author: ROBERTS, J.,

text:
    Melvin Tyrone THORNTON a/k/a Melvin Thornton, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KP-01413-COA.
    Court of Appeals of Mississippi.
    Feb. 25, 2014.
    Rehearing Denied June 24, 2014.

      Melvin Tyrone Thornton, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Humphreys County Circuit Court found Melvin Tyrone Thornton guilty of murder. The circuit court sentenced Thornton to life in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Thornton appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Thornton’s conviction stems from events that took place in Belzoni, Mississippi, at approximately 1:00 a.m. on August 29, 2009. Thornton drove a red Ford F-150 pickup truck onto Robinson Street, where he encountered a crowd. Thornton’s progress was impeded by a ear that had been temporarily parked in the street so its headlights could be used to find a lost set of keys. Thornton argued with some members of the crowd after he angrily told people to “[g]et this raggedy-ass car out of the road.” Ultimately, Thornton shot and killed Kerra Williams while Williams was standing in the doorway of Williams’s mother’s house. Thornton fled, but he was arrested a few hours later.

¶ 3. Thornton pled “not guilty” and opted to go to trial. The prosecution called Jesse Thomas, who was then a freshman at Coahoma Community College, as its first witness. Thomas testified that “a guy named Bobby and a guy named Kiki” had been fighting before Thornton drove onto Robinson Street, but they had stopped fighting by the time that Thornton arrived. According to Thomas, there were “a lot” of people outside, and a number of them were using the headlights of a car that had been parked in the street to find a set of keys. Thomas testified that Thornton drove onto Robinson Street and ordered people to move the ear so he could continue driving. Thomas went on to testify that several people said that they intended to comply ■with Thornton’s demands.

¶ 4. Williams interceded and told Thornton that they were not looking for any trouble, but Thornton remained combative even after someone moved the car that had been blocking his path. Eventually, Thornton and Williams began to argue after Williams told Thornton to get back in his pickup truck and leave. Thornton eventually retrieved a pistol from his pickup truck, and several people separated Williams from Thornton. According to Thomas, Thornton had been “waving” the pistol and “pointing it” at Williams. Thomas physically walked Williams toward Williams’s mother’s house. While Williams was standing in the doorway of his mother’s house, Thornton shot Williams.

¶ 5. During cross-examination, Thomas testified that he had his back turned to Thornton at the time that Williams had been shot, so Thomas did not actually see Thornton shoot Williams. Thomas conceded that anyone could have shot Williams. But Thomas remembered that Thornton had been “waving his gun,” and Thornton left immediately after Williams had been shot. On redirect, Thomas testified that he did not see anyone else with a firearm at the time that Williams was shot. Thomas further testified that Thornton had said that he “didn’t care about killing anybody.” Thomas went on to testify that nothing had prevented Thornton from getting in the truck and leaving.

¶ 6. Next, the prosecution called Roderick Bickcom. Bickcom testified that Williams was his brother. Bickcom corroborated Thomas’s testimony that Thornton drove up and demanded that someone move the car that was parked in the street. Bickcom testified that Williams and Thornton began arguing. Bickcom, his uncle, and his brother tried to stop the argument. Thornton parked the pickup truck and got out of it. Williams asked Thornton to leave. Thornton went back to the pickup truck and armed himself with a pistol. Thornton then walked to Williams’s mother’s yard. People encouraged Williams to go into his mother’s house. Bickcom testified that Williams said: “[I]f you put that gun down, I’ll knock your bitch-ass out.” Bickcom saw Thornton shoot Williams as Williams was standing in the doorway to their mother’s house. Williams died a short time later.

¶ 7. Next, the prosecution called Dr. Adele Lewis. Dr. Lewis performed Williams’s autopsy. She testified as an expert in forensic pathology. Dr. Lewis explained that she works for a company in Nashville, Tennessee, that performs autopsies for the Mississippi Crime Laboratory. According to Dr. Lewis, the cause of Williams’s death was a gunshot wound to the chest.

¶ 8. After Dr. Lewis testified, the prosecution called Bobby Forman. Forman testified that he and Thornton are cousins. Forman was present when Thornton shot and killed Williams. In large part, For-man corroborated Thomas’s and Bickcom’s testimony. Forman testified that he had been encouraging Williams to go inside Williams’s mother’s house when Thornton shot Williams. The prosecution rested its case-in-chief after Forman testified.

¶ 9. After the prosecution rested its case-in-chief, Thornton testified in his own defense. According to Thornton, he was driving his father’s pickup truck on his way to visit his sister when he encountered a car that had been blocking the road. He asked a woman to move the car. She was going to comply, but Bickcom told her, “No, we don’t [have] to.” According to Thornton, a number of people surrounded his father’s pickup truck. Thornton testified that he got out of his father’s pickup truck after Williams tried to hit him. When someone tried to get into his father’s pickup truck, Thornton pushed that person out of the way and retrieved a pistol from the pickup truck. Thornton testified that he “tried to calm the situation down, [but people] were still trying to hit [him].” After someone moved the car out of the road, unidentified people were either “putting stuff on the back of [his father’s] truck” or “stealing] things from the truck.” Thornton returned to his father’s truck and told “them” to leave his father’s truck alone. Thornton went on to testify that “before [he] even noticed, [there] was somebody behind [him] that ... came up with a pistol and it went off.” Thornton clarified that someone had touched his shoulder, so he thought someone was trying to take his pistol from him. According to Thornton, he tried to jerk the pistol away, and it went off in the process. Thornton claimed that he did not shoot anyone, and he was only in the area to see his children. Later, Thornton testified that his pistol went off while he was aiming it up in the air. Thornton went to a friend’s house for the rest of the night. The next morning, he was walking down a street when he encountered authorities. Thornton testified that he “laid in the road.”

¶ 10. During its rebuttal, the prosecution called Deputy Ronnie Buchanan of the Humphreys County Sheriffs Department. Deputy Buchanan testified that Thornton was arrested at approximately 6:40 a.m. the same day that Williams had been shot. Thornton had been spotted in some bushes across the street from a hotel where his mother had been staying.

¶ 11. The prosecution also called Sharon Gamill as a rebuttal witness. Gamill testified that she was present when Thornton shot Williams. According to Gamill, Thornton had been “waving a gun in the air” before Williams was killed. Gamill also testified that Williams had been standing in the doorway of his mother’s home when Thornton shot him. Gamill explained that nothing prevented Thornton from getting in his father’s pickup truck and leaving the scene. Gamill further testified that Thornton shot Williams immediately after Williams said he would beat up Thornton if Thornton did not have a pistol. Gamill was approximately seven to eight feet away from Thornton when he shot Williams, and she personally saw him do so. Gamill described most of the people that were gathered on Robinson Street at that time as “high[-]sehool kids.”

¶ 12. As previously mentioned, the jury found Thornton guilty of murder. The circuit court sentenced Thornton to life in the custody of the MDOC. Thornton appeals. Because Thornton moved to dismiss his attorney and proceed pro se, he was not aided by counsel on appeal.

ANALYSIS

I. CAUTIONARY INSTRUCTION

¶ 13. Thornton claims that the circuit court erred when it refused his proposed cautionary instruction. Thornton fails to mention the designation that accompanied the jury instruction that he has in mind. Nevertheless, Thornton argues that he had a right to a cautionary instruction because some of the witnesses for the prosecution were related to Williams. Thornton also argues that the jury should have been instructed that some of the prosecution’s witnesses had been charged with “an offense or the same offense.” According to Thornton, “evidence in the record supported this request,” but he does not elaborate regarding what evidence supported it or where it appears in the record. However, Thornton claims that the circuit court erred when it refused each of his proposed jury instructions or incorporated them into one of the prosecution’s jury instructions.

¶ 14. “Jury instructions generally are within the discretion of the trial court.” Maye v. State, 49 So.3d 1124, 1129 (¶ 7) (Miss.2010). The Mississippi Supreme Court has instructed:

In determining whether error lies in the [giving] or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. There is no error if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law.

Id. Additionally, “a defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Id.

¶ 15. Thornton is mistaken regarding his claim that the circuit court refused all of his proposed jury instructions. The circuit court gave three of Thornton’s proposed jury instructions, which were designated as D-l, D-3, and D^4. Instruction D-l informed the jury that Thornton was presumed innocent. Instruction D-3 stated that the jury was prohibited from convicting Thornton upon mere suspicion or a preponderance of the evidence. And instruction D-4 stated that the jury may find reasonable doubt through a conflict in the evidence, a lack of evidence, or insufficiency of the evidence. Additionally, a portion of proposed jury instruction D-8, which addressed Thornton’s theory of the case, was incorporated into the prosecution’s jury instruction regarding self-defense. Thus, the jury was instructed regarding Thornton’s self-defense theory.

¶ 16. Proposed jury instruction D-2 stated that “if there is any fact or circumstance in this case susceptible of two interpretations, one favorable and the other unfavorable to the accused[,] and if after considering all the other facts and circumstances there is reasonable doubt, then you must resolve such doubt in favor of the accused.” The circuit court refused proposed jury instruction D-2 because it contained language that is only appropriate in a case that is based entirely on circumstantial evidence. “Circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such [a] fact does exist.” McInnis v. State, 61 So.3d 872, 875 (¶ 11) (Miss.2011) (quotations omitted). “A circumstantial-evidence instruction provides that the State must prove the defendant guilty beyond a reasonable doubt and to the exclusion of all reasonable hypotheses consistent with innocence.” Id. at 875-76 (¶ 11). If any evidence qualifies as “direct” evidence, a circuit court may refuse a circumstantial-evidence instruction. Id. at 876 (¶ 13). An example of direct evidence is “eyewitness testimony to the gravamen of the offense charged.” Id. “The term ‘gravamen’ is defined as the ‘substantial point or essence of a claim, grievance, or complaint.’ ” Id. (citation omitted).

¶ 17. Through eyewitness testimony, there was direct evidence that Thornton shot Williams at a time that Williams posed no physical threat to Thornton. Thornton withdrew proposed jury instruction D-5. And the circuit court found that proposed jury instructions D-6, D-7, D-9, and D-10 were redundant in that they were substantially addressed by other instructions. It was certainly within the circuit court’s discretion to do so.

¶ 18. Thornton also claims that the circuit court should have given “a cautionary instruction ... in regard[ ] to the testimony of the witnesses who had been charged with an offense or the same offense.” But Thornton never submitted such a proposed instruction. “A trial court has no duty to give unrequested instructions.” King v. State, 857 So.2d 702, 717 (¶ 24) (Miss.2003). Therefore, Thornton is procedurally barred from raising this issue for the first time on appeal. See id. Notwithstanding the procedural bar, there is no merit to his claim. Nothing in the record indicates that any of the witnesses had been charged with Williams’s murder. As for their status as members of Williams’s family, Thornton’s attorney addressed that when he cross-examined them. Thus, it was up to the jury to consider their status as family members when the jury weighed their credibility. There is no merit to this issue.

II. SUFFICIENCY OF THE EVIDENCE

¶ 19. Thornton argues that there was insufficient evidence that he acted with malice when he killed Williams. According to Thornton, the prosecution realized that it did not adequately prove he acted with malice because the prosecution withdrew its proposed jury instruction that included the element of malice. Thornton requests that this Court reverse the circuit court’s judgment and render a judgment of acquittal.

¶ 20. The Mississippi Supreme Court has stated:

[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for [a] directed verdict or for [a] judgment notwithstanding the verdict [ (JNOV) ], the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction. ... [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Should the facts and inferences considered in a challenge to the sufficiency of the evidence point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.

Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (internal citations and quotations omitted). However, this Court will determine that there was sufficient evidence to sustain the jury’s verdict if the evidence was “of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Id. (internal citations and quotations omitted).

¶ 21. Thornton is mistaken when he claims that the prosecution withdrew instruction S-2. He is correct that the prosecution submitted two proposed jury instructions on the elements of murder. Those proposed jury instructions were nearly identical. However, proposed jury instruction S-l omitted the malice element. Proposed jury instruction S-2 instructed the jury that it had to find, beyond a reasonable doubt, that Thornton acted with malice when he killed Williams. The prosecution withdrew proposed jury instruction S-l. The circuit court gave jury instruction S-2. Thus, the jury was instructed that it had to find that Thornton acted with malice.

¶ 22. Numerous eyewitnesses testified that Thornton shot Williams immediately after Williams said that he would beat up Thornton if Thornton did not have a pistol. Williams was not near Thornton when he said that. To the contrary, Williams was standing in the doorway to his mother’s house at the time that Thornton shot him. The supreme court has held that “mere words, no matter how provocative, are insufficient to reduce an intentional and unjustifiable homicide from murder to manslaughter.” Anderson v. State, 79 So.3d 501, 506 (¶ 18) (Miss.2012). The supreme court has also held that “[m]alice ... may be inferred from the use of a deadly weapon.” Id. at 507 (¶24). No one testified that Williams was armed, and no one testified that Williams posed an immediate threat to Thornton. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that Thornton was guilty of murder beyond a reasonable doubt. Accordingly, there was sufficient evidence to support the jury’s verdict. It follows that there is no merit to this issue.

III. WEIGHT OF THE EVIDENCE

¶ 23. Next, Thornton claims that the jury’s verdict is contrary to the overwhelming weight of the evidence. Thornton argues that the evidence was that he was defending himself while being attacked by a crowd. According to Thornton, “had [Williams] and his friends never had the public street blocked[ ] unlawfully, there would never have been an altercation at all....” Thornton requests that this Court reverse the circuit court’s judgment and remand his case for a new trial.

¶ 24. We are mindful that as we review the circuit court’s decision to deny a motion for a new trial, this Court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). The supreme court has further instructed that when reviewing a circuit court’s decision to deny a motion for a new trial:

The motion ... is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, ... the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Id. (footnote and internal citations and quotations omitted).

¶ 25. We discussed the evidence against Thornton in the previous issue. For brevity’s sake, there is no reason to reiterate it here. Suffice it to say, weighing the evidence in the light most favorable to the verdict, it would not sanction an unconscionable injustice to affirm Thornton’s conviction. Consequently, there is no merit to this issue.

IV.FAIR TRIAL

¶ 26. In this issue, Thornton claims he did not receive a fair trial. Thornton’s claim is based on the concept that the prosecution did not charge him with using or displaying a firearm, but the jury found him guilty of murder by using a firearm. Thornton also states that “if a person is engaged in criminal activity at the outset of the incident[,] then that person [has] the capability to enact great personal injury upon someone who intervenes or becomes involved.” We interpret Thornton’s statement to mean that he should be entitled to a presumption that he acted in self-defense because Williams was with a group of people who had temporarily moved a car into the street to use its headlights to find a set of keys.

¶ 27. Thornton cites no authority to support his argument. “When a party on appeal assigns an error without any citation to authority, [appellate courts] will deem this failure to cite any authority as a procedural bar.” Givens v. State, 967 So.2d 1, 8 (¶ 20) (Miss.2007). Accordingly, this issue is proeedurally barred.

V. RULE 403 BALANCING TEST

¶ 28. Next, Thornton claims that the circuit court should have conducted a balancing test under Rule 403 of the Mississippi Rules of Evidence. However, Thornton does not narrow his claim to any specific point in the record. Thornton raised a similar claim in his motion for a JNOV, but he likewise neglected to specify which evidence should have been subject to a Rule 403 balancing test. To be precise, Thornton’s motion for a JNOV simply stated that “[t]he trial judge committed error in failing to conduct the balancing test required by [Rule] 403 before allowing certain items and testimony to be admitted into evidence.” As it stands, we have no way to determine just what evidence he has in mind. Thornton does not cite to any point in the record to support his argument that the circuit court failed to conduct a Rule 403 balancing test. “[W]here a prisoner is proceeding pro se, we will take that into account and, in our discretion, credit not so well[-]pleaded allegations so that a prisoner’s meritorious complaint may not be lost because inartfully drafted.” Ivy v. Merchant, 666 So.2d 445, 449 (Miss.1995). However, we are also mindful that “pro se parties should be held to the same rules of procedure and substantive law as represented parties.” Id. The Mississippi Rules of Appellate Procedure provide that an appellant’s argument “shall contain the contentions of [the] appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” M.R.A.P. 28(a)(6). Because Thornton did not cite to the record to direct us to the substance of his claim, this issue is procedurally barred.

VI. IMPROPER JUROR

¶ 29. Next, Thornton claims that the circuit court should have sua sponte excused one of the jury members for cause because she worked as an administrator for the justice-court judge who arraigned Thornton. Thornton argues that the juror had some unspecified knowledge of the case that she used to persuade the other members of the jury to convict him.

¶ 30. Thornton complains about juror 41, Shirley Cummings. During the circuit court’s qualification of the jurors, it asked the venire if anyone worked for law enforcement. Cummings responded and said that she was the assistant to the justice-court judge. The circuit court thanked her and said, ‘You may have a seat.” There were no further discussions regarding Cummings’s employment.

¶ 31. During voir dire, Cummings responded when the circuit court asked if any members of the venire knew Thornton or his family. The circuit court asked her whether her “knowledge of the defendant or his family ... would prevent [her] from being fair and impartial.” Cummings answered that she “would really be fairly impartial.” However, she added that she had “knowledge about the case.” She did not elaborate regarding what she knew about Thornton’s case. The circuit court asked her whether she could “lay that aside.” Cummings said that she could, and she answered affirmatively when the circuit court asked her whether she could “base this case on the evidence that comes from the witness stand and not what [she] already kn[e]w.” In a response to a subsequent question during voir dire, Cummings said that she understood that what she had heard during a justice-court proceeding was not evidence in Thornton’s case, and she could “lay that aside” and “listen to the evidence in this case and base [her] decision on the evidence that comes from the witness stand in [the circuit] court.” Neither Thornton’s attorney nor the prosecution attempted to have Cummings excused as a juror. Ultimately, Cummings sat on the jury that found Thornton guilty of murder.

¶ 32. As previously mentioned, Thornton claims that Cummings was not qualified to serve as a juror because she was an assistant to the justice-court judge who conducted Thornton’s arraignment. Thornton speculates that Cummings used her unspecified prior knowledge of his case to influence the other members of the jury. But Thornton’s attorney did not challenge Cummings for cause or exercise a peremptory challenge on her. “Because there was no contemporaneous objection, this issue is procedurally barred.” Brown v. State, 890 So.2d 901, 909 (¶ 19) (Miss.2004).

¶ 33. Furthermore, there is no evidence regarding the nature of Cummings’s knowledge of Thornton’s case. It is entirely possible that Cummings simply remembered that Thornton had pled “not guilty” during his arraignment. There is certainly no indication that Cummings had influenced any of the other members of the jury or encouraged them to convict Thornton. Additionally, the circuit court instructed the jurors that they were each obligated to “decide this case for yourself,” and they were not to “surrender [their] honest convictions regarding the credibility or weight of the evidence solely because of the opinion of [their] fellow jurors or merely for the purpose of returning a verdict.” The supreme court has instructed that we are to presume that the jurors follow the circuit court’s instructions. Neal v. State, 15 So.3d 388, 402 (¶ 30) (Miss.2009). Nothing in the record indicates that the jurors allowed Cummings to influence their decision to find Thornton guilty of murder. Consequently, this issue is meritless notwithstanding the procedural bar.

VII. CUMULATIVE ERROR

¶ 34. Finally, Thornton claims that the cumulative effect of the errors at trial mandates that he receive a new trial. We have not found that the circuit court committed any errors. It follows that there can be no cumulative effect of errors that do not exist. Brown, 890 So.2d at 922 (¶ 84). Consequently, there is no merit to this issue.

¶ 85. THE JUDGMENT OF THE HUMPHREYS COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HUM-PHREYS COUNTY.

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

      . Forman had been transported from a juvenile-detention facility, but the record does not indicate that he had been charged with any offense that was related to Williams’s death.

      . After Thornton moved to dismiss his attorney and proceed pro se, this Court remanded this matter to the circuit court with instructions to conduct an evidentiary hearing as set forth by Rule 6(c)(2) of the Mississippi Rules of Appellate Procedure to determine whether Thornton knowingly and intelligently waives his right to counsel on appeal. During the evidentiary hearing, the circuit court advised Thornton of his rights to the assistance of counsel on appeal. The circuit court also advised Thornton that representing himself may not be in his best interest. When the circuit court asked Thornton whether he still wanted to proceed pro se, he responded affirmatively. Consequently, the circuit court concluded that Thornton knowingly and intelligently waived his right to counsel on appeal.


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    Arthur WOODS, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00379-COA.
    Court of Appeals of Mississippi.
    Feb. 25, 2014.
    Rehearing Denied June 24, 2014.

      Arthur Woods, appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. “The fact that a witness changes his testimony after the trial does not necessarily entitle the [post-conviction-relief (PCR) ] petitioner to a new trial.” It does, however, entitle him to an evidentia-ry hearing. After this hearing, if the trial judge “is not satisfied that such [changed] testimony is true,” then it is his “right and duty ... to deny a new trial.”

¶ 2. Arthur Woods was granted an evi-dentiary hearing on his successive PCR motion because the statutory-rape victim filled out an affidavit in which she recanted her trial testimony. But at this hearing, the judge — who had also presided over Woods’s trial — found both the victim’s affidavit and her testimony at the hearing were not credible, while her testimony at Woods’s trial had been credible. Because the judge was not satisfied that the recanting testimony was true, he denied Woods’s request for a new trial. After review, we cannot say the judge’s determination was clearly erroneous. Thus, we affirm.

Background

¶3. In 2008, two eighth-grade girls were passing a note back and forth in science class. Their teacher intercepted the note. And when the teacher read the girls’ exchange about both having had sex with the same grown man, the teacher immediately showed the note to one of the girls’ mother, who worked at the school. The ensuing investigation led to charging fifty-one-year-old Woods with two counts of statutory rape involving then fifteen-year-old Amy and fourteen-year-old Katrina. See Miss.Code Ann. § 97-3-65(l)(a)(i) (Supp.2013).

¶ 4. At trial, Katrina testified she and Amy had snuck out of Katrina’s house one night and gone to Woods’s. Both girls went back to Woods’s bedroom, and Woods had sex with each girl twice. Katrina also testified that she loved Woods and did not want anything to happen to him, which is why she had initially told investigators that she had not had sex with Woods. On cross-examination, Katrina admitted she had told Amy that she was only going to testify because her stepmother had threatened her.

¶ 5. During the investigation, Amy had told investigators she had sex with Woods that night. But prior to trial, the State learned Amy intended to recant. The prosecution called Amy anyway. And when Amy testified that she had not had sex with Woods, the State impeached her with her prior sworn statement. At the close of trial, the court dismissed the count charging the statutory rape of Amy based on insufficient evidence.

¶ 6. The jury convicted Woods on the remaining count — the statutory rape of Katrina. The court sentenced him to thirty years’ imprisonment. Woods appealed, and this court affirmed. Woods v. State, 973 So.2d 1022, 1026-32 (¶ ¶ 9-30) (Miss.Ct.App.2008).

¶ 7. In 2010, twenty-one-year-old Katrina swore out an affidavit recanting her trial testimony. In that affidavit, she attested she had never had sex with Woods. She claimed she had been pressured by her parents to testify against Woods in 2005. But now that she was grown, she wanted to make things right. Woods applied for and was granted leave by the Mississippi Supreme Court to file with the trial court a successive PCR motion based on “newly discovered evidence” — i.e., Katrina’s recanted testimony. See Miss.Code Ann. § 99-39-27(9) (Supp.2013). The supreme court also ordered the trial court to conduct an evidentiary hearing.

¶ 8. The hearing took place in August 2011, before the same judge who had presided over Woods’s criminal trial. Katrina testified that her 2010 affidavit reflected the truth, not her 2005 trial testimony. The judge found Katrina’s hearing testimony “unreliable, not credible, and untrue.” The judge remembered Katrina’s previous trial testimony, which he found had been credible. Further, at the PCR hearing, Katrina admitted her 2010 affidavit contained the false assertion that the district attorney had pressured her into testifying in 2005. Finally, the judge found the claim that Katrina’s trial testimony had been coerced by her stepmother had been fully explored at trial and considered by the jury when finding Woods guilty beyond a reasonable doubt. See Woods, 973 So.2d at 1031 (¶27) (addressing on appeal Woods’s argument “that Katrina’s statement that her stepmother would make her leave home if she did not testify against Woods further showed that her credibility was compromised”).

¶ 9. The judge denied Woods’s PCR motion. Woods was granted leave to file a notice of appeal under Mississippi Rule of Appellate Procedure 4(h).

Discussion

¶ 10. On appeal, Woods claims he is entitled to post-conviction relief based on Katrina’s recanted testimony. But “[ejxperienee teaches all courts a healthy skepticism toward recanted testimony.” Yarborough v. State, 514 So.2d 1215, 1220 (Miss.1987). “The fact that a witness changes his testimony after the trial is not alone an adequate ground for granting a new trial.” Russell v. State, 849 So.2d 95, 107 (¶ 15) (Miss.2003).

¶ 11. Recanted testimony is, however, adequate to entitle a petitioner to an evidentiary hearing. This is why the supreme court granted Woods leave to file an otherwise procedurally barred PCR motion and directed the trial court to conduct an evidentiary hearing. See, e.g., Yarborough, 514 So.2d at 1220. The purpose of the evidentiary hearing was “so that the trial court [could] better evaluate the testimony of the recanting witness.” Rushing v. State, 873 So.2d 116, 119 (¶ 4) (Miss.Ct.App.2008) (citing Hardiman v. State, 789 So.2d 814, 817 (¶ 12) (Miss.Ct.App.2001)). Because the judge sat as trier of fact at the PCR hearing, it was his role to resolve whether Katrina had been truthful in 2005 — when she testified she had sex with Woods — or in 2011 — when she recanted. See Esco v. State, 102 So.3d 1209, 1214 (¶ 13) (Miss.Ct.App.2012) (noting that the trial judge resolves credibility issues that arise in a PCR hearing); Turner v. State, 771 So.2d 973, 976 (¶8) (Miss.Ct.App.2000) (holding that, because a recanting witness is a “self-confessed liar,” the trial judge has the task of resolving whether the witness had been lying at trial or was now lying at the PCR hearing).

¶ 12. Based on the inconsistencies in Katrina’s hearing testimony and her demeanor, the judge determined Katrina’s recent testimony was unreliable and untrue. The judge remembered Katrina’s demeanor when she testified in 2005 and found her trial testimony, in comparison, had been credible. Further, he found her justifications for recanting — that she had been coerced by her family to testify against Woods and that she did not want to harm Woods — had already been presented to the jury at the 2005 trial. And the jury resolved those issues, finding Katrina’s trial testimony credible and sufficient to support finding Woods guilty of the statutory rape of Katrina. See Woods, 973 So.2d at 1031 (¶27) (finding that Katrina’s “statements about her stepmother’s threats did not so thoroughly discredit or contradict her testimony that a reasonable jury could not have concluded that she had sex with Woods”).

¶ 13. Consequently, the judge denied Woods a new trial. And “it is the right and duty of the court to deny a new trial where it is not satisfied that [the recanting] testimony is true.” Howell v. State, 989 So.2d 372, 384 (¶33) (Miss.2008) (quoting Bradley v. State, 214 So.2d 815, 817 (Miss.1968)). This determination was within the judge’s “sound discretion” and “should not be set aside unless clearly erroneous.”. Peeples v. State, 218 So.2d 436, 439 (Miss.1969). “In the end we are reviewing a finding of ultimate fact, one made by a trial court sitting without a jury. We do not reverse such findings where they are supported by substantial credible evidence.” Yarborough, 514 So.2d at 1220.

¶ 14. The judge’s decision came down to assessing Katrina’s credibility. The judge had the benefit of witnessing Katrina’s demeanor when she testified in 2005 and later when she recanted in 2011. But we do not. Instead, we have only the inanimate record before us. And from this record we cannot say the judge’s credibility assessment was clearly erroneous. Because the judge supported his decision with substantial evidence, we affirm the judgment denying Woods’s PCR request for a new trial.

¶ 15. THE JUDGMENT OF THE LE-FLORE COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALT. COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE COUNTY.

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

      . Howell v. State, 989 So.2d 372, 384 (¶ 33) (Miss.2008).

      . Id. (quoting Bradley v. State, 214 So.2d 815, 817 (Miss.1968)).

      . A fuller account of the events can be found in this court's opinion affirming Woods’s conviction on direct appeal. Woods v. State, 973 So.2d 1022, 1024-26 (¶ ¶ 3-8) (Miss.Ct.App.2008).

      . In the direct appeal of Woods's statutory-rape conviction, this court used fictitious names to protect the identity of the minor victims. Id. at 1025 (¶ 3) & n. 1. For consistency, we use the same pseudonyms in this opinion.

      ."[S]tatutory rape is committed when ... [a]ny person seventeen (17) years of age or older has sexual intercourse with a child who: (i) Is at least fourteen (14) but under sixteen (16) years of age; (ii) Is thirty-six (36) or more months younger than the person; and (iii) Is not the person's spouse[.]” Miss.Code Ann. § 97 — 3—65(l)(a)(i).

      . Amy also testified — and also recanted. Amy insisted, contrary to her 2005 trial testimony, but consistent with her initial statement to the police, she and Katrina did have sex with Woods that night in 2003.


author: CARLTON, J.,

text:
    Warren D. FRIDAY a/k/a Warren Friday a/k/a Warren Douglas Friday, Jr. a/k/a Warren Doug Friday, Appellant. v. STATE of Mississippi, Appellee.
    No. 2012-CP-01669-COA.
    Court of Appeals of Mississippi.
    March 4, 2014.
    Rehearing Denied June 24, 2014.

      Warren D. Friday, appellant, pro se.
    Office of the Attorney General by Elliott George Flaggs, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Warren Douglas Friday filed a post-conviction-relief (PCR) motion in the trial court, claiming his post-release supervision (PRS) was improperly revoked. He argued that he was denied due process at his revocation hearing and that the trial court lacked a sufficient basis to revoke his PRS. The trial court summarily dismissed the motion, finding that Friday received a proper revocation hearing and that Friday’s aggravated-assault guilty plea and his domestic-violence conviction while on PRS provided sufficient grounds for revocation. We affirm.

¶ 2. On appeal, Friday also raises arguments challenging the validity of his aggravated-assault guilty plea. We will not address these arguments, as they are not properly before this Court in this appeal.

FACTS

¶ 3. On September 5, 2003, Friday pled guilty in the Lowndes County Circuit Court to two counts of felony auto theft. On Count I, he was sentenced to three years, followed by two years of PRS. On Count II, he was sentenced to two years, followed by three years of PRS. The sentences were ordered to run consecutively in the custody of the Mississippi Department of Corrections (MDOC), for a total of five years of incarceration and five years of PRS. One condition of Friday’s PRS was that he “commit no offense against the laws of this or any other state.... ” In 2009, while on PRS, Friday committed domestic violence and aggravated assault. Based on Friday’s violations of the terms of his release, Friday’s PRS was revoked on November 20, 2009, and he was ordered to serve the five-year revoked sentence in the custody of the MDOC. The revoked sentence was ordered to run consecutively to any other imposed sentences.

114. On May 7, 2012, Friday filed a PCR motion in the Lowndes County Circuit Court, arguing the following: (1) he did not receive a proper revocation hearing; (2) his guilty plea to aggravated assault was invalid because he did not “willfully” commit the crime; and (3) his guilty plea was not knowing and voluntary. The trial court addressed Friday’s arguments in two separate orders since the first argument challenged a different criminal cause number. The first order, entered on September 24, 2012, addressed Friday’s arguments regarding the revocation of his PRS from the auto-theft convictions (Cause Number 2001-0762-CR1). The second order, entered on September 28, 2012, addressed Friday’s arguments regarding his competency at the time he committed and pled guilty to aggravated assault (Cause Number 2009-0108-CR1). Both orders summarily dismissed Friday’s PCR motion. Friday now appeals.

STANDARD OF REVIEW

¶ 5. “A trial court’s dismissal of a motion for post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous.” Means v. State, 43 So.3d 438, 441 (¶ 6) (Miss.2010). Issues of law are reviewed de novo. Id.

¶ 6. Mississippi Code Annotated section 99-39-11(2) (Supp.2013) provides that a PCR motion may be dismissed “[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[.]” “[D]ismissal of a PCR motion is proper where ‘it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” State v. Santiago, 773 So.2d 921, 923-24 (¶ 11) (Miss.2000) (quoting Turner v. State, 590 So.2d 871, 874 (Miss.1991)).

DISCUSSION

I. Jurisdiction

¶ 7. Before discussing the merits of Friday’s appeal, we must address this Court’s jurisdiction over the arguments raised on appeal.

¶ 8. Friday filed one PCR motion in the trial court challenging two different judgments: (1) the judgment revoking his PRS in Cause Number 2001-0762-CR1 (the auto-theft convictions); and (2) the judgment of conviction for aggravated assault in Cause Number 2009-0108-CR1. In response to Friday’s motion challenging the two different judgments, the trial court entered two separate orders dismissing Friday’s motion — one dated September 24, 2012, and the other dated September 28, 2012. When Friday noticed his appeal to the Mississippi Supreme Court, he only referenced the September 24, 2012 order. In his notice of appeal, Friday specifically states that he seeks to challenge his “unlawful and unconstitutional revocation,” citing Cause Number 2004-0070-CV1. This cause number references the civil post-conviction matter challenging the sentence revocation in criminal Cause Number 2001-0762-CR1 — the auto-theft convictions. Because this is the only order appealed, our decision and analysis will be limited to Friday’s due-process arguments concerning the revocation of his PRS. We will not address Friday’s arguments regarding the legality of his judgment of conviction for aggravated assault since he failed to appeal the trial court’s order dismissing his PCR claim regarding that judgment.

II. Sentence Revocation

¶ 9. Friday argues that the revocation of his PRS was illegal for several reasons. First, he argues he received no prompt probable-cause hearing after his arrest. Second, he argues he was not given both a preliminary and final revocation hearing. Third, he argues that the trial court denied him due process because he was not given notice of the hearing and was not allowed to present evidence at the hearing.

¶ 10. Friday argues his due-process right to a prompt hearing was violated because he was incarcerated for approximately 336 days between his arrest on December 18, 2008, and his hearing on November 20, 2009. In Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the United States Supreme Court held that once a suspect is detained for violating the terms of his or her release, a “minimal inquiry” must be conducted “as promptly as convenient after arrest while information is fresh and sources are available.” See also Riely v. State, 562 So.2d 1206, 1210 (Miss.1990). The purpose of this prompt inquiry is to “determine whether there is probable cause to hold the defendant for the final decision regarding revocation!)]” Id. (citation and internal quotation marks omitted). Here, no probable-cause hearing was necessary to hold Friday.

¶ 11. Friday was not incarcerated simply pending a decision on the revocation of his PRS. Rather, he was incarcerated on other charges for which he was later convicted. On March 4, 2009, Friday was found guilty of domestic violence; he received credit for time served. On September 3, 2009, he pled guilty to aggravated assault and was sentenced to twelve years. Because Friday was incarcerated on other grounds that later served to revoke his PRS, the delay in holding a hearing was harmless error. See Presley v. State, 48 So.3d 526, 530 (¶ 14) (Miss.2010). As the supreme court held in Presley:

Under harmless error analysis, the failure to provide [the defendant] with an immediate informal “probable cause” hearing shortly after the State began proceedings to revoke his probation -will not be seen to render ineffective the subsequent formal proceeding at which [the defendant] was afforded all the due process protections required under Mor-rissey unless there is some showing of prejudice to [the defendant] arising out of the failure to conduct the hearing— that prejudice necessarily extending beyond the issue of the State’s right to continue his confinement in the interim.

Id. at (¶ 13) (quoting Rusche v. State, 813 So.2d 787, 790-91 (¶13) (Miss.Ct.App.2002)).

¶ 12. In addressing Friday’s claims, we acknowledge that Friday has not argued that he was prejudiced by the delay of his revocation hearing. Because Friday was incarcerated on other charges, he cannot show he was illegally imprisoned because of the delay. Also, Friday’s later conviction of the crimes charged served as a sufficient basis in support of the revocation. See Morrissey, 408 U.S. at 485, 92 S.Ct. 2593. The delay resulted in no prejudice since no fact witnesses or other evidence was necessary. Friday’s conviction and guilty plea constituted sufficient grounds for revocation. This issue is without merit.

¶ 13. Next, Friday argues he was denied the right to two separate revocation hearings. We first note that “a defendant is procedurally barred from arguing that he was denied the right to a preliminary hearing where the defendant failed to raise the issue at his formal revocation hearing.” Presley, 48 So.3d at 528 (¶ 9) (citation omitted). Friday did not raise this issue at his formal revocation hearing, and therefore, this issue is waived. Notwithstanding the procedural bar, Friday’s argument is without merit. Friday is correct that he was “entitled to both a preliminary and final revocation hearing” before his PRS was revoked. Riely, 562 So.2d at 1210. However, the failure to hold separate hearings is not necessarily reversible error. Presley, 48 So.3d at 530 (¶ 14). Rather, Friday must show that prejudice resulted from the failure to hold a separate preliminary hearing. See id. If no prejudice is found and a formal proceeding was held in compliance with Morrissey, then the failure to hold a preliminary hearing is harmless error. Id. The minimum due-process requirements for a formal parole-revocation hearing as set out by Morrissey are:

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.

Morrissey, 408 U.S. at 489, 92 S.Ct. 2593. See also Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (applying the Morrissey factors to the revocation of probation); Riely, 562 So.2d at 1210.

¶ 14. The procedures associated with the revocation of parole or probation also apply to the revocation of PRS. Miss.Code Ann. § 47-7-37 (Rev.2011). Friday received written notice of the violations of his PRS, and the State disclosed the evidence against him. The conviction and guilty plea clearly put him on notice of the violations. Friday signed his guilty-plea petition under oath, and the petition stated the following: “I am presently on probation or parole. I understand that ... pleading guilty in this case may cause revocation of my probation or parole, and that this could result in a sentence of 5 years in that case.” Additionally, Friday was present at the revocation hearing and was represented by counsel. During the hearing, Friday’s attorney informed the trial court that Friday had been convicted of both charges listed in the revocation petition. Friday was then asked by the assistant district attorney, “Do you wish to admit that you’ve violated the terms of your post-release by violating the laws of this state?” Friday replied, “Yes, ma’am.” Evidence of the convictions was admitted into the record at the revocation hearing. The trial court found that the evidence was sufficient to revoke Friday’s PRS. We find that the trial court provided Friday with the minimum due-process protections required by Morrissey, 408 U.S. at 489, 92 S.Ct. 2593. Further, Friday failed to show that he was prejudiced by the failure to hold a separate preliminary hearing. Thus, the error was harmless. See Presley, 48 So.3d at 530 (¶ 15). This issue is without merit.

¶ 15. Third, Friday argues his revocation hearing was unconstitutional because he received no notice of the hearing and was not allowed to present evidence. Friday’s argument that he received no notice is without merit. The record reflects that Friday was given notice of the hearing. In addition, he was present at the hearing and represented by counsel. Friday’s argument that he was denied the right to present evidence is also without merit. In support of this claim, Friday argues he was denied the opportunity to present his defense that he did not “willfully” commit or plead guilty to aggravated assault. Friday argues that when he committed and pled guilty to aggravated assault he suffered from depression and bipolar disorder and was heavily medicated. In turn, Friday argues that his aggravated-assault plea was invalid and thus provides an insufficient basis for his subsequent revocation. Friday’s argument challenges the merits of the underlying crime used to revoke his PRS, not the PRS revocation itself. Friday must raise any challenge to his underlying aggravated-assault conviction separately from the appeal before us now of the trial court’s dismissal of his PCR claims pertaining to the revocation of his PRS. The evidence presented of his prior conviction and guilty plea constituted reasonable grounds for the trial court to revoke his PRS. The trial court stated that Friday “clearly had notice of these charges and convictions and was given a hearing at which he could have spoken on his own behalf or called witnesses in his defense.” Friday failed to exercise those rights. This issue is without merit.

¶ 16. As stated, Friday’s argument regarding his competency at the time he committed and pled guilty to aggravated assault is not properly before this Court in this appeal. However, we note that even absent the aggravated-assault plea, the trial court possessed an independent basis to revoke Friday’s PRS. In addition to committing aggravated assault while on PRS, Friday also committed domestic violence while on PRS. He was found guilty of the domestic-violence charge in the Lowndes County Justice Court. Friday raises no dispute as to this charge.

¶ 17. As a condition of his PRS, Friday agreed to “commit no offense against the laws of this or any other state....” (Emphasis added). Therefore, the sentencing order placed Friday on notice that one crime alone was sufficient to revoke his PRS. Further, Friday stated at his revocation hearing that he understood his PRS was revoked because of both the domestic-violence and aggravated-assault convictions. Moreover, as noted, he admitted to the violations. Thus, regardless of any challenge to his conviction for aggravated assault, the trial court possessed a sufficient evidentiary basis to revoke Friday’s PRS. We find no error in the trial court’s revocation of Friday’s PRS and affirm the trial court’s dismissal of Friday’s claims of error set forth in his PCR motion.

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

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

      . By statute, PCR motions are "limited to the assertion of a claim for relief against one (1) judgment only.” Miss.Code Ann. § 99-39-9(2) (Supp.2013). Dismissal of Friday’s motion on this ground by the trial court would have been proper. See Mock v. State, 76 So.3d 223, 225 (¶ 10) (Miss.Ct.App.2011). However, we find no harm was caused since the trial court dismissed the motion as being without merit. Id. (citing Bell v. State, 2 So.3d 747, 749 (¶ 5) (Miss.Ct.App.2009)).
      Even were we to address Friday’s arguments regarding the aggravated-assault conviction, they would be without merit. Friday argues the trial court should have conducted a competency hearing because of his history of prescription-drug use and mental-health issues. Friday also argues his attorney was ineffective for failing to notify the trial court of these issues. No question was raised regarding Friday’s competency at his guilty-plea hearing, and the judge found no reason to doubt his competency. Friday stated he understood the charges against him; he admitted his guilt; and he stated he was not currently undergoing mental treatment. Friday’s attorney stated he knew of no reason why the trial court should not accept Friday’s guilty plea. Friday raised the issue of his prescription-drug use and mental-health issues for the first time at his sentencing hearing. Friday explained that after having a nervous breakdown, he was prescribed eight to ten different "psych medications,” and that some of the medications conflicted, causing negative side effects. The trial court addressed Friday’s concerns and found them to be meritless. The trial court noted that it had no reasonable ground to believe that Friday was incompetent to stand trial; thus, no competency hearing was warranted. See URCCC 9.06. The trial court also found Friday’s plea was voluntarily and intelligently made. See URCCC 8.04.

      . See Presley, 48 So.3d at 529-30 (¶¶ 13-14).

      . See Reese v. State, 21 So.3d 625, 628 (¶ 12) (Miss.Ct.App.2008) (“[T]he evidence was sufficient to enable the circuit court to find that [the defendant] more likely than not violated the terms and conditions of his [PRS] by failing to live at liberty without violating any laws_[The defendant] gave sworn testimony admitting to the alleged violations contained in the State’s petition for revocation[J”).

      . See Means, 43 So.3d at 441 (¶ 6) (citing the standard of review for the dismissal of a motion for PCR); see also Williams v. State, 4 So.3d 388, 393 (¶ 15) (Miss.Ct.App.2009) (finding no error in the revocation of the defendant's suspended-sentence term where he admitted to violating the terms of his PRS).


author: FAIR, J.,

text:
    James H. BOSARGE, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00723-COA.
    Court of Appeals of Mississippi.
    March 11, 2014.
    Rehearing Denied June 24, 2014.

      James H. Bosarge, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before IRVING, P.J., BARNES and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Under Mississippi law, those convicted of armed robbery are not eligible to earn time toward an early, conditional release from prison. James Bosarge filed a post-conviction relief (PCR) motion contending that this violates his constitutional right to equal protection of the laws. The circuit court found that argument without merit and dismissed the motion. Because there is a rational basis for denying earned time to those convicted of armed robbery, we affirm.

STANDARD OF REVIEW

¶ 2. The circuit 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.2013). To succeed on appeal, the movant must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is proee-durally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999).

¶ 3. 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.” Collins 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

¶ 4. After failing to convince a woman to give him crack cocaine on credit, Bosarge hit her with a hammer, stole her car, and drove over her with it as he fled. Bosarge ultimately pled guilty to armed robbery and two counts of aggravated assault, and he was sentenced to twenty years on each count, with eighteen to serve and two years’ post-release supervision, and all three sentences to run concurrently.

¶ 5. Bosarge has previously filed another PCR motion, in 2009, that time contending his plea was involuntary and his counsel constitutionally ineffective. The circuit court denied the first motion after conducting an evidentiary hearing. Because the instant PCR motion was Bosarge’s second, the circuit court found it barred as a successive writ, as well as being without merit.

¶ 6. A second PCR motion is ordinarily barred as a successive writ. See Miss.Code Ann. § 99-39-23(6) (Supp.2013). And since Bosarge’s allegation of an illegal sentence could have been made in his first PCR motion, the claim is barred by ordinary principles of res judicata, which bar “all issues that might have been (or could have been) raised and decided in the initial suit, plus all issues that were actually decided in the first cause of action.” Little v. V & G Welding Supply Inc., 704 So.2d 1336, 1337-38 (¶ 8) (Miss.1997). Moreover, Bosarge also failed to file this motion within three years of the entry of his conviction, as required by Mississippi Code Annotated section 99-39-5(2) (Supp.2013).

¶ 7. That being said, there is an exception to the procedural bars for errors affecting the movant’s fundamental constitutional rights. See Rowland v. State, 42 So.3d 503, 506-08 (¶¶ 7-12) (Miss.2010). 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).

¶ 8. Bosarge argues that Mississippi arbitrarily denies earned time eligibility to those convicted of armed robbery, and that this has denied him the equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution. He presents this claim as the basis of an illegal sentence argument, but it is not clear that it actually fits within the illegal sentence exception to the procedural bars. And the mere assertion of a constitutional violation does not overcome the procedural bar. Means v. State, 43 So.3d 438, 442 (¶ 12) (Miss.2010). But because the State offers no substantive response on this point, we will proceed to the merits of the claim.

¶ 9. Mississippi Code Annotated section 47-5-138 (Supp.2013) provides that an inmate may earn a conditional early release for good conduct and performance. But not all inmates are eligible; section 47-5-139(l)(e) (Rev.2011) precludes eligibility if “[t]he inmate has not served the mandatory time required for parole eligibility for a conviction of robbery or attempted robbery with a deadly weapon.” Inmates in trusty status may also be awarded a day-for-day trusty time allowance when they also participate in certain programs, but eligibility for those serving sentences for armed robbery is likewise limited to the parole-eligible. See Miss.Code Ann. § 47-5-138.1 (Rev.2011).

¶ 10. Bosarge’s complaint stems from the fact that those convicted of armed robbery after October 1, 1994, are never eligible for parole. Miss.Code Ann. § 47-7 — 3(1)(d)(ii) (Rev.2011). Because he was convicted of armed robbery in 2009, Bo-sarge will not be eligible for earned or trusty time. See Wells v. State, 936 So.2d 479, 480 (¶ 5) (Miss.Ct.App.2006). He contends this ineligibility for earned time for those convicted of armed robbery denies them equal protection of the laws.

¶ 11. “When addressing a statute’s constitutionality, [appellate courts] apply a de novo standard of review, bearing in mind (1) the strong presumption of constitutionality; (2) the challenging party’s burden to prove the statute is unconstitutional beyond a reasonable doubt; and (3) all doubts are resolved in favor of a statute’s validity.” Johnson v. Sysco Food Servs., 86 So.3d 242, 243-44 (¶ 3) (Miss.2012) (citations omitted).

¶ 12. The first step in our analysis is determining the level of scrutiny to be applied. Both Bosarge and the State appear to agree that the proper question is whether there is some rational basis for the statutory scheme, with Bosarge arguing that the law is unconstitutional because “it treats him different than it treats other offenders for no justifiable, legitimate ... reason.” The parties appear to be correct that rational basis is the correct standard. See McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973).

¶ 13. Under the rational basis test, a “statute will be upheld unless it can be shown that the statute is not rationally related to a legitimate government interest.” Townsend v. Estate of Gilbert, 616 So.2d 333, 337 (Miss.1993). “The rational relationship between the government’s acts and policies and the fact that they serve a legitimate governmental interest is ‘not difficult to establish’ since the rational relationship need only be ‘at least debatable.’” Justus v. State, 750 So.2d 1277, 1279 (¶ 5) (Miss.Ct.App.1999) (quoting Metro. Life Ins. Co. v. Ward, 470 U.S. 869, 881, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985)).

¶ 14. Bosarge contends that denying earned and trusty time to some offenders is both unfair and unwise, if the purpose of incarceration is rehabilitation. But even if we were to concede the point, there are other legitimate purposes of incarceration, such as punishment and protection of the public from dangerous individuals. See Garrison v. State, 950 So.2d 990, 998-99 (¶ 34) (Miss.2006) (citing United States v. Mancuso, 420 F.2d 556, 558-59 (2d Cir.1970)). The rational basis test requires only that the government interest be legitimate and that the statute be rationally related to achieving it; courts undertaking rational basis review are not called upon to weigh competing interests such as rehabilitation and punishment-that is the province of the Legislature. The desire to more severely punish more severe crimes is a rational basis for the challenged statutes.

¶ 15. Bosarge also faults the Legislature for using parole eligibility as the test for those convicted of armed robbery. He contends that eligibility for parole and earned/trusty time should be separate since they are “different programs with different laws.” But we can see no reason why different programs must have different eligibility requirements, particularly since parole and earned/trusty time all result in the early release of a prisoner.

¶ 16. Finally, Bosarge expresses concern that the statutory scheme is unnecessarily complicated, and he suggests that the Legislature did not intend to deny earned and trusty time eligibility to armed robbery convicts when it amended the statute to remove their parole eligibility. However, statutes are presumed valid and all doubts are resolved in favor of their validity. Johnson, 86 So.3d at 243-44 (¶ 3). The plain language of the statutes is controlling.

¶ 17. In summary, we conclude that there is a rational basis for denying an armed robbery offender eligibility for earned and trusty time, and thus Bo-sarge’s equal protection challenge must fail. The circuit court did not err in dismissing his PCR motion.

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

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

      . Bosarge was convicted in April 2009 and filed this motion in April 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).

      . Subsection (5) limits the earned time allowance to fifteen percent of the sentence term for those convicted after June 30, 1995.

      .Before section 47 — 7—3( l)(d)(ii) was enacted, armed robbery convicts could be eligible for parole after serving ten years of their sentence. Wells v. State, 936 So.2d 479, 480 (¶ 5) (Miss.Ct.App.2006).


author: ISHEE, J.,

text:
    In the Matter of the ESTATE OF Patricia McDaniel LANGSTON, Deceased Ethel Williams, Appellant v. Mansfield LANGSTON, Appellee.
    No. 2012-CA-01799-COA.
    Court of Appeals of Mississippi.
    March 18, 2014.
    Rehearing Denied June 24, 2014.

      Alsee McDaniel, Indianola, attorney for appellant.
    Lindsey C. Meador, Cleveland, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Upon Patricia Langston’s death, her estate challenged certain inter vivos gifts that Patricia had given her husband, Mansfield Langston. The estate claimed the gifts were void as a result of Mansfield’s undue influence. The chancellor found no undue influence and upheld the inter vivos gifts. Patricia’s estate appeals. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Mansfield and Patricia were married for approximately eleven years before Patricia’s death on May 11, 2005. The couple had no children together, but each had children from prior relationships. They lived in Mansfield’s home in Indiano-la, Mississippi, from the time they married in 1994 until 2002. They owned the home as joint tenants with the right of survivor-ship. On March 1, 2002, Patricia purchased a home on French Road in Indiano-la in her name only. She then quitclaimed Mansfield’s home back to him.

¶ 3. On March 15, 2002, Patricia executed a will leaving her estate equally to her children. The will specifically excluded Mansfield, stating that “[Mansfield] has his own estate in his name, therefore no provision for him is made in this will.” Mansfield executed a similar will, leaving his estate to his children. Mansfield was named executor of Patricia’s will. On May 9, 2002, Patricia executed a warranty deed, conveying the French Road home to herself and Mansfield as joint tenants with the right of survivorship. The home became their marital residence. On June 11, 2002, Patricia executed a second will. It was identical to her first will, except it named Patricia’s mother, Ethel Williams, as executor. On September 4, 2003, Mansfield and Patricia executed a $200,000 certificate of deposit as joint tenants with the right of survivorship.

¶ 4. Upon Patricia’s death in 2005, Williams opened her estate and moved to set aside the joint tenancies in the marital home and the certificate of deposit. Williams argued that the documents were void because Mansfield used undue influence in their execution, and that the home and certificate of deposit should become part of the estate. The chancellor presumed undue influence because of the confidential relationship between Patricia and Mansfield. Because Mansfield failed to overcome this presumption, the joint tenancies were set aside. Mansfield appealed.

¶ 5. This Court reversed. In re Estate of Langston, 57 So.3d 657, 663 (¶ 28) (Miss.Ct.App.2010). We found that the chancellor erroneously presumed undue influence, and we rendered a finding that the joint tenancies were valid. Id. The case was then taken on writ of certiorari by the Mississippi Supreme Court. In re Estate of Langston, 57 So.3d 618 (Miss.2011). The supreme court also reversed the chancellor’s judgment, but remanded the matter for a new trial to allow the estate the opportunity to prove Mansfield exercised undue influence. Id. at 622 (¶ 18). As a matter of first impression, the supreme court held that “[a] confidential relationship between spouses does not create a presumption that one spouse used undue influence over the other to obtain an inter vivos gift.” Id. At the second trial, the chancellor considered the original testimony, and the estate called two new witnesses. Applying the law as stated by the supreme court, the chancellor found no undue influence and upheld the joint tenancies as to Mansfield.

¶ 6. Patricia’s estate appeals, arguing: (1) the chancellor erred in finding no undue influence; and (2) the chancellor failed to consider testimony on the effects of domestic violence. We find no error and affirm.

STANDARD OF REVIEW

¶ 7. The standard of review of chancery matters is limited. In re Estate of Baumgardner, 82 So.3d 592, 598 (¶ 15) (Miss.2012). We will not disturb a chancellor’s factual findings that are supported by substantial evidence. Id. The chancellor’s decision will be affirmed “unless the chancellor abused [her] discretion, was manifestly wrong, or [her] findings were clearly erroneous, or [she] applied an erroneous legal standard.” Id. (quoting Corp. Mgmt. Inc. v. Greene Cnty., 23 So.3d 454, 459 (¶ 11) (Miss.2009)). We review questions of law de novo. Id.

DISCUSSION

I. Undue Influence

¶ 8. Williams argues that Mansfield unduly influenced Patricia to sign the warranty deed and certificate of deposit, and that these gifts should be set aside.

¶ 9. “It is undoubtedly true that a husband or a wife may exercise undue influence upon the other spouse.... ” Langston, 57 So.3d at 620 (¶ 10) (quoting Genna v. Harrington, 254 So.2d 525, 528 (Miss.1971)). However, “[a] confidential relationship between spouses does not create a presumption that one spouse used undue influence over the other to obtain an inter vivos gift.” Id. at 622 (¶ 18). “Rather, it is the contestant’s burden to show that the surviving spouse used undue influence.” Id. at 621 (¶ 11). With regard to both testamentary and inter vivos gifts, undue influence will be found where a spouse has “used undue methods for the purpose of overcoming the free and unrestrained will of the [other spouse,] so as to control [his or her] acts and to prevent [him or her] from being a free agent.” Id. (quoting Genna, 254 So.2d at 529).

¶ 10. Williams first asserts that Patricia’s weak physical and mental state made her susceptible to Mansfield’s undue influence. Patricia suffered from heart disease, leaking heart valves, kidney disease, asthma, high blood pressure, gout, and foot swelling. She was a member of the class-action suit against the maker of the diet drug Fen-Phen. She died at the age of forty-nine. However, Patricia’s physical or mental state alone is not determinative of whether Mansfield used undue influence over her. Rather, Williams must prove that Mansfield used undue methods over Patricia specifically to make her sign the warranty deed and certificate of deposit. The chancellor found that Patricia’s poor health was insufficient to show undue influence. This is consistent with the testimony, which reflected that despite her health issues, Patricia was mentally sharp and capable of making independent decisions. There is no evidence that Mansfield took advantage of Patricia’s poor health to unduly influence her to sign the documents.

¶ 11. Williams next argues that Patricia’s secretiveness is proof of Mansfield’s undue influence. Williams asserts that Patricia usually discussed banking matters with her and Patricia usually banked at Planter’s Bank, where Williams worked. Patricia did not tell Williams about the certificate of deposit, and the issuing bank of the certificate of deposit was Guaranty Bank, the bank Mansfield typically used. Paul Townsend, a Guaranty Bank employee, assisted Patricia and Mansfield in executing the certificate of deposit. Townsend testified that Patricia was clear and lucid on the day she signed the document. She did not appear to be fearful, or under coercion or duress. Instead, Patricia “did most of the talking.... [S]he was asking the right questions. She was asking about interest rates and about penalties for early withdrawals.... She definitely had above average knowledge of banking.”

¶ 12. Regarding the warranty deed, which was prepared by Mansfield’s attorney, Williams argues Patricia was also secretive about this document, and was denied independent advice and counsel. The attorney, Richard Noble, testified that Patricia instructed him to prepare the deed because the French Road home had become the couple’s marital residence. He never spoke to Mansfield about preparing the deed. He testified that Patricia was “a very intelligent person. She understood business[;] she was articulate.” He saw no signs of fear, coercion, or duress. We note that Noble was not solely Mansfield’s attorney, as Noble had prepared Patricia’s will. Williams asserts, however, that this further shows Noble’s bias, as he failed to explain to Patricia that the deed was inconsistent with her will’s provision leaving her property to her children. We find no evidence that Patricia intended for her children to receive the home, nor that the deed is inconsistent with Patricia’s will.

¶ 13. Next, Williams argues Patricia was the victim of domestic abuse, and this affected her mental state. Patricia’s sister, Debra Poole, testified at the second trial about three arguments between Patricia and Mansfield. In 2002, Poole witnessed Mansfield become angry about Patricia’s decision to purchase the French Road home. He stated that if she purchased it, he would not move there with her. Poole stated he appeared “very stern.” The second argument occurred in either in December 2002 or 2003. Mansfield thought Poole and Patricia were at their mother’s house, but they had gone to their grandmother’s house instead. Poole overheard Mansfield tell Patricia “very angrily” on the phone “that we ha[d] not been where we said we were going ....” Mansfield came to the home, “had words” with Patricia, and left. According to Poole, Patricia began “clinching herself and looking at [Poole] ... as if she was afraid of him or afraid of what he may do.” The third argument occurred in 2003, when Mansfield accused Patricia of cheating on him. Poole came to Patricia’s defense, and Poole and Mansfield began to argue. Poole eventually told Mansfield that she was not going to continue arguing with him, and the argument ended. Poole testified that Mansfield’s accusations of infidelity led Patricia to become withdrawn from family and friends.

¶ 14. Herbert Lee, Patricia’s attorney from the Fen-Phen litigation, testified that Patricia arrived at a meeting with two black eyes, and she appeared fearful of Mansfield. Williams also saw dark circles around Patricia’s eyes during this same time period. Neither knew what caused the marks. Mansfield denied that Patricia had black eyes, and he denied that Patricia was afraid of him. He stated he never hit or abused Patricia; rather, they had a loving, caring relationship. He testified that Lee had a personal grudge against him, which influenced Lee’s testimony. Testimony was presented from Patricia’s friends that she had stopped visiting them, or did so infrequently. Also, a family friend testified that Mansfield had accused him of having an affair with Patricia.

¶ 15. None of the testimony provided by the estate proved that Mansfield unduly influenced Patricia to sign the warranty deed and certificate of deposit. To succeed on her claim, Williams was required to prove that Mansfield used undue methods to overcome Patricia’s “free and unrestrained will,” and that Mansfield controlled her and prevented her from being a free agent. Langston, 57 So.3d at 621 (¶ 11). The testimony showed the opposite. Patricia bought the French Road home without Mansfield’s approval, showing that Patricia was capable of making independent decisions. The bank employees testified that Patricia was intelligent and understood the documents she signed. She asked relevant questions about the certificate of deposit, and the deed was prepared solely at her instruction. Both bank employees testified that Patricia did not appear to be under the influence of threats, coercion, or duress when she signed the documents.

¶ 16. As to Williams’s arguments that Patricia did not tell her about the documents, did not receive consideration, and used Mansfield’s attorney as her own without independent counsel, this is typical behavior of a married couple. Patricia and Mansfield had been married for eight years when the documents were executed. A close, confidential relationship was to be expected. See In re Estate of Chapman, 966 So.2d 1262, 1264 (¶ 16) (Miss.Ct.App.2007). “[T]he mere fact that there is a close relationship between parties in a marriage does not mean that one’s influence upon another is undue influence.” Id. at (¶ 14) (quoting Genna, 254 So.2d at 528).

¶ 17. The chancellor did not err in finding that Williams failed to prove undue influence. The chancellor’s decision was based on substantial evidence, and was not an abuse of discretion, manifestly wrong, or clearly erroneous. This issue is without merit.

II. Relevancy of Domestic-Abuse Testimony

¶ 18. Martha Kiihnl testified at the second trial as a lay witness on the effects of domestic violence. Specifically, she testified that in domestic-violence situations, the abuser seeks to coerce and intimidate the victim, and has no regard for the victim’s rights, feelings, or well-being. She testified that domestic abuse may result in isolation from family and friends or affect the decision-making ability of the abused spouse. Further, she stated that education and intelligence are irrelevant when abuse is involved. The chancellor found her testimony unhelpful, as she only “described the general symptoms found in women living in battered marriages.” Ki-ihnl had never met Patricia or Mansfield, and she did not examine any documents related to the case.

¶ 19. Williams argues the testimony was proper under Mississippi Rule of Evidence 701, as it was “helpful to the clear understanding of the testimony or the determination of a fact issue.” However, the first requirement of Rule 701 is that the testimony is “rationally based on the perception of the witness.” “Lay witnesses are only permitted to testify as to a layman’s opinion based upon facts first detailed to the jury.” Genna, 254 So.2d at 529. Kiihnl had no knowledge of the facts of this ease.

¶ 20. The chancellor did not abuse her discretion in finding Kiihnl’s testimony irrelevant. This issue is without merit. The chancellor’s decision finding the joint tenancies valid is affirmed.

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

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

      . This holding extended the rule in Genna v. Harrington, 254 So.2d 525, 528 (Miss.1971), which had previously held "that the confidential relationship between husband and wife does not raise a presumption of undue influence” with regard to testamentary gifts. Langston, 57 So.3d at 620 (¶ 10).


text:
    Thomas Roy SCOTT a/k/a Thomas Scott, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-01252-COA.
    Court of Appeals of Mississippi.
    May 27, 2014.

      Thomas Roy Scott, appellant, pro se.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before LEE, C.J., CARLTON, MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. On April 1, 1988, Thomas Scott pled guilty to murder under Mississippi Code Annotated section 97 — 8—19(l)(c) (Rev.2006). He was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. Thirty years later, on June 12, 2013, Scott filed a motion for post-conviction relief (PCR), alleging that he received an illegal sentence due to a defective indictment and ineffective assistance of counsel. The Jones County Circuit Court held that Scott’s PCR motion was time-barred since it was filed outside the three-year statute of limitations established by Mississippi Code Annotated section 99-39-5(2) (Supp.2013). Scott appeals. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 2. The trial court may summarily dismiss a PCR motion without an evi-dentiary 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.2013). To succeed on appeal, the movant must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999).

¶ 3. When this Court reviews the trial court’s dismissal of a PCR motion, we “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised[,] the applicable standard of review is de novo.” Terry v. State, 755 So.2d 41, 42 (¶ 4) (Miss.Ct.App.1999).

DISCUSSION

¶ 4. Scott pled guilty in 1983 but did not file his PCR motion until 2013, well past the three-year statute of limitations. See Miss.Code Ann. § 99-39-5(2). Claims made outside of the three-year statute of limitations must raise one of the exceptions found in section 99-39-5(2)(a)-(b). Therefore, “we look to see whether an exception to these procedural bars applies. The burden falls on the movant to show he has met a statutory exception.” White v. State, 59 So.3d 633, 635 (¶ 8) (Miss.Ct.App.2011) (citation omitted).

¶ 5. Errors affecting fundamental constitutional rights are excepted from procedural bars that would otherwise prohibit their consideration. Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss.2010). But mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar. Chandler v. State, 44 So.3d 442, 444 (¶ 8) (Miss.App.Ct.2010). “There must at least appear to be some basis for the truth of the claim before the [procedural bar] will be waived.” Id.

1. Defective Indictment

¶ 6. Scott claims he was indicted for capital murder, pled guilty to the lesser offense of murder, and was sentenced to life imprisonment under the capital-murder statute.

¶ 7.. The purpose of an indictment is to provide a defendant notice and a reasonable description of the charges against him so that he may prepare an adequate defense. Williams v. State, 445 So.2d 798, 804 (Miss.1984). Further, the indictment is required to have only a clear and concise statement of the elements of the crime charged, nothing more. Id.

¶ 8. Scott was neither indicted nor sentenced for capital murder, as he claims. Rather, Scott was indicted for felony murder. The indictment read that Scott “did unlawfully, willfully, and feloniously, kill and murder one James Keyes, a human being, while engaged in the commission of the crime of sexual battery, upon him, in violation of Section 97-3-19, (l)(e).... ” At the time Scott committed the crime, Mississippi Code Annotated section 97-3-19(l)(c) read as follows:

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases ...
(c) When done without any design to effect death by any person engaged in the commission of any felony other than rape, kidnaping, burglary, arson, or robbery....

See 1983 Miss. Laws, Ch. 429, § 1 (SB 2699). The sentencing order shows Scott pled guilty to murder and was sentenced to a term of life imprisonment.

¶ 9. Scott also argues that his indictment was fatally defective because it did not allege the killing was done with “deliberate design,” “malice aforethought,” or “premeditated design.” Scott was indicted for felony murder. This argument has no merit.

¶ 10. At his plea colloquy, Scott testified that understood his indictment was for murder, to which he desired to enter a guilty plea. It is well settled that a valid guilty plea waives all technical and non-jurisdictional defects in the indictment except the failure to charge an essential element of the crime and lack of subject-matter jurisdiction. See Joiner v. State, 61 So.3d 156, 158-59 (¶ 7) (Miss.2011) (citing Conerly v. State, 607 So.2d 1153, 1156 (Miss.1992)). Notwithstanding his waiver, Scott’s indictment was sufficient to provide him reasonable notice of the charges against him. This issue is without merit.

2. Ineffective Assistance of Counsel

¶ 11. Scott argues his attorney was ineffective by allowing him to plead guilty to a defective indictment. 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, 476-77 (Miss.1984). “First, the defendant must show that counsel’s performance was deficient. ... Second, the defendant must show that the deficient performance prejudiced the defense.” Id. at 477 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). An ineffective-assistance-of-counsel claim must be sufficiently supported to overcome the time-bar. Barnes v. State, 949 So.2d 879, 881 (¶¶7-8) (Miss.Ct.App.2007). As already discussed, Scott’s indictment was not defective. Accordingly, this issue is without merit.

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

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