ordinance, and the minutes from the meeting of the Mayor and the Board reflect no discussion or facts supporting the adoption of the proposed ordinance.

¶ 8. Ordinance 244 specifically states, in part, as follows:

SECTION 1. That First Baptist Church is the only adjoining landowner of the part of said street to be closed and have petitioned the Mayor and Board of Aldermen to close that portion of said street herein described.
SECTION 2: That the governing body finds and adjudicates that First Baptist Church constitutes all of the interested and abutting landowners to that part of said street to be closed and vacated. That the City of Mendenhall has the legal right to vacate and close said portion of said street. The governing body further finds and officially adjudicates that the closing of said portion of East Court Street will cause minimal inconvenience to the general public due to numerous alternative streets. The City of Mendenhall now finds and officially adjudicates that said portion of the street should be closed and vacated as provided by law.
SECTION 3: That portion of East Court Street more particularly described as that portion of East Court Street lying between East Street and Oak Street, City of Mendenhall, Mississippi, per map and plat on file in the office of the Tax Assessor of Simpson County, should be and is hereby vacated and closed.
SECTION 4: That the governing body finds and adjudicates that the closing of the above-described part of said street would be in the best interest of the City of Mendenhall, Mississippi, and the citizens thereof.
SECTION 5: That the City Clerk shall cause this Ordinance to be published according to state statute in the Simpson County News.
SECTION 6: That this Ordinance shall take effect and be in force as provided by law.

¶ 9. On June 8, 2010, Hopkins appealed to the Simpson County Circuit Court, and a bill of exceptions was filed shortly thereafter. Following a hearing on August 30, 2011, the circuit court upheld the City’s adoption of Ordinance 244. Hopkins filed a motion to reconsider, to alter or amend, and for a new trial, which the circuit court denied after a hearing.

¶ 10. Hopkins now appeals to this Court.

DISCUSSION

¶ 11. This Court employs a limited standard of review when considering the actions of a municipal board. Precision Commc’ns, Inc. v. Hinds Cnty., Miss., 74 So.3d 366, 369 (¶ 9) (Miss.Ct.App.2011) (quoting Nelson v. City of Horn Lake ex. rel. Bd. of Aldermen, 968 So.2d 938, 942 (¶ 10) (Miss.2007)). “For questions of law, a municipal board’s decision is reviewed de novo.” Id. Furthermore, we employ a de novo standard of review when considering issues of statutory interpretation. Id. “Otherwise, we ‘will not set aside the action of the governing body of a municipality unless such action is clearly shown to be arbitrary, capricious, or discriminatory or is illegal or without [a] substantial evidentiary basis.’ ” Id. (citation omitted).

¶ 12. “An act is arbitrary and capricious when it is done at pleasure, without reasoned judgment or with disregard for the surrounding facts and circumstances.” Id. “Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion or more than a ‘mere scintilla’ of evidence.” Id.

¶ 13. Mississippi Code Annotated section 21-37-7 (Rev.2007) states:

The governing authorities of municipalities shall have the power to close and vacate any street or alley, or any portion thereof. No street or alley or any portion thereof shall be closed or vacated, however, except upon due compensation being first made to the abutting landowners upon such street or alley for all damages sustained thereby.

Additionally, this Court has found that “[b]efore a municipality may close a public road, it must (1) find the closing is for the public good and (2) compensate abutting landowners for any damages.” Mill Creek Props., Inc. v. City of Columbia, 944 So.2d 67, 69 (¶ 8) (Miss.Ct.App.2006) (citation omitted). “However, a city may not close a road just to benefit a private party. Id. at 69-70 (¶ 8). Ordinance 244 and the minutes of the Board related to its adoption fail to reflect that the ordinance met the statutory requirements.

¶ 14. Therefore, we find that the City must provide some factual findings or basis supporting its adoption of the ordinance at issue so that we may review whether the city ordinance closing the road was for the public good or was arbitrary, capricious, or without substantial evidence. While we find that controlling statutory provisions and Mississippi case law require no petition or public hearing prior to the closing of a public road, we nonetheless find that such closing must be done on the basis of public need. See Miss.Code. Ann. §§ 21-13-1, 21-13-3, 21-37-7 (Rev.2007); see also Puyper v. Pure Oil Co., 215 Miss. 121, 133, 60 So.2d 569, 572 (1952) (“Where full power is granted to the authorities of a municipality to vacate streets, they may act upon their own motion, and a petition of property owners as a basis for the proceeding is not necessary in the absence of a statute requiring it.”); Mill Creek, 944 So.2d at 69 (¶ 8).

¶ 15. However, in this case, the minutes of the City's June 1, 2010 board meeting fail to show any discussion, reasoning, or factual findings either in support of or contrary to the City’s decision to close the street at issue, for the public good or some other reason. While the bill of exceptions states that the proponents and opponents of the ordinance spoke as to the possible closure of the road, the bill of exceptions and the subsequent board-meeting minutes both fail to set forth any supporting arguments or summary of any supporting testimony. Moreover, the bill of exceptions and the minutes from the municipal board meeting fail to show that the City concluded that a public need for the road closure in fact existed. We, therefore, lack a factual basis to review whether or not the City’s decision was based on substantial evidence or was instead arbitrary and capricious.

¶ 16. Accordingly, we find that the City’s ordinance in this case contains nothing more than conclusory findings. Without knowing the reasons for the City’s decision to adopt the ordinance, we would be forced to improperly reweigh the evidence before us and substitute our judgment for that of the City in order to decide the merits of the appeal. See Precision Commc’ns, 74 So.3d at 369 (¶ 9). As such, we cannot provide an adequate appellate review of the City’s decision to determine whether the City’s decision was arbitrary and capricious, or supported by substantial evidence.

CONCLUSION

¶ 17. Because the record lacks findings and reasons for the adoption of Ordinance 244 by the Board, we reverse the circuit court’s judgment and remand this case to the circuit court with instructions for the City to provide factual findings underlying the Board’s adoption of Ordinance 244.

¶ 18. THE JUDGMENT OF THE SIMPSON COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANTS AND ONE-HALF TO THE APPELLEE.

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

ROBERTS, J.,

dissenting:

¶ 19. The majority reverses and remands the City of Mendenhall’s decision to adopt Ordinance 244, which closed and vacated a portion of East Court Street in Mendenhall, Mississippi. According to the majority, the record is insufficient to support the City’s decision. With utmost respect for the majority, I find that there is insufficient evidence that Miriam Hopkins, Eldon Sewell, Dina Sewell, Abbie Patrick, Jaris Patrick, Jovita Boggan, Rita Wiggin-ton, or Ann Womack (collectively “Appellants”) have standing to challenge the City’s decision. Accordingly, I dissent.

¶ 20. “Before a municipality may close a public road, it must (1) find the closing is for the public good and (2) compensate abutting landowners for any damages. However, a city may not close a road just to benefit a private party.” Mill Creek Props., Inc. v. City of Columbia, 944 So.2d 67, 69-70 (¶ 8) (Miss.Ct.App.2006) (internal citations omitted). “Generally, a landowner on a partially closed road, whose land is on the opened portion, cannot claim damages if he still has reasonable access to the general system of roads [unless] ... the road closing leaves the landowner in a eul[-]de[-]sac-"Id. at 70 (¶ 14) (internal citations omitted). “If a landowner is not abutting the closed portion of the road, he must prove special damages in order to recover.” Id. at 71 (¶ 17).

¶ 21. There is no evidence that any of the Appellants are landowners whose properties abut the closed portion of East Court Street. As the majority notes, the City found that the First Baptist Church of Mendenhall was the only entity that owned property that adjoined the closed portion of East Court Street. The City also found that “the closing of [the] portion of East Court Street will cause minimal inconvenience to the general public due to [the availability of] numerous alternative streets.” There is no evidence that any of the Appellants proved that they had special damages. The Appellants’ general complaint is based on the concept that the closed portion of East Court Street was useful to the general public. Simple inconvenience is insufficient to demonstrate that one is entitled to damages. See, e.g., City of Hattiesburg v. Colson, 236 Miss. 237, 239-40, 109 So.2d 868, 869 (1959). Even if the Appellants had been adjoining landowners, which they are not, “[diverting traffic onto a new road is not special damages for which a landowner may recover.” Mill Creek, 944 So.2d at 71 (¶ 17) (citation omitted).

¶22. Regarding standing, this Court has recently stated:

Mississippi’s standing requirements are quite liberal. Federal courts adhere to a stringent definition of standing, limited by Article 3, [S]eetion 2 of the United States Constitution to a review of actual cases and controversies, but the Mississippi Constitution contains no such restrictive language. Therefore, the Mississippi Supreme Court has been more permissive in granting standing to parties who seek review of governmental actions.

Hudson v. Jones Cnty. Bd. of Sup’rs, 77 So.3d 1148, 1150 (¶ 4) (Miss.Ct.App.2011) (quoting Burgess v. City of Gulfport, 814 So.2d 149, 151-52 (¶ 9) (Miss.2002)) (internal quotations omitted). “In Mississippi, parties have standing to sue when they assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, or as otherwise provided by law.” Id. at (¶5). “ ‘Colorable,’ when used to describe a claim or action, means ‘appearing to be true, valid, or right.’ ” Id. (quoting Hall v. City of Ridgeland, 37 So.3d 25, 33 n. 6 (Miss.2010)). “To establish standing on grounds of experiencing an adverse effect from the conduct of the defendant/appellee, the adverse effect experienced must be different from the adverse effect experienced by the general public.” Id. at (¶ 6). “[T]he mere fact that [the Appellants] reside in the City is not sufficient to confer standing.” Burgess, 814 So.2d at 153 (¶ 16).

¶ 23. There is no evidence that any of the Appellants experienced any adverse effect that was different from that experienced by the general public in Mendenhall. During the hearing before the circuit court, the Appellants’ attorney merely argued that closing the portion of East Court Street would be inconvenient to the general public, and to do so was unconstitutional. The Appellants’ attorney further argued that the road closing was tantamount to giving a public street to a private entity and noted that “[t]here’s a separation of church and state[.]” According to the Appellants’ attorney, “whatever the church wants, the church gets.” However, the City’s attorney noted that there were nine other streets that provided the same ingress and egress as the closed portion of East Court Street. Furthermore, the City’s attorney argued that the Appellants did not “assert that the City has ... deprived them of any property rights, or injured them in a certain way as to violat[e their] constitutional rights.” Nothing in the record indicates that the Appellants are anything more than people who are unsatisfied with the City’s decision to close a portion of East Court Street. I would find that the Appellants do not have standing to challenge the City’s decision. “Standing is a jurisdictional issue which may be raised by any party or the Court at any time.” DeSoto Times Today v. Memphis Pub. Co., 991 So.2d 609, 611 (¶ 6) (Miss.2008) (quotation omitted). “A lack of standing robs the court of jurisdiction to hear the case.” Pruitt v. Hancock Med. Ctr., 942 So.2d 797, 801 (¶ 14) (Miss.2006) (citation and quotation omitted). Consequently, I would dismiss the Appellants’ appeal. Because the majority reverses the City’s decision and remands this matter to the circuit court with instructions that the City must provide factual findings underlying its decision to adopt Ordinance 244, I respectfully dissent.

GRIFFIS, P.J., MAXWELL AND FAIR, JJ., JOIN THIS OPINION.

      . Miriam Hopkins, Eldon Sewell, Dina Se-well, Abbie Patrick, Jaris Patrick, Jovita Bog-gan, Rita Wigginton, and Ann Womack (collectively "Hopkins”) appealed.

      . See Precision Commc'ns, Inc. v. Hinds Cnty., Miss., 74 So.3d 366, 369 (¶ 9) (Miss.Ct.App.2011); see also URCCC 5.03 (stating the scope of appeals from administrative agencies).

      . The City alleges that the hearing initially was set to be held in the City Hall, but due to the number of attendees, the hearing was moved across the street to the Municipal Court Building where the Mendenhall Police Department was headquartered.

      . Ordinance 244 provides that the ordinance received the affirmative vote of the majority of the governing body.

      . See, e.g., Mill Creek, 944 So.2d at 70 (¶¶ 11-12).

      . The bill of exceptions reflects that the April 26, 2010 public hearing was taped, but no transcript or tape of the public hearing was provided to this Court on appeal.

      . The record indicates that two of the five aldermen who voted on the resolution to close a portion of East Court Street were members of the First Baptist Church of Mendenhall. However, those two aldermen recused themselves from the vote on the issue.


text:
    Owen NELSON, Appellant v. Margaret BINGHAM and State Parole Board, Appellees.
    No. 2011-CP-01643-COA.
    Court of Appeals of Mississippi.
    Feb. 12, 2013.
    Rehearing Denied June 25, 2013.

      Owen Nelson, appellant, pro se.
    R. Stewart Smith Jr., James M. Norris, attorneys for appellees.
    Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 1994, Owen Nelson was convicted in the Marion County Circuit Court of armed robbery and sentenced to life in the custody of the Mississippi Department of Corrections (MDOC). Nelson was released on parole in 2007 but was returned in 2009 for multiple violations of his parole conditions. Several months after his return, he was granted parole once more but was returned in 2011 to the MDOC’s Central Mississippi Correctional Facility (CMCF) in Rankin County, Mississippi, for failing to meet his parole provisions. Aggrieved by the second revocation of his parole, Nelson filed suit for habeas corpus in the Rankin County Circuit Court against the CMCF supervisor and the Mississippi State Parole Board (Parole Board). The circuit court treated Nelson’s filing as a motion for post-conviction relief (PCR) and upheld the Parole Board’s decision to rescind Nelson’s parole. It is from that judgment that Nelson appeals. We find the circuit court lacked the requisite jurisdiction to hear Nelson’s PCR motion and dismiss this action.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Nelson committed armed robbery in Marion County, Mississippi, in 1993. He was convicted in the Marion County Circuit Court in 1994 and was sentenced to life in the custody of the MDOC. Nelson appealed, and his conviction and sentence were affirmed in 1997. Nelson v. State, 693 So.2d 388 (Miss.Ct.App.1997). In July 2007, Nelson was released on parole. In 2009, he was returned from parole for failure to report; failure to pay his supervision fees; failure to maintain a residence; prohibited use of alcohol; and failure to abide by the law after being charged with driving under the influence of alcohol, driving without insurance, and driving with a suspended license.

¶ 3. In March 2010, Nelson was granted parole once again on the conditions that he attend long-term alcohol and drug treatment, as well as thirty Alcoholics Anonymous meetings in thirty days. In January 2011, Nelson’s parole was revoked a second time for failure to report, failure to pay his supervision fees, and failure to attend the required alcohol and drug treatment. He was returned to CMCF.

¶ 4. Nelson soon filed for habeas corpus relief in the Rankin County Circuit Court claiming the Parole Board unjustly revoked his parole and he was being held illegally. The Rankin County Circuit Court treated the filing as a PCR motion and affirmed the Parole Board’s decision. Nelson now appeals the Rankin County Circuit Court’s judgment.

DISCUSSION

¶ 5. The Mississippi Uniform Post-Conviction Collateral Relief Act governs “post-conviction habeas corpus, as well as statutory post-conviction habeas corpus.” Miss.Code Ann. § 99-39-3(1) (Rev.2007). As such, while Nelson’s claim is titled as that of habeas corpus relief, it is positioned as a PCR motion.

¶ 6. Nonetheless, a PCR motion is properly filed in the county where the prisoner was convicted, not where the prisoner is incarcerated. Maston v. State, 768 So.2d 354, 355 (¶¶ 4-5) (Miss.Ct.App.2000). Accordingly, Nelson’s PCR motion should have been filed in the Marion County Circuit Court, not the Rankin County Circuit Court. The Rankin County Circuit Court lacked the requisite jurisdiction to hear Nelson’s claim.

¶ 7. The State notes that Mississippi Code Annotated section 47-5-803(2) (Rev.2011) requires a prisoner appealing an MDOC administrative decision to exhaust all administrative remedies prior to petitioning the circuit court to reverse the MDOC’s decision. In cases where the prisoner challenges an MDOC decision, venue is appropriate where the prisoner resides. Miss.Code Ann. § 11-11-3 (Rev. 2004). Should a prisoner appeal an MDOC administrative decision through the circuit court prior to exhausting all administrative remedies, the circuit court must stay the proceedings for ninety days and advise the petitioner to complete the administrative requirements. Guy v. State, 915 So.2d 508, 510 (¶¶ 7-8) (Miss.Ct.App.2005) (citing Miss.Code Ann. § 47-5-803(2)).

¶ 8. Here, however, Nelson appeals the decision of the Parole Board, not the MDOC. The Parole Board is an entity separate from the MDOC and, therefore, is not subject to the MDOC’s administrative requirements in order for an appeal to be proper, as discussed above. Thus, Nelson’s direct appeal to a circuit court was the proper vehicle for his claims. However, Nelson’s appeal lacked the requisite jurisdiction due to his filing in an improper venue.

¶ 9. Furthermore, “[wjhere the conviction and sentence have been affirmed on appeal ..., [a PCR motion] shall not be filed in the trial court until the motion shall have first been presented to a quorum of the Justices of the Supreme Court of Mississippi, ... and an order granted allowing the filing of such motion in the trial court.” Miss.Code Ann. § 99-39-7 (Supp.2012). “This procedure is not merely advisory, but jurisdictional.” Bessent v. Clark, 974 So.2d 928, 933 (¶ 18) (Miss.Ct.App.2007) (citation omitted). Because Nelson’s conviction and sentence were affirmed on direct appeal, he was required to obtain permission from the supreme court to file his PCR motion. He failed to do so. Hence, the circuit court lacked jurisdiction to hear his PCR motion, as do we. As such, we dismiss Nelson’s appeal for lack of jurisdiction.

¶ 10. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.


author: GRIFFIS, P.J.,

text:
    Thomas Ray WALKER, Appellant, v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee.
    No. 2012-CP-01036-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.
    Thomas Ray Walker, appellant, pro se.
    Office of the Attorney General by R. Stewart Smith Jr., attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Thomas Ray Walker argues the Mississippi Department of Corrections (MDOC) illegally removed his parole eligibility on a life sentence for armed robbery. Since the filing of this appeal, the MDOC has corrected Walker’s sentence to accurately reflect he is eligible for parole. Since no controversy exists, we dismiss this appeal as moot.

FACTS

¶ 2. On May 30, 1984, Walker was sentenced to life with the possibility of parole on an armed-robbery charge. Walker was paroled in 1994, but he was returned to prison after violating the terms of his parole. In 2007, Walker was paroled a second time. He subsequently committed residential burglary and received a five-year sentence, to run consecutively to his life sentence. Because Walker was a repeat offender, he was ineligible for parole on the five-year sentence.

¶ 3. After he was returned to prison, Walker received an inmate time sheet stating he would be eligible for parole on December 6, 2010. Walker then received a letter retracting the December 6, 2010 parole-eligibility date. The letter stated that Walker was no longer eligible for parole on his life sentence because the subsequent five-year sentence carried no possibility of parole.

¶ 4. On March 5, 2012, Walker filed a petition for habeas corpus in the Sunflower County Circuit Court. His petition asserted that the MDOC had illegally converted his parole-eligible life sentence into a non-parole-eligible life sentence. The circuit court held a hearing. The MDOC attorney argued that Walker was not allowed parole on either sentence. According to Mississippi Code Annotated sections 47-7-3 (Rev.2011) and 99-19-21 (Rev.2007), Walker’s first sentence must be served in its entirety before the second, mandatory sentence begins. The circuit court agreed and dismissed Walker’s motion with prejudice.

¶5. Walker filed his notice of appeal. The MDOC has filed a motion to dismiss the appeal as moot. The MDOC argues that it has corrected Walker’s time sheet to reflect he was eligible for parole on his life sentence. As a result, the MDOC claims that this appeal is moot.

ANALYSIS

¶ 6. “[Clases in which an actual controversy existed at trial[,] but the controversy has expired at the time of review[,] become moot.” J.E.W. v. T.G.S., 935 So.2d 954, 959 (¶ 14) (Miss.2006) (quoting Monaghan v. Blue Bell, Inc., 393 So.2d 466, 466-67 (Miss.1980)). “A case is moot so long as a judgment on the merits, if rendered, would be of no practical benefit to the plaintiff or detriment to the defendant.” Fails v. Jefferson Davis Cnty. Pub. Sch. Bd., 95 So.3d 1223, 1225 (¶ 10) (Miss.2012) (quoting Gartrell v. Gartrell, 936 So.2d 915, 916 (¶ 8) (Miss.2006)).

¶ 7. When Walker filed his notice of appeal, an actual controversy existed. His inmate time sheet reflected he was ineligible for parole, and he contested this conclusion. The MDOC has advised this Court that Walker’s parole eligibility has since been reinstated.

¶ 8. Walker’s “Sentence Computation Record,” which is attached to the MDOC’s motion, notes: “Reworked file to give parole date on first sentence only* * SEE E-MAIL DATED 10/31/2012.” It shows a parole eligibility date of December 6, 2010.

¶ 9. Because the MDOC has agreed that Walker is eligible for parole and has provided proof of the date that he became parole eligible on his life sentence, there is no controversy for our review. No decision we could reach would be of practical benefit to Walker. See Fails, 95 So.3d at 1225 (¶ 10). Rather, any opinion on the merits would be merely advisory, and “we have no power to issue advisory opinions. ...” J.E.W., 935 So.2d at 959 (¶ 14) (citation omitted). Accordingly, this appeal is dismissed as moot.

¶ 10. THIS APPEAL IS DISMISSED AS MOOT. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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


author: JAMES, J.,

text:
    Clarence WILLIAMS, Jr., Appellant v. DEPARTMENT OF HUMAN SERVICES, State of Mississippi and Debbie Nash, Appellees.
    No. 2011-CA-01742-COA.
    Court of Appeals of Mississippi.
    June 18, 2013.

      Tamekia R. Goliday, attorney for appellant.
    Nicole Bryan, Steven D. Settlemires, Philadelphia, attorneys for appellees.
    Before LEE, C.J., FAIR and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Clarence Williams appeals the judgment of the Neshoba County Chancery Court, which upwardly modified his monthly child-support payment to $700. Williams argues that the chancery court erred by (1) including overtime pay in calculating his adjusted gross income, and (2) not deducting his state income-tax liability from his adjusted gross income. Finding no error, we affirm the judgment of the chancery court.

FACTS AND PROCEDURAL HISTORY

¶ 2. Clarence Williams and Debbie Nash are the natural parents of Madison Williams. Madison was born on July 15, 2006, out of wedlock. On August 2, 2007, the Neshoba County Chancery Court adjudicated Clarence as the father of Madison, and ordered Clarence to pay child support of $250 per month to Debbie. That same day, Clarence submitted a stipulated agreement of support. In the agreement, Clarence assented to pay monthly child support of $250, and to provide health insurance for Madison through his employer. The chancery court approved the stipulated agreement, and entered an order incorporating the terms of the agreement. On June 28, 2011, Debbie filed a petition for modification of support.

¶ 3. In the petition, Debbie sought an upward modification in Clarence’s child-support obligation due to Clarence’s increased income and Madison’s increased needs and expenses. Debbie also requested that Clarence be required to pay one-half of Madison’s medical expenses and one-half of Madison’s school-related expenses, including those for extracurricular activities. On July 21, 2011, Clarence filed an answer and counter-petition for modification of custody. In the petition, Clarence requested that he be awarded visitation rights and joint legal custody of Madison, as the 2007 order did not provide Clarence with any visitation or custodial rights. Clarence also requested that he be allowed to claim Madison as a dependent for federal and state income-tax purposes.

¶ 4. A hearing on both petitions was held on September 1, 2011. After hearing testimony from both parties, the chancery court found that a substantial and material change in circumstances had occurred, which warranted a modification in Clarence’s child-support obligation. Specifically, the court held that because Clarence’s income had significantly increased since the issuance of the 2007 order, and because of Madison’s advanced age and increased needs, Clarence’s child-support obligation should be raised to $700 per month. The court arrived at this figure by applying the Mississippi statutory guidelines for calculating child support. The chancery court used Clarence’s income for the 2011 year-to-date, which, as reflected by Clarence’s paycheck, was a gross figure of $62,757.01.

¶ 5. The court divided this number by thirty-four weeks, which reflected the year-to-date, and determined that Clarence was earning $1,845.79 per week. Multiplying this figure by fifty-two weeks gives an adjusted gross income of $95,981.28. The court divided this number by twelve and determined that Clarence had a monthly gross income of $7,998.44. Clarence was given a twenty-eight percent tax credit, which was $2,289. The application of the tax credit gave an adjusted monthly gross income of $5,759.44. During trial, Clarence testified that he was paying $250 per month in child support for two other children from previous relationships, even though he was not required by court order to do so. The court gave Clarence credit for those child-support payments also. Based on the child-support guidelines, fourteen percent of Clarence’s adjusted gross income minus the credits given by the court resulted in a child-support obligation of approximately $736.32 per month. From this figure, the court gave Clarence additional credit for providing medical insurance for Madison through his employer. The court then determined that Clarence’s child-support obligation should be set at $700 per month based on Mississippi’s child-support guidelines.

¶ 6. The court further held that Clarence was not ordered to pay one-half of Madison’s school-related expenses, as those expenses were included in Clarence’s monthly child-support payments. The court declined to award joint legal custody to Clarence, but granted him visitation with Madison. Feeling aggrieved about the court’s upward modification of child support, Clarence appealed the judgment.

STANDARD OF REVIEW

¶ 7. “A chancellor’s decision, when supported by substantial evidence, will not be reversed on appeal unless the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous, or [applied] an erroneous legal standard[.]” Walton v. Snyder, 984 So.2d 343, 347 (¶ 10) (Miss.Ct.App.2007) (quoting Kilpatrick v. Kilpatrick, 732 So.2d 876, 880 (¶ 13) (Miss.1999)). “In the area of divorce and child support particularly, this Court generally will not overturn the chancellor’s findings of fact unless manifestly wrong.” Wallace v. Wallace, 965 So.2d 737, 741 (¶ 10) (Miss.Ct.App.2007) (citing Vaughn v. Vaughn, 798 So.2d 431, 433 (¶ 9) (Miss.2001)). “[T]he process of weighing evidence and arriving at an award of child support is essentially an exercise in fact-finding, which customarily significantly restrains this Court’s review.” Avery v. Avery, 864 So.2d 1054, 1057 (¶ 28) (Miss.Ct.App.2004) (quoting Grogan v. Grogan, 641 So.2d 734, 741 (Miss.1994)). Questions of law are reviewed de novo. Vaughn, 798 So.2d at 434 (¶ 9) (citing Harrison Cnty. v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990)).

DISCUSSION

I. Whether the chancery court erred by including overtime pay in its calculation of Clarence’s adjusted gross income.

¶ 8. Clarence argues that the increase in child support to $700 per month was reached in error because the adjusted gross income of $62,757.01 reflected on his paycheck included an unusual amount of overtime pay. Clarence testified that his normal rate of pay was $14.30 per hour. When asked about overtime, Clarence stated that whenever he worked more than forty hours per week, he would receive overtime pay, which was $21.35 per hour. According to Clarence, he sometimes worked eighty hours per week due to a shortage of employees; but, his regular work schedule would fluctuate between thirty-six hours and sixty hours per week. On his Uniform Chancery Court Rule 8.05 financial disclosure statement, Clarence reported a monthly adjusted gross income of $5,577.10. The court declined to base the child-support award on this figure because, according to Clarence’s own testimony, the amount did not include any overtime wages that he accrued in 2011. In fact, multiplying this figure by the number of months in the year-to-date yields a gross income of $44,616, which is significantly less than $62,757.01, the amount shown on his paycheck. Clarence claimed that his overtime hours were subject to change depending on whether or not his employer was short-staffed. However, Clarence stated that as of the date of trial, he had been working overtime regularly for the past few months. Clarence also testified that he continued to work overtime even after more employees were hired.

¶ 9. The Mississippi Supreme Court has held that in calculating child support, income received from overtime pay may be considered. Gillespie v. Gillespie, 594 So.2d 620, 622-23 (Miss.1992). In cases where the receipt of overtime wages has a scheduled end date, or where the additional amount of income is not expected in the future, overtime pay is excluded for purposes of calculating child support. Johnston v. Johnston, 722 So.2d 453, 461 (¶ 22) (Miss.1998). Clarence never indicated that his overtime hours would cease. In fact, based on his testimony, it is reasonable to anticipate that he will receive overtime wages in the future. Therefore, we cannot say that the court abused its discretion or was manifestly wrong in including Clarence’s overtime wages in calculating his adjusted gross income.

¶ 10. Mississippi Code Annotated section 43-19-101(1) (Supp.2012) sets forth a rebuttable presumption that, in cases involving one child, monthly child-support payments should be fourteen percent of the non-custodial parent’s adjusted gross income. Section 43-19-101(3)(a) states that one’s gross income is determined “from all potential sources that may reasonably be expected to be available.” Clarence testified that he received a tax refund of $1,900 during 2011. He stated that he also generated $300 from odd jobs during that year. Though income from all sources is to be considered, the court considered Clarence’s testimony regarding the fluctuation in his overtime work hours, and decided to exclude income from his tax refund and income he received from odd jobs. In determining Clarence’s adjusted gross income, the court stated the following:

[T]he evidence that I have shows that he made a gross income up to-through the week ending on August the 20th, 2011, of $62,757.01. The Court has considered his testimony that that may change. The Court also has considered that he got $1,900 for a tax refund and made approximately, according to his testimony, $300 from odd jobs this year. As I previously said, gross income from all sources is to be considered, but I find that with the uncertainty in what he could make, that balances out, and the Court is going to use a gross figure of $62,757.01.

After considering all evidence, the court found the following:

So the Court, in considering the testimony, finds that divided by the 34 weeks in this year, that he is earning $1,845.79 per week. That times 52 weeks and divided by 12 gives a gross income per month of $7,998.44. In his tax bracket, the Court is going to give him credit for 28 percent of taxes, which is $2,239. So[,] an adjusted gross income would be $5,759.44. I do choose to give him credit for the two older children of $250 for each, and that comes out to child support of [$]736.... It appears that he’s also paying health insurance for at least one of his other children, so I do give him credit for that and determine that child support should be set at $700 per month even, based on Mississippi’s guidelines.

¶ 11. Here, the court used Clarence’s most recent paycheck to determine his gross income. After arriving at a monthly gross income of $7,998.44, the court deducted $2,239 for tax purposes. This left a figure of $5,759.44. The additional $500 deduction for child-support paid for his two older children left an adjusted gross income of $5,259.44. Multiplying this number by fourteen percent gives a monthly child support award of approximately $736.32. From here, the court made additional deductions that it deemed appropriate under the circumstances, and arrived at $700. “In cases in which the adjusted gross income is as defined in this section is more than Fifty Thousand Dollars ($50,000) ... the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.” Miss.Code Ann. § 43-19-101(4) (Rev. 2009). Based on the court’s findings, we find that the Mississippi guidelines were properly applied, and that there was substantial evidence to support the court’s upward modification of child support. Therefore, this issue is without merit.

II. Whether the chancery court erred by not deducting Clarence’s state tax obligations from his adjusted gross income.

¶ 12. Next, Clarence argues that the court failed to deduct his state income-tax liability before arriving at his adjusted gross income, which resulted in an improper calculation of child support. This argument is proeedurally barred because it is raised for the first time on appeal. “Before an issue may be assigned and argued in this Court, it must first be presented to the trial court.” Wilburn v. Wilburn, 991 So.2d 1185, 1191 (¶ 14) (Miss.2008) (quoting In re Hampton, 919 So.2d 949, 957 (¶ 32) (Miss.2006)). Clarence never raised the issue of federal or state income-tax deductions during trial, nor did he object when the court made an on-the-record finding of his tax deductions. Therefore, this issue is not properly before this Court.

¶ 13. Notwithstanding the procedural bar, we find that Clarence’s argument lacks merit. Section 43 — 19—101(3)(b) provides that in calculating child support, federal, state and local taxes must be deducted from the amount of the non-custodial parent’s adjusted gross income. The chancery court gave Clarence a twenty-eight percent credit for taxes, which amounted to a $2,239 deduction from his monthly gross income. The court did not indicate whether this tax deduction applied to federal or state tax liability, or both. It appears that Clarence simply made the assumption that the deduction applied solely to federal income-tax liability. Based on the record, we cannot say that the court’s lack of specificity amounted to an abuse of discretion or constituted reversible error.

¶ 14. As previously stated, the court credited Clarence $500 for child support paid for his two older children. This type of deduction is only mandatory if the noncustodial parent is subject to an existing court order. Miss.Code Ann. § 43-19-101(3)(e). Section 43 — 19—101(3)(d) also allows the court to deduct any amount it may deem appropriate if the parent has other children residing with him. Here, neither of these scenarios is applicable. During trial, Clarence stated that his two older children did not reside with him, and that he is under no court order to provide support to either child. However, the court still gave him credit for both children. Thus, Clarence received a $500 deduction from his gross income even though he was not legally entitled to it. In addition, the court gave Clarence credit for providing health insurance for Madison and for providing health insurance for at least one of his other children. This Court has held that deductions for health-insurance payments are not mandatory under section 43-19-101. Wells v. Wells, 800 So.2d 1239, 1247 (¶ 21) (Miss.Ct.App.2001). The allotted credit that the court deducted from Clarence’s adjusted gross income was far more than that to which he was legally entitled. Thus, any supposed failure of the court to apply a specific deduction for state income-tax liability to Clarence’s adjusted gross income is inconsequential, and is compensated for by the additional credits that he received.

¶ 15. For the reasons stated above, we find no error or abuse of discretion in the chancellor’s findings. The child-support modification was supported by substantial evidence in the record. Accordingly, we affirm the judgment of the chancery court.

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

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

      . At the time of the paternity adjudication, Clarence was employed as a maintenance mechanic in Pearl, Mississippi, and had a monthly gross income of $1,785.

      . The Mississippi Department of Human Services (DHS) was joined as a plaintiff because it processed Clarence’s child-support payments.

      . Clarence now works at Nucor Steel as a maintenance mechanic and makes $14.30 per hour. His work schedule ranges from thirty-six to sixty hours per week, which equates to a monthly gross income of roughly $2,059.20 to $3,432, excluding overtime pay.

      . This statute has since been amended, and now requires the court to make such a written finding in the record in cases in which the adjusted gross income is more than $100,000. Miss.Code Ann. § 43-19-101(4) (Rev. 2013).


text:
    David FOSTER a/k/a David A. Foster, Appellant v. Brenda BENNAMON, Lt. Earnest Young and Mississippi Department of Corrections, Appellees.
    No. 2011-CP-01619-COA.
    Court of Appeals of Mississippi.
    June 25, 2013.

      David Foster, appellant, pro se.
    Office of the Attorney General by R. Stewart Smith, Jr., attorney for appellees.
    Before LEE, C.J., FAIR and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. David Foster appeals the decision of the Sunflower County Circuit Court, which affirmed the decision of the Mississippi Department of Corrections (MDOC), finding Foster guilty of possessing a cell phone while in the custody of the MDOC. Foster challenges this decision on appeal. Upon review, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Foster was an inmate in the custody of the MDOC. During his incarceration, on October 7, 2010, a cell phone was found on his rack. Because cell phones are considered contraband under MDOC policy, Foster was issued a rule violation report (RVR) on October 13, 2010. The RVR stated:

On 10-07-10 at approximately 0700 [hours,] I[,] Sgt. Terry Rudolph[,] was conducting a shake down of inmate David Foster #77075. Upon shaking down inmate Foster’s rack[,] I found a Nokia cell phone on his rack. Therefore[,] inmate Foster will receive an RVR for violating rule C-7; possession of major contraband to include[,] but not limited to: electronic devices.

¶ 3. The RVR further indicated that Foster requested the contents of the camera showing the events described in the RVR. According to the RVR, Foster claimed, “It was not my cell phone. I have a rack partner.” Thus, he denied that he was guilty. Brenda Bennamon was the hearing officer listed in the RVR, and she found him guilty of possession of major contraband. As punishment, Foster was referred to the district attorney for reclassification.

¶ 4. A disciplinary-statement form was made part of the record, which provided Foster his Miranda rights in writing. On this form, Foster checked a box reading “I request an appearance before the [disciplinary [h]earing as a witness for the accused.” Lieutenant Earnest Young also wrote the following on this form:

[Inmate] Foster stated that Sgt. Rudolph did not find the phone on his rack. Sgt. Rudolph said that he found the phone on the rail of a rack (which rack the camera needs to be check[ed]). [Inmate] Foster stated that he talked to Capt. Donald [and] Warden Eracket that same day. Need statement.

¶5. On February 3, 2011, a grievance response was entered, which stated: “An investigation has been conducted into your RVR that was issued to you [in October 2010], After careful review of the circumstances and evidence obtained in this case, your appeal of RVR # 1097928 has been denied. Therefore, I find this matter resolved.”

¶ 6. On February 14, 2011, Foster filed a motion for judicial review in the Sunflower County Circuit Court. On March 11, 2011, Bennamon, Lieutenant Young, and the MDOC filed their response to Foster’s motion for judicial review, arguing that the decision of the Administrative Remedy Program should be affirmed.

¶7. On March 15, 2011, Foster filed a motion for production of documents and discovery, which was essentially a motion to compel discovery. Specifically, Foster sought a copy of the recording of the disciplinary hearing.

¶ 8. On February 29, 2012, the circuit court entered an order as follows:

This case comes before this [c]ourt on [Foster’s] [m]otion for [j]udicial [r]eview seeking review of RVR # 1097928. This [c]ourt having considered the matter and having reviewed documents presented, finds sufficient evidence that warrants upholding the decision of the [MDOC]. Decisions of an administrative agency shall not be disturbed unless unsupported by substantial evidence; arbitrary or capricious; beyond the agency’s scope or powers; or in violation of the constitutional or statutory rights of the aggrieved party....
[Foster] received RVR # 1097928 for possession of a cell phone. [Foster] was afforded a hearing before the MDOC [h]earing [o]fficer. [Foster] requested that the hearing officer view footage from a camera identified by [Foster] as tape 61-B. Although no video was considered at the hearing, the [h]earing [o]fficer heard the testimony and/or statements of [Foster] and the [reporting [o]fficer. The [Reporting [o]fficer testified that he found the cell phone on [Foster’s] rack; therefore, [Foster] was found guilty. The [o]fficer’s testimony constituted substantial evidence in support of [the] MDOC’s decision. [The] MDOC’s decision is not arbitrary or capricious; beyond the agency’s scope or powers; or in violation of [Foster’s] constitutional or statutory rights. It is therefore,
ORDERED AND ADJUDGED that [Foster’]s [m]otion for [j]udicial [r]eview is hereby DENIED and DISMISSED.

¶ 9. On March 22, 2012, Foster appealed circuit court’s denial and dismissal of his motion for judicial review.

DISCUSSION

¶ 10. “The decision of an administrative agency shall not be disturbed unless unsupported by substantial evidence; arbitrary or capricious; beyond the agency’s scope or powers; or violative of the constitutional or statutory rights of the aggrieved party.” Ross v. Epps, 922 So.2d 847, 849 (¶ 4) (Miss.Ct.App.2006) (quoting State Bd. of Pub. Accountancy v. Gray, 674 So.2d 1251, 1258 (Miss.1996)). “There is a rebuttable presumption which favors the agency’s decision[,] and the challenging party has the burden of proving the contrary.” Id.

¶ 11. In the case before us, there is no evidence that the administrative agency’s decision was not supported by substantial evidence, or was arbitrary or capricious, beyond the agency’s scope of powers, or violative of some constitutional or statutory right. Therefore, we affirm.

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

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: MAXWELL, J.,

text:
    Courtney ELKINS a/k/a Cortney Elkins, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01679-COA.
    Court of Appeals of Mississippi.
    June 25, 2013.

      Courtney Elkins, appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Courtney Elkins appeals the summary dismissal of his motion for post-conviction relief (PCR) in which he claimed his parole had been unlawfully revoked. Because the record is insufficient to determine whether Elkins violated a condition of his parole, we must reverse and remand for an evidentiary hearing.

Background

¶ 2. On February 17, 1995, Elkins pled guilty in the Sunflower County Circuit Court to murder and was sentenced to life imprisonment. Twelve years later, the Mississippi Parole Board granted Elkins conditional parole and allowed him to relocate to Chicago, Illinois.

¶ 3. While in Chicago, Elkins was arrested on June 4, 2009, and charged with domestic battery, after he allegedly pushed down his girlfriend. Upon learning of his arrest, a preliminary parole hearing was held in Illinois to determine whether there was probable cause that Elkins had violated the conditions of his parole. The hearing officer concluded there was probable cause and recommended a parole-violation hearing be conducted. But two days later, on June 19, 2009, the Chicago Police Department dismissed by a nolle prosequi (or “nol-prossed”) the domestic-battery charge against Elkins.

¶ 4. In August 2009, Elkins was extradited to Mississippi. Elkins waived his right to a preliminary parole-revocation hearing and requested he be returned to custody for a final parole-revocation hearing before the Mississippi Parole Board. Though the Illinois charge had been nol-prossed months earlier, and the purported victim provided the Board an affidavit in which she recanted the battery allegation, the Board revoked Elkins’s parole on November 4, 2009. As a result, Elkins was sent back to prison for life.

¶ 5. Elkins filed a PCR motion on April 29, 2011, alleging his parole had been unlawfully revoked. The trial court summarily dismissed Elkins’s PCR motion without conducting a hearing. Elkins now appeals.

Standard of Review

¶ 6. A trial court’s dismissal of a PCR motion will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Martin v. State, 66 So.3d 1288, 1289 (¶ 3) (Miss.Ct.App.2011) (citing Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002)). But “when issues of law are raised, the proper standard of review is de novo.” Id. (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)).

Discussion

¶ 7. Elkins contends the Board and, ultimately, the trial judge erroneously revoked his parole based solely on the nol-prossed domestic-battery arrest.

¶ 8. Our supreme court has held that “before one released on parole may be returned to custody, [the State] must [show] that he has violated the terms and conditions of parole.” Moore v. Ruth, 556 So.2d 1059, 1061 (Miss.1990) (citing Miss. Code Ann. § 47-7-27 (Supp.1989)). There are also minimum due-process requirements for parole-revocation procedures, one of which is that the parolee is entitled to “a written statement by the fact finders as to the evidence relied on and reasons for revoking ... parole.” Riely v. State, 562 So.2d 1206, 1210-11 (Miss.1990) (emphasis added) (recognizing minimal due-process requirements apply in parole and probation revocation proceedings as established in Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (parole revocation) and Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (probation revocation)). Here, the Board did not provide a statement detailing what evidence it relied on in revoking Elkins’s probation. Thus, we are unsure if the Board relied solely on the nol-prossed arrest, which our supreme court instructs is insufficient without more to support a revocation. See Moore, 556 So.2d at 1062 (holding “mere fact” parolee was arrested is insufficient reason to revoke parole).

¶ 9. The proposed violation listed on MDOC letterhead is found under the heading “REPORT OF PAROLE CONDITIONS VIOLATED.” It lists Elkins’s alleged violation of a parole condition as “Rule # 9[:] I will not violate and [sic] city, County, State, or Federal laws.” The MDOC document further states: “Offender was arrested for Domestic Violence.”

¶ 10. There is also a second, slightly differing MDOC document entitled “Preliminary Revocation Hearing Report Disposition.” In this report, the hearing officer determined there was probable cause for MDOC to conduct a formal revocation hearing. The hearing officer cited the 2009 battery arrest and an alleged similar arrest in 2008, after which Elkins “was allowed to continue on parole at that time.” The hearing officer’s report noted the offender “states that the charges had been dropped,” but “no proof was available when he made this statement.”

¶ 11. Elkins waived a preliminary revocation hearing in Mississippi, and a final revocation hearing was held. The Board’s final order from this hearing merely indicates that Elkins “failed to abide by the law: Domestic Battery-Order of Protection.” But the Board did not describe what evidence supported this finding. See Riely, 562 So.2d at 1210-11; see also Morrissey, 408 U.S. at 489, 92 S.Ct. 2593.

¶ 12. While there is much uncertainty about the specific evidence the State presented to the Board, we do know the June 4, 2009 battery charge was nol-prossed in Illinois months before the final revocation hearing. “In Illinois, when the State moves for a nolle prosequi, the State formally indicates that it is unwilling to prosecute the case.” People v. Totzke, 362 Ill.Dec. 887, 974 N.E.2d 408, 413 (¶ 23) (Ill.App.Ct.2012). “This action has the same effect as moving to dismiss.” Id. So Elkins was obviously never convicted of battery while on parole. Still, we emphasize that based on the lower evidentiary standard applicable in revocation hearings, a dismissal, acquittal, or nolle prosequi of criminal charges does not per se preclude parole revocation stemming from the acts constituting the same charge. See Moore, 556 So.2d at 1061-62. But our supreme court has been emphatic that when the underlying charges are dismissed before a revocation hearing occurs, proof of the arrest alone is insufficient to prove that the defendant committed the act that violated the parole condition. Id. at 1062. And this court has held that even if criminal charges are not dismissed, “[t]he mere arrest of a probationer is not a violation of probation.” Brown v. State, 864 So.2d 1058, 1060 (¶ 9) (Miss.Ct.App.2004) (citing Moore v. State, 587 So.2d 1193, 1194 (Miss.1991)).

¶ 13. We recognize the Illinois authorities likely nol-prossed the battery charge after it became apparent Elkins was headed back to Mississippi for parole-revocation proceedings. However, our supreme court instructs that when there is an acquittal or dismissal of the underlying criminal charges, prior to completion of the revocation hearing, “the State must offer actual proof that [the petitioner] committed an act violating the terms and conditions of his parole, and the mere fact that he was arrested and charged with a crime may hardly suffice.” Morris v. State, 66 So.3d 716, 719-20 (¶ 17) (Miss.Ct.App.2011) (quoting Moore, 556 So.2d at 1062); cf. also Hardin v. State, 878 So.2d 111, 112 (¶ 3) (Miss.Ct.App.2003) (holding probation revocation requires State to show “more likely than not” terms of probation were violated). Because Illinois views a nol-prossed arrest as a dismissal, we find Moore’s reasoning also applies here. See Moore, 556 So.2d at 1061-62.

¶ 14. While there is no record evidence detailing what proof the Board actually relied on other than the dismissed charge, the trial judge summarily dismissed the PCR motion without an evidentiary hearing, finding that the State had clearly proven Elkins had violated his parole. Thus, we found it prudent to determine whether the record before this court differed from that before the trial judge. So we requested that the circuit court supplement the record with a transcript from Elkins’s parole-revocation hearing — the hearing during which the State had to prove by a preponderance of the evidence that Elkins had violated his parole. We also ordered the circuit court to provide “any other documents [it] relied upon ... in denying Elkins’s petition for post[-]conviction relief.” But the circuit court did not possess a transcript of the Mississippi Parole Board’s revocation hearing because the hearing was not recorded. Nor did the circuit court respond with any other documentary evidence it may have relied on in denying Elkins’s PCR motion.

¶ 15. Because it appears the Board relied solely on what amounts to a dismissed arrest when finding it more likely than not that Elkins violated a condition of his parole, precedent dictates that we reverse and remand this case for an evi-dentiary hearing consistent with the law and this opinion.

¶ 16. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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

      . Elkins appeals from the trial court’s decision dismissing his PCR motion. Because Elkins’s PCR motion challenged the revocation of his parole, the trial court evaluated his motion under the more deferential standard given to administrative-agency decisions. However, because Elkins is challenging his revocation under Mississippi Code Annotated section 99 — 39—5(l)(g) (Supp.2012), we review his claim under the standard for post-conviction-relief proceedings.

      . The Appellate Court of Illinois for the Second District further explained:
      The dismissal of charges through nolle pro-sequi reverts the matter to the same condition that existed before the commencement of the prosecution. Hence, no criminal charges remain pending against the defendant. Instead, the effect of a nolle prosequi is to terminate the charges and to permit the defendant to go wherever he or she pleases, without entering into a recognizance to appear at any other time. In order to reinstate the prosecution, the State must file a new charging instrument.

        Totzke, 362 Ill.Dec. 887, 974 N.E.2d at 413 (¶ 23) (internal citations omitted).

      . The State argues Elkins perhaps admitted the arrest allegation. But the document the State cites in support of this argument appears to be a checklist initialed by the then-Chairman of the Parole Board, Shannon War-nock. It does not bear Elkins’s signature and is not mentioned in any other Board record, nor was it cited by the trial judge as evidence supporting the parole revocation.


author: FAIR, J.,

text:
    Christopher J. CLAUSELL, Appellant v. Tammy CLAUSELL, Appellee.
    No. 2011-CA-01758-COA.
    Court of Appeals of Mississippi.
    June 25, 2013.

      Dustin Norman Thomas, Pascagoula, attorney for appellant.
    Carolyn Ann Geary, attorney for appel-lee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Christopher and Tammy married in 1999, and in 2003, purchased a jointly titled home. Christopher filed for divorce in Jackson County Chancery Court on September 4, 2009. The chancellor’s final judgment of divorce classified the home as marital property and ordered it to be sold, with the sale proceeds to be divided equally. Christopher appeals only that decision. Finding the chancellor was within her discretion, we affirm.

FACTS

¶ 2. Christopher and Tammy purchased their marital home in 2003 with a cashier’s check in the amount of $60,000. The proceeds of the check were part of a settlement from a personal-injury claim Christopher had filed prior to his marriage to Tammy, but which was settled shortly after they married. The deed to the home named both as grantees.

¶3. After he received the settlement proceeds, Christopher converted the check from his attorney’s trust account into several cashier’s checks and placed all the checks in a safety-deposit box. Some of the settlement checks were later deposited into a joint checking account established for marital expenses. Tammy admitted that she had access to the joint account but never made any deposits into it. At some point during their marriage, Christopher closed the account.

¶ 4. After Hurricane Katrina, Christopher and Tammy received a grant of $98,000. Both parties testified they each took $10,000 from the grant for personal use and spent most of the remainder remodeling their home. Christopher and Tammy shared the household bills until September 2009, when Christopher began paying all the bills himself under a temporary order of the court.

¶ 5. The couple lived in the home from 2003 until their separation in 2008. Christopher filed for divorce on September 4, 2009. In 2011, the chancellor granted the parties a divorced based on irreconcilable differences and ruled on the equitable distribution of the couple’s personal and real property. The chancellor classified the home as marital property and ordered it to be sold with the net profit to be divided equally between Christopher and Tammy.

STANDARD OF REVIEW

¶ 6. “When [an appellate court] reviews a chancellor’s decision in a case involving divorce and all related issues, our scope of review is limited by the substantial evidence/manifest error rule.” Yelverton v. Yelverton, 961 So.2d 19, 24 (¶ 6) (Miss.2007). Therefore, this Court will not disturb the chancellor’s findings “unless the chancellor was manifestly wrong, clearly erroneous or a clearly erroneous standard was applied.” Id. (citation omitted).

DISCUSSION

¶ 7. Christopher argues that the home was not marital property because it was purchased with cash proceeds from a personal-injury settlement he received shortly after he married Tammy. He also states that the chancellor erred in evenly splitting the proceeds, but he fails to support this argument with any legal authority. Because Christopher has failed to provide any citation to authority regarding the chancellor’s distribution as required by Mississippi Rule of Appellate Procedure 28(a)(6), we will mainly address the issue of the classification of the home as marital property, though we nevertheless note and affirm the chancellor’s compliance with and reliance on the guidance of the supreme court in Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994), in her overall division of marital property.

¶ 8. On June 13, 2010, a temporary order was entered awarding Christopher the marital home. Pursuant to this Court’s ruling in Pittman v. Pittman, 791 So.2d 857, 863-64 (¶¶ 16-17) (Miss.Ct.App.2001) , the chancellor used the date of the temporary order to determine the marital assets and marital-property accumulation. At issue before the chancellor was mainly the determination under Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994), of the home purchased in 2008 as marital property or separate property. The chancellor classified the home as marital property based on the fact that it was the primary residence utilized for the majority of the ten-year marriage, and that the deed listed both Christopher and Tammy as grantees. Evidence of the post-Katrina joint grant and use of $98,000 for repair of the jointly titled home was also noted. The chancellor set out a detailed discussion of her application of the factors in Ferguson, 639 So.2d at 928. After weighing the evidence and considering the Ferguson factors, the chancellor found that the parties’ marital assets and debts, including the marital home, should be divided equally, and ordered the sale of the home and an equal division of the net profits.

¶ 9. To equitably divide property, the chancellor must: (1) classify the parties’ assets as marital or separate, (2) value those assets, and (3) equitably divide the marital assets. Hemsley, 639 So.2d at 914; Ferguson, 639 So.2d at 928. Here, the only dispute by either party of the chancellor’s classification of assets as marital or separate and the division of those assets is the classification and division of their jointly titled house. In Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994), our supreme court stated that all marital assets are subject to possible equitable distribution in accordance with the factors provided in Ferguson. Marital property is “any and all property acquired or accumulated during the marriage ... and [is] subject to an equitable distribution by the chancellor.” Hemsley, 639 So.2d at 915. Further, such marital “[a]ssets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside of the marriage.” Id. at 914.

¶ 10. Christopher mistakenly asserts that the home cannot be marital property because it was purchased with money from his personal-injury settlement from litigation filed before marriage on a cause of action that accrued to him prior to marriage. However, Christopher was married to Tammy when he received the settlement check, and he was married to Tammy when they purchased the home. Further, “nonmarital assets ... may be converted to marital assets if they are commingled with marital assets or used for familial purposes. Such converted assets are then subject to equitable distribution.” Heigle v. Heigle, 654 So.2d 895, 897 (Miss.1995). “The burden is upon one claiming assets to be non-marital to demonstrate to the court their non-marital character.” A & L, Inc. v. Grantham, 747 So.2d 832, 839 (¶ 23) (Miss.1999) (citing Hemsley, 639 So.2d at 915). “This burden goes beyond a mere demonstration that the asset was acquired prior to marriage.” Id.

¶ 11. Reversal is warranted “only where the failure to make sufficient findings of fact and conclusions of law constitute manifest error.” Selman v. Selman, 722 So.2d 547, 554 (¶ 29) (Miss.1998). In this case, the chancellor set out her considerations in classifying the home as marital under Hemsley and conducted a detailed analysis of all the Ferguson factors in distributing the marital estate. We cannot say that the chancellor abused her discretion in classifying the home as marital and dividing proceeds of its sale equally. Accordingly, we affirm the judgment of the chancellor.

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

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

      . The purchase price was $56,000. The cashier’s check was for $60,000. The $4,000 difference paid outstanding property taxes on the home.

      . Overruled by Collins v. Collins, 112 So.3d 428, 432 (¶11) (Miss.2013) (holding that a temporary order no longer indicates the point of demarcation)). However, the date here is not in dispute.