author: IRVING, P.J.,

text:
    KNIGHTS’ PIPING, INC. and Benny R. Knight, Appellants v. E. Harold KNIGHT, David Earl Knight, Brian K. Knight, Raymond K. Knight, and Knights Marine & Industrial Services, Inc., Appellees.
    No. 2011-CA-00409-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.
    Rehearing Denied June 4, 2013.
    Certiorari Denied Oct. 3, 2013.

      Stephen W. Burrow, Jason M. Payne, Pascagoula, attorneys for appellants.
    Matthew G. Mestayer, John M. Kinard, Pascagoula, David W. Baria, Kevin M. Melchi, Pascagoula, attorneys for appel-lees.
    Before IRVING, P.J., RUSSELL and FAIR, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On February 24, 2000, E. Harold Knight (Harold) filed a complaint in the Jackson County Chancery Court against Benny R. Knight and Knights’ Piping Inc. (KPI). Harold’s complaint requested a judicial dissolution of KPI, an appointment of a receiver/custodian for KPI, and a partition of certain real property. On February 9, 2001, Benny answered the complaint and filed a counterclaim against Harold; Harold’s sons, David Earl Knight, Brian K. Knight, and Raymond K. Knight (Randy); and Knight’s Marine and Industrial Services Inc. (KMIS). Benny’s counterclaim alleged (1) fraud and misrepresentation, (2) usurpation of corporate opportunities, (3) breach of fiduciary duty, (4) conspiracy, (5) negligence, and (6) theft of confidential/proprietary information.

¶ 2. At trial, the chancery court dismissed counts 1-5 of Benny’s counterclaim. Benny moved for the court to dismiss count 6, which the court granted. Ultimately, the chancery court found Benny personally liable for the breach of Harold’s employment contract and awarded Harold damages totaling $1,751,457. Additionally, the court awarded Harold punitive damages of $25,000 and Harold’s sons attorneys’ fees of $43,910.23.

¶ 3. Feeling aggrieved, Benny and KPI appeal and argue that the chancery court: (1) lacked jurisdiction; (2) abused its discretion in interrogating witnesses; (3) erred in deeming Benny’s alleged non-responsive answers admitted; (4) erred in dismissing Benny’s counterclaims; (5) erred in finding that Benny terminated Harold on September 3, 1999; (6) erred in holding Benny personally liable for the breach of Harold’s employment contract; (7) erred in its determination of damages related to the breach of Harold’s employment contract; (8) erred in awarding punitive damages; and (9) erred in awarding attorneys’ fees.

¶ 4. Because the chancery court erred in awarding attorneys’ fees to Harold’s sons and in awarding Harold certain damages that were not contemplated by his employment contract, we reverse and render the court’s judgment in part. Additionally, we reverse the chancery court’s award of accrued sick leave to Harold, and remand for additional findings regarding the amount of accrued sick leave owed to Harold as of his termination date. As to the remaining issues, we affirm.

FACTS

¶ 5. Benny and Harold are brothers. On August 9, 1977, they formed KPI, a pipe fabrication and installation company. Benny served as president, and Harold served as vice president. The ownership of the company was initially split with Benny holding 51% of the outstanding shares of stock and Harold holding the remaining 49%. In 1989, Benny shot his ex-wife, Brenda Knight. Soon after, Benny was indicted for aggravated assault. Benny stepped down as president, and Harold assumed the role. Harold also became the majority shareholder with a 51% ownership interest; Benny held the remaining 49% interest.

¶ 6. On August 1, 1989, Harold executed an employment agreement with KPI. Under the terms of the contract, if Harold was terminated without just cause, he would be entitled to the following damages: (1) severance pay, (2) a paid whole life insurance policy, (3) a $25,000 contribution to his retirement plan for a period of five years, (4) title to his company vehicle, (5) paid health-insurance benefits for a period of five years, (6) cancellation of any indebtedness owed by Harold to KPI, (7) purchase of his stock at a price of at least $325 per share, (8) payment of accrued vacation time, and (9) payment of accrued sick leave up to 180 days.

¶ 7. Benny had little involvement with KPI in the eighteen months following his indictment. However, once the criminal charges were dropped, Benny returned to KPI. Harold and Benny agreed to restore Benny’s majority ownership interest in KPI. As such, Benny once again held 51% of the outstanding shares, and Harold held 49%.

¶ 8. On March 24, 1999, David filed articles of incorporation for Knights’ Marine and Industrial Services Inc. (KMIS). KMIS’s board of directors consisted of Brian, David, and Randy. The Board elected Brian as president and David as •vice president. Brian and David shared the ownership interest in KMIS 50/50, with each receiving one-half of the 1,000 shares of the common stock issued.

¶ 9. On August 81, 1999, David and Brian approached Benny about buying his interest in KPI. According to Benny, David and Brian offered to purchase his interest for $100,000. When he refused, a fight ensued between David, Brian, and Benny.

¶ 10. According to Harold, when he reported to work on September 3, 1999, Benny fired him. Benny also fired David, Brian, and Randy. While Benny does not dispute that Harold’s sons were fired on September 3,1999, he contends that he did not fire Harold that day. Instead, Benny contends that Harold was fired on December 12, 1999, at a special meeting of KPI’s Board of Directors. During the meeting, the board voted to replace Harold as president, terminate all benefits being paid to him, and require that all company property in Harold’s possession be returned to the company. The meeting minutes do not list a reason for Harold’s termination. However, Benny testified that Harold never returned to work after September 3, 1999, and was terminated based on his prolonged absence from KPI.

¶ 11. On November 2, 1999, Benny and his current wife, Amy McDaniel Knight, were indicted for false pretense, mail/wire fraud, and insurance fraud. Ultimately, Benny entered into a plea agreement which required KPI to plead guilty to one count of criminal information and pay fines and restitution totaling $1,235,031. In exchange, the State agreed to dismiss the charges against Benny and Amy. In 2003, KPI’s Board approved the terms of the plea agreement and authorized the payment of the fines, restitution, and attorneys’ fees from company funds.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Jurisdiction

¶ 13. Harold’s complaint sought judicial dissolution of KPI, appointment of a custodian for KPI, and partition of certain real property. However, these equitable claims were not listed in the pretrial order or addressed at trial. Instead, the pretrial order listed Harold’s claims against Benny as follows: (1) breach of fiduciary duty, (2) breach of the duty of loyalty, (3) usurpation of corporate opportunity, (4) fraud and misrepresentation, (5) negligence, (6) breach of contract, and (7) conversion. Benny argues that because Harold’s remaining claims were legal — not equitable — jurisdiction was not proper in chancery court. The Mississippi Supreme Court has previously explained:

It has long been settled in this state, as one of the pre-eminent principles of equity procedure, that the [c]hancery [c]ourt having taken jurisdiction on any one ground of equity, will thereupon proceed in the one suit to a complete adjudication and settlement of every one of all the several disputed questions materially involved in the entire transaction, awarding by a single comprehensive decree all appropriate remedies, legal as well as equitable, although all the other questions involved would otherwise be purely of legal cognizance; and in this state, the rule goes even to the extent that if the ground of equity fail under the proof, the cause may still be retained to a complete final decree on the remaining issues although the latter present legal subjects only and the decree would cover only legal rights and grant none but legal remedies,—that having taken jurisdiction the power of the court to administer full relief is limited by nothing but justice itself.

Derr Plantation, Inc. v. Swarek, 14 So.3d 711, 718 (¶ 16) (Miss.2009) (quoting McClendon v. Miss. State Highway Comm’n, 205 Miss. 71, 78, 38 So.2d 325, 327 (1949)) (emphasis added). Harold’s complaint sought equitable relief; therefore, equitable jurisdiction had attached. Furthermore, although Harold later abandoned his equitable claims against Benny, as evidenced by the pretrial order, he still sought the establishment of a constructive trust—an equitable remedy. As such, the chancery court retained jurisdiction to adjudicate Harold’s legal claims and award legal remedies. This issue is without merit.

2. Court’s Interrogation of Witnesses

¶ 14. Benny asserts that the chancery court erred in its interrogation of witnesses during trial. Under Rule 614(b) of the Mississippi Rules of Evidence, “[t]he court may interrogate witnesses, whether called by itself or by a party.” However, “it is grounds for reversal if the trial judge abuses the authority to call or question a witness by abandoning his impartial position as a judge and assuming an adversarial role.” Powell v. Ayars, 792 So.2d 240, 248 (V 29) (Miss.2001) (citation omitted).

¶ 15. While the chancery court interjected numerous times during the trial, we do not find that the court abused its discretion or abandoned its impartial position. Generally, the court’s questions were intended to clear up confusing testimony or encourage testimony from recalcitrant witnesses, which our supreme court has recognized as appropriate circumstances under which a trial judge may question witnesses. See id. at 248^49 (¶ 30). Additionally, the court gave the attorneys the opportunity to ask further questions of witnesses, if necessary, based on the court’s questions. This issue is without merit.

3. Non-Responsive Answers

¶ 16. Benny argues that the chancery court erred in deeming his alleged non-responsive answers to certain questions as admitted. For example, during cross-examination, the following exchange occurred between Benny and Harold’s attorney:

Q: And, of course, you indicated yesterday that Harold missed 30 days [of work] and so that’s—that’s why you fired him?
A: He also told me—
[THE COURT]: The answer is—for the witness—the witness is being evasive—is that is why he fired him because Harold missed 30 days. That’s the answer. Ask your next question.
Q: When you changed the locks, you denied Harold access to his property, correct?
A: I did not.
Q: Did you give him a key?
A: Couldn’t locate him.
[THE COURT]: The answer is—
[THE WITNESS]: No.
[THE COURT]: — he did not give him a key.

¶ 17. Based on our review of the record, the chancery court admonished several witnesses regarding non-responsive answers — not just Benny. Furthermore, Benny’s answers to the questions he complains about on appeal were evasive. Therefore, the chancery court did not err in presuming that the true answers would be unfavorable to Benny’s position and deeming his non-responsive answers as admissions. This issue is without merit.

A Dismissal of Counterclaims

¶ 18. Benny argues that the chancery court erred in dismissing his counterclaims against Harold’s sons and KMIS. Specifically, Benny argues that the chancery court erred in dismissing his counterclaim for fraud and misrepresentation before he had the opportunity to present evidence to support it.

¶ 19. Benny’s claim for fraud and misrepresentation is based on an incident with Resinol, one of KPI’s customers. Johnny R. Johnson, Resinol’s Director of Purchasing, submitted an affidavit averring that one of the tanks that KPI built for Resinol was poorly constructed. Brian had allegedly overseen the construction of the tank, and when Johnson confronted Brian about the tank’s condition, Brian allegedly blamed Benny for its poor construction. Benny had planned to call Johnson to testify; however, the chancery court dismissed Benny’s claim for fraud and misrepresentation before Johnson testified.

¶20. Following the dismissal of Benny’s claims, the chancery court allowed Johnson to testify. Johnson testified that after he realized the tank was defective, he contacted David to resolve the situation. Johnson testified that David blamed Benny for the defective tank. Additionally, David allegedly told Johnson, “[W]e’re going to have to go out and form us [sic] a company that can produce standard quality products.” Finally, Johnson speculated that the tank was intentionally manufactured in a defective manner; however, he admitted that he did not know if David, Brian, or Randy had intentionally constructed a defective tank in an effort to damage Benny and KPI.

¶21. While Benny claims that Johnson’s testimony supports his claims of fraud and misrepresentation, he admitted at trial that there was nothing in Johnson’s affidavit supporting his claim that David, Brian, or Randy intentionally constructed the defective tank. Furthermore, there was nothing in Johnson’s testimony that supported Benny’s allegation that Harold’s sons intentionally constructed an inferior tank. Therefore, the chancery court did not err in dismissing Benny’s counterclaim for fraud and misrepresentation. This issue is without merit.

5. Termination Date

¶ 22. Benny argues that the chancery court’s finding that he terminated Harold on September 3, 1999, is not supported by substantial evidence. Benny contends that Harold was not terminated until the special board meeting on December 12, 1999. However, based on our review of the record, there was substantial evidence to support the chancery court’s finding that Benny terminated Harold on September 8,1999.

¶ 23. First, Harold testified that when he reported to work on September 3, 1999, KPI employees informed him that Benny had instructed them that they no longer reported to Harold. Benny objects to Harold’s testimony because it is hearsay; however, this testimony is not the only evidence that Benny terminated Harold on September 3,1999.

¶ 24. Second, according to a police report, Benny’s son, Ray, contacted the police and requested their presence at KPI on September 3, 1999, “because they were going to fire several people.” Harold testified that the police instructed him, in Benny’s presence, to leave the property. Harold admitted that he never talked to Benny that day and that Benny never told him that he was terminated. Third, Harold testified that he received no salary or benefits following September 3, 1999. Based on the above, there is substantial evidence supporting the chancery court’s conclusion that Benny terminated Harold on September 3, 1999. This issue is without merit.

6. Personal Liability

¶ 25. Benny argues that the chancery court erred in holding him personally liable for damages related to the breach of Harold’s employment contract. KPI was a closely held corporation with Benny and Harold as its only shareholders. When Benny terminated Harold, he was the majority shareholder, and Harold was the minority shareholder. Our supreme court has held that “in a close corporation where a majority stockholder stands to benefit as a controlling stockholder, the majority’s action must be ‘intrinsically fair’ to the minority interest.” Fought v. Morris, 543 So.2d 167, 171 (Miss.1989).

¶ 26. In Fought, the supreme court recognized the “acute vulnerability” of minority shareholders in closely held corporations. Id. at 170. A minority shareholder in a closely held corporation is vulnerable for several reasons:

The majority is able to dictate the manner in which the corporation is run. Shares are not publicly traded so that a fair market for them is seldom available. Dissention makes the minority interest unattractive to a prospective purchaser. Consequently, the minority shareholder can neither profitably leave, nor safely stay with, the corporation. Thus, the only prospective buyer is usually a majority shareholder. Finally, close corporations frequently originate in the context of relationships personal in nature, often undertaken by family members or friends.

Id. at 170-71 (citing Orchard v. Covelli, 590 F.Supp. 1548, 1557 (W.D.Pa.1984)).

¶ 27. The ability of majority shareholders to “squeeze out” or “freeze out” minority shareholders through various tactics also contributes to the minority shareholder’s vulnerability. One particularly effective tactic involves terminating a minority shareholder’s employment. Other jurisdictions have described this tactic as “especially pernicious” given that “[t]he minority stockholder typically depends on his salary as the principal return on his investment, since the ‘earnings of a close corporation are distributed in major part in salaries, bonuses, and retirement benefits.’ ” Wilkes v. Springside Nursing Home, Inc., 370 Mass. 842, 353 N.E.2d 657, 662 (1976) (quoting F. Hodge O’Neal & Robert B. Thompson, O’Neal’s Close Corporations § 1.07 (1971)). Therefore, “by terminating a minority stockholder’s employment or by severing him from a position as an officer or director, the majority effectively frustrate the minority stockholder’s purposes in entering on the corporate venture and also deny him an equal return on his investment.” Id. at 662-63.

¶ 28. Our supreme court has held that “squeeze-outs” or “freeze-outs” in close corporations “constitute [a] breach of duty or good faith between shareholders.” Bluewater Logistics, LLC v. Williford, 55 So.3d 148, 161 (¶ 52) (Miss.2011) (citing Fought, 543 So.2d at 169). In Bluewater, three members of a limited liability company (LLC) terminated the fourth member and refused to buy out his interest as required under the operating agreement. Id. at 151 (¶ 1). The ousted member sued the LLC and the individual members for breach of contract. Id. at 152, 158 (¶¶ 5, 38). The chancery court found the ousting majority members personally liable for intentional breach of contract based on their refusal to purchase the ousted minority member’s interest in the LLC. Id. at 160 (¶ 49). The supreme court affirmed the chancery court’s judgment, citing its previous holding in Fought. See id. at 161 (¶¶ 51-53). The court explained that the members had a fiduciary duty to each other and to the LLC, and the majority members had breached that duty by squeezing out the minority member. Id. at (¶ 53).

¶ 29. In Hollis v. Hill, 232 F.3d 460, 470-71 (5th Cir.2000), the United States Court of Appeals for the Fifth Circuit noted that it is a widely accepted principle of law “[t]hat a controlling shareholder cannot, consistent with his fiduciary duty, effectively deprive a minority shareholder of his interest as a shareholder by terminating the latter’s employment or salary.” Id. at 470. The court further noted, however, that minority “shareholders do not enjoy fiduciary-rooted entitlements to their jobs [because] [s]uch a result would clearly interfere with the doctrine of employment-at-will.” Id. Therefore, “courts have limited relief to instances in which the [minority] shareholder has been harmed as a shareholder.” Id. at 471. However, a majority shareholder does not breach his fiduciary duty when he terminates a minority shareholder if he has “acted pursuant to a legitimate business purpose.” Id. at 470.

¶ 30. We recognize that there are times when a majority shareholder may terminate a minority shareholder with impunity. Hollis says as much. But this not such a case. Therefore, based on our supreme court’s holdings in Fought and Bluewater, we find that the chancery court did not err in holding Benny personally liable for his intentional breach of Harold’s employment contract. Benny admitted in his testimony that he unilaterally terminated Harold. Harold testified that Benny never gave him a reason for his termination, and Benny has offered no legitimate business purpose for terminating Harold. Furthermore, Benny’s actions effectively guaranteed that Harold would not receive a return on his interest in KPI, as earnings were distributed in the form of salaries and other benefits as opposed to dividends. This issue is without merit.

7. Compensatory Damages

¶ 31. Benny argues that the chancery court erred in its determination of certain damages owed to Harold based on Benny’s breach of Harold’s employment contract. First, Benny argues that Harold is not entitled to payment for 180 days of accrued sick leave where there was no proof regarding whether he had used any sick days. A chancery court’s “findings of fact will not be reversed if supported by substantial evidence.” In re Estate of Smith, 69 So.3d 1, 4 (¶ 10) (Miss.2011) (citing In re Guardianship of Duckett, 991 So.2d 1165, 1173 (¶ 15) (Miss.2008)).

¶ 32. Harold testified that sick leave was “monitored very loosely” by the company’s secretary, but he did not keep track of his sick leave. Harold provided no testimony regarding whether he had used any sick leave. Therefore, the chancery court erred in determining that Harold was entitled to the full 180 days of accrued sick leave as contemplated in his employment contract. Consequently, we reverse the chancery court’s award of $145,360 as payment for 180 days of accrued sick leave and remand this issue to the chancery court for specific findings regarding the amount of accrued sick leave owed to Harold.

¶ 33. Second, Benny argues that the chancery court erred in awarding Harold $100,000 for the value of a forfeited certificate of deposit. In 1999, KPI obtained a line of credit from Hancock Bank. As security for the loan, Benny and Harold each put up certificates of deposit for $100,000. In 2000, KPI fell behind on its payments on the loan, and Hancock Bank applied the two certificates of deposit to the outstanding principal balance.

¶ 34. Harold’s employment contract provides that outstanding loans made by KPI to Harold will be forgiven upon his wrongful termination; however, it is silent as to loans made by Harold to KPI. Because the repayment of shareholder loans is not contemplated in Harold’s employment contract, the chancery court erred in finding that Benny was liable for the loss of Harold’s certificate of deposit. For the same reason, the chancery court erred in awarding Harold $14,278 for an unpaid shareholder loan he made to KPI in 1998.

¶ 35. Finally, Benny argues that the chancery court erred in awarding Harold damages for unpaid rental income on the property that served as KPI’s office. In 1980, Benny and Harold purchased real property in Pascagoula, Mississippi. They later built KPI’s office and a fabrication workshop on the property. In 1989, Harold and Benny entered into a lease agreement with KPI. Under the terms of the lease agreement, KPI agreed to lease the real property and buildings located on the property for $75,300 annually. The lease agreement had a one-year term with an option to extend the lease under the same conditions for two consecutive terms of five years per term.

¶ 36. Harold testified that he received lease payments through 1998, but he received no lease payments after that year even though KPI continued to do business at that location until the company ceased operations in 2002. The chancery court awarded Harold $37,500 in unpaid rent for 1999 and $225,000 for 2000 through 2005. Again, unpaid rent was not contemplated as an element of damages in Harold’s employment contract. Accordingly, the chancery court erred in awarding Harold damages for unpaid rent.

¶ 37. In conclusion, we reverse the chancery court’s award of damages for Harold’s unpaid accrued sick leave and remand for specific findings regarding the amount of sick leave Harold had used, if any. We reverse and render the chancery court’s award of damages for Harold’s loss of his certificate of deposit, his unpaid shareholder loan, and unpaid rent.

8. Attorneys’ Fees

¶ 38. Benny argues that the chancery court erred in awarding David, Brian, Randy, and KMIS attorneys’ fees totaling $43,910.23. The chancery court determined that Benny’s counterclaims against Harold’s sons and KMIS were frivolous and awarded attorneys’ fees pursuant to Rule 11(b) of the Mississippi Rules of Civil Procedure. Benny contends that because his counterclaims survived summary judgment, they could not be deemed frivolous for purposes of Rule 11(b). We agree.

¶ 39. Our supreme court has previously held that a trial judge erred in awarding attorney’s fees under Rule 11(b) where the court “refused to grant the defendant a directed verdict at the close of [the] plaintiffs case.” Nichols v. Munn, 565 So.2d 1132, 1137 (Miss.1990). We see no reason to hold differently in the context of summary judgment. Therefore, the chancery court erred in awarding attorneys’ fees to Harold’s sons and KMIS after it denied their motion for summary judgment with respect to those same claims.

9. Punitive Damages

¶ 40. Benny also complains that the chancery court erred in awarding Harold punitive damages. However, our supreme court has previously held that breach of fiduciary duty by a majority shareholder in a closely held corporation is recognized as an “extreme case” where punitive damages may be award. Fought, 543 So.2d at 173; see also Missala Marine Servs., Inc. v. Odom, 861 So.2d 290, 295 (¶22) (Miss.2003) (holding that punitive damages were appropriate in a case involving corporate freeze out of a minority shareholder). Consequently, the chancery court did not abuse its discretion in awarding punitive damages. This issue is without merit.

¶ 41. THE JUDGMENT OF THE CHANCERY COURT OF JACKSON COUNTY IS AFFIRMED IN PART, REVERSED AND RENDERED IN PART, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANTS AND ONE-HALF TO THE AP-PELLEES.

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

      . Only Benny and his son, Benny Knight Jr. (Ray), were present at the meeting. Benny moved to terminate Harold's benefits and Ray seconded.

      . According to the pretrial order, the pleadings were amended to conform with the order.

      . We pause to note that Benny also takes issue with some of the chancery court's factual findings regarding his use of corporate funds, which, in addition to a finding that Benny breached his fiduciary duty owed to Harold as a minority shareholder, supported the court's decision to impose personal liability on Benny. Given our holding that Benny is personally liable based on his breach of his fiduciary duty, we need not address Benny’s challenge to the chancery court’s factual findings regarding his use of corporate funds.

      . The property was sold at the beginning of 2006.

      . Rule 11(b) provides, in pertinent part:
      If any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay, the court may order such a party, or his attorney, or both, to pay to the opposing party or parties the reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorneys’ fees.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Wallace Wayne WHATLEY a/k/a Wallace Whatley a/k/a Wallace W. Whatley, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01548-COA.
    Court of Appeals of Mississippi.
    Jan. 22, 2013.
    Rehearing Denied June 25, 2013.
    Certiorari Denied Oct. 10, 2013.

      Wallace Wayne Whatley, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. Wallace Whatley, appearing pro se, appeals the Rankin County Circuit Court’s dismissal of his motion for post-conviction relief (PCR). Finding no error, we affirm.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. In November 2008, a Rankin County grand jury returned a three-count indictment against Whatley for sale of Dilaudid, a schedule II controlled substance, possession of more than forty dosage units of Dilaudid, and possession of a firearm by a felon, respectively. He was also indicted as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007). In September 2009, Whatley fired his first lawyer, Richard Rehfeldt, and hired Cynthia Stewart to represent him. He also entered the first of two plea petitions. In it, he pleaded guilty to all three counts of the indictment. Whatley listed his “physical and mental health” as “uncertain” and stated that he was not under the influence of any drugs “except methadone.” This plea petition was signed on September 28, 2009 (the date of the plea hearing), and a judgment of conviction for the three counts was signed as well, and entered on October 7, 2009. However, at the plea hearing, at some point Whatley ran out of the courtroom and did not return. A bench warrant was issued for Whatley’s arrest when he failed to appear at his sentencing hearing, set for January 2010. Whatley later explained that he fled the courtroom because before the hearing he had received a letter from his methadone clinic stating that if he was imprisoned, and thereby suddenly taken off his methadone treatments, he could have a stroke. Whatley “stayed gone” for one and one-half months, and turned himself in after “detoxing.”

¶ 8. In October 2010, Whatley changed lawyers yet again, substituting Stewart with Percy Stanfield and Beverly Poole. In December 2010, another plea hearing was held where Whatley entered a second plea of guilty for Count I’s charge of sale of Dilaudid as a subsequent drug offender under Mississippi Code Annotated section 41-29-147 (Rev.2009), but not as a habitual offender. The trial court entered an order to nolle prosequi the second and third counts. The trial judge sentenced Whatley as a subsequent drug offender to sixty years in the custody of the Mississippi Department of Corrections (MDOC), with release after serving twenty of the sixty years, followed by five years of post-release supervision. He was also ordered to pay a fine of $5,000 and various court costs and fees.

¶ 4. In August 2011, Whatley filed a PCR motion alleging his indictment was improper; his plea, involuntary; his sentence, illegal; the judge, biased; and his counsel, ineffective. Attached to his motion were affidavits, dated March 2011, from Stewart, Stanfield, and a paralegal, recounting his plea negotiations. Further, Whatley attached several letters, including an October 2010 letter from his counsel, Poole, to the district attorney about factors to consider for Whatley’s plea recommendation (his health, fleeing the courtroom during his first plea hearing, and forfeiture of certain casino winnings), as well as several letters from Poole to Whatley about the plea negotiations. Whatley also attached a drug store print-out of his pharmacy prescriptions from January 2008 to June 2010, including prescriptions for Oxycontin, methadone, and Dilaudid.

¶ 5. The trial court dismissed Whatley’s motion. He now appeals, raising three issues: he was entitled to a competency hearing before his plea hearing; his guilty plea was involuntary; and his counsel was ineffective. Whatley also discusses, within these issues, the validity of his indictment and sentence; so, we shall discuss these matters as well.

STANDARD OF REVIEW

¶6. In reviewing the trial court’s dismissal of a motion for post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). Questions of law are reviewed de novo. Id.

ANALYSIS

1. Jurisdiction

¶ 7. Whatley’s notice of appeal was not entered by the trial court within thirty days of entry of the trial court’s judgment. The appellate rules require that the notice of appeal “shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” M.R.A.P. 4(a). The trial court dismissed Whatley’s PCR motion on September 13, 2011. Whatley’s notice of appeal was stamped “filed” by the circuit court clerk on October 18, 2011, but the notice was otherwise without a date. Generally, an appeal shall be dismissed unless the notice of appeal is timely filed under Mississippi Rule of Appellate Procedure 4 or 5. M.R.A.P. 2(a)(1). However, appeals of PCR motions are governed by Mississippi Rule of Appellate Procedure 2(c), which allows this Court to suspend the requirements of the appellate rules in the interest of justice. Therefore, this Court may suspend Rule 4(a) to allow an out-of-time appeal in criminal cases and “civil” PCR actions. See M.R.A.P. 4 cmt.

¶ 8. Even though the State has not challenged appellate jurisdiction here, we must determine whether jurisdiction exists. The prison-mailbox rule states that in pro se post-conviction relief proceedings, the prisoner’s motion is considered delivered for filing when the prisoner gives the documents to prison authorities for mailing. Sykes v. State, 757 So.2d 997, 1000-01 (¶ 14) (Miss.2000). The State bears the burden of proving the prisoner’s notice of appeal is untimely filed. Melton v. State, 930 So.2d 452, 455 (¶ 8) (Miss.Ct.App.2006).

¶ 9. The record does not indicate when Whatley delivered his documents to prison authorities for mailing. However, since his notice of appeal was received by the Court only five days late, it is possible that the documents were delivered to prison authorities within the time frame allowed by Rule 4(a). Accordingly, we exercise our discretion under Rule 2(c) to suspend the thirty-day requirement to the extent Whatley’s filing may have been untimely. We therefore find jurisdiction proper and address Whatley’s appeal on the merits.

2. Indictment

¶ 10. Whatley discusses, in relation to his other issues, that his indictment was defective because Count I did not specify the amount of Dilaudid he sold, but only stated “a quantity.” Whatley maintains that he only sold one dosage unit of Dilaudid, but there is no evidence in the record of this fact.

¶ 11. Indictments must contain “a plain, concise and definite written statement of essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” URCCC 7.06. “The purpose of the indictment is to provide the accused reasonable notice of the charges against him so that he may prepare an adequate defense.” Brawner v. State, 947 So.2d 254, 265 (¶ 31) (Miss.2006) (citing Brown v. State, 890 So.2d 901, 918 (¶61) (Miss.2004)). The ultimate test for the validity of an indictment is whether the defendant was prejudiced in preparing his defense. Medina v. State, 688 So.2d 727, 730 (Miss.1996).

¶ 12. There is no requirement that Whatley’s indictment contain the amount of Dilaudid he sold. See Miss.Code Ann. § 41 — 29—139(b)(1) (Supp.2012). As written, the indictment gave Whatley reasonable notice of the charges against him; and he was not prejudiced in preparing his defense.

¶ 13. Whatley also complains that there was no subsection cited in his indictment for the charge. Whatley was charged for Count I under Mississippi Code Annotated section 41-29-139 (Supp.2012). There is no requirement under Rule 7.06, however, that an indictment contain the statutory subsection. Further, Whatley makes no claim that he was misinformed about the true nature of the crime charged because of this omission. The indictment includes the essential facts concerning the offense charged and adequately informed Whatley of the nature of the charges against him, without the subsection.

¶ 14. Additionally, Whatley entered a valid guilty plea, which operates as a waiver of any possible non-jurisdictional defects in his indictment. See Garner v. State, 944 So.2d 934, 939 (¶14) (Miss.Ct.App.2006) (citing Brooks v. State, 573 So.2d 1350, 1355 (Miss.1990)). The only exceptions to this waiver are if the indictment fails to charge an essential element of the crime or the court lacks subject-matter jurisdiction. Kincaid v. State, 711 So.2d 873, 877 (¶ 20) (Miss.1998) (citing Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989)). Neither of these exceptions are present here. Accordingly, we find Whatley’s indictment was not defective.

3. Legality of Sentence

¶ 15. Relatedly, Whatley claims that his sentence was inconsistent with the charge in his indictment and thereby illegal. Whatley was indicted under section 41-29-139. Subsection (b)(1) of this code section provides that offenders may be sentenced to not more than thirty years’ imprisonment for sale of a schedule II substance, such as Dilaudid. The statute also provides that for possession of one dosage unit, a person “may” be charged for a misdemeanor “or” felony, and sentenced to one to four years’ imprisonment, under section 41-29-189(c)(l)(A). Whatley argues that he should have been sentenced under subsection (c)(1)(A) because he only sold one dosage unit of Dilaudid.

¶ 16. This argument is without merit. It is well established that sentencing is “within the discretion of the trial court” and not subject to appellate review “if it is within the limits prescribed by statute.” Jackson v. State, 965 So.2d 686, 688 (¶ 6) (Miss.2007) (quoting Reynolds v. State, 585 So.2d 753, 756 (Miss.1991)). Whatley pleaded guilty and was sentenced for the “sale,” not “possession,” of Dilau-did. The trial court sentenced Whatley as a subsequent drug offender under section 41-29-147, and not as a habitual offender, in conformity with his plea negotiations. While his sentence was doubled as a subsequent drug offender, if Whatley had been sentenced as a habitual offender under section 99-19-81, the trial court would have had no choice but to sentence him to the maximum sentence without the possibility of probation, parole, or a suspended or reduced sentence. Because Whatley was sentenced as a “subsequent drug offender,” he was sentenced to sixty years, but the trial court, in its discretion, only ordered Whatley to serve twenty years, after which he would be released. What-ley’s sentence was “within the limits prescribed by statute.”

¶ 17. In his reply brief, Whatley also argues that his sentence was grossly disproportionate to the offense, in violation of the Eighth Amendment. There is no merit to this contention. Whatley was sentenced for selling Dilaudid in accordance with the proper statutory provisions.

4. Guilty Plea

¶ 18. Whatley argues that his guilty plea was invalid because he was coerced “in a deceitful manner” by his family and legal counsel. Additionally, Whatley claims he was incompetent at the time of his plea hearing.

¶ 19. A guilty plea will be found valid if it is voluntarily and intelligently made by the defendant before the trial court. Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss.2009). A plea is voluntary and intelligent if the trial court advises “the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea.” Id. (citing Harris v. State, 806 So.2d 1127, 1130 (¶ 9) (Miss.2002)). Moreover, “[s]olemn declarations in open court carry a strong presumption of verity.” Harris, 806 So.2d at 1130 (¶ 9). The petitioner has the burden of proving his plea is invalid. Hannah v. State, 943 So.2d 20, 25 (¶ 11) (Miss.2006) (citing Gardner v. State, 531 So.2d 805, 810 (Miss.1988)).

¶ 20. Specifically, Whatley argues he was “induced” to plead guilty by his first counsel, Rehfeldt, because he “coerced” Whatley into forfeiting $25,580 (Whatley’s $35,000 casino winnings less Rehfeldt’s attorney’s fees) to the Rankin County District Attorney’s Office in the hope that Whatley would receive a more favorable plea offer. Whatley claims the prosecution assumed the forfeited money was “drug money” instead of casino winnings. What-ley also complains that his last two lawyers, Poole and Stanfield, informed him that his “best bet” was to enter an open plea in front of Judge Samac S. Richardson, who would decide his sentence. Therefore, he agreed to plead guilty. Instead, Whatley had to enter a plea before Judge William E. Chapman III, who Whatley claimed showed bias against him. Whatley also contends that Poole coerced him, through “inaccurate information” that he “miscomprehended,” into taking “an exceptionally large sentence.” Whatley further argues that his plea was involuntary for a number of other reasons, such as that his mother convinced him to plead guilty and that his lawyers told him exactly what to say at the plea hearing. Finally, he claims he was very confused at the plea hearing and “constantly changing his mind concerning the plea offer.”

¶ 21. Whatley’s arguments regarding the involuntariness of his guilty plea are without merit. The transcript shows that at Whatley’s second plea hearing, he voluntarily admitted under oath to Count I’s charge of sale of Dilaudid. The State explained its proof against Whatley. The trial judge clearly explained to Whatley the nature of the charge, the effect of the plea on his rights, and the minimum and maximum sentences. Whatley denied being coerced to plead guilty. He indicated he understood the charge against him and the consequences of pleading guilty. Whatley also denied he was under the influence of drugs or alcohol, or had ever been treated for a mental illness or disorder. He acknowledged his satisfaction with his lawyers’ performance. Moreover, Whatley signed a guilty plea petition to the same effect.

¶22. The trial judge found Whatley competent to enter a guilty plea. However, the transcript did show Whatley was initially indecisive at the December 2010 plea hearing. He questioned the prosecution’s recommended sentence of sixty years to serve “with release after twenty years” and five years’ post-release supervision, and why the recommendation was not “forty years suspended.” The trial judge explained that since Whatley was a prior felon, the judge could not suspend time, but he could “releas[e] him after he has served so many years,” which had the same “practical effect.” Due to Whatley’s questions, the trial judge stopped the proceedings for Whatley to confer with his lawyers. At this time, Whatley was also allowed to speak with his mother about his plea. After the conference, Whatley proceeded to plead guilty to Count I, and stated he had no further questions.

¶ 23. As for Whatley’s allegation of judicial bias, although Judge Chapman’s comments are not a part of the transcript, Poole stated in a letter to Whatley dated December 2010, which was attached to Whatley’s PCR motion, that Judge Chapman had explained the following at the plea hearing: had Whatley gone to trial and been found guilty, he would have been sentenced to sixty years, day-for-day. Whatley argues this comment indicated judicial bias. We disagree. The judge was merely explaining that if Whatley was sentenced as a habitual offender, the judge would have no discretion in sentencing Whatley, and would be required to give Whatley the maximum sentence of sixty years. Instead, Whatley was not sentenced as a habitual offender and therefore did not have to serve sixty years, day-for day, but only twenty years. Accordingly, this comment cannot be considered judicial bias.

¶ 24. In sum, there is no evidence in the record to support Whatley’s claim that his plea was involuntary or unintelligent.

5. Competency Hearing

¶25. Relatedly, Whatley argues that he was entitled to a competency hearing because he did not understand the consequences of his plea. In his PCR motion, Whatley claimed he is paranoid and schizophrenic, and that he lied at the plea hearing about his mental competency. Whatley points to the facts he ran out of his first plea hearing, and was indecisive at his second plea hearing, as evidence of his mental instability. Whatley also claims he was denied his prescription medication while imprisoned, which made him mentally unstable at his plea hearing. However, he does not specify the type of medication or which plea hearing.

¶26. Rule 9.06 of the Uniform Rules of Circuit and County Court governs a defendant’s competency to stand trial. It reads:

If before or during trial the court ... has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination .... After the examination the court shall conduct a hearing to determine if the defendant is competent to stand trial.

When a defendant enters a guilty plea, the same standard for competency applies. Smith v. State, 831 So.2d 590, 598 (¶ 11) (Miss.Ct.App.2002). Having “reasonable grounds” is key in assessing the trial court’s responsibility to order a competency hearing. Id.

¶ 27. Here, there were no “reasonable grounds” for the trial court to order a competency hearing. Over an approximately two-year period, none of Whatley’s four lawyers ever raised any competency issues before the trial court. In fact, Whatley’s second lawyer, Stewart, attested in Whatley’s first plea petition that she was satisfied he was mentally competent, physically sound, and not under the influence of drugs or intoxicants. Although Whatley claims he was on methadone treatments for a narcotics addiction around the time of his first plea hearing, this fact is not necessarily evidence of mental incompetency. At the plea hearing in December 2010, the trial judge was able to observe Whatley’s demeanor and behavior, and found him competent “to understand the nature of the criminal offense” to which he pleaded guilty. There is no evidence to support Whatley’s assertions that he was mentally incompetent at the time he entered his guilty plea.

6. Ineffective Assistance of Counsel

¶ 28. Whatley, who has been represented by four lawyers since his arrest, now claims each of them was ineffective for various reasons. He argues that the outcome of his plea would have been different but for their errors.

¶ 29. To prove ineffective assistance of counsel, the defendant must show counsel’s performance was deficient, and this deficiency prejudiced the defense. Liddell v. State, 7 So.3d 217, 219 (¶ 6) (Miss.2009) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). There is a strong presumption counsel was competent. Id. at 219-20 (¶ 6) (citing Bennett v. State, 990 So.2d 155, 158 (¶ 9) (Miss.2008)). In the context of a guilty plea, the defendant must show “unprofessional errors of substantial gravity” and that “but for counsel’s errors he would not have entered the plea.” Buck v. State, 838 So.2d 256, 260 (¶ 12) (Miss.2003) (quoting Reynolds v. State, 521 So.2d 914, 918 (Miss.1988)).

¶ 30. Specifically, Whatley argues that his first counsel, Rehfeldt, mistakenly persuaded him to forfeit his casino winnings, because the forfeiture was later used against him in the plea hearing, but he fails to state how it was used against him. Whatley claims Rehfeldt also failed to investigate his case and produce exculpatory evidence, but Whatley does not reveal what that evidence might be. Whatley states his second counsel, Stewart, failed to challenge his defective indictment, failed to request a competency hearing, withheld vital information from the court about his methadone treatment, and refused to represent him after he ran out of the courtroom during his first plea hearing. Finally, Whatley claims his last lawyers, Stanfield and Poole, also failed to challenge his indictment, failed to request a competency hearing, and coerced him to accept a guilty plea, which was ill-advised because there was insufficient evidence of his guilt.

¶ 31. Whatley’s contentions are without merit. The record is devoid of evidence that any of Whatley’s lawyers performed deficiently. There is no evidence the forfeiture had anything to do with Whatley’s plea hearing or that What-ley’s counsel failed to investigate his case. Stewart stated in her affidavit that What-ley fired her after his running-out-of-the-courtroom incident. Poole also sent a letter to the district attorney explaining Whatley’s actions. As discussed previously, Whatley’s contentions regarding a faulty indictment and the need for a competency hearing are without merit. There is no evidence Whatley was coerced by Stanfield and Poole into pleading guilty. “Counsel has ‘a duty to fairly, even if that means pessimistically, inform the client of the likely outcome of a trial based upon the facts of the case.’ ” Robinson v. State, 964 So.2d 609, 612 (¶ 8) (Miss.Ct.App.2007) (quoting Daughtery v. State, 847 So.2d 284, 287 (¶ 6) (Miss.Ct.App.2003)). If the attorney believes that it is in his client’s best interest to plead guilty, it is his duty to inform him of that fact. Id. Whatley’s lawyers did just that.

¶ 32. Moreover, Whatley’s testimony at the second plea hearing contradicts his allegations. There, he stated under oath that he was “completely satisfied” with his counsel’s legal representation. Whatley also signed his plea petition, acknowledging his satisfaction with his legal counsel. In conclusion, he fails to present any specific evidence that but for his counsel’s alleged deficiencies, he would not have pleaded guilty.

7. Evidentiary Hearing

¶ 33. Whatley also complains that he should have been granted an evi-dentiary hearing. We disagree. “The trial court has ‘considerable discretion’ in determining whether to grant an evidentia-ry hearing.” Elliott v. State, 41 So.3d 701, 709 (¶ 25) (Miss.Ct.App.2009) (quoting Meeks v. State, 781 So.2d 109, 114 (¶ 14) (Miss.2001)). Further, “[n]ot every motion for post-conviction relief must be afforded a full adversarial hearing by the trial court.” Id. (quoting Jones v. State, 795 So.2d 589, 590 (¶3) (Miss.Ct.App.2001)). The movant must prove, through affidavits or otherwise, the potential existence of such facts that, if proven at the hearing, would entitle him to relief. Id. Although Whatley does attach several affidavits and letters to his PCR motion, they do nothing to further his arguments.

CONCLUSION

¶ 34. Based on the foregoing, the trial court did not err in dismissing Whatley’s PCR motion.

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

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

      .An attachment to Whatley’s indictment shows that in July 1999 he was convicted in a case with two separate cause numbers for what appears to be the same charge: the sale of Dilaudid. However, Whatley's plea petitions show he was also convicted of robbery. A letter from Whatley’s counsel (Poole) to the district attorney, attached to his PCR motion, confirms Whatley pleaded guilty to robbery without a firearm in the 1980s. Section 99-19-81 provides that persons convicted of a felony who have been convicted twice previously of felonies for separate incidents at different times and sentenced to separate terms of one year or more shall be sentenced to the maximum term of imprisonment, and are not eligible for parole or probation, nor shall their sentence be reduced or suspended.

      . Section 41-29-147 allows for enhanced sentences and fines for subsequent drug offenses, up to twice the term and amount otherwise authorized.

      . Only the last two pages of a four-page document, which is presumably Stanfield's affidavit, is attached to Whatley’s PCR motion. The first two pages are not included in the record.

      . Whatley attached several documents to his initial and reply briefs that are not a part of the record. It is well established that “[t]he burden rest[s] upon [the] appellant to see to it that the record contain[s] all data essential to an understanding and presentation of matters relied upon for reversal on appeal.” Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973) (citing Willenbrock v. Brown, 239 So.2d 922, 925 (Miss.1970)). "[An appellate court] may not act upon or consider matters which do not appear in the record and must confine itself to what actually does appear in the record.” Id. The documents Whatley attached to his briefs are not a part of the appellate record, and thus cannot be considered by this Court.

      . We note that some of the other documents in the record for Whatley’s appeal, such as his motion to proceed in forma pauperis and the related affidavit, are signed and dated October 11, 2011.

      . Specifically, the indictment reads that Whatley “did willfully, unlawfully, felo-niously, knowingly and intentionally sell, distribute or transfer a quantity of Dilaudid.... ”


author: GRIFFIS, P.J.,

text:
    Antonio GRIFFITH a/k/a Antonio Griffin, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00315-COA.
    Court of Appeals of Mississippi.
    May 7, 2013.
    Rehearing Denied Sept. 3, 2013.
    Certiorari Denied Oct. 17, 2018.

      Mollie Marie McMillin, George T. Holmes, Robert E. Evans, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Antonio Griffith was convicted of murder for the death of Willie Newsome. In this appeal, Griffith argues that his conviction for murder, rather than manslaughter, was against the overwhelming weight of the evidence.

FACTS

¶ 2. On August 6, 2010, around 7:00 or 7:30 p.m., Ray Butler went to visit New-some, his brother. Newsome’s nickname was Peewee. Newsome was on his riding lawn mower when Butler arrived. For about the next thirty minutes, Butler and other guests waited for Newsome to finish mowing his grass. They planned to ride horses together. Griffith was one of the guests at Newsome’s home.

¶ 3. Newsome told his guests not to drink the beers left in his cooler because he was going to drink them when he finished mowing the lawn. Despite this warning, Griffith drank one of Newsome’s beers.

¶ 4. The accounts of what happened next differ. Butler testified that Newsome chastised Griffith, but there was no physical altercation between them. Bernard Expose testified that Newsome pushed Griffith out of his face. Frank Rhodes testified that Griffith then walked to the street, and a car picked him up. Butler testified that Griffith did not immediately leave, but only left after the group was about to leave to ride horses.

¶ 5. The rest of the group left to ride horses. Rhodes testified that fifteen to twenty men went on the ride. Rhodes and Butler testified that the group returned about an hour and a half later.

¶ 6. Vincent Brown, a blacksmith/farrier, shod a horse that evening as soon as he arrived. Brown then took a thirty-minute ride with two other men. The record is not clear if this was the same ride that the larger group of guests went on. Brown returned when Newsome returned.

¶ 7. When the group returned, Griffith appeared suddenly and shot Newsome twice. Expose testified that he arrived a few minutes before Griffith and that Griffith spoke to him. Randy Adams, Rhodes, and Expose testified that Griffith did not say anything to Newsome. Butler, Adams, and Quinton Rhodes drove New-some to the hospital, where he was pronounced dead.

¶ 8. Sheriffs deputies found Griffith behind a horse stall at his aunt’s house, which was nearby. They arrested him. Griffith was charged with murder under Mississippi Code Annotated section 97-3-19 (Rev.2006). Dr. Feng Li performed an autopsy on Newsome. Dr. Li reported that Newsome had died of four gunshot wounds, and the manner of death was a homicide.

¶ 9. At the trial, Griffith’s aunt, Brenda Hathorn, testified that she saw Griffith hiding in her horse stall and that “he was in a rampage or something.” She testified that “he was drunk and angry.”

¶ 10. Additionally, Griffith’s mother, Linda Griffith, testified at trial. Linda had gone by Newsome’s house before the shooting. She saw that Griffith’s shirt had grass stains and dirt on it and that something was wrong with him. Linda testified that Butler told her that her son and New-some had been in a little fight. Linda stayed for about thirty or forty minutes.

¶ 11. Griffith himself testified and admitted to killing Newsome. Griffith testified that Newsome pushed him and they fought. Then, Newsome grabbed Griffith by the throat, choked him, and threatened to kill him. Griffith pushed Newsome away. Griffith testified that he had argued before with Newsome, and Newsome had blown those arguments out of proportion.

¶ 12. Griffith testified that his emotions were high after his fight with Newsome. He testified that he thought for about five minutes about everything Newsome had said, and then he left to go get a gun. Griffith testified he was angry after the fight. Griffith testified that about twenty minutes had passed from the time of the fight until he shot Newsome.

¶ 13. After a trial on July 26 and 27, 2011, a jury found Griffith guilty of murder. The circuit court had instructed the jury on the lesser crime of manslaughter. Griffith filed a motion for a judgment not withstanding the verdict or, in the alternative, a new trial. On February 24, 2012, the circuit court denied Griffith’s motion. He was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. He now appeals his murder conviction.

ANALYSIS

¶ 14. Griffith argues that his conviction for murder, rather than manslaughter, is against the overwhelming weight of the evidence.

¶ 15. We review a trial court’s denial of a motion for a new trial for abuse of discretion. King v. State, 83 So.3d 376, 379 (¶ 11) (Miss.2012) (citation omitted). We weigh the evidence “in the light most favorable to the verdict.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (citation omitted). ‘When the claim is that the verdict is against the weight of the evidence, the charge to this Court is to enter into the province of the jury as a thirteenth juror and determine whether the weight of the evidence tips the scales of justice in favor of the verdict.” Johnson v. State, 52 So.3d 384, 397 (¶ 38) (Miss.Ct.App.2009).

¶ 16. At Griffith’s trial, the accounts from Griffith, Expose, and several other witnesses differed from each other. Our supreme court has held that reversal is appropriate where “there is such contradictory testimony that it is virtually impossible to reconstruct what actually happened,” and the conflicting evidence “cast[s] at least a reasonable doubt, as to murder.” Clemons v. State, 473 So.2d 943, 944-45 (Miss.1985). Here, the disputable testimony is not so contradictory as to create a reasonable doubt as to the charge of murder, so the issue is one of witness credibility.

¶ 17. “The determination of witness credibility lies within the sole province of the jury.” Leggett v. State, 54 So.3d 317, 321 (¶ 22) (Miss Ct.App.2011) (citation omitted). We do “not disturb a jury’s finding on conflicting testimony where there is substantial evidence to support the verdict.” Id. The jury heard the conflicting testimony about the degree of severity of the altercation and the length of time Griffith and Newsome were apart before the shooting. The jury resolved the testimony in favor of the State.

¶ 18. The circuit court instructed the jury on the elements of murder and the elements of manslaughter. Manslaughter is “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense.” Miss.Code Ann. § 97-3-35 (Rev.2006). “An unjustified and unexcused taking of life is presumed to be murder unless there is evidence upon which a jury can rationally justify mitigation down to manslaughter.” Neal v. State, 805 So.2d 520, 525 (¶ 16) (Miss.2002). A killing in the heat of passion may justify such a mitigation to manslaughter. Id.

¶ 19. Heat of passion is:

A state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from a grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment!,] or terror.

Griffin v. State, 13 So.3d 833, 837 (¶ 10) (Miss.Ct.App.2009).

¶ 20. Heat of passion requires evidence of adequate provocation. Leggett, 54 So.3d at 321 (¶ 24). The supreme court has held:

[I]t is essential that the excited and angry condition of the party committing the act which would entitle him to the milder consideration of the law, should be superinduced by some insult, provocation, or injury, which would naturally and instantly produce, in the minds of ordinarily constituted men, the highest degree of exasperation.

Jones v. State, 39 So.3d 860, 866-67 (¶ 36) (Miss.2010) (citation omitted).

¶ 21. The absence of malice is the vital distinction between heat-of-passion manslaughter and murder. Miss. Code Ann. §§ 97-3-19(l)(a), 97-3-35. Malice aforethought is defined as the equivalent of “deliberate design.”

[Deliberate always indicates full awareness of what one is doing, and generally implies careful and unhurried consideration of the consequences. “Design” means to calculate, plan, [or] contemplate .... [Deliberate design to kill a person may be formed very quickly, and perhaps only moments before the act of consummating the intent....

Windham v. State, 520 So.2d 128, 126 (Miss.1988).

¶ 22. The corroborated testimony did not establish any evidence of adequate provocation to support Griffith’s claim that he killed Newsome in the heat of passion. Expose and Griffith were the only witnesses out of several eyewitnesses to testify that any physical altercation occurred. Expose testified that Griffith got up towards Newsome, and Newsome just pushed Griffith back. Several other witnesses, however, testified that Newsome and Griffith only exchanged words. From the testimony of all witnesses to the altercation, except Griffith himself, Griffith was in no immediate danger when he left New-some’s house. As embarrassing as New-some’s confrontation about the beer might have been, it was not justification for a homicide.

¶23. Griffith had the deliberate design to kill Newsome; he was aware of what he was doing and quickly planned it. See Windham, 520 So.2d at 127. Griffith testified that he intended to kill Newsome. Griffith’s testimony that Newsome choked him was not corroborated by any eyewitness. After the altercation, Griffith thought for a few minutes and planned to leave to go get his gun. He carried through with his plan. A car picked him up and brought him to his house to retrieve his gun. He returned with his gun, waited, talked to Expose, and shot New-some.

¶ 24. Griffith did not exhibit a “state of violent and uncontrollable rage.” See Griffin, 13 So.3d at 837 (¶ 10). Immediately before the shooting, Expose arrived after Griffith but before Newsome had arrived. Expose and Griffith had a conversation after Griffith had called out to him, “hey Unc.” Expose did not testify to anything being wrong with Griffith during their conversation. Expose also did not testify that Griffith acted angry or upset just before Griffith shot Newsome. Expose testified that their conversation ended because Newsome arrived and, almost immediately, Griffith shot him. Hathorn’s testimony about Griffith being “drunk and angry” was after he had shot Newsome. When she saw Griffith, he had fled to her horse stall and was afraid of going to jail.

¶ 25. Between the altercation and the shooting, a time period of twenty minutes up to an hour and a half had passed according to the conflicting trial testimony. Even assuming for the sake of argument that Newsome’s disapproval was enough provocation, it would not have “instantly producefd], in the minds of ordinarily constituted men, the highest degree of exasperation.” Jones, 39 So.3d at 866-67 (¶ 36).

¶ 26. The jury at Griffith’s trial was instructed on murder and heat-of-passion manslaughter. It chose to convict on the murder charge. After reviewing all the evidence in the light most favorable to the verdict, we find that reversal is not warranted. The weight of the evidence supports the verdict. The circuit court did not abuse its discretion when it denied Griffith’s post-trial motion.

¶ 27. The verdict was not against the overwhelming weight of the evidence. Viewing the evidence in a light most favorable to the verdict, upholding the verdict would not be an unconscionable injustice. Therefore, this issue has no merit.

¶ 28. THE JUDGMENT OF THE JEFFERSON DAVIS 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 JEFFERSON DAVIS COUNTY.

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


text:
    Cordellra McCARLEY a/k/a Cordellra McCaley, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01636-COA.
    Court of Appeals of Mississippi.
    May 28, 2013.
    Rehearing Denied Oct. 15, 2013.
    H. Lee Bailey Jr., Winona, Erin Elizabeth Pridgen, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   BARNES, J.,

for the Court:

¶ 1. Cordellra McCarley was convicted of burglary of a dwelling and sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC). McCarley filed a motion for a judgment notwithstanding the verdict and, alternatively, a motion for a new trial. Both motions were denied by the Montgomery County Circuit Court. McCarley filed this appeal. McCarley’s court-appointed attorney filed a brief consistent with Lindsey v. State, 939 So.2d 743 (Miss.2005). McCar-ley was sent a copy of the brief but did not file a pro se brief containing any assignments of error. Having fully reviewed the record, we find no error and affirm.

FACTS

¶2. Lakita Flowers arrived home and discovered that someone had broken into her house and stolen two televisions. Earlier that day, her friend, Latoya Fleming, notified Flowers that she believed McCar-ley would be headed to Flowers’s house. Flowers and Fleming knew McCarley casually through Fleming’s boyfriend. Flowers called the police to patrol the area around her house.

¶ 3. Michael Downs was visiting Flowers’s neighborhood that day. He was outside when he noticed a black Ford Taurus driving slowly down the street and backing into Flowers’s driveway. Downs watched a man, whom he later identified as McCar-ley, enter Flowers’s house. Downs stated that he was only fifty feet away from McCarley and remembered his face.

¶ 4. Grenada Police Detective Doug Evans II drove to Flowers’s neighborhood and saw McCarley, whom he recognized, in a black Ford Taurus. Detective Evans was informed by his supervisors that McCarley had been involved in a burglary; so he began to follow McCarley’s car and another car, driven by Ebony Conley. He followed them to the house of McCarley’s grandmother where McCarley parked the Taurus and got into Conley’s car. After further observation, Detective Evans stopped Conley’s car and found a television in the trunk of the car. McCarley attempted to run away but was apprehended and arrested.

¶ 5. McCarley was charged with burglary of a dwelling. At trial, Conley testified for the prosecution that she had agreed to help McCarley sell one of the televisions. Conley stated that she did not suspect the television was stolen. McCarley was convicted and sentenced to fifteen years in the custody of the MDOC.

DISCUSSION

¶ 6. If appellate counsel determines that there are no appealable issues in the record, it must follow the procedure outlined by the Mississippi Supreme Court in Lindsey, as follows:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1)— (4),(7); see also [Smith v.] Robbins, 528 U.S. [259, 280-81, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)] (stating that “counsel’s summary of the case’s procedural and factual history, with citations of the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case.”).
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Lindsey, 939 So.2d at 748 (¶ 18) (internal citations and footnotes omitted).

¶ 7. We find that McCarley’s attorney has complied with the requirements of Lindsey. The attorney filed a brief stating that she “diligently searched the procedural and factual history of this criminal action and scoured the record” but was unable to find “any arguable issues” to present to this Court. Furthermore, she asserts that she reviewed the record concerning:

(a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of Mr. McCar-ley’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misrepresentation of the law in sentencing; (i) the indictment and all pleadings in the record; (j) any possible ineffective assistance of counsel issues; and (k) any other possible reviewable issues.

See id. Counsel stated that she informed McCarley she found no arguable issues and that she advised McCarley of his right to file a pro se brief. McCarley, however, did not file a pro se brief.

¶ 8. Having reviewed the record, we find no issues that would require supplemental briefing. Accordingly, we affirm McCar-ley’s conviction and sentence.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF MONTGOMERY COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONTGOMERY COUNTY.

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


author: ISHEE, J.,

text:
    Larry SMITH Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CA-00024-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.
    Rehearing Denied Oct. 15, 2013.

      Davey L. Tucker, Tracey Tucker Thrash, attorneys for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2003, Larry Smith Jr. pleaded guilty in the Hinds County Circuit Court to sexual battery. He was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with five years to serve, fifteen years suspended, and four years of post-release supervision (PRS). While on PRS, he was arrested and charged with assault. Although the charge was subsequently remanded, Smith was deemed to have violated his PRS, and his PRS was subsequently revoked. Smith appealed the decision in a motion for post-conviction relief (PCR). The circuit court denied the PCR motion, and Smith now appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. Smith was initially indicted and charged with the capital rape of a minor. In 2003, Smith pleaded guilty to a reduced charge of sexual battery. On the morning of June 21, 2011, while on PRS, Smith was arrested by Jackson Police Department officers in Jackson, Mississippi, on a charge of domestic assault. The responding officer, Officer A1 Taylor, testified that upon arriving at Smith’s residence, Smith’s girlfriend, Tammy Sparks, advised Officer Taylor that on the previous evening, Smith had twisted her necklace around her neck in an attempt to choke her. When the necklace broke, Sparks told Officer Taylor, Smith punched her in the forehead. Officer Taylor noted a bruise on Sparks’s neck where the necklace had cut into her skin. However, Sparks later recanted her story and succeeded in having the assault charges against Smith dropped.

¶ 3. Nonetheless, the charges prompted a PRS-revocation hearing. Smith’s MDOC Probation Officer, Eddie Williams, testified, as did Officer Taylor, Sparks, and Smith. Officer Williams testified that he filed to revoke Smith’s PRS based on the testimony of Officer Taylor. At the hearing, Officer Taylor repeated his observations and conversation with Sparks on the night of the incident.

¶ 4. Sparks testified that Smith, Sparks’s daughter, and Sparks’s grandson all lived with her. Sparks also stated that on the night of the incident, she and Smith had an argument and Smith left the house. She claimed to have then taken a heavy dose of prescription medication and gone to sleep. When she awoke, she noticed the bruise on her neck and the missing necklace. She questioned her daughter regarding the bruise, and her daughter told her that Smith had caused the bruise and advised her to call the police. However, she testified that she could not remember the events of the evening after taking the medication and that she did not believe Smith would have hurt her.

¶ 5. Smith then testified that he did not live with Sparks, but stayed there some nights. He admitted to having stayed at the house on the night in question, but claimed the necklace broke while the couple was having sex. Smith denied choking or hitting Sparks.

¶ 6. Despite this testimony, the circuit court revoked Smith’s PRS. The circuit court determined that Smith had committed some type of domestic assault upon Sparks and, accordingly, that Smith had violated the terms of his PRS. Two years of Smith’s PRS were revoked from the remainder of his sentence.

¶ 7. On November 17, 2011, Smith filed a PCR motion claiming his PRS was improperly revoked. The circuit court held a hearing on the motion and denied it. Smith now appeals.

DISCUSSION

¶ 8. “When reviewing a [trial] court’s decision to deny a [PCR] petition[,] ... [we] will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008). We review questions of law de novo. Brown v. State, 71 So.3d 1267, 1268 (¶4) (Miss.Ct.App.2011).

¶ 9. Here, Smith raises the following issues on appeal: (1) whether Smith proved by a preponderance of the evidence that he did not commit the offense of domestic violence; (2) whether the State proved beyond a reasonable doubt a prima facie case of simple assault and/or a violation of Smith’s PRS; (3) whether the circuit court erred by denying Smith’s PCR motion; and (4) whether Smith was subjected to double jeopardy. However, all of Smith’s claims relate back to the circuit court’s denial of his PCR motion. Accordingly, Smith’s overall issue is whether the circuit court erred in its denial of his PCR motion.

¶ 10. The standard for revoking PRS requires the State to show either (1) proof of an actual conviction, or (2) that an act has occurred which constitutes violation of probation and that it is more likely than not the probationer who committed the act. See McClinton v. State, 799 So.2d 123, 127 (¶ 9) (Miss.Ct.App.2001) (citing Younger v. State, 749 So.2d 219, 222 (¶ 12) (Miss.Ct.App.1999) (citation omitted)). We have previously reiterated that “a conviction is not necessary to revoke probation.” Younger, 749 So.2d at 222 (¶ 12) (citation omitted). Again, because the revocation of PRS is not a criminal matter, the evidence must only show that a defendant more likely than not committed the offense in question. Id. The State need not show proof beyond a reasonable doubt. Ray v. State, 229 So.2d 579, 581 (Miss.1969).

¶ 11. At the revocation hearing, Officer Taylor testified regarding the bruise he observed on Sparks’s neck as well as her statement about the violence. Sparks confirmed that she admitted to Officer Taylor that Smith had tried to choke her with the necklace and had then punched her in the face. Sparks later recanted her testimony and suggested that she had fallen asleep in the bed with her own hand around her neck, thereby causing the bruise. However, Sparks later testified that she could not remember the events from the evening in question.

¶ 12. Such testimony provided plenty of evidence for the circuit court to determine that Smith had more likely than not attacked Sparks on the evening in question, thereby violating the terms and conditions of his PRS. The circuit court was not erroneous in denying Smith’s PCR motion. The issues related to the revocation of Smith’s PRS are without merit.

1113. Finally, Smith argues that he was the victim of double jeopardy when the underlying criminal charge of domestic violence was remanded without conviction and the same charge was used to revoke his PRS. This Court has stated that “[djouble jeopardy protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense.” Brooks v. State, 769 So.2d 218, 224 (¶ 21) (Miss.Ct.App.2000) (citation omitted). If “each offense contains an element not contained in the other,” then double jeopardy does not apply. Id. (citation omitted).

¶ 14. Double jeopardy does not attach in the instant case. First, Smith was not acquitted or convicted multiple times of the assault charge for domestic violence, nor was he punished on multiple occasions for the offense. Moreover, the Mississippi Supreme Court has held that protections against double jeopardy are not applicable in PRS revocations if there is no evidence of an acquittal or conviction on the merits of the crime charged on which revocation was based. Lightsey v. State, 493 So.2d 375, 377-78 (Miss.1986) (superceded by statute and overruled on other grounds). Likewise, we emphasize that revocation hearings are not criminal in nature. Ray, 229 So.2d at 581. As such, Smith suffered no double-jeopardy violations by the revocation of his PRS based on a remanded domestic-violence charge. This issue is also without merit.

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

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