text:
    Courtney HARMON, Appellant v. Linda Randle HARMON, Appellee.
    No. 2013-CA-00166-COA.
    Court of Appeals of Mississippi.
    June 3, 2014.

      Chuck Easley, Matthew Daniel Wilson, Starkville, attorney for appellant.
    Linda Randle Harmon, appellant, pro se.
    Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Courtney Harmon appeals the grant of divorce to his former wife, Linda Harmon, insisting there were no grounds for a cruelty-based divorce. After review, we find his continuous name calling, baseless adultery accusations, habitual gambling, and stalking made the marriage revolting to Linda, destroying the basis for the marriage. We thus affirm the grant of divorce.

¶2. We also find no merit to Courtney’s claims that the chancellor wrongly awarded Linda the Starkville home and failed to decide who got the West Point home. Our review shows the chancellor properly applied the Ferguson factors when dividing the assets and awarding Linda the Starkville house. And from the final judgment of divorce, it is clear the chancellor deemed the West Point home was Courtney’s separate property. We affirm.

Facts and Procedural History

¶ 3. Courtney and Linda married on June 10, 2006. After marrying, they moved into Courtney’s West Point, Mississippi home. They lived in that house for nine months, then moved into Linda’s father’s house in Starkville, Mississippi. In May 2009, they moved into a newly constructed home in Starkville.

¶ 4. The next year, the couple separated on October 25, 2010. And on November 4, 2010, Linda filed for divorce on the grounds of adultery, habitual cruel and inhuman treatment, and alternatively, irreconcilable differences. After a temporary hearing, the chancellor awarded Courtney the West Point home and Linda the Starkville home. A three-day trial started on September 8, 2011.

¶ 5. According to Linda, early in the marriage, Courtney often accused her of cheating. And he often called Linda derogatory names like “whore” and “bitch.” Linda also testified that Courtney made degrading sexual comments about her anatomy and terrible false claims about her.

¶ 6. Linda’s fourteen-year-old daughter from an earlier relationship, Taylar Ran-dle, lived with Linda and Courtney. She recalled many arguments between the two. She told the chancellor that Courtney was

“very cruel” to her mother. And “he said very ugly things,” — words “a husband should not say to his wife.” Courtney also frequently accused Linda of cheating. The situation was so bad Taylar had thoughts of suicide and killing Courtney because of how he treated her mother.

¶ 7. Linda explained that Courtney called and followed her nonstop. Almost daily, he came to the bank where she worked as a branch manager. Two of Linda’s coworkers testified that Courtney was constantly at the bank. And after visits, Linda tended to get upset and was agitated, sad, and hurt. According to Linda, whenever she had a male customer in her office, Courtney accused her of infidelity. This interference with Linda’s work made it difficult for her to function.

¶ 8. Courtney was also obsessed with Linda’s whereabouts. He often followed her when she left work for lunch. One time, Linda was at a movie when Courtney appeared unexpectedly, frightening her. Another time, after watching a movie with a friend, she found Courtney lurking in the movie theater parking lot near midnight. As Linda put it, he “follows me everywhere.”

¶ 9. Courtney’s unusual behavior led to Linda filing stalking and phone-harassment charges against him in September 2011. And his actions caused Linda’s health to decline. She lost weight and sleep, and her hair began falling out. She testified she was afraid of Courtney and began to withdraw from others.

¶ 10. Linda also claimed Courtney was a habitual gambler. Linda admitted that early in the marriage she accompanied Courtney to the casino. But when she learned his gambling had become excessive, she asked him to stop. He refused. Bank statements showed Courtney withdrew over $11,000 at the casinos. Yet Linda believed he spent much more, anywhere from $500 to $1,000 a month gambling — money they needed for bills.

¶ 11. Despite Linda’s testimony and the bank records, Courtney denied his gambling was a problem. He also expressed his love for Linda and stated that he did not want a divorce. He denied calling her names and the sexually degrading behavior. Courtney also disputed that he constantly accused Linda of infidelity. He maintained the two continued to have sex after they separated, though Linda denied this.

¶ 12. After a trial, the chancellor granted Linda a divorce based on Courtney’s cruelty and divided the marital property. Courtney appealed.

Discussion

¶ 13. Chancellors are given wide latitude in fashioning equitable remedies in domestic cases. Smith v. Smith, 90 So.3d 1259, 1262 (¶ 7) (Miss.CtApp.2011). Then-decisions will not be reversed if their findings are supported by substantial credible evidence. Id. “We will not disturb a chancellor’s factual findings unless the chancellor’s decision was manifestly wrong or clearly erroneous, or the chancellor applied an improper legal standard.” Id. (citing Wallace v. Wallace, 12 So.3d 572, 575 (¶ 12) (Miss.Ct.App.2009)).

I. Habitual Cruel and Inhuman Treatment

¶ 14. Courtney first argues the chancellor wrongly granted Linda a divorce based on habitual cruelty. See Miss. Code Ann. § 93-5-1 (Rev.2013). To prove cruelty, a party must show conduct that either:

(1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the non[]offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Smith, 90 So.3d at 1262 (¶ 10) (quoting Richard v. Richard, 711 So.2d 884, 889 (¶22) (Miss.1998)). “The conduct must consist of something more than unkindness or rudeness[.]” Jackson v. Jackson, 922 So.2d 53, 56 (¶4) (Miss.Ct.App.2006) (quoting Horn v. Horn, 909 So.2d 1151, 1155 (¶ 7) (Miss.Ct.App.2005)). Want of affection or incompatibility is not enough. Id. The complaining party must prove one of these two prongs by a preponderance of the credible evidence. Smith, 90 So.3d at 1262-63 (¶ 10).

¶ 15. Generally, habitually cruel conduct must be “routine and continuous.” Jackson, 922 So.2d at 56 (¶ 4) (citing Moore v. Moore, 757 So.2d 1043, 1047 (¶ 16) (Miss.Ct.App.2000)). However, a pattern is not always required. Sometimes, a single act of physical violence is sufficient. Smith, 90 So.3d at 1263 (¶ 13) (citing Curtis v. Curtis, 796 So.2d 1044, 1047 (¶8) (Miss.Ct.App.2001)). But in cases like this where there is no physical violence, we consider the frequency and severity of the conduct, and the impact on the offended spouse. Id. “[V]erbal abuse, neglect, and the like,” considered independently, will not amount to cruelty. Id. (quoting Jackson, 922 So.2d at 57 (¶ 8)). But if these combined acts manifest a course of revolting conduct, they may give rise to cruelty. Id.

¶ 16. In reviewing a cruelty-based divorce, “there is a dual focus on the conduct of the offending spouse and the impact of that conduct on the offended spouse.” Id. at 1263 (¶ 11) (quoting Bodne v. King, 835 So.2d 52, 59 (¶ 24) (Miss.2003)). This specific inquiry is subjective. Id. (citing Faries v. Faries, 607 So.2d 1204, 1209 (Miss.1992)). Instead of using an ordinary, reasonable-person standard, we concentrate on the conduct’s effect on the particular offended spouse. Id. (citing Faries, 607 So.2d at 1209). Though a party alleging cruelty must generally corroborate his or her testimony, an exception is made “where corroboration is not reasonably possible because of the nature of the accusation.” Id. at (¶ 12).

¶ 17. The chancellor here determined the “cumulative effect of the degrading sexual behavior, cursing and yelling, habitual gambling, jealousy, [and] stalking,” and the resulting negative effect to Linda’s health amounted to habitual cruel and inhuman treatment. Linda testified about these behaviors and the adverse effects on her health. And Linda’s daughter and coworkers corroborated Linda’s testimony that Courtney’s behavior adversely affected her. The chancellor found this testimony credible. After review, we find Courtney’s overall pattern of behavior, taken as a whole, was sufficiently revolting to Linda to support a divorce based on habitual cruelty.

II. Equitable Distribution

¶ 18. Courtney next challenges the distribution of assets. He claims the chancellor erred in not deciding who received the West Point home and in awarding Linda the Starkville home. We disagree.

¶ 19. In Mississippi, equitable distribution is a three-step process. The chancellor must “(1) classify the parties’ assets as marital or separate, (2) determine the value of those assets, and (3) divide the marital estate equitably based upon the factors set forth in Ferguson.” Rhodes v. Rhodes, 52 So.3d 430, 436 (¶ 18) (Miss.Ct.App.2011) (citation omitted) (citing Ferguson v. Ferguson, 639 So.2d 921, 928-29 (Miss.1994)).

A. Classification of Assets

¶ 20. The first step requires classifying assets as marital or separate. Marital property is “any and all property acquired or accumulated during the marriage.” Id. at (¶ 19) (quoting Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994)). Nonmarital assets (or separate property) are those assets “attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Id. (quoting Hemsley, 639 So.2d at 914). Marital property must be divided, while nonmarital property is generally not subject to equitable distribution. Id. (citing Larue v. Larue, 969 So.2d 99, 106 (¶ 19) (Miss.Ct.App.2007)).

¶21. The marital assets here were a lawn mower, television sets, an entertainment center, vehicles, Courtney’s and Linda’s 401(k)s, the marital home, and four bedroom suites. Though Courtney argues about the chancellor’s failure to award him the West Point home, we point out the chancellor did not classify this house as marital property. She instead deemed it Courtney’s separate, nonmarital property. So we find he did receive the West Point home.

¶ 22. While Courtney argued the West Point home was titled in his and his daughter’s names, regardless of title, which is irrelevant for purposes of equitable distribution, the chancellor’s final judgment directed the parties to “execute any deed, title transferí,] or other instrument necessary to effect the above property division and distribution.” Because we find Courtney received the West Point home, Linda must execute any instrument necessary to effect this particular ruling.

B. Value of Marital Assets

¶23. The chancellor next valued the marital assets. She found the Starkville home was worth $250,000, less a mortgage balance of $196,000, leaving $54,000 in equity. Linda’s 401(k) was valued at $15,104, and Courtney’s at $8,500. The parties had several bedroom suites, which the chancellor deemed were worth $8,900. The televisions were valued at $2,400, the entertainment center at $2,900, and a zero-turn mower at $2,900. The couple also had several vehicles — a 2002 Nissan with equity of $8,000, a 2002 Dodge with equity of $4,000, a 1994 Honda Accord with equity of $2,875, and a 2008 BMW 5 Series with $2,000 in equity.

C. Division of Marital Assets by Applying the Ferguson Factors

¶ 24. After valuing the marital assets, the chancellor went through the Ferguson factors, equitably dividing the marital assets. Though Courtney does not challenge any specific factor, he suggests he should have received the Starkville home or some equity in it.

¶ 25. When reviewing an equitable distribution, we focus on “the chancellor’s findings on the Ferguson factors — ‘we do not conduct a Ferguson analysis anew.’ ” Carter v. Carter, 98 So.3d 1109, 1112 (¶ 9) (Miss.Ct.App.2012) (quoting Goellner v. Goellner, 11 So.3d 1251, 1264 (¶ 45) (Miss.Ct.App.2009)). We will not disturb a chancellor’s factual findings unless they are “manifestly wrong [or] clearly erroneous, or the chancellor applied an improper legal standard.” Id.

1. The Non-Realty Marital Property

¶26. The chancellor divvied up the marital property, awarding Courtney his 401(k), the BMW and Honda, two televisions, two bedroom suites, and the entertainment center. And as mentioned, Courtney also kept his separate property in West Point. Linda was awarded her 401(k), the Nissan and Dodge, two televisions, two bedroom suites, the mower, and the Starkville home. She was also ordered to pay the debt on the mower and mortgage on the Starkville home.

2. The Starkville Home

¶ 27. Courtney insists he was entitled to ownership or some cut of the Starkville home, but the chancellor disagreed.

¶ 28. The chancellor found Linda had contributed much more to the Starkville home, citing Courtney’s gambling and periods of unemployment. She also recognized that at the time of trial, both were employed, but Linda had more job stability. And while Linda did have greater savings than Courtney, there was no great disparity in their incomes.

¶29. The mortgage-payment history was also considered, as were the financial contributions to the construction of the house. Because of Courtney’s poor credit history, the mortgage was solely in Linda’s name. Still, the chancellor recognized Courtney had made monthly mortgage payments of $1,436 for twelve months, half the payments for six months, and interest payments of $1,425. But Linda had paid the other half of the Starkville home’s mortgage payments for these six months. And she had made all mortgage payments from February 2011 to the time of the trial. The chancellor also emphasized that Linda had put $16,000 from her inheritance, $6,800 from her 401 (k), a $2,900 cash advance from her credit card, and $5,000 in personal funds into the construction of the Starkville home. See Berryman v. Berryman, 907 So.2d 944, 947 (¶ 13) (Miss.2005) (finding no error in awarding the wife sole ownership of the marital residence where she made substantial financial contributions to the acquisition of the residence). So the chancellor rightly found Linda had contributed more financially to the acquisition, purchase, and construction of the Starkville home.

¶ 30. Linda also took care of the home and family, while Courtney shouldered the blame for the instability of the home and ultimate dissolution of the marriage. And Linda had strong emotional ties to the Starkville house since a friend of her deceased father built it.

¶ 31. Under the nonmarital-assets factor, the chancellor mentioned “Courtney owns [a] one-half interest in real property in Clay County in which there is equity of approximately $34,000.00.” It was not lost on the chancellor that Linda had assisted Courtney financially “when his separate real estate in Clay County was in foreclosure.”

¶ 32. After review, we find the chancellor equitably distributed the marital assets, including the Starkville house. That Courtney was not awarded the Starkville home or some of its equity does not mean the division was inequitable. Indeed, we are mindful that “an equitable division of property does not necessarily mean an equal division of property.” Carter, 98 So.3d at 1113 (¶ 11). If Ferguson is properly applied, equitable divisions may at times be somewhat lopsided. Id. at (¶ 12).

¶ 33. Here, the division of assets was fairly equal, even though equal division is not required. See id. at (¶ 11). We find the chancellor properly applied Ferguson and see no error in the equitable distribution. We affirm.

¶ 34. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994).

      .Linda did not file an appellee’s brief. While traditionally the "failure to file a brief is tantamount to a confession of error, there is an exception when this court can 'state with conviction after reviewing the record and brief of the appealing party that no error existed.' ” Gary v. Gary, 84 So.3d 836, 838-39 (¶ 11) (Miss.Ct.App.2012) (quoting Conservator of Eldridge v. Sparkman, 813 So.2d 753, 755 (¶ 7) (Miss.Ct.App.2001)). After a review of the record, we find that there is a "sound and unmistakable basis or ground upon which the judgment may be safely affirmed.” Pruitt v. Payne, 14 So.3d 806, 810 (¶ 6) (Miss.Ct.App.2009).

      . Courtney resided in the West Point home for approximately twenty years with his first wife before Linda moved in.

      . Courtney was found guilty of these charges before the final judgment in the case before us was entered.

      . For example, corroboration may be unnecessary in unusual cases, such as isolation. Jones v. Jones, 43 So.3d 465, 478 (¶ 30) (Miss.Ct.App.2009). Further, " 'the corroborating evidence need not be sufficient in itself to establish the ground,' but rather 'need only provide enough supporting facts for a court to conclude that the plaintiff's testimony is true.’ ” Id. (quoting Deborah H. Bell, Bell on Mississippi Family Law § 4.02[8][d] at 74 (2005)).

      .The chancellor’s final judgment classified the West Point home as Courtney’s separate property. The final judgment of divorce says that “[pjrior to the marriage, Courtney owned a residence in West Point, MS. Once married, Linda moved into the West Point residence with Courtney.... The parties lived in this home from 2007 to 2009. [Then] Courtney leased the West Point residence to his niece.” Later in the judgment, the chancellor noted "Linda assisted Courtney monetary [sic] when his separate real estate in Clay County was in foreclosure.” (Emphasis added). And she further found that "Courtney owns [a ] one-half interest in real property in Clay County in which there is equity of approximately $34,000.00." (Emphasis added). This finding was made under the Ferguson factor titled "the value of assets not ordinarily subject to distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse.” Linda does not argue that the chancellor erred in classifying the West Point home as nonmarital property since the parties lived in the home together for two years after they married. Courtney testified he wanted the West Point home, and Linda testified that she wanted Courtney to have the West Point home.

      . On the other hand, Linda testified that her name was on the deed to the West Point house.

      . See Morris v. Morris, 5 So.3d 476, 492 (¶ 38) (Miss.Ct.App.2008) (The fact that property was titled in the husband’s name was irrelevant because "title is no longer determinative in deciding a party’s rights to the property.”); Carrow v. Carrow, 642 So.2d 901, 906 (Miss.1994) (Chancellors must "look behind the formal state of title” in making an equitable division.).

      . Those eight factors are:
      1. Substantial contribution to the accumulation of the propertyf, such as:] ... a. Direct or indirect economic contribution to the acquisition of the property; b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties[,] and duration of the marriage; and c. Contribution to the education, training^] or other accomplishment bearing on the earning power of the spouse accumulating the assets[;] 2. The degree to which each spouse has expended, withdrawn[,] or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decreeL] or otherwise[;] 3. The market value and the emotional value of the assets subject to distribution!;] 4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse; 5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution; 6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties; 7. The needs of the parties for financial security with due regard to the combination of assets, income!,] and earning capacity; and, 8. Any other factor which in equity should be considered.

        Gillespie v. Gillespie, 106 So.3d 869, 874 (¶ 23) (Miss.Ct.App.2013) (quoting Ferguson, 639 So.2d at 928).


source: Caselaw Access Project

author: LEE, C.J., JAMES, J.,

license: Public Domain

text:
    Tanya Michaele O’NEAL a/k/a Tanya Michaele Porter, Appellant v. Steven KETCHUM, Appellee.
    No. 2013-CA-00460-COA.
    Court of Appeals of Mississippi.
    June 24, 2014.

      Herbert J. Stelly, attorney for appellant.
    Robert H. Koon, attorney for appellee.
   LEE, C.J.,

for the Court:

¶ 1. This appeal arises from the trial court’s denial of Tanya O’Neal’s suit, seeking the court to order the sale and disbursement of proceeds of a mobile home she claimed to own with Steven Ketchum. The Harrison County Chancery Court found that neither O’Neal nor Ketchum had title to the mobile home. The court also found that O’Neal failed to prove that: (1) Ketchum was unjustly enriched; (2) Ketchum and his father had conspired to destroy her cotenancy; or (3) she did not receive the required notice of the foreclosure sale. Finding O’Neal’s issues procedurally barred, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In August 1997, O’Neal and Ket-chum began a romantic relationship. On May 10, 1999, O’Neal and Ketchum signed a $21,000 promissory note for Clinton Saucier’s mobile home in Saucier, Mississippi. Under the terms of the note, O’Neal and Ketchum were to pay Saucier a $3,000 down payment and $500 each month, commencing on June 15, 1999, with the remainder of the balance due on December 15, 2001. The parties agreed to a zero percent interest rate and waiver of any nonrepayment notice, should O’Neal and Ketchum default on payments.

¶ 3. At trial, O’Neal testified that she paid the $3,000 down payment, but she did not offer any bank statements, copies of checks, or other evidence to support her statement. However, Ketchum did not dispute that O’Neal paid the down payment. O’Neal testified that Ketchum paid Saucier the monthly payments out of her and Ketchum’s joint checking account. While no proof of these payments was admitted at trial, both parties testified that the payments were regularly made to Saucier. No evidence to the contrary was shown at trial, and Saucier was not a party to the action.

¶ 4. On October 29, 2001, Ketchum’s father, Ralph Ketchum, purchased the land where O’Neal and Ketchum’s mobile home was located from Saucier for $21,000. While Ralph believed that the mobile home was paid off at the time he purchased the land, O’Neal and Ketchum testified that there was still a small balance owed to Saucier at the time of the land conveyance. That same day, O’Neal and Ketchum executed a second promissory note and deed of trust in favor of Ralph for $21,717.90. The note did not include the mobile home. Under the terms of the note, O’Neal and Ketehum would pay Ralph $500 a month until the note was paid in full. The note contained a clause that stated if O’Neal and Ketehum, as the debtors, defaulted on the loan, the entire debt plus interest would become due without notice. Also on October 29, 2001, Saucier executed a warranty deed conveying the land purchased by Ralph to Ketehum and O’Neal as tenants in common.

¶ 5. When O’Neal and Ketehum brought their first $500 payment to Ralph, they asked Ralph to loan them $15,000 to cover attorney’s fees needed to bond O’Neal’s father out of jail. Ralph loaned them $5,000, and agreed to defer the couple’s payments on the note for ten months so they could repay the loan Ketehum took from his 401(k) to contribute to the attorney’s fees. While the grace period was ten months, Ralph only received three additional payments from Ketehum between 2001 and 2003.

¶ 6. O’Neal and Ketehum ended their relationship in February 2004, and O’Neal moved out of the home. Although inconsistently, Ketehum continued to make payments to Ralph. In 2004, Ketehum made six payments, and he made another payment in January 2007. While Ralph allowed Ketehum to remain on the property as a custodian, in 2007, Ralph foreclosed on the land under the deed’s terms.

¶ 7. In December 2007, the trustee and Ralph’s attorney, Robert H. Koon, began preparing a nonjudicial foreclosure sale of the property. Koon publicized the foreclosure with a notice of sale in the Sun Herald newspaper, first on December 13, 2007, and then weekly for four consecutive weeks. Also on December 13, 2007, Koon posted a notice of sale on the bulletin board at the east front door of the Harrison County Courthouse in Gulfport, Mississippi. This notice remained posted from December 13 through the foreclosure sale on January 17, 2008.

¶ 8. On January 17, 2008, Koon and Ralph held the public auction for the land at the Harrison County Courthouse’s east front door. No third party appeared or bid on the property, and Koon had been authorized by Ralph to bid the amount of the unpaid balance due on the land. On April 10, 2008, Ralph deeded the property to Ketehum. The deed was filed in Harrison County’s land records on July 5, 2011, nunc pro tunc to January 2008. The quitclaim deed described the land, but made no mention of the mobile home.

¶ 9. Over three years after the foreclosure sale, O’Neal filed her complaint in this action in Harrison County Chancery Court, seeking the sale of the land and mobile home and disbursement of the proceeds between herself and Ketehum. In her amended complaint, O’Neal also asserted that Ketehum was unjustly enriched; that Ketehum and his father, Ralph, conspired to destroy her cotenancy; and that the foreclosure sale was invalid due to lack of notice. A hearing was held on August 9, 2012. The chancellor requested both parties file post-trial briefs; however, only Ketehum and his father filed a brief. The chancellor denied all of O’Neal’s claims, and found that neither O’Neal nor Ketehum obtained title to the mobile home.

¶ 10. O’Neal now appeals, arguing: (1) the chancellor’s finding that the mobile home did not belong to O’Neal and Ket-chum was against the overwhelming weight of the evidence, and (2) the chancellor erred in finding the foreclosure sale valid because no bids were received.

STANDARD OF REVIEW

¶ 11. A chancellor’s findings of fact will not be overturned “when supported by substantial evidence unless an erroneous legal standard was applied or the chancellor was manifestly wrong.” Byrd v. Abney, 99 So.3d 1180, 1183 (¶ 11) (Miss.Ct.App.2012). This Court’s standard of review of a chancellor’s decision is abuse of discretion; however, questions of law are reviewed de novo. Jones v. Graphia, 95 So.3d 751, 753 (¶ 6) (Miss.Ct.App.2012).

DISCUSSION

I. WEIGHT OF THE EVIDENCE

¶ 12. O’Neal argues, and Ketchum agrees, that the chancellor’s determination that neither party had title to the mobile home was against the weight of the evidence.

¶ 13. At trial, conflicting testimony was given about the remainder on the promissory note to be paid to Saucier. O’Neal and Ketchum both testified that at the time Ralph purchased the land, there was a small balance on the note. No evidence was presented to support the amount of the remainder. Thus, for either party to have obtained title, the mobile home would have to be considered part of the real property when the deed of trust was signed.

¶ 14. For a mobile home to be considered real property, the specific requirements of Mississippi Code Annotated section 27-53-15 (Rev.2010) must be met. Under section 27-53-15, first, the mobile home’s wheels and axles must be removed, and the home must be affixed to a permanent foundation by anchoring and blocking it to comply with the rules and procedures of the Commissioner of Insurance of the State of Mississippi. Then, the mobile home must be entered on the land rolls of the county tax assessor,' and it must be taxed as real property from that date. Lastly, the county tax assessor must issue a certificate certifying that the mobile home is real property, and the tax assessor must file the certificate in the land records. For a security interest to be perfected, the mobile home’s description must be included in the deed of trust. See Deutsche Bank Nat’l Trust Co. v. Brechtel, 81 So.3d 277, 279 (¶ 8) (Miss.Ct.App.2012).

¶ 15. At trial, no evidence was presented that the mobile home’s wheels and axles had been removed or that it had been attached to a permanent foundation. Additionally, no evidence was presented that a certification of the mobile home as real property had been entered with the county tax assessor. The deed encompassed the land “together with all improvements and appurtenances now or hereafter erected on [it], and all fixtures of any and every description!,]” but the deed made no mention of the mobile home.

¶ 16. Neither party asserted that the mobile home had become a fixture on the property. The chancellor determined that because no evidence was presented that the mobile home’s wheels were removed, that the home was attached to a foundation or placed on blocks, or that the home was assessed as real property for tax purposes, the mobile home had not become a fixture. The chancellor’s findings were supported by substantial evidence. This issue is without merit.

II. FORECLOSURE SALE

¶ 17. On appeal, O’Neal challenges the validity of the foreclosure sale on the ground that no actual sale was conducted, because no bids were received. Again, O’Neal failed to raise this issue before the chancellor. In her pleadings and at trial, O’Neal challenged the sufficiency of the notice of the foreclosure sale. She cannot assert a new claim on appeal. “As [the supreme court] has stated, time and again, an issue not raised before the lower court is deemed waived and is proeedurally barred.” Gale v. Thomas, 759 So.2d 1150, 1159 (¶ 40) (Miss.1999). This issue is without merit.

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

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

JAMES, J.,

concurring in part and dissenting in part:

¶ 19. I agree with the majority that the title of the mobile home did not pass to O’Neal or Mr. Ketchum. However, the majority also finds that O’Neal asserted a new claim on appeal, and as such is procedurally barred from pursuing it on appeal. I respectfully dissent.

¶ 20. In the amended complaint, O’Neal stated that the trustee’s deed “is completely void ab initio by virtue of the failure of the trustee to follow the laws made and provided for [the] purpose of foreclosing on deeds of trust in the [SJtate of Mississippi.” O’Neal attacked the validity of the sale by alleging that the trustee failed to follow the laws of foreclosure, which encompassed the allegation that the sale was invalid because no bid was entered at the auction.

¶21. Further, at trial, Ketchum’s father, Ralph, testified that he was at the sale and did not bid on the property. O’Neal’s trial counsel specifically asked Ralph why he failed to bid on the property. He was interrupted by an objection of opposing counsel. After some discourse, the court then determined that the information sought by O’Neal was privileged information because Ralph’s attorney, who was also the trustee on the deed of trust, advised him about the trustee’s sale. O’Neal then attempted to make a proffer, but Ketchum objected to the proffer as well. O’Neal’s counsel then stated: “I have considered what the witness has said, he has admitted that he did not bid on the property, and that he was there, and there were no other bids. And I don’t need anything more on the record for that.” Counsel’s statements coupled with the inclusive language of the complaint are sufficient to infer that O’Neal raised the issue of the validity of the trustee’s sale. It should also be noted that several months after the foreclosure sale, Ralph executed a quitclaim deed to Ketchum giving him sole possession of the property.

¶ 22. The majority opinion states that no third party appeared to bid on the property, and Koon had been authorized by Ralph to bid the amount of the unpaid balance due on the land. However, the chancellor in her final judgment, based on the proof, stated: “[N]o one appeared or bid on the property. Accordingly then, by operation of law, the land reverted back to Ralph.”

¶ 23. The record clearly shows that no sale took place. Therefore, Ketchum and O’Neal remain cotenants of the property in question. In Mississippi Real Estate Foreclosure Law, it is stated that “a mortgagee can purchase property at the foreclosure sale under Mississippi law. However, ... the trustee is the agent for both parties to the deed of trust and occupies a fiduciary relationship as to both.” K.F. Boackle, Mississippi Real Estate Foreclosure Law § 4-8, at 48 (2d ed.2002).

¶ 24. It is further recommended that, “[i]n the event the mortgagee is not present, [the trustee should] accept [mortgagee’s] bid as specified in his instructions as the opening bid.... The mortgagee need not actually tender cash, but may credit the note for the amount of the bid.” Id. § 4-9, at 44. “It is a good practice to have a third party witness present. Once the property has been sold, the trustee should have the witness and other participants execute an affidavit stating the details of the sale.” Id. Also, Mississippi Code Annotated sections 89-1-53 (Rev.2011) and 89-1-55 (Rev.2011) describe the “sale” that takes place during a foreclosure.

¶ 25. Turning to the validity of the trustee’s deed, there was sufficient evidence to declare the deed void, because there were no bids at the sale. The Mississippi Supreme Court has stated that “[i]n a deed of trust the trustee is under a duty to perform his duties in good faith and act fairly to protect the rights of all parties equally.... [B]ut it is the trustee’s duty to sell the land in such a manner as will be most beneficial to the debtor.” Lake Hillsdale Estates, Inc. v. Galloway, 473 So.2d 461, 465 (Miss.1985).

¶ 26. Here, the trustee did not perform his duties in good faith, operating under the mistaken belief that the property automatically reverted back to the beneficiary of the deed of trust, Ralph. Both Ket-chum and O’Neal were listed equally on the deed of trust. Thus, O’Neal was entitled to the same protection as Ralph and Ketchum. Ralph testified that his attorney gave him direction and advice as to what to do in the foreclosure. Ralph’s attorney was the trustee of the deed of trust. By executing a property deed to Ralph without a formal bid, the trustee did not act in a manner most beneficial to both debtors, Ketchum and O’Neal.

¶ 27. According to Mississippi Code Annotated section 89-1-63(2) (Rev.2011):

The beneficiary of a deed of trust or the mortgagee of a mortgage may purchase at any sale which has been made or shall hereafter be made under a power of sale, and any such sale shall not be invalid because of the relationship of such person to any other party to the deed of trust.

The statute indicates that the beneficiary of the deed of trust is free to purchase the property. There appears to be no statute or case law that supports the supposition that if there are no bids on the property, then the property automatically reverts to the beneficiary of the deed of trust.

¶ 28. This Court has also “frequently reiterated our adherence to the general rule that, absent any irregularity in the conduct of a foreclosure sale, it may not be set aside unless the sale[ ] price is so inadequate as to shock the conscience of the [c]ourt or to amount to fraud.” Dunaway v. Morgan, 918 So.2d 872, 876 (¶ 11) (Miss.Ct.App.2006). To shock the conscience of the court, the sale price “must be so inadequate that it would be impossible to state it to a man of common sense without producing an exclamation at the inequality of it.” Id. Here, the sale price for the property was nonexistent, which should definitely shock the conscience.

¶ 29. Further, “[w]here the foreclosure creditor buys at foreclosure, it must give the debtor fair credit for the commercially reasonable value of the collateral.” Fleisher v. S. AgCredit, FLCA, 108 So.3d 948, 951 (¶ 13) (Miss.Ct.App.2012). There is no evidence in the record that either Ketchum or O’Neal received any credit because no bid was placed at the sale.

¶ 30. “It is elementary that the proceeds of the foreclosure sale determine the rights between the grantor and beneficiary of a deed of trust absent fraud, bad faith or other defect.” Merchs. Nat’l Bank v. Stewart, 608 So.2d 1120, 1127 (Miss.1992). If, after the foreclosure, a debt is still owed on the property, the foreclosing creditor may be entitled to a deficiency judgment. Fleisher, 108 So.Bd at 951 (¶ 13). For purposes of determining a deficiency, if any, case law recognizes “that the terms of foreclosure ... must be commercially reasonable and that, particularly where the foreclosing creditor buys at foreclosure, it must give the debtor fair credit for the commercially reasonable value of the collateral.” Shutze v. Credithrift of Am., Inc., 607 So.2d 55, 66 (Miss.1992).

¶ 31. Conversely, where a foreclosure sale has occurred, the debtor would be entitled to any funds above the balance of the amount owed on the property minus the foreclosure costs. Estate of Walters v. Freeman, 904 So.2d 1140, 1142 (¶ 10) (Miss.Ct.App.2004). Without a proper trustee’s sale, it cannot be determined if there was a deficiency or surplus owed to O’Neal and Ketchum.

¶ 32. I concur with the majority opinion that title to the mobile home did not pass to O’Neal. However, I am also of the opinion that the trustee’s sale should be declared void because no sale actually took place. There were no formal bids entered for the property. I would therefore reverse and render this issue and void the trustee’s sale.


author: BARNES, J.,

text:
    Violet MEEKINS and Alex Gates, Chapter 7 Trustee for the Northern District of Mississippi for and on Behalf of Violet Meekins, Appellants v. Eric M. KENNON, Appellee.
    No. 2012-CA-02038-COA.
    Court of Appeals of Mississippi.
    June 24, 2014.
    Olufemi Gbolahan Salu, Southaven, attorney for appellants.
    Russell Barton Jordan, Hernando, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   BARNES, J.,

for the court:

¶ 1. Violet Meekins and Alex Gates, the Chapter 7 Trustee for the Northern District of Mississippi, on behalf of Meekins, appeal the DeSoto County Circuit Court’s order granting summary judgment to the defendant, Eric M. Kennon, and its order denying the Trustee’s motion to be substituted for the original plaintiff, Meekins, in an automobile-accident lawsuit filed by Meekins and her minor children against Kennon.

¶ 2. Finding that the circuit court’s order was not a final, appealable judgment, we dismiss the appeal.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 8. On May 11, 2009, Meekins was driving a school bus when a vehicle driven by Kennon collided with the bus. Two of Meekins’s own minor children were passengers on the bus.

¶ 4. A week prior to the accident, Mee-kins had consulted an attorney and begun steps to file a Chapter 7 bankruptcy petition. The petition was not filed until five days after the accident. No mention was made in the petition about a potential claim relating to the accident. On September 21, 2009, the bankruptcy case was closed, and Meekins was discharged without the claim ever being identified and administered.

¶5. On September 20, 2011, Meekins filed a lawsuit against Kennon on behalf of herself and her two minor children. Ken-non stipulated to liability, leaving only the issue of damages for determination. On December 21, 2011, Meekins filed a Chapter 13 bankruptcy petition. Although the lawsuit was listed in her “Statement of Financial Affairs, Form B7,” it was not listed in her Schedule B, where assets are required to be listed.

¶ 6. Kennon learned of her bankruptcy filings in discovery. He moved for summary judgment on the grounds that Mee-kins, having filed for bankruptcy, had no standing to pursue the claim, and that Meekins was judicially estopped from pursuing the claim since her bankruptcy filings, in effect, denied its existence.

¶ 7. In July 2012, after the motion for summary judgement was filed, Meekins amended her Chapter 13 petition to add the lawsuit as a potential asset.

¶ 8. Following a hearing, the circuit court granted Kennon’s motion for summary judgment on August 22, 2012, as to Meekins individually based on her lack of standing to pursue a claim that belonged to the bankruptcy trustee. The court did not rule on the judicial-estoppel argument.

¶ 9. On August 31, 2012, Meekins filed a motion pursuant to Mississippi Rule of Civil Procedure 59 to alter or amend the judgment by substituting the Chapter 7 Trustee for Meekins. Meekins’s Chapter 7 bankruptcy proceeding was reopened. Her attorney was appointed special counsel to represent the Chapter 7 Trustee in the lawsuit. On October 18, 2012, the Chapter 7 Trustee, represented by Mee-kins’s attorney, filed a motion to substitute the Trustee for Meekins and to allow the lawsuit to proceed.

¶ 10. Following a hearing, the circuit court denied Meekins’s Rule 59 motion and the Trustee’s motion to substitute. The order recited, however, that “[njothing in this ruling shall be construed as to having any effect on Ms. Meekinsf’s] ability to proceed on behalf of her minor children’s claims.”

¶ 11. Meekins and the Trustee have appealed the August 22, 2012 and the December 5, 2012 orders.

DISCUSSION

¶ 12. Although no party has raised the issue of appellate jurisdiction, as the action involved multiple parties and claims, we must address on our own initiative whether the circuit court’s order was a final, appealable judgment under Mississippi Rule of Civil Procedure 54(b). Clausell v. Bourque, 122 So.3d 825, 827 (¶ 6) (Miss.Ct.App.2013) (citing Williams v. Delta Reg’l Med. Ctr., 740 So.2d 284, 285 (¶ 5) (Miss.1999)).

¶ 13. Under Rule 54(b), the circuit court may “direct the entry of a final judgment as to one or more but fewer than all of the claims or parties[.]” M.R.C.P. 54(b). However, for such a judgment to be final, the order must make an “expressed determination that there is no just reason for delay” and an “expressed direction for the entry of the judgment.” Id. Without such express determinations, the order is interlocutory. M.R.C.P. 54(b) cmt.

¶ 14. In the case before us, the orders only disposed of Meekins’s claims and not those of her minor children. Their claims are still pending before the circuit court. The summary-judgment order applies exclusively to Meekins’s individual claim and does not state “an expressed determination that there is no just reason for delay.” M.R.C.P. 54(b). The circuit judge failed to certify the order as a final judgment under Rule 54(b).

¶ 15. In Moody v. Harrison County Board of Supervisors, 867 So.2d 274 (Miss.Ct.App.2004), the plaintiff filed a personal-injury action against the Harrison County Board of Supervisors and the Mississippi Department of Human Services. Id. at 274-75 (¶ 1). The circuit court granted summary judgment solely to the county and made no determination that a delay in the appeal might result in prejudice to the plaintiff. Id. at 275 (¶ 1). We held that under the provisions of Rule 54(b), the “order is subject to revision at any time by the circuit court and, thus, is interlocutory in nature.” Moody, 867 So.2d at 275 (¶ 3).

¶ 16. Likewise, in Anderson v. Britton & Koontz Bank, N.A., 55 So.3d 1130, 1132 (¶ 10) (Miss.Ct.App.2011), we held that “[wjithout a Rule 54(b) certification, [an] order granting summary judgment to only one of the two defendants is interlocutory.” (Citing M.R.C.P. 54(b) cmt.); see also Clausell, 122 So.3d at 827 (¶ 7) (finding no appellate jurisdiction, as the circuit court’s order granted summary judgment to only one of three parties “without a Rule 54(b) certification”).

¶ 17. Since the circuit court’s orders did not dispose of all of the claims against all of the parties and was not certified as a final judgment under Rule 54(b), the order is interlocutory.

¶ 18. Accordingly, we dismiss the appeal for lack of jurisdiction.

¶ 19. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: CARLTON, J.,

text:
    Henry J. LANERI, III, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00941-COA.
    Court of Appeals of Mississippi.
    June 24, 2014.

      Henry J. Laneri III, appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before GRIFFIS, P.J., ISHEE, CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. On January 30, 2013, Henry J. Laneri III filed a motion to vacate, reduce, and/or set aside his sentence stemming from his guilty plea for possession of a controlled substance, claiming that his plea was unintelligently made because he thought he would be eligible for parole after serving one-quarter of his sentence. The Hancock County Circuit Court treated the motion as a motion for post-conviction relief (PCR) and dismissed the motion, finding the decision of the Mississippi Department of Corrections (MDOC) Administrative Remedy Program (ARP) was not capricious or arbitrary. See URCCC 5.03. Laneri now appeals. Finding no error, we affirm the trial court’s judgment.

FACTS

¶ 2. In March 1997, Laneri pled guilty to the charges of burglary of a dwelling and burglary, and he was sentenced to seven years on each charge, with the sentences to run concurrently with each other, for a total of seven years in the custody of the MDOC. Laneri was released on earned release supervision on November 16, 2001, and he was discharged from the MDOC on May 11, 2003, due to the completion of his sentence.

¶ 3. On June 13, 2011, Laneri pled guilty to possession of a controlled substance. He was sentenced to serve eight years in the MDOC’s custody.

¶ 4. Laneri filed a request for a parole-eligibility date with the MDOC through its ARP. On July 23, 2012, the MDOC denied his request, explaining that Laneri was not eligible for parole due to his prior conviction of burglary of a dwelling. Shortly thereafter, Laneri filed his second ARP request, which was denied by the MDOC for similar reasons.

¶ 5. Laneri sought judicial review of the MDOC’s ARP decision in the trial court. After reviewing the record, the trial court affirmed the MDOC’s decision on January 15, 2013, finding the decision rendered by the MDOC “was not arbitrary or capricious, was supported by substantial evidence, was not beyond the powers of the ARP, and was not in violation of the rights of [Laneri].”

¶ 6. Laneri filed an appeal of this decision with the Mississippi Supreme Court on May 8, 2013. The supreme court dismissed Laneri’s appeal due to his failure to pay the costs of the appeal. Laneri filed a motion to reinstate his appeal, which the supreme court denied on May 14, 2013, after finding that Laneri had not paid the costs of the appeal.

¶ 7. Shortly after the trial court’s dismissal of his ARP decision, Laneri filed a motion to vacate, reduce, and/or set aside his sentence in the trial court on January 30, 2013, arguing that it was his understanding that by pleading guilty, he would be eligible for parole after serving one-quarter of his sentence because his two prior burglary convictions were considered “non-violent crimes.” Laneri charged that the MDOC was “processing his prior nonviolent crime of burglary of an unoccupied dwelling as a violent burglary of an occupied dwelling, which it wasn’t.”

¶ 8. The trial court denied the motion on April 17, 2013, citing Robinson v. State, 964 So.2d 609, 613 (¶ 16) (Miss.Ct.App.2007), and explaining that parole is a matter “of legislative grace and not [a] consequence[ ] of a guilty plea.” The trial court also found:

Laneri was informed of the charge against him, the effect of his guilty plea, the rights he waived by pleading guilty, and the possible sentence he could receive. Moreover, Laneri indicated he was satisfied with his attorney and offered his plea freely and voluntarily.

¶ 9. In response to Laneri’s claim of illegal detention and false imprisonment as a result of the denial of his parole eligibility, the trial court observed that Laneri was denied parole eligibility due to a previous burglary charge. We acknowledge that the record on appeal contains Laneri’s 1997 order of conviction for the offense of burglary of a dwelling and for the offense of burglary. We further acknowledge that the record shows Laneri pled guilty to both of these burglary offenses in 1997, and that the statute in effect for burglary of a dwelling when Laneri pled guilty required occupancy to constitute a dwelling, even though the statute required no evidence that anyone be in the dwelling at the time of the burglary. See Miss.Code Ann. § 97-17-23 (Rev.2006).

¶ 10. In its order denying Laneri’s motion, the trial court also explained that if Laneri sought to challenge his prior burglary sentence and conviction, he must file the necessary motion in the appropriate cause number. The trial court held that since Laneri’s eight-year sentence was within the statutory parameters for possession of a controlled substance, then Laneri’s sentence was not unconstitutional.

¶ 11. Laneri now appeals, claiming that he is being deprived of his constitutional rights by the denial of a parole-eligibility date. Upon review, finding no error, we affirm the trial court’s dismissal of Lan-eri’s PCR motion.

STANDARD OF REVIEW

¶ 12. “We will not disturb the decision of an administrative agency, such as the MDOC, unless the decision is unsupported by substantial evidence, arbitrary or capricious, beyond the agency’s scope or powers, or violative of the constitutional or statutory rights of the aggrieved party.” Taylor v. Petrie, 41 So.3d 724, 727 (¶ 8) (Miss.Ct.App.2010) (citations and internal quotation omitted). However, we apply “a de novo standard of review to questions of statutory interpretation.” Finn v. State, 978 So.2d 1270, 1272 (¶ 6) (Miss.2008).

¶ 13. We acknowledge that Laneri previously appealed this same issue to the supreme court, and the supreme court dismissed his appeal in July 2013 for failure to pay costs. Therefore, res judicata bars relitigation of issues previously determined in that prior case, where the trial court determined that the decision of the MDOC was not arbitrary or capricious, and affirmed the decision of the MDOC.

DISCUSSION

¶ 14. Laneri argues that the trial court erroneously denied him a parole-eligibility date because of his prior burglary-of-a-dwelling conviction, which Laneri asserts is a violation of his constitutional rights. Laneri admits that he was convicted of burglary of a dwelling and burglary, but he argues that neither of these offenses constitutes a violent crime. Laneri further asserts that his court-appointed counsel assured him that he would be eligible for release on parole after serving one-fourth of his eight-year sentence.

¶ 15. Referring to the MDOC’s ARP decision, Laneri asserts that the MDOC “is currently denying [him] his legally entitled parole-eligibility date due to a prior non-violent conviction in violation of many state and federal statutes, constitutional rights, protections, rules, amendments, etc.” Laneri also claims that he exhausted his in-house ARP appeals in attempts to receive a parole-eligibility date. Mississippi Code Annotated section 47-7-3(3) (Rev. 2011) clarifies that the state parole board, and not the sentencing trial court, possesses the exclusive responsibility to grant parole or deny parole. See Mitchell v. State, 561 So.2d 1037, 1039 (Miss.1990) (The grant or denial of parole by the parole board “is independent of the circuit court’s sentencing authority.”). Additionally, as explained in the trial court’s order, “early release and parole are matters of legislative grace and are not consequences of a guilty plea.” Robinson, 964 So.2d at 613 (¶ 16); see also McGovern v. Miss. Dep’t of Corr., 89 So.3d 69, 71 (¶ 6) (Miss.Ct.App.2011).

¶ 16. Laneri provided waivers of indictments and arraignments as exhibits to his appellate brief which reflect that he pled guilty to two charges of burglary, one of them for burglary of a dwelling, and these facts are undisputed by the State. See Terry v. State, 755 So.2d 41, 48 (¶ 6) (Miss.Ct.App.1999); Wilkerson v. State, 724 So.2d 1089, 1092-93 (¶¶ 17-18) (Miss.Ct.App.1998). To satisfy the elements of burglary of a dwelling pursuant to section 97-17-28, the statute applicable when Lan-eri pled guilty, the burglarized building must have been occupied in order to constitute a dwelling, although the statute does not require proof that someone was home at the time of the burglary. See Miss.Code Ann. § 97-17-31 (Rev.2006) (definition of dwelling); Edwards v. State, 800 So.2d 454, 461-62 (¶ 11) (Miss.2001) (reviewing precedent that addressed required length of occupancy and criteria required to constitute a dwelling). However, he pled guilty to the offense burglary of a dwelling. Since occupancy is a required element for the offense of burglary of a dwelling, and since Laneri pled guilty to such offense, his claim that the dwelling was not occupied therefore lacks merit, lacks evidentiary foundation, and is barred by res judicata.

¶ 17. Laneri previously submitted this issue for review to the MDOC ARP, and the MDOC ARP’s determination was then affirmed by the trial court. Since Laneri failed to appeal that decision, this issue may not be relitigated. We also recognize that the parole-eligibility statute, section 47-7-3(3), provides that a person convicted of burglary of an occupied dwelling is ineligible for parole.

¶ 18. Regarding Laneri’s claim of ineffective assistance of counsel, the State argues that the facts of the case before us resemble those of Edge v. State, 962 So.2d 81, 85-86 (¶ 19) (Miss.Ct.App.2007), where a petitioner alleged that his attorney gave him erroneous advice about parole eligibility. After examining the record, this Court held:

[T]he record is void of any evidence to corroborate what the substitute counsel told Edge, beyond Edge’s implicit assertions in his PCR motion. Edge did offer three affidavits, which all state that the affiants believed that the substitute counsel did not properly represent Edge, but none of the affidavits attest to what the counsel actually told Edge. Absent additional proof, we are unable to say that the substitute counsel was derelict in his duties while representing Edge.

Id. The State claims that like the defendant in Edge, Laneri presented nothing but his own affidavit to support his claim that his counsel allegedly gave him incorrect advice about his parole eligibility. We have held that when making a claim of ineffective assistance of counsel, “the defendant must demonstrate that his counsel’s performance was deficient^] and, but for the deficient performance, a different result would likely have occurred.” Id. at 84 (¶ 11) (citing Donnelly v. State, 841 So.2d 207, 211 (¶ 8) (Miss.Ct.App.2003)); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 19. In his brief, Laneri argues that he knew he would undoubtedly be eligible for parole after serving twenty-five percent of the eight-year sentence imposed on him because the offense was nonviolent according to section 47-7-3. Laneri also claims his attorney confirmed this information, but Laneri provides no evidence to corroborate his claim of what his attorney confirmed or advised. Without evidence to corroborate Laneri’s assertion of erroneous advice, he fails to provide any showing of deficiency for us to review. See Edge, 962 So.2d at 85-86 (¶ 19).

¶ 20. Accordingly, we affirm the trial court’s dismissal of Laneri’s PCR motion.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, MAXWELL, FAIR AND JAMES, JJ., CONCUR. BARNES AND ROBERTS, JJ., CONCUR IN RESULT ONLY.

      . See Miss.Code Ann. § 47-5-803 (Rev.2011).

      . However, we recognize that an inmate may contest matters such as parole eligibility as an original action in circuit court. McGovern v. Miss. Dep't of Corr., 89 So.3d 69, 71 (¶ 6) (Miss.Ct.App.2011); Lattimore v. Sparkman, 858 So.2d 936, 938 (¶ 7) (Miss.Ct.App.2003).

      . In a case occurring at about the same time period as the case before us, this Court in Terry instructively explained that the defendant in that case was properly sentenced under section 97-17-23 for burglary of a dwelling, rather than the former section 97-17-19, burglary of inhabited dwelling, which was repealed. Terry, 755 So.2d at 43 (¶ 6). The offense in Terry occurred in 1997. Id. at 42 (¶ 2). But see Miss.Code Ann. § 97-17-33 (burglary of non-dwelling).

      . The parole-eligibility statute, Mississippi Code Annotated 47-7-3(l)(h), provides that parole eligibility is for nonviolent offenses and excludes from eligibility the offense of burglary of an inhabited dwelling. This particular offense of burglary of an inhabited dwelling does not exist now since its repeal in 1996. Upon its repeal, the Legislature enacted section 97-17-23, establishing the offense of burglary of a dwelling.

      . Miss.Code Ann. § 97-17-31 (defining dwelling); Edwards, 800 So.2d at 461-62 (¶ 11) (reviewing past precedents defining criteria and length of occupancy necessary to constitute a dwelling); Wilkerson, 724 So.2d at 1092-93 (¶¶ 17-18).

      . Our supreme court’s decision in Edwards, 800 So.2d at 461-62 (¶ 11), provides the following review of precedent defining dwelling:
      While this Court has defined a dwelling in terms of the time period of habitation of the building and [the] owner’s intent, there appear[] to be no prior cases determining whether a utility shed with a common roof is considered part of the dwelling. See Gillum v. State, 468 So.2d [856,] 859 [ (Miss.1985) ] (weekend home where owners spent every second or third weekend and had food, clothing and other necessities was a dwelling); Course v. State, 469 So.2d 80 [(Miss.1985)] (home was dwelling house even though victim lived in nursing home for the past few months where she kept personal possessions in the home and intended to return to the home if her health improved); Washington v. State, 753 So.2d 475 (Miss.Ct.App.1999) (building that owner occupied for ten to fifteen weeks a year to visit family in Mississippi was a dwelling); Wilkerson v. State, 724 So.2d 1089 (Miss.Ct.App.1998) (house was dwelling where owner lived four months a year, received mail and kept personal items). But see Pool v. State, 764 So.2d 440 (Miss.2000) (farmhouse not considered dwelling where owner moved to an apartment four years prior to alleged burglary and there was no evidence that owner intended to return to the farm); Woods v. State, 186 Miss. 463, 191 So. 283 (1939) (newly erected home intended as a dwelling but not yet occupied is not considered a dwelling house).


author: IRVING, P.J.,

text:
    Albert EDMOND a/k/a Albert Edmonds, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00768-COA.
    Court of Appeals of Mississippi.
    June 24, 2014.

      Albert Edmond, appellant, pro se.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before IRVING, P.J., BARNES and FAIR, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Albert Edmond appeals the Hinds County Circuit Court’s denial of his motion for post-conviction relief (PCR). Edmond argues that an intervening decision exempts his PCR motion from the time and successive-writ bars and that the circuit court unlawfully revoked his parole.

¶ 2. Finding that the circuit court lacked jurisdiction to consider Edmond’s PCR motion, we vacate the circuit court’s judgment and dismiss this appeal.

FACTS

¶ 3. On March 7, 1974, a Hinds County jury found Edmond guilty of forcible rape. The circuit court sentenced Edmond to life imprisonment. The Mississippi Supreme Court affirmed Edmond’s conviction and sentence. Edmond v. State, 312 So.2d 702, 706 (Miss.1975). On June 16, 1982, Edmond was released on conditional parole. One of the conditions of Edmond’s parole was that he would “live and remain at liberty without violating the law.” According to a parole-violation report issued by Edmond’s parole field supervisor, on July 1,1982, Edmond

entered the home of Bernice Rivers ... by taking the screen off the bathroom window at 5:00 a.m. Records further reflect[ ] that the defendant!,] dressed in only a tee shirt[,] grabbed ... [an eighteen-year-old female] and attempted to pull her clothes off. Records further indicated that [the eighteen-year-old female] turned the light on[,] ... hit the defendant!,] and ran out the room.

¶ 4. The Cleveland Police Department arrested Edmond on July 3, 1982, and charged him with breaking and entering an occupied dwelling. Instead of standing trial for breaking and entering an occupied dwelling, Edmond pleaded guilty to a reduced charge of malicious trespassing and received a sentence of six days in jail. The Mississippi Department of Corrections (MDOC) issued a retake warrant, and Edmond signed a “waiver of [the] right to [a] preliminary parole[-]revocation hearing.” On August 2, 1982, MDOC held a parole-revocation hearing, after which the Probation and Parole Board revoked Edmond’s parole.

¶ 5. In 1999, Edmond filed a petition for a writ of habeas corpus in the Greene County Circuit Court, alleging that MDOC unlawfully revoked his parole by not affording him the proper revocation procedure, which the court denied without an evidentiary hearing. Edmond v. Miss. Dep’t of Corr., 783 So.2d 675, 676 (¶ 1) (Miss.2001). Edmond appealed, and our supreme court reversed the circuit court’s judgment and remanded the case for a determination of whether Edmond received a proper parole-revocation hearing. Id.

¶ 6. On remand, the Circuit Court of Sunflower County found that “[Edmond] did in fact violate the terms of his parole by being convicted in the Justice Court of Bolivar County of [m]alicious [t]respass. In addition, [the][c]ourt [found] that [Edmond] received his due process rights and all proper revocation procedures were followed prior to his parole revocation.” Edmond v. State, 991 So.2d 588, 589 (¶ 4) (Miss.2008). The circuit court dismissed Edmond’s petition. Thereafter, Edmond requested an out-of-time appeal, which the court denied. Id. at (¶ 5). Edmond appealed the circuit court’s denial of his motion for an out-of-time appeal and argued, among other things, that his parole was unlawfully revoked. Id. at 589-90 (¶ 6). The supreme court determined that Edmond was not entitled to an out-of-time appeal. Id. at 590 (¶ 6). As this issue was dispositive, the supreme court declined to address the issue regarding Edmond’s parole revocation. Id.

¶ 7. Edmond filed a PCR motion on May 31, 2011, in the Hinds County Circuit Court, alleging that his indictment was defective. The circuit court denied Edmond’s motion, finding that the motion was both time-barred and without merit. Edmond appealed and argued that his PCR motion was excepted from the time-bar and that his indictment was defective. Edmond v. State, 134 So.3d 355 (¶ 2) (Miss.Ct.App.2013). This Court agreed with the circuit court that Edmond’s PCR motion was time-barred and barred as a successive writ. Id. at 356 (¶¶ 4-5). Additionally, this Court determined that Edmond had not asserted any grounds that would serve as an exception to the procedural bars. Id. at 357 (¶ 7). Moreover, though apparently not addressed by the circuit court as a reason for denying Edmond’s PCR motion, this Court noted that Edmond had not received “permission from the Mississippi Supreme Court to file his PCR petition in the trial court.” Id. at (¶8).

¶ 8. Edmond filed the instant PCR motion on November 8, 2011, and entitled the motion “Petition for Writ of Habeas Corpus/Motion to Vacate Revocation of Parole.” The circuit court treated Edmond’s motion as one requesting post-conviction relief and denied the motion, finding that it was time-barred and successive-writ barred.

¶ 9. Additional facts, as necessary, will be related in the analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 10. Appellate courts will not disturb a circuit court’s denial of a PCR motion unless the court’s decision is clearly erroneous. Jackson v. State, 965 So.2d 686, 688 (¶ 6) (Miss.2007). “However, [when] questions of law are raised, ... the applicable standard of review is de novo.” Id. (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)). “Jurisdictional matters are [questions] of law; thus, the standard of review is de novo.” Havard v. State, 83 So.3d 452, 453 (¶4) (Miss.Ct.App.2012).

¶ 11. The Uniform Post-Conviction Collateral Relief Act (UPCCRA) requires the petitioner, if his conviction and sentence have been affirmed on appeal, to obtain permission from the Mississippi Supreme Court to file a PCR motion in the circuit court. Miss.Code Ann. § 99-39-7 (Supp. 2018). As previously mentioned, our supreme court affirmed Edmond’s conviction and sentence in 1975. Edmond, 312 So.2d at 706. Therefore, before Edmond could file a PCR motion in the circuit court, he needed to obtain permission from our supreme court to do so.

¶ 12. Although not discussed by the circuit court in its order denying Edmond’s PCR motion, the record is devoid of an order from our supreme court granting Edmond permission to file his PCR motion in the circuit court. We have held:

As to post-conviction-relief motions brought after an unsuccessful direct appeal of a criminal conviction, the failure of the movant to obtain the prior permission of the supreme court to file the motion as set out in [Mississippi Code Annotated] section 99-39-27 [ (Supp. 2013) ] (leave to proceed in the [circuit] court) deprives the circuit court — and, necessarily, this Court — of authority to reach the merits of the motion.

Williams v. State, 98 So.3d 484, 487 (¶ 9) (Miss.Ct.App.2012). Accordingly, we find that the circuit court lacked jurisdiction to consider the merits of Edmond’s motion because Edmond failed to receive permission from the supreme court to file his PCR motion in the circuit court. It follows then that we, likewise, lack jurisdiction to consider Edmond’s appeal. See Cortez v. State, 9 So.3d 445, 446 (¶ 6) (Miss.Ct.App.2009).

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS VACATED, AND THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . On remand, venue was transferred from Greene County to Sunflower County.


text:
    Frederick D. SMALL a/k/a Frederick Deaine Small a/k/a Frederick Dewaine Small a/k/a Frederick Small, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00989-COA.
    Court of Appeals of Mississippi.
    June 24, 2014.

      Frederick D. Small, appellant, pro se.
    Office of the Attorney General by Elliott George Flaggs, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   BARNES, J.,

for the Court:

¶ 1. Frederick Small was convicted in DeSoto County Circuit Court on his guilty plea to burglary of a dwelling and was sentenced on February 2, 2010, as a habitual offender. The judgment was filed on February 11, 2010. Small’s motion for post-conviction relief (PCR), dated February 12, 2013, was filed of record on February 13, 2013. The circuit court dismissed the motion, both as time-barred under Mississippi Code Annotated section 99-39-5(2) (Supp.2013), and as substantively without merit.

¶ 2. Small has appealed the circuit court’s order of dismissal. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Small was indicted on November 14, 2008, for conspiracy to commit burglary of a dwelling in violation of Mississippi Code Annotated section 97-1-1 (a) (Rev. 2006), burglary of a dwelling in violation of Mississippi Code Annotated section 97-17-23 (Rev.2006), and attempted larceny in violation of Mississippi Code Annotated section 97-1-7 (Rev.2006).

¶ 4. On April 29, 2009, the State filed a motion to amend the indictment to reflect Small’s habitual-offender status under Mississippi Code Annotated section 99-19-81 (Rev.2007). Although defense counsel objected to the motion’s timeliness, no objection was made to the proof of the prior convictions. The circuit court granted the motion after a hearing on June 3, 2009, and the indictment was amended to reflect Small’s prior convictions for: (1) burglary of a dwelling in cause number CR 2001-35BT in the Circuit Court of Tate County, Mississippi, with a sentence imposed on June 6, 2001, of twelve years to serve, and five years of post-release supervision, and (2) burglary of a dwelling in cause number CR 2001-25BP1 in the Circuit Court of Panola County, Mississippi, with a sentence imposed on September 10, 2001, of twelve years to serve, and five years of post-release supervision.

¶ 5. As a result of a plea bargain, Small pleaded guilty to the burglary charge as a habitual offender on August 5, 2009, in exchange for a recommendation of a sentence with a cap of eighteen years. In the petition to enter a guilty plea, signed by Small, he admitted to the two prior convictions and that they subjected him to sentencing as a habitual offender. He further attested at the guilty-plea hearing that everything in his petition was true and correct. The circuit judge asked Small if he understood that he was “pleading as a 99-19-81 habitual offender”; Small said that he understood. The judge then asked if Small had any objection, and Small said, “No, sir.”

¶ 6. However, on September 28, 2009, Small filed a pro se motion to withdraw his guilty plea and to discharge his counsel. On January 27, 2010, Small filed a pro se motion to discontinue sentencing, dismiss counsel, and dismiss the pending charges. The circuit court took up the motions at the beginning of Small’s sentencing hearing on February 2, 2010, and denied them. Prior to the circuit court’s imposition of Small’s sentence, the State moved to incorporate into the record the documents from the hearing on the motion to amend the indictment concerning the two prior felony convictions. The circuit court asked if the defense had any objections, and there were none. After making the prior convictions part of the record, the circuit court sentenced Small, consistently with the plea agreement, to eighteen years in the custody of the Mississippi Department of Corrections as a habitual offender, to be followed by seven years of post-release supervision with four years of non-reporting supervision. The judgment was filed on February 11, 2010.

STANDARD OF REVIEW

¶ 7. A circuit court’s dismissal of a PCR motion will not be disturbed on appeal “unless it is clearly erroneous.” Holder v. State, 69 So.3d 54, 55 (¶ 4) (Miss.Ct.App.2011) (citing Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004)). We review issues of law de novo. Id. To be successful on appeal, the movant must: “(1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive.” Buckley v. State, 119 So.3d 1171, 1173 (¶ 3) (Miss.Ct.App.2013) (citing Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999)).

JURISDICTION

¶ 8. We first must consider our jurisdiction over this appeal. Small filed a PCR motion on February 13, 2013. The circuit court dismissed the motion on May 10, 2013. However, Small did not file his notice of appeal until June 14, 2013. Consequently, Small’s appeal may not have been timely, as it was not filed within thirty days of the circuit court’s judgment, as required by Mississippi Rule of Appellate Procedure 4(a). However, “[t]he prison-mailbox rule states that in pro se post-conviction relief proceedings, the prisoner’s motion is considered delivered for filing when the prisoner gives the documents to prison officials for mailing.” Lott v. State, 115 So.3d 903, 907 (¶ 10) (Miss.Ct.App.2013) (citing Sykes v. State, 757 So.2d 997, 1000-01 (¶ 14) (Miss.2000)).

¶ 9. Small’s notice-of-appeal form is not dated, except for the circuit court’s file stamp of June 14, 2013. His contemporaneously filed affidavit of poverty and certificate of compliance, however, were both dated June 6, 2013, within the thirty-day deadline. Although the record does not indicate when Small delivered his documents to prison officials for mailing, his notice of appeal was received by the circuit court only four days late. Therefore, since it is not unlikely that the documents were delivered to prison authorities within the time frame allowed by Rule 4(a), we exercise our discretion under Mississippi Rule of Appellate Procedure 2(c) to suspend the thirty-day requirement to the extent Small’s filing may have been untimely. See Whatley v. State, 123 So.3d 461, 466 (¶ 9) (Miss.Ct.App.2013) (applying Rule 2(c) to excuse possible late filing where stamp-filed notice of appeal was five days late but contemporaneously filed documents were dated within the deadline); Campbell v. State, 126 So.3d 61, 64 (¶ 7) (Miss.Ct.App.2013) (possibly one day late filing excused under Rule 2(c)). Accordingly, we find jurisdiction proper and address the appeal on the merits.

DISCUSSION

¶ 10. In this appeal, Small argues: (1) his motion is not time-barred because procedural bars do not apply to illegal sentences; (2) his habitual-offender sentence was illegal because there was no bifurcated hearing and the amended indictment listed only dates of sentence and not dates of conviction for his prior convictions; (3) he was denied the right to confront the authors of the indictments and judgments of conviction contained in his prison file (pen-pack); and (4) the cumulative effect of the errors constituted a constitutional deprivation.

1. Procedural Bar to the PCR Motion

¶ 11. Under the Mississippi Uniform Post-Conviction Collateral Relief Act (UP-CCRA), where a petitioner has pleaded guilty, a PCR motion must be filed within three years after entry of the judgment of conviction. Miss.Code Ann. § 99-39-5(2).

¶ 12. Small acknowledges that his PCR motion, dated February 12, 2013, and filed February 13, 2013, was filed more than three years after his sentencing and the court’s judgment. Small does not claim that the prison-mailbox rule applies, since the motion itself is dated after the three-year deadline. Rather, citing Rowland v. State, 42 So.3d 503, 506-08 (¶¶ 7-12) (Miss.2010), he claims that the procedural bar is inapplicable, as his claim involves a violation affecting his fundamental constitutional rights.

¶ 13. The right to be free from an illegal sentence is probably the most frequently recognized of these exceptions. See Jones v. State, 119 So.3d 323, 326 (¶ 6) (Miss.2013). Ordinarily an illegal sentence in this context is one that “does not conform to the applicable penalty statute.” Foreman v. State, 51 So.3d 957, 962 n. 22 (Miss.2011) (internal quotations omitted).

¶ 14. If Small’s habitual-offender sentence was illegal, then the circuit court would have improperly applied the three-year procedural time-bar. As we discuss hereafter, however, the sentence was not illegal, and the bar was properly applied in this case.

II. Illegal Habitual-Offender Sentence

¶ 15. Small claims that his habitual-offender sentence is illegal because he was not given a separate hearing as required by Uniform Rule of Circuit and County Court 11.03 to challenge his prior convictions and because there was proof only of the dates he was sentenced and not the dates he was convicted.

A. Lack of Bifurcated Hearing

¶ 16. Rule 11.03(3) provides: “If the defendant ... enters a plea of guilty on the principal charge, a hearing before the court without a jury will then be conducted on the previous convictions.” Small claims that his constitutional rights were violated because he was not given a separate bifurcated hearing to establish his status as a habitual offender.

¶ 17. The Legislature, in enacting section 99-19-81, has determined that enhanced punishment is appropriate for repeat offenders. The purpose of Rule 11.03 is to ensure that a jury, before deciding a defendant’s guilt or innocence, is not informed of the defendant’s prior criminal record so as not to be improperly influenced in its verdict. See Edwards v. State, 75 So.3d 73, 76 (¶ 7) (Miss.Ct.App.2011). Only after guilt is established does the prior criminal record become relevant. The purpose of Rule 11.03(3) is to give the defendant an opportunity to challenge the fact of his prior convictions in a setting separate from the guilt-determination phase. Where a defendant freely admits those prior convictions, the purpose of Rule 11.03 has been met.

Generally, to sentence a defendant as a habitual offender, the State must prove the prior offenses by competent evidence, and the defendant must be given a reasonable opportunity to challenge the prosecution’s proof. However, where the defendant enters a plea of guilty and admits those facts which establish his habitual status, the State has met its burden of proof.

Wilkins v. State, 57 So.3d 19, 26 (¶ 23) (Miss.Ct.App.2010) (emphasis added and internal citations omitted). “[A] petitioner’s status as a habitual offender can be established at the entry of a guilty plea, making it unnecessary to have a separate bifurcated hearing.” Loden v. State, 58 So.3d 27, 29 (¶ 8) (Miss.Ct.App.2011) (citing Keyes v. State, 549 So.2d 949, 951 (Miss.1989)).

¶ 18. Consequently, no separate hearing on Small’s habitual-offender status was required. Even if a separate hearing were considered mandatory, we find that both the guilty-plea hearing and the sentencing hearing gave Small an opportunity to object to the fact of his prior convictions. There is no merit to Small’s argument.

B. Dates of Conviction Versus Dates of Sentence

¶ 19. Small argues that the indictment showed the dates he was sentenced, but not the dates he was adjudged guilty. As a result, he claims that there was no proof of his prior convictions, and he should not have been sentenced as a habitual offender. Rule 11.03(1) provides in pertinent part: “The indictment must allege with particularity the nature or description of the offense constituting the previous convictions, the state or federal jurisdiction of any previous conviction, and the date of judgment.”

¶ 20. As to the proof of his prior convictions, the State’s motion to amend the indictment clearly stated the offenses, cause numbers, dates that sentences were imposed, and the terms of the sentences imposed for Small’s prior convictions. Certified copies of the indictments and sentencing orders were submitted into the record at the hearing to amend the indictment and incorporated into the sentencing-hearing record. Further, Small negotiated for a guilty plea as a habitual offender and a recommended sentence with a cap of eighteen years. He did not object to the introduction of the certified copies of the documents relating to the prior convictions at the hearing on amending the indictment or at his sentencing hearing.

¶ 21. This was sufficient to provide notice to Small of the prior crimes used to charge him as a habitual offender and an opportunity to challenge them. In Benson v. State, 551 So.2d 188 (Miss.1989), the Mississippi Supreme Court held that the failure of an indictment to list the date of conviction was not fatal. The court noted:

While it is correct that the date of the judgment is not specifically stated in the indictment, all of the information that is contained, and specifically the cause number, afforded the defendant access to the date of the judgment. This Court holds that information pertaining to the date of the judgment was substantially set forth in the indictment and that suf-fícient information was afforded the defendant to inform him of the specific prior convictions upon which the State relied for enhanced punishment to comply with due process. The purpose of the above rule is fulfilled....

Id. at 196; see also Hill v. State, 132 So.3d 1069, 1072-73 (¶¶ 9-11) (Miss.Ct.App.2014) (central concern is not technical pleading, but sufficiency of the notice); Hills v. State, 101 So.3d 691, 693 (¶ 7) (Miss.Ct.App.2012) (Notice of the nature of the crimes, the cause numbers, the sentencing dates, and the length of the sentence was “more than sufficient to put [the defendant] on notice of the prior crimes used to charge him as a habitual offender.”). This issue is without merit.

III. Confrontation Regarding Pen-Pack Documents

¶22. Small complains that the records were introduced through his prison file (pen pack) and that this procedure denied him his constitutional right to confront and challenge the accuracy of the records. This issue was waived by Small’s failure to object (and actually agreeing) to the introduction of the documents before the circuit court. See Walker v. State, 913 So.2d 198, 217 (¶49) (Miss.2005) (“Failure to raise an issue at trial bars consideration on an appellate level”).

¶ 23. Even if the issue was not waived, it is without merit. In Grim v. State, 102 So.3d 1073 (Miss.2012), our supreme court set out the parameters of the right to confrontation:

The Sixth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution guarantee a criminal defendant the right to confront and cross-examine the witnesses against him. U.S. Const, amend. VI; Miss. Const, art. 3, § 26 (1890). The United States Supreme Court has held that the Sixth Amendment Confrontation Clause bars the admission of “testimonial statements” made by a witness who does not appear at trial, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him. Crawford v. Washington], 541 U.S. 36, 53-54, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Though no exhaustive list defining testimonial statements exists, “a document created solely for an ‘evidentiary purpose’ ranks as testimonial.” Bullcoming v. [New Mexico ], — U.S. -, 131 S.Ct. 2705, 2717, 180 L.Ed.2d 610 (2011) (quoting Melendez-Diaz v. Mass[achussetts ], 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009)).

Grim, 102 So.3d at 1078 (¶ 12) (parallel citations omitted).

¶ 24. The fatal flaw in Small’s argument is that the certified copies of the indictments and sentencing orders, of which he complains, are not documents created solely for an evidentiary purpose. They were created for the administrative purpose of tracking criminal proceedings, quite different, for example, from laboratory reports declaring blood-alcohol content or a substance to be cocaine. We recently addressed this precise issue in Vanwey v. State, 2013-CP-00818-COA, — So.3d -, 2014 WL 2058102 (Miss.Ct.App. May 20, 2014):

Vanwey argues that Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), is an intervening Supreme Court decision, and based on its holding, the documents used to prove her prior convictions for her habitual-offender status are testimonial. Therefore, Vanwey claims, the State’s failure to introduce testimony from the witness who certified the documents deprived her of her right to confrontation and invalidated the enhanced portion of her sentence. A document is testimonial when it is created for the sole purpose of the State’s use as evidence against the defendant. Grim v. State, 102 So.3d 1073, 1078 (¶ 12) (Miss.2012). The cer-tifícate on the documents showing Van-wey’s prior crimes “indicates that the custodian of the records swore that the documents were true and correct copies, not that [Vanwey] actually committed any act.” Frazier v. State, 907 So.2d 985, 997 (¶ 42) (Miss.Ct.App.2005). We have held that self-authenticating records of a defendant’s prior convictions are not testimonial evidence, and do not trigger a defendant’s constitutional right to confront witnesses. Id. at 996 (¶ 36). Bullcoming does not address self-authenticating records of a defendant’s pri- or convictions. In fact, Bullcoming addresses a forensic laboratory report made by an analyst and used to prove a fact at a criminal trial. Clearly, the report was testimonial in nature. Bullcoming, 131 S.Ct. at 2717. The certified documents used to prove Vanwey’s prior convictions are not testimonial, and the holding in Bullcoming does not change that. Therefore, Bullcoming is not an intervening decision that excepts Van-wey’s PCR motion from the procedural bars.

Vanwey, — So.3d at -, 2014 WL 2058102, at *2 (¶¶ 10-11) (parallel citations omitted).

¶ 25. For the reasons expressed in Vanwey, we find Small’s complaint is without merit.

IV. Cumulative Error

¶ 26. Small listed “cumulative error” as an issue in his brief, but presents no argument concerning it. It is well-settled law that “if an appellant fails to support her allegation of error with argument or authority, this Court need not consider the issue.” Jordan v. State, 995 So.2d 94, 103 (¶ 14) (Miss.2008) (citations omitted). Small’s failure to cite any legal authority or evidence in the record to support his assignment of cumulative error constitutes a waiver of this issue. In any event, since there was no individual error, there can be no relief granted for cumulative error. See Harding v. State, 17 So.3d 1129, 1133 (¶ 13) (Miss.Ct.App.2009). We have found that the circuit court committed no error in dismissing Small’s PCR motion; therefore there can be no cumulative error. This issue is without merit.

¶ 27. Finding no error, we affirm the circuit court’s dismissal of Small’s PCR motion.

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

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

      . At the hearing, the State offered certified copies of the indictments and sentencing orders in those two cases. The defense counsel stated, in Small's presence, that they were aware of the convictions and had no objection to their being admitted as exhibits at the hearing.

      . The other two counts were remanded to the file.

      . Small appealed the denial of his motions. On appeal, he added challenges to his sentence. Since it was a direct appeal and Small pleaded guilty, this Court dismissed the appeal without prejudice for lack of appellate jurisdiction. See Small v. State, 81 So.3d 1179, 1181 (¶10) (Miss.Ct.App.2011); Miss.Code Ann. § 99-35-101 (Supp.2013) (prohibiting a direct appeal upon entry of a guilty plea).

      . Rule 2(c) allows for suspension of the appellate rules in the interests of justice.

      . The judgment was pronounced on February 2, 2010, and filed on February 11, 2010.

      . Small also argues that the decision in Bullcoming v. New Mexico, - U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), constitutes a recent intervening decision making his sentence illegal, thus surmounting the procedural bar pursuant to section 99-39-5(2)(a)(i). For reasons set out hereafter, we find that Bullcoming has no application to the issues raised by Small.