author: GRIFFIS, P.J., for the Court:

text:
    Carlos Terrell CARTER a/k/a Carlos T. Carter a/k/a Carlos Carter, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00520-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.

      Carlos Carter, appellant, pro se.
    Office of the Attorney General by Ladonna Holland, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   GRIFFIS, P.J., for the Court:

¶ 1. Carlos Carter appeals the trial court’s dismissal of his motion for post-conviction collateral relief (“PCCR”). We find that Carter’s motion was procedurally barred as a successive writ under Mississippi Code Annotated section 99-39-23(6) (Supp.2012). Accordingly, we affirm.

FACTS

¶2. On October 16, 2009, Carter was indicted as a habitual offender for possession of stolen property, under Mississippi Code Annotated sections 97-17-70 (Supp. 2012) and 99-19-81 (Rev.2007). Police found Carter in possession of a vehicle that had been stolen from a car lot. On August 6, 2010, Carter was indicted for identity theft, under Mississippi Code Annotated section 97-45-19 (Rev.2006), and two counts of false representation as to another person’s credit-card number (Counts 2 and 3), under Mississippi Code Annotated section 97-19-31 (Rev.2006). Carter had stolen a eoworker’s credit cards and purchased several items with the cards. The second indictment was amended on February 16, 2011, to change the date of the identity theft from the day the victim reported the cards missing (“about the 27th”) to the date surveillance videos showed Carter purchasing items with the victim’s credit cards (“before the 9th”), as well as to include the word “number” after “credit card” in Counts 2 and 3.

¶ 3. On February 16, 2011, Carter pled guilty to possession of stolen property by a habitual offender and identity theft. In exchange for his guilty pleas, the State agreed that the second indictment would not be amended to include habitual-offender status, and Counts 2 and 3 would be retired to the files. Carter’s plea was accepted. Carter was sentenced to serve ten years, without the eligibility for parole, for the possession of stolen property as a habitual offender and a consecutive term of fifteen years, with thirteen suspended, for identity theft.

¶ 4. On June 24, 2011, Carter filed his motion and asserted: (1) ineffective assistance of counsel, and (2) that the indictment was improperly amended to include habitual-offender status. The circuit judge entered an order that dismissed the motion on August 26, 2011.

¶ 5. On January 30, 2012, Carter filed a second motion and asserted that: (1) the court did not have proper jurisdiction, because the warrants and affidavits were not signed by a judge; (2) allowing the State to insert the word “number” into the indictment after “credit card” changed its substance; and (3) the judge erred in dismissing his prior motion on the ground of ineffective assistance of counsel. The circuit judge dismissed the second motion on February 29, 2012. It is from this judgment that Carter now appeals.

STANDARD OF REVIEW

¶ 6. A circuit court’s dismissal of a motion for post-conviction collateral relief will not be reversed on appeal absent a finding that the trial court’s decision was clearly erroneous. Williams v. State, 872 So.2d 711, 712 (f 2) (Miss.Ct.App.2004). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

ANALYSIS

¶ 7. The circuit court properly dismissed Carter’s motion as a successive writ. Mississippi Code Annotated section 99-39-23(6) bars successive motions made under the Mississippi Uniform Post-Conviction Collateral Relief Act. The statute states “any order dismissing the petitioner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.”

¶ 8. Carter’s first motion was filed on June 24, 2011, and was decided on August 26, 2011. The motion before the Court now was filed on January 30, 2012. Therefore, Carter’s motion is procedurally barred.

¶ 9. Notwithstanding the procedural bar, we will address the merits of his claims. However, we note that Carter has raised seven issues on appeal. He failed to raise all of these issues before the trial court. Mississippi Code Annotated section 99-39-21 (Rev.2007) states:

Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.

As a result, Carter is once again procedurally barred from appellate review of all issues he failed to raise in the trial court. We will limit our discussion to only the claims that were asserted before the trial court.

I. Deficiencies in the Arrest Warrant and Affidavit Were Waived

¶ 10. Carter claims that the arrest warrant and affidavit were not properly signed and sealed. In his plea colloquy, the court advised Carter that he would waive certain constitutional challenges upon entering a valid guilty plea. The challenges waived include many deficiencies in a warrant, which could have been asserted had the defendant pleaded not guilty. Thompson v. State, 23 So.3d 1100, 1102 (¶ 7) (Miss.Ct.App.2009). In Thompson, we explained that a defendant’s argument that the arrest warrant was deficient was “tantamount to asserting that the State lacked sufficient credible evidence of his guilt because the evidence of his guilt was inadmissible.” Id.

¶ 11. Carter admitted in open court to the allegations contained in his arrest warrant and the victim’s affidavit when he entered his guilty plea. As a result, he waived any claims that the arrest warrant and affidavit were not properly signed and sealed. “A voluntary and intelligent plea waives all defects allegedly occurring before the defendant enters the plea with the exception of subject matter jurisdiction.” Matthews v. State, 761 So.2d 981, 934 (¶12) (Miss.Ct.App.2000). As a result, we find no error as to this issue.

II. The Indictment Was Not Substantively Changed

¶ 12. Next, Carter’s claim that the indictment was flawed based upon the addition by the prosecution of the word “number” after “credit card” in Counts 2 and 3 of his 2010 indictment is also inadequate as a basis for reversal. To prevail, Carter must show the amendments to the indictment would have affected the defense he would have presented at trial. See Brown, v. State, 772 So.2d 411, 413 (¶ 9) (Miss.Ct.App.2000). In other words, the amendment must materially alter “the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood as to prejudice the defendant’s case” in order for this Court to grant relief. Nathan v. State, 552 So.2d 99, 107 (Miss.1989) (quoting Ellis v. State, 469 So.2d 1256, 1258 (Miss.1985)).

¶ 13. Identity theft is clearly defined in Mississippi Code Annotated section 97-45-19 as a person’s attempt or action of obtaining “personal identity information of another person with the intent to unlawfully use that information for any of the following purposes without that person’s authorization: (a) [t]o obtain financial credit[;] (b) [t]o purchase or otherwise obtain or lease any real or personal property[;] ... (e) [t]o commit any illegal act.” “Personal identity information” explicitly includes a “financial transaction device account number”; such a device includes an electronic-funds-transfer card, a credit card, and a debit card. Miss.Code Ann. § 97-45-1(o), (s) (Rev.2009).

¶ 14. Based upon the plain language of the statute, Carter’s defense at trial would not have been affected by amending the form of the indictment to read “credit card number.” The relevant statutes for identity theft clearly show the offense includes fraudulently, willfully, and feloniously using another person’s credit-card number, not just another’s credit card, to unlawfully purchase retail items. Therefore, the facts charged were not materially altered as to change the substance of his indictment. We find no error as to this issue.

CONCLUSION

¶ 15. Finding Carter’s PCCR motion to be procedurally barred as a successive writ and no further merit to his claims, we affirm the decision of the circuit court to dismiss Carter’s motion.

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

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

      . There are exceptions to this procedural bar; however. Carter failed to address any issues in his argument that would be an exception to the procedural bar. Also, we find no exception that is applicable to his case.

      . It should be noted the record shows Carter’s plea agreement allowed Counts 2 and 3 to be retired to the files, so any change in the wording of these claims does not warrant relief from his sentence.


source: Caselaw Access Project

author: JAMES, J., for the Court:

license: Public Domain

text:
    In the Matter of the ESTATE OF Reverend R.T. STRONG, Deceased. George Patrick Johnson, Leon Foster, Florine Miller and Richard Wright, Appellants v. Shirley T. Washington, Appellee.
    No. 2012-CA-00743-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.
    Thomas Morris, Cleveland, Stephanie N. Morris, attorneys for appellants.
    Nick Crawford, attorney for appellee.
    Before LEE, C.J., FAIR and JAMES, JJ.
   JAMES, J., for the Court:

¶ 1. In this will-contest case, the Chancery Court of Washington County granted summary judgment in favor of Shirley Washington. George Patrick Johnson, Leon Foster, Florine Miller, and Richard Wright (Contestants) appeal arguing that because the issue of undue influence was a factual issue for the jury, the chancellor reached this decision in error. Finding that no genuine issue of material fact exists regarding the issue of undue influence, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Reverend Roosevelt T. Strong (Rev. Strong) and Earnestine Strong were married on July 5, 1956. Prior to the marriage, Rev. Strong had four children, who are the Contestants in this case, from previous relationships. Rev. Strong and Earnestine did not have any children together. On October 23, 1986, Rev. Strong executed his last will and testament. Earnestine was not present during the execution of the will. In the will, Rev. Strong bequeathed $10,000 to his daughter, Florine Miller; and devised property to his son, Richard Wright. Rev. Strong left the residuary of his estate to Earnestine, whom he named as executor. Rev. Strong died on November 2, 2009.

¶ 3. Shortly thereafter, George Patrick Johnson, another son of Rev. Strong, filed a “Petition for Appointment of Administrator and Granting Letters of Administration” along with a “Petition to Determine Heirs-At-Law.” The petition was presented as though Rev. Strong had died intestate. Johnson was appointed the administrator of Rev. Strong’s estate, and was issued letters of administration. Before the estate was to be closed, Rev. Strong’s 1986 will was produced by Shirley Washington, who was later appointed to serve as executor on behalf of Earnestine. On May 5, 2010, the Contestants filed a “Petition to Contest Unprobated Will.” In the petition, the Contestants argued that Earnestine exerted undue influence over their father at the time of the execution of the 1986 will. According to the Contestants, Earnestine was very domineering and mean to Rev. Strong throughout their marriage. The Contestants also claimed that Earnestine strongly opposed Rev. Strong’s close relationship with his children, and likely forced him to disinherit them in his will. To support them argument, the Contestants presented three affidavits, one of which was Johnson’s affidavit. The two remaining affidavits were those of Bessie Seard, a cousin of Rev. Strong; and Phalange Ward, the mother of Johnson. Each of the affidavits contained allegations that Earnestine was very controlling and that Rev. Strong had, on many occasions, expressed that he regretted marrying Earnestine. The affidavits also alleged that Earnestine would not allow the Contestants into her home to visit their father.

¶ 4. Also, according to Seard, Rev. Strong had previously executed a will in favor of Johnson many years prior to the 1986 will. Johnson also alleged that such a will was executed by his father. In their affidavits, both Seard and Johnson admitted that they never actually saw the prior will, and that they did not know where it was located. On May 19, 2010, Washington filed a “Petition for Probate of Will and for Letters of Administration” in the Washington County Chancery Court. The court granted the petition on May 25, 2010, and removed Johnson as administrator of Rev. Strong’s estate.

¶ 5. On July 14, 2010, Washington filed a request for admissions. The Contestants filed their response on September 1, 2010, nineteen days beyond the deadline. On December 22, 2010, Washington filed her first motion for summary judgment, arguing that the Contestants’ failure to respond within the thirty-day time limit, as required under Rule 36 of the Mississippi Rules of Civil Procedure, should result in all matters being deemed admitted. Finding that the Contestants demonstrated excusable neglect in their failure to timely respond, and that Washington failed to show prejudice from the delay, the court denied the motion.

¶ 6. Washington filed a second motion for summary judgment on February 6, 2012, which is the subject of this appeal. In the motion, Washington argued that the Contestants failed to present specific facts showing that Earnestine exerted undue influence over Rev. Strong during the execution of the 1986 will. Finding that no genuine issue of material fact existed, the chancery court entered an order granting summary judgment in favor of Washington on April 25, 2012. From this order, the Contestants now appeal.

STANDARD OF REVIEW

¶ 7. This Court applies a de novo standard in reviewing the grant or denial of a motion for summary judgment. In re Estate of Laughter, 28 So.3d 1055, 1060 (¶ 17) (Miss.2009). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” M.R.C.P. 56(c). “The evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Laughter, 23 So.3d at 1060 (¶ 17) (quoting Bullock v. Life Ins. Co., 872 So.2d 658, 660 (¶ 6) (Miss.2004)).

Concurrently, at the trial-court level, when a motion for summary judgment is made and supported, an adverse party may not rest upon the mere allegations or denials set forth in his pleadings, but his response must set forth specific facts showing that there is a genuine issue for trial.

Id. (quoting M.R.C.P. 56(e)).

DISCUSSION

¶ 8. The Contestants claim that the trial coui't’s grant of summary judgment was improper because the question of whether Rev. Strong was unduly influenced by Earnestine was a factual issue for the jury to resolve. However, the Contestants have presented no specific material fact showing that the 1986 will was procured through undue means. Although the Contestants argue that Earnestine was very controlling and domineering during her marriage to their father, this in and of itself does not invalidate the disputed will.

¶ 9. This Court addressed a similar issue in In re Estate of Pigg, 877 So.2d 406 (Miss.Ct.App.2003). In Pigg, the contestants challenged the validity of their deceased sister’s will, arguing that the sister lacked testamentary capacity and was unduly influenced by the executor of her estate during the execution of the will. Id. at 409 (¶ 5). During trial, the proponents of the will made two motions for a directed verdict, arguing that the contestants lacked sufficient evidence to show that the deceased lacked testamentary capacity or was unduly influenced. Id. at 409 (¶ 10). The trial court denied both motions, and the issues of testamentary capacity and undue influence were presented to the jury. Id. On appeal, this Court held that because the evidence was so lacking, it was reversible error for the trial court to present the issues to the jury. Id. at 414 (¶ 38).

¶ 10. With regard to the issue of undue influence, we held the following:

Those contesting a will need not present sufficient evidence to prove undue influence. The contestants, however, must at least raise sufficient question to cause jurors to conclude that the proponents failed to prove that the will was free of improper influence!!]
The jurors had to decide if the inferences of undue influence made the quantum of evidence in support of due execution less than a preponderance. The best evidence on the issue was the testimony of the subscribing witnesses and others who were present during the execution. From no one contemporaneously involved ... was there any suggestion that Mrs. Pigg was unaware of what she was doing or that her personal desires had been overwhelmed by someone else. Doubts about due execution that arise solely from speculation are insufficient. That would be too light a counterweight to the evidence of proper execution.

Id. at 412 (¶ 32), 414 (¶ 36) (emphasis added). The evidence of undue influence presented by the will contestants in Pigg amounted to nothing more than mere speculation, and therefore, was insufficient to make undue influence an issue for the jury. Id. at 414 (¶ 37).

¶ 11. The same holds true in the case at bar. With the exception of Johnson, none of the Contestants were present during the execution of the 1986 will. In their brief, the Contestants admit that their father had testamentary capacity during the time surrounding the execution of the will. In his own deposition, Johnson admits that his father was of sound mind at the time the will was executed on October 23, 1986. None of the Contestants allege that Rev. Strong was in poor mental or physical health so as to render him dependent upon Earnestine. To the contrary, all of the Contestants stated in their depositions that their father was a very private person who handled his own finances and business affairs. In fact, the record shows that Rev. Strong kept the 1986 will in a safety deposit box to which Earnestine did not have access. Although the Contestants maintain that Rev. Strong executed a will many years prior to 1986, no such document was ever produced during these proceedings. In their brief, the Contestants still admit that they have no personal knowledge of the alleged prior will.

¶ 12. The only evidence the Contestants have to support their assertion .of undue influence is the three affidavits alleging that Earnestine was overpowering and controlling toward Rev. Strong. However, not one of the affidavits contains specific facts showing that Rev. Strong was improperly influenced by Earnestine during the execution of the disputed will. The Contestants’ blanket allegations do not pass muster to show a triable issue. “The trial court should only submit an issue to the jury when the evidence creates a question of fact over which reasonable jurors could disagree.” In re Last Will & Testament & Estate of Smith, 722 So.2d 606, 611 (¶ 17) (Miss.1998) (citing Vines v. Windham, 606 So.2d 128, 131 (Miss.1992)). Here, the evidence does not formulate a factual question over which reasonable jurors could disagree.

¶ 13. “A presumption of undue influence arises in a will contest when a beneficiary occupies a confidential relationship with the testator and there is active participation by the beneficiary in either procuring the will or in preparing the will.” Smith, 722 So.2d at 611-12 (¶ 18) (citing Simm v. Adams, 529 So.2d 611, 615 (Miss.1988)). However, the existence of a confidential relationship, alone, does not automatically raise a presumption of undue influence. Laughter, 23 So.3d at 1064 (¶ 37) (citing Wright v. Roberts, 797 So.2d 992, 999 (¶21) (Miss.2001)). There must be circumstances where the beneficiary in the relationship took some active part in preparing the will. Id. (citing Croft v. Alder, 237 Miss. 713, 723-24, 115 So.2d 683, 686 (1959)). There is no evidence of undue influence here. As previously mentioned, there is nothing in the record to suggest that Rev. Strong was dependent upon Earnestine in any capacity. According to the Contestants, Rev. Strong was very independent and handled his own financial affairs. Earnestine was never granted power of attorney during their marriage. Furthermore, there is no evidence that Earnestine actively participated in the will’s preparation or was present during its execution.

¶ 14. For these reasons, we find that the trial court’s grant of summary judgment was proper. As stated above, the nonmoving party may not rest upon mere allegations, but must set forth specific facts showing that there is a triable issue. M.R.C.P. 56(e). Based on our review of the record, the evidence was insufficient to make the question of undue influence one for the jury. This issue is without merit.

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

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

      . Earnestine resides in a nursing home in Macon, Georgia, and was unable to serve as executor due to her advanced age and failing health.


author: ROBERTS, J., for the Court:

text:
    Daniel Paul COPPLE a/k/a Daniel P. Copple a/k/a Daniel Copple, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00237-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.

      Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Elliott George Flaggs, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J., for the Court:

¶ 1. Following a trial in the Lowndes County Circuit Court, a jury convicted Daniel Paul Copple of two counts of murder and one count of aggravated assault. Copple was sentenced to life on Count I for the murder of James Bennett-Mann, life on Count II for the murder of Mark Caudill, and fifteen years on Count III for the aggravated assault of Michael Ward. His sentences were ordered to run consecutively to one another. Copple timely executed the current appeal claiming the verdicts were against the overwhelming weight of the evidence and that the evidence against him was insufficient to support the verdicts. He also alleges that he was denied his right to a fair trial since the circuit court denied his motion for a change of venue. Finding his arguments without merit, we affirm Copple’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶ 2. This appeal stems from events that occurred in the early-morning hours of February 16, 2011, at the Elbow Room, a local bar in Columbus, Mississippi. Around 6:30 p.m. on the evening of February 15, 2011, Ward, a bartender at the Elbow Room, was working when Caudill, a customer, pulled out a semi-automatic handgun to show him. Ward informed Caudill that he needed to put it away or leave the bar. Caudill finished his beer and left the Elbow Room. Later that evening, Caudill returned, as did another customer, Bennett-Mann. After midnight, AI Comer, another Elbow Room employee, arrived to help Ward begin closing the bar. Ward left the front bar area to repair a broken toilet. After approximately five to ten minutes, Ward finished repairing the toilet and began walking toward the bar area again. He had stopped in a room containing the pool table and jukebox to turn the music down when he heard some scuffling in the bar area and then a single gunshot. Ward was able to see the shooter based on his location in the back room. He identified Copple as the shooter and described seeing Copple shoot downward at approximately a twenty-five degree angle and stated that Copple fired at least five shots total. Copple then entered the back room and held the gun to Ward’s head. Ward, on his knees, pleaded for his life; however, according to Ward, Copple tensed his arm as if he was pulling the trigger, but the gun did not discharge. Copple looked at the gun and then turned and exited the Elbow Room.

¶ 3. Comer also witnessed the incident. He explained that while Ward was working on the broken toilet, he and Bennett-Mann had gone into the back area where the jukebox was located to use some credits on the jukebox. As the men were walking toward the bar area again, Comer saw Copple and Caudill in a “clench,” with Copple pushing Caudill to the ground. Comer started to go break up the men, and he was approximately three feet away when the gun was first fired. He stated that he saw Caudill go limp on the floor after the shot was fired. Comer ran out of the bar and across the street to a bar called Zachary’s. He informed the employees at Zachary’s that there was a shooting, and they called the police. Comer remained at Zachary’s until the police arrived at the Elbow Room just a few minutes later. A Zachary’s employee, Jeremy Eakin, testified that he saw a man walk out of the Elbow Room and down the street with what appeared to be a gun in his hand. Police arrested that man, later identified as Copple.

¶ 4. Police arrived at the scene, found the gun lying in the street, and arrested Copple, who was approximately twenty to thirty feet away from the gun. Officers entered the Elbow Room and discovered Bennett-Mann, gasping for air and sitting on the back of the already deceased Cau-dill. Bennett-Mann was transferred to the hospital where he later died. Several police officers and investigators testified at Copple’s trial. They indicated that Cop-pie’s demeanor the night of his arrest varied from calm and laughing to irate and belligerent.

¶ 5. Copple was indicted on July 26, 2011, for two counts of murder and one count of aggravated assault. He entered a plea of not guilty, and his jury trial began on December 5, 2011. The jury heard testimony from Ward and Comer as well as from Copple. At trial, Copple testified that as soon as he walked into the bar, Caudill pulled a gun on him. The two began wrestling and Bennett-Mann joined the fight. Copple claimed he was able to wrangle the gun away from Caudill, but he did not remember anything about shooting Caudill or Bennett-Mann or about holding the gun to Ward’s head. Additionally, a forensic pathologist testified that Caudill suffered two gunshot wounds: one in the head and one in the neck. The neck wound was fired slightly downward at near-contact range, and the head wound was slightly upward at an intermediate range. Bennett-Mann suffered three gunshot wounds: one in the head, one in the chest, and one in the forearm. The forensic pathologist testified that Bennett-Mann’s forearm wound was consistent with a defensive posture. There was also testimony from Caudill’s flaneé that Caudill was not in good physical condition, having been seriously injured previously and unable to turn or twist his head without moving the rest of his body. She further testified that his shoulder was still broken, and he struggled to even dress himself. Bennett-Mann’s flaneé also testified at trial. She had been standing outside the Elbow Room just minutes before the incident attempting to persuade Bennett-Mann to come home. She testified that she saw Copple enter the bar, but she did not hear any fights or scuffles after he walked into the bar..

¶ 6. Trial concluded on December 8, 2011, with the jury finding Copple guilty on all three counts. He was sentenced to life on each count of murder and fifteen years on the aggravated-assault count, with each sentence to be served consecutively and in the custody of the Mississippi Department of Corrections. Copple filed his motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The circuit court denied the motion, and Copple appealed, raising the following three issues for review:

I. The evidence is insufficient to support the verdict, as the State failed to prove beyond a reasonable doubt that Copple did not act in necessary self[-]defense.
II. The verdict is against the overwhelming weight of the evidence, which establishes that Copple ac[t]ed in necessary self-defense.
III. [Copple] was denied his right to a fair trial when the [circuit] court denied a change of venue.

ANALYSIS

I. SUFFICIENCY OF THE EVIDENCE

¶ 7. Copple first argues that the evidence presented at trial was insufficient to support the jury’s verdicts because the State did not present proof beyond a reasonable doubt that Copple did not act in necessary self-defense. This Court’s standard of review in challenges to the sufficiency of the evidence is, when viewing the evidence in the light most favorable to the State, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). When the issue of self-defense is raised, the burden is on the State to prove “beyond a reasonable doubt that the defendant was not acting in necessary self-defense.” Harris v. State, 937 So.2d 474, 481 (¶ 23) (Miss.Ct.App.2006) (citing Heidel v. State, 587 So.2d 835, 843 (Miss.1991)).

¶ 8. The elements of murder are found in Mississippi Code Annotated section 97-3-19(l)(a) (Rev.2006). Section 97-3-19(l)(a) states: “The killing of a human being without the authority of law by any means or in any manner shall be murder ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being[.]” However, Mississippi Code Annotated section 97-3-15 (Rev. 2006) contains the elements of justifiable homicide, including necessary self-defense. Section 97 — 3—15(l)(f) provides that the killing of a human being is justifiable “[w]hen committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished[.]”

¶ 9. At trial, there were multiple witnesses who described the events that occurred that night. There was testimony that Caudill was intoxicated and had a gun on his person earlier the night of the incident. Copple testified that Caudill pulled the gun on him as soon as he walked into the Elbow Room, and at some point, an intoxicated Bennett-Mann jumped into the fight, leaving Copple no choice but to kill both Caudill and Bennett-Mann to save his own life. Copple claims that because there was no eyewitness testimony as to who started the fight, it was highly possible and probable that he was attacked by the two drunk and armed men and “shot them out of his reasonable apprehension of bodily harm.” However, Copple also testified that he does not remember actually shooting the gun, but he remembered that at some point, he did have complete control of the gun.

¶ 10. There is conflicting testimony about Copple’s version of the events from several witnesses. First, BennetWHann’s fiancé testified that she was standing just outside the entrance door of the Elbow Room when Copple walked inside; however, she heard no commotion or fighting. This disputes Copple’s testimony that as soon as he walked in, Caudill pulled the gun and started attacking him. Comer testified that before any scuffling was heard or shots were fired, Bennett-Mann was back inside the Elbow Room, and they had gone to the jukebox area of the bar. Based on this testimony, Bennett-Mann could not have joined the fight until after the first few shots were fired. Police investigators testified that they recovered no weapons off the bodies of Caudill and Bennett-Mann. Additionally, the testimony of Ward and Comer both describe Copple as having the advantage in the fight, as he was pushing Caudill to the ground and standing over Caudill as he shot the gun at a downward angle. This testimony is consistent with the forensic pathologist’s testimony that Caudill’s gunshot wounds were in close contact and angled slightly downward. According to documents contained in the record, Copple was approximately six-feet tall and weighed 195 pounds at the time of his arrest. At trial, Ward testified that Caudill was approximately five-feet- and-ten-inches tall and weighed 150 pounds. Copple’s advantage in the fight is supported by the size difference between the two men. The forensic pathologist also described Bennett-Mann’s gunshot wound to his arm as consistent with a defensive posture. Lastly, police investigators testified that they did not recall seeing any injuries or wounds on Copple’s arms or face at the time he was arrested.

¶ 11. In Anthony v. State, 936 So.2d 471, 476 (¶ 14) (Miss.Ct.App.2006) (internal quotation omitted), this Court noted “that the jury sits as the trier of facts in evidence, and as such is charged with the duty of judging credibility.” Additionally, it is well settled that “[j]urors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. They may believe or disbelieve, accept or reject, the utterances of any witness. No formula dictates the manner in which jurors resolve conflicting testimony into findings of fact sufficient to support their verdict.” Id. (quoting Jones v. State, 920 So.2d 465, 472 (¶ 22) (Miss.2006)).

¶12. We note that Copple has made no argument about his conviction for aggravated assault; thus, we do not address the issue of the sufficiency of the evidence on that conviction. Faced with conflicting versions of what happened, the jury was entitled to believe the witnesses it found most credible. From the evidence presented at trial, reasonable jurors could have found that the State proved every element of the crimes of murder beyond a reasonable doubt, including that Copple was not acting in necessary self-defense. Copple’s version of the events that he was attacked and was acting in necessary self-defense was not supported by or consistent with the other evidence at trial. Therefore, this issue is without merit.

II. WEIGHT OF THE EVIDENCE

¶ 13. Copple next argues that the murder verdicts were contrary to the overwhelming weight of the evidence. In Bush, 895 So.2d at 844 (¶ 18), the Mississippi Supreme Court outlined the standard of review for challenges to the weight of the evidence. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. (citation omitted). Further, the evidence is viewed “in the light most favorable to the verdict.” Id.

¶ 14. The evidence presented at trial was detailed in the facts section of this opinion as well as the previous discussion on the sufficiency of the evidence; therefore, we will not detail the facts again. We do reiterate that it is the duty of the jury to weigh the credibility of each witness. See Anthony, 936 So.2d at 476 (¶ 14). Based upon the verdicts returned, the jury found the State’s witnesses more credible than Copple. After a thorough reading and analysis of the record, this Court does not find the verdict to be against the overwhelming weight of the evidence presented at trial. Allowing Cop-pie’s convictions to stand would not sanction an unconscionable injustice; therefore, we find that this issue is without merit.

III. CHANGE OF VENUE

¶ 15. Lastly, Copple argues that the circuit court erred in failing to grant his motion for a change of venue due to excessive media coverage and the fact that there were two murder victims. “The decision to grant or deny a motion for change of venue is within the discretion of the trial judge.” McCune v. State, 989 So.2d 310, 316 (¶ 11) (Miss.2008).

¶ 16. Pursuant to Mississippi Code Annotated section 99-15-35 (Rev. 2007), a motion for a change of venue must be in writing and supported by affidavits of two or more credible persons showing that the defendant cannot receive a fair and impartial trial in that county. When a proper change-of-venue motion is filed with the circuit court, a presumption arises that an impartial jury is unattainable, and the burden is on the State to rebut that presumption. Johnson v. State, 476 So.2d 1195, 1211 (Miss.1985).

¶ 17. In the present case, Copple did not properly support his change of venue motion with facts or affidavits; therefore, the presumption did not arise, and the State did not have the burden of proving that a fair trial could be obtained in Lowndes County. The record contains Copple’s change of venue motion, but eon-tains no other affidavits in support of the motion. As Copple did not satisfy section 99-15-35, this issue is without merit.

¶ 18. Further, after reviewing the record, we do not find evidence that the circuit court erred in determining that the jurors were fair and impartial. During voir dire, the circuit court specifically addressed any pretrial publicity about the case. It asked the jury pool whether any of them had read, seen, or heard anything about the case. Twenty-three of sixty-nine jurors indicated that they had seen publicity about the case. The circuit court then asked those jurors whether it was within the last week that they had heard about the case. Eleven of those twenty-three jurors indicated that they had seen recent coverage. The circuit court then asked all twenty-three jurors whether they had formed an opinion about how the case should be decided based on the publicity. Approximately five indicated that they had formed an opinion. Finally, the circuit court asked those five jurors whether they could set their opinion aside based on evidence presented at trial. Three said they could not change their opinion. Based on the record, it appears that those three jurors were excused for cause. The circuit court again addressed the twenty jurors remaining of the original twenty-three jurors, and again asked whether they could base their verdict on the evidence presented at trial and not the publicity. They responded that they could. Thus, of the sixty-nine potential jurors, only three indicated that they had heard publicity of the trial and that they had already formed an unchangeable opinion.

¶ 19. Because Copple did not file a proper motion for change of venue, and there is no indication in the record that Copple did not receive a fair trial by an impartial jury, this issue is without merit.

¶ 20. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF COUNTS I AND II, MURDER, AND SENTENCE OF LIFE ON EACH COUNT, AND COUNT III, AGGRAVATED ASSAULT, AND SENTENCE OF FIFTEEN YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL AND FAIR, JJ„ CONCUR. JAMES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . The indictment contained an additional count of aggravated assault stemming from a separate incident in which Copple allegedly hit someone with his vehicle. Copple filed a motion to sever this count labeled as Count III in the indictment. The record does not contain the circuit court’s ruling on this motion to sever; however, it does contain the circuit court’s order to renumber the indictment, swapping the Count III in question to Count IV and moving the old Count IV up to Count III. At this particular trial, Copple was not tried for the aggravated assault in the renumbered Count IV, and it is not a part of the present appeal.

      . A letter contained in the record from Copple accompanies the change-of-venue motion; however, the letter focuses primarily on his attorney’s performance and his treatment in jail. There is no mention in his letter of any pretrial publicity or reason to support a change of venue.


author: LEE, C.J., for the Court:

text:
    Charlotte FOSTER, Appellant v. CITY OF PASS CHRISTIAN, Mississippi, Appellee.
    No. 2012-CA-01035-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.

      Virgil G. Gillespie, Gulfport, attorney for appellant.
    Frank P. Wittmann III, Waveland, Frank Philip Wittmann IV, attorneys for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   LEE, C.J., for the Court:

¶ 1. This case concerns the decision of a zoning board to grant a special-use exception, thereby allowing a homeowner to rent two rooms and serve one meal to guests.

FACTS AND PROCEDURAL HISTORY

¶ 2. Erin and Chase Moseley own a home on East Scenic Drive in Pass Christian, Mississippi. This home is located in the district classified as R-O, a residential district. The Moseleys applied to the city’s zoning board, requesting permission to rent two rooms. The Moseleys made their application pursuant to section 601.3.2 of the zoning ordinance, which provides for uses permitted as special exceptions. The zoning board approved the Moseleys’ application. In addition to allowing the Moseleys to rent two rooms, the zoning board granted them the right to serve one meal.

¶ 3. Charlotte Foster, the Moseleys’ neighbor, appealed this decision to the Pass Christian Board of Aldermen (the Board). The Board affirmed the decision of the zoning board. Foster then appealed to the Harrison County Circuit Court. The circuit court affirmed the decision of the Board.

¶ 4. Foster now- appeals to this Court, asserting that the circuit court erred by failing to find the Board’s decision was arbitrary and capricious and by failing to find the Board’s decision amounted to illegal spot zoning.

STANDARD OF REVIEW

¶ 5. This Court will only set aside a zoning decision if the record clearly shows the decision “to be arbitrary, capricious, discriminatory, illegal[,] or without [a] substantial evidentiary basis.” Drews v. City of Hattiesburg, 904 So.2d 138, 140 (¶ 5) (Miss.2005). “Where the point at issue is ‘fairly debatable,’ we will not disturb the zoning authority’s action.” Id. Because the governing body’s decision carries a presumption of validity, “the burden of proof is on the party asserting its invalidity.” Id.

¶ 6. As for questions of law, the standard of review is de novo. Consol. Pipe & Supply Co. v. Colter, 735 So.2d 958, 961 (¶ 13) (Miss.1999).

DISCUSSION

I. BOARD’S DECISION

¶ 7. In her first issue on appeal, Foster contends the circuit court erred in upholding the Board’s decision. Foster argues the zoning ordinance does not allow the renting of two rooms in an area zoned R-O. Section 601 of the zoning ordinance details use requirements for a residential district zoned R-O. The special exception under Section 601.3.2 permits “[t]he renting of rooms within existing structures (but not the building of additions for rental purposes) provided that the number of such rental units shall not exceed two (2).”

¶ 8. Foster claims overnight accommodations are only allowed in areas zoned C-3, which are commercial areas, and that this activity is more appropriately described as that of a “tourist home.” The zoning ordinance defines a tourist home as “[a] dwelling in which overnight accommodations, with or without meals, are provided or offered for transient guests for compensation.” However, Foster failed to cite any authority to support her argument; thus, we are precluded from considering her issue on appeal. See Funderburg v. Pontotoc Elec. Power Ass’n, 6 So.3d 439, 442 (¶ 9) (Miss.Ct.App.2009). Regardless of the bar, Foster has also failed to show that the Board was arbitrary or capricious in granting the special exception. This issue is without merit.

II. SPOT ZONING

¶ 9. Foster also argues the Board’s decision amounted to illegal spot zoning. The term “spot zoning” has been used “to describe a zoning amendment which is not in harmony with the comprehensive or well-considered land use plan of a municipality.” McWaters v. City of Biloxi, 591 So.2d 824, 828 (Miss.1991). In spot-zoning cases, “a zoning ordinance is amended reclassifying one or more tracts or lots for a use prohibited by the original zoning ordinance.... ” McKibben v. City of Jackson, 193 So.2d 741, 744 (Miss.1967).

¶ 10. Foster cites to Modak-Truran v. Johnson, 18 So.3d 206 (Miss.2009), and Duckett v. Mayor & Bd. of Alderman of City of Ocean Springs, 24 So.3d 405 (Miss.Ct.App.2009). in support of her argument. However, Modak-Truran dealt with changes to the zoning ordinance, which the supreme court found was impermissible spot zoning. Modak-Truran, 18 So.3d at 211 (¶ 24). In Duckett, this Court determined that the city was “essentially attempting] to [rezone] the ... district without complying with the statutoiy protections attendant to a rezoning action.” Duckett, 24 So.3d at 409 (¶ 15).

¶ 11. It is apparent from the record that the action by the Board in this case was not spot zoning, inasmuch as this case does not involve rezoning or the reclassification of a zoning ordinance. The zoning ordinance applicable in this ease allowed for a special-use exception for the renting of two rooms. This issue is without merit.

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

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


author: MAXWELL, J., for the Court:

text:
    Noble Ray BELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00098-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.

      Noble Ray Bell, appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J., for the Court:

¶ 1. Noble Ray Bell appeals the dismissal of his motion for post-conviction relief (PCR). He raises a variety of claims, but primarily challenges the revocation of his supervised probation based on his failure to register as a sex offender. Upon review, we find Bell freely and voluntarily admitted in open court that he had not registered as a sex offender. Thus, neither this, nor any of Bell’s other appellate arguments merit relief. We affirm.

Background

¶2. On September 23, 2009, Bell pled guilty to one count of sexual battery. He was sentenced to fifteen years in the custody of the Mississippi Department of Corrections, with thirteen years and ten months suspended and five years’ supervised probation. As a consequence of his guilty plea, Bell was required to register as a sex offender.

¶ 3. Shortly after his release from prison, Bell was indicted for (1) failing to register as a sex offender, (2) kidnapping, and (3) possessing a Schedule II controlled substance with the intent to distribute. The State filed a petition to revoke Bell’s probation and impose a suspended sentence. The court held a revocation hearing on April 1, 2011, at which Bell admitted he had failed to properly register as a sex offender. The court revoked his suspended sentence and accepted the State’s recommendation to reinstate seven years of Bell’s original sentence. The court then nolle prossed the three charges against Bell.

¶ 4. On September 26, 2011, Bell filed a PCR motion. He alleged that his admission to the failure-to-register charge was involuntary, and that the court had imper-missibly relied upon several falsified documents when revoking his probation. Bell also raised several constitutional claims under the Fifth and Sixth Amendments. In summarily dismissing his motion, the circuit court found Bell had clearly understood the charges against him and had voluntarily and knowingly confessed the probation violation to avoid a separate criminal trial on the substantive charges. Bell appeals from this dismissal.

Discussion

¶ 5. Under Mississippi Code Annotated section 99-39-11(2) (Supp.2012), “a trial court may summarily dismiss a [motion] for PCR, without having held an evi-dentiary hearing, when it is clear that the [movant] is not entitled to relief under the [Uniform Post-Conviction Collateral Relief Act].” State v. Santiago, 773 So.2d 921, 923-24 (¶ 11) (Miss.2000). When reviewing the denial or dismissal of a PCR motion, we will only disturb the circuit court’s factual findings if they are clearly erroneous. Beal v. State, 58 So.3d 709, 710 (¶ 2) (Miss.Ct.App.2011) (citing Doss v. State, 19 So.3d 690, 694 (¶ 5) (Miss.2009)). We review the circuit court’s legal conclusions de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

¶ 6. In his PCR motion, Bell claimed: (1) the circuit court erred by entering two falsified documents into the record; (2) he received ineffective assistance of counsel; (3) his confession to the failure-to-register charge was involuntary; (4) his Fifth Amendment right to be free from double jeopardy was violated; and (5) his Sixth Amendment right to a speedy trial was violated.

I. Falsified Documents

¶ 7. Bell first contends the circuit court erred by relying on two “falsified documents”—(1) the probation order and (2) the order of revocation and suspended sentence. He claims the probation order “appears to be a falsified document” because he had “no knowledge such order existed.” As to the order of revocation and suspended sentence, he insists this order must also be falsified because “under no circumstances whatsoever” would he have voluntarily confessed to the failure-to-register charge.

¶8. However, Bell offers no support for the claim other than his bare assertions in his brief. And we cannot decide issues “based on assertions from the briefs alone. The issues must be supported and proved by the record.” Pulphus v. State, 782 So.2d 1220, 1224 (¶ 15) (Miss.2001) (citing Robinson v. State, 662 So.2d 1100, 1104 (Miss.1995)). Even if we disregard these documents, the transcript from his revocation hearing belies his argument. It shows he voluntarily admitted to failing to register as a sex offender. So his revocation was proper, and we find no error on the circuit judge’s part in dismissing the PCR motion.

II. Ineffective Assistance of Counsel

¶ 9. Bell next suggests his attorney was deficient when representing him at the revocation hearing. To prove ineffective assistance of counsel, Bell must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Bell to show both prongs. Willis v. State, 66 So.3d 740, 745 (¶21) (Miss.Ct.App.2011) (citing McQuarter v. State, 574 So.2d 685, 687 (Miss.1990)). “Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance.” Id. (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052).

¶ 10. The movant must allege facts pointing toward counsel’s deficient performance with “specificity and detail.” Kinney v. State, 737 So.2d 1038, 1041 (¶ 8) (Miss.Ct.App.1999) (citing Cole v. State, 666 So.2d 767, 777 (Miss.1995)). In PCR cases, “where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Brooks v. State, 89 So.3d 626, 628 (¶ 6) (Miss.Ct.App.2011) (quoting Vielee v. State, 653 So.2d 920, 922 (Miss.1995)).

¶ 11. Bell did not provide the requisite affidavits or any other evidence in support of his ineffective-assistance claim. Instead, he offered only his own bare assertions, which are insufficient. “It is firmly established that mere allegations are insufficient to entitle a defendant to an evidentiary hearing on a post-conviction claim of ineffective assistance of counsel.” Ealey v. State, 967 So.2d 685, 691 (¶ 18) (Miss.Ct.App.2007) (citing Gazzier v. State, 744 So.2d 776, 778-79 (¶ 6) (Miss.1999)). Thus, Bell has not shown his attorney’s performance was ineffective.

III. Bell’s Admission During His Revocation Hearing

¶ 12. While Bell argues the circuit court erred in accepting what he deems was an “involuntary plea/confession” on the failure-to-register charge, the transcript from the revocation hearing undermines his claim.

¶ 13. There were three potential violations for which Bell faced revocation. But the State narrowed its focus during the hearing and sought to revoke Bell’s supervised probation based solely on his failure to register as a sex offender. Other than this condition, the court inquired if “[everything else [was] off the table other than failure to register?” And the State acknowledged it was not pursuing the other alleged violations.

¶ 14. Bell was asked by the judge if he “confessed] that?” And Bell said, “Yes, sir.” Bell had conferred with his attorney and had no questions for the court. Bell also specifically acknowledged that his confession to the charge that he “failed to register as a sex offender” was free and voluntary. When asked if he knew he had “a prior conviction as a sex offender, and [was] required to register[,]” Bell responded, “Yes, sir.” Based upon Bell’s admissions, the circuit judge concluded Bell had violated the terms of his probation and ordered a portion of Bell’s sentence be reinstated.

¶ 15. Under Mississippi law, “[probation may be revoked upon a showing that the defendant ‘more likely than not’ violated the terms of probation.” Younger v. State, 749 So.2d 219, 222 (¶ 12) (Miss.Ct.App.1999) (citation omitted). And here, Bell readily admitted violating the terms of his probation by not registering as a sex offender. We find Bell’s admission more than sufficient to support revocation.

IY. Double Jeopardy

¶ 16. Bell also contends that the circuit judge’s revocation of his suspended sentence subjected him to double jeopardy. While Bell did not raise a double-jeopardy claim in his PCR motion, our supreme court has recently held that the prohibition against double jeopardy is a “fundamental right” that is not subject to a procedural bar. See Roioland, v. State, 42 So.3d 503, 508 (¶ 14) (Miss.2010). So we will address this claim.

¶ 17. The Fifth Amendment to the United States Constitution and Article 3, Section 22 of the Mississippi Constitution provide that a person may not be prosecuted twice for the same offense. “The Double Jeopardy Clause ‘prevents a second prosecution for the same offense after acquittal, protects against a second prosecution for the same offense after conviction, and protects against multiple punishments for the same offense.’ ” Avery v. State, 102 So.3d 1178, 1181 (¶ 9) (Miss.Ct. App.2012) (quoting Ewing v. State, 34 So.3d 612, 616 (¶ 14) (Miss.Ct.App.2009)).

¶ 18. Under Mississippi Code Annotation section 47-7-34(2) (Rev.2011), the circuit judge was authorized to revoke Bell’s supervised probation and require him to finish serving his sentence in the custody of the MDOC. In construing section 47-7-34(2), we have held that double jeopardy is violated “[o]nly if the court attempts to administer a longer sentence than what was originally conferred upon the defendant....” Brunson v. State, 796 So.2d 284, 287 (¶ 14) (Miss.Ct.App.2001) (citing Johnson v. State, 753 So.2d 449, 455 (¶ 15) (Miss.Ct.App.1999)). Here, the circuit judge did not impose an additional sentence, nor did he lengthen Bell’s sentence. He simply revoked Bell’s supervised probation and enforced the originally imposed sentence, which he was certainly authorized to do under section 47-7-34(2).

V. Speedy Trial

¶ 19. Bell finally claims he was deprived of his federal and state rights to a speedy trial. Though we are unsure of the particular delay he complains of, we presume it relates to his 2009 sexual-battery charge. But Bell did not seek a trial on the sexual-battery charge— he pled guilty. And we have consistently observed that “ ‘a valid guilty plea operates as a waiver of all non-jurisdietional rights or defects which are incident to trial,’ including the constitutional right to a speedy trial.” Burch v. State, 929 So.2d 394, 396-97 (¶ 6) (Miss.Ct.App.2006) (quoting Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991)). We find that by entering a valid guilty plea, Bell waived his constitutional and statutory rights to a speedy trial.

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

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

      . Bell presented a sixth issue on appeal entitled “Newly Discovered Evidence under [Mississippi Code Annotated section] 99-39-5(1)(E) [(Supp.2012)].” However, because he failed to raise this issue in his PCR motion, it is procedurally barred from our review. See Hamilton v. State, 44 So.3d 1060, 1065 (¶ 15) (Miss.Ct.App.2010).


author: IRVING, P.J., for the Court:

text:
    Jerry STRIBLING, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01250-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.

      Edmund J. Phillips Jr., Newton, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   IRVING, P.J., for the Court:

¶ 1. On May 18, 2011, a jury convicted Jerry Stribling of manslaughter. The Leake County Circuit Court sentenced him to twenty years’ imprisonment in the custody of the Mississippi Department of Corrections, with eighteen years to serve, two years suspended, and two years of post-release supervision. Stribling filed a motion requesting a new trial or a judgment notwithstanding the verdict, which the circuit court denied. Feeling aggrieved, Stri-bling appeals and argues that the circuit court erred by refusing a jury instruction and by delaying lunch for the jurors until after they had reached a verdict.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On November 7, 2009, Stribling shot and killed his nephew, Jerry McBeath, after an argument. Stribling shot McBeath once in the left arm and once in the lower abdomen. The second shot was fatal. A Leake County grand jury indicted Stri-bling for murder.

¶ 4. Greg Wells, another nephew of Stri-bling, testified that he, Stribling, and McBeath had installed a deer feeder on his family’s property on the day of the shooting. Afterwards, they went to Wells’s mother’s house for a family gathering. Although Wells classified the relationship between Stribling and McBeath as a close familial relationship, he also stated that it was not uncommon for the two to argue. However, Stribling and McBeath always made up after the arguments.

¶ 5. Wells stated that on the day of McBeath’s death, Stribling and McBeath were arguing about the life of a family member that had passed away. During the argument, McBeath pulled a knife out of the side of his jogging pants and started walking towards Stribling. Stribling reached into his pocket and pulled out a knife as well. Wells stated that he interjected and told them to put the knives away. According to Wells, Stribling started to back away from McBeath. He moved toward the driver-side door of his truck. When Stribling tried to open the door, McBeath had his hand on the door. Eventually, McBeath stepped away, and Stribling was able to open the door, get inside the truck, close the door, and roll up the window. Wells testified that he felt that things had calmed down at that point. When Stribling started his truck, McBeath turned to walk away. As McBeath walked away, Stribling got out of his truck and made a comment to McBeath. When McBeath turned around, Stribling shot him.

¶ 6. Stribling testified that, on the day of the incident, McBeath came to his home to ask for financial help, but he was unable to help him. As stated, he, McBeath, and Wells later installed the deer feeder. They used Stribling’s truck to transport the deer feeder. After installing the deer feeder, Stribling, McBeath, and Wells went to a family barbecue. Stribling stated that when they got to Wells’s mother’s house, he, McBeath, Wells, and others stood around his truck drinking. He also noted that he and McBeath had argued in the past, but they would always “get back together.”

¶ 7. According to Stribling, McBeath was standing at or sitting on the tailgate of Stribling’s truck. Stribling was standing near the tailgate on the driver’s side of the truck. When he and McBeath began to argue, McBeath pulled his knife. He thought that McBeath was joking until McBeath started trying to stab him with the knife. Stribling acknowledged that he pulled out a knife too, but insisted that he threw his knife into the bed of the truck when he realized that McBeath was serious. Stribling backed away from McBeath, got into his truck, and rolled up the window. He also noted that he started his truck but decided not to leave. He described his decision not to leave as a “matter of honor” and not allowing anyone to “run him off’ of his family’s property. He opened his door, placed one foot on the ground, and turned to speak to McBeath. Stribling asked McBeath why he wanted to stab him. According to Stribling, McBeath turned around and ran towards him with the knife in his hand. Stribling then shot McBeath in the arm. Stribling testified further that despite McBeath being shot, McBeath continued to move towards him with the knife in his hand. He shot McBeath again. He stated that he thought that McBeath had gone crazy, and that he feared for his life. He stated that he did not mean to kill McBeath, but he was only defending himself.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

I. Jury Instruction D-12

¶ 9. Stribling contends that the circuit court erred in refusing to give his “stand-your-ground” jury instruction. The circuit court determined that “justifiable homicide” had been properly covered in other instructions and that the Castle Doctrine, the origin of D-12’s language, was inapplicable to these facts. “[T]he standard of review for the denial of jury instructions is abuse of discretion.” Newell v. State, 49 So.3d 66, 73 (¶20) (Miss.2010) (citing Davis v. State, 18 So.3d 842, 847 (¶ 15) (Miss.2009)).

¶ 10. It is well settled that “[a] defendant is entitled to have jury instructions given which present his theory of the case[.]” Spires v. State, 10 So.3d 477, 483 (¶ 28) (Miss.2009) (quoting Heidel v. State, 587 So.2d 835, 842 (Miss.1991)). The court, however, “may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Id. (quoting Heidel, 587 So.2d at 842). Additionally, “[a] ... court is not required to give instructions which are covered by other instructions although the language may differ.” Id. (quoting Davis v. State, 431 So.2d 468, 475 (Miss.1983)).

¶ 11. We cannot say that the circuit court erred in refusing Stabling's proffered jury instruction. The instruction is not supported by the evidence, and Stabling’s theory of the case was covered adequately and fairly in other jury instructions. In this case, Stabling asserted that he shot McBeath in self-defense. Jury instruction D-12 focuses on the duty to retreat before using defensive force, and states:

The court instructs the jury that while the danger which will justify the taking of another’s life must be imminent, impending, and present, such danger need not be unavoidable except by killing in self-defense. Jerry Stribling need not have avoided the danger to his person that was presented by the victim by flight. So long as Jerry Stribling was in a place where he had the right to be, and was neither the initial provoker nor aggressor, he may stand his ground without losing the right to self-defense.

Stribling argues that he was entitled to instruction D-12 because the State implied that he had a duty to leave the scene after his altercation with McBeath. We disagree. While the State asked Stribling during cross-examination if he could have left the scene instead of choosing to stay and confront McBeath, the State did not indicate that Stribling had a duty to do so.

¶ 12. Also, it is clear from the evidence that Stribling and McBeath were engaged in an argument prior to the shooting. However, all of the evidence presented demonstrated that the initial altercation between Stribling and McBeath was over. In fact, McBeath had walked away from Stribling minutes before Stribling confronted him. So, Stribling had become the aggressor, and was, therefore, not entitled to an instruction on the right to stand his ground and not retreat.

¶ 13. Furthermore, although no other jury instruction addressed “flight” or Stabling’s right to “stand his ground,” his theory of the case — self-defense—was covered in jury instruction D-14. D-14 states:

The court instructs the jury that to make a killing justifiable on the ground of self-defense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to believe that the victim intended to kill the defendant or to do him some great bodily harm, and in addition to this, he must have reasonable grounds to believe that there is imminent danger of such act being accomplished. It is for the jury to determine the reasonableness of the grounds upon which the defendant acts. If you, the jury, unanimously find that the defendant acted in self-defense, then it is your sworn duty to return a verdict in favor of the defendant.

¶ 14. Throughout trial, Stribling maintained that he shot McBeath because he feared for his life, and jury instruction D-14 adequately and fairly addressed that theory, which the jury apparently believed to some extent, as he was convicted of manslaughter as opposed to the indicted charge of murder. Thus, we hold that the circuit court did not abuse its discretion in refusing jury instruction D-12. This issue is without merit.

2. Influenced Jury Verdict

¶ 15. Sti'ibling argues that the circuit court improperly influenced the jury by withholding lunch from the jury until it reached a verdict. We disagree. The Mississippi Supreme Court has previously stated that “it is within the sound discretion of the [circuit court] as to how long [it] will keep the jury in deliberation, and this discretion will not be reviewed on appeal unless there has been a clear abuse of discretion.” Sipp v. State, 986 So.2d 326, 332 (¶ 13) (Miss.2006) (quoting Greenlee v. State, 725 So.2d 816, 824 (1118) (Miss.1998)) (internal quotation marks omitted).

¶ 16. Here, the jury began deliberations at 11:02 a.m. At 1:02 p.m., the court summoned the jury and requested a status report. After the jury informed the court how the votes were divided, the court, reassuring the jury that it was not trying to deprive the jury of lunch, requested that the jury continue deliberating. The jury returned a verdict a short time later. There is no evidence in the record, however, that the circuit court delayed lunch in an attempt to force the jury to reach a verdict. Therefore, we cannot find that the circuit court abused its discretion by allowing the jury to continue deliberations prior to receiving lunch. This issue is without merit.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH EIGHTEEN YEARS TO SERVE, TWO YEARS SUSPENDED, AND TWO YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

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


text:
    NATIONAL WESTERN LIFE INSURANCE COMPANY, Appellant v. Charlene DUNN, Appellee.
    No. 2011-CA-01515-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.
    Mary Clay Wadlington Morgan, Jackson, attorney for appellant.
    W. Howard Gunn, Aberdeen, William F. Selph III, attorneys for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   IRVING, P.J., for the Court:

¶ 1. National Western Life Insurance Company (National Western) filed a motion in the Lee County Circuit Court to enforce a settlement agreement between National Western, Creative Marketing International Corporation (CMI), and Charlene Dunn. Dunn filed her own motion to enforce the settlement agreement pursuant to the terms stated therein. The circuit court granted Dunn’s motion and entered a final judgment against National Western. Feeling aggrieved, National Western appeals and claims that the circuit court erred in denying its motion to enforce the settlement agreement and, in the alternative, failing to reform the agreement to reflect the parties’ intent.

¶ 2. Finding that the circuit court erred in granting Dunn’s motion to enforce the settlement agreement, we reverse the circuit court’s judgment and remand this case for further proceedings consistent with this opinion.

FACTS

¶ 3. In 1997, John Murphy approached Dunn at her home on several occasions to sell her various life insurance policies, annuities, and other securities. Dunn eventually purchased multiple policies, including the two annuities at issue, which Murphy sold on behalf of National Western. She claimed that as a result of her conversations with Murphy, she understood those annuities to be ten-year annuities with a low surrender charge, between two and five percent or less. However, they were actually seventeen-year annuities with a twenty-five percent surrender charge for the first three to seven years.

¶ 4. Dunn filed her initial complaint against Future Benefits Incorporated (Future Benefits) and Murphy, an agent and employee of Future Benefits, alleging negligence, gross negligence, breach of fiduciary duties, breach of the covenant of good faith, and breach of contract regarding Dunn’s purchase of the life insurance policies and annuities. She later filed an amended complaint adding American Equity Investment Life Insurance Company, National Western, and Jefferson Pilot Life Insurance Company as defendants. She then filed a second amended complaint, adding CMI, a brokerage house which sold the listed defendants’ insurance and annuity products, as an additional defendant.

¶ 5. National Western filed a motion for summary judgment. Although the circuit court held a hearing on the summary-judgment motion, it set a trial date instead of ruling on the pending motion. CMI and Dunn later filed a joint motion for continuance, and the circuit court issued an order continuing the case and ordering the parties to mediation. National Western, CMI, and Dunn were the only parties that participated in the mediation. The parties reached a settlement and executed a settlement agreement, which stated in pertinent part:

The parties in the above styled and numbered cause agree to settle any and all claims asserted in the above styled and numbered cause and arising out of Plaintiffs relationship with Defendants [and] all affiliated companies, excluding John A. Murphy [and] Future Benefits, Inc.... Plaintiff! ][is] to execute [a] Full and Final Release ... [and] Plaintiff! ] agree[s] to indemnify and hold harmless [National Western] and [CMI] and all affiliates for any and all legal actions related to this litigation in any manner[.]

The day after mediation, Dunn returned home and reviewed her personal file containing her annuity information. She called the National Western headquarters and was given the figure of $177,495.29, which she understood to be the present value of her annuity accounts. Since this figure was considerably more than the $155,000 that she agreed to in the settlement agreement, her attorney sent a letter to National Western and CMI’s attorneys declaring that

any agreement wherein Ms. Dunn received a total of $155,000.00 while having in her annuity account[s] with National Western a balance of $177,495.29 does not make her whole. In fact, she suffered a loss of $177,495.29. Hence, the proposed settlement of $155,000.00 on the presumption that Ms. Dunn only had $107,352.00 in her accounts is tantamount to surrender charges being imposed upon Ms. Dunn. Thus, it is Ms. Dunn’s contention that any proposed settlement of the matter is null and void. There [was] certainly no meeting of the minds.

¶6. National Western contended in its motion to enforce that it was clear during mediation that Dunn would not be allowed to retain ownership of her annuities pursuant to the agreement. National Western argued that there was no representation made as to the amount of money that Dunn had in her accounts with National Western. Further, National Western claimed that its counsel explained that the goal of the settlement offer was to put Dunn in the position that she would have been in had she never purchased the annuities from National Western, not to pay her what her accounts would be worth at the end of her annuities’ terms if she did not make any additional withdrawals.

¶ 7. In her motion to enforce, Dunn argued that surrendering her annuities was an additional term not agreed upon at mediation, not covered in the settlement agreement, and not discussed at all until National Western filed its motion to enforce. As such, Dunn insisted that the settlement agreement be enforced pursuant to the specific terms stated therein. The circuit coui't held a heai'ing on both motions, and subsequently granted Dunn’s motion and denied National Western’s motion. After National Western filed a motion for entry of a final judgment pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedui'e, the circuit coui't entered a final judgment in Dunn’s favor against National Western.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 9. The Mississippi Supreme Court has previously stated that “[a] settlement agreement is a contract.” Ill. Cent. R.R. Co. v. Byrd, 44 So.3d 943, 948 (¶ 16) (Miss.2010) (citing McManus v. Howard, 569 So.2d 1213, 1215 (Miss.1990)). “The existence of a contract and its terms are questions of fact to be resolved by the fact-finder, whether a jury, or a judge in a bench-trial.” Ammons v. Cordova Floors, Inc., 904 So.2d 185, 188 (V13) (Miss.Ct.App.2005) (quoting Anderson v. Kimbrough, 741 So.2d 1041, 1045 (¶ 12) (Miss.Ct.App.1999)). Cases that involve the interpretation of contracts are reviewed de novo, as these issues are questions of law. Cherokee Ins. Co. v. Babin, 37 So.3d 45, 48 (¶ 8) (Miss.2010).

¶ 10. National Western contends that, although the settlement agreement does not specifically address the annuities, the plain language in the agreement is broad enough to include the ownership of the annuities as a claim or right that Dunn must release. National Western also insists that Dunn failed to present any evidence that there was a meeting of the minds that she could retain ownership of her annuities. The Mississippi Supreme Court has held that “in order for there to be a settlement there must be a meeting of the minds.” Vaughn v. Rettig, 912 So.2d 795, 799 (¶ 21) (Miss.2005) (quoting Viverette v. State Hwy. Comm’n of Miss., 656 So.2d 102, 103 (Miss.1995)). “The burden is upon the party claiming the benefit of the settlement to demonstrate by a preponderance of the evidence that there was a meeting of the minds.” Id. (quoting Viverette, 656 So.2d at 103).

¶ 11. In Viverette, our supreme court examined whether there was a meeting of the minds regarding a settlement agreement. In that case, the appellant, a landowner, was initially paid $2,800 by the Mississippi State Highway Commission (Commission) under the “quick take” provision of Mississippi Code Annotated section 11-27-85 (Rev.2004), a section of the eminent domain statute. Viverette, 656 So.2d at 103. The appellant later entered into a settlement agreement with the Commission. Id. However, after the trial court entered a judgment for $5,000, the appellant filed a motion to set aside the judgment and asserted “that it was his understanding that the $5,000 was in addition to the $2,800.” Id. “A witness for the Commission testified that it was his understanding that the settlement was for a gross amount of $5,000.... The [trial] court made no explicit finding that there had been a meeting of the minds with respect to the settlement.” Id. The supreme court found that there was no evidence in the record to indicate that the $2,800 was considered or agreed to be part of the $5,000. Id. Therefore, there was no meeting of the minds, and the judgment could not stand. Id.

¶ 12. Although the facts in the present case are slightly different from those in Viverette, we find Viverette helpful. Here, we do not know whether a meeting of the minds occurred with respect to an ultimate fact. It is clear that the parties agreed to settle for $155,000 and that that figure was predicated upon an understanding that the total amount in Dunn’s annuity accounts was $107,352. It is also clear that the $107,352 figure was given to Dunn during the mediation by National Western and was represented to be the amount left in Dunn’s annuity accounts after withdrawals. However, it is unclear whether that amount was an accurate representation based on the information that Dunn obtained from National Western the following day.

¶ 13. Both parties agree that the objective of the settlement agreement was to make Dunn whole. It is implicit in the objective of making her whole that she would have to surrender her annuities, as allowing her to both retain ownership of her annuities and receive $155,000 in settlement proceeds would do more than “make her whole.” The circuit court concluded that because the settlement agreement did not explicitly mention the surrender of the annuities, their surrender was not part of the settlement agreement. We do not find this omission outcome determinative of whether there was a meeting of the minds with respect to the surrendering of the annuities. Dunn’s attorney’s letter to National Western and CMI’s counsel implies that Dunn expected to be paid what her annuities were worth in exchange for her surrendering ownership in the annuities, as it would not make sense for her to claim that retention of the annuities plus receipt of $155,000 would not make her whole.

¶ 14. Dunn insists that the $177,495.29 figure that she discovered after signing the settlement agreement is the amount that was in her annuity accounts at the time of the settlement agreement. However, National Western argues that the $177,495.29 figure represents what Dunn’s annuities would be worth when they matured if Dunn did not make any more withdrawals from the annuities. We do not know who is right. If $177,495.29, or some other amount greater than $107,352, was in Dunn’s annuity accounts at the time of the settlement, then it appears that there was no meeting of the minds because Dunn would have been mistaken, at the time of the settlement agreement, as to the amount that would make her whole. On the other hand, if indeed there was $107,352 in Dunn’s annuity accounts at the time of the settlement agreement, then it appears that there was a meeting of the minds, and the settlement agreement should be enforced. However, we leave that determination for the circuit court on remand.

¶ 15. As we find that there is a question as to whether there was a meeting of the minds during the mediation that produced the settlement agreement, we reverse the judgment of the circuit court and remand this case for a determination by the circuit court as to whether the parties entered into an enforceable settlement agreement. In making that determination, the circuit court may decide, without the aid of a jury, any disputed material factual issues. Byrd, 44 So.3d at 947 (¶ 11).

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . Although the circuit court did not rule on the motions for summary judgment, the motions became moot when the court granted Dunn’s motion to enforce the settlement agreement.


text:
    Shawn ADAMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00992-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.

      Shawn Adams, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   MAXWELL, J., for the Court:

¶ 1. Shawn Adams appeals the dismissal of his motion for post-conviction relief (PCR). After review, we find it was plain from the motion, the exhibits, and the transcript of the plea hearing resulting in his armed-robbery conviction that Adams was not entitled to any relief. The transcript of the plea hearing clearly shows Adams’s guilty plea was voluntary and supported by a factual basis. And Adams offered no evidence contradicting that transcript or supporting his other PCR claims. Because we find no abuse of discretion in the circuit judge’s dismissal of the Adams’s PCR motion, we affirm.

Background

¶ 2. In August 2008, Adams, donning a red ski mask and wielding a hammer, smashed through the front glass door of “Any Day’s A Payday” — a local payday lender in Forrest County. Once inside, the masked Adams sat in a chair in front of an employee’s desk and placed the hammer on the desk. He then opened a bag and demanded cash. After the employee placed $2,800 in the bag, Adams picked up his hammer and left through the broken door.

¶ 3. At his plea hearing, based on the State’s recitation of the evidence against him, Adams admitted he had committed an armed robbery. While he took issue that the State never recovered the hammer— the weapon used to commit the armed robbery — he did not deny using a hammer to smash the window and threaten the employee to hand him the money. Instead, he told the judge: “I did the crime. I admitted to it that I did it. [My attorney] explained armed robbery to me.”

¶ 4. Adams further acknowledged he had not been coerced into pleading guilty or promised anything by the State. The judge explained that Adams was facing life imprisonment if he pled guilty, which Adams claimed he understood. Finding Adams’s guilty plea was made “intelligently, knowingly, understandingly, freely, and voluntarily,” the circuit judge accepted Adams’s plea.

Discussion

¶ 5. On appeal, Adams presents the same arguments he offered in his dismissed PCR motion. While Adams insists there are thirteen separate reasons why he is entitled to post-conviction relief, most of these assertions hinge on one issue — the voluntariness of his guilty plea.

I. Voluntariness of Guilty Plea

¶ 6. Though Adams makes various claims about why his guilty plea was involuntary, we agree with the circuit judge that Adams was not entitled to an eviden-tiary hearing on this issue. See Miss. Code Ann. § 99-89-11(2) (Supp.2012). Adams attached the transcript of his plea hearing to his PCR motion. And this transcript clearly shows that his plea was voluntary.

¶ 7. At the plea hearing, Adams was advised about the elements of the charged crime of armed robbery. See Jones v. State, 936 So.2d 993, 995 (¶ 6) (Miss.Ct.App.2006) (citing Bradshaw v. Stumpf 545 U.S. 175, 182-83, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005)); see also Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). He was also specifically informed that his guilty plea would act as a “waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self-incrimination.” Alexander, 605 So.2d at 1172. The judge asked if Adams understood the minimum and maximum sentences he could face for armed robbery, and Adams assented that he did. See Woods v. State, 71 So.3d 1241, 1245 (IT 12) (Miss.Ct.App.2011). And before accepting Adams’s guilty plea, the circuit judge determined there was a factual basis for the plea. See URCCC 8.04. The judge also ensured Adams had not been improperly induced into pleading guilty by promises or threats. See id.

¶ 8. Thus, we find the plea transcript shows Adams’s guilty plea was voluntary. See Gardner v. State, 531 So.2d 805, 809-10 (Miss.1988) (finding that the thoroughness of the trial court’s interrogation during the plea colloquy “is the most significant evidence of all” when evaluating the issue of voluntariness). While “an attack on a facially correct plea may survive summary dismissal if supporting affidavits of other persons are attached,” Adams attached no such evidence to his PCR motion. Mitchener v. State, 964 So.2d 1188, 1194 (¶ 15) (Miss.Ct.App.2007). Without any evidence to contradict his sworn plea, Adams’s involuntary-guilty-plea claim was properly dismissed. See id.

¶ 9. Consequently, most of Adams’s other claims in his PCR motion were also properly dismissed. For example, Adams claims his indictment was deficient because it did not include a time-and-date stamp indicating when it was filed with the court. See URCCC 7.06(2). The circuit judge, who reviewed the criminal record, found no such defect. But even if he had, Adams’s voluntary guilty plea waived all technical, non-jurisdictional defects in the indictment. See Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990). Also, many of Adams’s claims challenge the sufficiency and credibility of the State’s evidence against him. These claims were also waived by Adams’s valid guilty plea. See Chissom v. State, 66 So.3d 1280, 1282 (¶ 6) (Miss.Ct.App.2011) (citing Thornhill v. State, 919 So.2d 238, 241 (¶ 16) (Miss.Ct.App.2005)) (holding that “[a] valid guilty plea waives the right to challenge the sufficiency of the State’s evidence”).

II. Constitutional Effectiveness of Counsel’s Assistance

¶ 10. Adams does, however, assert a claim that was not waived — his argument that his counsel was constitutionally ineffective “as to his plea.” A voluntary guilty plea waives claims of ineffective assistance of counsel “except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea[.]” Hill v. State, 60 So.3d 824, 827 (¶ 6) (Miss.Ct.App. 2011) (quoting United States v. Cavitt, 550 F.3d 430, 441 (5th Cir.2008)). “fCJlaims of ineffective assistance of counsel in the plea bargain context are governed by the two-part test set forth in Strickland [v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)].” Missouri v. Frye, — U.S. -, -, 132 S.Ct. 1399, 1405, 182 L.Ed.2d 379 (2012). Under this test, Adams had to show: (1) his counsel’s performance was deficient, and (2) the deficiency was prejudicial. Strickland, 466 U.S. at 687,104 S.Ct. 2052.

¶ 11. Adams does suggest: (1) his counsel was deficient because counsel misinformed him about parole eligibility and the minimum sentence he could receive; and (2) had he been properly informed, he would not have pled guilty. But Adams provides nothing beyond his own assertions that he was misinformed. See Ealey v. State, 967 So.2d 685, 691 (¶ 18) (Miss.Ct.App.2007) (“It is firmly established that mere allegations are insufficient to entitle a defendant to an evidentiary hearing on a post-conviction claim of ineffective assistance of counsel.”); see also Brooks v. State, 89 So.3d 626, 628 (¶ 6) (Miss.Ct.App.2011) (holding that in PCR cases, “where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit” (quoting Vielee v. State, 653 So.2d 920, 922 (Miss.1995))). Further, Adams’s assertions are contradicted by his prior sworn testimony about his counsel’s representation. See Mitchener, 964 So.2d at 1194 (¶ 15) (holding that, where a PCR movant’s assertions are overwhelmingly contradicted by the “unimpeachable documentary evidence in the record,” such as the movant’s prior sworn testimony, the court may conclude the allegations are a “sham” and no hearing is required). Therefore, the circuit judge properly dismissed Adams’s ineffective-assistance-of-counsel claim without a hearing. See id.

III. Double Jeopardy

¶ 12. Adams also argues he was subjected to double jeopardy because he was indicted for both burglary and armed robbery based on the same set of facts. “[A] plea of guilty to a charge does not waive a claim that ... the charge is one which the State may not constitutionally prosecute.” Matlock v. State, 782 So.2d 168, 171 (¶ 10) (Miss.1999) (quoting United States v. Broce, 488 U.S. 563, 575, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989)). Both the United States and Mississippi Constitutions prohibit placing a person’s life or liberty in jeopardy twice for the “same offense.” U.S. Const, amend. V; Miss. Const, art. 3, § 22. But prosecuting a defendant for separate and distinct statutory offenses does not violate the constitutional prohibition against double jeopardy — even if those offenses arise out of the same set of facts. Smith v. State, 429 So.2d 252, 253-54 (Miss.1983) (discussing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). Armed robbery and burglary are distinct codified crimes with differing elements. Smallwood v. State, 930 So.2d 448, 450-51 (¶¶ 6-7) (Miss.Ct.App.2006) (finding defendant’s prosecution for both armed robbery and burglary did not violate prohibition against double jeopardy). So the State did not place Adams in jeopardy twice for the same offense. Because Adams does not make a facially valid claim that he pled guilty to a crime the State could not have constitutionally prosecuted, summary dismissal of this claim was also proper.

¶ 13. We affirm the judgment summarily dismissing Adams’s PCR motion.

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

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

      . A judge may summarily dismiss a PCR motion, without an evidentiary hearing, "[i]f it plainly appears from the face of the motion, any annexed exhibits!,] and the prior proceedings in the case that the movant is not entitled to any relief[.]” Miss.Code Ann. § 99-39-11(2) (Supp.2012).

      . See Burrough v. State, 9 So.3d 368, 371 (¶ 6) (Miss.2009) (reviewing the dismissal of a PCR motion for abuse of discretion).

      . Of course, "[a] guilty plea does not waive an indictment’s failure to charge an essential element of the crime, and it does not waive lack of subject matter jurisdiction[.]” Joiner v. State, 61 So.3d 156, 159 (¶ 7) (Miss.2011) (citing Conerly v. State, 607 So.2d 1153, 1156 (Miss.1992)). But Adams does not allege either of these exceptions.