author: IRVING, P.J., ROBERTS, J.,

text:
    Raymond DRABICKI a/k/a Raymond Robert Drabicki a/k/a Raymond R. Drabicki, Appellant v. CITY OF RIDGELAND, Mississippi, Appellee.
    No. 2012-KM-00529-COA.
    Court of Appeals of Mississippi.
    June 25, 2013.
    Rehearing Denied Jan. 14, 2014.

      Kevin Dale Camp, Jackson, attorney for appellant.
    Boty McDonald, Jackson, attorney for appellee.
   IRVING, P.J.,

for the Court:

¶ 1. In July 2009, in Ridgeland Municipal Court, Raymond Drabicki entered a plea of no contest to driving under the influence pursuant to Mississippi Code Annotated section 63-ll-30(1)(c) (Rev.2004) and reckless driving pursuant to Mississippi Code Annotated section 63-3-1201 (Rev.2004). The municipal court found Drabicki guilty of both offenses, and he appealed his conviction to the County Court of Madison County, which, after a trial de novo, also found him guilty of both offenses. Dra-bicki filed a motion for a judgment notwithstanding the verdict, or, in the alternative, a new trial, which the county court denied. He appealed to the Madison County Circuit Court, which affirmed his conviction. Feeling aggrieved, Drabicki now appeals and argues that the Intoxilyzer results should not have been admitted into evidence, that the circuit court erred in considering untruthful testimony from the arresting officer, and that the circuit court erroneously denied his motion to strike the appellee’s brief.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On March 28, 2009, Officer Daniel Soto, with the Ridgeland Police Department, observed Drabicki traveling at a high rate of speed on Lake Harbor Drive in Ridgeland, Mississippi. Officer Soto was stationary in the parking lot of the Shell gas station at the corner of Lake Harbor and Old Canton Road. Officer Soto indicated that he noticed that Drabicki’s front tires were spinning as Drabicki’s ve-hide came through the Lake Harbor and Old Canton intersection heading west. He immediately began- to pursue Drabicki and reached a speed of eighty-seven miles per hour in an effort to stop him. Officer Soto also noted that during the pursuit, Dra-bicki hit a puddle of water, lost control of the vehicle, and nearly hit another vehicle.

¶ 4. Once Officer Soto stopped Drabicki, he opened Drabicki’s car door and ordered him to exit the vehicle. Officer Soto testified that as soon as he opened the car door, he smelled alcohol. He asked Dra-bicki how much he had to drink, and Dra-bicki responded by stating that he had two drinks at Buffalo Wild Wings. Officer Soto asked Drabicki to submit to a portable breath test, to which Drabicki complied. The results registered positive for alcohol.

¶ 5. Officer Soto asked Drabicki to perform several field sobriety tests. Drabicki complied, and Officer Soto first administered the horizontal-gaze-nystagmus test, where he observed all six of the recognized clues indicating intoxication. Next, Officer Soto administered the walk-and-turn test and noted that four out of eight clues indicated intoxication. Officer Soto stated that Drabicki could not maintain his balance during the instructions, that Dra-bick started the test before instructions were completed, that he missed the heel-to-toe movement on his steps, and that he also made improper turns. On the one-leg-stand test, Officer Soto noted that Drabicki swayed and used his arms for balance, two out of four possible clues indicating intoxication. Officer Soto placed Drabicki under arrest and transported him to the Ridgeland Police Department. Because the Intoxilyzer machine there was not working, he took Drabicki to the Madison Police Department to administer the test. Drabicki consented, and the results of the Intoxilyzer registered a .16 blood-alcohol content.

¶ 6. Additional facts, as necessary, will be related in our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

I. Admission of the Intoxilyzer Results

¶ 7. Decisions regarding the admissibility of evidence will be reversed only if the trial court has abused its discretion. Palmer v. City of Oxford, 860 So.2d 1203, 1207 (¶ 10) (Miss.2008). “The discretion of the trial court must be exercised within the boundaries of the Mississippi Rules of Evidence.” Id. at 1207-08 (¶ 10). Drabicki argues that the county court erred in admitting the Intoxilyzer results because doing so violated his right to confrontation under the Sixth Amendment.

¶ 8. The Mississippi Supreme Court has specifically stated that the admission of the certificates indicating the results of the Intoxilyzer is not a violation of the right to confrontation in the absence of the calibrating officer’s testimony. See Harkins v. State, 735 So.2d 317, 319 (¶ 5) (Miss.1999). In fact, one of the only times that the State must “present testimony and allow cross-examination of the calibrating officer” is when “there is a genuine issue as to the authenticity of the certification[.]” McIlwain v. State, 700 So.2d 586, 591 (¶ 22) (Miss.1997).

¶ 9. Drabicki cites Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), for the proposition that the Confrontation Clause requires the in-person testimony of the calibrating officer. We disagree. While Melendez-Diaz does hold that the Sixth Amendment guarantees to a defendant the right to confront at trial the analyst who has done the drug analysis of any contraband alleged to have been sold by the defendant, id. at 311, 129 S.Ct. 2527, our supreme court in Matthies v. State, 85 So.3d 838, 843-44 (¶ 19) (Miss.2012), stated that even in the wake of Melendez-Diaz, “records pertaining to [I]ntoxilyzer inspection, maintenance, or calibration are indeed nontestimonial in nature, and thus, their admission into evidence is not viola-tive of the Confrontation Clause of the Sixth Amendment.” The analysts in Melendez-Diaz would have testified to the actual chemical content of the substance, making the certificates of such analysis testimonial. Id. at 842 (¶ 16). However, in Matthies, the calibration officer would have only testified to the accuracy of the testing device, and as a result, did not have to appear in court, as in the present case. See id. at 844 (¶¶ 19-20).

¶ 10. Next, Drabicki argues that the court erred in finding that the calibration certificate was genuine and authentic as required under Rule 902 of the Mississippi Rules of Evidence because the signature of the calibrating officer was stamped and not literally signed. Drabicki’s assertion is incorrect. A calibration certificate bearing the seal of the Mississippi Crime Laboratory is and the signature of the calibrating officer attesting to the truth of the certificate’s contents is self-authenticating. Pulliam v. State, 856 So.2d 461, 464-65 (¶ 13) (Miss.Ct.App.2003). The operator of the Intoxilizer, Robert Bickley, signed the certificate in accordance with Rule 902. Immediately preceding Bick-ley’s signature is a statement reading, in pertinent part, that “[t]he above instrument, used for breath analysis to determine alcohol content, was tested on below date and found to be in working condition. Calibration of the instrument certified to meet acceptable standards of accuracy.”

¶ 11. The stamped signature that Dra-bicki is referring to is that of Maury Phillips, the section chief of the Implied Consent Section of the Mississippi Crime Lab. Phillips’s stamped signature includes a statement that only attests that the document is a true and correct copy of the original document that is on file in his office. Phillips’s signature does not attest to the accuracy of the instrument or truthfulness of the contents of the certificate. Accordingly, this issue is without merit.

¶ 12. The dissent insists that because the document was actually á copy of the original certificate, it should have been offered under Mississippi Rule of Evidence 902(4) and not Mississippi Rule of Evidence 902(1). The dissent further argues that because there is no evidence that Wendy Hathcock — who affixed Phillips’s stamped signature — was authorized to make a Rule 902(4) certification, then the certificate is inadmissible under Rule 902(4). Rule 902(1) reads as follows:

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: ... A document bearing a seal purporting to be that of the United States, or of any State ... or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

The certificate at issue here meets the requirements of Rule 902(1) because it contains both the Mississippi state seal and Bickley’s attesting signature. It is true, as the dissent points out, that Dra-bicki objected at trial to the admissibility of the certificate. However, he did not object on the basis that the copy of the certificate was not the best evidence under Mississippi Rule of Evidence 1002 and that admitting, the certificate under 902(1) was improper. Drabicki’s only objection was that Phillips’s stamped signature did not properly attest to the document because it was not an actual signature. Therefore, Drabicki is procedurally barred from arguing on appeal that Rule 902(4) was the proper rule for admission of the certificate, and this Court cannot now raise the issue for him.

¶ 13. Procedural bar notwithstanding, the argument that the copy of the certificate was inadmissible under Rule 902(4) is without merit. Under Rule 902(4), extrinsic evidence proving authenticity is not required when the document in issue is

[a] copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority.

Phillips’s signature certified that the certificate was a correct copy, as required by the rule. There is no prohibition under this rule against the custodian’s signature being stamped on the certified document. There was also no argument in the court below raising and preserving the issue of whether Hathcock was authorized to affix the stamped signature on the certificate. Therefore, this issue is also procedurally barred, and this Court cannot raise the issue for Drabicki.

II. Officer Soto’s Testimony

¶ 14. Drabicki contends that his conviction should be overturned because Officer Soto gave false testimony at trial. More specifically, Drabicki contends that Officer Soto lied about the weather conditions on the night of Drabicki’s arrest, Drabicki’s near collision with another vehicle during the pursuit, and the identity of the officer who asked Drabicki whether he had had anything to drink. We have perused the record, including the videotape of the traffic stop, and we disagree with Drabicki’s characterization of Officer Soto’s testimony. There is nothing to suggest that he gave false testimony with respect to any of these matters. Accordingly, this issue is without merit.

III. Motion to Strike Appellee’s Brief

¶ 15. Drabicki argues that because the appellee’s brief was filed well outside of the time limit of Rule 31(b) of the Mississippi Rules of Appellate Procedure, the brief should have been stricken from the record at the circuit court level, and his conviction should have been reversed. Rule 31(d) of the Mississippi Rules of Appellate Procedure states that “[i]f an ap-pellee fails to file the appellee’s brief as required, such brief, if later filed, may be stricken from the record on motion of the appellant or on the motion of the appropriate appellate court.” The rule places the decision to strike the appellee’s brief within the court’s discretion. The rule does not provide that the conviction of the appellant should be reversed.

¶ 16. Our supreme court has held that an appellate court has two options when the appellee has not filed a brief. The failure can either be held as a confession of error and the conviction can be reversed when the record is complicated or large in volume, or the court may disregard the appellee’s failure to file a brief and affirm the conviction when there is a “sound and unmistakable basis ... upon which the judgment may be safely affirmed.” Miller v. Pannell, 815 So.2d 1117, 1119 (¶7) (Miss.2002). Here, the record is not complicated or large in volume, and the basis of the conviction is unmistakable.

¶ 17. The dissent takes issue with our citation to a civil case, Parnell, for guidance as to what an appellate court should do when the appellee has not filed a brief and suggests that the better standard is that contained in Chatman v. State, 761 So.2d 851, 854 (¶ 9) (Miss.2000). Suffice it to say that Chatman cites to and quotes from Muhammad v. Muhammad, 622 So.2d 1239, 1242 (Miss.1993), a civil case, for the standard it enunciates. Id. at 1242. In our view, the standards are essentially the same, for if there is no sound and unmistakable basis upon which the judgment may be safely affirmed, the court cannot say with confidence that the case should be affirmed.

¶ 18. The dissent also insists that a November 10, 2011 order effectively reversed Drabicki’s convictions and that a judgment should have been rendered in his favor. Respectfully, we disagree. The order reads, in part, “if appellee fails to file a brief within fourteen (14) days after notification of such deficieney[,] this cause shall be dismissed and any conviction of appellant that is the subject of the appeal shall be reversed.” The dissent’s specific argument is that since the City of Ridge-land failed to file a brief within fourteen days after the November 10 order, Dra-bicki’s conviction stood reversed because the circuit court failed to suspend the requirements of Rule 2(a)(2) of the Mississippi Rules of Appellate Procedure, as it could have done pursuant to the provisions of Rule 2(c). First, it should be noted that Rule 2 addresses the dismissal of an appeal and is aimed at the appellant’s dereliction in prosecuting his appeal. The City of Ridgeland did not initiate the appeal. Drabicki did. While we admit that Rule 2(a)(2) permits an appeal to be dismissed “when a party fails to comply substantially with [the] rules,” it is obvious that the rule is aimed at punishing the appellant, not the appellee. Otherwise, there would be no need for our jurisprudence delineating the process to be followed when an appel-lee fails to comply with the requirement to file a brief. Additionally, applying Rule 2(a)(2) as the dissent does would have unjust consequences. For example, an ap-pellee could defeat the right of an appellant to appellate review by simply not complying with the rules. Clearly, that is not the intent of the rule even though that would be the required result, since an ap-pellee is considered a party under Rule 2(a)(2).

¶ 19. We also point out that there is another, and more fundamental, problem with reaching the result that the dissent would have us reach. To reverse and render Drabicki’s conviction because the City failed to file a brief would require this Court to overlook clear precedent by our supreme court. The circuit court sat as an appellate court in the consideration of Dra-bicki’s appeal. Therefore, it was bound by supreme court precedent, as are we, regarding the proper procedure for resolving the issues raised by an appellant when the appellee has not filed a brief. As stated, our supreme court, as well as this Court, has expressly provided what actions an appellate court should take when an appel-lee fails to submit a brief. Dismissal of the appeal is not one of them, nor is reversal of the conviction. See Pannell, 815 So.2d at 1119 (¶ 7); Archie v. City of Canton, 92 So.3d 1279, 1282 (¶10) (Miss.Ct.App.2012). The dissent offers no authority in support of its position that we are required to reverse and render Drabicki’s conviction because the City of Ridgeland failed to file a brief. Nor has the dissent offered any authority for its position that we are bound by an erroneous order entered by the circuit court, allegedly reversing and rendering Drabicki’s DUI conviction for a reason not sanctioned in our jurisprudence.

¶ 20. Finding no merit to any of the issues raised, we affirm Drabicki’s conviction and sentence.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF FIRST-OFFENSE DRIVING UNDER THE INFLUENCE AND SENTENCE OF FORTY-EIGHT HOURS IN THE CUSTODY OF THE SHERIFF OF MADISON COUNTY, AND FINE OF $750, WITH THE SENTENCE SUSPENDED FOR TWO YEARS UNLESS SOONER INVOKED; AND CONVICTION OF RECKLESS DRIVING, AND FINE OF $100 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

ROBERTS, J.,

dissenting:

¶ 22. I must respectfully dissent from the majority’s conclusion that the case before us is error free and can be safely affirmed with confidence. The majority finds that the Circuit Court of Madison County did not err when it affirmed Dra-bicki’s convictions after it allowed the City of Ridgeland to file an untimely appellee’s brief, and after it had already effectively reversed Drabicki’s convictions. Furthermore, the majority finds the County Court of Madison County did not err when it admitted, as self-authenticating, two calibration certificates of the Intoxilyzer 8000 used to test Drabicki. However, I conclude that the circuit court failed to follow the Mississippi Rules of Appellate Procedure when it allowed the City to file its brief well after the circuit court had effectively reversed Drabicki’s convictions in a sua sponte order. In addition, I have grave doubts about the admissibility of the Intoxilyzer 8000 calibration certificates under Rule 902 of the Mississippi Rules of Evidence. Given these issues, I cannot say with confidence that we can safely affirm. Consequently, I would reverse and render Drabicki’s convictions for DUI first offense and reckless driving.

¶ 28. After a non-jury bench trial at the county court level, Drabicki appealed both his convictions to the circuit court on February 8, 2010. On May 18, 2010, the circuit court entered an agreed-upon order extending the time in which Drabicki had to file a brief. On July 19, 2010, Drabicki filed his brief with the circuit court. The circuit court entered four separate agreed orders extending the time in which the City had to file an appellee’s brief, the final deadline for submission being April 21, 2011. The record is then silent for six months until October 6, 2011, when the circuit court sua sponte entered an order requiring the City to file an appellate brief by November 8, 2011. No brief was filed by the City. On November 10, 2011, the circuit court again sua sponte entered an order regarding notice of the City’s deficiency in failing to file a brief. The circuit court ordered the City to correct its deficiency within fourteen days. If the deficiency was not corrected within that time period, the circuit judge ordered that “this came shall be dismissed and any conviction shall be reversed.” (Emphasis added). In addition, the November 10, 2011 order stated that the circuit court would not consider further extensions of time to file a brief. The City filed no brief within this fourteen-day period. ■

¶ 24. The circuit court entered yet another sua sponte order on December 29, 2011, finding the City had failed to file its brief after receipt of the fourteen-day notice. Instead of reversing Drabicki’s convictions as required by its prior order, the circuit court ordered the City to show cause for its failure to comply with the circuit court’s November 10, 2011 order or face potential sanctions. Once again the record is silent until January 31, 2012, when the City finally filed its brief with the circuit court. Drabicki filed a motion on February 10, 2012, to strike the City’s brief as untimely filed, but the record gives no indication that the circuit court ever ruled on Drabicki’s motion. The circuit court entered a judgment on February 24, 2012, affirming the convictions and remanding the case back to the county court for execution of the judgment of that court.

¶ 25. Drabicki appealed to the Mississippi Supreme Court on March 29, 2012. Boty McDonald filed his entry of appearance as counsel for the City on May 23, 2012. Drabicki filed his brief on August 9, 2012. The City’s brief was due thirty days later. The City failed to file a brief. This Court’s clerk notified McDonald of the deficiency and gave him fourteen days’ notice to correct it. McDonald ignored the clerk’s warning. To this date, McDonald has once again failed to file a brief on behalf of the City. Consequently, it is necessary to discuss the standard of review where no appellee’s brief exists.

¶ 26. The majority cites Miller v. Pannell, 815 So.2d 1117 (Miss.2002), as the standard on how this Court should review the City’s failure to file an appellate brief. However, Miller is a civil chancery court matter. Miller states:

[The][a]ppellees ... did not file a brief. We have two options in this situation. The first alternative is to take the appel-lees’ failure to file a brief as confession of error and reverse. This should be done when the record is complicated or of large volume and the case has been thoroughly briefed by the appellant with apt and applicable citation of authority so that the brief makes out an apparent case of error. The second alternative is to disregard the appellees’ error and affirm. This alternative should be used when the record can be conveniently examined and such examination reveals a sound and unmistakable basis or ground upon which the judgment may be safely affirmed.

Miller, 815 So.2d at 1119 (¶ 7) (citations omitted). I believe the more analogous and appropriate standard comes from Chatman v. State, 761 So.2d 851 (Miss.2000). In Chatman, the supreme court addressed circumstances in which the government failed to file a brief incident to a criminal appeal. According to the supreme court:

The State failed to file a timely brief in this appeal. An appellee’s failure to file a brief on appeal is tantamount to confession of the errors alleged by the appellant. However, automatic reversal is not required if this Court can say with confidence that the case should be affirmed.

Chatman, 761 So.2d at 854 (¶9). While the standards appear similar, I believe that this standard of review is the more appropriate and applicable one to the case before us, as it addresses the rare and peculiar instance where the government fails to file an appellate brief in a criminal matter.

¶ 27. Upon applying the Chatman standard to the case before us, I conclude that this case merits reversal as a confession of error due to the numerous issues presented to which the City failed to respond, and the fact that I cannot say with confidence that the matter can be safely affirmed.

¶ 28. The first issue is the circuit court’s failure to reverse and render Dra-bicki’s convictions, pursuant to the circuit court’s own order, when the City failed to comply with the Mississippi Rules of Appellate Procedure. Under Rule 12.08(D) of the Uniform Rules of Circuit and County Court Practice, the time in which to file an appellate brief in an appeal from county court to circuit court is governed by Rule 31 of the Mississippi Rules of Appellate Procedure. Since the City failed to comply with the circuit court’s orders regarding the submission of a responsive brief under Rule 31, the circuit court issued the November 10, 2011 sua sponte order invoking Rules 2 and 31 of the Mississippi Rules of Appellate Procedure.

¶29. The November 10, 2011 order states, in part:

[T]here has been an obvious failure to defend against the appeal and a failure to comply substantially with the Mississippi Rules of Appellate Procedure, either of which warrants] this cause being dismissed and any conviction of the appellant that is the subject of this appeal being reversed.... [I]f [the City] fails to file a brief within fourteen (14) days after notification of such deficiency[,] this cause shall be dismissed and any conviction of the appellant that is the subject of the appeal shall be reversed.

(Emphasis added). The record shows the City’s counsel timely received the circuit court’s fourteen-day deficiency notice, and the City did nothing. It was only after the circuit court’s threat of sanctions from another sua sponte order that the City filed its brief on January 31, 2012. That clearly fell outside the fourteen-day deadline required to correct a deficiency under Rule 2(a)(2), which the circuit court had issued to the City.

¶ 30. On November 24, 2011, fourteen days after the circuit court’s November 10, 2011 order, Drabicki’s convictions effectively stood reversed, and a judgment should have been rendered in his favor. It was not. After issuance of the notice of deficiency to the City and its receipt of the notice, the circuit court allowed the City to submit a brief without stating whether the circuit court intended to suspend the requirements of Rule 2(a)(2) under Rule 2(c). The circuit court never indicated that it intended to suspend Rule 2(a)(2). Rule 2(a)(2) states: “The attorney for the party in default has the burden to correct promptly any deficiency or see that the default is corrected by the appropriate official. Motions for additional time in which to file briefs will not be entertained after the notice of the deficiency has issued.” For reasons unknown, the circuit court merely appears to have changed its mind without finding any “interest of expediting decision[ ] or ... other good cause” required by Rule 2(c) to suspend the rules.

¶ 31. Given the absence of any justification for these two errors, I believe Dra-bicki’s convictions were reversed on November 24, 2011, by the circuit court’s own order. Reinstating Drabicki’s convictions after they were effectively reversed raises serious constitutional double-jeopardy concerns.

¶ 32. In addition to the circuit court’s failure to reverse and render this matter, I have other concerns with respect to the admissibility of the two Intoxilyzer 8000 calibration certificates. Since Drabicki was charged under Mississippi Code Annotated section 63-11-30(c) (Rev.2004) for driving under the influence, the accuracy of the Intoxilyzer’s results is crucial to the prosecution’s case. Without proper predicate evidence of the Intoxilyzer’s accuracy, the blood-chemistry basis for Drabicki’s DUI conviction evaporates. While not deciding the admissibility of the certificates, I nevertheless feel a discussion of the relevant rules of evidence and their application in this case is necessary in determining if Drabicki’s convictions can “safely” be affirmed.

¶ 33. During the county court non-jury trial, the following exchange occurred while the City was attempting to introduce the calibration certificates for the Intoxi-lyzer 8000:

The Court: The question then becomes, can this document come in under any of the exceptions to the hearsay rule of 803, and if it can, does it have to be authenticated by an independent witness under, what 901; or may it come in — if there [is] some basis for self-authentication under 902, seems to me.
Mr. McDonald: Well, Your Honor, under the shotgun approach, I would offer both paragraph 1, a domestic document under seal, and paragraph 11, certified records of regularly conducted activities; and, Judge, I would also argue ... not only hearsay Rule 803, paragraph 6, records of regularly conducted activity, but also paragraph 8, public records and reports.

(Emphasis added). It is clear from this exchange that the City did not have in mind any singular basis for the admissibility of the calibration certificates. In fact, the record demonstrates the City offered paragraphs one, two, four, and eleven under Rule 902 of the Mississippi Rules of Evidence as a basis for admissibility. Eventually, the following exchange occurred:

The Court: ... So we’re probably back to 902(1) as a basis for self-authentication, would we not be?
Mr. McDonald: Yes, sir.

This discussion continues on, and it appears from the record that Rule 902(1) is the eventual basis under which the calibration certificates are admitted into evidence. The City had no sponsoring witness to identify or authenticate the certificates. They were admitted as general exhibits, as self-authenticating documents. The exhibits purported to demonstrate that the Intoxilyzer 8000 machine at the Madison Police Department had been tested and calibrated both before and after Drabicki was tested and that the machine was within acceptable standards of accuracy.

¶ 34. Rule 902(1) permits self-authentication of domestic public documents under seal when there is:

A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or of the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

This rule would allow the original Intoxi-lyzer 8000 calibration certificates to be admitted as self-authenticating, as they are prepared under seal by the Mississippi Crime Laboratory, and the calibration technician personally signed the certificates attesting to the truth of the certificates’ contents. However, this case does not involve the original calibration certificates. Rather, the City provides certified copies of the calibration certificates, which, it appears, should have been offered under Rule 902(4). In fact, the record demonstrates the City offered what it knew were copies of the original calibration certificates:

The Court: All right. Under what basis, then, is this — are these documents being offered?
Mr. McDonald: Well, Your Honor, I’m offering it as a certified copy of a court record.
The Court: Well, a certified copy of a court record — are you talking about from the lower court?
Mr. McDonald: No, sir — well, from a — a certified copy of the records maintained by the Madison Police Department.

Where certified copies of public records are being offered as evidence, Rule 902(4) provides that:

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority.

(Emphasis added). Applying this rule to the case before us, I detect several eviden-tiary nuances with respect to the copies of the calibration certificates that place their admissibility as self-authenticating public documents in doubt. The original calibration certificates are, according to Rule 902(1), self-authenticating documents, which are prepared under seal by the Mississippi Crime Laboratory and signed by the calibration technician attesting to the truth of the certificates’ contents. Therefore, if the City presented the originals to the county court, there would be no issue here. However, at some point the Mississippi Crime Laboratory copied these original calibration certificates, affixed a stamped certification that appears to comply with Rule 902(4), and eventually these copies, or what appear to me to be copies of copies, were offered into evidence by the City. Drabicki timely and appropriately objected to their admissibility and preserved his issue for appeal. My concern does not focus on the number of times the original documents were copied or whether Rule 902(4) allows copies to be made ad infinitum. Such a discussion is not warranted here. Rather, my concern centers on whether, under Rule 902(4), Wendy Hathcock was authorized to issue a certification on behalf of Maury Phillips.

¶ 35. Phillips, the section chief of the Implied Consent Section of the Mississippi Crime Laboratory, is the official custodian of the original Intoxilyzer 8000 calibration certificates, presumably for every machine in Mississippi. When the Implied Consent Section issues a certified copy of a calibration certificate, a large certification stamp is affixed to the copy that attests to the truth and correctness of the copy and contains a stamped replication of Phillips’s signature. The stamp also contains a blank “by” line, where Wendy Hathcock has her hand-written signature that appears to be on behalf of, or as an agent for, Phillips. There is no indication on the attestation of Hathcock’s representative capacity. She could be the deputy section chief or a janitor. We simply cannot tell from the face of the document. Rule 902(4) requires that the certification indicate “the other person is authorized to make the certification.” However, there is no indication that Hathcock is authorized to make a Rule 902(4) certification for a certified copy of an original. It appears to me that Rule 902(4) requires some indication of a person’s official capacity or authorization to issue a certification, and since no such indication is apparent on the face of the document, I have serious concerns regarding the admissibility of these exhibits. In addition, Drabicki raises numerous questions as to whether the signature is authentic or genuine such that the copies of the calibration certificates can be self-authenticating. Since the City failed to file an a brief with this Court, Drabicki’s assertions are unanswered. Drabicki’s brief states an apparent case of error in that regard.

¶ 36. The majority cites Pulliam v. State, 856 So.2d 461, 464-65 (¶ 13) (Miss.Ct.App.2003), which found that calibration certificates were self-authenticating where they bore the seal of the Mississippi Crime Laboratory and had a signature attesting to the truth of the documents’ contents. In the current case, the majority’s conclusion that Intoxilyzer calibration certificates are self-authenticating solely based on the signature of the calibration technician does not, I believe, adequately address the specifics of the rules of evidence or the arguments raised in Drabicki’s brief. As I interpret Rule 902(1) and Pulliam, an original calibration certificate would be self-authenticating solely based on the calibration technician’s signature. However, we do not have an original document in the case before us.

¶ 37. The majority may point to the fact that in Pulliam, “[u]pon reopening its case, the State offered duplicates of the certificates of calibration immediately before and after Pulliam’s test. Both were admitted into evidence.” Pulliam, 856 So.2d at 464 (¶ 10). But the Pulliam Court did not mention whether those “duplicates” were multiples of original documents or if they were copies of a single original. In fact, Pulliam has no detailed analysis of the documents the State entered into evidence. If the calibration certificates in Pulliam were multiples of original documents, then they clearly satisfy Rule 902(1). If, however, the calibration certificates were copies of a single original, then the Pulliam Court, in my considered opinion, incorrectly applied Rule 902(1). As I read and interpret the Mississippi Rules of Evidence, Rule 902(1) provides self-authentication to original documents or to the certifications of original documents.

¶ 38. The commentary to Rule 902(1) states, in part: “A wide range of Mississippi public records fall into this category, including acknowledgments and certificates authenticating copies of public records.” (Emphasis added). Therefore, as I understand Rules 902(1) and 902(4) as applied to this case, the certification of a copy, by use of the Implied Consent Section stamp, could provide the self-authenticating basis for the copied calibration certificates, provided that the signatory, Hathcock, was authorized to sign and certify the copy. Once again, since there is no indication of Hathcock’s capacity or her authorization to sign and certify the copies of the Intoxilyzer calibration certificates, the requirements under 902(4) do not appear to be satisfied.

¶ 39. Another matter of concern warrants discussion. Once again, the present procedural posture of this case places this Court in a delicate position relative to the proper role of the judiciary. By affirming Drabicki’s convictions as valid when the City voluntarily chose not to defend their validity, we come perilously close to becoming an advocate for the prosecution. Drabicki’s two-day suspended jail sentence and two-year probationary period have now expired, and it appears that the only remaining issue is his payment of the $2,000 fine, court costs, and assessments. By failing to file a brief, the City may well have deliberately decided to abandon the prosecution of Drabicki. Other states, when confronted with such a conundrum, have determined that the government has abandoned its prosecution of the defendant or treated the government’s actions as grounds for a pro forma reversal. See 5 Am.Jur.2d Appellate Review § 538 (1995); see also State v. Files, 183 Conn. 586, 441 A.2d 27, 29-30 (1981) (motion to remand for new trial granted based on state’s lack of due diligence .in defending a criminal appeal); People v. Keeney, 96 Ill.App.2d 323, 238 N.E.2d 614, 615 (1968) (state’s failure to file an appellee’s brief places the court in an abhorrent role of both advocate and judge such that reversal may be warranted); People v. Spinelli, 83 Ill.App.2d 391, 227 N.E.2d 779, 779 (1967) (prosecuting government’s failure to file an appel-lee’s brief resulted in pro forma reversal); Com. v. Paasche, 391 Mass. 18, 459 N.E.2d 1223, 1224-25 (1984) (state’s failure to file an appellee’s brief in a criminal case could indicate a failure to prosecute). The City’s continual defaults in handling this appeal beg the question as to whether it desires to prosecute this case or has abandoned its prosecution. Such actions place this Court in an untenable judicial dilemma, where we may be affirming convictions that the City has abandoned or no longer desires to prosecute.

¶ 40. Due to the procedural and substantive issues within this case, I cannot say that Drabicki’s convictions can safely be affirmed with confidence under the Chatman standard. Furthermore, I believe this case was effectively reversed and rendered by the circuit court on November 24, 2011. As such, I would reverse and render all of Drabicki’s convictions. Because the majority affirms, I must respectfully dissent.

LEE, C.J., AND FAIR, J., JOIN THIS OPINION IN PART.

      . Boty McDonald is counsel for the City.

      . These copies of the Intoxilyzer 8000 calibration certificates are prosecution exhibits 2 and 3.

      . The Intoxilyzer 8000 machine at the Ridge-land Police Department was not functioning the night of March 28, so Ridgeland Police Officer Soto took Drabicki to the Madison Police Department to use its Intoxilyzer 8000.

      . Mississippi Code Annotated section 45-1-17 (Rev.2011) authorizes the creation and existence of the Mississippi Crime Laboratory by providing: “The commissioner shall have the authority to establish, staff, equip[,] and operate a crime detection and medical examiner laboratory, and to cooperate with the University Medical Center and other hospitals and laboratories in its operation.

      . The certification stamp itself, which certifies the copies of the calibration certificates in the record before us, appears to meet the Rule 902(4) requirement that it comply with paragraphs (1), (2), or (3) of Rule 902. In this instance, the certification is made under seal and would likely meet the paragraph (I) criteria. However, Rule 902(4) still requires, it appears to me, that the custodian or an authorized person issue the paragraph (1), (2), or (3) certification.

      . I take judicial notice of this Court’s own docket. It reflects there are three similar cases presently pending in this Court. In each one, the City of Ridgeland's attorney, McDonald, failed to timely file an appellee’s brief with the circuit court. In addition, in each of these appeals, McDonald again failed to file an appellee's brief with this Court. Those cases are Lobo v. City of Ridgeland, 2012-KM-00525-COA; Drabicki v. City of Ridgeland, 2012-KM-00528-COA; and Carlson v. City of Ridgeland, 2012-KM-01091-COA.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Donna DUNCAN and Husband, Dalton Duncan, Appellants v. FORREST GENERAL HOSPITAL, Appellee.
    No. 2012-CA-00375-COA.
    Court of Appeals of Mississippi.
    June 25, 2013.
    Rehearing Denied Oct. 29, 2013.
    Alfred L. Felder, McComb, V. Douglas Gunter, Jackson, attorneys for appellants.
    James K. Dukes, Walter William Dukes, Gulfport, attorneys for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. Donna and Dalton Duncan filed a complaint against Forrest General Hospital (FGH), alleging medical negligence. The Forrest County Circuit Court granted summary judgment in favor of FGH. As the Duncans failed to show that a genuine issue of material fact exists as to FGH’s negligence, we affirm the judgment.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On November 30, 2001, Ms. Duncan was undergoing a procedure at FGH to treat kidney stones. The procedure was performed on a “Hydrajust IV, Hydra Vision Urology System,” more commonly known as a fluoro table. During the procedure, the surgical physician, Dr. David Stout, determined that the table was malfunctioning and shut the table down. Dr. Stout ordered that Ms. Duncan be moved to another operating room to complete her surgery.

¶ 3. The Duncans filed a medical negligence complaint against FGH on April 29, 2003. Specifically, the complaint alleged that FGH was negligent for failing to “double sheet” the table, and this failure allowed water to enter the table and caused the table to malfunction. The Dun-cans asserted that as a proximate result of this failure, they incurred damages for pain and suffering, emotional and mental trauma, loss of wages, and disfigurement. Mr. Duncan also alleged loss of consortium.

¶ 4. On June 20, 2005, FGH filed a motion for summary judgment, which the court granted on January 11, 2012. The Duncans’ subsequent motion for reconsideration was denied, and they now appeal. Finding no genuine issue of material fact exists that FGH was negligent, we affirm the circuit court’s grant of summary judgment.

STANDARD OF REVIEW

¶ 5. A circuit court’s grant or denial of a motion for summary judgment is reviewed de novo. McCullar v. Boyd Tunica, Inc., 50 So.3d 1009, 1011 (¶ 9) (Miss.Ct.App.2010)(citing Lewallen v. Slawson, 822 So.2d 236, 237 (¶ 6) (Miss.2002)). “Summary judgment is proper ‘if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting M.R.C.P. 56(c)).

DISCUSSION

¶ 6. The Duncans’ sole issue on appeal is that the circuit court erred in granting FGH’s motion for summary judgment, finding that res ipsa loquitur did not apply to this case. “Res ipsa loquitur, meaning literally ‘the thing speaks for itself,’ is a circumstantial-evidence doctrine allowing the jury to draw an inference of the defendant’s negligence.” McCullar, 50 So.3d at 1014 (¶ 22) (citing Austin v. Baptist Mem’l Hosp.-N. Miss., 768 So.2d 929, 932 (¶ 10) (Miss.Ct.App.2000)). In order to invoke the doctrine, “the plaintiff must establish the thing that caused the injury.” Huynh v. Phillips, 95 So.3d 1259, 1262 (¶ 7) (Miss.2012) (quoting 65A C.J.S. Negligence § 867 (2012)). There are three elements that must be shown to establish a res ipsa loquitur claim. These elements are:

1) the instrumentality causing the damage was under the exclusive control of the defendant,
2) the occurrence was such that in the ordinary course of things it would not have happened if those in control of the instrumentality used proper care, and
3) the occurrence was not due to any voluntary act on the part of the plaintiff.

Id. (citing Coleman v. Rice, 706 So.2d 696, 698 (¶ 10) (Miss.1997)).

¶ 7. The operative report from Ms. Duncan’s surgery stated: “While attempting to find this stone, the fluoro operating table malfunctioned and had to be turned off to prevent electrocution or shock due to probably water getting in the table.... It was then decided to abort further efforts ... because of the malfunctioning table and inadequate C-arm visualization.” . The report further stated that this problem resulted in the procedure taking “an excessive amount of time,” but also noted that Ms. Duncan “tolerated this well.”

¶ 8. The complaint alleged that several months after her surgery, Ms. Duncan was “told by one of the nurses at FGH that someone had failed to double sheet the operating table and that caused the problem in her operating room.” However, the Duncans never identified the nurse who allegedly admitted liability on the part of FGH. They also admit that there was no evidence that the table had malfunctioned prior to this incident, or that whatever malfunction happened during the surgery “could not be replicated.”

¶ 9. After the aborted surgery, maintenance was notified of a potential problem with the table. Kenneth Carlisle, the FGH maintenance worker who performed troubleshooting on the table, found no problems. He testified as to how the table works:

Q. Do I understand correctly that the Hydrajust IV is a machine that is waterproof so that water supposedly cannot get into the machine?
A. Yes, sir.
Q. Why is it waterproof, Mr. Carlisle?
A. I don’t know if you would call it waterproof. I know water is not supposed to get into the machine.
The doctor stated that it’s due to probable water getting into the system. That’s — I deal with probabilities every day with science technology. The probability is not that water got into the system. It’s a possibility, yes, but it’s not probable. Probable is the system might have malfunctioned. I did not indicate that when I checked it out. So probability is false. I cannot agree with that, that water got into the system.

(Emphasis added). Carlisle concluded that the only way for water to get into the table was for someone to “malicious[ly]” insert the water via a tube into the x-ray cassette portion of the table. . The Dun-cans have made no claim to this effect.

¶ 10. FGH’s expert witness, Dr. Raju Thomas, testified in an affidavit that “[t]he fluoro tables do not require ‘double sheeting’ ... as alleged by plaintiffs” and that it is common for bodily fluids to get on the table, but that they do not “create electrical shock.” Dr. Thomas concluded that there was no breach of the standard of care as it related to the operation of the table.

While inferences of negligence may be drawn from circumstantial evidence, those.inferences must be the only ones which reasonably could be drawn from the evidence presented, and if the circumstantial evidence presented lends itself equally to several conflicting inferences, the trier of fact is not permitted to select the inference it prefers, since to do so would be the equivalent of engaging in pure speculation about the facts.

McCullar, 50 So.3d at 1014 (¶ 23) (quoting Miss. Valley Gas Co. v. Estate of Walker, 725 So.2d 139, 145 (¶ 21) (Miss.1998) (overruled on other grounds)).

¶ 11. The Duncans provided no expert testimony to support their claim that FGH deviated from the standard of care. The only evidence that the table “malfunctioned” during the surgery is contained in the notes from the operation and from Ms. Duncan’s testimony that her doctor and an unidentified -nurse told her that the table malfunctioned. As already noted, the maintenance technician, Carlisle, found no problem with the table after completing a system check post-surgery. As FGH notes in its brief:

Duncan provided no standard of care to be met by FGH, no admissible evidence of any breach of any standard of care, no evidence showing the alleged breach of any standard of care which caused her injury, and no evidence of any damages in this case. Duncan never even offered any evidence or explanation of what “double sheeting” or “double skirting” was, much less that it was ever practiced in connection with the use of fluoro tables.”
Duncan produced nothing in opposition to the opinions of Dr. Thomas. Instead Duncan essentially chose to rely upon the allegations of her pleadings and to direct the trial Court’s attention to the unsworn operative report of Dr. Stout, which is pure hearsay and incompetent in opposition to summary judgment.

¶ 12. Accordingly, we find that the Duncans have failed to prove that the alleged fluoro table malfunction would not have allegedly occurred but for negligence on the part of FGH, and we agree with the circuit court that the elements of res ipsa loquitur were not met. Without the application of that doctrine, there is no evidence of FGH’s negligence for a jury to consider, and summary judgment for FGH was appropriate.

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

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


author: FAIR, J.,

text:
    Ottis J. CUMMINGS, Jr. a/k/a Ottis Junior Cummings a/k/a Otis Cummings a/k/a Ottis J. Commings a/k/a Otis J. Cummings, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01006-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.
    Rehearing Denied Oct. 29, 2013.
    Certiorari Denied Jan. 16, 2014.

      Ottis J. Cummings Jr., appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. In 1979, Ottis Cummings pleaded guilty to burglary of a dwelling and aggravated assault in two separate causes and was convicted and sentenced. He completed both sentences. In 2009, Cummings was convicted of felony driving under the influence. See Cummings v. State, 29 So.3d 859, 861 (¶ 6) (Miss.Ct.App.2010). Based on his 1979 convictions, he was found to be a habitual offender and was sentenced to life without eligibility for parole or probation. Id.

¶2. Subsequently, on June 11, 2012, Cummings filed two separate motions for post-conviction collateral relief (PCR) challenging his convictions from 1979. Because he raised the same issues in both motions, the motions were consolidated by the trial court and thereafter summarily dismissed as time-barred on June 14, 2012.

¶ 3. Cummings now appeals and argues the following: (1) the court erred in dismissing his claims as time-barred; (2) he received an illegal sentence; (3) the court erred in denying his PCR motion when the indictment failed to end with the constitutional words “against the peace and dignity of the State of Mississippi”; (4) the court erred in sentencing him as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev.2007); and (5) his counsel was ineffective. We affirm the trial court’s dismissal, and address issues one, two, and three together, as they are related.

STANDARD OF REVIEW

¶ 4. The trial court may summarily dismiss a PCR motion without an eviden-tiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2012). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999).

¶ 5. When reviewing the denial of a PCR motion, an appellate court “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008). Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Young, 731 So.2d at 1122 (¶ 9).

DISCUSSION

1. Cummings’s Indictments

¶ 6. Cummings pled guilty in both 1979 cases, so pursuant to Mississippi Code Annotated section 99-39-5(2) (Supp.2012), he had three years from the entry of the judgments of conviction to file a PCR motion. That deadline has long since passed. Therefore, we must determine whether an exception to these procedural bars applies. See Bell v. State, 95 So.3d 760, 763 (¶ 10) (Miss.Ct.App.2012) (citation omitted).

¶ 7. Cummings does not claim that he meets a statutory exception to the time-bar provided in section 99-39-5. Instead, he argues that his fundamental constitutional rights were violated because the indictments were insufficient. “Errors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act].” Bell, 95 So.3d at 763 (¶ 12) (citation omitted). However, merely asserting “a constitutional right violation is not sufficient to overcome the time bar.” Stovall v. State, 873 So.2d 1056, 1058 (¶ 7) (Miss.Ct.App.2004). “There must at least appear to be some basis for the truth of the claim before the [procedural bar] will be waived.” Crosby v. State, 16 So.3d 74, 79 (¶ 10) (Miss.Ct.App.2009) (citation omitted). '

¶ 8. Cummings first argues that his indictment for aggravated assault omitted an element of the crime by charging him with committing “bodily injury” to the victim, rather than “serious bodily injury.” However, an indictment for the crime of aggravated assault with a deadly weapon does not require the State to prove serious bodily injury. Jackson v. State, 594 So.2d 20, 24 (Miss.1992). Therefore, Cummings’s argument is without merit.

¶ 9. Cummings additionally claims that both indictments were flawed because they did not conclude with the language “against the peace and dignity of the State of Mississippi” and were not signed by the foreman of the grand jury. “Claims alleging defective indictment are ... barred when a motion for post-conviction relief is not -filed within the three-year time limitation.” Barnes v. State, 949 So.2d 879, 881 (¶8) (Miss.Ct.App.2007) (citation omitted). Further, “[e]ven if the indictment had been defective, [a defendant] waivefs] all technical and non-jurisdictional defects contained in the indictment by pleading guilty.” Clark v. State, 54 So.3d 304, 308 (¶ 9) (Miss.Ct.App.2011). The record undoubtedly reveals that Cummings pleaded guilty to both charges. We find all Cummings’s claims regarding the sufficiency of his indictments to be without merit.

2. Cummings’s Habitual-Offender Status

¶ 10. Cummings also argues that his 1979 pleas wex-e involuntary because he was unaware that the felonies could later be used to charge him as a habitual offender. Further,, he argues that the court’s failure to inform him of the potential effects of his guilty pleas constitutes i’eversible error. Cummings pi-esents only mere assertions for this argument and cites no relevant legal authority.

¶ 11. “Failure to cite relevant authority obviates the appellate court’s obligation to review such issues.” Kleckner v. State, 109 So.3d 1072, 1080 (¶ 12) (Miss.Ct. App.2012) (citation omitted). This issue is procedurally barred.

3. Cummings’s Counsel

¶ 12. To succeed on an ineffective-assistance-of-counsel claim, the appellant must satisfy the two-pronged test laid out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468 (Miss.1984). “First, the defendant must show that counsel’s pexformance was deficient. ... Second, the defendant must show that the deficient peiformance prejudiced the defense.” Id. at 477 (quoting Strickland, 466 U.S. at 687, 104 S.Ct.2052).

¶ 13. Cummings only makes bare assertions that his statements were involuntary. He has not shown that his counsel’s performance was deficient, as required under Strickland. Furthermore, he has not shown that his counsel’s allegedly deficient performance “proximately resulted in his guilty plea, and [that] • but for counsel’s errors, [he] would not have entered the plea.” Cole v. State, 918 So.2d 890, 894 (¶ 10) (Miss.Ct.App.2006). This issue is also without merit.

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

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


author: LEE, C.J.,

text:
    Robert HOBGOOD, Appellant v. MISSISSIPPI POWER COMPANY, INC., Appellee.
    No. 2012-CP-00546-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.
    Rehearing Denied Nov. 5, 2013.
    Certiorari Denied Jan. 16, 2014.
    Robert Hobgood, appellant, pro se.
    Roderick Mark Alexander Jr., Hampton Wingfield Glover Jr., Ben Harry Stone, Gulfport, attorneys for appellee.

      Before LEE, C.J., FAIR and JAMES, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Mississippi Power Company (MPC) sought to acquire an easement across a piece of property owned partially by Robert Hobgood. MPC was granted a Certificate of Public Convenience and Necessity under Mississippi Code Annotated section 77-3-1 (Rev.2009) by the Mississippi Public Service Commission. The certificate authorized MPC to acquire the necessary land to construct an electric-generating plant, along with the necessary transmission facilities and pipelines in Kemper, Lauderdale, Clarke, and Jasper Counties, Mississippi.

¶ 2. MPC filed a complaint on August 18, 2011, in the Lauderdale County Special Court of Eminent Domain, seeking to acquire a seventy-five-foot-wide easement to construct a pipeline. The suit was filed against Robert Hobgood, Richard Hob-good, David Hobgood, and Stephen McRea, who each owned a one-fourth interest in the land in question. Prior to trial, MPC settled with all of the record title owners except Robert Hobgood.

¶ 3. On February 27, 2012, a trial was held to determine the amount of compensation Hobgood was owed for the easement. Immediately prior to trial, MPC moved in limine to exclude the testimony of Hobgood, including any testimony as to the fair market value of the property, the highest and best use of the property, and any damages to the remainder. In support, MPC argued that Hobgood had failed to comply with Mississippi Code Annotated section 11-27-7 (Rev.2004) and that Hob-good had admitted in discovery: he had not made an independent assessment of the comparable properties; he did not intend to call an expert witness; and he did not intend to call any other witnesses. The trial court granted MPC’s motion. While Hobgood represented himself at the trial level, as he does at the appellate level, the trial court noted that he was an attorney and had practiced law in the state of Texas.

¶ 4. After the trial, the jury awarded Hobgood $6,821.75 in damages. This appeal followed.

DISCUSSION

¶ 5. Hobgood raises seven issues on appeal: (1) “whether a condemnor can acquire a general easement”; (2) “whether a condemnor owes no duty to accommodate reasonable subservient use of right of way tract as a matter of law”; (3) “whether the issue of remainder damages to a landowner is wholly a question of law in [right-of-way] cases”; (4) “whether [Hob-good] was afforded due process before the cause was sent for trial”; (5) “whether the expert’s evidence of land values sufficed to support the judgment”; (6) “whether [Hobgood] could [counterclaim] against the condemnor for a tortious abuse of judicial process”; and (7) “whether the Plea to General Authority got to the point of the controversy.”

¶ 6. The only issue before the jury was the amount of damages Hobgood should receive for the easement. As this Court has stated numerous times, “[a] party cannot raise an issue for the first time on appeal.” Ellison v. Meek, 820 So.2d 730, 736 (¶ 22) (Miss.Ct.App.2002). Therefore, the only issue raised that is appropriate for appeal is whether the jury’s award was supported by sufficient evidence.

¶ 7. To challenge the sufficiency of the evidence, a party moves for a directed verdict or a judgment notwithstanding the verdict (JNOV). Milburn v. Vinson, 850 So.2d 1219, 1222 (¶6) (Miss.Ct.App.2002). Hobgood failed to move for a directed verdict or file a motion for a JNOV. By failing to raise the issue of the sufficiency of the evidence before the trial court, Hobgood did not preserve the issue for appeal. And as stated above, he cannot raise an issue for the first time on appeal. Ellison, 820 So.2d at 736 (¶ 22).

¶ 8. Even excluding this bar, sufficient evidence was presented to support the jury’s award of $6,821.75. When reviewing the denial of a motion for a JNOV or a motion for a directed verdict, we use the same standard. Wal-Mart Stores, Inc. v. Littleton, 822 So.2d 1056, 1058 (¶ 4) (Miss.Ct.App.2002). “This Court will reverse the denial of a directed verdict only where reasonable and fair-minded jurors could only find for the moving party.” Id. at (¶ 7).

¶ 9. MPC called George William Null, a property appraiser who was admitted as an expert without objection from Hobgood. Null testified that fair compensation for the easement on the property would be $27,287. He further testified that considering the one-fourth interest that Hobgood owned, his portion of the compensation would be $6,821.75. Hobgood offered no evidence that this amount was improper or that another amount should be considered. With the evidence offered, it cannot be said that fair-minded jurors could only find for Hobgood. Therefore, we affirm.

¶10. THE JUDGMENT OF THE LAUDERDALE COUNTY SPECIAL COURT OF EMINENT DOMAIN IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


author: IRVING, P.J.,

text:
    TELECOM TOWER GROUP, LLC, Appellant v. HONEYSUCKLE CREEK HOLDINGS, INC., Appellee.
    No. 2012-CA-00493-COA.
    Court of Appeals of Mississippi.
    July 23, 2013.
    Rehearing Denied Oct. 22, 2013.
    Certiorari Denied Jan. 16, 2014.

      Gary Dale Thrash, John Newton Satcher II, Jackson, attorneys for appellant.
    Richard C. Bradley III, Jackson, attorney for appellee.
    Before IRVING, P.J., BARNES and ISHEE, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Honeysuckle Creek Holdings Inc. (Honeysuckle) filed suit in the Hinds County Chancery Court against Cross Development LLC (Cross) alleging breach of contract arising out of the assignment of a leasehold interest in a telecommunications tower site. Telecom Tower Group LLC (Telecom) intervened, claiming that Cross had assigned its leasehold interest to Tele-com and that Telecom’s rights in the leasehold were superior to Honeysuckle’s rights. Following a two-day trial, the chancery court granted judgment in favor of Honeysuckle for $44,925. In addition, the court awarded Honeysuckle prejudgment interest, which totaled $5,494.80. To secure the payment of the judgment against Cross, the court granted Honeysuckle an equitable lien on the leasehold now owned by Telecom.

¶ 2. Feeling aggrieved, Telecom appeals and argues that the chancery court erred in giving Honeysuckle an equitable lien on Telecom’s leasehold interest and in awarding prejudgment interest on the amount of damages assessed against Cross.

¶ 3. Finding no error, we affirm.

FACTS

¶4. Honeysuckle acquires leasehold interests in real property sites that are suitable for the construction of cellular communications towers. Cross constructs cellular communications towers and then sells the towers to a third party. In February 2006, Honeysuckle obtained a leasehold interest in a plot of land owned by Judy Washington. In April 2006, Honeysuckle entered into a contract with Cross to assign the leasehold interest to Cross for $75,000 minus Cross’s expenses to prepare the site for construction. The contract between Cross and Honeysuckle listed the following conditions precedent to Honeysuckle’s receiving payment for the assignment of the leasehold interest: (1) a signed lease with Cingular Wireless (Cingular), in which Cingular agreed to install its communications equipment on the tower to be built by Cross on the Washington property; (2) an assignment of the ground lease from Honeysuckle to Cross; (3) a copy of the title policy on the property; (4) a copy of a survey of the property; (5) a copy of the NEPA/Phase 1 Environmental survey of the property; (6) a copy of the FAA filings on the property; and (7) a copy of the Geotech report on the property.

¶ 5. In November 2006, Honeysuckle assigned the ground lease to Cross, and Cross began making the ground-lease payments to Washington. Cross completed construction of the tower in January 2007. Although Honeysuckle obtained a signed lease with Cingular, Cingular later elected not to honor its contract with Honeysuckle. Therefore, the tower was unused for eleven months until Cross was able to obtain a separate lease with Cingular, in which Cin-gular agreed to install its communications equipment on the tower. Cross subsequently refused to pay Honeysuckle the full contract price for the assignment of the lease because of the damages that it suffered as a result of the eleven-month delay.

¶ 6. Honeysuckle’s complaint against Cross sought either specific performance of the contract’s full purchase price plus interest or cancellation of the assignment agreement between Honeysuckle and Cross. After filing its complaint, Honeysuckle also filed a notice of lis pendens covering the tower site. The chancery court entered a default judgment in favor of Honeysuckle, and the property was set for public sale.

¶ 7. Telecom filed a separate suit against Honeysuckle, seeking to enjoin the public sale of the property, which the court granted. Telecom intervened in Honeysuckle’s lawsuit against Cross, alleging that it was the rightful owner of the subject property and requesting that the default judgment be set aside. The chancery court consolidated the cases and held a trial.

¶ 8. At trial, Doug Irving, once an employee of Honeysuckle, Cross, and Tele-com, testified that he served as president of Honeysuckle and Cross while he was employed by those two companies. During his tenure as president with those companies, he searched for and obtained sites to build cellular communications towers. Irving stated that he continued to search for a tenant for the Washington tower site while employed with Cross: When he resigned from Cross in 2007, he began working for Telecom as its site development manager. While he served as Telecom’s site development manager, Cross assigned its rights in the Washington site to Tele-com. Irving also stated that, normally, Honeysuckle would be paid for assigning its rights in a leasehold interest to Cross at the time the assignment was made. However, that did not occur with the Washington site.

¶ 9. Randy Bailey, past co-owner of Cross, testified that Cross agreed to purchase a ground lease and an antenna lease from Honeysuckle. He noted that Cross did not normally pay for the leasehold or the assignment of the structure lease until the cellular tower was sold to a third party. Bailey stated that Cingular did not install its equipment on the tower at the Washington site until late 2007.

¶ 10. Calvin Bailey, past co-owner of Cross, testified that Cross officially dissolved in 2007, after being unable to pay its debts. Calvin noted that prior to Cross’s dissolution, it had built eight towers and had sold each tower to a third party for approximately $300,000. He stated that he had tried to reach a settlement with Honeysuckle on Cross’s behalf concerning the Washington site, but Honeysuckle had refused. Ultimately, Cross sold its interest in the leasehold to Tele-com for a reduction in the debt that Cross owed Telecom’s parent company. Once the leasehold was sold to Telecom, Cingu-lar installed its equipment on the cellular tower at the Washington site. Calvin testified that, while Cross did incur some additional expenses while waiting for Cin-gular to install its equipment on the tower, “[i]t was not [Cross’s] fault. It is not [Honeysuckle’s] fault.... So, I mean, it is Cingular and there is nothing we can do to control them.”

¶ 11. The court determined that Cross owed Honeysuckle $44,925 as a result of Cross’s breach of the contract regarding the assignment of the leasehold interest. The court also granted Honeysuckle an equitable lien against the subject property — even though it was now owned by Telecom — and declared a three percent prejudgment interest rate on the amount of damages awarded to Honeysuckle — totaling $5,494.80. Cross has not appealed the judgment against it.

¶ 12. Additional facts, as necessary, will be related in our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 13. Mississippi appellate courts employ “a limited standard of review in appeals from ... chancery court[s].” Corp. Mgmt., Inc. v. Greene Cnty., 23 So.3d 454, 459 (¶ 11) (Miss.2009) (citing Tucker v. Prisock, 791 So.2d 190, 192 (¶ 10) (Miss.2001)). As such, appellate courts will not disturb a chancery court’s factual findings “when supported by substantial evidence unless the [court] abused [its] discretion, was manifestly wrong, clearly erroneous!,] or applied an erroneous legal standard.” Id. (quoting Biglane v. Under The Hill Corp., 949 So.2d 9, 13-14 (¶ 17) (Miss.2007)). However, questions of law will be reviewed under the de novo standard of review. Id.

I. Equitable Lien

¶ 14. Telecom argues that the chancery court erred in granting Honeysuckle an equitable lien on Telecom’s leasehold interest. Ordinarily, an equitable lien is imposed “to reflect an express agreement that the property ... was intended to be held as security for 'the obligation of the promisor[.]” Neyland v. Neyland, 482 So.2d 228, 230 (1986) (citations omitted). The court may also impose an equitable lien to prevent unjust enrichment “where it would be contrary to equity and good conscience for an individual to retain a property interest acquired at the expense of another.” Id. (citations omitted).

¶ 15. The contract between Honeysuckle and Cross does not contain an express agreement that Honeysuckle would retain a lien on the leasehold interest until Cross paid for the assignment of the leases to the Washington site. Thus, the court could not have granted Honeysuckle an equitable lien in the leasehold on this basis. However, it is undisputed that Cross agreed to pay Honeysuckle for the assignment of the leases .covering the Washington site once Honeysuckle provided a signed lease agreement from Cingular, which it did. Although Cross contended that Honeysuckle did not fully comply with the contract between the two companies, the parties eventually acknowledged that Cingular unilaterally decided not to honor the original contract that it had signed with Honeysuckle. Therefore, while there was no express agreement in the contract concerning a lien on the property until Honeysuckle received payment from Cross, it, nevertheless, would have been inequitable to allow Cross to benefit from the sale or assignment of the property to Telecom when Cross had not fulfilled its obligation to Honeysuckle to tender the purchase price for the assignment of the interest. Accordingly, there is substantial evidence to support the chancery court’s decision to grant Honeysuckle an equitable lien in Telecom’s leasehold interest. This issue is without merit.

II. Prejudgment Interest

¶ 16. In addition to the damages that the chancery court awarded to Honeysuckle, the court also awarded Honeysuckle prejudgment interest on that amount. Telecom argues that Honeysuckle is not entitled to prejudgment interest because Honeysuckle’s claim for damages was un-liquidated. While the record reflects that Telecom filed a motion objecting to the proposed amount of interest and requesting a lower interest rate, Telecom failed to object to the chancery court’s decision to grant prejudgment interest. It is well settled that appellate courts “will not consider matters raised for the first time on appeal.” Fowler v. White, 85 So.3d 287, 293 (¶ 21) (Miss.2012) (quoting Triplett v. Mayor and Bd. of Aldermen of Vicksburg, 758 So.2d 399, 401 (¶ 9) (Miss.2000)). Because Telecom raises this issue for the first time on appeal, it is procedurally barred.

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

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

      . Honeysuckle was responsible for items 1 and 2; Cross completed the remaining items and deducted its expenses from the assignment price.


text:
    Kimberly Ann LANEY a/k/a Kim Laney, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00596-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.

      Kimberly Ann Laney, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On August 19, 2009, a Newton County jury convicted Kimberly Ann La-ney of driving under the influence causing manslaughter (DUI manslaughter). The circuit court sentenced Laney to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). La-ney filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the circuit court denied. On December 6, 2011, La-ney filed a motion requesting permission to proceed with an out-of-time appeal, which the court also denied.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On October 7, 2007, Thomas Dairo and Laney were involved in a car accident in Newton County, Mississippi, in which Dairo was killed. Laney was severely injured and spent several weeks in the hospital recovering. At the time of the accident, law enforcement officials could not determine whether Dairo or Laney was driving the car. Laney could not remember whether or not she was driving. Several months after Laney was released from the hospital, she was arrested and charged with DUI manslaughter for Dairo’s death.

¶ 4. At trial, Dairo’s ex-wife, Tracy Dai-ro, testified that she and Dairo had been divorced for five years, but that she maintained a relationship with him for the sake of their daughter. Law enforcement officers from the Mississippi Highway Patrol contacted Tracy, informed her that Dairo had been in a car accident, and requésted that she drive to Mississippi from her home in Alabama to identify Dairo’s body. After identifying Dairo’s body, Tracy and her daughter went to visit Laney in the hospital. According to Tracy, Laney confessed to her that she was driving the car when the accident occurred. Also, Tracy testified that Dairo did not like to drive and that whenever Dairo got into a car, his custom was to remove his shoes. Tracy’s account of Dairo’s pattern while riding in a car matched the evidence found at the scene of the car accident. Tracy stated that Dairo’s and Laney’s lifestyles included heavy alcohol consumption and drug use, and she felt that the two of them had been “under the influence of multiple things, and .... that’s how they had crashed.”

■ ¶ 5. Trooper Gary Seale, with the Mississippi Highway Patrol, testified that he was the first highway patrolman to arrive at the scene of the accident. Trooper Sea-le testified that even though he was not the accident reconstructionist in this case, he was certified as an accident reconstruc-tionist. When he arrived at the scene, he was greeted by a deputy from the Newton County Sheriffs Office. After some discussion with the deputy, Trooper Seale inspected the scene and went to the ambulance to briefly interview Laney. According to Trooper Seale, when he got into the ambulance, he noticed “a strong smell of an alcoholic beverage in the. back of the vehicle,” which he believed to be coming from Laney. When Trooper Seale asked Laney what happened and if she was driving the vehicle when they crashed, Laney responded that she did not remember.

¶ 6. After briefly speaking with Laney, Trooper Seale went back to the vehicle. He noticed a woman’s purse in the driver’s seat and a pair of men’s tennis shoes on the floorboard on the front passenger side. He noted that Dairo was not wearing shoes. After walking the “path of the crash” and noticing several beer containers, he began taking pictures of the scene. Trooper Seale called Sergeant Michael Cain, also with the Mississippi Highway Patrol, and “told him that he needed to come and look at this as a possible vehicular[-jmanslaughter case.” Trooper Seale told Sergeant Cain that he smelled alcohol coming from Laney and that he believed that she was driving the vehicle at the time of the accident. Trooper Seale also admitted that it was not uncommon for individuals involved in an accident like this to not remember the details of the accident.

¶ 7. Sergeant Cain served as the accident reconstructionist for this case. He testified that he was called to- the accident scene because it “met the criteria for a crash team member to respond.” When Sergeant Cain arrived at the scene, Trooper Seale informed him that “the driver” had been taken to the hospital. Trooper Seale told Sergeant Cain that alcohol was involved in the crash. Sergeant Cain went to the hospital and tried to talk with La-ney, but she could not respond to his questions because she was héavily medicated. He noticed the smell of alcohol on Laney’s breath, and instructed one of the nurses attending to Laney to extract a blood sample. Once he got the results of the sample back from the Mississippi-Crime Lab, he discovered that Laney’s blood-alcohol-content level was .14 percent. Based on his investigation and the information that he gathered at the scene, Sergeant Cain opined that

the accident occurred when the vehicle lost control and went off the highway, while traveling, I believe, ... approximately 86 miles per hour, ... and overturned and the occupants of the vehicle were ejected.... It was my belief that Ms. Laney was the driver of the vehicle and that she was operating [the vehicle with a blood-alcohol-content level] of .14 percent.

¶8. Sergeant Cain further testified that he found nothing while examining the inside of the vehicle that would assist in making “conclusions as to [an individual’s] positive location inside that particular vehicle.” Sergeant Cain also admitted that it was possible that the personal effects inside the car had been moved by other officers responding to the accident.

¶ 9. Dr. Steven Hayne performed the autopsy on Dairo. Dr. Hayne determined that Dairo had suffered numerous internal injuries that contributed to his death. Dr. Hayne opined that Dairo’s injuries were consistent with those sustained as a result of being ejected from a car during a motor-vehicle crash. Dairo had two underlying causes of death: a closed-head injury and lacerations of the right and left lungs, leading to a bilateral hemothorax. Dr. Hayne also stated that Dairo’s injuries could have occurred while he was in the vehicle, while “flying through the air,” or when he hit the ground. Finally, Dr. Hayne noted that Dairo had trace amounts of cocaine in his system, and Dairo’s blood-alcohol-content level was .27 percent.

¶ 10. Lañéis son, Colt Laney, testified that he was at the hospital with his mother when Tracy tried to talk to her. Colt stated that Laney could not respond to questions while she was at the hospital. She was receiving oxygen through a mask and would only moan. When Tracy asked Laney who was driving the car, Colt told Tracy that Laney was “not going to be able to respond to you right now.” Colt explained to Tracy that he had also asked Laney what had happened, and that she had not been able to respond to him. He testified that Laney later told him that she did not remember whether she or Dairo was driving the car on the night of the accident.

¶ 11. Brad Alexander, president of ASI Investigations, an accident-reconstruction-consulting firm, testified that he used the information gathered by Sergeant Cain, the crash report, and several of the photographs that Sergeant Cain had taken at the scene to “try to make some determination as to whether [he] could come up with a scientifically solid answer as to who was driving.” Alexander opined that, based on the available physical evidence, it would be impossible to tell who was driving the car on the night of the accident.

¶ 12. The jury convicted Laney of DUI manslaughter. On the same day that she was sentenced, her trial attorney withdrew from the case. Laney never perfected an appeal of her conviction and sentence. When Laney later petitioned the Mississippi Supreme Court for permission to proceed with an out-of-time appeal, the court, noting that Laney had not appealed her conviction and sentence, dismissed her application without prejudice and deferred to the circuit court. In response, the circuit court held a show-cause hearing on La-ney’s application for an out-of-time appeal, where she testified that there was a problem with filing the appeal within the thirty-day period. When the court asked her to explain the problem, Laney stated that her trial attorney refused to file an appeal unless she paid him more money. She further explained that because she is not from Mississippi and has no family in Mississippi, she was unable to get the money to him before the deadline. She tried other avenues, including seeking help through MDOC’s legal-aid office and hiring another attorney, to no avail. Laney also stated that she knew after the court had sentenced her that she had thirty days to “file something for notice of appeal,” but that her trial attorney wanted $10,000 before he would file anything on her behalf.

¶ 13. After receiving testimony from Laney, the circuit court entered an order denying Laney’s application for an out-of-time appeal. As justification for the denial, the court stated:

It is undisputed that no appeal has been filed with the Mississippi Supreme Court. The proof will show that [p]eti-tioner is not an indigent, and thus she has the ability to hire legal counsel for said appeal. It further appears [that four] attorneys have been involved for some level of representation since her indictment, but none of which has resulted in the perfection of authority for an out-of-time appeal.
The [p]ost-[c]onviction [collateral [Relief statutes are codified under [Mississippi] Code [Annotated] [s]ection 99-39-1, et[ ] seq., and the [c]ourt has reviewed [s]ections 99-39-5 and 99-39-7 of said code with a view toward determining whether Petitioner has stated grounds for relief thereunder.
The [c]ourt is of the opinion and so finds that with the passage of nearly 3 years since her conviction, [petitioner has had ample time to effectuate her out-of-time appeal, and thus she is not entitled to relief under said code sections.

¶ 14. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 15. Laney argues that the circuit court erred in denying her motion to proceed with an out-of-time appeal. We review a circuit court’s denial of an out-of-time appeal for abuse of discretion. Arnold v. State, 93 So.3d 908, 910 (¶ 6) (Miss.Ct.App.2012).

¶ 16. Mississippi Code Annotated section 99-39-5(2)(i) (Supp.2013), a provision of the Mississippi Post-Conviction Collateral Relief Act, allows Laney to file a motion for post-conviction relief arguing that she is entitled to an out-of-time appeal. Here, Laney contends that she is entitled to an out-of-time appeal because she had difficulties finding an attorney to perfect her appeal after her trial attorney withdrew from the case.

¶ 17. Rule 4(a) of the Mississippi Rules of Appellate Procedure provides that a notice of appeal must be filed “within 30 days after the date of entry of the judgment or order appealed from.” If a defendant has filed a timely motion for a JNOY or a new trial, the time for filing the notice of appeal runs from the date of the entry of the order denying the motion. M.R.A.P. 4(e). Rule 4(h) of the Mississippi Rules of Appellate Procedure allows the circuit court to reopen the time for appeal if the defendant did not receive notice of the entry of judgment or order within twenty-one days of its entry and no party would be prejudiced. A petition to reopen the time for appeal must be made within 180 days of the entry of the judgment or order. Id. This Court has held that the circuit court is without discretion to grant an out-of-time appeal after 180 days after the entry of the judgment or order. Williams v. State, 107 So.3d 1016, 1018 (¶ 4) (Miss.Ct.App.2012).

¶ 18. Here, the circuit court did not abuse its discretion in denying Laney’s motion to proceed with an out-of-time appeal. The court entered an order denying Laney’s post-trial motion on September 14, 2009. The time period for her to file a notice of appeal started to run on that date. Laney had until October 14, 2009, to perfect an appeal of her conviction and sentence. She missed this deadline. According to Rule 4(h), Laney had 180 days from September 14, 2009, to request an out-of-time appeal from the circuit court. However, the 180-day period expired on June 22, 2010, without a request for an out-of-time appeal from Laney. Therefore, the circuit court could not grant La-ney permission to proceed with an out-of-time appeal, and the court did not err in denying her application.

¶ 19. Nevertheless, this Court “may grant an out-of-time appeal where a person is convicted of a crime and through no fault of his own is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court.” Dorsey v. State, 986 So.2d 1080, 1084 (¶ 12) (Miss.Ct.App.2008) (quoting McGruder v. State, 886 So.2d 1, 2 (¶ 4) (Miss.2003)) (internal quotation marks omitted). Our supreme court has stated:

To prove his right to an out-of-time appeal, the movant must show by a preponderance of the evidence that he asked his attorney to appeal within the time allowed for giving notice of an appeal. Moreover, the movant must show that the attorney failed to perfect the appeal and that such failure was through no fault of the movant.

Sellers v. State, 52 So.3d 426, 428 (¶ 9) (Miss.Ct.App.2011) (quoting Dickey v. State, 662 So.2d 1106, 1108 (Miss.1995)). “We may suspend [the rules] when justice demands to allow an out-of-time appeal in criminal cases.” Dorsey, 986 So.2d at 1084 (¶ 12) (quoting McGruder, 886 So.2d at 2 (¶ 4)) (internal quotation marks omitted).

¶ 20. The record does not support Laney’s contention that she is entitled to an out-of-time appeal. Based on her statements at the show-cause hearing, Laney was aware on the day of sentencing that she had thirty days to file a notice of appeal. She also knew that she was unsatisfied with her trial attorney’s performance and would need to hire a new attorney to proceed with her appeal. Even though Laney contends that a number of extrinsic factors prevented her from pursuing an appeal of her conviction and sentence, it is undisputed that Laney was aware that she would need a new attorney after the conclusion of her trial. Her testimony at the show-cause hearing revealed that on the day of sentencing, she knew that her trial attorney would not proceed with the case without the payment of more money. Also, Laney testified that she knew that she had thirty days to file her notice of appeal and that she would either have to pay her trial attorney, hire a new attorney, or proceed on her own. Therefore, we cannot say that the failure to perfect La-ney’s appeal was through no fault of her own. Accordingly, we decline to suspend the rules to allow Laney to appeal her conviction and sentence, and we affirm the judgment of the circuit court.

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

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


author: ISHEE, J.,

text:
    Brian Wayne MOONEY a/k/a Brian M. Mooney a/k/a Brian Mooney a/k/a Bryan Mooney, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01931-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2013.
    Brian Wayne Mooney, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Brian Wayne Mooney pleaded guilty on May 26, 2011, in the Harrison County Circuit Court to two counts of driving under the influence (DUI), resulting in death and injury. He was sentenced to twenty years on each count to be served in the custody of the Mississippi Department of Corrections (MDOC), with the sentences to run concurrently. Subsequently, Mooney filed a motion to vacate his judgment and sentence. The circuit court, treating it as a motion for post-conviction relief (PCR), denied the motion. Mooney now appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. On May 23, 2008, Mooney was traveling southbound on Vidalia Road in Pass Christian, Mississippi. Lindsey Ladner (Lindsey) was driving in the northbound lane with passengers LaShae Necaise and Marcus Ladner (Marcus). As Mooney approached Lindsey, his car crossed the center line causing a head-on collision. Ne-caise was pronounced dead at the scene. Lindsey and Marcus were seriously injured.

¶ 3. A warrant to collect a sample of Mooney’s blood was obtained later that day. The results of the blood test revealed that Mooney tested positive for cocaine and Soma, a narcotic. On June 17, 2008, an arrest warrant for Mooney was issued. Mooney was subsequently arrested by the Slidell Police Department in Slidell, Louisiana, on May 15, 2009. He was later extradited to Mississippi.

¶ 4. On May 26, 2011, Mooney pleaded guilty in the circuit court to two counts of DUI, resulting in death and injury. He was sentenced to twenty years for each count, with the sentences to run concurrently, all in the custody of the MDOC. Mooney filed a PCR motion on January 17, 2012, which he later moved to dismiss voluntarily. The circuit court dismissed the PCR motion, without prejudice, on May 23, 2013.

¶ 5. On July 16, 2012, Mooney filed a motion to vacate his judgment and sentence, which the circuit court treated as a PCR motion and denied. Aggrieved, Mooney appeals, arguing: (1) his counsel was ineffective, and, therefore, his pleas of guilty were involuntary; and (2) the trial court’s denial of his motion to vacate his judgment and sentence was an abuse of discretion.

STANDARD OF REVIEW

¶ 6. A trial court’s denial of a PCR motion will not be disturbed unless the decision was clearly erroneous. Bell v. State, 105 So.3d 401, 403 (¶5) (Miss.Ct. App.2012) (citing Smith v. State, 12 So.3d 563, 564 (¶4) (Miss.Ct.App.2009)). Questions of law are reviewed de novo. Id.

DISCUSSION

¶ 7. Mooney argues that the trial court erred in denying his PCR motion because he was denied effective assistance of counsel. Specifically, Mooney argues that his attorney: (1) failed to pursue a violation of his speedy-trial rights, (2) coerced his pleas of guilty, (3) failed to investigate and prepare for trial, and (4) failed to seek suppression of illegally obtained evidence.

¶ 8. In order to make a claim based on ineffective assistance of counsel, Mooney must prove that his counsel’s performance was deficient and that his defense was prejudiced by his counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “In the context of guilty pleas, this means the defendant must show that, were it not for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Ivy v. State, 103 So.3d 766, 769 (¶ 11) (Miss.Ct.App.2012) (citations omitted).

¶ 9. Mooney maintains his attorney was ineffective because she failed to raise Mooney’s claim that his speedy-trial rights were violated. He argues that 1,044 days had passed from the day of his arrest, May 15, 2009, to the day he entered his guilty pleas, May 26, 2011. Mooney maintains that, regardless of the delay, he entered his pleas of guilty based on the coercion of his attorney.

¶ 10. “[0]ur courts have found ineffective-assistance claims based on the failure to raise speedy-trial issues waived where the plea was voluntary and intelligent, but they have found such claims not waived to the extent the plea was rendered involuntary by ineffective assistance.” Hill v. State, 60 So.3d 824, 827 (¶ 7) (Miss.Ct.App.2011). It is well settled that a guilty plea is valid so long as it was “voluntarily and intelligently made by the criminal defendant before the trial court.” Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss.2009) (citing King v. State, 738 So.2d 240, 241 (¶ 3-5) (Miss.1999)). “To determine whether the plea is voluntarily and intelligently given, the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of [the] plea.” Id. (citing Harris v. State, 806 So.2d 1127, 1130 (¶ 9) (Miss.2002)).

¶ 11. Mooney asserts that his attorney coerced and threatened him into entering guilty pleas instead of pursuing his claim of a speedy-trial violation. Mooney’s assertions, however, are contradicted by the testimony he gave during his plea hearing. Mooney testified that he understood that he would be waiving certain constitutional rights if he pleaded guilty. He affirmed that he was satisfied with the services and the advice that he had received from his lawyer. He also admitted that he had not been coerced or threatened in any way to enter his pleas of guilty. Mooney waived his constitutional right to a speedy trial on the record and continued to plead guilty. “Solemn declarations made in open court carry a strong presumption of verity.” Jones v. State, 885 So.2d 83, 87 (¶ 8) (Miss.Ct.App.2004).

¶ 12. Mooney also asserts that his attorney failed to investigate and prepare for trial and failed to seek the suppression of the results of the blood test. Yet Mooney only offers his own bare assertions in support of both arguments. “In cases involving post-conviction collateral relief, ‘where a party offers only his affidavit, then his ineffeetive[-]assistance[-]of[-]coun-sel claim is without merit.’ ” Watts v. State, 97 So.3d 722, 726 (¶ 12) (Miss.Ct.App.2012) (citations omitted). Mooney has failed to show that his attorney’s performance was ineffective. Therefore, this issue is without merit.

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

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