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

text:
    Allan Arthur ARANYOS, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00351-COA.
    Court of Appeals of Mississippi.
    Jan. 29, 2013.
    Rehearing Denied June 11, 2013.

      Allan Arthur Aranyos, appellant, prose.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. Allan Arthur Aranyos was indicted on one count of embezzlement. At his plea hearing on September 24, 2009, the State amended the indictment to reflect that Ar-anyos was a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). Aranyos pleaded guilty and was sentenced to ten years, with five years to be served in the custody of the Mississippi Department of Corrections (MDOC) and five years of probation.

¶ 2. Aranyos filed a motion for post-conviction relief, claiming he was erroneously sentenced as a habitual offender. The circuit court denied the motion, and finding no error on appeal, we affirm.

STANDARD OF REVIEW

¶ 3. A circuit court’s denial of a motion for post-conviction relief will not be disturbed on appeal unless its factual findings are “clearly erroneous.” Mann v. State, 73 So.3d 564, 565 (¶ 4) (Miss.Ct.App.2011) (citing Bradley v. State, 919 So.2d 1062, 1063 (¶ 6) (Miss.Ct.App.2005)). “However, where questions of law are raised, the applicable standard of review is de novo.” Id.

DISCUSSION

I. Whether Aranyos’s prior conviction and sentence of probation support his classification as a habitual offender.

¶ 4. Aranyos argues that one of the prior convictions used by the State to support his habitual-offender status does not meet the statutory requirements of section 99-19-81, which states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

(Emphasis added). The amended indictment listed two prior convictions to support Aranyos’s classification as a habitual offender. The first was an Ohio conviction for bank robbery, for which Aranyos received a sentence of thirty-seven months of imprisonment and two years of supervised release. The second conviction, from Pennsylvania, was for Count One, burglary, for which Aranyos received five years of probation, to run consecutively to the sentence for Count Two, theft by unlawful taking or disposition. For Count Two, Aranyos received “an indefinite term, the minimum of which shall be eleven and one[-] half (11½) calendar months, and the maximum twenty[-]three (23) calendar months[.]” Count Two was not specifically listed in the amended indictment as a prior conviction, although the “Order of Parole” and plea agreement for Count Two were included in the circuit court’s record. The basis of Aranyos’s argument on appeal is that since his sentence for the Pennsylvania burglary conviction (Count One) was merely for five years of probation, he was never sentenced to a term in a penal institution for this particular conviction, and the prior conviction does not meet the requirements of section 99-19-81. After reviewing the relevant authority, we find there was sufficient evidence to support Aranyos’s classification as a habitual offender.

¶ 5. In the appellee’s brief, the State contends that Aranyos admitted to his prior convictions at the plea hearing and summarily states that Aranyos’s allegations regarding his Pennsylvania burglary conviction “are unsupported!)]” The State is correct that a defendant’s admission to prior convictions is sufficient to meet the necessary burden of proof.

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). The following conversation took place at the hearing:

Q. Do you admit you’ve been convicted of these two underlying convictions which establish you as a habitual offender?
A. Yes, Your Honor.
Q. Do you also admit that you’ve been convicted of these underlying felonies which establish you as a habitual offender.
A. Yes, Your Honor.

Thus, Aranyos did admit that he had been convicted of the two underlying convictions listed in the indictment.

¶ 6. However, we cannot state with certainty that Aranyos’s acknowledgment of his prior conviction and sentence of probation in the indictment constitutes an admission of “those facts which establish his habitual status.” See id. As the State did not substantively address Aranyos’s argument in its brief, we requested supplemental briefing on this issue.

¶ 7. In its supplemental brief, the State argues that actual incarceration for a prior conviction is not required in order to be sentenced as a habitual offender. The State is correct that Mississippi precedent has consistently held:

Service of [a] sentence through actual incarceration is not mandatory when considering habitual[-]offender status under [section] 99-19-81. Where a defendant has been twice previously judged guilty of distinct felonies on which sentences of one year or more have been pronounced, irrespective of subsequent probation or suspension, statutory intent is satisfied regarding habitual[-]offender statutes.

Green v. State, 802 So.2d 181, 183-84 (¶ 14) (Miss.Ct.App.2001) (citing Jackson v. State, 381 So.2d 1040, 1042 (Miss.1980)). Considering a defendant’s prior convictions originating in Alabama, the Mississippi Supreme Court, in Jackson, 381 So.2d at 1042, stated:

We are of the opinion [section 99-19-81] is intended to cure the evil of recidivism. Enhanced punishment relates to the conduct underlying the previous convictions. Adjudication of guilt and consequent pronouncements of sentences merely accord those convictions finality. Subsequent suspension of the sentences or probation is a matter of grace only, arising from the hope that the prospects of rehabilitation of the guilty warrant leniency. Clearly that hope is defeated when the beneficiary of the indulgence perpetrates further felonies. The statute is suited precisely to this problem.

(Emphasis added). However, the supreme court noted that the Alabama circuit court, in the prior convictions, had sentenced the defendant to imprisonment for three years; the defendant was the one who applied for and was granted probation, with his sentences suspended.

¶ 8. In Anderson v. State, 766 So.2d 133, 135 (¶ 6) (Miss.Ct.App.2000), the defendant argued that his prior conviction from Kentucky “only carried a probated sentence instead of a sentence to a penal institution.” We found no error in the circuit court’s sentencing of the defendant as a habitual offender under section 99-19-81, even though he had only received five years of probation on one of his prior convictions. Anderson, 766 So.2d at 136 (¶ 9). “[I]t was Anderson’s good fortune that his sentence was probated for five years subject to his continuing to meet certain conditions, therefore relieving Anderson of the burden of incarceration.” Id.; see also Williams v. State, 24 So.3d 360, 364-65 (¶ 11) (Miss.Ct.App.2009) (“This statute merely requires that the defendant be sentenced to one year or more for each crime. It does not require that the individual be incarcerated under his imposed sentences to obtain habitual[-]offender status.” (citing Davis v. State, 5 So.3d 435, 441 (¶ 14) (Miss.Ct.App.2008))).

¶ 9. More recently, we addressed this issue again in Middleton v. State, 49 So.3d 161 (Miss.Ct.App.2010). Kurt Middleton claimed that classifying him as a habitual offender was error since “he was only sentenced to prison for one of the two crimes used to determine his habitual-offender status.” Id. at 164 (¶ 11). The sentence for his second conviction, which was from Wisconsin, was “withheld,” and Middleton was placed on probation for five years “in the custody and control of the Wisconsin Department of Health and Social Services.” Id. Since there was a third prior conviction that met the statutory requirements of section 99-19-81, we declined to address Middleton’s argument as to “whether the second sentencing report was sufficient to convict [him] as a habitual offender,” finding it “unclear.” Id. at 165 (¶ 11). However, we will now clarify this issue, as it applies to the present case.

¶ 10. Aranyos’s prior burglary conviction and sentence of five years of probation originated in Pennsylvania. Under 42 Pennsylvania Consolidated Statutes Annotated section 9721(a)(1), a court may impose an “order of probation” as an sentencing alternative. See Com. v. Childs, 445 Pa.Super. 32, 664 A.2d 994, 996 (1995) (Under section 9721, “the trial court may select from the alternatives of probation, determination of guilty without a penalty, partial or total confinement, fines or intermediate punishment.”). “Probation is a separate sentence permitted by the Sentencing Code under certain circumstances.” Com. v. Deshong, 850 A.2d 712, 716 (¶ 15) (Pa.Super.Ct.2004). “Probation is a suspended sentence of incarceration served upon such terms and conditions as imposed by the sentencing court.” Fleegle v. Pa. Bd. of Prob. & Parole, 110 Pa.Cmwlth. 227, 532 A.2d 898, 899 (1987) (citation omitted).

¶ 11. Moreover, “[n]o section of the Sentencing Code contemplates imprisonment as an element of a probationary sentence; probation is in fact a less restrictive alternative to imprisonment directed at rehabilitating the defendant without recourse to confinement during the probationary period.” Com. v. Basinger, 982 A.2d 121, 127 (¶ 13) (Pa.Super.Ct.2009) (citing Com. v. Crosby, 390 Pa.Super. 140, 568 A.2d 233, 235 (1990)); see also Klouda v. Sixth Judicial Dist. Dep’t of Cor. Servs., 642 N.W.2d 255, 262 (Iowa 2002) (“Probation ‘relates to judicial action taken before the prison door is closed.’” (quoting State v. Wright, 202 N.W.2d 72, 76 (Iowa 1972))). Even Black’s Law Dictionary defines probation as a “court-imposed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the criminal to jail or prison.” Black’s Law Dictionary 1240 (8th ed.2004) (emphasis added). Accordingly, we conclude that Aranyos’s prior Pennsylvania burglary conviction and sentence of five years of probation was not a sentence to a term in a penal institution and does not satisfy the requirements of section 99-19-81.

¶ 12. However, as in Middleton, we find there was evidence of a third conviction that satisfies the requirements of section 99-19-81. The amended indictment stated that the sentence for Aranyos’s Pennsylvania burglary conviction (Count One) was to run consecutively with his sentence for Count Two, which was “an indefinite term, the minimum of which shall be eleven and one half (11½) calendar months, and the maximum twenty[-]three (23) calender months[.]” See Basinger, 982 A.2d at 127 (¶ 13) (holding that “probation may be employed in conjunction with confinement as a ‘tail’ designed to assist the defendant in reintegrating with society following a term of imprisonment, or may be imposed where mitigating factors make prison unnecessary”). Although the Count Two conviction was not listed on the amended indictment except by reference, the sentencing order for the conviction was included in the circuit court’s record to support Aranyos’s habitual-offender status. Thus, although the Count Two conviction was not mentioned at the plea hearing, we find that it was clearly in the record before the court. See Heidelberg v. State, 45 So.3d 730, 733 (¶ 14) (Miss.Ct.App.2010) (“Sentencing orders are competent evidence of previous convictions.” (quoting Harper v. State, 887 So.2d 817, 828 (¶ 49) (Miss.Ct.App.2004))); Frazier v. State, 907 So.2d 985, 991-92 (¶¶ 16-18) (Miss.Ct.App.2005) (certified pen-packs proving prior convictions sufficient to establish “habitual enhancement”).

¶ 13. Aranyos contends that his sentence for Count Two also “does not qualify under the statute” since it was for a minimum of eleven and one-half months. We find no merit to this argument. “[U]n-der Pennsylvania law, the sentence imposed for a criminal offense is the maximum term. The minimum term merely sets the date prior to which a prisoner may not be paroled.” Krantz v. Pa. Bd. of Prob. & Parole, 86 Pa.Cmwlth. 38, 483 A.2d 1044, 1047 (1984) (citing Gundy v. Pa. Bd. of Prob. & Parole, 82 Pa.Cmwlth. 618, 478 A.2d 139, 141 (1984)). “[A] prisoner has no absolute right to be released from prison on parole upon the expiration of the prisoner’s minimum term.” Id. (citation omitted); see also State v. Luna, 211 Neb. 630, 319 N.W.2d 737, 740 (1982) (holding that an indeterminate sentence is sufficient to satisfy a minimum term requirement for habitual-offender status, as the defendant might have been made to serve the entire term). But see State v. Perkins, 169 Conn. 263, 363 A.2d 141, 143 (1975) (A “sentence ... for an indefinite term was not a sentence for ‘an imposed term of more than one year’ ” within the meaning of Connecticut’s “persistent felony offender” statute.) While the minimum term for Aranyos’s sentence for Count Two was slightly less than one year, the maximum term was twenty-three months. Therefore, we find his conviction and sentence for Count Two satisfies the prior-conviction requirements in section 99-19-81.

¶ 14. Accordingly, we find that Aran-yos’s classification as a habitual-offender is supported by the record.

II. Whether defense counsel’s failure to identify the deficiency in the prior conviction constituted ineffective assistance.

¶ 15. Aranyos also claims that his counsel’s performance was ineffective, citing counsel’s failure to recognize that his prior Pennsylvania conviction was insufficient to support his status as a habitual offender. In order for a defendant to prove ineffective assistance of counsel, he must establish that: “(1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense.” Dunlap v. State, 70 So.3d 1140, 1143 (¶ 13) (Miss.Ct.App.2011) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To overcome the strong presumption “that counsel’s performance falls within the range of reasonable professional assistance,” a defendant “must ‘show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

¶ 16. Aranyos’s only claim is that his counsel did not inform him that his prior conviction was not sufficient to classify him as a habitual offender. As we have found no error in the circuit court’s sentencing, this issue is without merit. Aranyos has failed to prove any deficiency on the part of his counsel that resulted in prejudice.

¶ 17. Accordingly, we find no error in the circuit court’s denial of Aranyos’s motion for post-conviction relief.

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

LEE, C.J., IRVING, P.J., ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. ROBERTS, J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J.; FAIR, J., JOINS IN PART. JAMES, J., NOT PARTICIPATING.

ROBERTS, J.,

concurring in part and in the result:

¶ 19. I concur with the majority’s resolution of Aranyos’s claim that he received ineffective assistance of counsel. Furthermore, I concur with the majority’s result regarding Aranyos’s claim that he was illegally sentenced as a habitual offender. I write separately to express my reasoning regarding why the circuit court correctly dismissed Aranyos’s illegal-sentence claim.

¶ 20. At issue is whether Aranyos was illegally sentencéd as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). During Christmas 2006, Aranyos was the manager of a Circle K convenience store in Southaven, Mississippi. Aranyos embezzled approximately $33,000 and attempted to evade capture. However, he was later arrested and indicted for one count of embezzlement. The prosecution later moved to amend the indictment to charge Aranyos as a habitual offender under section 99-19-81.

¶21. The prosecution presented documentary evidence that in 1983, Aranyos had been convicted of burglary in Pennsylvania related to Aranyos having broken into a Wendy’s restaurant and stolen $5,500 from a floor safe. Attached to the prosecution’s motion to amend the indictment were Pennsylvania court documents that indicated that Aranyos had also pled guilty to what was characterized as a third-class felony of “theft by unlawful taking.” For Aranyos’s burglary conviction, the Pennsylvania court had suspended his sentence and placed him on probation for five years, to run consecutively to his sentence for “theft by unlawful taking.” And for “theft by unlawful taking,” the Pennsylvania court sentenced Aranyos to imprisonment for a term between eleven and one-half months and twenty-three months. The record does not indicate whether Ar-anyos actually served at least one year for his conviction for “theft by unlawful taking.”

¶ 22. Additionally, the prosecution demonstrated that Aranyos had a 1991 Ohio conviction for bank robbery in Ohio. Aran-yos’s sentence for bank robbery is much clearer than his earlier sentence for “theft by unlawful taking.” For bank robbery, Aranyos was sentenced to thirty-seven to forty-six months in federal prison.

¶ 23. On September 24, 2009, Aranyos went before the DeSoto County Circuit Court to plead guilty to embezzlement. When specifically questioned by the circuit judge, neither Aranyos nor his counsel objected to the prosecution’s request to amend the indictment to charge Aranyos as a habitual offender. Likewise, Aranyos did not object to the documents that supported that amendment.

¶24. It is clear that Aranyos pled guilty to embezzlement based on a plea recommendation or plea bargain from the prosecution. The following exchanges appear in the record:

Q. By submitting this petition, you’re asking to enter a plea of guilty to the only count in the indictment, as amended, that being embezzlement as a[s]ection 99-19-81 habitual offender; is that correct?
A. (By the Defendant Aranyos) Yes, Your Honor.
Q. Do [you] understand a negotiated plea means the District Attorney, your attorney[,] and you have reached an agreement as to a recommendation to be made to this Court on your sentence? Do you understand that? A. Yes, sir.
BY THE COURT: It looks like on Mr. Aranyos the recommendation is five, to serve, five post-release, fines, costs, and assessments. Is that the State’s understanding?
BY [THE PROSECUTION]: Yes, Your Honor....
Q. I note everything else to be — I’ll note, first of all, your sentence will be ten years in the Mississippi Department of Corrections as a[s]ection 99-19-81 habitual offender to be served five years [of] incarceration, five years [of] post-release supervision, reporting required, $1,000 fine and court costs, $665 transportation fee, $32,653.74 to Circle K as restitution. All of that will be payable per the attachment that the DA is going to submit that she has just read into the record. Credit for 85 days time [for] served. All terms and conditions of the Written Sentencing Order, [p]ost-[r]elease [supervision being incorporated into this sentence by reference.
BY THE COURT: Anything further from the State?
BY [THE PROSECUTION]: No, Your Honor.
BY THE COURT: Anything further, [defense counsel]?
BY [DEFENSE COUNSEL]: No, Your Honor.
Q. Mr. Aranyos, do you need me to explain any of this to you?
A. (By the Defendant Aranyos) No, Your Honor.
Q. Do you understand if you violate this order, you’ll be brought back before this court in front of a judge, not a jury, and if it’s deemed you have violated, you can be sentenced to the remaining five years in prison?
A. (By the Defendant Aranyos) Yes, Your Honor.
Q. Do you understand that whatever you’re sentenced to it will be as a 99-19-81 habitual offender?
A. (By the Defendant Aranyos) Yes, Your Honor.
Q. Do you have any questions about any of that?
A. (By the Defendant Aranyos) No, Your Honor.
BY THE COURT: That will be the order of the Court.

¶ 25. The circuit judge clearly informed Aranyos that he was sentenced as a habitual offender to ten years in the custody of the MDOC, with five years to be served followed by five years of post-release supervision (PRS) under Mississippi Code Annotated section 47-7-34 (Rev.2011). After discharge from his initial five-year sentence, if Aranyos violated the conditions of his PRS, the circuit court could revoke Aranyos’s suspended sentence and sentence him to the remaining five years as a habitual offender.

¶26. Dissatisfied with his plea agreement and his sentence as a habitual offender, one year after Aranyos pled guilty, he filed his motion for post-conviction relief (PCR). Aranyos claimed that he did not plead guilty intelligently, knowingly, and voluntarily. Aranyos also claimed that his sentence was illegal. Finally, Ar-anyos claimed he had received ineffective assistance of counsel. The circuit court denied Aranyos’s PCR motion. On appeal, Aranyos reiterates the claims he raised in his PCR motion.

¶27. If Aranyos had claimed that he received an illegal sentence based on the concept that the circuit judge lacked authority to suspend part of Aranyos’s ten-year sentence as a habitual offender and place him on PRS, I would have agreed with him. The Mississippi Legislature has mandated that a convicted felon who qualifies for enhanced sentencing as a habitual offender under section 99-19-81 “shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.” When the prosecution offers an accused felon a plea bargain that includes a sentence that is not authorized by law, and a circuit court sen-fences the accused consistent with the plea bargain, it is appropriate to allow him to withdraw that guilty plea and remand his case to the trial court’s docket for trial or another appropriate disposition. Lanier v. State, 635 So.2d 813, 816-17 (Miss.1994) (overruled on other grounds by Twillie v. State, 892 So.2d 187, 190 (¶ 11) (Miss.2004)).

¶ 28. Not surprisingly, Aranyos is careful to claim that his sentence is illegal only in that there was inadequate proof that his prior convictions met the parameters of section 99-19-81. Aranyos seeks resen-tencing to the same sentence, less the habitual-offender status. To be specific, Aranyos claims:

Petitioner does not challenge the length of sentence, nor the terms of probation attached; only the sentencing as [a] habitual offender under [section] 99-19-81. Since the [S]tate also violated the statute by imposing a term of probation on a[ ] habitual sentence, [Petitioner could also ask that the habitual portion be vacated on that reason as well, as the imposition of a term of suspension, reduced [sentence,] or ... probation is not allowed under [section] 99-19-81. This could also be cited as grounds for an illegal sentence. But Petitioner would not insult this Court by knowing that he received a favorable sentence, and then try to claim that as a ground for vacating his sentence. Petitioner, again, is only asking for removal of the “habitual[-]offender” status due to the procedural errors and the use of convictions that clearly did not meet the statutory requirements under [section] 99-19-81. Petitioner feels the five ... years to serve[ ] and five ... years of probation [are] more than fair for a charge of embezzlement.

And in his request for relief, Aranyos stated:

Wherefore!,] for premises considered, the Petitioner respectfully requests that th[is] Court ... vacate the sentence complained of insofar as the Court purports to impose said sentence “as a[] habitual offender,” as the sentence complained of is illegal.... Petitioner is not arguing the substance of the crime of which he was charged, but only the habitual portion of the sentence. Petitioner asks that this Honorable Court will vacate the habitual portion of this sentence and re[ feentence as other than a[ ] habitual offender. Petitioner argues that his five[-]year sentence and his five years of probation [are] a reasonable sentence for embezzlement.

Clearly, Aranyos has not claimed that his sentence is illegal based on the circuit court’s failure to sentence him to the maximum permissible term for embezzlement or the circuit court’s partial suspension of his sentence and its imposition of a term of post-release supervision.

¶ 29. After careful review of the record, I conclude that Aranyos’s status as a habitual offender under section 99-19-81 is hopelessly ambiguous. If Aranyos served one year of his Pennsylvania sentences, he may well have been eligible for a life sentence under Mississippi Code Annotated section 99-19-83 (Rev.2007). In any event, it was Aranyos’s burden to prove by a preponderance or greater weight of the credible evidence that his sentence was in violation of Mississippi law or that his guilty plea was involuntary. Miss.Code Ann. § 99-39-23(7) (Supp.2012). Yet, as the majority properly quotes from the plea colloquy, while he was under oath, Aranyos twice swore that his prior convictions qualified him for enhanced sentencing as a habitual offender under section 99-19-81. “Great weight is given to statements made under oath and in open court during sentencing.” Gable v. State, 748 So.2d 703, 706 (¶ 11) (Miss.1999). Under such circumstances, I would not allow Aranyos to attempt to repudiate the very words from his own mouth. Accordingly, I concur with the majority’s decision to affirm the circuit court’s denial of Aranyos’s PCR motion.

GRIFFIS, P.J., JOINS THIS OPINION. FAIR, J„ JOINS THIS OPINION IN PART.

      . As Aranyos is acting pro se, we also requested and were provided with an amicus curiae supplemental brief from the Criminal Appeals Clinic at the University of Mississippi School of Law. The Criminal Appeals Clinic is headed by Professor Phillip Broadhead, who authored the brief. The amicus brief limited its argument to the fact that Aranyos admitted the prior convictions.

      . I recognize that the record includes an order entered sua sponte by the circuit judge almost seventeen months after Aranyos pled guilty. Within that order, the circuit judge attempted to perform a constitutional proportionality analysis to justify Aranyos’s sentence. I have been unable to discover any authority that would allow a circuit court to consider such factors as the strength or weakness of the prosecution’s case, a desire to fashion a sentence that would allow potential financial payment to the victim, or the prosecution and the defendant's agreement on a proposed sentence as valid considerations for an Eighth Amendment claim that a mandatory sentence is "cruel and unusual." To the contrary, a ten-year mandatory sentence for a fifty-three-year-old defendant who has been convicted of embezzling approximately $33,000, with prior convictions for bank robbery, burglary, and the equivalent of grand larceny, clearly cannot be classified as constitutionally disproportionate.


source: Caselaw Access Project

author: JAMES, J.,

license: Public Domain

text:
    Stacey HALL, in her Capacity as Parent, Next Friend and Guardian of the Persons and Estates of Courtney Hall & Colden Hall, and on Behalf of all Wrongful Death Beneficiaries of John Hall, Deceased, Appellant v. MI TORO # 2, INC., and Antonio T. Garcia, Appellees.
    No. 2011-CA-01860-COA.
    Court of Appeals of Mississippi.
    April 30, 2013.

      P. Nelson Smith, Columbus, attorney for appellant.
    John D. Brady, Columbus, attorney for appellees.
    Before GRIFFIS, P.J., FAIR and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Stacey Hall appeals the Lowndes County Circuit Court’s grant of summary judgment in favor of Mi Toro # 2, a Mexican restaurant, and its owner, Antonio Garcia. She raises one issue on appeal: whether the circuit court erred in granting summary judgment to the non-defaulting defendants, Mi Toro and Garcia, after granting a default judgment to a codefen-dant, Julian Lopez. Upon review, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 1, 2010, John Hall was driving his motorcycle on Highway 45 North. As he approached the intersection of Highway 45 and 31st Avenue North, Lopez made a left turn in front of John, striking and killing John instantly. Lopez was intoxicated at the time, with a blood-alcohol content of .227.

¶ 3. John’s former wife, Stacey, filed suit on behalf of the wrongful death beneficiaries against Mi Toro, Garcia, and Lopez. She alleged that Lopez was employed at Mi Toro as a bus boy, and that he was' in the course and scope of employment at the time of the collision. Stacey’s claims against Mi Toro and Garcia were based on vicarious liability (respondeat superior) and negligent entrustment.

¶4. On October 1, 2010, Lopez was served with process. On October 2, 2010, Garcia and Mi Toro were served with process. On October 29, 2010, Mi Toro and Garcia separately filed answers. Lopez never filed an answer to the complaint.

¶ 5. On February 1, 2011, Stacey filed an application to the circuit clerk for entry of default against Lopez for his failure to plead, answer, or otherwise defend. The clerk entered a docket entry of default. On February 15, 2011, the circuit court entered a default judgment against Lopez for his failure to plead or otherwise defend.

¶ 6. On February 18, 2011, Mi Toro and Garcia filed a motion to set aside the default judgment entered against Lopez and to hold the entry of default in abeyance. On May 26, 2011, Stacey filed her response to the motion to set aside the default judgment. On June 15, 2011, an agreed order was entered setting a hearing on the motion to set aside the default judgment for August 3, 2011. On August 13, 2011, the circuit court entered an order, holding that: (1) the default judgment entered against Lopez would not be set aside and would remain in full force and effect; and (2) the assessment of damages against Lopez would not go forward prior to trial and would be held in conjunction with the trial.

¶ 7. On September 2, 2011, Mi Toro and Garcia filed a motion for summary judgment, arguing that there was no genuine issue of material fact because: Lopez did not work at Mi Toro on the day of the collision; Lopez was not in the course and scope of his employment at the time of the collision; and neither Mi Toro nor Garcia supplied Lopez with the vehicle he was driving at the time of the collision. On September 13, 2011, an order was entered setting a hearing on the motion for summary judgment for October 6, 2011. On September 23, 2011, Stacey filed her response to the motion for summary judgment. On October 3, 2011, Mi Toro and Garcia filed a rebuttal in support of their motion for summary judgment. On October 5, 2011, Mi Toro and Garcia filed a supplement to their motion for summary judgment. On October 6, 2011, a hearing was held on Mi Toro and Garcia’s motion for summary judgment.

¶ 8. On October 25, 2011, the circuit court entered an order granting summary judgment in favor of Mi Toro and Garcia, finding that Stacey had failed to produce sufficient evidence to create a genuine issue of material fact as to whether Lopez was acting within the course and scope of his employment with Mi Toro at the time of the collision. The order reads, in pertinent part, as follows:

In their motion, [Mi Toro and Garcia] argue that Lopez was neither acting within the scope of his employment nor present at Mi Toro ... on the date that his collision occurred[; therefore, they] cannot be held liable for Lopez’s actions under the doctrine of respondeat superi- or. To show that no genuine issue of material fact exists as to this issue, [Mi Toro and Garcia] have submitted time cards for the period of June 15, 2010[,] to July 15, 2010, including Lopez’s. These time cards show that the last time Lopez clocked in or out of work was at 10:29 p.m. on June 30, 2010. Also, [Mi Toro and Garcia] have submitted affidavits from nine of their employees!,] stating that they were at work on July 1, 2010[,] and at no time did they see Lopez. In addition to the affidavits of these nine employees!, Mi Toro and Garcia] also submitted the affidavits of the manager and assistant manager who were working at Mi Toro ... on July 1, 2010. Both men stated that Lopez was not working that day and that they did not see him in the restaurant. As a result of this evidence[,] the [c]ourt finds that [Mi Toro and Garcia] have shown that no genuine issue of material fact exists[J

¶ 9. On November 14, 2011, the circuit court entered an order and final judgment of dismissal with prejudice under Rule 54(b) of the Mississippi Rules of Civil Procedure. Stacey appealed the circuit court’s order granting summary judgment.

DISCUSSION

¶ 10. “We conduct a de novo review of a trial court’s grant or denial of a motion for summary judgment.” Parmenter v. J & B Enterprises, Inc., 99 So.3d 207, 213 (¶ 7) (Miss.Ct.App.2012). Under Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(e) further provides:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein.... When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials in his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

M.R.C.P. 56(e). In determining whether summary judgment was properly granted by a trial court, we view “the facts in the light most favorable to the nonmovant.” Parmenter, 99 So.3d at 213 (¶ 7). “The burden of demonstrating that there are no genuine issues of material fact is upon the movant, and the non-moving party must be given the benefit of every reasonable doubt.” Id.

¶ 11. It is well established that an “employer is responsible for the torts of its employee only when the torts are ‘committed within the scope of the employment.’ ” Id. at 215-16 (¶ 14) (quoting Favre v. Wal-Mart Stores, Inc., 820 So.2d 771, 773 (¶ 5) (Miss.Ct.App.2002)). In determining whether the tort was committed in the course and scope of employment, we consider the following:

whether it was done in the course of and as a means to the accomplishment of the purposes of the employment and therefore in furtherance of the master’s business. Also include in the definition of “course and scope of employment” are tortious acts incidental to the authorized conduct. That an employee’s acts are unauthorized does not necessarily place them outside the scope of employment if they are of the same general nature as the conduct authorized or incidental to that conduct. However, a master is not liable for its employee’s actions if the employee “abandoned his employment and went about some purpose of his own not incidental to the employment.”

Id. at 216 (¶ 14) (internal citations and quotations omitted).

¶ 12. In the case before us, it is undisputed that Lopez was a bus boy at Mi Toro. However, the parties dispute whether Lopez was working on the day of the collision and whether Lopez was within the course and scope of his employment. Stacey argues that Lopez was working on the day of the collision, and she relies' solely on a newspaper article published on July 10, 2010, which stated that Lopez “was leaving his job at Mi Toro Mexican Restaurant— he’s since been fired from the restaurant— when he turned left onto 31st Avenue into [John’s] path. [John’s] motorcycle struck Lopez’s 2004 Dodge Stratus, causing [John] major head and chest trauma[,] which resulted in his death.” Mi Toro and Garcia contend that this article contained incorrect information. According to Mi Toro and Garcia, Lopez was not scheduled to work on the day of the collision; Lopez did not in fact work on the day of the collision; and Lopez was never even at Mi Toro on the day of the collision. Mi Toro and Garcia obtained an affidavit from Pedro Valencia, the computer hardware and software installer for Mi Toro, which explained that Lopez was not working on the day of the collision according to Mi Toro’s time-card system:

Attached as Exhibit 1 is the Employee Time Card and Job Detail for Mi Toro ... in Columbus, Mississippi, from June 15, 2010[,] to July 8, 2010. The system sold to Mi Toro ... was a five terminal Micros Res 3700. The system is used for ... clocking employees in and out of the work. The employee goes to the terminal, enters his/her employee code number[,] and enters whether he/she is clocking in or out. The information is stored in the system and cannot be changed or manipulated by anyone at Mi Toro. Periodically, the information in the system is recorded to DVDs, and the system is purged of the data.
From the information contained in the system, the total number of hours worked within a pay period is given to Mi Toro’s bookkeeper, who then issues payment to the employees.
Once the information is saved to DVD, the DVD is maintained at Mi Toro. No one at Mi Toro can access the data because it is I.D. code and password protected. I have the information to access data, but the owners and employees of Mi Toro do not.
In order to print the Employee Time Card and Job Detail document attached as Exhibit 1,1 first received the relevant DVD from Mi Toro. I then entered the I.D. code and password. Next, I entered the search parameters of June 15, 2010[,] to July 15, 2010. The attached report was retrieved, and I printed it. Exhibit 1 shows all hourly employees of Mi Toro in Columbus, Mississippi, who clocked in and/or out from June 15, 2010[,] to July 3, 2010. It shows the employee’s number, employee’s name, [and] the date of when the employee clocked [in] and clocked out.
The report shows that employee “211-Julian Lopez” last clocked in for Mi Toro on Wednesday, June 30, 2010, at 5:30 p.m., and last clocked out on June 30, 2010, at 10:20 p.m. The report shows that employee “211-Julian Lopez” did not clock in or clock out on Thursday, July 1, 2010. If he had, it would be shown on Exhibit 1.

¶ 13. Mi Toro and Garcia also obtained affidavits from nine Mi Toro employees, and each employee stated: “On July 1st, 2010, I worked at the restaurant. At no time on that day did I see Julian Alvarez Lopez at the restaurant for any reason.” Additionally, Lopez himself executed an affidavit, which read, in pertinent part: “On July 1, 2010, I, Julian Alvarez Lopez, neither worked for, nor at the Mi Toro restaurant located [in] Columbus, Mississippi. In fact, I did not go to such restaurant at all for any purpose whatsoever on that day.”

¶ 14. Mi Toro’s manager, Gilberton Barreto, executed an affidavit explaining that he was in charge of setting the work schedules. Barreto’s affidavit further stated:

Julian Alvarez Lopez had the day off on July 1, 2010. He did not work for Mi Toro that day. At no time did I see him at Mi Toro on July 1, 2010.... At the time of the collision on July 1, 2010, Julian Alvarez Lopez was not running an errand or doing anything for Mi Toro. He was off work that day and, as far as I know, was doing personal things. He was not in the course and scope of his employment with Mi Toro. Also, he was not doing anything for [Garcia]. Garcia was not in Columbus on July 1, 2010[,] and, therefore, could not and did not request that [Lopez] do anything for him.... After the collision, I interviewed all of the employees of Mi Toro to determine whether any of them saw [Lopez] at Mi Toro on July 1, 2010. Each of them told me that [Lopez] had not been at Mi Toro for any reason that day.

¶ 15. Mi Toro’s assistant manager, Alejandro Cruz Mendez, signed an affidavit, which stated:

[Lopez] did not work at Mi Toro on July 1, 2010, or come to the restaurant for any reason while I was there.
At no time on July 1, 2010, or any time before that, did I ask [Lopez] to do anything for the restaurant that day. At the time of his collision on July 1, 2010, he was not doing anything on behalf of the restaurant. He had the day off that day and, as far as I know, he was taking care of personal business.

¶ 16. Based on the affidavits presented by Mi Toro and Garcia and the lack of evidence to the contrary, we cannot say that there was a genuine issue of material fact as to whether Lopez was in the course and scope of his employment at the time of the collision. Although Lopez was an employee of Mi Toro, there was no evidence that he was running errands for Mi Toro at the time of the collision. Further, Lopez never clocked in or out that day, and no one saw Lopez at the restaurant that day. Because Lopez was not working that day or doing anything in furtherance of — or incidental to — Mi Toro’s business, he could not be considered in the course and scope of his employment at the time of the collision. Therefore, summary judgment was properly granted, and we affirm.

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

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

      . According to Stacey’s discovery responses, the wrongful-death beneficiaries were John’s children: Jonathon Hall, Courtney Hall, and Colden Hall.


author: ROBERTS, J.,

text:
    Shelly KELLY, Appellant v. Harrison BARRY, Appellee.
    No. 2011-CA-01157-COA.
    Court of Appeals of Mississippi.
    May 21, 2013.

      Alsee McDaniel, Indianola, attorney for appellant.
    Wayne O’Dell Lee, Greenville, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal centers on a property transaction that mistakenly transferred title to two houses rather than one. Shelly Kelly bought a house from Harrison Barry for $5,000. More than two years later, Barry realized that the description of the property in Kelly’s warranty deed included the house that Kelly bought as well as the house next door. Kelly would not sign a quitclaim deed to correct the mistake, so Barry sued Kelly to reform Kelly’s deed. The Washington County Chancery Court found that there had been a mutual mistake in Kelly’s deed. Consequently, the chancellor reformed the deed to reflect the fact that Kelly had only purchased one house from Barry, rather than two houses. Kelly appeals. Kelly claims the chancellor erred when she found there was a mutual mistake in the deed. Kelly also claims the chancellor erred when she prohibited Kelly from presenting evidence to support a counterclaim that Kelly did not raise in her pleadings. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Barry owned two lots in the Shelton Subdivision in Greenville, Mississippi. The two lots have street addresses listed as 330 Lake Street and 332 Lake Street. Kelly approached Barry in November 2006 for the purpose of renting a house. However, Kelly and Barry agreed that Kelly would buy a house that Barry owned at 330 Lake Street for $5,000. Barry approached his attorney, Edward A. Lueck-enbach, and asked him to prepare a deed. By the terms of their agreement, Kelly paid Barry $1,000 down, and Barry financed the remaining $4,000 per the terms of a promissory note and a deed of trust.

¶ 3. While preparing the necessary documents, Lueckenbach went to the Washington County courthouse to obtain a legal description of the property at 330 Lake Street. Lueckenbach was not asked to conduct a title search. Lueckenbach pulled the tax statement for the property, which referred him to a book and page of the deed by which Barry had obtained the property. That deed contained descriptive language for “Lots 51 & 52.” Luecken-bach did not realize that Lots 51 and 52 included both 330 Lake Street and 332 Lake Street, since the deed did not reference actual street addresses.

¶ 4. After their transaction, Barry converted 332 Lake Street from a single-family dwelling to a boarding house. He paid for air conditioning and plumbing repairs. He also paid Samuel Goods to install a new water heater, furnace, closet, door locks, and doors. Barry also paid for all of the necessary materials. Additionally, Barry paid Goods to paint and repair the bathroom. Barry paid all of the utilities, taxes, and insurance premiums for 332 Lake Street. When Kelly complained that the tenants at 382 Lake Street were too loud, Barry allowed her to screen the tenants. Kelly collected the rent from the tenants at 382 Lake Street, and she turned it over to Barry.

¶ 5. In early 2009, Kelly contacted Barry and asked him why the tax statement for 332 Lake Street was mailed to her house. Barry then contacted Lueckenbach, who then discovered that Kelly’s deed mistakenly transferred title to 330 Lake Street and 332 Lake Street. Lueckenbach’s office contacted Kelly and asked her to sign a quitclaim deed to correct the error. Kelly read the quitclaim deed that Luecken-bach had prepared, but she refused to sign it. Kelly then began paying the taxes and utilities for 332 Lake Street. Barry asked Kelly why she would not sign the deed correcting the mistake in the original deed. Kelly responded that it was not her mistake.

¶ 6. In August 2009, Barry filed a complaint against Kelly. Barry claimed that Kelly had obtained the property at 332 Lake Street due to a scrivener’s error. According to Barry, he had not intended to convey title to 332 Lake Street, and Kelly had not intended to acquire title to 332 Lake Street. In other words, Barry claimed that Kelly had obtained title to 332 Lake Street as a result of their mutual mistake. Barry requested that the chancery court reform the deed to 332 Lake Street so that he was listed as the owner of that property.

¶ 7. Kelly responded and denied that there had been a mutual mistake. Kelly also filed a counterclaim against Barry and argued that she was entitled to the rent that Barry had collected from 332 Lake Street since their transaction. Specifically, Kelly claimed that Barry owed her more than $7,000 in rent.

¶ 8. The parties went to trial. Additional events that occurred prior to the commencement of Barry’s case-in-chief will be discussed in the analysis portion of this opinion. Barry testified that he believed that he had only sold the house at 330 Lake Street. He did not intend to sell the house at 332 Lake Street. He further testified regarding the expenses that he paid to repair the property at 332 Lake Street and convert it into a boarding house. Goods corroborated Barry’s testimony. Additionally, Lueckenbach testified regarding his involvement in the initial transaction, and his subsequent attempt to have Kelly sign a quitclaim deed to correct the mistake in her warranty deed.

¶ 9. However, Kelly testified that she intended to buy both 330 Lake Street and 332 Lake Street for $5,000. Notwithstanding Kelly’s testimony, the chancellor found that Kelly’s warranty deed contained a scrivener’s error “based upon mutual mistake of the parties.” The chancellor also found that Kelly and Barry “had a meeting of the minds that the only property to be conveyed was 330 Lake Street.” According to the chancellor, “an error in the description was made when the deed and [the] deed of trust were drafted.” The chancellor found that “Kelly sought to take advantage of that error to the detriment of Barry.” Consequently, the chancellor reformed Kelly’s warranty deed so that it only conveyed the property at 330 Lake Street. The chancellor found no merit to Kelly’s counterclaim. Kelly appeals.

STANDARD OF REVIEW

¶ 10. “We will not disturb the chancellor’s opinion when it is supported by substantial evidence unless the chancellor abused [her] discretion, [or] was manifestly wrong [or] clearly erroneous[.]” Olive v. McNeal, 47 So.3d 735, 739 (¶ 10) (Miss.Ct.App.2010) (citation omitted). Additionally, we will reverse the chancellor’s decision if she applied an erroneous legal standard. Id. We review questions of law de novo. Id.

ANALYSIS

I. SUFFICIENT EVIDENCE OF MUTUAL MISTAKE

¶ 11. Kelly argues that the chancellor erred when she held that Barry proved that it was a mutual mistake to include 332 Lake Street in their transaction involving 330 Lake Street. According to Kelly, the chancellor should not have believed Barry’s testimony that he did not know the warranty deed included 332 Lake Street. Kelly notes that the warranty deed stated that it included two lots. Kelly also argues that Barry was “well aware that the property description included two separate residential structures, i.e., 330 Lake Street and 332 Lake Street.” Kelly further notes that Barry testified that he was a college graduate. Additionally, Kelly argues that Barry was experienced in property transactions in that he had been in the real-estate business for fifteen years and owned approximately thirty properties.

¶ 12. “A deed may be reformed where it is shown to [have] resulted] from the mutual mistake of the parties in contracting for it.” Olive, 47 So.3d at 739 (¶ 12) (citing Brown v. Chapman, 809 So.2d 772, 774 (¶ 9) (Miss.Ct.App.2002)). As stated in Brown:

The law permits reformation of instruments to reflect the true intention of the parties when ... the erroneous part of the contract is shown to have occurred by a mutual mistake, i.e., the party seeking relief is able to establish to the court’s satisfaction that both parties intended something other than what is reflected in the instrument in question[.]

Brown, 809 So.2d at 774 (¶ 9). “The party seeking reformation of a deed on a mistake theory bears the burden of proof beyond a reasonable doubt.” Olive, 47 So.3d at 739-40 (¶ 13) (citing McCoy v. McCoy, 611 So.2d 957, 961 (Miss.1992)).

¶ 13. Kelly notes that in Olive, this Court affirmed a chancellor’s decision that a litigant had failed to demonstrate mutual mistake because: (1) the document at issue in Olive was titled as a warranty deed; (2) the grantor was literate; (3) the grant- or had several opportunities to review the warranty deed; (4) the grantor had some experience in real-estate transactions; and (5) the grantor had an opportunity to discuss the warranty deed with his attorney. Olive, 47 So.3d at 740 (¶ 17). Kelly argues that the circumstances in this case are similar to the circumstances in Olive. We disagree.

¶ 14. Without question, the document at issue in this case was styled as a warranty deed. However, the property description merely indicated that Kelly was acquiring “Lots 51 & 52.” The property description does not indicate that Barry was selling Kelly 330 Lake Street and 332 Lake Street. In preparing the warranty deed, Lueckenbach could have mistakenly believed that “Lots 51 & 52” both applied to a single street address. Barry testified that he did not read the property description. Even if he had, no portion of the property description would have placed him on notice that he was mistakenly transferring title of two separate street addresses.

¶ 15. Furthermore, Barry’s behavior after the transaction indicated that he believed he never transferred title to 332 Lake Street. He paid for substantial repairs to 332 Lake Street and converted it to a boarding house. And he continued to pay the utility bills, taxes, and insurance premiums that related to the property.

¶ 16. According to Barry’s testimony, Kelly’s behavior also indicated that she did not own 332 Lake Street after she bought 330 Lake Street. Kelly complained to Barry that the tenants at 332 Lake Street were too loud. If Kelly actually believed that she had bought 332 Lake Street along with 330 Lake Street, there would have been no reason for Kelly to complain to Barry. Kelly did not pay for any expenses related to 332 Lake Street until after she discovered that the deed fortuitously included language that applied to 332 Lake Street as well as 330 Lake Street. Although Barry allowed Kelly to collect rent from the tenants and screen the tenants at 332 Lake Street after Kelly’s noise complaint, Kelly turned over the rent to Barry. Barry did not pay Kelly anything in exchange. If Kelly believed that she had bought 332 Lake Street, it defied logic for her to give Barry the rent that property generated. It was within the chancellor’s discretion to weigh the credibility of the witnesses. Suffice it to say, it was reasonable for the chancellor to believe Barry, Goods, and Lueckenbach over Kelly’s self-serving testimony. There is no merit to this issue.

II. COUNTERCLAIM

¶ 17. As previously mentioned, Kelly filed a counterclaim and argued that she was entitled to the rent that 332 Lake Street generated after her transaction with Barry. Specifically, Kelly’s counterclaim indicated that Barry had “received rents from ... 332 Lake Street ... in excess of $7,000.00.” Kelly’s counterclaim stated that “[a]s record owner of the ... real property, [Kelly] is entitled to proceeds for the rental of [the] property.”

¶ 18. The trial had initially been scheduled for March 24, 2011. However, the record indicates that the trial was actually on May 19, 2011. The record does not contain a continuance reflecting a rescheduled trial date. In any event, when the trial began, a portion of Kelly’s opening statement indicated that Kelly “agreed to purchase [332 Lake Street] for $7,000.” Kelly also argued:

[U]pon [Barry] making necessary repairs to the 332 Lake Street property, ... [Kelly] would pay all monies to Mr. Barry up to $7,000, the purchase price of the property. In effect, this was a lease[-]purchase agreement for that 332 Lake [Street] property in which Ms. Kelly would take all responsibility for all of the rental of the property and pay all funds over to Mr. Barry[,] which she did.

In other words, Kelly attempted to argue that rather than collecting rent that belonged to Barry and tendering it to him, she was actually collecting her own rent and paying Barry for her purchase of 332 Lake Street. Barry’s attorney noted that Kelly’s counterclaim contained no mention of a “side deal” for 332 Lake Street. Consequently, Barry’s attorney objected “to any testimony about some side deal to purchase [332 Lake Street] for $7,000.”

¶ 19. The chancellor then stated that she “thought that is precisely the reason this case was continued until today is that that was addressed in my chambers the last time this was on the docket and it was continued to give [Kelly an] opportunity to correct the pleadings.” Kelly’s attorney did not address the fact that Kelly had not amended her counterclaim. Instead, Kelly’s attorney responded that Kelly’s “counterclaim specifically states that Ms. Kelly allege[d] that she is the owner of the real property and that as owner of the real property, she is entitled to all proceeds that have been paid to Mr. Barry for the rental of that property.” Again, the chancellor stated that on the initial trial date, Barry’s attorney said he was not prepared to defend against Kelly’s “side-deal” claim “because [Kelly] hadn’t pled it.” The chancellor again noted that she gave Kelly a continuance so she could amend her counterclaim to include her “side-deal” claim. After more similar back-and-forth, the chancellor held that “the case was continued in order to give you [(Kelly)] time to amend your pleadings, so along those lines[,] the [c]ourt agrees with [Barry’s attorney] and if it’s not in the pleadings, it is not going to be addressed today.” Stated differently, the chancellor prohibited Kelly from raising her counterclaim that she gave Barry the rent from 832 Lake Street as the purchase price for that property.

¶ 20. Kelly claims the chancellor erred by excluding “evidence relating to [her][c]ounterclaim.” Kelly argues that her counterclaim “specifically allege[d] that she is the owner of ... 382 Lake Street[,] and she is entitled to the rental proceeds collected by Barry over and above the $7,000.00 purchase price for the property.” According to Kelly, because Barry filed an answer to her counterclaim, the chancellor should have allowed her to introduce evidence to support her counterclaim. Kelly cites Rule 12 of the Mississippi Rules of Civil Procedure as the sole authority in support of her argument.

¶ 21. First and foremost, Kelly’s argument is based on a misrepresentation of the record. Kelly’s counterclaim never included a claim that she was entitled to rent “over and above the $7,000.00 purchase price for [332 Lake Street.]” Instead, her counterclaim alleged that she was “entitled to proceeds for the rental of [the] property.” Her counterclaim further alleged that Barry had “received rents from ... 332 Lake Street ... in excess of $7,000.00.” Kelly’s counterclaim included no reference to the concept that she had agreed to purchase 332 Lake Street for $7,000. Likewise, her counterclaim included no reference that she was entitled to rent “over and above” $7,000. Succinctly put, Kelly’s sole counterclaim was that she had purchased 330 Lake Street and 332 Lake Street at the same time, and she was therefore entitled to the $7,000 that Barry had collected in rent. There is a clear and distinct difference between Kelly’s counterclaim and her subsequent attempt to argue that the $7,000 Barry collected was the purchase price for 332 Lake Street, and she was entitled to rent that Barry collected in excess of $7,000. The chancellor rescheduled the trial to give Kelly an opportunity to amend her counterclaim. Nevertheless, Kelly failed to do so. It is procedurally improper to assert a counterclaim without actually filing it. Keyes v. Berry, 995 So.2d 861, 864 (¶ 18) (Miss.Ct.App.2008). The chancellor did not err when she prohibited Kelly from asserting a counterclaim that Kelly had not raised. There is no merit to this issue.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT.


author: FAIR, J.,

text:
    TWENTY THOUSAND EIGHT HUNDRED DOLLARS ($20,800.00) IN U.S. CURRENCY, Appellant v. STATE of Mississippi ex rel. MISSISSIPPI BUREAU OF NARCOTICS, Appellee.
    No. 2011-CA-01863-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.

      Jeffrey Jude Padgett, Batesville, attorney for appellant.
    Pelecia Everett Hall, attorney for appel-lees.
   FAIR, J.,

for the Court:

¶ 1. The Mississippi Highway Patrol seized $20,800 in cash found in a traffic stop. After a hearing, the trial court ordered the funds forfeited to the State. We find that the claimants waived the issue of whether there was reasonable suspicion for the investigatory stop. We also find that the claimants failed to rebut the presumption that the funds, found “in close proximity” to marijuana and drug-distributing paraphernalia, were forfeitable. We therefore affirm the trial court’s judgment.

FACTS

¶ 2. On October 2, 2009, Highway Patrol Trooper Harris Bryan pulled over a vehicle, citing its temporary, out-of-state tag and “careless driving.” There were four males in the vehicle, three adults and a five-year-old child, the son of one of the adults. The driver, Rodrigo Godinez, had no driver’s license, and the car allegedly belonged to his girlfriend. The other adult occupants were Kevin Cruz and Frank Morado.

¶ 3. Trooper Bryan did not appear at trial because he was on active duty in the military. However, Trooper Darren Anderson joined him at the scene a short time after the stop. Anderson testified that when he arrived, a strong marijuana odor was coming from the claimants’ vehicle. It was described as smelling of both burned and unconsumed marijuana.

¶ 4. Godinez consented to a search of the vehicle. Ultimately, the troopers discovered three bundles of cash — $12,500 in the passenger console, $4,500 in a suitcase, and $3,800 on one of the passengers. Each bundle was organized by denomination and wrapped with rubber bands, and each occupant claimed one of the bundles. A small amount of “shake” (meaning loose marijuana) was found in various places in the vehicle. Also found was a can of “Ozi-um” air freshener and a large roll of shrink wrap.

¶ 5. After the stop, the adult occupants were handcuffed and put into separate police vehicles. Trooper Anderson placed Morado in his vehicle. A drug dog was brought in, and it indicated the presence of drugs in the claimants’ vehicle. After about thirty minutes, Trooper Anderson returned to his patrol car and noticed a marijuana odor inside. Morado subsequently surrendered five grams of marijuana from a plastic bag he had concealed on his person (the depth of concealment was disputed). At the trial Morado claimed Anderson had told him the dog might bite him in the area where drugs were secreted, insinuating that the surrender was not completely voluntary.

¶ 6. The petition was set for trial five times, with one continuance granted at the instance of the occupants and the rest by the State. The last continuance, from the fourth setting to the fifth, was because Bryan was reported to have been deployed out of the country. On the fifth and final setting, he was again on active duty, and the trial went on without him.

¶ 7. The three occupants did not deny that marijuana was found in the vehicle. Two did not deny they had smoked marijuana there some time before, but all were adamant they only ever possessed marijuana for personal use and that they were not otherwise involved in the drug trade. The three testified they had been on their way to Houston, Texas, to purchase used cars at auction. Morado (who claimed the largest bundle of cash) was in the used car business, and he was going to proxy purchase vehicles for the other two at wholesale prices. They were going to Texas because vehicles there are not corroded by road salt, as would be found in their native Chicago. In support, Morado produced invoices for six cash purchases of vehicles on various dates in 2007, 2008, and 2011.

¶8. The State’s witnesses testified, for various reasons we shall detail below, that they believed the trio had either sold a large quantity of drugs or were on the way to purchase one when they were stopped. The trial court agreed and ordered the money forfeited. The occupants appeal, raising several issues.

DISCUSSION

1. Legality of the Stop

¶ 9. In their first issue, the occupants contend the traffic stop was illegal and that all the evidence stemming from it should have been suppressed as the product of a Fourth Amendment violation.

¶ 10. We find that this issue has not been properly preserved for review on appeal. In the trial court, the claimants never moved to suppress the evidence obtained as a result of the stop, nor did they object to its admission into evidence. The closest they came was immediately before the trial in their argument against the State’s final, unsuccessful motion for a continuance. The claimants’ attorney contended the State had to show the stop was legal as part of its prima facie forfeiture case, and he implied it could not be done without the absent officer’s testimony. When the trial judge suggested the claimants needed authority to support this argument, they offered none, nor has such authority been presented on appeal. Instead, the claimants beg the question of whether the issue of suppression was properly before the trial court. We conclude it was not.

¶ 11. The claimants are correct that evidence seized in violation of their Fourth Amendment rights cannot be used in a forfeiture action. See, e.g., One 1992 Toyota 4-Runner v. State ex rel. Miss. Dept. of Wildlife Fisheries & Parks, 721 So.2d 609, 612-614 (¶¶ 15-22) (Miss.1998). However, we are aware of no authority that makes probable cause for the search or seizure an element of the State’s casein-chief, nor is there authority that permits the claimants to make this argument for the first time on appeal. Instead, the rule is that a party must make a pretrial motion to suppress evidence, or at the very least object to its admission in order to give the trial court an opportunity to rule on its admissibility. See Cowan v. Miss. Bureau of Narcotics, 2 So.3d 759, 765-66 (¶¶ 27-28) (Miss.Ct.App.2009).

¶ 12. Notwithstanding the waiver and procedural bar, we shall discuss the merits of this issue. Our analysis is complicated by the fact that the trooper making the initial stop, Harris Bryan, was not available for the trial. From the other testimony, we have two stated reasons for the stop: “careless driving,”, which is completely unsubstantiated in the record, and the temporary license plate on the vehicle.

¶ 13. The claimants contend there must have been an objective basis for probable cause a crime had been committed in order for Trooper Bryan to have legally stopped their vehicle. We do not agree: “It is elementary that probable cause is not a prerequisite to a brief investigatory stop, where the officer has reasonable suspicion based on articulable facts that criminal activity is afoot.” Neely v. State ex rel. Tate Cnty., 628 So.2d 1376, 1379 (Miss.1993). “Police officers may detain a person for a brief, investigatory stop consistent with the Fourth Amendment when the officers have reasonable suspicion, grounded in specific and articulable facts[,] that allows the officers to conclude the suspect is wanted in connection with criminal behavior.” Eaddy v. State, 63 So.3d 1209, 1213 (¶ 14) (Miss.2011) (quotations omitted). “Vehicles also may be the subject of an investigative stop.” Id. (quoting Haddox v. State, 636 So.2d 1229, 1234 (Miss.1994)).

¶ 14. Several witnesses (including one of the claimants) testified that one of the reasons Trooper Byran stopped the vehicle was its license plate, a paper temporary tag from Illinois. The record contains a photograph of the tag, which shows it as faded and partially obscured by a license plate frame. The tag has a dating system with a year (“09”) and a month (“Oct”) punched out, but the text is too small to be read from a distance. The stop occurred on October 2, 2009.

¶ 15. The temporary tag could be read as expiring on the first day of October 2009, the first day of November 2009, or some unspecified day in October 2009. It was established during the trial that it was, in actuality, still good at the time of the stop; the registration gives the expiration date as October 29, 2009. From this we can infer the punchouts indicate the tag expired sometime in October 2009. Given that the stop occurred on October 2, if Trooper Bryan had a perfect knowledge of Illinois custom, he would have known the tag had only a small chance of being expired. However, the question before us is “reasonable suspicion,” and we do not think a Mississippi State Trooper can be charged with perfect knowledge of other states’ conventions regarding temporary tags. The facts that the claimants’ tag was faded, partially covered, had an ambiguous expiration date, and had writing too small to read from the highway are sufficient to create reasonable suspicion warranting further investigation into its validity. See United States v. Sanchez, 572 F.3d 475, 478-79 (8th Cir.2009) (finding reasonable suspicion when trooper could not have read out-of-state temporary tag prior to stopping vehicle; trooper “stopped a vehicle based on imperfect information, but acted reasonably in doing so.”).

¶ 16. The claimants suggest Trooper Bryan did not make an investigatory stop but had already made up his mind the tag was invalid when he made the stop. Godinez, the driver, was the only person who testified as to what Bryan did immediately after pulling the vehicle over. According to Godinez Bryan walked over, told him the tag was invalid, and asked to see his driver’s license. However, even if it were the case that Trooper Bryan erroneously believed the tag was invalid, the law is clear that the question is not what he subjectively believed, but what the facts indicated to an objectively reasonable police officer. “The principal components of a determination of reasonable suspicion or probable cause [are] the events which occurred leading up to the stop or search, and ... whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.” Gonzales v. State, 963 So.2d 1138, 1141 (¶ 10) (Miss.2007) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). As to whether Trooper Bryan exceeded the scope of the investigatory stop, an officer in an investigatory stop of a vehicle may ask the driver for his license and registration. See Horton v. State, 408 So.2d 1197, 1198 (Miss.1982); Wade v. State, 33 So.3d 498, 505 (¶ 26) (Miss.Ct.App.2009); see also State v. Thompson, 284 Kan. 763, 166 P.3d 1015, 1024 (2007). Godinez immediately admitted he did not have a driver’s license, so there clearly was probable cause to continue holding the vehicle after that time.

¶ 17. The issue of the legality of the stop was waived and is procedurally barred on appeal. In the alternative, it is without merit.

2. Admissibility of the Lab Report

¶ 18. The claimants next challenge the trial court’s admission, over their objection, of the lab report confirming that the substances recovered were, in fact, marijuana. They contend the evidence was improperly admitted in violation of the Confrontation Clause under Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

¶ 19. This issue is without merit because the Confrontation Clause has no application to civil forfeiture eases. Austin v. United States, 509 U.S. 602, 608 n. 4, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (“[T]his Court’s decisions applying constitutional protections to civil forfeiture proceedings have adhered to this distinction between provisions that are limited to criminal proceedings and provisions that are not. Thus, the Court has held that the Fourth Amendment’s protection against unreasonable searches and seizures applies in forfeiture proceedings, but that the Sixth Amendment’s Confrontation Clause does not.” (citations omitted)).

3. Merits of the Forfeiture

¶ 20. The Mississippi Bureau of Narcotics filed a petition for forfeiture of the money under section 41-29-153(a)(5) of the Mississippi Code Annotated (Rev. 2009), which provides that “[a]ll money ... which [is] used, or intended for use, in violation” of the Uniform Controlled Substances Law is subject to forfeiture.

¶ 21. The Mississippi Supreme Court has adopted the following standard of review:

Forfeiture statutes are penal in nature and must be strictly construed. In a civil forfeiture case, the question is whether, given all of the evidence taken together, a rational trier of fact could have found that the funds were the product of or the instrumentalities of violations of the State’s Uniform Controlled Substances Laws. The trier of fact may act on circumstantial evidence and inferences as well as direct evidence.

Evans v. City of Aberdeen, 926 So.2d 181, 183 (¶ 5) (Miss.2006) (citations omitted).

¶ 22. As the State did not have direct proof of the money’s connection to drugs, it relied on the presumption of subsection 41-29-153(a)(7), which provides:

All monies, coin and currency found in close proximity to forfeitable controlled substances, to forfeitable drug manufacturing or distributing paraphernalia, or to forfeitable records of the importation, manufacture or distribution of controlled substances are presumed to be forfeita-ble under this paragraph; the burden of proof is upon claimants of the property to rebut this presumption.

¶23. The trial court found this presumption applicable, a decision the claimants contest by contending the money was not actually found “in close proximity” to the drugs. Close proximity has not been strictly defined, but is instead understood to mean “very near.” Jones v. State ex rel. Miss. Dep’t of Pub. Safety, 607 So.2d 23, 29-30 (Miss.1991). The claimants rely on Neely v. State ex rel. Tate County, 628 So.2d 1376, 1381 (Miss.1993), where the supreme court cautioned:

Objects carried on the person are mobile and, in the context of this statute, should not ordinarily be viewed as in close proximity to anything not also on the person, unless the circumstances are such that the fact finder can reasonably infer that the object not found on the person had been on the person immediately prior to discovery, at a time when the object of forfeiture was also on the person.

¶ 24. This admonition is inapposite. The testimony was that most of the marijuana was found in a bag on Morado’s person, but the “shake” was throughout the vehicle, and the shrink wrap roll was found in the back. The money was found in three bundles — one on Cruz’s person, one in a suitcase in the back seat, and one in the center console. The drug dog “hit” on the suitcase, indicating it had been in contact with drugs in the past. It is fair to say the money and the drugs/paraphernalia were dispersed throughout the vehicle. That some of the money was on Cruz’s person is not dispositive under these circumstances. We find no error in the trial court’s application of the presumption.

¶25. Turning to the question of whether the presumption was rebutted, we conclude it was not. We recognize the claimants made a strong case — their story was plausible and corroborated by some documentary evidence, and the drugs and paraphernalia that were found were largely consistent with personal use of marijuana. Each acknowledged prior arrests only for possession of marijuana, and all claimed to be only recreational users. However, the response from the State was also strong. Among the facts and inferences cited were that the claimants had no documentation as to where the cash came from and were never specific about what auction they were going to attend in Houston. Morado’s invoices for cash car purchases were all from the Chicago area and were dated years before and after the seizure. The money, although split up and claimed by different occupants, was packaged similarly, suggesting a common origin or destination. Critically, the three claimants gave a different explanation to the authorities at the time the cash was seized. Two initially claimed to be going to San Antonio for a wedding, while the third said they were on their way to Houston to meet a friend. Each of the three claimants also had tattoos that were identified as being associated with “The Saints,” a gang known for drug trafficking. Also important is that the large roll of shrink wrap was not consistent with the claimant’s theory of personal use, and the trial judge did not find Godinez’s explanation— that it was used by his parents for packing flea market items — to be convincing.

¶ 26. The trial judge did not find the claimants’ testimony credible. “[W]hen the trial judge sits as the finder of fact, he has the sole authority for determining the credibility of witnesses.” Yarbrough v. Camphor, 645 So.2d 867, 869 (Miss.1994). And on appeal, “[a] circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence.” Brewer Constr. Co. v. David Brewer Inc., 940 So.2d 921, 925 (¶ 19) (Miss.2006).

¶ 27. It has also been suggested that Godinez and Cruz are “innocent owners” because most of the drugs were found on Morado. We find no merit to this argument because the drugs and paraphernalia were found dispersed throughout the vehicle. The evidence also suggests that the money, although divided into three bundles, had a common origin or destination in the drug trade.

¶ 28. We conclude a rational fact-finder, weighing all the evidence we have discussed, could have gone either way on whether the statutory presumption was rebutted. That being the case, this Court’s standard of review obligates us to affirm the trial court’s decision.

4. Proportionality of the Forfeiture

¶ 29. In their final issue, the claimants argue the forfeiture of $20,800 was grossly disproportionate to the small amount of marijuana that was actually found in the vehicle. This issue is procedurally barred because it was never argued in the trial court. Brown v. Thompson, 927 So.2d 738, 738 (¶ 16) (Miss.2006).

¶ 30. In the alternative, we find no merit to this issue. The'claimants contend, in a rather cursory fashion, that the forfeiture is disproportionate to the small amount of drugs that were found. However, that is not the proper comparison. The money was not subject to forfeiture because the claimants possessed marijuana; it was forfeited because it was proven to be either “used or intended for use” in violation of the Uniform Controlled Substances Law. The presence of the marijuana was only a part of the State’s proof. Through the statutory presumption and other evidence, the money was shown to either be the proceeds of a recent drug sale or to be intended for the purchase of drugs. In either case, the value of the illegal drugs involved would have been approximately equal to the value of the money. Its forfeiture is therefore not grossly disproportional to the wrongdoing.

¶ 31. This issue is procedurally barred and without merit.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . More cash was found in each bundle, but the authorities returned approximately $200 to each of the occupants for their return trip to Chicago after they were released.

      . It is not clear where in the vehicle the other paraphernalia — rolling papers and the air freshener — were found.


author: IRVING, P.J.,

text:
    Penny WILSON, Appellant v. Gregory WILSON, Appellee.
    No. 2011-CA-00619-COA.
    Court of Appeals of Mississippi.
    June 11, 2013.

      Earnestine Alexander, Jackson, attorney for appellant.
    Tamekia R. Goliday, attorney for appel-lee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. The Hinds County Chancery Court granted Penny Wilson a divorce from Gregory Wilson on the ground of habitual cruel and inhuman treatment. The court also awarded physical custody of the couple’s minor child to Gregory and made determinations regarding the distribution of marital property. Feeling aggrieved, Penny appeals and argues that the chancery court erred: (1) in its classification and division of certain marital property, (2) in failing to consider her employment status in its Ferguson analysis, and (3) in failing to divide Gregory’s retirement account between the two parties.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Penny and Gregory were married on April 13, 2000. After their marriage, Gregory moved into Penny’s home, which she had purchased in 1999. Penny and Gregory had one daughter together, Tat-yana. The chancery court awarded Penny and Gregory joint legal custody of Tatyana but awarded Gregory sole physical custody of Tatyana.

¶ 4. At the trial on the equitable distribution of the couple’s marital estate, Penny testified that she had worked for Delphi Packard Electric before and during her marriage to Gregory. She stated that they never held joint checking or savings accounts. Penny testified that during her marriage, she received a $10,000 gift from her mother and $7,500 associated with the death of her father. She deposited these monies into her personal accounts. When Penny learned that Delphi Packard would be closing, she purchased several rental properties as an investment. Gregory made no monetary contributions toward the purchases. Penny also elected to remain with Delphi Packard to assist in its closing. The company gave Penny $35,000 for three years and an additional $50,000 upon the company’s closing. These monies were in addition to Penny’s normal salary during this period. Penny deposited the money into her personal checking and savings accounts. Penny also purchased several certificates of deposit in various amounts during her marriage to Gregory. These certificates matured in January 2010, but Penny had withdrawn all of the money in the account before trial and refused to reveal its location to the chancery court.

¶ 5. Gregory testified that he gave Penny a check every month for his half of the household expenses. He confirmed that the couple never had any joint checking or savings accounts. Gregory stated that he also gave Penny extra money if he worked side jobs and when she went on vacation. He also made various improvements to the marital home and to the rental properties that Penny purchased during the marriage. Gregory admitted that he had written letters to Penny telling her that he did not want an interest in the rental properties. However, Gregory testified that he only wrote the letters because he thought that they would save his marriage.

¶ 6. In its order, the chancery court stated that the Wilsons’ marriage was not “a marriage where the [parties] shared finances except for [the] payment of expenses.” The court also noted that prior to trial, Penny had a credit union account with a balance of $217,278.68. However, the funds had been withdrawn, and Penny declined to reveal where she had placed the funds from that account. Nevertheless, the court granted Gregory twenty-five percent of the account balance. Additionally, because the rental homes were purchased during the marriage and Gregory did electrical work to increase the value of the properties, they were marital assets. Therefore, the chancery court granted Gregory a twenty-five percent interest in the rental properties.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

I. Untimely Appeal

¶ 8. Gregory contends that Penny’s appeal is untimely. The chancery court entered its final judgment in this case on March 25, 2011. Penny filed her notice of appeal on April 26, 2011. Rule 4(a) of the Mississippi Rules of Appellate Procedure requires that a party file a notice of appeal “within [thirty] days after the date of entry of the judgment or order appealed from.” Thus, according to Gregory, Penny’s appeal is untimely because it was filed outside the thirty-day period allowed by Rule 4(a).

¶ 9. However, Gregory has neglected to consider Rule 26(a) of the Mississippi Rules of Appellate Procedure, which states that, in computing the time prescribed by the rules, “[t]he last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, as defined by statute ... in which event the period runs until the end of the next day .... ” (emphasis added). Further, Mississippi Code Annotated section 3-3-7(l) (Supp.2012) provides that the last Monday of April, designated as Confederate Memorial Day, is a legal holiday. In 2011, Confederate Memorial Day fell on April 25, 2011. Therefore, as the last day of Penny’s thirty-day period to file her appeal was a legal holiday, the time period did not expire until the end of the day on April 26, 2011. As such, Penny’s appeal is timely, and Gregory’s argument that it should be dismissed as untimely is without merit.

II. Penny’s Issues on Appeal

¶ 10. Domestic-relations matters are reviewed under the substantial-evidence/manifest-error rule. Wheat v. Wheat, 37 So.3d 632, 637 (¶ 11) (Miss.2010). Thus, a chancery court’s findings will not be disturbed on appeal unless they are manifestly wrong or clearly erroneous or the chancery court applied an erroneous legal standard. Id.

a. Classification and Division of Property

¶ 11. Before equitably dividing property at issue in a divorce, the chancery court should first classify the parties’ assets as marital or nonmarital. Boutwell v. Boutwell, 829 So.2d 1216, 1221 (¶ 19) (Miss.2002). Generally, property acquired during the course of the marriage is marital property. Id. Additionally, “[p]roperty brought into the marriage by one partner and used by the family becomes a marital asset.” Id. (citing Johnson v. Johnson, 650 So.2d 1281, 1286 (Miss.1994)). Non-marital assets, such as inheritances and gifts, may become marital if “commingled with marital property or utilized for domestic purposes, absent an agreement to the contrary.” Id. at (¶ 20) (citing Heigle v. Heigle, 654 So.2d 895, 897 (Miss.1995)).

¶ 12. Here, Penny contends that the chancery court erred in classifying the marital home, her rental properties, and her credit union account as marital property. We find that Penny’s home was properly classified as marital property. Although Penny had purchased the home prior to her marriage to Gregory, both Penny and Gregory worked to maintain and care for the house after their marriage. Furthermore, Penny, Gregory, and Tatyana lived in the house as a family during Penny and Gregory’s marriage. Thus, even though the house was Penny’s separate property initially, it became a marital asset once the family used the home for domestic purposes.

¶ 13. The chancery court also determined that the rental properties, admittedly acquired during the marriage, were marital property. Penny testified that Gregory did not contribute to the purchase of the properties. Gregory, while admitting that he did not give Penny any money to purchase the properties, testified that he performed substantial electrical work on all of the properties. Andy McLeod testified that he performed repairs on the properties, but he had never done any electrical work on the properties. Given this testimony, we cannot say that the chancery court erred in finding that the rental properties were marital property.

¶ 14. Penny also argues that the chancery court erred in classifying her credit union account as marital property. It is well established that “the party arguing to classify an asset as nonmarital property has the burden to demonstrate to the court the asset’s nonmarital character.” Wheat, 37 So.3d at 640 (¶ 26) (citations omitted).

¶ 15. Before the trial on the equitable distribution of property, the account’s balance was $217,278.68. Despite not knowing the location of these funds, the court determined that Gregory was entitled to twenty-five percent of the account’s balance — $54,319.67. Penny has failed to demonstrate that the account contained non-marital funds that were never commingled. The record only contains evidence that at least $86,347.32 of the account balance is from the certificates of deposit. The certificates of deposit were properly classified as marital property because they were purchased during the marriage. Additionally, it is unclear from the record whether the account contained funds from the rental properties, Penny’s salary, or her severance package from Delphi Packard. There is no evidence of any nonmarital funds in the credit union account. Accordingly, we cannot say that the chancery court erred in classifying this account as marital property and granting Gregory an interest in the account.

b. Ferguson Analysis

¶ 16. At the time of the trial on the equitable distribution of property, Penny was unemployed. She contends that the chancery court erred in its Ferguson analysis by not considering her employment status. In its final judgment on the equitable distribution of property, the chancery court conducted a thorough Ferguson analysis. The court noted that neither party would lack financial security and that both parties had the ability and skills to provide for themselves in the future. There is no evidence that Penny is unable to find a job or that her employment opportunities are limited in any respect. Additionally, the court considered Penny’s income from the rental properties, her unemployment benefits, and the sum of money that Penny had hidden prior to trial. As such, we find that the chancery court conducted a proper Ferguson analysis. This issue is without merit.

c. Gregory’s Retirement Account

¶ 17. Penny argues that she is entitled to a percentage of Gregory’s retirement account because she is unemployed and no longer has a separate retirement account. The Mississippi Supreme Court has previously stated that “[w]hen separate plans for each spouse are not in existence, it is only equitable to allow both parties to reap the benefits of the one existing retirement plan, to which both parties have materially contributed in some fashion.” Ferguson, 639 So.2d at 934.

¶ 18. Nevertheless, we find that the chancery court acted within its discretion in denying Penny a portion of Gregory’s retirement funds. The court used Gregory’s retirement funds to offset the amount awarded to Penny from her severance package and the funds remaining unaccounted for from the credit union account. Additionally, Penny’s financial statement reveals that she has a Delphi Savings Plan with a balance of $14,000 and an additional savings account containing an unknown amount. Accordingly, this issue is without merit.

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

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

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