author: DICKINSON, Justice,

text:
    S.G. v. D.C.
    No. 2007-CA-01909-SCT.
    Supreme Court of Mississippi.
    May 28, 2009.
    Rehearing Denied Aug. 6, 2009.

      James W. Craig, Jane E. Tucker, Jackson, attorneys for appellant.
    J. Stewart Parrish, Meridian, attorney for appellee.
   DICKINSON, Justice,

for the Court.

¶ 1. This is an appeal of an order denying a maternal grandmother’s attempt to intervene in a custody dispute involving her grandchildren, one of whom allegedly was sexually abused by her father. Because of the unusual facts and circumstances presented, we find the grandmother must be allowed to intervene to protect the interests of the minor children. We also take this opportunity to clarify the duties and responsibilities of a court-appointed guardian ad litem.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. The long and complex history of this case began in December, 2000, when D.C. (“the mother”) and D.C. (“the father”) were divorced. The court awarded the mother physical custody of the couple’s two minor children (Jane, age five, and John, age three) and granted the father liberal visitation.

¶ 3. For nearly four years thereafter, neither parent sought assistance from the court regarding their children. Then, on July 13, 2004, Jane gave her mother a note which stated, “Mama, my privates hurt BAD.” The note was accompanied by a drawing which resembled an erect penis. The mother showed the note to David Grantham, Ph.D., a psychologist in Jackson, Mississippi. Dr. Grantham referred the mother and Jane to Dr. Tammy Henderson, a pediatrician in Meridian, Mississippi.

¶ 4. On July 16, 2004, Dr. Henderson met with Jane. When Dr. Henderson invited Jane to talk about the alleged abuse, Jane spontaneously stated, “If my dad came in and did this, I wouldn’t know it because I sleep so hard.” With her medical assistant present, Dr. Henderson performed a physical examination of Jane, which revealed scabbed abrasions and scars in her genital area, and other physical indications of sexual abuse, including tearing of the hymen. Dr. Henderson concluded, “There is no doubt in my mind that [Jane] has been sexually abused to the point of at least partial penetration of her vagina.”

¶ 5. Dr. Henderson referred Jane to the University of Mississippi Rape Crisis Center where the doctor’s physical findings were consistent with the injuries observed by Dr. Henderson. The doctor reported that the evidence was inconclusive as to whether a sexual assault had occurred. Nevertheless, a social worker involved in the case contacted the Lauderdale County Sheriffs Department and the Mississippi Department of Human Services (“DHS”), both of which began investigations.

¶ 6. Jane began counseling with Donna Moore at the East Mississippi Sexual Assault Crisis Center at the Wesley House Community Center. Although Jane was reluctant to discuss the alleged abuse, she did on one occasion identify her father as the person who had touched her. Moore then asked Jane if she had seen or felt him touch her, and she replied that she hadn’t because she “slept real sound.”

¶ 7. In August 2004, the mother and the children moved to Texas, where the Texas Department of Family and Protective Services (“TDFPS”) began an investigation. Jane told TDFPS investigators that her father had come into her room several times and scratched her “private part” with his fingernail and touched the “fold part” of her private part. After concluding there was reason to believe that Jane had been molested by her father, TDFPS notified the father of their suspicions by letter.

¶ 8. The mother arranged for Jane to receive counseling at the Collin County Child Advocacy Center (“CCCAC”), where Jane told her counselors that her daddy

did something with his pee pee. When I said stop. And now every time I close my eyes I see his private so I am not going to sleep.... Daddy came into my room and I think he crawled over [my brother] and then he pulled by the covers, pulled my shirt up, pulled my panties down, and started touching the pink part, the floppy things on my private, his fingernail must have been what scratched my private.

¶ 9. Meanwhile back in Mississippi, the father, in an effort to enforce his visitation rights, filed a petition to modify the divorce decree, and a motion for contempt. The mother answered and filed a counterclaim requesting that visitation be held in abeyance until the sexual-abuse allegations could be fully investigated and, in the event the abuse was verified, that visitation be terminated. The trial court appointed a guardian ad litem for the children and ordered the mother to return the children to Mississippi so that the guardian ad litem could have access to them, and so the father could exercise supervised visitation, pending the abuse investigation.

¶ 10. The mother brought the children to Mississippi during spring break in March 2005. The guardian ad litem met with the children for an hour and concluded that the father could visit with the children every day during spring break from 10 a.m. until 5 p.m. under the supervision of his new wife. According to the guardian ad litem, when Jane returned to his office from one of the visits she was visibly upset and refused to discuss what had happened during the visit with her father. Jane then went home with her mother.

¶ 11. Later that same night when Jane became hysterical, the mother and her mother, S.G.(“the grandmother”), took her to the hospital. Upon being notified, the guardian ad litem went to the hospital, where he found Jane curled in a fetal position and, according to the guardian ad litem, “had obviously been doing a lot of crying.” She told the guardian ad litem that her father had touched her in her private parts. When asked by the guardian ad litem what she remembered that her father did, she said that her father “pulled up my shirt and pulled down my panties, and touched me.” The guardian ad litem directed that there would be no more visits. The mother and the children returned to Texas where they continued counseling with the CCCAC. The counsel- or with the CCCAC informed the guardian ad litem that “the advocacy center had successfully performed a forensic interview on both children wherein both had clearly identified the sexual abuse of [Jane] and named the father as the perpetrator.”

¶ 12. On June 6, 2005, the father filed a motion in the Mississippi trial court, seeking visitation with the children. On July 7, 2005, without a hearing, the Mississippi trial court entered an. order allowing the father a week of visitation with the children to be supervised by his new wife or his mother. The visitation was to begin July 16. The mother refused to comply with the order and, instead, filed for a protective order in Collin County, Texas.

¶ 13. On August 15, 2005, the guardian ad litem issued a preliminary report expressing numerous personal opinions concerning the evaluations and psychological treatment provided by the healthcare professionals who had treated Jane. For instance, in response to CCCAC counselor Renee Matthews’s statement that forensic interviews were conducted later rather than earlier because any mention of the father’s name propelled Jane into a panic attack, the guardian ad litem opined:

In the opinion of [the] guardian ad litem, this forensic interview was conducted not in search of spontaneous revelations of the child, but to confirm a previously-determined theory that sexual abuse had occurred and the Father ... was the perpetrator. A forensic interview such as this serves the purpose but in this instance, not that which was intended. The information forthcoming from this child is at a minimum transferred from someone else, whether mother, grandmother, counselor, therapist, friend, or combination thereof, and is at the other extreme the result of coaching or even brainwashing. Your guardian ad litem is convinced that this child is traumatized, but it does not appear to be the result of sexual abuse by the Father. It appears to be the result of an attempt to paint the Father of this child as a child molester for reasons known only to the accusers.

¶ 14. Glaringly absent from the guardian ad litem’s report is any discussion, evaluation or investigation of either the considerable physical evidence that Jane actually had been sexually abused (if not by her father, then by someone), or the identity of the perpetrator. Instead, the guardian ad litem’s interim report concentrated almost exclusively on whether, in his opinion, Jane had been “brainwashed” by her mother and/or her maternal grandmother, who is the appellant in the present matter.

¶ 15. On August 17, 2005 — after receiving the guardian ad litem’s preliminary report — the Mississippi trial court (again, without holding a hearing) issued a sua sponte order which severely criticized the mother for her failure to comply with the court’s orders and her failure to cooperate with the guardian ad litem. According to the order, the chancellor held a “conference in chambers.” However, the record includes no indication of any such conference, or that a court reporter was present or that the chancellor took any evidence. We pause here to state that such procedures are wholly inappropriate and inconsistent with a chancellor’s duty to issue orders and judgments based solely upon the facts included within the record.

¶ 16. The order removed custody from the mother and placed the children in the custody of the Department of Human Services (“DHS”). The order granted supervised visitation to both the mother and father and further provided that visitation would be at the discretion of DHS and the guardian ad litem. Additionally, the trial court ordered a psychological evaluation of the children. Concerned that the trial court was not properly considering the evidence of abuse, the grandmother filed a motion to intervene. For reasons the trial court did not explain, the motion was denied on August 22, 2005.

¶ 17. On September 13, 2005, John Jolly, Ph.D., conducted the psychological evaluation previously ordered by the trial court. Dr. Jolly administered numerous psychological tests, and he personally interviewed Jane, who told him that her father had sexually abused her. When Dr. Jolly followed up by asking her how she generally felt about her dad, she replied, “I still love him and still want to see him during the day ... not during the night.” In addressing the question of whether Jane had been brainwashed or manipulated into making false allegations against her father of sexual abuse, Dr. Jolly stated that he was

unaware of any manipulation by either her mother or father that may have influenced [Jane’s] report ... However, in general she is presenting to the examiner in a manner which appears valid to this examiner, and the combination of symptoms and her report are quite consistent.

¶ 18. Although trial was set for September 20, 2005, it was continued because the guardian ad litem was not prepared to go forward. Instead, the guardian ad litem determined that the children should begin counseling with Dr. Jan Boggs in Meridian, Mississippi. After counseling with the children, Dr. Boggs recommended that custody be returned to the mother in order to better evaluate the children and their relationships with their parents.

¶ 19. The guardian ad litem issued an interim report in which he discussed conversations with Jane wherein he asked Jane if she understood the reasons she had been placed in the custody of DHS. She stated “that her daddy had come in her room at night.” When the guardian ad litem asked Jane if she had any problem visiting with her father, she replied, “it would be ‘ok’ except not at night.” When asked “what, if anything, she would like to ask him about the alleged abuse, if she could be alone with him, [Jane] said she would ask him to apologize, and that if he did, then all would be well.” The guardian ad litem’s interim report also addressed Dr. Jolly’s evaluation in several respects, but neglected any mention of, or reference to, Dr. Jolly’s conclusion that he was “unaware of any manipulation by either her mother or father that may have influenced [Jane’s] report.”

¶20. The trial court ordered a status conference on December 5, 2005, at which the chancellor stated:

The court has received the interim report of the guardian ad litem. I have not thoroughly reviewed the report but skipped to the back of the report and seen that there is a guardian ad litem recommendation that custody of the children remain with the DHS but placed back with the mother.

At the conclusion of the hearing, the chancellor returned the children to the mother.

¶ 21. Although the transcript of the December 5 hearing is void of any discussion of what, if any, visitation the father would have with Jane, the court issued an order granting the father unsupervised visitation with Jane. The mother refused to comply with the order and absconded from,the jurisdiction with the children. She did not return for the trial.

¶ 22. When the mother failed to appear at trial, the chancellor granted the father’s motion to strike the mother’s pleadings, including the allegations of abuse. The chancellor issued a bench opinion and judgment holding the mother in contempt of court, both civilly and criminally, and awarding custody of the children to the father. The court further ordered that the mother be incarcerated until she produced the children, and for an additional thirty days thereafter. In awarding custody to the father, the court ruled that the mother could apply to the court for access to the children after her incarceration.

¶ 23. Following the entry of final judgment from the trial court, the grandmother filed a notice of appeal to this Court, seeking reversal of the chancellor’s denial of her motion to intervene. The father filed a motion to strike the notice of appeal, claiming inter alia that her notice of appeal was filed untimely. In an unpublished order, this Court remanded the matter to the trial court for consideration of whether the notice was filed timely. Chandler v. Chandler, 2007 Miss. Lexis 139 (2007). Upon remand, the trial court held that the grandmother’s motion to intervene was not timely filed. The matter before us today is the grandmother’s appeal of that decision, and the decision of the previous chancellor to deny her intervention.

¶ 24. Meanwhile, the mother (who remained absent from the jurisdiction) appealed (through her counsel) the custody order. This Court handed down an opinion (and later a substitute opinion) applying the clean-hands doctrine and fugitive-dismissal rule to dismiss the mother’s appeal. We held that “it would not serve the best interest of the children if we were to allow the mother who has demonstrated a recurring disregard for the orders of the [Chancery Court], to proceed with her appeal.” D.C v. D.C., 988 So.2d 359, 363-64 (Miss.2008). A rehearing on the substitute opinion was denied. Id.

¶ 25. In her appeal, the grandmother claims that her motion for intervention was filed timely. She also argues she should have been allowed to intervene to fully develop the record with respect to the allegations of sexual abuse, and the chancellor erred in granting custody to the father without hearing the evidence of abuse.

ANALYSIS

¶ 26. The grandmother presents three issues for our consideration, which we restate for clarity:

1. Whether her notice of appeal was timely filed.
2. Whether the chancellor erred in denying the motion for intervention.
3. Whether this case should be remanded so that the trial court can conduct an evidentiary hearing on the underlying allegations of sexual abuse.

¶ 27. In her statement regarding oral argument, the grandmother suggests four issues as paramount for our consideration:

1. The procedural requirements for movants-in-intervention to appeal the denial of their motion;
2. The rights of grandparents to intervene in pending custody litigation;
3. The duties of independence of guardians ad litem where abuse is alleged; and
4. The right of a child or her grandparent to an evidentiary hearing before being forced to endure unsupervised visitation with a parent the child has accused of abusing her.

I. Whether the Grandmother’s Notice of Appeal was Timely Piled.

¶ 28. The question we must address initially is whether the grandmother’s notice of appeal was timely filed. There is great conflict in the law as to when the time begins to run for filing a notice of appeal of a denial of intervention, and this Court has not previously addressed the issue.

¶ 29. On August 22, 2005, the trial court issued an order overruling the grandmother’s motion to intervene. At the hearing on the motion, the trial court said:

The guardian ad litem has presented a report to this Court that gives me very serious concerns about the atmosphere in the mother’s home, the influence of the grandmother, and I want those children out of that atmosphere. I don’t see that you have presented anything that gives the grandmother standing to intervene, so that request is denied.

¶ 30. Six months later, on February 10, 2006, the trial judge issued both a bench opinion and a judgment. Sixteen days thereafter, the grandmother filed a notice of appeal. When the father objected to the grandmother’s appeal as having been

filed untimely, we remanded for the trial court to address the issue. Chandler, 2006 Miss. LEXIS 139.' The trial court determined that the notice of appeal was not timely filed.

¶ 31. Rule 24 of the Mississippi Rules of Civil Procedure — which sets out the procedure for intervention as a matter of right — states, in applicable parts:

(a) Intervention of Right. Upon timely application, anyone shall be permitted to intervene in an action:
(2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

M.R.C.P. 24(a).

¶ 32. Mississippi Rules of Appellate Procedure 3(a) and 4(a) — which provide the procedure for appealing to this Court — state:

In all cases, both civil and criminal, in which an appeal is permitted by law as of right to the Supreme Court, there shall be one procedure for perfecting such appeal. That procedure is prescribed in these rules. All statutes, other sets of rules, decisions or orders in conflict with these rules shall be of no further force or effect. An appeal permitted by law as of right from a trial court to the Supreme Court shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the perfection of the appeal, but is ground only for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal. Interlocutory appeals by permission shall be taken in the manner prescribed by Rule 5.

M.R.A.P. 3(a).

[T]he notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from....

M.R.A.P. 4(a).

¶ 33. The trial court held that the notice of appeal was not timely filed, using interpretations of the Federal Rules of Civil Procedure in its reasoning. This Court has consistently stated that the “[ejntry of an order in one of our trial courts denying an application for leave to intervene under Rule 24 is sufficiently a final order that review of the same lies within our appellate jurisdiction.” Guaranty Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 380 (Miss.1987) (citing Stallworth v. Monsanto, 558 F.2d 257, 263 (5th Cir. 1977)). See also Smith v. Holmes, 921 So.2d 283, 285 (Miss.2005); Cohen v. Cohen, 748 So.2d 91, 93 (Miss.1999). Our precedent has not heretofore, however, required an immediate appeal.

¶ 34. Furthermore, the father did not file a brief in this current appeal. Rule 31(d) of the Mississippi Rules of Appellate Procedure govern the consequences for a party’s failure to file a brief, and allows for an appellee’s brief to be stricken from the record upon motion by appellant if untimely filed, and does not allow appellee to be heard at oral argument except by permission by the Court. Further, this Court has consistently held that “although unsaid in 31(d), the rule has been stated in numerous cases that the failure of the appel-lee to file a brief is tantamount to a confession of error and will be accepted as such unless we can with confidence say, after considering the record and brief of [Appellant, that there was no error.” Snow Lake Shores Property Owners Corp. v. Smith, 610 So.2d 357, 360-61 (Miss.1992) (quoting Burt v. Duckworth, 206 So.2d 850, 853 (Miss.1968)). See also Queen v. Queen, 551 So.2d 197, 199 (Miss.1989); Sparkman v. Sparkman, 441 So.2d 1361, 1362 (Miss.1983); State v. Maples, 402 So.2d 350, 353 (Miss.1981).

¶ 35. Our case law allows, but does not require, an immediate appeal from a denial of a motion to intervene. The only party arguing before us claims that the appeal at issue was timely filed. Therefore, because of the unusual circumstances in this matter, we hold that the grandmother’s notice of appeal was timely filed on February 26, 2006.

II. Whether the Chancellor Erred in Denying the Grandmother the Right to Intervene.

¶ 36. The grandmother correctly asserts that this Court has adopted a test (referred to as the Ferguson test) to determine whether a motion for intervention should be granted. The test’s four factors are:

1) The would-be intervenor must make a timely application;
2) He [or she] must have an interest in the subject matter of the action;
3) He [or she] must be so situated that disposition of the action may “as a practical matter” impair or impede his ability to protect his interest; and
4) His [or her] interests must not already be adequately represented by the existing parties.

Perry County v. Ferguson, 618 So.2d 1270, 1271 (Miss.1993).

¶ 37. This Court has acknowledged that the trial court has “considerable discretion” when determining intervention pursuant to Rule 24(a)(2). The standard of review on appeal is abuse of discretion. Id. at 1271-72. However, both the trial court and this Court must be ever mindful of the longstanding rule in child-custody litigation, that the paramount consideration is the best interest of the child. Foster v. Alston, 7 Miss. 406, 6 Howard 406, 1842 Miss. LEXIS 58, **57-58 (1842). See also D.C. v. D.C., 988 So.2d 359, 363 (Miss.2008); Albright v. Albright, 437 So.2d 1003, 1004 (Miss.1983). We hold that the trial judge abused her discretion in not allowing the grandmother to intervene.

¶ 38. The first prong of the Ferguson test is satisfied, as there is no claim that the grandmother’s motion was not timely filed. As for the second prong, we are persuaded that — although grandparents in Mississippi have a naturally strong interest in the safety and well-being of their grandchildren — that factor, standing alone, will not suffice to allow intervention in child-custody battles between parents. However, where (as here) the safety and well-being of children are not being adequately protected by the parties to the litigation, this Court has never refused to allow participation by third parties to protect those interests. To hold otherwise would, in our view, be irresponsible and contrary to the polestar consideration in such cases of the best interests of the children.

¶ 39. We find it rather obvious that the safety and well-being of the grandmother’s grandchildren would be affected by the disposition of this custody dispute, particularly with the unresolved allegations of abuse. Her interests were further affected at the time she filed her motion because the court had just placed the children in the custody of DHS, with no provision for visitation by the grandparents.

¶ 40. Finally, we find that the grandmother’s interests in the safety and well-being of her grandchildren were not being represented by the existing parties. The father, who is alleged to have abused Jane, has an obvious reluctance to present evidence which would tend to confirm the allegations. The mother absconded from the jurisdiction of the court, causing the chancellor to strike her pleadings. Thus, she was in no position to protect the interests of the children by presenting the evidence of abuse. The guardian ad litem failed to provide the trial court with an objective record of all the evidence, presenting instead only the evidence which tended to confirm his opinion. And last, but not least, the chancellor issued sanctions against the mother by inappropriately striking her pleadings, including the abuse allegations. This deprived the children, and particularly Jane, of the court’s protection. We hold today that it is never appropriate to deprive children of due process safeguards by punishing one of the litigants in a custody battle and refusing to consider allegations of abuse of the children.

¶41. We hold that the trial court abused its discretion in denying the grandmother’s motion to intervene. Accordingly, the trial court’s judgment rendered February 10, 2006 is set aside, and this ease is remanded to the trial court for proceedings consistent with this opinion. Upon retrial of the custody matter, the chancellor should carefully separate the remedies available for the parties’ misconduct from adjudication of the allegations of abuse.

III. The Role of the Guardian Ad Li-tem

¶ 42. In Mississippi, chancellors often appoint guardians ad litem in cases involving children who have not reached the age of majority. While it is required that guardians ad litem should be appointed in cases involving allegations of child abuse, it is also true that appointments are made in numerous other circumstances, such as contested custody actions. The role to be played by a guardian ad litem is complex and not subject to a simple, universal definition.

¶ 43. Some circumstances require that a guardian ad litem serve as an arm of the court, appointed to investigate and present to the court all necessary and material information which might affect the court’s decision. S.N.C. v. J.R.D., 755 So.2d 1077, 1082 (Miss.2000). Other circumstances might require the guardian ad litem to serve as the ward’s lawyer, with all the duties, responsibilities, and privileges required by the attorney-client relationship. This Court has held that in some instances guardians ad litem have the “same obligation of diligence as fiduciaries generally,” and can “make no admission to the injury of the minor.” In re Estate of Prine, 208 So.2d 187, 192 (Miss.1968).

¶ 44. A guardian ad litem is defined “a guardian, usually a lawyer, appointed by the court to appear in a lawsuit on behalf of an incompetent or minor party.” Black’s Law Dictionary 586 (8th ed.2005). The definition provides little guidance.

¶ 45. Interpretations and opinions vary regarding the role of a guardian ad litem. For instance, Professor Deborah H. Bell opines, “A guardian ad litem assists a court by investigating and making recommendations regarding a child’s best interest. The guardian is not an adversary and does not represent the child as a traditional advocate.” Bell on Mississippi Family Law § 5:10, at 136 (2005).

¶ 46. Even the legal encyclopedias are not completely in sync on the subject. One lists the role of the guardian ad litem as a “hybrid” role, saying,

a guardian ad litem is, in a sense, an officer of the court who is not simply counsel to one party in the litigation, but instead plays a hybrid role, advising one or more parties as well as the court, [and] the guardian is more than a nominal representative appointed to counsel and consult with the trial court, and he or she has all the duties, powers, and responsibilities of counsel who represents a party to litigation.

43 C.J.S. Infants § 321, at 459, and § 334, at 477 (2004). However, another states, “a minor’s guardian ad litem owes no duty to act as the minor’s attorney,” but says, “a guardian ad litem appointed to represent an infant defendant is regarded as an officer or agent of the court, or as a fiduciary.” 42 Am.Jur.2d Infants § 183, at 143 (2000).

¶ 47. In Mississippi jurisprudence, the role of a guardian ad litem historically has not been limited to a particular set of responsibilities. In some cases, a guardian ad litem is appointed as counsel for minor children or incompetents, in which case an attorney-client relationship exists and all the rights and responsibilities of such relationship arise. In others, a guardian ad litem may serve as an arm of the court — to investigate, find facts, and make an independent report to the court. The guardian ad litem may serve in a very limited purpose if the court finds such service necessary in the interest of justice. Furthermore, the guardian ad litem’s role at trial may vary depending on the needs of the particular case. The guardian ad litem may, in some cases, participate in the trial by examining witnesses. In some cases, the guardian ad litem may be called to testify, and in others, the role may be more limited.

¶ 48. We find no fault with any of these diverse duties and responsibilities a chancellor might assign to a guardian ad litem in a particular case. However, we encourage chancellors to set forth clearly the reasons an appointment has been made and the role the guardian ad litem is expected to play in the proceedings. To avoid potential problems regarding confidential communications and other expectations, chancellors should make clear: (1) the relationship between the guardian ad litem and the children, incompetent, or other ward of the court; (2) the role the guardian ad litem will play in the trial; and (3) the expectations the trial judge has for the guardian ad litem. The role a chancellor expects a guardian ad litem to play should be set forth clearly in the written order of appointment. Doing so will make the guardian ad litem’s relationships and general responsibilities clear to each of the parties (including those wards old enough to comprehend), the attorneys, the court, and to the guardian ad litem.

¶ 49. Setting out such expectations should not permanently bind the court should needs change as the litigation progresses. Judges may revise these expectation by order as the need arises, so long as the guardian ad litem is not required to breach client confidences or other ethical duties by the change in responsibilities. Chancellors should be free to assign duties to a guardian ad litem as the needs of a particular case dictate, and the role of the guardian ad litem should at all times be clear.

¶ 50. In the present case, the chancellor failed to define clearly the purposes for which a guardian ad litem was appointed. In fact, the record reveals, that at times, the chancellor viewed the guardian ad litem as a special master for the court, and at other times, as an attorney representing the children.

¶ 51. The order initially appointing the guardian ad litem in this matter stated, “the parties are ordered to cooperate fully with the appointed Guardian Ad Litem and to promptly execute and deliver any and all authorizations necessary for the Guardian Ad Litem to communicate with counselors, physicians, forensic professionals and others regarding the minor children.” The only other direction provided to the guardian ad litem was the order naming the guardian ad litem and requiring each parent to deposit six hundred dollars into the registry of the court for his services. There are no further instructions to the parties, their attorneys, the minor children or the guardian ad litem as to the role of the guardian ad litem was to play in this matter.

¶ 52. In the chancellor’s bench opinion and judgment, the chancellor referred to the role of the guardian ad litem by saying, “This Court entered orders. One of them was to appoint ... [a] guardian ad litem for these children. Whenever there are such serious allegations concerning the health, welfare, and well-being of minor children it is incumbent upon this Court to appoint them a lawyer....” (Emphasis supplied) The chancellor also stated, “The Court instructed the attorneys that it was important that these children be allowed access to their lawyer, [the guardian ad litem], and they were being denied access.” Later, the chancellor pointed out that “the guardian ad litem is not just a token in a case like this. He is an active representative of the children. He is charged with seeing to their best interest. He has a duty not only to his clients, the children, but also to the Court to conduct his duty and to make reports to the Court. And [he] has made a diligent effort in fulfilling that role.... ” (Emphasis supplied.)

¶ 53. The court’s multiple references to the guardian ad litem as the children’s attorney are at odds with the reference to the guardian ad litem’s duty to make a report to the court, other than as any other lawyer representing a client might be required to do. If the guardian ad litem was appointed in this matter as an attorney representing the children, he owed the children all of the loyalty, duties, and confidentiality mandated by the attorney-client relationship. In describing those duties, the Mississippi Rules of Professional Conduct include no exception for a guardian ad litem. No rule of ethics allows a guardian ad litem to ignore or violate the attorney-client privilege, or any other aspect of the attorney-client relationship.

[16] ¶ 54. On the other hand, if the guardian ad litem is to act as one who investigates and makes recommendations to the court, that role must be made clear to the parties, and particularly, to the children of suitable age and experience for whom the guardian ad litem is appointed. Such children have a right to be informed whether or not the guardian ad litem is their attorney, and whether a confidential relationship exists. Therefore, prudence requires the guardian ad litem’s role be made clear.

¶ 55. We reiterate for emphasis: When making an appointment, we encourage chancellors to define clearly the role and responsibility of the guardian ad litem. Chancellors should not (as happened in this case) appoint a guardian ad litem to serve in the dual role of advisor to the court and lawyer for the child.

¶ 56. Furthermore, where a guardian ad litem is appointed as an investigator for, or advisor to, the court, the guardian ad litem should recommend a course of action to the court, but the guardian ad litem should never serve as a substitute for the court. The court is not bound by the guardian ad litem’s recommendation, and the court, not the guardian ad litem, is the ultimate finder of fact. See Hensarling v. Hensarling, 824 So.2d 583, 587 (Miss.2002).

¶ 57. Therefore, a guardian ad litem appointed to investigate and report to the court is obligated to investigate the allegations before the court, process the information found, report all material information to the court, and (if requested) make a recommendation. However, the guardian ad litem should make recommendations only after providing the court with all material information which weighs on the issue to be decided by the court, including information which does not support the recommendation. The court must be provided all material information the guardian ad litem reviewed in order to make the recommendation. Recommendations of a guardian ad litem must never substitute for the duty of a chancellor.

¶ 58. In the present case, the guardian ad litem was entitled to his opinion, but he should have presented at trial the allegations of abuse and both the evidence that substantiated the allegations and the evidence that did not. As previously stated, the trial court, and not the guardian ad litem, is the ultimate finder of fact.

CONCLUSION

¶ 59. The trial court erred in ruling that the grandmother’s notice of appeal was not timely filed pursuant to the Mississippi Rules of Appellate Procedure. Furthermore, the trial court erred in ruling that, under the facts of this case, the grandmother had no right to intervene. We reverse the trial court’s judgment rendered February 10, 2006, and remand for a new trial, with instructions that the grandmother be allowed to intervene as an interested party in the custody dispute.

¶ 60. REVERSED AND REMANDED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY.

      . As will be discussed, the mother of the children involved in this case absconded from the jurisdiction, and the chancellor struck her pleadings. Thus, much of the evidence supporting the allegations of sexual abuse was not presented at trial. We gleaned much of the factual background recited herein from transcripts of the numerous motion hearings, the exhibits to motions, and other pleadings.

      . See D.C. v. D.C., 988 So.2d 359 (Miss.2008).

      . Because of the allegations of sexual abuse, the names of the parties will not be used. The mother and father of the children share the same initials, therefore the parties will be identified in reference to relationship with the children.

      . The children’s names have been replaced with Jane and John.

      . The record reveals only one attempt to qualify the guardian ad litem to render such expert opinions. The only qualification stated was that the guardian ad litem had served for many years as a guardian ad litem. In other words, the first time the guardian ad litem rendered such an opinion, he was not qualified, but thereafter, he was because he had done so before. We find such meager qualifications unacceptable as a matter of law, under the principles set forth in Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (adopted by this Court in Miss. Transp. Comm'n v. McLemore, 863 So.2d 31, 35-40 (Miss.2003)).

      . According to the grandmother's brief, an exchange at a later hearing between her counsel, Karen Spencer, and the chancellor occurred in the trial court's chambers without a court reporter, during which Spencer
      begged the court to require that the visitation with [the Father] be supervised. The court told Spencer that the harm had already been done and that [the Father] would not do it again since the spotlight of the world was on him. The chancellor then stated, "Merry Christmas, Ms. Spencer.”
      We place no evidentiary value on this alleged discussion because it was not recorded, and is outside the record. We mention it here only to emphasize the importance of recording all proceedings before the court.

      . At this point, the chancellor who had heard all previous proceedings was no longer on the bench, and the case was assigned to a new chancellor.

      . We pause again to note that — because the mother absconded from the court's jurisdiction — the chancellor struck all of her pleadings, and the trial record was not developed with respect to the alleged abuse.

      . Such third parties might include (for instance) the Mississippi Department of Human Services, or a guardian ad litem.

      . While not dispositive, we note with interest that the Mississippi Legislature, which is the body charged with determining public policy in Mississippi, enacted Section 93-16-3 of the Mississippi Code, which grants visitation rights to grandparents. For an excellent discussion of the visitation rights of parents and grandparents in Mississippi, see 4 Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 28:15 (2001).

      . This Court has held "that when a chancellor's ruling is contrary to the recommendation of a statutorily required guardian ad litem, the reasons for not adopting the guardian ad litem’s recommendation shall be stated by the court in the findings of fact and conclusions of law.” S.N.C. at 1082. Our holding today is not contrary to this requirement.


source: Caselaw Access Project

author: BARNES, J., for the Court.

license: Public Domain

text:
    Van GRAY, Appellant. v. STATE of Mississippi, Appellee.
    No. 2006-CP-01139-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2008.
    Rehearing Denied March 31, 2009.
    Certiorari Denied July 23, 2009.

      Van Gray, appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   BARNES, J., for the Court.

¶ 1. In this post-conviction relief appeal, we are asked to determine whether a change in the law regarding which offenders are eligible for trusty-earned time constitutes a prohibited ex post facto application of the law as to Van Gray. The trial court found that it did not and dismissed Gray’s motion for post-conviction relief. Finding error, we reverse the judgment of the trial court and remand this ease with instructions that Gray be provided an evi-dentiary hearing regarding his motion.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On October 24, 2001, Gray sold cocaine weighing less than 0.1 gram to an undercover agent in Lamar County. He pleaded guilty on October 1, 2004, to the crime of sale and transfer of cocaine in violation of Mississippi Code Annotated section 41-29-139 (Rev.2005). Following his guilty plea, Gray was sentenced to fifteen years in the custody of the Mississippi Department of Corrections with seven years to serve and eight years suspended.

¶ 3. At the time Gray committed the crime, offenders convicted of sale or transfer of a controlled substance were eligible to be placed in trusty status and to accumulate trusty-earned time pursuant to Mississippi Code Annotated section 47-5-138.1 (Rev.2001). However, prior to the time Gray was convicted and sentenced, the statute was changed to exclude offenders convicted of sale or transfer of a controlled substance from eligibility for the earned-time allowance. Miss.Code Ann. § 47-5-138.1 (Rev.2004). The effective date of the amendment was April 28, 2004. Id.

¶ 4. Gray claims that applying the change in the law to him amounts to the application of an unconstitutional ex post facto law. He pursued this claim through the Mississippi Department of Corrections administrative remedies, and when he was unsuccessful, he filed a petition in the Circuit Court of Lamar County to clarify his sentence. Gray claimed that the amended statute denied him the ability to earn additional earned time and, thus, was an increase in the punishment for his crime. The trial court found that while Gray had lost the ability to earn additional earned time, the change did not constitute an ex post facto violation. The trial court reasoned that the authority to grant earned time is not a form of sentencing or punishment but is a method enacted by the Legislature to encourage good behavior among inmates and to help ease overcrowding. The trial court also noted that language used in sections 47-5-138 and -138.1, regarding earned time, uses the permissive term “may” instead of the definitive term “shall”; hence, earned time was not an entitlement. In dismissing the petition, the court noted that the term of Gray’s incarceration was within the statutory limits for the crime and that the legislation which took away the earned time did not increase the amount of punishment for the crime. From this dismissal Gray appeals, arguing that the application of the amended Mississippi Code Annotated section 47-5-138.1 to him constituted an ex post facto violation and that he was entitled to an evidentiary hearing on his claim. Due to the import of the issues presented in Gray’s appeal and the fact that Gray is acting pro se, we requested and were provided with an Amicus Curiae brief from the Criminal Appeals Clinic at the University of Mississippi School of Law. Finding error, we reverse the judgment of the trial court and remand this case for an eviden-tiary hearing to determine whether there is a significant risk that the practical application of the amended statute will result in a longer period of incarceration for Gray.

STANDARD OF REVIEW

¶ 5. This Court reviews a trial court’s dismissal of a post-conviction-relief petition de novo to determine whether the defendant has presented a claim procedurally alive “substantially showing denial of a state or federal right.” Young v. State, 731 So.2d 1120, 1122(¶ 9) (Miss.1999) (quoting Myers v. State, 583 So.2d 174, 176 (Miss.1991)). Additionally, the appropriate standard for reviewing questions of law is de novo. Rice v. State, 910 So.2d 1163, 1164-65(¶ 4) (Miss.Ct.App.2005) (citing Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999)). In the case at bar, the issue of whether the application of Mississippi Code Annotated section 47-5-138.1 to Gray constitutes an ex post facto violation is a question of law; therefore, we will apply a de novo standard of review.

ANALYSIS

¶ 6. Gray argues that he was subjected to an ex post facto violation when Mississippi Code Annotated section 47-5-138.1 was applied to him, thereby preventing him from being eligible for earned time and a potential early release. Section 47-5-138.1, which was not in effect at the time Gray’s crime was committed but was in effect at the time of his conviction and sentencing, states as follows in pertinent part:

(1) In addition to any other administrative reduction of sentence, an offender in trusty status as defined by the classification board of the Department of Corrections may be awarded a trusty time allowance of thirty (30) days’ reduction of sentence for each thirty (30) days of participation during any calendar month in an approved program while in trusty status, including satisfactory participation in education or instructional programs, satisfactory participation in work projects and satisfactory participation in any special incentive program.
(2) An offender in trusty status shall not be eligible for a reduction of sentence under this section if:
(e) The offender was convicted violating Section 41-29-139 (a) and sentenced under Section 41-29-139(b) or 41-29-1390 ...

Miss.Code Ann. § 47-5-138.1 (Rev.2004) (emphasis added).

¶7. “Article I, [section] 10, of the Constitution forbids the States from passing any ‘ex post facto [l]aw.’ ” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). “[A]n ex post facto law is one which creates a new offense or changes the punishment, to the detriment of the accused, after the commission of a crime.” Bell v. State, 726 So.2d 93, 94(¶ 7) (Miss.1998). In order to understand fully the complex issues presented by this appeal, it is necessary to examine the evolution of the law regarding the Ex Post Facto Clause of the Constitution. We begin with Lindsey v. Washington, 301 U.S. 397, 397-98, 57 S.Ct. 797, 81 L.Ed. 1182 (1937),- in which the petitioners were convicted of grand larceny; at the time they committed their crimes, the relevant statute mandated that they could not be sentenced to more than fifteen years in prison and allowed the judge to impose any sentence up to the maximum of fifteen years. However, after the commission of the petitioners’ offenses but before they were sentenced, a new statute was enacted that required the judge to sentence offenders to the maximum fifteen-year sentence. Id. at 398, 57 S.Ct. 797. The United States Supreme Court held that the application of the new statute to the petitioners constituted an ex post facto violation in that “the standard of punishment adopted by the new statute [was] more onerous than that of the old.” Id. at 401, 57 S.Ct. 797. The Court stated:

The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer. It is for this reason that an increase in the possible penalty is ex post facto, regardless of the length of the sentence actually imposed, since the measure of punishment prescribed by the later statute is more severe than that of the earlier.... We need not inquire whether this is technically an increase in the punishment annexed to the crime.... It is plainly to the substantial disadvantage of petitioners to be deprived of all opportunity to receive a sentence which would give them freedom from custody and control prior to the expiration of the 15-year term.

Id. at 401-02, 57 S.Ct. 797 (internal citations omitted).

¶ 8. In Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), the Supreme Court stated that “two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Id. at 29, 101 S.Ct. 960 (citing Lindsey, 301 U.S. at 401, 57 S.Ct. 797; Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798)). Weaver involved an ex post facto challenge to a new Florida statute that reduced the amount of monthly gain-time credits a prisoner could receive for good behavior from that which a prisoner could have received under the old statute. Id. at 26, 101 S.Ct. 960. The statute in place at the time the petitioner committed his crime and was sentenced “provided a formula for deducting gain-time credits from the sentences ‘of every prisoner who ha[d] committed no infraction of the rules or regulations ... and who ha[d] performed in a faithful, diligent, industrious, orderly and peaceful manner, the work, duties and tasks assigned to him.’ ” Id. at 26, 101 S.Ct. 960 (citing Fla. Stat. § 944.27(1) (1975)). The statute also set forth a detailed scheme for the amount of time to be deducted and stated that the authorities “shall grant the ... deductions.” Id. The new statute, however, reduced the amount of gain-time credit that could be earned. Id. at 26-27, 101 S.Ct. 960.

¶ 9. The petitioner’s crime was committed before the new statute was enacted; therefore, he argued that the application of the new statute to him constituted an ex post facto violation in that it increased the amount of time he would be required to serve in prison. Id. at 27, 101 S.Ct. 960. In finding an ex post facto violation, the Supreme Court noted that “a law need not impair a ‘vested right’ to violate the ex post facto prohibition” and that “even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.” Id. at 29-31, 101 S.Ct. 960. The Supreme Court stated that “under both the new and old statutes, an inmate is automatically entitled to the monthly gain time simply for avoiding disciplinary infractions and performing his assigned tasks.” Id. at 35, 101 S.Ct. 960. Thus, the Supreme Court found that the new law “eonstrict[ed] the inmate’s opportunity to earn early release, and thereby ma[de] more onerous the punishment for crimes committed before its enactment.” Id. at 35-36, 101 S.Ct. 960.

¶ 10. In Miller v. Florida, 482 U.S. 423, 426-27, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), the Supreme Court addressed an ex post facto challenge regarding the Florida Legislature’s enactment of legislation that had the effect of increasing the presumptive sentencing range for the petitioner’s crime after its commission but before the petitioner was sentenced. Under the old law, the petitioner’s presumptive sentencing range was three-and-one-half to four-and-one-half years and, in order to deviate from this range, the judge was required to set forth written “clear and convincing reasons.” Id. at 424, 426, 107 S.Ct. 2446. The new law, however, resulted in the petitioner being subject to a five- and-one-half-year to seven-year sentencing range. Id. at 427, 107 S.Ct. 2446. The petitioner received a seven-year sentence in accordance with the new law. Id. at 428, 107 S.Ct. 2446. On appeal, the Florida District Court of Appeal vacated the petitioner’s sentence on the ground that the guidelines in effect at the time the petitioner committed the offense should have been utilized; however, the Supreme Court of Florida reversed, holding that a trial court may rely on the sentencing guidelines in effect at the time the sentence is imposed. Id. The supreme court further held that the new presumptive sentencing range did not “change the statutory limits of the sentence imposed for a particular offense”; therefore, the change was a procedural change and, thus, not subject to the Ex Post Facto Clause. Id.

¶ 11. Utilizing the disadvantage test set forth in Weaver, the Supreme Court reversed the decision of the appellate court, reasoning that the application of the new legislation to the petitioner constituted an ex post facto violation because (1) the law was clearly retrospective as applied to the petitioner, and (2) the petitioner was disadvantaged in that, under the prior law, the judge would have had to depart from the sentencing range in order to impose the sentence that petitioner received and would have had to support his departure by “clear and convincing reasons ... on facts proved beyond a reasonable doubt,” while under the new statute, the sentence was in the presumptive range; therefore, it did not have to be supported in any way. Id. at 430-33, 107 S.Ct. 2446. Relying on Lindsey, the Supreme Court stated that a prisoner is not required to “show definitively that he would have gotten a lesser sentence” under the previous law in order to demonstrate an ex post facto violation. Id. at 432, 107 S.Ct. 2446. According to the Supreme Court, “Lindsey establishes ‘that one is not barred from challenging a change in the penal code on ex post facto grounds simply because the sentence he received under the new law was not more onerous than that which he might have received under the old.’ ” Id. (citation omitted).

¶ 12. However, in Morales, 514 U.S. at 506 n. 3, 115 S.Ct. 1597, the Supreme Court held that when examining whether an ex post facto violation occurs, the focus of the inquiry is not on whether a legislative change merely produces some sort of ambiguous “disadvantage,” as some previous decisions, specifically Lindsey, Miller, and Weaver, had implied. The Supreme Court stated that “the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of ‘disadvantage,’ nor ... on whether an amendment affects a prisoner’s ‘opportunity to take advantage of provisions for early release,’ but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” Id. (internal citations omitted). The Supreme Court further stated that “what legislative adjustments ‘will be held to be of sufficient moment to transgress the constitutional prohibition’ must be a matter of ‘degree.’ ” Id. at 509, 115 S.Ct. 1597 (citation omitted).

¶ 13. In Morales, the Supreme Court addressed an amendment to a California statute that allowed the Board of Prison Terms to defer parole suitability hearings for up to three years for certain inmates, one of which was the petitioner, while under the old statute, the petitioner would have been entitled to suitability hearings every year. Id. at 503, 115 S.Ct. 1597. The petitioner argued that the amendment constituted an ex post facto law; the Supreme Court, however, found that the “amendment create[d] only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes, and such conjectural effects are insufficient under any threshold we might establish under the Ex Post Facto Clause.” Id. at 509, 115 S.Ct. 1597. The Supreme Court based this holding on the following: (1) the new statute only applied to a small class of prisoners; (2) the Board’s authority under the new statute was narrowly tailored in that the new statute only affected the timing of subsequent parole suitability hearings, not the initial hearing, and before the Board could defer subsequent hearings, it had to determine that there was no reasonable expectation that parole would be granted as the result of a hearing during the following years; and (3) the Board had the authority under the new statute to tailor the frequency of suitability hearings to the needs of individual prisoners. Id. at 510-12, 115 S.Ct. 1597.

¶ 14. Later, in Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997), the Supreme Court addressed a Florida attorney general opinion that interpreted a prior statute as retroactively cancelling all provisional early release credits which had been awarded to inmates convicted of murder or attempted murder. Id. at 436, 117 S.Ct. 891. Pursuant to such statute, the petitioner had been released from prison based on his accumulation of early release credits; however, following the opinion, the petitioner was rearrested and returned to prison. Id. Curiously, in finding that the application of the attorney general’s opinion to the petitioner was an ex post facto violation, the Court referred to the “disadvantage” suffered by the offender although it had stated in Morales that this was not the appropriate inquiry. Id. at 442, 117 S.Ct. 891. The Court stated that, unlike in Morales, the attorney general’s opinion “did more than simply remove a mechanism that created an opportunity for early release for a class of prisoners whose release was unlikely; rather, it made ineligible for early release a class of prisoners who were previously eligible—including some, like [the] petitioner, who had actually been released.” Id. at 447, 117 S.Ct. 891. The Supreme Court noted that the fact the petitioner had actually been awarded the early release credits that were later retroactively cancelled obviated the need “to speculate about what might have happened.” Id. at 446, 117 S.Ct. 891.

¶ 15. The Supreme Court revisited, and clarified, its Morales holding in Garner v. Jones, 529 U.S. 244, 247, 120 S.Ct. 1362, 146 L.Ed.2d 286 (2000), in which the respondent escaped from prison while he was serving a life sentence for murder, subsequently committed another murder, and was sentenced to an additional life term. At the time the respondent committed the second murder, the Georgia Board of Pardons was required to reconsider an inmate serving a life sentence for parole every three years after parole was initially denied. Id. After the respondent had begun serving his second life sentence, the rule was changed to required reconsideration at the least every eight years, and the new law was applied to the respondent. Id. The Eleventh Circuit Court of Appeals found that the application of the new law to the respondent constituted an ex post facto violation; the Supreme Court, however, disagreed. Id. at 246, 120 S.Ct. 1362.

¶ 16. Relying on Morales, the Supreme Court stated that “[t]he controlling inquiry, we determined, was whether retroactive application of the change in ... [the] law created ‘a sufficient risk of increasing the measure of punishment attached to the covered crimes.’ ” Id. at 250, 120 S.Ct. 1362 (quoting Morales, 514 U.S. at 509, 115 S.Ct. 1597). In considering whether the new rule “[created] a significant risk of prolonging [the] respondent’s incarceration,” the Supreme Court stated that “[t]he requisite risk is not inherent in the framework of [the new] rule, ... and it has not otherwise been demonstrated on the record.” Id. at 251, 120 S.Ct. 1362. The Supreme Court first noted that the Georgia Parole Board had “board discretion ... in determining whether an inmate should receive early release.” Id. at 253, 120 S.Ct. 1362. However, the Supreme Court stated that “[t]he presence of discretion does not displace the protections of the Ex Post Facto Clause.” Id. Nonetheless, the Supreme Court found that the “law changing the frequency of parole reviews [was] qualified in two important respects.” Id. at 254, 120 S.Ct. 1362. First, the Board had discretion as to how often to reconsider an inmate’s parole, with eight years being the maximum interim period; second, the Board’s policies provided for expedited review in the case of changed circumstances or new information. Id. Therefore, the Supreme Court stated that the qualifications permitted “a more careful and accurate exercise of the discretion the Board ... had from the outset.” Id.

¶ 17. The Supreme Court then elaborated further on the test set forth in Morales, stating as follows:

The standard announced in Morales requires a more rigorous analysis of the level of risk created by the change in law. When the rule does not by its own terms show a significant risk, the respondent must demonstrate, by evidence drawn from the rule’s practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule.... In the case before us, respondent must show that as applied to his own sentence the law created a significant risk of increasing his punishment. ... This remains the issue in the case, though the general operation of the Georgia parole system may produce relevant evidence and inform further analysis on the point.

Id. at 255, 120 S.Ct. 1362 (internal citations omitted). The Supreme Court subsequently found that the record before the lower court “contained little information bearing on the level of risk created by the change in law” and concluded that, on the record before it, it could not conclude that the new law increased the respondent’s punishment. Garner, 529 U.S. at 256, 120 S.Ct. 1362. The Supreme Court stated that “[without knowledge of whether retroactive application of the [amended rule] increases, to a significant degree, the likelihood or probability of prolonging respondent’s incarceration, his claim rests upon speculation.” Id. at 256, 120 S.Ct. 1362. The Supreme Court further found as follows:

The Court of Appeals erred in not considering the Board’s internal policy statement. At a minimum, policy statements, along with the Board’s actual practices, provide important instruction as to how the Board interprets its enabling statute and regulations, and therefore whether, as a matter of fact, the amendment to [the rule] created a significant risk of increased punishment. It is often the case that an agency’s policies and practices will indicate the manner in which it is exercising its discretion.

Id. at 256-57, 120 S.Ct. 1362. The Supreme Court relied heavily on the fact that the policy statement indicated that the parole board would only set subsequent parole hearing dates three or more years into the future when it was “ ‘not reasonable to expect that parole would be granted’ sooner” and that a prisoner could obtain an earlier hearing based on changed circumstances or new information. Id. at 249, 256-57, 120 S.Ct. 1362. Based on this policy, and the fact that the respondent had failed to demonstrate anything to the contrary, the Supreme Court found that the respondent had failed to show that the new law created a “significant risk of increased punishment.” Id. at 257, 120 S.Ct. 1362. Therefore, the Supreme Court reversed the decision of the Court of Appeals and remanded the case for further proceedings, including, if the lower court deemed it warranted, additional discovery on the part of the respondent so that he might be able to demonstrate that the new law created a significant possibility of increasing his punishment. Id. at 257, 120 S.Ct. 1362.

¶ 18. In addition to the above-discussed United States Supreme Court authority, the courts in Mississippi have also had occasion to examine the requirements of the Ex Post Facto Clause. In Post v. Ruth, 354 So.2d 1111, 1112 (Miss.1978), the Mississippi Supreme Court addressed an ex post facto challenge regarding an amendment to the statute governing the amount of good time an inmate could earn. At the time the petitioner committed the crime and was convicted and sentenced to probation, the old statute was in effect. However, after the petitioner’s probation was revoked and he was committed to prison, the new law had taken effect and was applied to him. Id. In response to the petitioner’s ex post facto challenge, the court stated as follows:

Appellant further contends that the amended act does not apply to him and that it amounts to an ex post facto law which increases the sentence and which denies him equal protection of the law. The purpose of the act is to encourage discipline. It provides that a distinction may be made in the treatment of offenders so as to encourage them to be orderly, industrious and obedient. The good time provided is contingent upon the good conduct of the prisoner, and misconduct ranging from minimal to serious may forfeit all earned good time. The earned time does not become vested until the prisoner is entitled to be discharged after receiving credit for good time.

Id. at 1112-13. The court then discussed cases from other jurisdictions holding that earned time does not reduce an inmate’s sentence, but rather allows the inmate to serve the remainder of his sentence outside of the prison, and holding that earned time is a conditional rather than vested right. Id. at 1113-14 (quoting Miller v. Taylor, 313 F.2d 21, 22 (10th Cir.1962); Douglas v. Sigler, 386 F.2d 684, 686 (8th Cir.1967)). The court subsequently found no ex post facto violation, stating that the petitioner was credited with more earned time under the new statute than he would have been under the prior statute. Id. at 1114.

¶ 19. In Ross v. State, 584 So.2d 777, 779 (Miss. 1991), the Mississippi Supreme Court considered the phrase “meritorious earned time” in a constitutional challenge and concluded that an inmate’s earning of “time” is a matter of “grace or privilege,” not a matter of right. Ross claimed his equal protection and due process rights were violated by the failure to award him earned time even though he had completed certain programs that he was told would make him eligible for earned time. Id. at 778-79. The court interpreted Mississippi Code Annotated section 47-5-142(1) and (2), which dealt with another form of earned time, and found that the accumulation of earned time would be deemed a matter of right if the Legislature had employed the word “shall” instead of “may” when it said that earned time “may” be awarded. However, since “may” was used, the correctional officials were vested with discretionary power to award earned time under certain conditions; therefore, receipt of earned time was not a right to which inmates were entitled. Id. at 779.

¶ 20. In Puckett v. Abels, 684 So.2d 671 (Miss.1996), the Mississippi Supreme Court addressed whether Mississippi Code Annotated section 47-5-138, which required that an inmate serve eighty-five percent of his or her sentence before being eligible for parole, applied to prisoners convicted before, but sentenced after, the new law’s effective date without constituting an ex post facto violation. Under the old law, prisoners were eligible for parole after serving twenty-five percent of their sentence, or they could obtain early release by way of the earned-time provisions by serving fifty percent of them sentence. Id. at 672. The Puckett court discussed Lindsey, Weaver, and Morales, stating:

In Morales, the Court stated: “The ex post facto standard we apply today is constant: it looks to whether a given legislative change has the prohibited effect of altering the definition of crimes or increasing punishments.” Thus, the holding in Morales does not overrule Weaver, Lindsey, and Miller because the focus in those three cases were on the effect the new law had on the defendant. Morales does, however, sharpen the ex post facto inquiry by looking at whether the statute affected the prisoner’s actual term of confinement, rather than whether the statute had disadvantaged the defendant....
Under Morales, “what legislative adjustments ‘will be held to be of sufficient moment to transgress the constitutional prohibition’ must be a matter of ‘degree.’ ” The Morales decision means that when an amendment does not retrospectively “change the sentencing range” applicable to an offense, but does make a procedural or other change, that may indirectly affect the length of time that a prisoner may serve, no violation of the Ex [P]ost [Fjacto Clause has occurred because of the possibility of such an indirect effect is “speculative and conjectural.” In other words the new law must have a direct effect on the sentence length.

Id. at 676 (internal citations omitted). Applying the Morales test, the court found that the law was an improper ex post facto law. Id. at 678. The court reasoned that unlike Morales, the Mississippi law (1) affected a large class of prisoners; (2) completely eliminated the possibility of parole for the prisoners rather than just affecting the timing of suitability hearings; and (3) applied “automatically across the board” with no “specific inquiry or hearing” like in Morales. Id. at 677.

¶ 21. Finally, in Ross v. Epps, 922 So.2d 847 (Miss.Ct.App.2006), this Court specifically addressed an ex post facto challenge regarding the amended Mississippi Code Annotated section 47-5-138.1. Ross was convicted of the sale of cocaine and was subsequently imprisoned and placed in trusty status pursuant to the old version of section 47-5-138.1. Id. at 848(¶ 1). After the statute was amended, Ross was informed that he would not be eligible for the thirty-day reduction permitted by the new statute; however, he would be eligible for the ten-day reduction allowed by the prior statute. Id. at 848^9(¶ 3). We rejected Ross’s ex post facto challenge, reasoning that because Ross had already earned trusty status, he was still eligible to receive the ten-day reduction; therefore, he was not deprived of any trusty time as a result of the new law. Id. at 849 — 50(¶ 6).

¶ 22. Based on the foregoing authority, in analyzing whether that the application of Mississippi Code Annotated section 47-5-138.1 to Gray is an ex post facto violation, we must begin with the test set forth by the Supreme Court in Morales and later clarified in Gamer. In order to show an ex post facto violation, Gray must demonstrate that application of section 47-5-138.1 creates “a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Garner, 529 U.S. at 250, 120 S.Ct. 1362. As the Supreme Court stated in Gamer, “[w]hen the rule does not by its own terms show a significant risk, the respondent must demonstrate, by evidence drawn from the rule’s practical implementation ... that its retroactive application will result in a longer period of incarceration than under the earlier rule.” Id. at 255, 120 S.Ct. 1362. Utilizing this test, we find that the trial court erred in summarily dismissing Gray’s motion; however, on the record before us, we cannot determine whether the application of Mississippi Code Annotated section 47-5-138.1 to Gray constitutes an ex post facto violation. Accordingly, we find that an evidentiary hearing is necessary to decide this issue.

¶ 23. In dismissing Gray’s motion without an evidentiary hearing, the trial court stated that the language of section 47-5-138.1 is permissive rather than mandatory; therefore, “the entitlement to earned time is not proscribed by the Legislature and, if it is ever to apply to an inmate, it is to apply to his benefit.” The trial court reasoned that “[i]f the privilege of earned [time] had never been set forth by statute, the term of incarceration that the Petitioner faced would have been [seven] years barring the possibility of parole.” Therefore, the trial court concluded that the application of section 47-5-138.1 to Gray “in no way changed the elements of the crime for which he was charged or increased the amount of punishment that he would have to face according to the crime for which he was charged”; accordingly, there was no ex post facto violation.

¶ 24. Although we express no opinion as to whether the application of section 47-5-138.1 to Gray is an ex post facto violation, we cannot accept the trial court’s reasoning in this regard. It is not disposi-tive in this case that the length of Gray’s actual sentence was not increased. The Weaver Court recognized that “a prisoner’s eligibility for reduced imprisonment is a significant factor entering into both the defendant’s decision to plea bargain and the judge’s calculation of the sentence to be imposed,” and found that the application of a statute that reduced the number of gain-time credits that prisoners could accrue to prisoners whose crimes were committed prior to the effective date of the statute to be an ex post facto violation. Weaver, 450 U.S. at 32-33, 101 S.Ct. 960; see also Lynce, 519 U.S. at 445-46, 117 S.Ct. 891 (stating that the “removal of [early release] provisions can constitute an increase in punishment”). The State argues that Weaver is distinguishable from this case on the ground that the statute in Weaver required correction authorities to award gain-time to every prisoner who obeyed the rules, while section 47-5-138.1 states that an inmate who has been put in trusty status “may be awarded a trusty time allowance,” thereby placing the decision of whether to grant the allowance within the discretion of the Mississippi Department of Corrections. Miss.Code. Ann. § 47-5-138.1 (Rev.2004). The trial court also relied on the permissive language of section 47-5-138.1 in finding no ex post facto violation. However, as the Supreme Court stated in Gamer, “[t]he presence of discretion does not displace the protections of the Ex Post Facto Clause.” Garner, 529 U.S. at 253, 120 S.Ct. 1362. Therefore, the fact that the award of trusty time is discretionary is not dispositive.

¶ 25. The State argues that because Gray was not in trusty status at the time the new law took effect, the application of the new law to him did not constitute an ex post facto violation. The State reasons that trusty status and, thus, trusty-earned time, was a “special designation that had to be earned.” Therefore, “no inmate, upon sentencing could reasonably expect to gain trusty status and thus any detriment or increase in punishment from retroactively excluding certain offenders from trusty status eligibility would be speculative and thus does not violate the ex post facto clause.” The State contends that “[a]t most, Gray would be entitled to a classification review to determine whether or not it is likely that he would have been granted trusty status at some point during his incarceration under the rules and policies in place at the time he committed his crimes.”

¶ 26. The Amicus Curiae, on the other hand, relies heavily on Weaver and cites the disadvantage to Gray in arguing that the application of section 47-5-138.1 to Gray constitutes an ex post facto violation. The Amicus Curiae correctly argues that the retroactive removal of early release provisions can constitute an increase in punishment for the purposes of the Ex Post Facto Clause. It also argues that Gray was clearly disadvantaged by the application of section 47-5-138.1 in that he was not allowed to participate in the trusty program that would have been available to him were it not for the new law. Weaver, however, is distinguishable from the case at bar in that the prisoners in Weaver were automatically entitled to gain-time credit based on good behavior. Weaver, 450 U.S. at 34-35, 101 S.Ct. 960. Similarly, as the State notes, Lynce is distinguishable on the ground that the prisoner in that case had already accumulated earned time and been released from prison. Lynce, 519 U.S. at 446-47, 117 S.Ct. 891. In this case, prisoners are neither automatically granted trusty status nor automatically granted trusty-earned time once in trusty status. Moreover, Gray has not been placed in trusty status so as to be eligible to earn trusty time.

¶ 27. As discussed above, the pertinent question in this case is whether the application of section 47-5-138.1 creates “a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Garner, 529 U.S. at 250, 120 S.Ct. 1362. Based on the record before us, we simply cannot determine the answer to this question. At the time the new law took effect, Gray had not been placed in trusty status so as to make him eligible for trusty-earned time. In order to demonstrate an ex post facto violation with regard to the new law, it would have to be demonstrated that there was significant likelihood or probability that Gray would have been placed in trusty status and would have received a ten-day reduction for every thirty days served of his sentence. This showing would demonstrate that the new law created a “significant risk of prolonging [Gray’s] incarceration.” Garner, 529 U.S. at 251, 120 S.Ct. 1362. As noted above, the fact that it is discretionary as to which prisoners are placed in trusty status and whether those prisoners are granted trusty time is not dispositive as to whether the application of the new law to Gray constituted an ex post facto violation. Nor was Gray required to have a vested right to trusty status or trusty-earned time in order to demonstrate an ex post facto violation. See Weaver, 450 U.S. at 29, 101 S.Ct. 960; Garner, 529 U.S. at 253, 120 S.Ct. 1362.

¶28. The State relies on Wottlin v. Fleming, 136 F.3d 1032, 1034 (5th Cir. 1998), in which the petitioner contended that he was told that, pursuant to pending legislation, if he completed a drug-abuse treatment program he would be eligible for early release. However, once the petitioner completed the program, he was told that a new regulation prohibited prisoners convicted of the crime he committed from being eligible for early release. Id. The Fifth Circuit found no ex post facto violation on the ground that the petitioner’s eligibility for the early release program was always subject to the discretion of the bureau of prisons. Id. at 1038. We, however, do not find Wottlin to be dispositive in this case due to the fact that it predated Gamer, which clearly states that the presence of discretion does not automatically indicate that the Ex Post Facto Clause has not been violated. Garner, 529 U.S. at 253, 120 S.Ct. 1362. The State cites no authority handed down after Gamer supporting the proposition that the presence of discretion precludes an ex post facto challenge.

¶ 29. We acknowledge that it is Gray’s burden to demonstrate that the new law creates a significant risk of increasing his punishment. He argues in an affidavit submitted to this Court that he did not have to earn trusty time because it was given up front to all offenders convicted under Mississippi Code Annotated section 41-29-139, but he alludes to no evidence supporting this assertion. However, we feel compelled to note that at every stage of the administrative grievance process, Gray’s claim that he was entitled to the benefit of the prior section 47-5-138.1 was rejected based on the reasoning that he was unavailable for trusty status because he had been convicted of the sale of cocaine. This would seem to indicate that the Department of Corrections’ decision was based solely on the new version of section 47-5-138.1. Moreover, under the specific facts of this case, we fail to see how Gray could adduce the evidence necessary to support his claim, should it exist, without the opportunity for discovery as to the policies and procedures of the Department of Corrections as they pertain to the trusty program. As the Supreme Court found in Gamer, the internal policies and actual practices of an agency charged with administering a statute “provide important instruction as to how [the agency] interprets its enabling statute and regulations” and “[i]t is often the case that an agency’s policies and practices will indicate the manner in which it is exercising its discretion.” Garner, 529 U.S. at 256, 120 S.Ct. 1362. In the case at bar, information that would be pertinent in the resolution of Gray’s claim would be as follows: (1) how the trusty program works; (2) what are the requirements for obtaining trusty status; (3) how many prisoners similarly situated to Gray are granted trusty status, i.e., is it, in actual practice, automatic as Gray claims, or what factors contribute to the decision; (4) when in trusty status, what are the requirements for trusty-earned time. Without this information, a court cannot determine whether Gray has been subjected to an improper ex post facto law. Accordingly, we strongly suggest that the trial judge exercise his discretion in granting discovery of these matters pursuant to Mississippi Code Annotated section 99-39-15 (Rev.2007).

¶ 30. Moreover, because of the complexity of the issues presented in Gray’s appeal and because the resolution of the issues could potentially affect a class of prisoners, we feel that justice would be best served if Gray, who is indigent, were provided appointed counsel for the eviden-tiary hearing. Although “a criminal defendant has neither a state nor federal constitutional right to appointed counsel in post-conviction proceedings,” the trial court is permitted to “appoint counsel to represent an indigent defendant in a PCR evidentiary hearing.” Nance v. State, 766 So.2d 111, 114(¶ 12) (Miss.Ct.App.2000) (citing Miss.Code Ann. § 99-39-23(1) (Supp. 1999)). Therefore, as the decision lies within the discretion of the trial court, we strongly suggest that the trial court consider whether Gray should be appointed counsel to represent him during the investigation and preparation, as well as at the evidentiary hearing pursuant to Mississippi Code Annotated section 99-39-23 (Rev. 2007).

¶31. Based on the foregoing, we find that the most proper resolution is to remand this case to the trial court for an evidentiary hearing addressing the issues discussed above. Should the trial court determine that the application of the amended Mississippi Code Annotated section 47-5-138.1 to Gray creates a significant risk of increasing Gray’s punishment, then the trial court should conclude that such application constitutes an ex post fac-to violation and order that Gray be deemed eligible to acquire trusty status and trusty-earned time under the prior version of section 47-5-138.1. Accordingly, we reverse the judgment of the trial court and remand this case for proceedings consistent with this opinion.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . He was also fined $3,000 and ordered to pay $1,500 to the Lamar County Public Defenders Fund.

      . The Criminal Appeals Clinic is headed by Professor Phillip Broadhead. Jennifer For-man, Melissa Graves, and Nakesha McQuirter, students from the Clinic, contributed to the Amicus Curiae brief. We thank them and Professor Broadhead for their assistance to the Court.

      . The Supreme Court in Miller relied on the following language from Lindsey:

      Finding that retrospective application of this change was ex post facto, the Court determined that “we need not inquire whether this is technically an increase in the punishment annexed to the crime,” because "it is plainly to the substantial disadvantage of petitioners to be deprived of all opportunity to receive a sentence which would give them freedom from custody and control prior to the expiration of the 15-year term.”

        Miller, 482 U.S. at 432, 107 S.Ct. 2446 (quoting Lindsey, 301 U.S. at 401-02, 57 S.Ct. 797).

      . The Supreme Court stated that the language in Lindsey and Weaver regarding whether the petitioner was disadvantaged was "unnecessary to the results in those cases.” Morales, 514 U.S. at 506 n. 3, 115 S.Ct. 1597.

      . The court of appeals stated:
      [T]he set of inmates affected by the retroactive change — all prisoners serving life sentences — is “bound to be far more sizeable than the set ... at issue in Morales "— inmates convicted of more than one homicide. The Georgia law sweeps within its coverage, the court continued, "many inmates who can expect at some point to be paroled,” and thus "seems certain to ensure that some number of inmates will find the length of their incarceration extended in violation of the Ex Post Facto Clause of the Constitution.”

        Garner, 529 U.S. at 249, 120 S.Ct. 1362 (internal citations omitted). The court of appeals found that "the Board's policy permitted it to reconsider any parole denials upon a showing of a ‘change in circumstances' or upon the Board's receipt of 'new information.’ ” However, the court of appeals found this policy insufficient because "policy statements, unlike regulations!,] are unenforceable and easily changed, and adherence to them is a matter of the Board’s discretion.” Id. (citation omitted).

      . We note that Ross did not involve an ex post facto challenge, which is likely the reason the court did not discuss Weaver. •

      . We note that Gray’s motion was styled as a motion to clarify his sentence, not a motion for post-conviction relief. Nonetheless, the trial court found that Gray’s motion substantially complied with the requirements of Mississippi Code Annotated section 99-39-9 (Rev.2007), which sets forth the items that must be included in a motion for post-conviction relief. However, Gray’s motion does not meet the technical requirements of section 99-39-9; regardless, the State does not challenge the trial court’s finding in this regard on appeal.

      . We note that although the Morales Court stated that whether the offender is "disadvantage[d]” is not the appropriate inquiry in analyzing whether an ex post facto violation has occurred. The Supreme Court itself returned to this inquiry in Lynce, which was decided after Morales.

      . It is for this reason that the State's reliance on Post, which held that earned time does not become a vested right until the prisoner becomes entitled to be released due to the earned time, is misplaced.


author: KING, C.J., for the Court.

text:
    Mark Steven ALLEN, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CA-00672-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2008.
    Rehearing Denied May 12, 2009.
    Certiorari Denied July 30, 2009.

      Cynthia Ann Stewart, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., IRVING and CHANDLER, JJ.
   KING, C.J., for the Court.

¶ 1. On December 7, 2000, Mark Steven Allen pled guilty to manslaughter. The Circuit Court of Adams County sentenced Allen to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC) and- ordered Allen to pay a fine of $10,000. Allen filed a motion for post-conviction relief on January 9, 2007. The circuit court dismissed Allen’s motion, finding that it was time-barred. Aggrieved, Allen appeals, raising the following three issues:

I. Whether Allen’s lack of mental competence tolled the statute of limitations for filing a motion for post-conviction relief.
II. Whether the circuit court erred by finding that Allen was competent to stand trial and competent to enter a guilty plea.
III. Whether Allen received ineffective assistance of counsel.

Finding no error, we affirm the circuit court’s dismissal of Allen’s motion for post-conviction relief because it is time-barred.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 23, 1999, an Adams County grand jury indicted Allen for the murder of his father, James Allen. Defense counsel notified the circuit court and the district attorney that Allen planned to offer insanity as a defense to the crime. Defense counsel also filed a motion requesting a psychiatric evaluation of Allen, and the circuit court granted the motion. Allen was evaluated at the Mississippi State Hospital at Whitfield (Whitfield).

¶ 3. In its diagnostic summary, Whitfield noted Allen’s history of mental illness: Allen had been treated for mental illness at least five times from 1981 to 1999; he was diagnosed with schizophrenia and bipolar disorder; and Allen consistently failed to take his medication as prescribed, resulting in several “psychotic outbreaks.” Whitfield determined that Allen “was both competent to proceed legally, and that he would have known right from wrong at the time of the alleged offense.”

¶ 4. Defense counsel filed a motion for additional funds for a second independent psychiatric evaluation. On December 6, 2000, the circuit court denied the motion, stating that Allen’s competency hearing was held on November 20, 2000; neither the State nor the defendant presented additional evidence of Allen’s competency, and Whitfield found that Allen was competent to stand trial. Therefore, based upon the report from Whitfield, the circuit court found that Allen was competent to stand trial.

¶ 5. On December 7, 2000, Allen pled guilty to manslaughter. Based upon the report from Whitfield, the circuit court found that Allen was competent to enter a guilty plea. Allen was sentenced to serve twenty years in the custody of the’MDOC and ordered to pay a fine of $10,000. Further, the circuit court ordered Allen to receive psychological counseling and treatment while in the custody of the MDOC.

¶ 6. Allen filed a motion for post-conviction relief on January 9, 2007, seven years after entering his guilty plea. In his motion for post-conviction relief, Allen argued that: (1) his motion was not time-barred because his mental incompetence tolled the statute of limitations; (2) the circuit court erred by finding that Allen was competent to enter a guilty plea; and (3) Allen received ineffective assistance of counsel. The circuit court dismissed Allen’s motion, finding that it was time-barred and did not fall within any of the statutory exceptions to the three-year statute of limitations. Aggrieved, Allen filed this appeal.

ANALYSIS

¶ 7. This Court will not disturb a lower court’s dismissal of a motion for post-conviction relief unless it is clearly erroneous. Williams v. State, 872 So.2d 711, 712(¶ 2) (Miss.Ct.App.2004). However, when questions of law are raised the standard of review is de novo. Id.

Whether Allen’s lack of mental competence tolled the statute of limitations for filing a motion for post-conviction relief.

¶ 8. The threshold issue in this case is whether Allen’s motion for post-conviction relief is time-barred. In regard to a guilty plea, Mississippi Code Annotated section 99-39-5(2) (Rev.2007) provides that a motion for post-conviction relief shall be made within three years from the entry of the judgment of conviction. There are three exceptions to the three-year statute of limitations:

[1.] [Tjhere 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^]
[2.] [The inmate] has evidence, not reasonably discoverable at the time of trial, which ... would have caused a different result in the conviction or sentence[; or]
[3.] [The inmate’s] sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

Id.

¶ 9. The circuit court entered Allen’s judgment of conviction on December 7, 2000. Allen filed his motion for post-conviction relief on January 9, 2007, well in excess of three years after his conviction was entered. Since Allen filed his motion for post-conviction relief after the expiration of the three-year statute of limitations, Allen’s motion is time-barred unless he can prove that his motion falls within a statutory exception. We find that Allen fails to come within one of the statutory exceptions. Thus, the circuit court properly dismissed Allen’s claim as time-barred.

¶ 10. In an effort to come within a statutory exception, Allen argues that his motion for post-conviction relief was not time-barred because his mental incompetence tolled the statute of limitations. Allen also argues that a strict application of the three-year statute of limitations implicates fundamental constitutional rights. Thus, his claim should survive the time bar. The supreme court addressed this precise issue in House v. State, 754 So.2d 1147, 1150 (Miss.1999).

¶ 11. In House, the defendant pled guilty to the murders of his wife and her lover. Id. at 1149. The circuit court deferred sentencing and ordered House to undergo psychiatric treatment at a convalescence facility. Id. House violated the conditions placed upon the deferred sentencing order, and on June 1, 1994, the circuit court sentenced House to serve two consecutive life sentences. Id. House filed a motion for post-conviction relief on December 29, 1997, and the circuit court dismissed the motion as time-barred. Id. at 1150. House appealed the dismissal and argued that his motion was not time-barred due to his mental incompetence. Id.

¶ 12. The supreme court noted that there was no authority that tolled the statute of limitations for the Uniform Post-Conviction Collateral Relief Act based on mental incompetence. Id. Conversely, the supreme court found that there was authority opposing House’s claim, stating:

The fact that a barred claim is a just one or has the sanction of a moral obligation does not exempt it from the limitation period. These statutes of repose apply with full force to all claims and courts cannot refuse to give the statute effect merely because it seems to operate harshly in a given case. The establishment of these time boundaries is a legislative prerogative. That body has the right to fix reasonable periods within which an action shall be brought and, within its sound discretion, determine the limitation period. The [Legislature likewise has the right and power to exclude exceptions in the case of persons non compos mentis. We are not aware of any authority which holds that a post-conviction claim of incompetency not be subject to reasonable time constraints.

Id. at 1150-51 (citing Cole v. State, 608 So.2d 1313, 1317-18 (Miss.1992)). Thus, the supreme court held that House’s motion for post-conviction relief was time-barred because his alleged mental incompetence did not fall within the enumerated statutory exceptions to toll the statute of limitations. Id. at 1151.

¶ 13. We find that the circuit court did not err in dismissing Allen’s motion for post-conviction relief as time-barred. There are only three enumerated exceptions to the time bar. Allen did not present evidence of any of the exceptions, and his claim of mental incompetence does not fall within any of the enumerated exceptions. As the supreme court held in House, there is no authority tolling the statute of limitations of the Uniform Post-Conviction Collateral Relief Act based on mental incompetence. Allen’s history of suffering from mental illness is unfortunate. However, the fact remains that there is no exception to the statute of limitations for persons lacking mental competence. Thus, Allen’s claim lacks merit. Since this issue is dispositive, we do not address Allen’s remaining assignments of error.

CONCLUSION

¶ 14. We find that Allen filed his motion for post-conviction relief more than six years after his conviction, clearly outside the three-year statute of limitations. We also find that Allen’s alleged mental incompetence does not toll the statute of limitations. Thus, Allen’s motion for post-conviction relief is time-barred. Therefore, we affirm the circuit court’s dismissal of Allen’s motion for post-conviction relief.

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

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.