author: FAIR, J.,

text:
    Richard (Rickey) PALERMO and Shelia Palermo, Appellants v. LIFELINK FOUNDATION, INC. d/b/a LifeLink Tissue Bank, Appellee.
    No. 2012-CA-01228-COA.
    Court of Appeals of Mississippi..
    Jan. 14, 2014.
    Rehearing Denied May 20, 2014.

      Frank G. Vollor, Allen Austin Vollor, Vicksburg, attorneys for appellants.
    Mark C. Carlson, Christy Vinson Ma-latesta, John Alfred Waits, Jackson, attorneys for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Richard and Shelia Palermo brought action against LifeLink Foundation, Inc. d/b/a LifeLink Tissue Bank (“LifeLink”) along with other defendants for strict products liability, products-liability negligence, and breach of warranty, alleging LifeLink supplied a contaminated/infected allograft for his surgery. Extensive discovery, various motions, and settlements resulted in the dismissal of all defendants, including LifeLink. Its dismissal as the last defendant occurred when the trial judge granted LifeLink’s motion for summary judgment. That decision gave rise to this appeal. We affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 2, 2005, Richard injured his right knee while working as an employee for Letourneau Technologies Inc. Richard sought treatment from Dr. Gene Barrett, an orthopedic surgeon at Mississippi Baptist Medical Center (MBMC). Dr. Barrett recommended surgery described as “anterior cruciate ligament construction and medical meniscus repair and the use of an allograft.”

¶ 3. On March 22, 2005, LifeLink, a nonprofit tissue bank, filled an order placed by Nutech Medical Inc. (“NuTech”) for a ti-bialis tendon-anterior allograft. Prior to LifeLink’s shipment of the allograft, it was tested and there were no findings of sepsis or medical infection in the medical history or autopsy of the allograft donor. LifeL-ink shipped the allograft to Nutech, where it remained for six days. On March 28, 2005, Nutech shipped the allograft to Medical Arts East Physician Surgery Center in Jackson, Mississippi. Dr. Barrett performed Richard’s surgery with the allo-graft on April 5, 2005. After the surgery, Richard’s knee began to exhibit signs of infection. Dr. Barrett removed the allo-graft from Richard’s knee on May 11, 2005, and the infection subsided. After the allograft was removed from Richard’s knee on May 11, 2005, further testing was done on the allograft. It showed that no bacteria was present.

¶ 4. The Palermos filed their first complaint in this action on March 7, 2007, against numerous defendants, including MBMC, Dr. Barrett, NuTech, and LifeL-ink. After the dismissal of several defendants, the Palermos filed a First Amended and Supplemental Complaint agaipst Li-feLink on March 16, 2010.

¶ 5. The parties entered into a scheduling order, and discovery was set to be completed on June 30, 2010. On March 24, 2010, the Palermos designated Dr. Keith Melancon and Dr. Olen Brown. On May 18, 2010, LifeLink designated Elizabeth Horn-Brinson as an expert in the field of tissue bank processing and preservation. On October 13, 2010, the Palermos designated Dr. Marion Kainer to refute the testimony of Horn-Brinson. The court denied the expert designation, finding that the designation was outside of the scheduling order and did not constitute a seasonable supplementation of an existing expert’s testimony.

¶ 6. LifeLink moved for summary judgment on August 9, 2011. On November 7, 2011, the Palermos filed a motion to request a court reporter for the summary judgment motion. In their motion, the Palermos stated that they had engaged an official court reporter to transcribe the hearing. Their court denied their motion, ruling that presence of a court reporter was not required. On December 20, 2011, the trial court granted summary judgment in favor of LifeLink. In its opinion and order, the court determined that Mississippi’s public health statute, Mississippi Code Section 41-41-1 (Rev.2013), also applied to human tissue and therefore prohibited the Palermos’ claims brought under the Mississippi Products Liability Act as codified in Mississippi Code Annotated section 11-1-63 (Rev.2012)-strict products liability, product-liability negligence, and breach of warranty. The court also stated that, because the Palermos failed to prove the elements of breach of duty or causation, they could not prove a case of simple negligence.

¶ 7. On appeal, the Palermos argue the following issues: (1) the trial judge committed reversible error in granting LifeL-ink’s motion for summary judgment, (2) the trial judge abused his discretion in denying the Palermos’ supplementary expert designation of Dr. Marion Kainer, and (3) the trial judge abused his discretion in denying the Palermos’ request for a court reporter to transcribe the hearing on summary judgment. Finding no error, we affirm the decision of the trial court.

DISCUSSION

1. Grant of Summary Judgment

¶ 8. We conduct a de novo review of a trial court’s grant or denial of a motion for summary judgment. Lewallen v. Slawson, 822 So.2d 236, 237 (¶ 6) (Miss.2002) (citation omitted). Summary judgment is proper where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed.R.Civ.P. 56(c)). In determining whether the trial court properly granted summary judgment, we view the facts in the light most favorable to the nonmovant. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (¶ 12) (Miss.1999).

¶ 9. Summary judgment must be granted when the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to his case and on which he bears the burden of proof at trial.” Borne v. Dunlop Tire Corp., 12 So.3d 565, 570 (¶ 16) (Miss.Ct.App.2009) (citation omitted). To withstand summary judgment, the nonmoving party must produce significant probative evidence of a genuine issue for trial. Id. (citing Price v. Purdue Pharm. Co., 920 So.2d 479, 485 (¶ 16) (Miss.2006)).

¶ 10. This case presents two legal issues to be resolved de novo by the court. First, we are called on, in this case of first impression, to determine whether the law of strict products liability applies in cases where donated human tissue causes injury. Second, we must decide whether the facts of this case are legally sufficient to allow a jury to decide the issue of negligence on the part of LifeLink.

A. Strict Product Liability

¶ 11. The Palermos claim that because “tissue” is not specifically excluded from the products-liability statute, this court should find that tissue may be considered a product.

¶ 12. The Mississippi Products Liability Act (MPLA) codified at section 11-1-63, states in relevant part:

(a) The manufacturer or seller of the product shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller:
(i) 1. The product was defective because it deviated in a material way from the manufacturer’s specifications or from otherwise identical units manufactured to the same manufacturing specifications, or
2. The product was defective because it failed to contain adequate warnings or instructions, or
3. The product was designed in a defective manner, or
4. The product breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product; and
(ii) The defective condition rendered the product unreasonably dangerous to the user or consumer; and
(iii) The defective and unreasonably dangerous condition ' of the product-proximately caused the damages for which recovery is sought.

Miss.Code Ann. § 11-1-63.

¶ 13. Mississippi’s public-health statute, section 41-41-lof the Mississippi Code Annotated, however, specifically provides protection for those persons or entities who use “human tissue” for medical purposes. With the codification of section 41-41-1, the Mississippi Legislature recognized that there is a strong public-policy interest in protecting those persons and entities who facilitate blood, blood products, human tissue, and organ donation from claims brought under the MPLA or similar products-liability statutes.

¶ 14. Section 41 — 41—1, states in pertinent part:

The procurement, processing, storage, distribution and/or use of whole blood, plasma, blood products and blood derivatives, human tissue, organs or bones for the purpose of injecting, transfusing, transplanting or transferring the same or any of them into the human body for all purposes whatsoever constitutes the rendering of a service by every person participating therein, whether or not any remuneration is paid therefor, and does not constitute a. sale. The maximum usable life span or shelf life for human blood preserved in citrate phosphate dextrose shall be governed by federal regulations promulgated and adopted by the Food and Drug Administration.

Miss.Code Ann. § 41-41-l(emphasis added). This section recognizes that medical transfusions and transplants are the rendering of medical services, notwithstanding that a tangible item is involved in the process.

¶ 15. The Mississippi Supreme Court has not heretofore been given the opportunity to interpret section 11-1-63 in the context of section 41-41-1 as to whether human tissue, donated through the services of a tissue bank, may be considered a product. Accordingly, this presents us with a matter of first impression: is section 41 — 41—1 an exception to section 11 — 1— 63, as LifeLink asserts and the trial judge found, or is section 11-1-63 an exception to section 41 — 41—1, as argued by the Paler-mos? “In a ease of first impression Mississippi Courts look to other jurisdictions in determining the matter.” Sheppard v. Miss. State Highway Patrol, 693 So.2d 1326, 1329 (Miss.1997) (citation omitted).

¶ 16. Nearly every state has some type of “blood shield” akin to Mississippi’s section 41^11-1. The case law reflects that there is a nationwide antipathy over applying products-liability or strict-liability concepts to body parts such as blood and tissue. See, e.g., Condos v. Musculoskeletal Transplant Found., 208 F.Supp.2d 1226, 1229-80 (D.Utah 2002) (finding that donated human bone tissue used to repair plaintiffs spine was not a product subject to strict products liability); Cryolife Inc. v. Superior Court, 110 Cal.App.4th 1145, 2 Cal.Rptr.3d 396, 405 (Cal.Ct.App.2003) (holding that a human tendon allograft provided by tissue bank was not a product under the relevant California statute); Zichichi v. Middlesex Mem’l Hospital, 204 Conn. 399, 528 A.2d 805, 809 (1987).

¶ 17. Further, Mississippi has recognized the striet-products-liability provisions found in the Restatement (Second) of Torts. The Restatement (Third) updates the area of products-liability law in light of the extensive use of human tissue and states: [H]uman blood and human tissue[,] even when provided commercially, are not subject to the rules of this Restatement.” Restatement (Third) of Torts § 19 (1998). This update clarifies human tissue, such as the allograft in this case, as excepted from designation as a “product.”

¶ 18. Striet-products-liability protection is not provided for the distribution of human tissue for medical procedures under the public policy of Mississippi underlying section 41-41-1, as well as the strong nationwide public policy established against such liability in statutes and case law in the overwhelming majority of other states. Further, this court finds that, like blood made available for transfer to others, human tissue provided to others in medical procedures is not a “product” subject to products-liability law, and the distribution of human tissue, including reasonable payments for related services, does not constitute a “sale” for purposes of strict liability.

B. Negligence

¶ 19. The Palermos also assert products liability negligence in their complaint. In accordance with our finding today that human tissue is not a product under the MPLA, the Palermos products-liability negligence claim fails.

¶ 20. Notwithstanding the MPLA, the Palermos still do not survive the summary judgment stage on claims of simple negligence. In order to prove negligence, plaintiff must prove duty, breach, causation, and injury. Meena v. Wilburn, 603 So.2d 866, 869 (Miss.1992). “Duty and breach of duty are essential to finding negligence and must be demonstrated first.” Rein v. Benchmark Contr. Co., 865, So.2d 1134, 1143 (¶ 30) (Miss.2004) (citation omitted).

¶21. The record shows that LifeLink, as a tissue bank, is required to follow certain guidelines with regard to testing, packaging, and distributing human tissue set by the United States Food and Drug Administration (FDA) and the American Association of Tissue Banks (AATB). Horn-Brinson, LifeLink’s expert in the field of tissue-bank processing and preservation methods, stated that, at the time this allograft was procured, she was responsible for ensuring that LifeLink complied with the FDA and AATB. Horn-Brinson testified on the processing methods used for the particular allograft in this casé. In packaging the allograft for shipment, LifeLink followed the AATB’s standards for tissue banking, which require processed frozen or eryopreserved muscu-loskeletal tissue to be stored at negative forty degrees Celsius or colder. The record shows that the allograft used for Richard’s surgery was shipped on dry ice and stored at the required temperature during delivery. LifeLink had no more handling of the allograft after it was shipped to NuTeeh on March 22, 2005. Six days later, NuTech shipped the allograft to Medical Arts East Physician Surgery Center in Jackson, Mississippi.

¶ 22. The Palermos did not provide any evidence or expert testimony to show that LifeLink did not comply with the requirements issued by the FDA and AATB. On the contrary, the Palmeros’ expert, Dr. Olen Brown, stated in his deposition that LifeLink is a “good company” and complied with FDA regulations. Dr. Melan-con, also one of the Palermos’ experts, was asked in his deposition whether he had any criticism of LifeLink’s processing methods. Dr. Melancon stated that he did not have any criticism, as he unaware of LifeLink’s process for taking steps against contamination.

¶ 28. The Palermos are barred from bringing a strict-products-liability claim or products-liability claim against Li-feLink. They also failed to create a “genuine issue of material fact” as to whether LifeLink breached any duty to Richard. Therefore, we find the Palermos’ arguments under this issue to be meritless and affirm the trial court’s grant of summary judgment in favor of LifeLink.

2. Exclusion of Dr. Kainer as a Witness

¶ 24. The Palermos argue that the trial court improperly struck their expert, Dr. Kainer. “Only in cases of abuse of discretion will we reverse a trial court’s ruling on discovery matters.” Palmer v. Volkswagen of Am. Inc., 904 So.2d 1077, 1090 (¶ 54) (Miss.2005) (citation omitted).

¶ 25. The court originally set June 30, 2010, as the deadline for discovery. In the scheduling order, the judge ordered the Palermos’ experts be designated in March 2010 and LifeLink’s experts to be designated in May 2010. After various motions to compel production filed by both parties and the Palmeros’ motion to extend the discovery deadline, the court granted an extension until October 14, 2010, but only for enforcement and compliance with existing discovery requests.

¶26. On October 13, 2010, the Paler-mos filed a “supplemental” expert designation of Dr. Kainer, an infectious-disease physician and healthcare epidemiologist. LifeLink subsequently filed a motion to strike the Palermos’ supplemental expert designation. The trial judge granted Li-feLink’s motion, stating that the Palermos should have anticipated testimony which would defend those handling processes, since they had asserted that LifeLink did “carelessly, negligently, and recklessly screen, harvest, handle, test, store, package and distribute” the allograft “in the exercise of reasonable care and diligence should have known it was infected and/or contaminated.... ” They should have, therefore, designated experts accordingly and within the scheduling order. Referring to Mississippi Rule of Civil Procedure 26(b)(4)(A)(i), the trial judge noted that the Palermos’ designation of Dr. Kainer, an entirely new expert, was nearly seven months after their March 2010 deadline, and there was no reasonable explanation for the delay.

¶ 27. The trial judge cited the supreme court’s holding that:

Our trial judges are afforded considerable discretion in managing the pre-trial discovery process in their courts, including the entry of scheduling orders setting out various deadlines to assure orderly pre-trial preparation resulting in timely disposition of cases. Our trial judges also have a right to expect compliance with these orders, and then parties/attorneys fail to adhere to the provisions of these orders, they should be prepared to do so at their own peril.

Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1087, 1042 (¶ 14) (Miss.2003) (citations omitted).

¶ 28. The Palermos claim that LifeL-ink’s designation of Horn-Brinson, and specifically her testimony regarding LifeL-ink’s processing methods, made it necessary for them to provide a rebuttal expert. However, Dr. Kainer’s affidavit made no mention of the standard of care. Further, in their complain against LifeLink, the Palermos’ negligence claim is the sole basis of their claims against LifeLink. “A party is under a duty seasonably to amend a prior response if he obtains information” that renders the initial response inadequate or where “a failure to amend the response is in substance a knowing concealment.” M.R.C.P. 26(f)(2). “ ‘Seasonably does not mean several months later. It means immediately.” West v. Sanders Clinic for Women P.A., 661 So.2d 714, 721 (Miss.1995) (citation omitted). This observation was made by the trial judge in detailed findings supporting his determination that the designation of Dr. Kainer, or any other expert on that issue, was unreasonably late.

¶ 29. Before excluding Dr. Kainer as an expert, the trial judge also applied the four-factor test used by our courts in determining whether sanctions are appropriate for discovery transgressions. We find that the judge did not abuse his discretion in excluding Dr. Kainer.

3. Denial of Palermos’ Motion for a Court Reporter

¶ 30. On appeal, the Palermos argue that the trial judge abused his discretion in denying their request for their own, separately retained court reporter to transcribe the summary judgement hearing. Here, we find that any error made by the trial court would be considered harmless error. However, notwithstanding our finding on LifeLink’s summary-judgment motion, this argument is without merit

¶ 31. “The orderly administration of justice dictates that the trial judge be vested with a considerable amount of discretion with respect to trial calendaring and docket management, and we will not overturn a trial court’s decision absent an abuse of discretion.” Ross v. State, 954 So.2d 968, 992 (¶ 41) (Miss.2007) (citation omitted).

¶ 32. The Palermos cite to Mississippi Code Annotated Section 9-13-32 (Rev. 2002), arguing that they had a statutory right to provide their own court reporter to transcribe the proceeding when the court did not provide its own official court reporter. Section 9-13-32 states:

Any attorney of record in any cause pending in a court which does not provide an official court reporter, may, in the discretion of such attorney, record or have recorded any court proceeding in such cause by mechanical means or stenographically. Any expenses incident thereto shall be borne by the party or parties represented by such attorney of record. The record of the court proceeding shall be used for impeachment purposes only.

Miss.Code. Ann. § 9-13-82.

¶ 33. In 1975 in Newell v. State, our supreme court elaborated and declared that “[t]he inherent power of this Court to promulgate procedural rules emanates from the fundamental constitutional concept of the separation of power and the vesting of the judicial powers in the courts.” Newell v. State, 308 So.2d 71, 76 (Miss.1975). In an order entered on May 26, 1981, the Supreme Court of Mississippi, based on its constitutional powers as discussed in Newell, adopted the original Mississippi Rules of Civil Procedure, “any and all statutes and court rules previously adopted to the contrary notwithstanding.” The court added that “in the event of a conflict between these rules and any statute or court rule previously adopted!,] these rules shall control.

¶ 34. Mississippi Rule of Civil Procedure 78 provides that a court has the discretion to dispense entirely with oral argument on a motion, and can rule based only upon the brief written statements of reasons in support and in opposition to the motion. M.R.C.P. 78. Our court has stated that “[i]f a hearing is not even necessary to make a decision on a motion for summary judgment, then transcription of that hearing would be inessential, as well.” Hosey v. Mediamolle, 963 So.2d 1267, 1270 (¶ 8) (Miss.Ct.App.2007).

¶ 35. We find no merit in the Palermos’ claim that they had a statutory right to transcribe the summary-judgment hearing. Furthermore, there is “no applicable rule justifying the adoption of such a mandatory transcription rule for dispositive motion hearings.” Id. Therefore, the judge did not abuse his discretion in denying the Palmeros’ request for their own court reporter.

¶ 36. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, P.J., AND BARNES, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., NOT PARTICIPATING.

      . The Palermos do not address the breach-of-warranty claim on appeal.

      . An allograft is a body part or tissue of another human being.

      . "[T]he supreme court [has] stated that before a trial court excludes evidence for a transgression in discovery, it should consider: (1) the explanation for the transgression; (2) the importance of the testimony; (3) the need for time to prepare to meet the testimony; and (4) the possibility of a continuance.” Moore v. Delta Reg’l Med. Ctr., 23 So.3d 541, 546 (¶ 17) (Miss.Ct.App.2009) (citing Miss. Power & Light Co. v. Lumpkin, 725 So.2d 721, 733-34 (¶ 60) (Miss.1998)).

      . The only published reference to this statute may be found in an attorney general’s opin- ■ ion, which stated that the statute was designed for justice and municipal courts, which have no official court reporters provided by statute. Miss. Att’y Gen. Op., 2011-00161, 2011 WL 2883607, Patch (June 10, 2011).


source: Caselaw Access Project

author: JAMES, J.,

license: Public Domain

text:
    Stacy L. MILLER a/k/a Stacy Liddell Miller a/k/a Stacy Miller, Appellant, v. STATE of Mississippi, Appellee.
    No. 2013-KM-01881-COA.
    Court of Appeals of Mississippi.
    Dec. 2, 2014.

      Mark Kevin Horan, Greenwood, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.

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

for the Court:

¶ 1. Stacy Miller was charged with driving under the influence of alcohol after being stopped at a license checkpoint and registering a .10% blood-alcohol concentration (BAC) on the Intoxilyzer 8000. After being convicted as a first-time offender in justice court, Miller appealed to the Circuit Court of Montgomery County, Mississippi. The circuit court affirmed his conviction, and he was sentenced to pay a fine of $550.50 plus court costs and to forty-eight hours in jail, to be suspended upon the payment of the fine and court costs. Miller appeals raising the following issues: (1) whether the trial court erred in holding that the officer had probable cause to administer the portable breathalyzer; and (2) whether the trial court erred in failing to exclude the intoxilyzer results.

FACTS

¶ 2. The Montgomery County Sheriffs Department and the Mississippi Highway Patrol were conducting a license checkpoint on Mississippi Highway 407 in the Poplar Creek area of Montgomery County on July 5, 2012. Miller arrived at the checkpoint around 9:30 p.m. Mississippi Highway Patrol Trooper Josh McBride encountered Miller at the checkpoint. Trooper McBride testified that he asked for Miller’s driver’s license and he noticed several empty beer containers on the driver’s floorboard. Trooper McBride also smelled a strong order of alcohol in the car and then inquired about Miller’s alcohol consumption.

¶ 3. Miller admitted that he, along with a few friends, had gone fishing and had several beers. Trooper McBride then offered Miller a portable breath test. Miller submitted to the breath test, which detected alcohol, and Trooper McBride ordered Miller out of the vehicle. When Miller stepped out, Trooper McBride testified that Miller seemed to be unsteady on his feet. Trooper McBride then noted that there was a strong alcohol odor emanating from Miller’s person, and Miller was transferred to Montgomery County Emergency Operations Center. Miller was then tested on the Intoxilyzer 8000 around 10:15 p.m. Miller registered a .10% BAC and was charged with driving under the influence of alcohol.

¶ 4. Miller was convicted in justice court and appealed to the Circuit Court of Montgomery County. The circuit court also found Miller guilty, and he was ordered to pay a fíne of $550.50 plus court costs, and was sentenced to forty-eight hours in jail, with the jail time suspended upon payment of the fine and court costs.

¶ 5. Miller appeals.

STANDARD OF REVIEW

¶ 6. When reviewing the results of a bench trial, “[a] circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” Mason v. State, 799 So.2d 884, 885 (¶ 4) (Miss.Ct.App.2001). “In a bench trial, the trial judge is the jury for all purposes of resolving issues of fact.” Lindley v. State, 143 So.3d 654, 657 (¶ 11) (Miss.Ct.App.2014). The appellate court “will reverse only where the findings of the trial judge are manifestly erroneous or clearly wrong.” Sendelweck v. State, 101 So.3d 734, 739 (¶ 19) (Miss.Ct.App.2012). “Decisions regarding the admissibility of evidence will be reversed only if the trial court has abused its discretion.” Drabicki v. City of Ridgeland, 130 So.3d 113, 115 (¶ 7) (Miss.Ct.App.2013).

DISCUSSION

I. Whether the trial court erred in holding that the officer had probable cause to administer the portable breathalyzer.

¶ 7. Miller argues that no probable cause existed to administer the portable breathalyzer test. Miller also asserts that the trooper’s observation that he “appeared” to be very intoxicated does not meet the threshold required for probable cause.

¶ 8. Sufficient evidence exists to establish probable cause for Trooper McBride to administer the portable breathalyzer test. First, Trooper McBride smelled alcohol in the car and saw open beer containers on the floorboard. Second, Trooper McBride noted that Miller’s eyes were “red and glassy,” an indication of intoxication. Also, Miller admitted to drinking several beers earlier in the day while fishing with friends. Finally, once Miller stepped out of the vehicle, Trooper McBride noted that Miller seemed to be “unsteady on his feet,” and he smelled alcohol on Miller’s person. We have previously stated that “[t]here is a long line of precedent in Mississippi which holds the smell of alcohol emanated from a car is enough to provide an officer with probable cause to make an arrest.” Dale v. State, 785 So.2d 1102, 1107 (¶ 16) (Miss.Ct.App.2001). In Deloach v. City of Starkville, 911 So.2d 1014, 1017 (¶12) (Miss.Ct.App.2005), we held that an officer’s testimony about the defendant’s appearance and behavior and the defendant’s statement to the police were sufficient to establish a prima facie case for common-law driving under the influence.

¶ 9. Miller also attributes the fact that Trooper McBride did not administer “roadside tests” to a lack of probable cause. Field sobriety tests “may create probable cause to arrest for driving under the influence.” Edwards v. State, 795 So.2d 554, 563 (¶34) (Miss.Ct.App.2001). There were several other factors previously discussed that attributed to Trooper McBride’s conclusion that Miller was driving under the influence. Field sobriety tests are not the only tools available to law enforcement when determining if an individual is under the influence. Therefore, this issue is without merit.

II. Whether the trial court erred in failing to exclude the intoxilyzer results.

¶ 10. Miller contends that the results from the Intoxilyzer 8000 are unreliable. According to Miller, although calibration certificates are admissible as nontestimonial evidence, when there is a genuine issue of authenticity of the certificate, the State must present the calibrating officer for testimony and an opportunity for cross-examination. Miller next argues that there is no evidence that the Intoxilyzer 8000 had been calibrated on-site as required by statute.

¶ 11. Miller cites Mississippi Code Annotated section 63-11-19 (Rev. 2013):

The State Crime Laboratory shall make periodic, but not less frequently than quarterly, tests of the methods, machines or devices used in making chemical analysis of a person’s breath as shall be necessary to ensure the accuracy thereof, and shall issue its certificate to verify the accuracy of the same.

The statute requires periodic calibration tests of machines similar to the Intoxilyzer 8000. We have previously stated, however, that “[t]his statute ... is not a rule of evidence, so that evidence otherwise admissible will not be excluded because of failure to comply with the statute.” Hudspeth v. State, 28 So.3d 600, 603-04 (¶ 12) (Miss.Ct.App.2009).

¶ 12. We have also previously stated that “[t]he discretion of the trial judge must be exercised within the boundaries of the Mississippi Rules of Evidence. Unless the trial judge so abused his discretion as to prejudice the accused’s case, we will not reverse his ruling.” Adams v. State, 794 So.2d 1049, 1054 (¶ 8) (Miss.Ct.App.2001).

¶ 13.' Miller also relies on McIlwain v. State, 700 So.2d 586 (Miss.1997), and Drabicki v. City of Ridgeland, 130 So.3d 113 (Miss.Ct.App.2013). Mcllwain discusses a three-prong test for laying the foundation to admitting the results of a DUI test: “1) proper procedures were followed, 2) whether the operator of the machine was properly certified to perform the test, and 3) whether the accuracy of the machine was properly certified.” Id. at 590 (¶ 18). Here, through the testimony of Trooper McBride, all three prongs of the test were satisfied. Trooper McBride testified as to the proper procedure he followed in administering the test; he testified that he was certified to operate the machine; and the certificate of calibration and Trooper McBride’s certification were admitted into the record. The intoxilyzer test is admissible because it does not violate the Confrontation Clause. Matthies v. State, 85 So.3d 838, 842 (¶ 14) (Miss.2012).

¶ 14. Miller also argues that there is a genuine issue as to the authenticity of the certification. Miller, however, offers no evidence to support his challenge to the validity of the certificate. Also, Miller places emphasis on the fact that the calibration date is on a Sunday. According to the State’s brief, however, the instrument self-calibrates and no technician is required to be present during the process. There is nothing in the record to indicate the State’s contention regarding automatic calibration of the machine is incorrect. Therefore, this issue is without merit.

CONCLUSION

¶ 15. As evidenced by Trooper McBride’s testimony, probable cause existed to give Miller the portable breathalyzer test. Miller admitted to drinking, had red glassy eyes, smelled of alcohol, and was unsteady on his feet. These observations were enough to give Miller the breathalyzer test. At trial, the proper foundation was laid to admit the Intoxilyzer 8000 results into evidence. The State established that the proper procedure was followed; Trooper McBride was certified to give the test; and the machine itself was calibrated. Miller attempts to attack the validity of the calibration; however, there is nothing in the record to suggest that the results of the test were invalid because the machine was not calibrated properly. Accordingly, we affirm the judgment of the trial court.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF MONTGOMERY COUNTY OF CONVICTION OF DRIVING UNDER THE INFLUENCE OF ALCOHOL, FIRST OFFENSE, AND SENTENCE OF FORTY-EIGHT HOURS IN JAIL, WITH THE SENTENCE SUSPENDED UPON PAYMENT OF A $550.50 FINE PLUS COURT COSTS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: IRVING, P.J.,

text:
    Ryan McCLENDON, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-01405-COA.
    Court of Appeals of Mississippi.
    Dec. 2, 2014.
    Jonathan W. Martin, attorney for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before IRVING, P.J., FAIR and JAMES, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. A Lee County jury found Ryan McClendon guilty of armed robbery. The circuit court sentenced McClendon to twenty-five years in the custody of the Mississippi Department of Corrections, with fifteen years suspended and five years of post-release supervision. Aggrieved, McClendon appeals, asserting that his trial counsel was ineffective and that the verdict was against the overwhelming weight of the evidence.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On the evening of November 20, 2010, Nancy Hudson was getting into her mother’s car, which was parked in a well-lit area on Jackson Street in Tupelo, Mississippi, when McClendon, who was dressed in all black with a black toboggan cap, walked across the street toward Nancy, held a gun to her head, and demanded that she give him her purse. Nancy was able to remove her cell phone before handing the purse to McClendon.

¶ 4.' McClendon ran across the street and was almost hit by a car driven by Kayla Lawrence. Elizabeth Watts and Pam Genry were passengers in Kayla’s car. McClendon, after regaining his composure, continued to run across the street and ran behind an apartment complex. The women noticed Nancy crying and drove back to check on her. Nancy called the police. Tupelo Police Sergeant James Hood responded to the call around 9:00 p.m. Sergeant Hood called for a K9 officer, and Officer Zachary Anderson responded to the scene. Officer Anderson had his dog track the armed-robbery suspect through a field and to the back of a house where a black shirt, a purse, and a gun were found. The women gave their statements to the police and left the scene. Later that same evening, the women saw McClendon walking down another street and called 911. After further investigation, McClendon was arrested and indicted for the armed robbery of Nancy.

¶ 5. At trial, Nancy testified that she did not get a good look at her assailant, but she did notice that he was a male individual not much taller than she. Nancy also stated that after the assailant ran across the street, it looked like “he threw something and then he went around the side of the apartment complex.”

¶ 6. Christopher Allen, an acquaintance of McClendon, testified that on November 20, 2010, the night of the robbery, McClen-don pulled up to Christopher’s apartment in a car and told Christopher that he was “fixing to hit a lick,” which means that McClendon was about to rob somebody. Christopher further testified that McClen-don was wearing a black sweatshirt, pants, and a toboggan cap. Christopher further testified that he did not see a gun. Candace Nalls, Christopher’s girlfriend and a person who has known McClendon since 2009, testified that McClendon came into the apartment and also told her that he was trying to “hit a lick.” She further testified that she saw McClendon about a week later, and at that time, McClendon said to her, “I hit a lick and I could have had some money, but I dropped the purse [while] running [away].”

¶ 7. Elizabeth testified that she was in the passenger seat of Kayla’s car. She explained that she saw a man run across the road in front of the car, clutching something underneath his arm. She stated that it was the same man they had spotted later that evening walking down a different street. At trial, Elizabeth identified McClendon as the individual that she had seen on the night of the robbery. Kayla testified that she was driving on Jackson Street when she first saw McClendon. She stated that she made eye contact with him. Despite having identified a person, other than McClendon, in a photo lineup during the investigative stage of the proceedings, Kayla identified McClendon during trial, while affirming the description of the assailant that she had given to the police a couple of days after the incident.

¶ 8. Officer Anderson testified that his dog tracked behind the apartment complex and through a hole in a fence, through a thicket, and into a field. After entering the field, the dog took a left, went south, and came to another fence. Officer Anderson further testified that the dog jumped over this fence into the back yard of a residential home, where he found a black shirt. Also, Officer Anderson testified that while backtracking, he found a purse and a gun in the thicket.

¶ 9. Officer Lynette Sandlin was the lead investigator in this case, and she took a statement from Nancy and interviewed Kayla and her passengers on the night of the robbery and also a few days later. She testified that she obtained the purse, the weapon, and the long-sleeve black tee shirt found during the investigation and sent the items to the crime lab. According to the crime-lab report, no fingerprints could be identified on the weapon, but an inconclusive palm print was lifted from handle of the weapon. Sandlin also stated that she arranged the photo lineup with Elizabeth and Kayla and that both women identified individuals who were not McClendon. Sandlin testified that Jeremy McClendon, the defendant’s cousin, made a statement to the police and identified McClendon as the one who committed the robbery.

¶ 10. McClendon testified in his own defense. He claimed that he was at home all day with Darvelyn Johnson, his girlfriend, babysitting a friend’s baby. McClendon admitted knowing Candace and Christopher. However, he denied that he visited Christopher at Christopher’s apartment on the night of the robbery and stated that Christopher and Candace must have made up the story — that he told them that he was going to hit a lick. He also denied robbing Nancy. He further claimed that he had dreadlocks on November 20, 2010, and did not cut his hair until December 2010. He explained that he knew he cut his hair around December 14, 2010, because he wanted to look professional for his mother’s party following the renewal of her wedding vows, which was held on December 16, 2010. Finally, he testified that he never wore a toboggan cap when he had dreadlocks, because he wanted his hair to flow.

¶ 11. Darvelyn testified that she and McClendon were at his trailer all day watching a friend’s baby and that McClen-don never left. Darvelyn also testified that around 8:00 p.m. or 8:80 p.m., Glenda Payne, McClendon’s aunt, came to bring over some bottles for the baby because Darvelyn had lost the baby’s bottle. Dar-velyn further testified that McClendon had dreadlocks at the time she was with him babysitting. Glenda testified that she saw him at his trailer around 8:30 p.m. on November 20, 2010, when she dropped off some bottles for the baby. She testified that she stayed awhile to play with the baby. According to her, McClendon did not leave the trailer.

DISCUSSION

I. Ineffective Assistance of Counsel

¶ 12. On appeal, McClendon argues that he received ineffective assistance of counsel because of his trial counsel’s failure to (1) request jury instructions on misidentification and impeachment of witnesses, and (2) object to the State’s leading questions.

It is unusual for this Court to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal. This is because we are limited to the trial court record in our review of the claim[,] and there is usually insufficient evidence within the record to evaluate the claim. The Mississippi Supreme Court has stated that, where the record cannot support an ineffective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief. This Court will rule on the merits on the rare occasions where (1) the record affirmatively ■shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.

Aguilar v. State, 847 So.2d 871, 878 (¶ 17) (Miss.Ct.App.2002) (internal citations omitted). The record does not affirmatively show ineffectiveness of constitutional dimensions, and the parties have not stipulated that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the circuit court. Consequently, we decline to address this issue, leaving McClendon free to seek relief through the post-conviction process if he desires to do so.

II. Weight of the Evidence

¶ 13. McClendon also argues that the circuit court erred in denying his motion for a new trial because the verdict was against the weight of the evidence. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb [the] verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (citation omitted).

¶ 14. Here, McClendon asserts that Elizabeth’s and Kayla’s photo-lineup mis-identification, the lack of physical evidence, and the conflicting testimony prove that the verdict is against the overwhelming weight of evidence. While Kayla and Elizabeth did identify a different individual during the photo lineup, at trial, both women identified McClendon as the person they saw running away from Nancy’s car on the night of the robbery and explained that the pictures in the photo lineup did not clearly show the individuals’ faces.

¶ 15. Christopher and Candace testified that, before the robbery, McClendon told them that he was going to hit a lick. About a week later, according to Candace, McClendon told her, “I hit a lick and I could have had some money, but I dropped the purse [while] running [away].” Officer Sandlin noted that Jeremy came forward and made a statement that his cousin, McClendon, committed the robbery. A gun, Nancy’s purse, and a black long-sleeve tee shirt were found near the area where McClendon was last seen.

¶ 16. Based on these facts, it cannot be legitimately argued that the verdict is against the weight of the evidence.

It is well settled that the jury has the duty to determine the impeachment value of inconsistencies or contradictions, as well as testimonial defects of perception, memory and sincerity. The court has stated numerous times that, even when there are conflicting statements and testimony, it is for the jury to weigh the credibility of testimony and statements.

Watts v. State, 958 So.2d 294, 298 (¶12) (Miss.Ct.App.2007) (internal citations omitted). In short, the jury, the ultimate fact-finder, accepted the State’s evidence and rejected McClendon’s alibi defense. We find that allowing the verdict to stand will not sanction an unconscionable injustice. Accordingly, we affirm.

¶ 17. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIFTEEN YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

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


author: BARNES, J., ROBERTS, J.,

text:
    Deriera MAGEE a/k/a Derie’Ra Magee, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-01121-COA.
    Court of Appeals of Mississippi.
    Dec. 9, 2014.

      Deriera Magee, appellant, pro se.
    Office of the Attorney General by Barbara Wakeland Byrd, attorney for appel-lee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court:

¶ 1. On July 21, 2000, Deriera Magee pleaded guilty to possession of a controlled substance in Cause No. K-2000-013P and was sentenced to fourteen years, with six years to serve in the custody of the Mississippi Department of Corrections (MDOC) and eight years of post-release supervision (PRS).

¶ 2. Subsequently, on May 17, 2001, Magee pleaded guilty to possession of a controlled substance with intent to distribute in Cause No. K-2001-094E, and he was sentenced to fifteen years. Five years were to be served in the custody of the MDOC, consecutively to his prior six-year sentence; the remaining ten years were to be served on PRS concurrently with the eight years of PRS already imposed.

¶ 3. Magee was discharged from MDOC’s custody on April 29, 2008, to begin serving his two concurrent PRS terms. However, on March 27, 2009, Magee was arrested and charged with possession of a controlled substance with intent to distribute. As a result, the Pearl River County Circuit Court revoked Magee’s eight-year term of PRS (Cause No. K-2000-013P) on July 21, 2009. Inexplicably, the record reflects that prior to the revocation, a field officer had filed a “Petition for Termination of Post-Release” for Cause No. K-2001-094E on May 19, 2009, stating that Magee “ha[d] met the conditions of his [PRS].”

¶ 4. On September 5, 2012, Magee filed a motion for post-conviction relief (PCR), contending that the revocation of his PRS for the 2000 sentence violated his rights against double jeopardy, false arrest, and false imprisonment. He also brought a claim for ineffective assistance of counsel. The Pearl River County Circuit Court judge dismissed Magee’s PCR motion as being proeedurally time-barred under Mississippi Code Annotated section 99-39-5(2) (Supp.2012). The judge also noted that Magee failed to cite any authority to support his arguments. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. A PCR motion may be summarily dismissed by a circuit court without an evidentiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2014). “To succeed on appeal, the movant must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive.” Scott v. State, 141 So.3d 34, 35 (¶2) (Miss.Ct.App.2014) (citing Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss. 1999)). Unless the circuit court’s decision is “clearly erroneous,” we will not reverse its dismissal of a PCR motion. Ashmore v. State, 127 So.3d 303, 305 (¶5) (Miss.Ct.App.2013) (citing Means v. State, 43 So.3d 438, 441 (¶ 6) (Miss.2010)). “However, questions of law are reviewed de novo.” Id.

DISCUSSION

¶ 6. Mississippi Code Annotated section 99-39-5(l)(h) (Supp.2014) states that a PCR movant “may file a motion to vacate, set aside or correct the judgment ... if the person claims .... [tjhat his sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody!.]” In the case of a guilty plea, the failure to file a PCR motion “within three (3) years after entry of the judgment of conviction” results in a procedural bar. Miss.Code Ann. § 99-39-5(2).

¶ 7. However, section 99-39-5(2)(b) provides an exception from the time-bar for “those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.” (Emphasis added). Despite this clearly-stated exception to the time limitation in the statute, the trial court ruled that Magee’s motion was time-barred. The specially concurring opinion posits a theory under which the trial court could be correct. The concurrence contends that there is no “specific statute of limitations for unlawful-revocation claims”; therefore, Magee’s claim is statutorily time-barred under Mississippi Code Annotated section 15-1-49 (Rev. 2012), the “catch-all” statute of limitations. In a recent case, Fluker v. State, 2013-CP-00608-COA, — So.3d —,—(¶ 18), 2014 WL 2723882, at *4 (¶ 18) (Miss.Ct.App. June 17, 2014) (petition for certiorari filed Nov. 10, 2014), our Court stated in dicta that the general statute of limitations of section 15-1-49 would be an additional bar to Patrick Fluker’s PCR motion. However, upon a more thorough examination, we find this analysis contrary to the letter and spirit of the Uniform Posb-Conviction Collateral Relief Act (UPCCRA).

¶ 8. Section 15-1-49 provides a general three-year statute of limitations for “all actions for which no other period of limitation is prescribed[.]” Section 99-39-5(2), however, clearly provides a three-year limitation for filing post-conviction motions (that is, motions “for relief under this article” — Title 99, Chapter 39, Article 1, the Mississippi Uniform Post-Conviction Collateral Relief Act). The fact that a specific exception was created for “those cases in which the prisoner claims that ... his probation, parole or conditional release has been unlawfully revoked” does not mean that there is no “prescribed” limitation, but rather that the Legislature, in its wisdom, has decided to except certain cases from the prescribed limitation.

¶ 9. The concurring opinion argues that were we to apply the exception in section 99-39-5(2), it would provide Magee -with “an unlimited amount of time to file his unlawful-revocation claim”; however, we must presume that the Legislature considered such issues when enacting the language of the UPCCRA. Section 99-39-3(1) of the UPCCRA states that “[t]he purpose of this article is to revise, streamline and clarify the rules and statutes pertaining to post-conviction collateral relief law and procedures ... and to provide the courts of the state with an exclusive and uniform procedure for the collateral review of convictions and sentences.” (Emphasis added). Applying section 15-1-49’s “catch-all” limitation to circumvent the specific exceptions to the statute of limitation prescribed in section 99-39-5(2) would violate the letter and spirit of the law, which is to provide an “exclusive and uniform procedure” for the review of claims brought under the UPCCRA. Furthermore, if we employ the concurring opinion’s rationale to other stated UPCCRA exceptions, a prisoner who was being held in custody, even though his sentence had expired, could not bring a motion three years after the expiration of his sentence, to challenge his unlawful imprisonment; he would have to remain in custody indefinitely. Or, if intervening authority would provide a prisoner relief from his conviction or sentence, he would be time-barred after three years from the date of that “intervening authority,” even though the authority “would have actually adversely affected the outcome of his conviction or sentence^]” Therefore, applying the general “catch-all” statute of limitations to a prisoner’s claims would violate the spirit of the UPCCRA and the Legislature’s specific intention that such claims should not be time-barred.

¶ 10. The Mississippi Supreme Court has explicitly stated: “The UPCCRA is unambiguous as it relates to parole revocations. Indeed, it could not be more clear: it excepts claims of unlawful parole revocation from its three-year limitations period.” Edmond v. Miss. Dep’t. of Corr., 783 So.2d 675, 678 (¶ 12) (Miss.2001) (emphasis added). Additionally, this Court has consistently held that “[a] post-conviction claim alleging unlawful revocation of probation is not subject to the time[-]bar of section 99-89-5(2).” Leech v. State, 994 So.2d 850, 853 (¶9) (Miss.Ct.App.2008) (citing Daggans v. State, 741 So.2d 1033, 1037 (¶ 12) (Miss.Ct.App.1999)). Accordingly, we find that Magee’s PCR motion is excepted from the procedural time-bar. Nevertheless, we find no merit to the issues presented by Magee upon review.

¶ 11. Here, the circuit court revoked Magee’s PRS for Cause No. K-2000-013P (eight years). Magee claims that the circuit court’s revocation subjected him to double jeopardy, false arrest, and unlawful imprisonment, as he had been effectively discharged from both PRS sentences. Magee is evidently under the impression that since a petition to terminate his PRS for his 2001 conviction (Cause No. K-2001-094E) was filed with the circuit court, he was also no longer serving his eight years of PRS for the 2000 conviction. However, he has provided no evidence to support this claim. If an appellant does not support his allegations of error with any argument or authority, an appellate court “need not consider the issue.” Small v. State, 141 So.3d 61, 69 (¶ 26) (Miss.Ct.App.2014) (citing Jordan v. State, 995 So.2d 94, 103 (¶ 14) (Miss.2008)). Nothing in the record indicates Magee had been released from his eight years of PRS under Cause No. K-2000-013P. Therefore, we cannot find that his PRS was “unlawfully revoked.”

¶ 12. Consequently, we also find no merit to Magee’s ineffective-assistance-: of-counsel claim pertaining to his counsel’s failure to provide the circuit court with his the petition for the termination of PRS for the 2001 conviction. “A petitioner must produce ‘more than conclusory allegations on a claim of ineffective assistance of counsel.’” McCray v. State, 107 So.3d 1042, 1045 (¶ 12) (Miss.Ct.App.2012) (quoting Carpenter v. State, 899 So.2d 916, 921 (¶ 23) (Miss.Ct.App.2005)).

¶ 13. As Magee has not shown he is entitled to any relief, we affirm the circuit court’s dismissal of his PCR motion.

1114. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

LEE, C.J., IRVING, P.J., ISHEE AND CARLTON, JJ., CONCUR. ROBERTS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., MAXWELL AND FAIR, JJ. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

ROBERTS, J.,

specially concurring:

¶ 15. I write separately because I find that Magee’s motion for post-conviction relief (PCR) was untimely. On September 5, 2012, Magee filed a PCR motion and claimed that the Pearl River County Circuit Court unlawfully revoked his post-release supervision on July 21, 2009. Because Magee’s claim is based on the allegation that his post-release supervision was unlawfully revoked, the three-year time limit for filing a PCR motion does not apply. Miss.Code Ann. § 99-39-5(2) (Supp.2014). But that does not mean that Magee had an unlimited amount of time to file his unlawful-revocation claim.

¶ 16. A PCR motion “shall be filed as an original civil action.” Miss.Code Ann. § 99-39-7 (Supp.2014). No Mississippi statute provides a specific statute of limitations for unlawful-revocation claims. This Court recently held that the catch-all statute of limitations set forth in Mississippi Code Annotated section 15-1-49(1) (Rev. 2012) applies to unlawful-revocation claims. Fluker v. State, 2013-CP-00608-COA, — So.3d - (¶ 18) (Miss.Ct.App.2014). In Fluker, this Court held:

Section 99-39-5(2) does not allow an unlimited period of time for Fluker to file for post-conviction collateral relief. Section 99-39-5(2) specifically reads “[e]xcepted from this three-year statute of limitations,” and this refers to the three-year time-bar of section 99-39-5(2). It does not provide Fluker an exception to the three-year statute of limitations in Mississippi Code Annotated section 15-1-49 (Rev. 2012). Otherwise, any prisoner who claims that his conditional release has been unlawfully revoked has no statute of limitations and can bring his claims decades after his revocation. Such is not the case.

Id. The majority does not overrule Fluker. Instead, it describes the time-bar rationale in that case as “dicta.” That there were two equally applicable rationales for the outcome of that ease does not mean that one or the other qualifies as dicta.

¶ 17. Section 15-1-49(1) states that “[a]ll actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.” The circuit court revoked Magee’s post-release supervision on July 21, 2009. Magee’s unlawful-revocation claim accrued on that day. He had three years from that date to file his claim. Because Magee raised his unlawful-revocation claim in the PCR motion that he filed on September 5, 2012, his claim was untimely. It is appropriate to summarily dismiss an untimely PCR motion. Jones v. State, 700 So.2d 631, 633 (¶ 6) (Miss.1997). The circuit court mistakenly found that Magee’s PCR motion was untimely under section 99-39-5(2) instead of section 15-1-49(1), but the circuit court reached the right result. I would end the analysis here.

¶ 18. With utmost respect, I disagree with the majority’s conclusion that the application of the catch-all statute of limitations conflicts with the spirit of the Uniform Post-Conviction Collateral Relief Act (UPCCRA). I believe it conforms with that spirit. Through section 99-39-5(2), the overwhelming majority of PCR petitioners have a limited amount of time— three years from a certain triggering event — to file a collateral attack on their convictions or sentences. But unlawful-revocation claims almost always arise well after three years from the date of conviction or an appellate court’s decision to affirm a prisoner’s direct appeal. It follows that PCR petitioners who raise unlawful-revocation claims cannot be expected to advance them before the event that triggers them occurs. Even so, no language within the UPCCRA indicates that the Legislature did not intend for us to apply the catch-all statute of limitations that it has enacted. It is illogical to suggest that the vast majority of PCR claims have limited lifetimes, but unlawful-revocation claims are immortal.

¶ 19. Public policy supports the concept that prisoners have a limited but reasonable amount of time to raise unlawful-revocation claims. Witnesses, attorneys, judges, court reporters, and other essential participants in the revocation process eventually move, quit their jobs, die, or otherwise become unavailable. Records become lost or misplaced, transcripts become unobtainable, and memories fade. As the Mississippi Supreme Court has stated:

The primary purpose of statutory time limitations is to compel the exercise of a right of action within a reasonable time. These statutes are founded upon the general experience of society that valid claims will be promptly pursued and not allowed to remain neglected. They are designed to suppress assertion of false and stale claims, when evidence has been lost, memories have faded, witnesses are unavailable, or facts are incapable of production because of the lapse of time.

Cole v. State, 608 So.2d 1313, 1317 (Miss.1992). “It is a well-settled principle that a state may attach reasonable time limitations to the assertion of ... constitutional rights.” Id at 1319. “Furthermore, statutes of limitations speak to matters of remedy and procedure, rather than the destruction of fundamental rights.” Id “While it is important that one convicted of [a] crime in violation of constitutional principles should be a[ff]orded relief, it is also important that reasonable diligence be required in order that litigation may one day be at an end.” Id. at 1320. A reasonable statute of limitations “guards the state’s legitimate expectation that it will not be called upon without due cause, to defend the integrity of convictions that occurred many years ago, where records and witnesses are no longer available.” Id. The same rationale applies to unlawful-revocation claims.

¶ 20. The majority expresses concern that a prisoner may be held indefinitely with no remedy if he is held more than three years after his sentence has expired. Although such a scenario seems highly unlikely, under those circumstances, a prisoner could still file for a writ of habeas corpus. The UPCCRA did not abolish writs of habeas corpus under Article III, Section 21 of the Mississippi Constitution. Carson v. Hargett, 689 So.2d 753, 755 (Miss.1996). Mississippi Code Annotated section 99-39-3(1) (Supp.2014) states that the UPCCRA is the “exclusive and uniform procedure for the collateral review of convictions and sentences.” Depending on the scenario, a prisoner’s claim that he is being held after his sentence has expired would not be a collateral attack on the validity of his conviction or sentence. Instead, it would be based on his continued allegedly illegal confinement.

¶ 21. To summarize, I respectfully disagree with the majority’s conclusion that no statute of limitations applies to unlawful-revocation claims. I find that the catch-all statute of limitations applies. Notwithstanding my collegial difference of opinion in that regard, I agree with the majority’s decision to affirm the circuit court’s judgment summarily dismissing Magee’s PCR motion. I simply take a slightly different path to reach the same destination.

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

      . The petition to terminate his PRS erroneously stated that Magee had seven years to serve, with eight years of PRS for Cause No. K-2001-094E. However, despite his argument to the contrary, this clerical error is not relevant to Magee’s PCR motion or appeal.

      . Section 99-39-5(2) provides:

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

      . Other exceptions outlined in section 99-39-5(2) are those cases where "there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely' affected the outcome of his conviction or sentence!,]” cases where a petitioner "has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence!,]” and those cases where biological evidence, not previously tested, exists "that would provide a reasonable likelihood of more probative results and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.”

      . "Dicta are statements 'not necessary to the court’s ruling.' ” Smith v. Normand Children Diversified Class Trust, 122 So.3d 1234, 1237 (¶ 5) (Miss.Ct.App.2013) (quoting McKibben v. City of Jackson, 193 So.2d 741, 745 (Miss.1967)). The discussion regarding any applicable time-bar and exception to Fluker’s PCR motion was not necessary to our disposition in that case. The motion was a successive writ, and the issue in his motion had already been raised in a 2007 (timely) PCR motion. Therefore, this Court had already concluded that res judicata prevented the relitigation of the issue. Fluker, —So.3d at — (¶ 16), 2014 WL 2723882, at *3 (V 16).

      . There is only one page from the revocation transcript in the record, but the circuit judge specifically stated that he was revoking the eight-year PRS term.

      . Moreover, a circuit court's reinstatement of a "suspended sentence first levied upon the defendant is proper and is not in violation of the [Djouble [Jjeopardy [C]lause" unless it is for a longer term than the original sentence. Brunson v. State, 796 So.2d 284, 287-88 (¶ 14) (Miss.Ct.App.2001).

      . For example, assume a prisoner pled guilty to manslaughter, and he was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended and fifteen years to serve, followed by five years of post-release supervision. If he is discharged from MDOC custody and his post-release supervision is revoked sixteen years after he pled guilty, it would be completely nonsensical to expect him to have filed his unlawful-revocation claim within three years of his judgment of conviction for manslaughter. Otherwise, his claim would have expired approximately thirteen years before it arose.


author: MAXWELL, J.,

text:
    Melissa WEBSTER, a/k/a Melissa Elaine Webster, Appellant v. STATE of Mississippi, Appellee. Melissa Webster, Appellant v. State of Mississippi, Appellee.
    Nos. 2013-CP-00922-COA, 2013-CP-01145-COA.
    Court of Appeals of Mississippi.
    Dec. 09, 2014.

      Melissa Webster, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.

      Before GRIFFIS, P.J., BARNES, ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Melissa Webster, who is no longer incarcerated, appeals the dismissal of her post-conviction-relief (PCR) motions. She raises a variety of claims but primarily challenges the effectiveness of her counsel and her classification by the Mississippi Department of Corrections (MDOC) as a violent offender. Upon review, we find that the plea colloquy shows Webster was satisfied with her attorney and that Webster failed to adequately support her ineffective-assistance claim. Furthermore, this court not only lacks authority over MDOC’s classification of her but we note the classification question is now moot since Webster has been released on parole. Finding neither these nor any of Webster’s other appellate arguments merit relief, we affirm.

Facts and Procedural History

¶2. On January 23, 2012, Webster entered guilty pleas to three counts of exploitation of a vulnerable adult. On March 29, 2012, she was sentenced to ten years, with eight years to serve and two years of post-release supervision, with all counts to run concurrently.

¶ 3. On October 5, 2012, Webster filed a PCR motion, arguing her trial attorney was ineffective and that she was never read her Miranda rights. On March 26, 2013, the circuit court entered an order dismissing Webster’s PCR motion. Two days later, on March 28, 2013, Webster filed a “motion for reconsideration of sentence,” which the circuit court treated as a PCR motion. In this second motion, Webster did not challenge her conviction or sentence but instead argued she should have been granted ISP (house arrest) because she did not violate any jailhouse rules. She also insisted that MDOC erred in classifying her as a violent offender since she was only convicted of exploitation of a vulnerable adult and not abuse. On April 5, 2013, the circuit court entered an order denying her second PCR motion.

¶ 4. On May 16, 2013, Webster appealed both the March 26, 2013 order and the April 5, 2013 order by filing separate notices of appeal. The matters are now consolidated. ?

Discussion

¶ 5. “In considering the denial of a PCR motion, ‘we review the trial court’s findings of fact for clear error and its determinations of law de novo.’ ” Ducksworth v. State, 134 So.3d 792, 794 (¶ 3) (Miss.Ct.App.2013) (quoting Wilkerson v. State, 89 So.3d 610, 613 (¶ 7) (Miss.Ct.App.2011)): The “PCR movant bears the burden of showing he is entitled to relief by a preponderance of the evidence.” Id.

I. Ineffective Assistance of Counsel

¶ 6. In her first PCR motion, Webster raised an ineffective-assistance-of-counsel claim, which was denied. She again raises this issue on appeal, arguing her counsel was ineffective for failing to contact witnesses, file motions, and seek discovery. She also complains that her attorney only met with her once. However, she does not say what witnesses should have been contacted or what they would have said that would have favorably affected her outcome. Nor does she tell us what motions should have been filed, though she does mention a violation of Miranda rights, which we discuss below.

¶ 7. To prove ineffective assistance of counsel, Webster must show that (1) her counsel’s performance was deficient, and (2) this deficiency prejudiced her defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Webster to show both prongs. Willis v. State, 66 So.3d 740, 745 (¶21) (Miss.Ct.App.2011). And “[ujnder Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance.” Id. (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052).

¶ 8. A PCR movant must allege facts pointing toward counsel’s deficient performance with “specificity and detail.” Kinney v. State, 737 So.2d 1038, 1041 (¶ 8) (Miss.Ct.App.1999) (citing Cole v. State, 666 So.2d 767, 777 (Miss.1995)). In PCR cases, “where a party offers only [her] affidavit, then [her] ineffective assistance of counsel claim is without merit.” Brooks v. State, 89 So.3d 626, 628 (¶6) (Miss.Ct.App.2011) (quoting Vielee v. State, 653 So.2d 920, 922 (Miss.1995)). Here, Webster did not even provide affidavits or any other viable evidence to support her ineffective-assistance claim. Instead, she offered only her bare assertions in her motions and appellate briefs, which are inadequate. See Bell v. State, 117 So.3d 661, 664 (¶ 11) (Miss.Ct.App.2013).

¶ 9. Even so, we find the plea colloquy refutes her ineffective-assistance claim. When asked whether she was satisfied with the services of her attorney, Webster said, “Yes, sir.” Webster also agreed that her attorney properly advised her in her best interests. And when asked whether she had any complaints about her attorney, she replied in the negative. So her ineffective-assistance claim was not specifically alleged nor proven. Thus, we find no error in the trial judge denying it.

II. Fifth Amendment Violation

¶ 10. Webster also argues that her Fifth Amendment rights were violated because investigators lied to her and threatened her. But again she offers nothing more than broad assertions without even specifying what lies or threats were made. She also alleges she was not read her Miranda rights and that investigators continued to interrogate her even though she had requested an attorney.

¶ 11. Again these accusations were not even reduced to a sworn affidavit, much less proved by another source. We are also confronted by the fact that there was no trial. Instead, these post-conviction challenges were made after Webster voluntarily entered guilty pleas. And a “valid guilty plea acts as a waiver of all non-jurisdictional defects, such as ‘those rights secured by the Fifth, Sixth, and Fourteenth Amendments.’ ” Cane v. State, 109 So.3d 568, 571 (¶9) (Miss.Ct.App.2012); see also Montalto v. State, 119 So.3d 1087, 1096 (¶ 20) (Miss.Ct.App.2013) (noting that a valid guilty plea waives claims involving violations of Miranda rights). Because Webster entered guilty pleas and does not challenge the validity of those pleas, this issue is waived.

III. MDOC’s Classification as Violent Offender

¶ 12. In her second PCR motion, Webster argued that the MDOC erroneously classified her as a violent offender when it denied her parole. However, “[classification of inmates is not an issue properly brought in a PCR motion.” Cosner v. State, 111 So.3d 111, 113 (¶15) (Miss.Ct.App.2013). Instead, Webster’s claims properly fell “within the administrative purview of the MDOC.” Id. But perhaps more importantly, Webster has since been released on parole, so now her inmate-classification challenge is moot. See Beals v. State, 139 So.3d 776, 777 (¶8) (Miss.Ct.App.2014) (MDOC changed an inmate’s classification status to reflect parole eligibility while the appeal was pending. Since no controversy existed, the challenge was deemed moot.).

¶ 13. After review, we find the circuit court properly dismissed Webster’s PCR motion and affirm.

¶ 14. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT DENYING 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, FAIR AND JAMES, JJ., CONCUR.

      . Normally, this would be a successive-writ-bar situation. See Miss.Code Ann. § 99-39-23(6) (Supp.2014). However, the issue raised in her second PCR motion was not available when she filed her first PCR motion, so it is not considered a successive motion. See Smith v. State, 648 So.2d 63, 66 (Miss.1994).

      . Webster raises several claims that were not contained in her PCR motions before the circuit court. "A defendant who fails to raise an issue in [her PCR motion] before the trial court may not raise that issue for the first time on appeal.” Marshall v. State, 136 So.3d 443, 445 (¶ 3) (Miss.Ct.App.2013) (quoting Fluker v. State, 17 So.3d 181, 183 (¶ 5) (Miss.Ct.App.2009)). Therefore, we limit our review to those issues raised in the circuit court. Also, we note that Webster improperly attached documents to her brief that are not part of the trial record. These documents are also outside of our review. See McClendon v. State, 124 So.3d 709, 711 n. 2 (Miss.Ct.App.2013).

      . Mississippi Code Annotated section 43-47-19(1) (Supp.2014) makes it "unlawful for any person to abuse, neglect[,] or exploit any vulnerable person.” And "where the value of the exploitation is [$250.00] or more, the person who exploits a vulnerable person shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment in the custody of the [MDOC] for not more than ten (10) years.” Miss.Code Ann. § 43-47-19(2)(b). " 'Exploitation' means the illegal or improper use of a vulnerable person or his resources for another’s profit, advantage^] or unjust enrichment, with or without the consent of the vulnerable person, and may include actions taken pursuant to a power of attorney. 'Exploitation' includes, but is not limited to, a single incident.” Miss.Code Ann. § 43-47-5(0 (Supp.2014).

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

      . Having previously found Webster showed good cause for her untimely appeals, we allowed her to proceed under Mississippi Rule of Appellate Procedure 2(c).

      . Webster was released on parole on June 13, 2014.


text:
    Roy McCRORY and Carol McCrory, Appellants, v. MISSISSIPPI DEPARTMENT OF REVENUE, Appellee.
    No. 2013-SA-02069-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2014.

      James Gary McGee, attorney for appellants.
    Laura Huddleston Carter, James L. Powell, Jackson, attorneys for appellee.
    Before IRVING, P.J., FAIR and JAMES, JJ.
   FAIR, J.,

for the Court:

¶ 1. Roy and Carol McCrory failed to file their income tax returns for the years 2005, 2006, 2007, and 2008. The Mississippi Department of Revenue (MDOR) took action to collect what it had determined the McCrorys owed the State for those delinquent years. On June 28, 2013, the McCrorys filed for a declaratory judgment and injunctive relief against MDOR. After discovery, MDOR filed a motion to dismiss, or in the alternative, a motion for summary judgment. The chancery court granted MDOR’s motion for summary judgment. We affirm the chancery court’s ruling.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 8, 2011, MDOR mailed the McCrorys a “Notice of Individual Income Tax Due Delinquent Assessment” for the years of 2005, 2006, 2007, and 2008, pursuant to Mississippi Code Annotated section 27-7-53 (Rev.2010). The McCrorys acknowledge that they received the letter and that they failed to file tax returns for the years listed. MDOR’s letter stated that, based on information obtained from the Internal Revenue Service, adjustments were made to the McCrorys’ state income tax liability, which included unpaid taxes, penalties, and interest. MDOR further instructed the McCrorys on how to respond to the letter: (1) they could pay the amount due, or (2) they could appeal the matter to the MDOR Board of Review within sixty days of the assessment. In addition, MDOR warned the McCrorys that failure to pay or take action within sixty days would result in collection procedures. The McCrorys did nothing.

¶ 3. In August 2011, MDOR filed seven separate tax liens against the McCrorys, totaling $32,967, and commenced garnishment of the McCrorys’ wages. On December 12, 2012, the McCrorys sent MDOR the tax returns for the years assessed; this information showed the McCrorys actually had a higher income and owed more taxes than MDOR had calculated. Consequently, MDOR made adjustments based on that information and on February 4, 2013, mailed a notice of the changes to the McCrorys, showing a remaining balance of $10,962.12.

¶ 4. Four months later, the McCrorys filed a complaint against MDOR in Hinds County Chancery Court. The complaint stated that MDOR was engaging in an unlawful collection of their wages. Specifically, the McCrorys argued that they did not receive proper notice in the form of certified mail as provided in Mississippi Code Annotated section 27-7-49 (Rev. 2010).

¶ 5. MDOR subsequently filed a motion to dismiss, or in the alternative, for summary judgment. Essentially, MDOR argued that the chancery court lacked jurisdiction, citing the appellate procedure available in section 27-7-53. MDOR supplemented its argument with evidence showing its compliance with section 27-7-53. As a result, the motion to dismiss was converted into a motion for summary judgment.

¶ 6. Following a hearing on October 8, 2013, both parties filed memoranda. On November 25, 2013, the court granted MDOR’s motion for summary judgment. The court reasoned that section 27-7-53 was controlling and that MDOR had complied with those statutory requirements. The court also stated that the McCrorys failed to submit any evidence in support of their argument. The McCrorys appealed.

STANDARD OF REVIEW

¶ 7. As an appellate court, we “review [ ] a trial court’s grant or denial of a motion for summary judgment or a motion to dismiss under a de novo standard.” Copiah County v. Oliver, 51 So.3d 205, 207 (¶ 7) (Miss.2011) (citation omitted).

¶ 8. Summary judgment is proper when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “The party requesting summary judgment bears the burden of demonstrating that no genuine issue of material fact exists.” Buckel v. Chaney, 47 So.3d 148, 153 (¶ 10) (Miss.2010) (citation omitted). When the moving party sufficiently supports its motion, “[the non-moving] party may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

ANALYSIS

¶ 9. Mississippi Code Annotated section 11-13-11 (Rev.2004) grants chancery courts jurisdiction over taxpayer claims “to restrain the collection of any taxes levied or attempted to be collected without authority of law.” But that jurisdiction cannot be conferred unless injunc-tive relief is proper:

In determining whether injunctive relief is proper, particularly under section 11-13-11, trial courts apply the following three-part guideline: (1) whether the aggrieved taxpayer alleges an inadequate remedy at law in his complaint; (2) whether there is not an adequate remedy at law available to the aggrieved taxpayer; and (3) whether the taxpayer’s allegations of fact, if proven to be true, warrant a conclusion that the taxes are being collected or levied without authority of law.

Bankston v. Miss. Dep’t of Revenue, 95 So.3d 1275, 1277-78 (¶7) (Miss.Ct.App.2012). MDOR chiefly argued that the chancery court lacked jurisdiction since the McCrorys had an “adequate remedy at law” by way of the appeals process to the Board of Review and failed to avail themselves of that remedy. As part of its motion, MDOR attached (1) a copy of the 2011 tax assessment, (2) the letter mailed to the McCrorys on February 4, 2013, and (3) an affidavit from the MDOR’s Chairman of the Board of Review, which stated that the Board had no record of any appeal by the McCrorys.

¶ 10. Mississippi Code Annotated section 27-7-53 (Rev.2010) provides:

If no return is made by a taxpayer required by this chapter to make a return, the commissioner shall determine the taxpayer’s liability from the best information.available, which determination shall be prima facie correct for the purpose of this article, and the commissioner shall forthwith make an assessment of the tax so determined to be due by mail or by personal delivery of the assessment to the taxpayer, which assessment shall constitute notice and demand for payment. The taxpayer shall be given a period of sixty (60) days from the date the commissioner mailed or hand delivered the notice in which to pay the tax due, including penalty and interest as hereinafter provided, and if the sum is not paid within the period of sixty (60) days, the commissioner shall proceed to collect it under the provisions of Sections 27-7-55 through 27-7-67 of this article; provided that within the period of sixty (60) days the taxpayer may appeal to the Board of Review as provided by law.

¶ 11. Mississippi Code Annotated section 27-77-5(1) (Rev.2010) states:

Any taxpayer aggrieved by an assessment of tax by the agency, by the agency’s denial of a refund claim, or by the denial of a waiver of tag penalty, and who wishes to contest the action of the agency shall, within sixty (60) days from the date of the action, file an appeal in writing with the board of review requesting a hearing and correction of the contested action specifying in detail the relief requested and any other information that might be required by regulation. ...

¶ 12. The McCrorys do not challenge the appellate procedure for sections 27-7-53 and 27-77-5. Rather, they hinge their argument on Mississippi Code Annotated section 27-7-49 (Rev.2010), claiming that they should have received notice by certified mail. Section 27-7-49 states:

(1) Returns shall be examined by the commissioner or his duly authorized agents within three (3) years from the due date or the date the return was filed, whichever is later, and no determination of a tax overpayment or deficiency shall be made by the commissioner, and no suit shall be filed with respect to income within the period covered by such return, after the expiration of said three-year period....
(2) When an examination of a return made under this article has been commenced, and the taxpayer notified thereof, either by certified mail or personal delivery by an agent of the commissioner, within the three-year examination period provided in subsection (1) of this section, the determination of the correct tax liability may be made by the commissioner after the expiration of said three-year examination period, provided that said determination shall be made with reasonable promptness and diligence.

¶ 13. The McCrorys assert that the “inconsistencies” in sections 27-7-49 and 27-7-53, particularly the notice requirements, allow MDOR to manipulate taxpayers. Further, the McCrorys claim that section 27-7-49 is ambiguous.

¶ 14. There is no ambiguity in section 27-7-49. This section deals strictly with examination of properly filed returns. The McCrorys acknowledge they failed to file any tax returns for the specified years until after the assessment under section 27-7-53 had taken place, after they had been so notified, and after collection activities had commenced. There had been no examination of returns prior to MDOR’s 2011 assessment because there were no returns to examine. Therefore, MDOR was required to make an assessment under section 27-7-53 and deliver notice of the assessment personally or by regular mail to the McCrorys, which it did, along with notice to them of their statutory right to appeal within sixty days.

¶ 15. Ultimately, we find that the McCrorys failed to present any evidence showing a genuine issue of material fact and that- under those undisputed facts before her, the chancellor did not err in granting summary judgment in favor of MDOR.

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

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

      . Mississippi Code Annotated sections 27-7-49, 27-7-53, and 27-77-5 were amended after this action commenced. Thus, our analysis in this case relies on the statutes as they existed before these amendments were made unless indicated otherwise.

      . Mississippi Rule of Civil Procedure 12(b) states:
      If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56....

      . Section 27-7-49 was amended in 2013 to specifically provide that individuals like the McCrorys are excluded from its application. Now, the statute does not apply "[t]o any tax period for which the taxpayer failed to file a return, in which case the tax, including any applicable penalties and interest, may be assessed by the commissioner at any time and the tax, penalties and/or interest so assessed may be collected by the commissioner....” Miss.Code Ann. § 27-7-49(2)(a).


author: ROBERTS, J.,

text:
    Ricky MOORE, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-01968-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2014.

      Ricky Moore, appellant, pro se.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Ricky Moore appeals the Madison County Circuit Court’s decision to summarily dismiss his motion for post-conviction relief (PCR). Moore claims that the circuit court’s sentence for armed carjacking is illegal in that he was rendered ineligible for parole. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In March 2009, Moore was indicted and charged with armed carjacking, kidnapping, and possession of a firearm by a convicted felon. The prosecution later successfully amended the indictment to charge Moore as a habitual offender under Mississippi Code Annotated section 99-19-83 (Supp.2014). Consequently, Moore faced a potential sentence of life in the custody of the Mississippi Department of Corrections (MDOC).

¶ 3. The prosecution offered Moore a deal. If he agreed to plea guilty to armed carjacking and possession of a firearm by a convicted felon, the prosecution would not pursue the kidnapping charge or the habitual-offender portion of the indictment. However, the prosecution would not recommend a sentence.

¶ 4. Moore took the deal. He pled guilty to armed carjacking and possession of a firearm by a convicted felon on November 10, 2009. During the guilty plea hearing, the prosecution stated that it was prepared to prove that Moore approached a woman as she was vacuuming her car, and he threatened her with a pistol. He took her vehicle and forced her to accompany him. While he was driving, the victim escaped. She broke her ankle in the process. Moore was extradited from Georgia after he was identified from fingerprints found in the victim’s vehicle.

¶ 5. For armed carjacking, the circuit court sentenced Moore to thirty years in the custody of the MDOC, with twenty-seven years to serve followed by three years of post-release supervision. For possession of a firearm by a convicted felon, the circuit court sentenced Moore to ten years in the custody of the MDOC, with one day to serve followed by five years of post-release supervision. The circuit court further explained that it would be consecutive to Moore’s sentence for armed carjacking.

¶ 6. On October 28, 2013, Moore filed a PCR motion. Moore claimed that the circuit court failed to specify that he would have to serve the entire portion of his sentence for armed carjacking. Moore also complained that the circuit court had impermissibly rendered him ineligible for parole. Therefore, Moore reasoned that he had been subjected to an illegal sentence. However, the circuit court found that Moore’s PCR motion was untimely. Accordingly, the circuit court summarily dismissed Moore’s PCR motion. Moore appeals.

STANDARD OF REVIEW

¶ 7. “This Court will not disturb a trial court’s dismissal of a [PCR motion] unless the [circuit] court’s decision was clearly erroneous.” Wardley v. State, 37 So.3d 1222, 1223-24 (¶ 4) (Miss.Ct.App.2010). A circuit court may summarily dismiss a PCR motion “where ‘it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.’ ” White v. State, 59 So.3d 633, 635 (¶ 4) (Miss.Ct.App.2011) (quoting Miss.Code Ann. § 99-39-11(2) (Supp. 2010)). Questions of law receive a de novo review. Id.

ANALYSIS

¶ 8. Moore revisits his claim that the circuit court illegally sentenced him in a manner that prevents him from being eligible for parole. According to Moore, he was indicted for armed robbery under Mississippi Code Annotated section 97-3-79 (Rev. 2014), instead of armed carjacking under Mississippi Code Annotated section 97-3-117 (Rev. 2014). Moore is mistaken. The indictment clearly reflects that Moore was charged with armed carjacking under section 97-3-117. However, Moore also claims that the circuit court erred by sentencing him for armed robbery. Moore is also mistaken about that, as the circuit court clearly sentenced him for armed carjacking. Inconsistent claims aside, the crux of Moore’s complaint is that the circuit court sentenced him in a manner that makes him ineligible for parole.

¶ 9. Moore had three years from the entry of the judgment of conviction to file a PCR motion. Miss.Code Ann. § 99-39-5(2) (Supp.2014). The judgment of conviction was filed on November 17, 2009. Accordingly, Moore had until November 17, 2012, to file a PCR motion. However, he filed his PCR motion on October 28, 2013. It follows that Moore’s PCR motion was untimely.

¶ 10. However, the Mississippi Supreme Court has held that there is a fundamental right to be free from an illegal sentence, and a claim implicating a fundamental right may be excepted from the time-bar. Sneed v. State, 722 So.2d 1255, 1257 (¶ 11) (Miss.1998). But Moore’s sentence for armed carjacking is not illegal. A conviction for armed carjacking carries a maximum sentence of thirty years in the custody of the MDOC. Miss.Code Ann. § 97-3-117(2)(a). The circuit court’s sentence does not exceed the maximum sentence for armed carjacking. Furthermore, a person convicted of armed carjacking is not eligible for parole. Miss.Code Ann. § 47 — 7—3(l)(c)(ii) (Supp.2014). Moore claims that the circuit court should have sentenced him as though he had been convicted of robbery or attempted robbery through the display of a firearm, which would allow him to be eligible for parole after serving the first ten years of his sentence. Miss.Code Ann. § 47-7-3(l)(c)(i). But the circuit court had no authority to sentence Moore as though he had been convicted of robbery or attempted robbery through the display of a firearm after Moore pled guilty to armed carjacking.

¶ 11. Moreover, even if Moore had pled guilty to armed robbery, he would have been ineligible for parole. Section 47-7-3(l)(c)(i) only applies to armed-robbery convictions that occurred between January 1, 1977, and September 30, 1994. Armed-robbery convictions that occur between October 1, 1994, and July 1, 2014, are governed by section 47 — 7—3(l)(c)(ii). Moore’s guilty plea was during November 2009. Consequently, regardless of whether he pled guilty to armed carjacking or armed robbery, he would not have been eligible for parole.

¶ 12. Additionally, there is no merit to Moore’s claim that he was unaware that he would have to serve the entire term of the circuit court’s sentence for armed carjacking. The colloquy of the guilty-plea hearing reflects that the circuit court never misled Moore by telling him that he would be eligible for parole. During the sentencing hearing, the circuit court unequivocally said that Moore would have to serve his entire sentence for armed carjacking. To be precise, the circuit court judge stated: “I know [Moore] is aware that the sentence that the court imposes for his conviction for armed carjacking is a sentence that ... is to be served day for day.” Moore’s attorney responded that Moore was aware of that. Later, the circuit court explained Moore’s sentence again. The circuit court told Moore:

[Y]ou will spend the next twenty-seven years and one day in the penitentiary, and then you will be released and be subject to having to possibly spend another three years day for day, and/or another ten years under whatever percentage the [MDOC] calculates at that time, if you’re not able to maintain appropriate behavior. But at the same time, it allows you some time as a sixty-year-old man, or thereabouts to have some life left if you are willing to live in society without violating its rules.

There is no indication in the record that Moore believed that he would be eligible for parole after he served ten years of his sentence. Therefore, notwithstanding the fact that Moore’s PCR motion was untimely, there is no merit to the concept that he was misled about the nature of his sentence.

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

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

      . In 1994, Moore was convicted of kidnapping. He was sentenced to twenty-five years in the custody of the MDOC.