author: KING, Justice, DICKINSON, Presiding Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. William L. SKINNER, II.
    No. 2012-JP-01745-SCT.
    Supreme Court of Mississippi.
    Aug. 1, 2013.

      John Toney, Darlene Ballard, attorneys for appellant.
    William B. Kirksey, Jackson, attorney for appellee.
   KING, Justice,

for the Court:

¶ 1. In this judicial misconduct case in which Hinds County Youth Court Judge William L. Skinner, II took action in a case in which he was recused and abused the contempt power, Judge Skinner and the Mississippi Commission on Judicial Performance submit a Joint Motion for Approval of Recommendations, recommending that Judge Skinner be publicly reprimanded, fined $1,000, and assessed $100 in costs. This Court finds an appropriate sanction to be a thirty-day suspension without pay, a public reprimand, a $1,000 fine, and $100 in costs. Furthermore, this Court modifies Mississippi Commission on Judicial Performance v. Gibson, 883 So.2d 1155 (Miss.2004), and its progeny to the extent that they mandate this Court examine moral turpitude as a factor in determining sanctions. In its stead, this Court and the Commission should examine the extent to which the conduct was willful and exploited the judge’s position to satisfy his or her personal desires.

FACTS AND PROCEDURAL HISTORY

¶ 2. From January to February 2011, Judge Skinner presided over several cases in Hinds County Youth Court involving six minor siblings, the Cooper children. In those cases, Judge Skinner issued a no-contact order between Mr. Cooper and the children. On February 25, 2011, Judge Skinner signed his order of recusal, stating that “an employee presently of the Hinds County Youth Court is related to the alleged perpetrator in this instance, namely [Mr. Cooper], as well as the person for which aforesaid motion for contempt is issued. Namely [Mrs. Cooper].” Also on February 25, a recusal order was entered disqualifying all Hinds County Court judges from the cases due to the employee being related to the parties to the cases. On March 3, 2011, this Court appointed a special judge, Judge John Price, judge of and for the County Court of Warren County, to preside over the matters involving the Cooper children.

¶ 3. Although he had recused himself on February 25, 2011, on March 21, 2011, Judge Skinner issued bench warrants for the arrests of Mr. and Mrs. Cooper for contempt of court for violation of the no-contact order. The warrants stated that Mr. and Mrs. Cooper each “shall be held without bond pending hearing in this matter — no bond per Honorable William “Bill” Skinner pending contempt hearing.” Mrs. Cooper was arrested in front of her children and the children were placed in the custody of the Department of Human Services (DHS). Both Mr. and Mrs. Cooper were held in custody for approximately seventy-two hours without notice or a hearing.

¶ 4. On April 3, 2012, the Commission, acting upon citizen complaints, filed a formal complaint against Judge Skinner charging him with several counts of judicial misconduct. The Complaint accused Judge Skinner of issuing bench warrants for the arrests of Mr. and Mrs. Cooper for contempt of court despite previously having recused himself from the cases involving the Cooper children. Further, the complaint accused Judge Skinner of ex parte communications. As a result of the issuance of the warrants for the arrests of Mr. and Mrs. Cooper, the complaint asserts that they were arrested and incarcerated for several days without notice, a hearing, or other required due process safeguards. The complaint thus alleges violations of Section 177A of the Mississippi Constitution of 1890, as well as of Canons 1, 2A, 3B(1), 3B(2), 3B(7), and 3(C)1 of the Code of Judicial Conduct. On April 25, 2012, Judge Skinner filed an answer and a motion to dismiss. The Commission responded to Judge Skinner’s motion to dismiss on May 21, 2012, and the Honorable David Clark, Chairman, dismissed Judge Skinner’s motion to dismiss on June 28, 2012. A committee was established to hear the case on August 10, 2012.

¶ 5. On September 19, 2012, the Commission and Judge Skinner consented to an Agreed Statement of Facts and Proposed Recommendations in lieu of a hearing. The agreed-upon facts include:

1) On February 25, 2011, Judge Skinner recused himself from participation in the matters involving the Cooper siblings, as did the other Hinds County Court judges.

2) On March 3, 2011, this Court appointed a special judge to preside over the cases.

3) On March 21, 2011, Judge Skinner signed bench warrants ordering the arrests of Mr. and Mrs. Cooper for contempt of court for violation of the no-contact order issued in the cases. The warrants mandated Mr. and Mrs. Cooper be held without bond.

4) As a result of the issuance of the warrants, Mr. and Mrs. Cooper were arrested “and remained incarcerated for several days without notice, a hearing or benefit of other due process procedural safeguards as outlined in” Cooper Tire & Rubber Company v. McGill, 890 So.2d 859 (Miss.2004).

¶ 6. Judge Skinner and the Commission agreed that Judge Skinner violated Section 177A of the Mississippi Constitution, and Canons 1, 2A, 3B(1), and 3B(2) of the Code of Judicial Conduct. The agreement eliminated the charges regarding ex parte communications. The Commission and Judge Skinner proposed that Judge Skinner be publicly reprimanded, fined $1,000, and assessed costs in the sum of $100.

¶ 7. The entire Commission unanimously agreed to accept the Agreed Statement of Facts and Proposed Recommendation with minor changes on October 12, 2012, and entered its Findings of Facts and Recommendations on October 17, 2012. The Commission filed its Findings of Fact and Recommendations with this Court on October 23, 2012. A Joint Motion for Approval of Recommendations Filed by the Mississippi Commission on Judicial Performance, and supporting brief, were filed on November 21, 2012. In the joint motion, the Commission noted that Judge Skinner had been the subject of four prior disciplinary actions, but did not include the facts surrounding these instances. In fact, no factual information whatsoever regarding the four prior disciplinary actions was included in the record filed with this Court. In order for this Court to properly resolve this case, it is necessary for us to have access to all information considered by the Commission in making its recommendation. Therefore, on its own motion, this Court ordered the Commission to submit to it copies of the four prior disciplinary files on Judge Skinner. This Court has received and reviewed these files.

ANALYSIS

¶ 8. This Court has the power, “[o]n recommendation of the commission on judicial performance,” to “remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for ... willful misconduct in office ... or [ ] conduct prejudicial to the administration of justice which brings the judicial office into disrepute!.]” Miss. Const, art. 6, § 177A. Willful misconduct in office includes “the improper or wrongful use of power of his office by a judge acting intentionally, or with gross unconcern for his conduct and generally in bad faith.... Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, or corruption, and also any knowing misuse of the office, whatever the motive.” Miss. Comm’n on Judicial Performance v. Boykin, 763 So.2d 872, 874 (Miss.2000) (quoting In re Quick, 553 So.2d 522, 524-25 (Miss.1989)). Bad faith may also be found when this Court finds “[a] specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority.” Boykin, 763 So.2d at 874-75 (quoting In re Quick, 553 So.2d at 524-25). Furthermore, “[w]illful misconduct in office of necessity is conduct prejudicial to the administration of justice that brings the judicial office into disrepute.” Boykin, 763 So.2d at 874-75. A judge may also bring the judicial office into disrepute through negligence, ignorance, or incompetence not amounting to bad faith. Id. at 875. “[T]his Court can generally recognize examples of such conduct when presented before the Court.” Id.

¶ 9. This Court, as the ultimate decision-maker in judicial performance cases, makes the final determination as to the appropriate action to be taken when a judge has committed willful misconduct or conduct prejudicial to the administration of justice that brings the judicial office into disrepute, and must conduct an independent review of the entire record. Miss. Comm’n on Judicial Performance v. Thompson, 80 So.3d 86, 88 (Miss.2012) (citing Miss. Comm’n on Judicial Performance v. Boone, 60 So.3d 172, 176 (Miss.2011)). This Court “accord[s] careful con sideration [of] the findings of fact and recommendations of the Commission, or its committee.” Thompson, 80 So.3d at 88 (second alteration in original). However, “[t]his Court is not bound by the Commission’s findings, and [it] may impose additional sanctions.” Miss. Comm’n on Judicial Performance v. Osborne, 16 So.3d 16, 19 (Miss.2009). This is true even when the Commission and the judge enter into a joint recommendation-this Court’s acceptance of the joint recommendation is not a certainty. See Miss. Comm’n on Judicial Performance v. Sanford, 941 So.2d 209, 217-18 (Miss.2006) (placing judges and the Commission on notice that a joint recommendation does not guarantee that this Court will accept the recommended sanctions).

¶ 10. The Commission and Judge Skinner agree that he violated Canons l, 2A, 3B(1), and 3B(2) of the Code of Judicial Conduct by his conduct, and the Commission found these violations by clear and convincing evidence. “Whether this behavior was actually willful is of no consequence” to the question of whether Judge Skinner violated the Constitution and the Code of Judicial Conduct, as even negligent or ignorant behavior may bring the judicial office into disrepute. Boykin, 763 So.2d at 875.

A. Whether Judge Skinner committed misconduct.

¶ 11. It is clear that Judge Skinner committed willful misconduct and conduct prejudicial to the administration of justice which brings the judicial office into disrepute. Judge Skinner recused himself from the aforementioned cases, then, with full knowledge that he was recused, reinserted himself and took further action in the cases. “It is fundamental that, once a recusal occurs, no judge may take further action in a case.” Osborne, 16 So.3d at 23. Having recused himself from a case, a judge has no more authority to take action in that case than does the ordinary citizen on the street. Furthermore, Judge Skinner abused the contempt power by issuing arrest warrants for indirect criminal contempt that led to the Coopers being held without bond for seventy-two hours without notice or a hearing. See Cooper Tire, 890 So.2d 859 (Miss.2004); see also In re E.K., 20 So.3d 1216 (Miss.2009) (discussing criminal and civil contempt in a case in which Judge Skinner was the trial judge); Miss. Comm’n on Judicial Performance v. Darby, 75 So.3d 1037 (Miss.2011) (discussing due process protections in connection with indirect criminal contempt). Both actions were done knowingly and with a knowledge of the impropriety of the actions; thus he knowingly misused the judicial office. Therefore, Judge Skinner violated Canons 1, 2A, 3B(1), and 3B(2) of the Code of Judicial Conduct and committed willful misconduct and conduct prejudicial to the administration of justice, bringing the judicial office into disrepute. See Osborne, 16 So.3d 16; Darby, 75 So.3d 1037; Miss. Comm’n on Judicial Performance v. Byers, 757 So.2d 961 (Miss.2000).

B. Whether the recommended sanction is appropriate.

¶ 12. The sanction in a judicial misconduct case should fit the offense. Boykin, 763 So.2d at 876. In the past, this Court has considered six factors to determine what sanction is appropriate. Boone, 60 So.3d at 185. Those factors are:

(1) the length and character of the judge’s public service; (2) whether there is any prior caselaw on point; (3) the magnitude of the offense and the harm suffered; (4) whether the misconduct is an isolated incident or evidences a pattern of conduct; (5) whether moral turpitude was involved; and (6) the presence or absence of mitigating or aggravating factors.

Boone, 60 So.3d at 185 (citing Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1157 (Miss.2004), overruled on other grounds by Boone, 60 So.3d at 177). The primary purpose of sanctions is “to restore and maintain the dignity and honor of the judicial office and to protect the public against future excesses,” rather than punishment of the individual. Boone, 60 So.3d at 185 (internal quotations omitted).

1. The Length and Character of Judge Skinner’s Public Service

¶ 13. Judge Skinner was a Justice Court Judge for one term, then was elected as County Court Judge in 2006 and began his service in January of 2007. The record is silent as to the character of his public service.

2. Prior Caselaw on Point

¶ 14. Several cases illustrate the impropriety of a judge acting in a case in which he is recused. In Osborne, Judge Osborne recused himself from the case of a minor due to the fact that he did not hear her attorney’s cases. Osborne, 16 So.3d at 18. After recusing himself, Judge Osborne appointed a special judge in the matter and then redetained the minor until a new hearing could be held. Id. In its analysis of the appropriate sanctions, this Court placed an emphasis on the fact that Judge Osborne recused himself, yet continued to take action in the matter, and the fact that this was his third disciplinary sanction imposed in five years. Id. at 25. Thus, the Court determined that the appropriate sanctions were removal from office and assessed costs in the amount of $1,389.69. Id. The Court emphasized that it is axiomatic that a judge must not take further action in a case in which he has been recused. Id. at 23.

¶ 15. In Roberts, Judge Roberts committed a variety of offenses in approximately eight separate cases, including one case in which he recused himself and then presided over a revocation hearing. Miss. Comm’n on Judicial Performance v. Roberts, 952 So.2d 934, 936-37 (Miss.2007). This Court noted that Judge Roberts’s actions involved procedural matters and ignorance of the law. Id. at 943. It also noted that this was the first formal complaint filed against Judge Roberts. Id. at 942. In that case, this Court imposed a public reprimand, a thirty-day suspension without pay, a $1,500 fine, and costs in the amount of $100. Id. at 943.

¶ 16. In Thompson, Judge Thompson “essentially” recused himself from a matter by telling a woman filing papers for an arrest warrant on her sister to take her grievance to another judge. Miss. Comm’n on Judicial Performance v. Thompson, 972 So.2d 582, 584 (Miss.2008), overruled on other grounds by Boone, 60 So.3d at 177. After “in essence” recusing himself, Judge Thompson (unsuccessfully) attempted to block the issuance of the arrest warrant by speaking with the issuing judge and by asking a deputy clerk not to send the warrant. Id. This Court noted that Judge Thompson “unquestionably interjected himself into a case (from which he had already in essence “recused” himself).” Id. at 587. However, Judge Thompson did not enter an order or preside over a hearing, or actually “take action” in the case, nor did he “formally” recuse himself. Nor did his actions actually prevent the warrant from issuing. This Court decided that the appropriate sanctions in the case were public reprimand and assessment of costs in the amount of $100. Id. at 590.

¶ 17. Further, ample caselaw addresses abuse of the contempt process. This Court has determined that the sanction of a public reprimand, a $500 fine, and $100 in costs was appropriate where a judge held a party in criminal contempt based on verbal, not written, instructions, and without affording her notice and without recus-ing herself from the contempt proceeding. Darby, 75 So.3d 1037. The Court noted that the misuse of the contempt power is prejudicial to the administration of justice and violates Canons 1, 2A, and 3B(2) of the Code of Judicial Conduct. Id. at 1043.

¶ 18. In Byers, this Court had strong words for a judge who abused the contempt process. Byers, 757 So.2d 961. Judge Byers had improperly imposed sentences and refused to correct her mistakes when confronted with them, had misrepresented her actions under oath, had improperly revoked probation, and had cited a journalist for criminal contempt without using the correct procedural safeguards, that is, a specific charge, notice, and a hearing. Id. The Court found the abuse of contempt powers to be “the most troubling and serious of all the charges set out in the formal complaint.” Id. at 970. The Court found that Judge Byers “abused her powers when she used the incorrect procedures to hold [the journalist] in contempt and put [the journalist] in jail.” Id. at 972. The Court noted that this violated Canons 1, 2A, 3A(1), and 3B(1) of the Code of Judicial Conduct. Id. This Court emphasized that “the power to hold a person in contempt of court is a solemn responsibility, and any misuse of this power is a serious charge.” Id. at 973. The Court ultimately sanctioned Judge Byers to a public reprimand, a fine of $1,500, and costs in the amount of $2,023.59. Id. The Court also carefully considered removing Judge Byers from office, but, in deciding against removing her, noted that “Judge Byers has already been removed by the people of her electoral district” because she was defeated in her bid for re-election. Id.

¶ 19. Further, in a case in which the judge was provoked, yet held a contempt hearing without adequate notice and imposed a $500,000 bond for the contempt charge, this Court held that “despite the provocation,” the judge’s “misuse of the contempt power of the court was misconduct for which a sanction should ensue.” Miss. Comm’n on Judicial Performance v. Sanders, 749 So.2d 1062, 1069 (Miss.1999). Even “ignorance of the law of contempt is no excuse for a judicial officer.” Id. In Sanders, the Court also found that Judge Sanders improperly and illegally expunged two convictions. Id. at 1069-70. The Court ultimately determined that appropriate sanctions were public reprimand and assessment of court costs, noting that it rejected the Commission’s recommendation of a fine given the facts, including the provocation in the contempt issue. Id. at 1073.

¶ 20. Caselaw has made abundantly clear that both of Judge Skinner’s transgressions amount to misconduct. Both taking action in a case subsequent to recu-sal and abusing the contempt power by issuing bench warrants for contempt of court without proper procedural safeguards are clear violations of the Mississippi Constitution and the Code of Judicial Conduct.

3. Magnitude of Offense and Harm Suffered

¶ 21. As a result of Judge Skinner’s actions, Mrs. Cooper was arrested in the presence of her six minor children, who were then taken into DHS custody. The Commission asserts that the children were not returned to their mother’s custody for several months. Both the Coopers were incarcerated for seventy-two hours without notice or a hearing. It is undisputed and obvious that Judge Skinner deprived both Coopers of their due process rights. The record does not contain information regarding how many people learned or knew of Judge Skinner’s improper actions, but it can be inferred that several law enforcement officers knew of it, and thus could view the judiciary negatively.

A Pattern of Conduct

¶ 22. In the joint motion, the parties acknowledge that, as a result of prior complaints, Judge Skinner has incurred a private admonishment from the Commission as well as three (3) instances of informal admonitions. Included within one of Judge Skinner’s disciplinary files is discussion between the Commission and Judge Skinner as to whether he had recused himself in a case. Judge Skinner’s responses to the Commission went into detail regarding Osborne and its holding that a judge’s recusal in a case precludes that judge from taking further action in that case, and was germane to the resolution of the complaint filed against him. The Commission characterized Judge Skinner’s pri- or disciplinary record as “dissimilar” from his actions in this case. That is not an accurate assessment. The record makes clear that Judge Skinner is well aware of the Osborne case and its mandate that a judge never participate in a case after he recuses himself. Because his history with the Commission demonstrates his clear awareness of the rules surrounding recu-sal, Judge Skinner certainly knew not to take action in the Cooper case subsequent to his recusal.

5. Moral Turpitude

¶ 23. The term moral turpitude is archaic and not easily applied. Indeed, as can be seen in the following discussion, this Court has been highly inconsistent in its application of the term moral turpitude.

¶ 24. The dictionary defines “moral turpitude” as “an act or behavior that gravely violates the moral sentiment or accepted moral standards of the community.” Webster’s 3rd New Int’l Dictionary 1469 (1961). Black’s Law Dictionary defines “moral turpitude” as “[cjonduct that is contrary to justice, honesty, or morality. In the area of legal ethics, offenses involving moral turpitude — such as fraud or breach of trust — traditionally make a person unfit to practice law. — Also termed moral depravity.” Black’s Law Dictionary 1030-31 (8th ed.2004).

¶ 25. This Court’s analysis of “moral turpitude” has varied somewhat over the years. This Court noted that “[mjoral turpitude includes, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.” Gibson, 883 So.2d at 1158 n. 2. It has further expanded this definition to note that moral turpitude may involve “some of the basic tenets of daily living in a civil society, such as living by standards of fundamental decency and honesty by not abusing the judicial process, and by revering the law and the judicial system, and upholding the dignity and respect of the judiciary through appropriate conduct and behavior toward others.” Sanford, 941 So.2d at 217. This Court has further stated that “[t]he bottom line of this element is that we must determine whether a judge’s conduct crosses the line from simple negligence or mistake to willful conduct which takes advantage of a judge’s position for greed or other inappropriate motives. If the conduct willfully subverts justice, more punishment is warranted.” Miss. Comm’n on Judicial Performance v. Gordon, 955 So.2d 300, 305 (Miss.2007).

¶ 26. This standard has been the source of much disagreement in its interpretation and application. Furthermore, the cases for which moral turpitude is or is not found vary widely. A survey of judicial misconduct cases from 2011 to the present in which moral turpitude is discussed illustrates this point. See, e.g., Miss. Comm’n on Judicial Performance v. Carver, 107 So.3d 964, 975 (Miss.2013) (Court found moral turpitude in conduct involving improper dismissal of charges, ex parte communications, and ticket-fixing, noting that ticket-fixing implicates moral turpitude); Miss. Comm’n on Judicial Performance v. Thompson, 80 So.3d 86 (Miss.2012) (Court found moral turpitude where Judge Thompson had involved himself in criminal investigations on matters not before him, engaged in ex parte communications, interfered in cases before another judge, and improperly dismissed cases); Miss. Comm’n on Judicial Performance v. Dearman, 73 So.3d 1140 (Miss.2011) (Dearman II) (Court found no moral turpitude where Judge Dearman called another judge and attempted to influence a case involving her personal friend); Miss. Comm’n on Judicial Performance v. Bustin, 71 So.3d 598 (Miss.2011). (Court found that moral turpitude was involved where a judge signed an arrest warrant based on the ex parte affidavit of her own client in a divorce case, and the warrant was for her client’s ex-husband, because Judge Bustin “interfered with the administration of justice”); Miss. Comm’n on Judicial Performance v. McGee, 71 So.3d 578 (Miss.2011) (Court found moral turpitude where Judge McGee interfered in the criminal prosecution against someone who had committed a crime against his relative); Miss. Comm’n on Judicial Performance v. McKenzie, 63 So.3d 1219 (Miss.2011) (Court found moral turpitude where judge was accused of, inter alia, ticket-fixing, ex parte communications, and interference in another judge’s cases, noting that “[t]icket-flxing willfully subverts justice”); Miss. Comm’n on Judicial Performance v. Dearman, 66 So.3d 112 (Miss.2011) (Dearman I) (finding no moral turpitude where Judge Dearman, inter alia, improperly changed bonds, presided over a portion of her nephew’s case, and engaged in ex parte communications); Miss. Comm’n on Judicial Performance v. Littlejohn, 62 So.3d 968 (Miss.2011) (Finding no moral turpitude where Judge Little-john abused his contempt powers by holding an attorney in contempt of court for failure to recite the Pledge of Allegiance in open court, in violation of the attorney’s First Amendment rights, “because Judge Littlejohn did not misuse the legal system in a way that violates fundamental decency and honesty, nor did his conduct involve fraud, misrepresentation, extortion, or other similar conduct”); Boone, 60 So.3d 172 (Court found moral turpitude where Judge Boone engaged in ex parte communications, inappropriately reduced a fíne, and lied to the Commission investigator). Thus, similar cases have incurred inconsistent applications of the moral turpitude standard. For example, in Dearman II, no moral turpitude was found where Judge Dearman actually presided over a family member’s case, reduced bonds, and engaged in ex parte contacts, and in Dear-man I, no moral turpitude was found where Judge Dearman attempted to influence the case of a personal friend, yet in McGee, the interference in a case involving the judge’s relative amounted to moral turpitude. Further, in Bustin, moral turpitude was found where Judge Bustin signed an arrest warrant based on the ex parte affidavit of an ex-client, and in Thompson, interference with cases not before him and ex parte contacts warranted a finding of moral turpitude.

¶ 27. In addition to varying applications of the standard, the term “moral turpitude” has caused much disagreement among the individual justices of this Court, as well as between the Commission and the Court. For example, in Mississippi Commission on Judicial Performance v. Smith, 78 So.3d 889 (Miss.2011), a very divided Court determined that Judge Smith’s actions of abusing “the judicial process by incarcerating and threatening to incarcerate individuals for contempt without providing them basic due process rights” constituted moral turpitude. Id. at 895; cf. Littlejohn, 62 So.3d 968 (abuse of the contempt process in violation of fundamental First Amendment rights did not implicate moral turpitude); Darby, 75 So.3d 1037 (abuse of contempt process by failing to afford basic due process rights did not implicate moral turpitude). Justice Randolph concurred in part and in result, rejecting the finding that Judge Smith’s acts involved moral turpitude. Smith, 78 So.3d at 897 (Randolph, J., concurring in part and in result). He emphasized that moral turpitude must involve some immorality and noted that he discerned “no evidence of deceit, fraud, extortion, trickery, monetary gain or any other indicia of conduct which involved Judge Smith using his position ‘for greed or other inappropriate motives!,]’ so as to support a finding of moral turpitude.” Id. However, Justice Randolph concluded that the absence of moral turpitude did not alter his agreement with the recommended sanction. Id. Justice Kitchens dissented, opining that Judge Smith did not commit judicial misconduct. Id. at 897 (Kitchens, J., dissenting).

¶ 28. In Darby, this Court found that Judge Darby abused her contempt powers. Darby, 75 So.3d at 1042-43. The Commission argued that Judge Darby’s actions involved moral turpitude because she “abused the judicial process by incarcerating an individual for indirect criminal contempt without providing her with the basic rights of due process thereby constituting moral turpitude.” Id. at 1044. The Court disagreed with the Commission and found that Judge Darby’s actions did not involve “interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.” Id. The Court found that Judge Darby’s conduct did not rise to the level of moral turpitude, but the absence of such did not alter the Court’s agreement with the recommended sanction. Id.

¶ 29. In Mississippi Commission on Judicial Performance v. Cowart, 71 So.3d 590 (Miss.2011), the Court found that moral turpitude existed where Judge Cowart engaged in ex parte communications, let her personal relationship with a defendant influence her conduct, and tried to use her position to help the same defendant. Justice Kitchens concurred in part and in result, opining that Judge Cowart’s behavior did not involve moral turpitude, because her actions did “not amount to ‘shameful wickedness so extreme a departure from ordinary standards of honesty, good morals, justice or ethics as to be shocking to the moral sense of the community.’ ” Id. at 597 (Kitchens, J., concurring in part and in result). However, regardless of disagreeing with the finding of moral turpitude, Justice Kitchens agreed with the sanction imposed by the majority. Id.

¶ 30. In Mississippi Commission on Judicial Performance v. Patton, 57 So.3d 626 (Miss.2011), the majority found moral turpitude existed where Judge Patton “wrongfully incarcerat[ed] litigants, en-gag[ed] in ex parte communications, fail[ed] to give notice of hearings and orders, publicly commented] on a pending case, and improperly issu[ed] a search warrant in a civil case.” Id. at 633. The Court noted that Judge Patton’s actions involved moral turpitude because he “abused the judicial process and failed to revere the law and judicial system.” Id. Justice Kitchens wrote separately, disagreeing that moral turpitude was involved. He stated that “[m]oral turpitude is a notoriously undefined term of art, and our decisions do not shed much light on its meaning.” Id. at 635 (Kitchens, J., concurring in part and dissenting in part). Justice Kitchens surveyed some of the law on moral turpitude, and concluded that a finding must result only from a finding of inappropriate motives. Id. at 635-36. Justice Kitchens opined that the premise behind “moral turpitude” is “that some wrongful acts by judges, committed in furtherance of their private interests, are so repugnant to the basic standards of social expectations that we must condemn and punish them more harshly than we would condemn and punish other wrongful acts.” Id. at 637.

¶ 31. As illustrated by the inconsistent applications of this factor in the above opinions, and as highlighted by the fact that disagreement over the finding of moral turpitude rarely results in ultimate disagreement over the appropriate sanction, the interpretation of “moral turpitude” proves confusing and difficult to apply. Several states have adopted factors to guide the determination of sanctions for judicial misconduct. See Cynthia Gray, American Judicature Society: A Study of State Judicial Discipline Sanctions (2002) (iavailable from https://www.ajs.org/) (hereinafter “AJS Study ”). For example, the Washington Supreme Court reviews ten nonexclusive factors to determine the appropriate sanction in judicial misconduct cases. In re Deming, 108 Wash.2d 82, 736 P.2d 639, 659 (1987). The factor roughly equivalent to “moral turpitude” is “the extent to which the judge exploited his position to satisfy his personal desires.” Id. Other Supreme Courts have adopted the Deming factors. See, e.g., Ark. Judicial Discipline and Disability Comm’n v. Proctor, 2010 Ark. 38, 360 S.W.3d 61, 95-96 (2010); In re Chaisson, 549 So.2d 259, 266 (La.1989). Michigan likewise examines several factors to determine appropriate judicial sanctions. The factor similar to moral turpitude used by Michigan is that “misconduct that occurs spontaneously is less serious than misconduct that is premeditated or deliberated.” In re Brown, 464 Mich. 135, 626 N.W.2d 403, 405 (2001).

¶ 32. In an effort to clarify the standard by which we determine the appropriate sanction in a judicial misconduct case, this Court modifies Gibson and its progeny to the extent that Mississippi law considers “moral turpitude” as a factor in determining the appropriateness of sanctions. Instead, this Court will examine the extent to which the conduct was willful, and the extent to which the conduct exploited the judge’s position to satisfy his or her personal desires or was intended to deprive the public of assets or funds rightfully belonging to it. In examining the extent to which the conduct was willful, we will examine “whether the judge acted in bad faith, good faith, intentionally, knowingly, or negligently.” In re Coffey’s Case, 157 N.H. 156, 949 A.2d 102, 115 (2008) (quoting AJS Study). “[Misconduct that is the result of deliberation is generally more serious than that of a spontaneous nature.” In re Coffey’s Case, 949 A.2d at 115-16. For example, spontaneous conduct, such as provoked conduct, may fall on one end of the spectrum, and may indicate a lesser sanction. Planned, premeditated conduct may fall on the opposite end of the spectrum, indicating the appropriateness of a harsher sanction. Conduct that is knowing and/or deliberate, but not the result of premeditation, may fall between spontaneous and premeditated conduct. . Certainly, the analysis of the extent of willfulness will allow for consideration of acts of dishonesty. Furthermore, the inappropriateness of the action may also be considered under the aggravating circumstances factor. When analyzing the extent to which the conduct exploited the judge’s position to satisfy personal desires, we will examine factors such as whether the judge received money, received favors, or otherwise acted in a manner indicative of any improper personal motivation.

¶ 38. Under the new standard, in examining the extent to which Judge Skinner’s actions were willful, the record certainly indicates that Judge Skinner’s actions were done with knowledge that they were wrong. He was aware, or should have been aware, of the due process protections a contempt charge carries, and he was aware of the fundamental principle that, once recused, a judge must not take further action in a case. Judge Skinner’s actions certainly were not the product of provocation or a spontaneous decision, as he had time to hear from law enforcement and consider probable cause. Thus, his conduct was deliberate; however, the record contains no evidence of any premeditation. Further, the record contains no evidence that Judge Skinner’s conduct was done to satisfy any personal desires, and the record does not indicate that Judge Skinner personally gained in any way from his actions.

6. Mitigating or Aggravating Circumstances

¶ 34. A mitigating factor in this case is the fact that Judge Skinner has agreed that his actions were improper and has entered into an Agreed Statement and Joint Motion with the Commission without the requirement of a hearing. Thompson, 80 So.3d at 94. However, Judge Skinner does have a prior disciplinary history with the Commission, including an interaction that made him well aware of the dictates of Osborne and its holding that, having re-cused in a case, a judge is prohibited from taking any further action in that case. Additionally, it is particularly troubling that Judge Skinner knowingly violated some of the most basic and easily understood judicial standards. A judge should never take action in a case after he is recused, and the due process protections provided in contempt cases are clear. Thus, “to restore and maintain the dignity and honor of the judicial office and to protect the public against future excesses,” this Court finds the appropriate sanction to be and imposes a sanction of a public reprimand, thirty days’ suspension without pay, a $1,000 fine, and $100 in costs. This is in line with the caselaw regarding similar offenses.

CONCLUSION

¶ 35. Judge Skinner clearly committed judicial misconduct in violation of the Constitution and the Code of Judicial Conduct. However, the sanctions proposed by the Commission are inadequate given the nature of the misconduct. Thus, this Court imposes the sanction of a public reprimand, a thirty-day suspension without pay, a $1,000 fine, and $100 in costs.

¶ 36. The Clerk of this Court shall send copies of this opinion and the mandate of this Court to the Circuit Clerk of Hinds County, the County Administrator of Hinds County, and the Hinds County Board of Supervisors.

¶ 37. HINDS COUNTY COURT JUDGE WILLIAM L. SKINNER, II SHALL BE SUSPENDED FROM OFFICE FOR A PERIOD OF THIRTY (30) DAYS WITHOUT PAY, EFFECTIVE ON THE DATE OF ISSUANCE OF THIS COURT’S MANDATE, PUBLICLY REPRIMANDED, FINED $1000, AND ASSESSED COSTS OF $100. THE PUBLIC REPRIMAND SHALL BE READ IN OPEN COURT BY THE PRESIDING JUDGE OF THE HINDS COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT IN WHICH A JURY IS PRESENT AFTER THE ISSUANCE OF THIS COURT’S MANDATE, WITH JUDGE SKINNER IN ATTENDANCE.

RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. DICKINSON, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY COLEMAN, J. WALLER, C.J., NOT PARTICIPATING.

DICKINSON, Presiding Justice,

concurring in part and dissenting in part:

¶ 38. While presiding over a youth-court case, Judge William L. Skinner II issued a “no-contact” order between a “Mr. Cooper” and his children, who were residing with the mother, “Mrs. Cooper.” Judge Skinner later recused himself from the case, meaning that he no longer had the legal right to involve himself in the case.

¶ 39. Less than a month later, while still recused from the ease, Judge Skinner received a “tip” from some member of the Hinds County Sheriffs Department, who told Judge Skinner that he had “heard” from Mr. Cooper’s brother that Mr. Cooper was “running” and was still “together” with Mrs. Cooper. Rather than explaining that he was recused on the case and directing the tipster to the acting judge, Judge Skinner illegally and inappropriately injected himself back into the case by issuing illegal bench warrants for the arrest of Mr. and Mrs. Cooper, and ordering that they be incarcerated without bond.

¶ 40. On March 21, 2011 — at her home and in front of her terrified children — Mrs. Cooper was arrested and taken to jail, where she remained for four days. Her children were placed in foster care and were not returned to their mother’s care until July 27, 2011. The youth-court prosecutor said, in effect, “whoops,” and never even pursued the alleged contempt allegation against Mrs. Cooper.

¶ 41. For this conduct, the Mississippi Commission on Judicial Performance ordered that Judge Skinner be publicly reprimanded, fined $1,000, and assessed $100 in costs. The majority agreed with the fine and public reprimand, but also ordered a thirty-day suspension. I do not find this punishment sufficient.

¶ 42. This is not a case about fixing traffic tickets or inappropriate courtroom demeanor — rather, it is about misuse of the highest and potentially most abusive power judges possess, that is, the power to deprive citizens of their liberty and order them incarcerated. Judge Skinner abused this judicial power in the most extreme way, damaging not only Mrs. Cooper and her children, but also the public’s confidence in the judicial system.

¶ 43. Based on nothing more than secondhand hearsay (which came to him by an inappropriate ex parte communication that, in itself, is a violation of the Canons, but is unaddressed by the Commission or the Majority), Judge Skinner illegally ordered law enforcement officers to arrest two citizens and to hold them in jail without bail.

¶ 44. As a completely predictable result of the order — I point this out because it is important to note that Judge Skinner was aware of the damage he was about to cause — the mother was arrested at her home and in front of her children, who were placed in foster care and not allowed contact with either parent for months. That Mrs. Cooper and her children would suffer psychological and emotional damage as a result of his order was clearly foreseeable to Judge Skinner.

¶ 45. We judges are human, and we make mistakes. But some abuses of power are worse than others, and this one — in my view — merits punishment more severe than is ordered today. This is not Judge Skinner’s first violation of the Canons of Judicial Conduct. And absent some behavior-modifying punishment, it likely will not be his last.

¶ 46. Finally, I note that we do not review cases of judicial misconduct for the sole purpose of punishing the offending judge. We have the additional responsibility to enforce the Canons of Judicial Conduct in a way that dissuades other judges from similar inappropriate conduct. I do not believe today’s relatively mild punishment for illegally incarcerating two citizens and depriving them of contact with their children for months, will serve as much of a warning. For these reasons, I concur in part and dissent in part.

COLEMAN, J., JOINS THIS OPINION.

      . We have changed the family’s surname to protect the identities of the minor children involved.

      . The Commission is placed on notice that this Court would find it beneficial to include in the record of all judicial misconduct cases all information the Commission considered in reaching its recommendation, as well as the complete history of the individual with the Commission, given this Court’s responsibility to make the ultimate determination regarding sanctions.

      . Canon 1 instructs that judges “should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved.” Code of Judicial Conduct Canon 1.

      . Canon 2A mandates that judges "respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Code of Judicial Conduct Canon 2A.

      . Canon 3B(1) requires that judges decide all assigned matters "except those in which disqualification is required.” Code of Judicial Conduct Canon 3B(1).

      . Canon 3B(2) establishes that judges “shall be faithful to the law and maintain professional competence in it.” Code of Judicial Conduct Canon 3B(2). It also requires that a judge not be “swayed by partisan interests, public clamor, or fear of criticism.” Id.

      . Justice Randolph’s assertion is supported by several cases, including Roberts. This Court stated that "an action must involve some immorality to rise to the level of moral turpitude." Roberts, 952 So.2d at 942. "Further, actions involving interference with the administration of justice or which bring the judiciary into disrepute do not necessarily include moral turpitude. If they did, then this Court would have to make a finding of moral turpitude every time it found that a judge should be reprimanded.” Id. The Court also noted that "willful misconduct can, but does not always, include moral turpitude.” Id. (emphasis in original). The Court concluded that "actions involving procedural matters and/or ignorance of the law do not necessarily rise to the level of moral turpitude." Id. at 943.

      . See Smith, 78 So.3d at 897; Darby, 75 So.3d at 1044; Cowart, 71 So.3d at 597.

      . The other factors are similar to those this Court considers, and are: "(a) whether the misconduct is an isolated instance or evidenced a pattern of conduct; (b) the nature, extent and frequency of occurrence of the acts of misconduct; (c) whether the misconduct occurred in or out of the courtroom; (d) whether the misconduct occurred in the judge’s official capacity or in his private life; (e) whether the judge has acknowledged or recognized that the acts occurred; (f) whether the judge has evidenced an effort to change or modify his conduct; (g) the length of service on the bench; (h) whether there have been prior complaints about this judge; [and] (i) the effect the misconduct has upon the integrity of and respect for the judiciary[.]” In re Deming, 736 P.2d at 659.

      .For example, we have consistently held that ticket-fixing implicates moral turpitude, regardless of whether the judge personally gained from it. Ticket-fixing deprives the public of funds rightfully due to the government. Under the new standard, ticket-fixing will still implicate an enhanced punishment. We note that many other concerns that this Court used to consider under the "moral turpitude” factor may still be considered under the factors considering the "magnitude of the offense and harm suffered” and "mitigating and aggravating circumstances." Thus, concerning behavior can always be articulated and considered under these factors to enhance punishment. Our purpose in replacing the "moral turpitude” factor is to allow for clarity and consistency in what has been a confusing and inconsistently applied standard.

      . See Miss. Comm'n on Judicial Performance v. Osborne, 16 So.3d 16, 19-20 (Miss.2009) (Judge's action in a case following recusal violated the Code of Judicial Conduct and amounted to "willful misconduct in office and conduct prejudicial to the administration of justice, bringing his judicial office into disrepute.”)


source: Caselaw Access Project

author: LAMAR, Justice,

license: Public Domain

text:
    Ryan Scott YOUNG a/k/a Ryan S. Young a/k/a Ryan Young v. STATE of Mississippi.
    No. 2012-KA-00050-SCT.
    Supreme Court of Mississippi.
    Aug. 1, 2013.

      Office of State Public Defender by Hunter N. Aikens, George T. Holmes, David Clay Vanderburg, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. Ryan Scott Young appeals from his convictions for felony driving under the influence (DUI), third offense, and retaliation against a public servant. Young raises four assignments of error, arguing 1) that the indictment did not include an essential element of the crime of retaliation, 2) that the trial court failed to instruct the jury on an essential element of the crime of retaliation, 3) that the evidence was insufficient to support the jury’s verdict on the DUI charge, and 4) that the verdict on the DUI charge is against the weight of the evidence and he is entitled to a new trial. We find that all of Young’s assignments of error are without merit, and we affirm his convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 11, 2011, around 7:00 pm, Officer Steven Hodges of the City of Sou-thaven Police Department was conducting a traffic stop. Officer Perry Baldwin was acting as backup officer, essentially keeping a lookout to ensure nothing was coming down the road that would harm the officers or the individuals who had been detained. Baldwin testified that, as he was keeping a lookout, he saw a white car traveling eastbound. As the car passed, Baldwin saw the driver “flip him off’ with his middle finger and observed that the driver had “a can of beer in the car with him.” Baldwin radioed Officer Luke Shepherd, who was located at the police station farther down the road, and informed him that there was a car coming his way that he should watch out for.

¶ 3. As Baldwin was speaking with Shepherd, they observed the car make a U-turn and head westbound, back toward Baldwin and Hodges. As he passed by Baldwin a second time, the driver again “flipped him off’ with his middle finger and Baldwin again noticed a can of beer in the car. Baldwin saw Shepherd driving his patrol car toward the white car, and later heard on the radio that Shepherd had stopped the car.

¶ 4. Shepherd testified that he initiated a traffic stop of the white car when the driver turned right without using a traffic signal. When Shepherd pulled him over, the driver was not cooperative. Shepherd testified that, when asked his name, the driver answered that he did not have a name. The driver eventually told Shepherd his name was Ryan Young, and Shepherd ran a check on him. Young also told Shepherd that he didn’t need car insurance because he was not a citizen of the United States and that he did not need a driver’s license to operate a vehicle. Shepherd testified that he could smell alcohol while he was speaking with Young and that he could see an open can of beer inside the car. After speaking with Young, Shepherd asked him to step out of the car and took him into custody.

¶ 5. Officer Jonathan Fletcher also was present during the stop. Fletcher testified that, after Young stepped out of the car, he stated he had been with friends drinking several beers that day. Fletcher also testified that he had inventoried the contents of Young’s vehicle after he was taken into custody and had found several empty beer cans in the car, as well as one half-full beer in the center console and a green leafy substance consistent in appearance with marijuana.

¶ 6. Shepherd testified that he transported Young to the police station. When they arrived, Shepherd noticed that Young’s pants were wet and there was liquid at his feet. Shepherd testified that Young informed him that he had urinated on himself. Shepherd then administered field sobriety tests to Young. Shepherd offered Young the opportunity to take a breathalyzer test, which Young refused. Shepherd concluded that Young had failed the field sobriety tests and determined, based on his training and experience, that he was “under the influence of alcohol in such a manner that would impair his operation of a motor vehicle.”

¶ 7. While Young was waiting in the holding cell while being booked in, he became belligerent. He was yelling loudly and demanding to know the charges against him, even though Shepherd already had informed him of the charges. Shepherd testified that, when he approached him to show him the paperwork, Young lunged at him, kicked the door, and threatened that, when he got out of jail, he was going to find Shepherd and kill him. Shepherd testified that when he asked Young why he was going to kill him, Young stated that he might not kill him, but he was definitely going to kick his ass. Young testified that he only said he “ought to kick [the officer’s] ass.”

¶ 8. Young was indicted for Count I, felony DUI, third offense, under Mississippi Code Section 63 — 11—30(2)(c) and Count II, retaliation against a public servant.

¶ 9. After a trial, a jury found Young guilty on both counts. Young now appeals.

DISCUSSION

1. Count II of the indictment, retaliation, did not omit an essential element of the crime and was not defective.

¶ 10. “The question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by this Court.” A review of the legal sufficiency of an indictment must be reviewed de novo.

¶ 11. Young argues that Count II of the indictment failed to include an essential element of the crime of retaliation against a public servant and was, therefore, fatally defective. “[A]n indictment must contain (1) the essential elements of the crime charged, (2) sufficient facts to fairly inform the defendant of the charge which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense.” The crime of retaliation against a public servant, Mississippi Code Section 97-9-127(1), reads in relevant part as follows:

A person commits the offense of retaliation if he intentionally or knowingly harms or threatens to harm another by any unlawful act in retaliation for anything lawfully done in the capacity of public servant, witness, prospective witness or informant.

Count II of the indictment read as follows:

That Ryan Scott Young, late of the County and State aforesaid, on or about the 11th day of April, in the year of our Lord, 2011, in the County and State aforesaid, and within the jurisdiction of our Court, did willfully, unlawfully, and feloniously, threaten to harm Officer Luke Shepherd in retaliation for actions lawfully taken by Officer Luke Shepherd while Officer Luke Shepherd was in the capacity as a public servant in the position as an officer acting within the scope of his duty with the City of Southaven, Police Department, by threatening to assault Officer Luke Shepherd, in direct violation of Section 97-9-127, Mississippi Code 1972 Annotated, as amended, contrary to the form of the statute in such cases provided, and against the peace and dignity of the State of Mississippi.

Young argues that “noticeably absent from this, is an allegation that the threat to harm Officer Shepherd [sic] was by an unlawful act.” Although not artfully argued in his brief, it appears from the record that Young’s argument is that he did not commit an unlawful act against Shepherd at the time he threatened him. The record reveals that Young moved for a directed verdict on Count II because “while there’s been threats made by [Young] while he’s in custody, there is no evidence of any unlawful act in retaliation on his part,” and he “never committed any unlawful act of retaliation against Officer Shepherd.”

¶ 12. The indictment stated that Young “unlawfully, and feloniously threatened to harm Officer Luke Shepherd ... by threatening to assault” him. The circuit court, in denying Young’s motion for directed verdict determined that “the language is that if you threaten to harm someone by any illegal act, that refers to the act that you are going to use to do the harm threatened” and found that, in this case, that constituted “assault at least in a simple nature, if not an aggravated nature.” We agree with the circuit court’s interpretation of the statute. Furthermore, the act of threatening to harm a police officer in the future is unlawful; it is the crime of retaliation, and the indictment stated that Young’s threat was in direct violation of Section 97-9-127.

¶ 13. We find that the indictment clearly contained the elements of the offense and sufficiently informed Young of the charge against him by charging that Young unlawfully threatened Shepherd by threatening to assault him. This issue is without merit.

II. The trial court sufficiently instructed the jury on Count II, retaliation.

¶ 14. “Jury instructions are within the discretion of the trial court and the settled standard of review is abuse of discretion.” “[I]n order to preserve a jury instruction issue for appellate purposes, a defendant must make specific, on-the-record objections to proposed instructions.”

¶ 15. Young argues that Instruction S-3B, given as to the elements of Count II, omitted “the essential statutory element that the harm or threat of harm be ‘by any unlawful act.’” The State argues that, although Young objected to Instructions S-3 and S-3A, he failed to object to Instruction S-3B and should be procedurally barred from raising this issue on appeal. The State further argues that Instruction S-3B was proper.

¶ 16. Young objected to Instruction S-3A in part on the basis that it did not include the threat of harm by “unlawful act.” After Instruction S-3A was amended, Young did not object to Instruction S-3B. Therefore, we find that Young failed to preserve this issue for appellate review and that this assignment of error is procedurally barred. Notwithstanding the procedural bar, this assignment of error is without merit. Instruction S-3B read as follows:

In Count 2, the Defendant, Ryan Scott Young, has been charged with Retaliation Against a Public Servant. If you find from the evidence in this case beyond a reasonable doubt that on or about April 11, 2011 that the Defendant, Ryan Scott Young, did unlawfully threaten to harm Officer Luke Shepherd by threatening to assault andfor kill him in retaliation for actions taken lawfully by Officer Luke Shepherd while he was acting within the scope of his duty with the City of Southaven, Police Department, then you shall find the Defendant, Ryan Scott Young, guilty as charged. If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the Defendant not guilty.

¶ 17. Instruction S-3B clearly requires the State to prove beyond a reasonable doubt that Young did “unlawfully threaten to harm Officer Luke Shepherd by threatening to assault and/or kill him.... ” Instruction S-3B included the essential element of the crime that Young unlawfully threatened harm by unlawful act; ie., to assault and/or kill Shepherd. This assignment of error is without merit.

III. The evidence is sufficient to support the verdict on Count I, DUI.

¶ 18. “When reviewing a challenge to the sufficiency of the evidence, this Court will reverse and render only if the facts and inferences ‘point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty-”’ “The relevant inquiry is whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” “This Court considers the evidence in the light most favorable to the state.”

¶ 19. Young refused to take a breathalyzer test; therefore, he was convicted of common law DUI under Mississippi Code Section 68-11-30. The relevant portion of Section 63-11-30 provides that “(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor....” “Common law DUI is proven when a defendant’s blood alcohol results are unavailable ... but there is sufficient evidence to that the defendant operated a motor vehicle under circumstances indicating his ability to operate the vehicle was impaired by the consumption of alcohol.”

¶ 20. Young argues that the State failed to establish beyond a reasonable doubt that he was impaired because the State “offered no evidence that Young staggered when he exited the car or otherwise appeared intoxicated ...” and because the State “failed to offer additional evidence to indicate how much Young had to drink and/or that Young was actually impaired at the time he was stopped.” Young further argues that Shepherd testified only generally that Young failed the field sobriety tests and that his conviction may not stand on evidence requiring conjecture. The State argues that a reasonable jury could have found Young was impaired based on the testimony presented at trial.

¶ 21. We find that sufficient evidence was presented to allow a reasonable and fair-minded juror to find that Young operated a motor vehicle under circumstances indicating that he was impaired by alcohol. The State presented testimony that Young drove by the officers, flipped them off, then turned around to drive by and flip them off a second time. There was also testimony that, when he was pulled over, Young did not cooperate with the officers, but refused to tell them his name and told them he didn’t need insurance because he was not a citizen of the United States, even though he was born in Memphis, Tennessee.

¶ 22. Additionally, Young testified that he had consumed alcohol on the day he was arrested. Although he testified that he had consumed only three beers several hours before he was pulled over, the State presented testimony that several empty beer cans and a half-full beer can were found in his car and that Young smelled like alcohol when he was pulled over. The State also presented testimony that Young urinated on himself in the police car, failed field sobriety tests after he arrived at the police station, refused a breathalyzer, became belligerent when placed in the holding cell, and openly threatened to assault Shepherd by “kicking his ass.” We find that there was sufficient evidence for a reasonable juror to determine that Young was operating his vehicle under circumstances indicating that he was impaired by alcohol. This assignment of error is without merit.

IY. The verdict is not against the weight of the evidence on Count II, DUI.

¶ 23. “When reviewing a challenge to the weight of the evidence, this Court will overturn a jury verdict ‘only when it is so contrary to the evidence presented that to let it stand would sanction an unconscionable injustice.’ ” “A new trial should be granted ‘only in exceptional circumstances, when the evidence weighs heavily against the jury’s verdict.’ ” “This Court considers the evidence in the light most favorable to the verdict.”

¶ 24. Based on the evidence previously discussed, we find that the guilty verdict on Count II is not so contrary to the evidence that to let it stand would sanction an unconscionable injustice. Furthermore, the evidence does not weigh heavily against the jury’s verdict. This assignment of error is without merit.

CONCLUSION

¶ 25. For the foregoing reasons, we find that all of Young’s assigned errors are without merit, and we affirm Young’s convictions and sentences.

¶ 26. CONVICTION OF DRIVING UNDER THE INFLUENCE, THIRD OFFENSE AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. APPELLANT SHALL PAY A FINE OF $2,000, WITH $1,000 SUSPENDED, WITH CONDITIONS. SENTENCE SHALL RUN CONSECUTIVELY WITH ANY OTHER SENTENCE. APPELLANT IS GIVEN CREDIT FOR 32 DAYS TIME SERVED.

WALLER, C.J., DICKINSON AND RANDOLPH, P JJ., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . Young testified that he drank three beers while fishing from the hours of 12:00 noon until 3:00 p.m.

      . Nguyen v. State, 761 So.2d 873, 874 (Miss.2000) (citing Peterson v. State, 671 So.2d 647 (Miss.1996)).

      . Id. at 652.

      . Berry v. State, 996 So.2d 782, 786 (Miss.2008) (quoting Gilmer v. State, 955 So.2d 829, 836-37 (Miss.2007)).

      . Miss.Code Ann. § 97-9-127(1) (Rev.2006) (emphasis added).

      . (Emphasis added.)

      . Bailey v. State, 78 So.3d 308, 315 (Miss.2012) (citing Newell v. State, 49 So.3d 66, 73 (Miss.2010)).

      . Killen v. State, 958 So.2d 172, 186 (Miss.2007).

      . (Emphasis added.)

      . Hughes v. State, 983 So.2d 270, 275-76 (Miss.2008) (quoting Brown v. State, 965 So.2d 1023, 1030 (Miss.2007) (quoting Bush v. State, 895 So.2d 836, 843 (Miss.2005))).

      . Hughes, 983 So.2d at 276 (quoting Brown, 965 So.2d at 1030 (quoting Bush, 895 So.2d at 843)).

      . Hughes, 983 So.2d at 276 (citing Bush, 895 So.2d at 843).

      . Young does not challenge the jury's finding that this was liis third DUI conviction.

      . Miss.Code Ann. § 63-1 l-30(l)(a) (Rev. 2004).

      . Gilpatrick v. State, 991 So.2d 130, 133 (Miss.2008) (citing Leuer v. City of Flowood, 744 So.2d 266, 268 (Miss.1999)).

      . Hughes, 983 So.2d at 277 (quoting Wilson v. State, 936 So.2d 357, 363 (Miss.2006) (citing Bush, 895 So.2d at 845)).

      . Hughes, 983 So.2d at 277 (quoting Wilson, 936 So.2d at 363) (citing Bush, 895 So.2d at 845)).

      . Hughes, 983 So.2d at 277 (citations omitted).


author: WALLER, Chief Justice, KING, Justice,

text:
    William Antonio AVERY a/k/a William A. Avery a/k/a William Ken Avery a/k/a William A. “Ken” Avery a/k/a Ken v. STATE of Mississippi.
    No. 2010-CT-02058-SCT.
    Supreme Court of Mississippi.
    Aug. 8, 2013.

      Imhotep Alkebu-Lan, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   WALLER, Chief Justice,

for the Court:

¶ 1. William Antonio “Ken” Avery was convicted of selling cocaine and felony fleeing. The Court of Appeals affirmed his conviction and sentence. This Court granted certiorari to address Avery’s claim that the trial court committed reversible error in refusing to sequester the witnesses at the post-trial hearing. Finding no reversible error, we affirm Avery’s conviction and sentence.

FACTS & PROCEDURAL HISTORY

¶ 2. On March 30, 2010, law enforcement officials arranged for a confidential informant to purchase drugs from Avery while wearing an audiovisual recording device. The informant purchased crack cocaine from Avery and turned it over to the police. The police attempted to arrest Avery immediately thereafter. Avery fled in his vehicle, and police pursued him, ultimately resulting in his arrest. Avery was tried in Lauderdale County, and a jury convicted him of selling cocaine and felony fleeing.

¶ 3. After his conviction and sentencing, Avery discovered that the trial judge may have communicated with Juror Kim Watts. While the exact nature of the communication is disputed, the following is a general recounting of the relevant events. On the night before jury deliberations, the trial judge had a conversation at a local restaurant with Jamie Cater, a caterer and the employer of Juror Watts. Cater told the judge that she needed Watts back at work. The judge replied that he thought the case would be over by noon the next day. The following morning, Juror Watts was the last juror to arrive at the courthouse. She mentioned to the judge that she needed to get back to work soon. The judge responded that the jury would likely begin deliberations that morning, and that they should be finished by noon. After the defense rested, the jury deliberated for approximately twenty minutes and then returned a guilty verdict.

¶4. Avery sought a post-trial hearing regarding the judge’s alleged communication. At the beginning of the hearing, Avery requested invocation of Rule 615 of the Mississippi Rules of Evidence, mandating that the witnesses be sequestered. The judge denied Avery’s request and allowed the witnesses to testify in each other’s presence. At the beginning of the hearing, the trial judge explained his version of the events to the attorneys and witnesses. He acknowledged that he had told Juror Watts that the jury probably would begin deliberations on the morning in question. Juror Watts testified that she had told the judge she needed to return to work, but she did not recall a response from the judge. Juror Elaine Moss testified that Juror Watts had told her that they should be finished with the case by noon. Juror Moss could not remember if any other jurors were present at the time. Avery’s wife and mother testified that Watts had told the judge that she had gotten his message that “court will be over by 12:00 and to bring a pan of dressing.” The judge denied Avery’s post-trial motions.

¶ 5. Avery appealed, raising several assignments of error, including the judge’s failure to sequester the witnesses upon his request at the post-trial hearing. The Court of Appeals affirmed the trial court in all respects. Avery v. State, 119 So.3d 329 (Miss.Ct.App.2012). Avery then filed a petition for certiorari with this Court, raising substantially the same issues addressed by the Court of Appeals. We may limit the issues we address upon a grant of certiorari. Jones v. State, 95 So.3d 641, 645 (Miss.2012) (citations omitted); Miss. R.App. P. 17(h). Thus, we limit our review to Avery’s claim that the trial court committed reversible error by failing to sequester the jurors at the post-trial hearing.

STANDARD OF REVIEW

¶ 6. Avery argues that the trial court committed reversible error by refusing to sequester the witnesses upon his request at his post-trial hearing. When a violation of Rule 615 is alleged on appeal, this Court is limited to an abuse-of-discretion standard of review. Douglas v. State, 525 So.2d 1312, 1318 (Miss.1988). However, “[t]he discretion of the trial court must be exercised within the boundaries of the Mississippi Rules of Evidence. Johnston v. State, 567 So.2d 237, 238 (Miss.1990).

DISCUSSION

I. Whether a new trial should be granted based on a violation of Rule 615 and alleged jury misconduct.

¶ 7. Rule 615 provides, “At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses[.]” Miss. R. Evid. 615 (emphasis added). The purpose of Rule 615 is to “exercis[e] a restraint on witnesses ‘tailoring’ their testimony to that of earlier witnesses and ... ai[d] in detecting testimony that is less than candid.” Douglas, 525 So.2d at 1316 (quoting Geders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976)). Simply put, Rule 615 guards against “falsification, inaccuracy, and collusion.” Miss. R. Evid. 615 cmt.

¶ 8. The Court of Appeals correctly held that the trial court erred in refusing to sequester the witnesses upon Avery’s request at the post-trial hearing. Avery, 119 So.3d 329, at 336. However, the Court of Appeals ultimately held that the trial court had not abused its discretion in refusing to invoke Rule 615 because Avery had failed to show that he was prejudiced by that refusal. Id. (citing Finley, 725 So.2d at 233 (finding that the “resultant degree of prejudice to the defendant must first demonstrate that the trial court abused its discretion.”)).

¶ 9. The Court of Appeals was incorrect in applying the abuse-of-discretion standard to the trial court’s refusal to invoke Rule 615. As indicated by the mandatory language of Rule 615, the trial court has no discretion in the rule’s application; the court must apply it when a party invokes it. Finley v. State, 725 So.2d 226, 234 (Miss.1998) (citing Douglas, 525 So.2d at 1316). The abuse-of-discretion standard, requiring a showing of prejudice to the defendant, refers to the trial court’s discretion in granting, or not granting, a remedy upon a violation of the rule. See Finley, 725 So.2d at 233 (citing Douglas, 525 So.2d at 1317) (“Once a witness has violated the rule, the remedy lies within the court’s discretion.”). Here, the trial court’s refusal to invoke Rule 615 upon Avery’s request was a distinct error; thus, it was improper for the Court of Appeals to find that the error did not amount to an abuse of discretion.

¶ 10. This Court’s inquiry does not end there, though. The State argues that this error was harmless and had no effect on the jury’s verdict or the outcome of the post-trial hearing. “ ‘[A] defendant is entitled to a fair trial but not a perfect one,’ for there are no perfect trials.” Brown v. U.S., 411 U.S. 223, 231-232, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973) (citing Bruton v. U.S., 391 U.S. 123, 134, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (quoting Lutwak v. U.S., 344 U.S. 604, 619, 73 S.Ct. 481, 97 L.Ed. 593 (1953))). For an error to be harmless, it must be “clear beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Conley v. State, 790 So.2d 773, 789 (Miss.2001) (citing Stokes v. State, 548 So.2d 118, 124 (Miss.1989)). In conducting harmless-error analysis, this Court has the power and duty to review the record de novo to determine the error’s effect. Tran v. State, 962 So.2d 1237, 1247 (Miss.2007) (citing Arizona v. Fulminante, 499 U.S. 279, 295, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)).

¶ 11. This Court finds that the trial court’s error in failing to sequester the witnesses was harmless beyond a reasonable doubt. We have held that a technical violation of Rule 615 is harmless where the violation did not adversely affect the defendant. Conley, 790 So.2d at 789 (citing Stokes, 548 So.2d at 124). Here, Avery’s conviction was supported by overwhelming evidence at trial. Avery’s drug sale was captured on audiovisual surveillance, and he presented no witnesses in his defense. While the Court of Appeals incorrectly applied the abuse-of-discretion standard to the trial court’s initial failure to comply with Rule 615, we find that Avery’s failure to present any evidence of prejudice serves as persuasive evidence that the trial court’s error was harmless. Telling a juror’s employer and a juror that “Court will be over by noon” was an innocuous statement with no arguable influence on Avery’s case. The trial court’s failure to sequester witnesses at Avery’s post-trial hearing certainly could not have affected the jury’s verdict, nor could it have had any arguable effect on Avery’s post-trial hearing based on the weight of the evidence against him. Based on the record, this Court cannot say that the trial court’s error rendered Avery’s trial or post-trial hearing fundamentally unfair. This issue is without merit.

CONCLUSION

¶ 12. While the trial court erred in refusing to sequester the witnesses at Avery’s post-trial hearing, the error was harmless. The Court of Appeals erred in its analysis, but correctly affirmed the trial court’s conviction and sentence. Based on harmless-error analysis this Court affirms Avery’s conviction and sentence.

¶ 13. COUNT I: CONVICTION OF SALE OF COCAINE AND SENTENCE OF SIXTY (60) YEARS, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF FELONY FLEEING AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES SHALL BE SERVED WITHOUT THE POSSIBILITY OF PROBATION, PAROLE, EARNED TIME OR GOOD TIME CREDIT NOR ANY OTHER TYPE OF EARLY RELEASE. SENTENCES IN COUNTS I AND II ARE TO RUN CONCURRENTLY TO EACH OTHER BUT CONSECUTIVELY TO TIME IN CAUSE # 645-02 AND # 691-06. APPELLANT SHALL ALSO PAY COURT COSTS OF $434.50 AND A $5,000 FINE AND $300.00 LAB FEE.

DICKINSON AND RANDOLPH, P JJ., LAMAR, PIERCE AND COLEMAN, JJ., CONCUR. KING, J„ DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND CHANDLER, JJ.

KING, Justice,

dissenting:

¶ 14. Because I believe that the post-trial hearing was irretrievably tainted due to the egregious violation of Rule 615, I would reverse and remand this matter for a new post-trial hearing. Therefore, I respectfully dissent.

¶ 15. After Avery’s trial and conviction in this matter, he discovered that the trial judge may have communicated improperly with Kim Watts, a juror, and thus sought a hearing on the matter. At the beginning of the hearing, Avery invoked Rule 615 of the Mississippi Rules of Evidence (“The Rule”), mandating that the witnesses be sequestered. The judge refused to sequester the witnesses. Then, in the presence of the anticipated witnesses, the judge announced that he would testify as to the facts surrounding his alleged communication with Kim Watts. Avery again asked that the witnesses be sequestered. The judge again denied the request and stated that “I’m going to testify as to what I understand happened, or I’ll put on the record what I understood happened. And if they feel like there’s anything different, then they — you know, you could ask them about it.” Avery’s counsel yet again protested the failure to sequester the witnesses, noting that the judge’s testifying, particularly because he was the judge, could influence the other witnesses’ testimony. The judge responded: “I’ve got a pretty clear memory about what happened, and I’m quite certain that I — there’s nothing I did placed any influence on any juror, and I just think this is much ado about nothing, and I frankly resent it. But I will testify to the truthfulness of it.” The judge went on to testify as to his version of the events, with all other witnesses present. After the judge testified, Avery, for the fourth time, requested that the court sequester the witnesses, and the court again denied the request. Five additional witnesses then testified regarding the events in question.

ANALYSIS

¶ 16. The majority correctly finds that the trial judge erred, abusing his discretion by refusing to sequester the witnesses pursuant to Rule 615. The majority also correctly notes the purpose of Rule 615— to prevent witnesses from tailoring their testimony and to “guard[ ] against ‘falsification, inaccuracy, and collusion.’” Maj. Op. 7. However, the majority incorrectly finds that this error was harmless.

¶ 17. The majority claims that the failure to enforce the Rule was harmless error. Harmless error is only applicable when there exists no prejudice to the defendant, or, as the majority puts it, “where the violation did not adversely affect the defendant.” Jackson v. State, 684 So.2d 1213, 1225 (Miss.1996); Maj. Op. ¶ 11. An analysis of prejudice, or how the error “adversely affected” the defendant, is inappropriate under the specific facts of this case. The majority relies on facts and testimony garnered at the irretrievably tainted hearing to determine that what occurred “was an innocuous statement with no arguable influence on Avery’s case.” Maj. Op. ¶ 11. The fact is that, under such a gross violation of Rule 615 and where no remedy was employed to determine the effect that the Rule violation had on the testimony, we simply cannot determine what the witnesses would have testified to had Rule 615 been enforced. As the majority admits, the purpose of the Rule is to prevent falsification, inaccuracy, and collusion. It is difficult to imagine a more egregious violation of the Rule than the violation that occurred in this case, thus the risk of falsification, inaccuracy, and collusion is heightened. The majority seems to divine that the witness testimony would have been the same had the hearing not been irretrievably tainted. The majority may be correct; however, the majority may be incorrect— the untainted testimony might have been very different from that given at the hearing. We simply do not, and cannot, know. By requiring Avery to prove he was adversely affected by requiring a showing of adverse effect using the tainted evidence, the majority is requiring an exercise in futility. Under the specific facts of this case, the very fact of the error in the first instance renders the resulting evidence highly suspect. But the majority allows the trial court to commit such an egregious error without reprise because it opines that the tainted result produced by the violation of Rule 615 proves that the error was harmless. Such logic makes little sense.

¶ 18. This is a different situation than those in which a witness or an attorney violates the sequestration rule, or in which the judge sequesters the witnesses but makes some mistake in exempting a particular witness from the Rule. In this case, the judge outright refused to sequester any of the witnesses upon Avery’s request, thus clearly violating the most basic mandate of Rule 615 and tainting the entire post-trial proceeding, rendering it fundamentally unfair. In addition, the trial judge, while sitting as the trier of fact and prior to hearing the testimony of a single witness, declared that he had predetermined the facts and would place the true facts into the record. Thus, I would reverse the trial court’s decision to deny Avery’s post-trial motion on the issue of the judge’s improper influence on the jury, reverse the Court of Appeals decision to the extent it affirmed the trial court on this issue, and remand the case to the trial court for a new hearing on Avery’s post-trial motion, with the new post-trial hearing confined to the issue of improper influence on the jury. At the new post-trial hearing, I would require that, upon either party’s request under Rule 615, the trial court sequester the witnesses.

KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.

      . The hearing also covered Avery's motion for judgment notwithstanding the verdict (JNOV), motion for new trial, and motion for reconsideration of sentencing.

      . Rule 615 does not provide an express remedy for its violation. However, this-Court has provided trial courts with the discretion to apply any of several remedies. The offending witness may be excluded from testifying upon a showing of prejudice to the complaining party. Douglas, 525 So.2d at 1317 (citing U.S. v. Warren, 578 F.2d 1058, 1076 (5th Cir.1978)). Absent a showing of prejudice, the more appropriate remedy is a "full-bore cross-examination” of the witness on the facts of the violation of the rule. Id. (citing U.S. v. Jimenez, 780 F.2d 975, 981 (11th Cir.1986)). The trial court also may instruct the jury that a violation of Rule 615 should be considered in evaluating the credibility of the witness. Id. (citing Jimenez, 780 F.2d at 981). If the witness testifies before the trial court is aware of the violation, the trial court may also cite that witness for contempt. Id. at 1318 (citing U.S. v. Blasco, 702 F.2d 1315, 1327 (11th Cir.1983)).

      . The judge did not offer to subject himself to examination by the attorneys.

      . I note the troubling ethical issues surrounding a judge presiding over a proceeding at which he is a witness and in which he has personal knowledge of the disputed facts. Code of Judicial Conduct Canon 3E(l)(a) & (d)(iv); see also Brashier v. State, 197 Miss. 237, 20 So.2d 65 (1944). The failure of the judge to sua sponte recuse himself from presiding over the hearing on Avery's post-trial motions appears problematic. However, neither party raises this issue, thus, I decline to address it.

      .During some of these witnesses' testimony, the judge interjected and offered his testimony as to certain facts known to him.

      . Furthermore, under the facts of this case, proving prejudice or "adverse effect” is a particularly onerous, if not impossible, burden to place on the defendant where the same judge both made the decision not to invoke the rule and gave the offending testimony, after which five other witnesses testified regarding the same events. "The functions of a judge and a witness are incompatible.” Brashier v. State, 197 Miss. 237, 20 So.2d 65, 66 (1944). It is problematic for a judge to "pass upon the credibility and weight of his own evidence.” Id. Additionally, "the words and actions of trial judges have great weight.” Id. Indeed, the judge’s testimony was accompanied by "the weight and dignity of the court.” Thompson v. State, 468 So.2d 852, 854 (Miss.1985). Thus, common sense dictates that witnesses may be reluctant to contradict the testimony of the judge, especially when that same judge is the person determining the credibility of their testimony. See Thompson, 468 So.2d at 854 ("It is a matter of common knowledge that jurors, as well as officers in attendance upon court, are very susceptible to the influence of the judge.”) (quoting Green v. State, 97 Miss. 834, 53 So. 415 (1910)). Additionally, placing the burden on the defendant to prove the witness testimony would have been different absent the taint caused by the utter refusal to apply the Rule is likewise an impossible burden.


author: WALLER, Chief Justice,

text:
    Victor D. JONES a/k/a Victor Dewayne Jones v. STATE of Mississippi.
    No. 2011-CT-01254-SCT.
    Supreme Court of Mississippi.
    Aug. 15, 2013.

      Victor D. Jones, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   ON WRIT OF CERTIORARI

WALLER, Chief Justice,

for the Court:

¶ 1. In June 2004, Victor D. Jones pleaded guilty to two counts of sexual battery and was sentenced to two consecutive twenty-year terms, to be served in the custody of the Mississippi Department of Corrections. Jones filed a notice of appeal, which was dismissed for failure to pay the costs of appeal. The mandate issued on October 26, 2004. In December 2004, Jones filed a motion for post-conviction relief (PCR) in the Pike County Circuit Court. The motion was denied on January 20, 2005. The Court of Appeals affirmed that judgment in Jones v. State, 962 So.2d 571, 574 (Miss.Ct.App.2006).

¶ 2. In April 2011, Jones filed a second motion for post-conviction relief, which was dismissed by the trial court because the motion was time-barred and barred as a successive writ. The trial court also found that it lacked jurisdiction to consider the claims because Jones had not sought permission from this Court to proceed in the trial court. The Court of Appeals affirmed. Jones v. State, 119 So.3d 350 (Miss.Ct.App.2012). We affirm the trial court’s finding that the motion for post-conviction relief was time-barred and find that the motion also is barred based on res judicata. However, we find that the trial court and Court of Appeals erred in finding that the trial court lacked jurisdiction to hear Jones’s claims.

DISCUSSION

Standard of Review

¶ 3. This Court will not reverse a trial court’s dismissal of a motion for post-conviction relief absent a finding that the decision was clearly erroneous. Jackson v. State, 67 So.3d 725, 730 (Miss.2011) (citing Brown v. State, 731 So.2d 595, 598 (Miss.1999)). Issues of law are reviewed de novo. Jackson, 67 So.3d at 730.

I. Whether Jones must first seek leave of the Mississippi Supreme Court before filing his motion for post-conviction relief in the trial court.

¶ 4. At the time of Jones’s appeal in 2004, an inmate could appeal his sentence directly (but not his conviction) if it resulted from a guilty plea. Trotter v. State, 554 So.2d 313, 315 (Miss.1989) (emphasis added).

¶ 5. Jones’s first motion for PCR was filed properly in the first instance in the trial court and was denied on the merits, with the denial affirmed by the Court of Appeals. Jones’s second PCR (the subject of this appeal) was dismissed as time-barred and barred as a successive writ. See Miss.Code Ann. §§ 99-39-5(2), 99-39-23(6) (Supp.2012). The trial court also found that it lacked jurisdiction because Jones had not sought leave of this Court. Mississippi Code Section 99-39-7 requires a petitioner to seek leave of this Court to file a motion for PCR “[wjhere the conviction and sentence have been affirmed on appeal or the appeal has been dismissed.... ” Miss.Code Ann. § 99-39-7 (Supp.2012). However, because Jones was permitted to appeal only his sentence under Trotter, he was not required to seek permission from this Court and could file his PCR directly in the trial court. Therefore, the trial court did have jurisdiction to consider his claims.

II. Whether Jones’s sentence is illegal.

Time Bar

¶ 6. Under the Mississippi Uniform Post-Conviction Collateral Relief Act (UP-CCRA), a PCR motion must be filed within three years after the petitioner’s direct appeal is ruled upon by this Court or, where a petitioner has pleaded guilty, a PCR motion must be filed within three years after entry of the judgment of conviction. Miss.Code Ann. § 99-39-5(2) (Supp.2012). Jones was sentenced in June 2004. Jones timely filed his notice of appeal in 2004, however, the appeal was dismissed for failure to pay the costs of appeal, and the mandate issued on October 26, 2004. The petition for PCR at issue was filed in April 2011, well past the three-year statute of limitations for such filing. See Miss.Code Ann. § 99-39-5(2). The Court of Appeals found, and we agree, that none of the exceptions to the time bar listed in the statute is applicable to this case. However, in his appeal before the Court of Appeals, and now in his brief on certiorari review, Jones argues that his motion should have survived the three-year time bar because he is serving an illegal sentence. This Court has held that errors affecting fundamental constitutional rights, such as an illegal sentence, are excepted from procedural bars which otherwise would prevent their consideration. Rowland v. State, 42 So.3d 503, 507 (Miss.2010). And, when a petitioner alleges that he is serving an illegal sentence, the petition for relief is not subject to the time bar. Ivy v. State, 731 So.2d 601, 603 (Miss.1999). The Court of Appeals explained that, although Jones argued that his motion should have survived the three-year time bar because he is serving an illegal sentence, Jones did not explain why his sentence was illegal. The Court of Appeals found that, although the maximum penalty for sexual battery is thirty years, Jones was not sentenced to the maximum sentence, and the sentence imposed was within the statutory guidelines. Jones v. State, 119 So.3d 350 (Miss.Ct.App.2012) (citing Miss.Code Ann. § 97-3-101 (Rev. 2006)). Because Jones’s sentence is within the statutory guidelines and because Jones has not explained how his sentence is illegal, we affirm the Court of Appeals and the trial court on this issue.

Mental Competency

¶ 7. Jones argues that he was “legally incompetent” to plead guilty, and he should have been evaluated by a mental-health specialist prior to entering his plea. The issue of Jones’s mental health was not raised prior to submitting his guilty plea, nor was it raised in Jones’s first PCR motion. Jones v. State, 962 So.2d 571, 573 (Miss.Ct.App.2006). However, in its order denying the first petition for post-conviction relief, the trial court explained that it “personally observed the defendant’s demeanor, appearance and manner in answering the court’s questions and it appeared to the court that the defendant was competent to understand and did understand [the circumstances surrounding his guilty plea].” The trial court further found that the guilty plea was knowingly, willingly, freely, voluntarily, and intelligently made and accepted the plea and found the defendant guilty. The Court of Appeals affirmed the trial court’s denial of post-conviction relief. Jones, 962 So.2d at 573.

¶ 8. In support of his second PCR filing, Jones submitted some of his medical records, but none appears responsive to his mental competency, in general, or at the time of his plea. Therefore, notwithstanding the time bar, the trial court correctly found that Jones’s second PCR motion should be dismissed.

CONCLUSION

¶ 9. We reverse the judgments of the trial court and the Court of Appeals that the trial court lacked jurisdiction. However, we affirm the judgments of the trial court and the Court of Appeals that the PCR motion is time-barred and also find that the motion is barred based on res judicata. See Miss.Code Ann. §§ 99-39-5(2), 99-39-23(6) (Supp.2012).

¶ 10. AFFIRMED IN PART AND REVERSED IN PART.

RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . An amendment to Mississippi Code Section 99-35-101, which took effect on July 1, 2008, states that "where the defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to the Supreme Court shall be allowed.” Miss.Code Ann. § 99-35-101 (Supp.2012).