author: ISHEE, J„ for the Court:

text:
    Michael Ray COCHRAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CA-00623-COA.
    Court of Appeals of Mississippi.
    July 29, 2014.

      Percy Stanfield, Cody William Gibson, Jackson, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J„ for the Court:

¶ 1. In August 2010, Michael Ray Cochran shot and killed his wife. In 2011, Cochran pleaded guilty in the Leake County Circuit Court to deliberate-design murder and was sentenced to life in the custody of the Mississippi Department of Corrections (MDOC). Two years later, he filed a motion for post-conviction relief (PCR). In his PCR motion, Cochran alleged ineffective assistance of counsel and an involuntary guilty plea. After a hearing on the matter, the circuit court denied the PCR motion. Cochran now appeals. Finding no error, we affirm.

STATEMENT OF THE FACTS

¶ 2. In August 2010, Cochran shot and killed his wife of twenty-five years, Donna, in Leake County, Mississippi. The record reflects that Cochran and Donna began arguing over finances at their business — a horse-tack store that they owned and ran. Specifically, Donna allegedly told Cochran that she had taken $5,000 out of the horse-tack store to pay for their son’s wedding without consulting Cochran. After the argument became heated, Cochran claims, he stormed out of the building just as Donna threw a hammer at him. Cochran asserts that, upon hearing the hammer strike an area near the door and fall to the floor, he went back inside, pulled open a drawer with a pistol in it, and yelled at Donna to shoot him and use the insurance money to solve their financial problems. He admits that after Donna grabbed the gun and threw it at him, he picked it up and shot her in the head twice.

¶8. Cochran states that he left the horse-tack store, but returned later on and staged it to appear as if a robbery had occurred. Cochran disposed of the pistol later that day in his father-in-law’s chicken pit, and told the authorities he knew nothing about the incident. The homicide remained unsolved for approximately two months, until Cochran came forward and eventually confessed. He was then indicted for deliberate-design murder.

¶ 4. Throughout the proceedings, Cochran was privately represented by P. Shawn Harris. Harris states that he advised Cochran on numerous occasions that were he to plead guilty to murder, he would face a mandatory sentence of life imprisonment. Harris further informed Cochran that if he were to go to trial, he would have an opportunity to potentially reduce the crime to manslaughter or be found not guilty. Harris stated that Cochran repeatedly told him that he did not want to put his family through the trauma of a trial and preferred to plead guilty to murder.

¶ 5. On April 26, 2011, Cochran attended a plea hearing. There, Cochran indicated that he wished to plead guilty to murder. The circuit judge questioned him extensively regarding his understanding of the consequences of pleading guilty and his alternatives to pleading guilty. Cochran maintained that he did not want to “put the family through a trial.” Concerned with Cochran’s decision to plead guilty to a crime carrying a mandatory life sentence, Harris also attached an addendum to the plea agreement, to become part of the permanent record. The addendum was signed by Cochran and notarized. In sum, Cochran agreed that he was aware that he would receive a mandatory life sentence for a plea to murder. He also acknowledged that Harris had offered to go to trial on the matter, had advised him that going to trial could produce a more favorable outcome, that pleading guilty to murder was not Cochran’s only option, and that he wanted to enter the guilty plea nonetheless. Having reviewed Cochran’s confession, the plea agreement, the addendum, and the dialogue with Cochran regarding the consequences of entering the plea, the circuit court accepted Cochran’s guilty plea and sentenced him to life in the custody of the MDOC.

¶ 6. In 2018, Cochran filed a PCR motion. He asserts that he received ineffective assistance of counsel during plea negotiations and that his guilty plea was improperly received by the circuit court. He claims that he requested a psychological evaluation, given his alleged mental instability, but that his attorney never made the request to the circuit court. Regardless, Cochran asserts that the circuit court should not have accepted his guilty plea as voluntarily or intelligently given due to his purportedly obvious mental incapacities at the time. According to Cochran, he entered a deep depression following the death of his wife, even considering suicide, and only confessed to authorities because he did not feel that he could mentally endure a trial for the crime of murder. Cochran claims he was not in a rational frame of mind when he confessed or when he pleaded guilty. He also alleges that the confession was the result of undue influence and coercion. After a hearing on the matter, the circuit court denied the PCR motion. Cochran now appeals.

DISCUSSION

¶ 7. In order for a defendant to prevail on an ineffective-assistance-of-counsel claim, he must “show by a preponderance of the evidence (1) that counsel’s performance was deficient, and (2) but for the deficiencies, the trial court outcome would have been different.” Jones v. State, 976 So.2d 407, 410-11 (¶ 6) (Miss.Ct.App.2008) (quotation marks omitted). Furthermore, under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must show “that counsel’s errors were so serious as to deprive the defendant of a fair trial.” Finally, “[a] presumption exists that the attorney’s conduct was adequate.” Hull v. State, 983 So.2d 331, 333-34 (¶ 11) (Miss.Ct.App.2007) (citing Bums v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001)).

¶ 8. Additionally, it has long been held that when reviewing the voluntariness of guilty pleas, an appellate court “will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous.” Walton v. State, 16 So.3d 66, 70 (¶ 8) (Miss.Ct.App.2009) (quoting House v. State, 754 So.2d 1147, 1152 (¶ 24) (Miss.1999)). Furthermore, “[t]he burden of proving that a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence.” Id. (citation omitted).

¶ 9. Here, Cochran claims that he requested a psychological evaluation but that Harris never requested one from the circuit court. Cochran’s only evidence in support of this assertion is his own testimony. Both Cochran and Harris testified at the hearing on Cochran’s PCR motion. Harris stated that Cochran only asked for grief counseling, not for a psychiatric evaluation. He also said that Cochran was not incompetent. Specifically, Harris said: “Being emotionally upset is one matter; having a psychiatric problem that causes a problem with our relationship is another; and he exhibited no signs of that.” Cochran testified that during their meetings, Cochran was able to communicate logically, understood the nature of the proceedings against him, and understood the charges and them consequences. Harris received no indication from any family members that there was a history of mental illness or that Cochran was exhibiting mental illness at the time of his conversations with Harris.

¶ 10. Furthermore, Harris stated that Cochran assisted him in defending the ease. In fact, Harris testified that Cochran’s initial goal was to see if Harris could procure a plea bargain for him to plead guilty to manslaughter instead of murder. Although Harris attempted to engage the prosecution in plea negotiations, he could not obtain an offer to reduce the crime charged to manslaughter. Cochran stated that the night before the plea hearing, Harris met with him and told him the prosecution refused to offer a plea bargain for manslaughter. Cochran agreed that Harris informed him that his only option other than pleading guilty to murder was to go to trial, but he claims Harris said that Cochran would likely be convicted of murder even in a trial. Cochran then said: “[T]he state of mind I was in, I just didn’t — I didn’t want to put my children through a trial.... I had done put enough on them.”

¶ 11. Harris disputed Cochran’s assertion that he advised Cochran that he would be convicted of murder even at trial. Specifically, Harris testified:

[W]hen it was apparent that [the prosecution] was not going to [offer a manslaughter plea], that the only offer we were going to get from the D.A. was a murder conviction, which would carry life in prison, I told him that, you know, you understand you’re pleading to the maximum[;] because at this point in time I had never had anyone plead to the maximum on a case like this either. And I explained to him that you’re pleading to the maximum, you’re pleading to your worst possible outcome. We could go to trial; and if you go to trial, you have the right to have a manslaughter instruction offeredf.] ... It would be up to the [c]ourt to grant it. It would be up to the jury to believe it, but no one could stop him from offering a manslaughter instruction. But that would be the only way that’s going to happen. And just like he had on numerous occasions before, [he] said he was not going to put his children and family through that.
[F]rom the very beginning it was about his family and his children. He didn’t want to drag them through a trial where he felt like in the end, he would just still be found guilty of murder.

¶ 12. Prior to the circuit judge accepting Cochran’s guilty plea, the same types of questions were asked extensively to Cochran regarding his understanding of his plea, the consequences surrounding his plea, and the alternatives available to him. Cochran stated that he understood. Then, the following dialogue ensued:

The Court: You swore to this petition. Are all things set forth in that petition true and correct?
Cochran: Yes, sir.
The Court: Is there any part of it that would need to be changed at this time or corrected or amended?
Cochran: No, sir.
The Court: Now, Michael Ray Cochran, the penalty for the crime of murder, there’s only one penalty followed by law. I do not have the discretion to sentence you to a day more or a day less. That’s life imprisonment. You’re pleading to life imprisonment. Do you understand that?
Cochran: Yes, sir.
The Court: Why?
Cochran: I did what I did.
The Court: Speak up.
Cochran: I just don’t want to put everybody through a trial.
The Court: You’re charged with murdering your wife, are you not?
Cochran: Yes, sir.
The Court: Are you guilty of that crime?
Cochran: Yes, Sir.
The Court: Are you telling me that you murdered your wife?
Cochran: I killed her.
The Court: You killed her?
Cochran: Yes, sir.

¶ 13. In denying Cochran’s PCR motion, the circuit judge noted the following:

The final decision of whether or not to go to trial is a decision that cannot be made by counsel. Counsel’s client has to make that decision. Cochran entered a plea of guilty with a full understanding of his rights. [He] appeared very relaxed when he appeared before me for sentencing and I was convinced that he knew what he was doing.

¶ 14. Moreover, prior to accepting Cochran’s guilty plea, the circuit judge asked Cochran numerous times and in several different ways if he was satisfied with Harris’s performance. On each occasion, Cochran responded that he was satisfied and had no complaints with Harris’s performance. Additionally, in the plea addendum signed by Cochran and notarized and filed with the circuit court, Cochran stated the following:

1. I understand that I am voluntarily entering my plea of guilty to the crime of murder.
2. I understand that there is only one penalty for the crime of murder and that is life in prison.
3. I understand that my attorney has advised me that I do not have to plead guilty to murder, but it is my own decision to do so.
4. I understand that I am pleading guilty and will receive a recommendation of [m]urder, for which there is only one penalty, life in prison[,] and that will be the recommendation of the district attorney[,] and I will not receive a recommendation for manslaughter. Further, I understand that the [j]udge has no discretion in my sentence and when I enter my plea I will receive life in prison.
5. I understand that ... my attorney has advised me that if I were to go to trial, I could have [the] opportunity to try to get the [c]ourt to issue a manslaughter instruction, or be found not guilty, but there will be no chance of manslaughter at a plea of guilty to [m]urder.
6. I understand that my attorney has advised me that he can be prepared for a trial, and will try my ease if that is what I want to do.
7. I understand that I am entitled to an attorney to try my case[,] and I do not have to plead guilty to this crime and I could go to trial. At that trial, I might have an outcome that is better than life in prison.
8. I understand that currently, I will not be eligible to be released from custody until I [reach] age 65 or [serve] 15 years, whichever is greater, and at that time I can petition the circuit court that sentenced me to commute the rest of my sentence. I am not entitled to parole.
9. I understand all of the above, but I still want to enter a plea of guilty[,] and I do not want my case to go to a trial. I also agree and affirm that no one has tried to convince me to do this, and I am doing it of my own free will.

¶ 15. Cochran bases his entire argument regarding his mental instability on his assertion that he requested a mental evaluation and that no competent defendant would plead guilty to murder instead of going to trial. We disagree. The circuit court was correct in noting that a counsel’s client must make the ultimate decision as to whether or not to go to trial. The record indicates that while Cochran may have been grieving over the loss of his wife, he was not incompetent to enter a plea of guilty to murder. The record is full of Cochran’s steadfast desire to not put his family through a trial. Each time Cochran was asked why he was pleading guilty instead of going to trial, he consistently stated that he wanted to protect his family. We cannot say that this decision reflects a mental incapacity.

¶ 16. Furthermore, there is no indication in the record that he ever exhibited signs of confusion or misunderstanding. He showed no signs of erratic behavior or any behavioral evidence of a mental problem at all. Both Harris and the circuit judge stated that their observations and interactions with Cochran led them to believe that he was fully capable of making decisions on his own behalf. Additionally, the only evidence Cochran offers to support his contention that he requested a mental evaluation is his own statement, which Harris strongly denies. This is not sufficient to prove that the request was actually made or that Harris’s performance was deficient. Moreover, we cannot find any evidence that Cochran exhibited signs of mental instability such that Harris or the circuit judge should have ordered a mental evaluation sua sponte. While Cochran may have experienced grief, we agree with Harris that there is a difference between grief and mental incapacity. Harris did not provide ineffective assistance of counsel by failing to garner a mental evaluation for Cochran or by allowing him to enter a guilty plea to murder. This issue is meritless.

¶ 17. Finally, Cochran’s assertion that his guilty plea was involuntary is misplaced. He was certainly apprised of the consequences of pleading guilty to murder and the available alternatives to pleading guilty. As noted above, he signed not one, but two documents admitting his understanding of every aspect of his plea and admitting that he committed the murder. He also admitted under oath that he fully understood the consequences of pleading guilty, that he did, in fact, murder his wife, and that he was satisfied with Harris’s representation of him throughout the proceedings. As stated previously, Harris and the circuit judge questioned Cochran at length regarding his understanding of the consequences of and alternatives to pleading guilty. Neither Harris nor the circuit judge could force Cochran to go to trial. Each time Cochran was questioned by either Harris or the circuit judge as to why he was entering a guilty plea, Cochran maintained that he did not want to put his family through the hardship of a trial. The record indicates that he was fully aware of the circumstances surrounding his guilty plea, and entered the plea nonetheless. While unconventional, it was not involuntary. This issue is also without merit.

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

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


source: Caselaw Access Project

author: BARNES, J., for the Court:

license: Public Domain

text:
    Tangela and Ricky BANKS, as the Parents and Friends to the Minor, Ryheim Banks, Appellants v. Tom CAREY, M.D., Natchez Community Hospital, Inc., Ob-Gyn Clinic, Inc., Donielle Daigle, M.D., Laura Carpenter, and Jane Does, 1 Through 4, Inclusive, Appellees.
    No. 2012-CA-01803-COA.
    Court of Appeals of Mississippi.
    July 29, 2014.

      Shane F. Langston, Jessica Elizabeth Murray, Rebecca M. Langston, John Timothy Givens, Jackson, attorneys for appellants.
    R.E. Parker Jr., Penny B. Lawson, Vicksburg, attorneys for appellees.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   BARNES, J., for the Court:

¶ 1. Tangela Berry, now Tangela Banks, and Ricky Banks (the Bankses), as next of kin and Mend to the minor, Ry-heim Banks, filed an action in Adams County Circuit Court, alleging medical negligence by Tom Carey, M.D., Natchez Community Hospital, Donielle Daigle, M.D., OB-GYN Clinic Inc. (OB-GYN), Laura Carpenter, and Jane Does 1-4. Separate settlements were reached between the Bankses and Carpenter and Natchez Community Hospital on April 10, 2012, after jury selection was conducted. The jury trial continued against defendants Dr. Carey and OB-GYN. On April 18, 2012, the jury returned a verdict in favor of the remaining defendants.

¶ 2. After the final judgment was entered on May 14, 2012, the Bankses filed a timely motion for a judgment notwithstanding the verdict (JNOV), or in the alternative, for a new trial. The circuit court denied the motion, and the Bankses now appeal. Finding no error, we affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. In 2003, the Bankses learned they were expecting a child together. Tangela sought prenatal care from Dr. Carey, a physician and partner with OB-GYN. On September 24, 2003, when Tangela was approximately twenty-six weeks pregnant, she was admitted to Natchez Community Hospital with contractions, elevated blood pressure, fluid in her lower extremities, and an abnormal level of protein in her urine. Dr. Carey had Tangela transferred by ambulance to the University of Mississippi Medical Center (UMMC) in Jackson, Mississippi. Upon arrival at UMMC, it was determined that Tangela had suffered a “placental abruption” and an emergency caesarean section was performed. Test results on the child, Ryheim, revealed that he had been deprived of oxygen, causing severe mental and physical retardation.

¶ 4. On June 4, 2004, the Bankses, on Ryheim’s behalf, filed a complaint alleging medical negligence against Dr. Carey, OB-GYN, and the others. A jury trial was held from April 10-18, 2012. As noted, the Bankses reached a settlement with Carpenter and Natchez Community Hospital on the first day of the trial. After the trial concluded, the jury returned a verdict in favor of Dr. Carey and OB-GYN.

¶ 5. The Bankses filed a motion for a JNOV, or in the alternative, for a new trial, arguing that improper comments by a former partner of OB-GYN, who was an observer at the trial, were an attempt to influence the jury and warranted a mistrial. The circuit judge entered an order on October 4, 2012, denying the motion. The Bankses now appeal, and upon review, we find no error and affirm the circuit court’s judgment.

DISCUSSION

¶ 6. In their post-trial motion, and on appeal, the Bankses argue that Dr. William Godfrey, a retired physician and former partner with OB-GYN, made improper comments during the trial that constituted an attempt to influence the jury. Therefore, they claim that the circuit court erred by failing to conduct a proper investigation into the alleged misconduct and grant its motion for a new trial.

I. Whether statements made by a trial spectator improperly influenced the jury.

¶ 7. In an affidavit attached to the post-trial motion, the attorney for the Bankses attested that he witnessed Dr. Godfrey snidely comment to another trial spectator, within proximity of the jury, that he intended to return after lunch recess and listen to the rest of the “bulls* *t” from the plaintiffs expert. Counsel immediately reported this conduct to the judge, who admonished Dr. Godfrey to be more quiet with his remarks. Later, counsel also reported that the wife of the plaintiffs’ expert witness told him Dr. Godfrey had verbally greeted one of the jurors, Linda Bailey, and had made the comment, “[H]e’s a hired gun and he should be shot,” to Bailey, presumably regarding the expert witness.

¶ 8. Also attached to their post-trial motion was an affidavit by an investigator who had interviewed a juror in the case after the trial was completed. This juror, Margaret Hinson, told the investigator that when Bailey returned to the jury room after lunch, Bailey said she hoped she was not in trouble because she had been approached by Dr. Godfrey. Hinson told the investigator that Bailey said Dr. Godfrey stated Dr. Carey was a good man and that “[Bailey] needed to vote for him.”

¶ 9. The Bankses assert that Dr. God-frey’s comments were intended to influence the jury. In addition, as a retired partner of OB-GYN, they claim that Dr. Godfrey was, essentially, a party to the litigation and had a “vested interest in the outcome of the trial.” Thus, his alleged misconduct warranted a new trial.

¶ 10. It is clear from the record that Dr. Godfrey was not a named party or a witness to the proceedings; he was merely a courtroom spectator. Although the Bankses claim that Dr. Godfrey’s relationship with the plaintiffs was not known to them prior to trial, according to the Appel-lees, Dr. Godfrey was listed as an employee of OB-GYN in their response to interrogatories dated September 24, 2003. Several years later at trial, during the in-chamber discussion regarding Dr. God-frey’s alleged comments, his former work relationship with OB-GYN was discussed. The circuit court judge noted that Dr. Godfrey had since been “retired for a number of years.” The Bankses admit that the knowledge of Dr. Godfrey’s identity prior to trial “would not, and could not, have prevented [his] wrongful conduct.” Moreover, counsel never moved for a mistrial based on Dr. Godfrey’s relationship with OB-GYN or his alleged misconduct. See Miss. Gaming Comm’n v. Baker, 755 So.2d 1129, 1133 (¶ 10) (Miss.Ct.App.1999) (issues not objected to or presented to circuit court for a decision at trial may not be considered for error on appellate review) (citations omitted).

¶ 11. When the circuit judge was informed of the allegations of improper conduct by Dr. Godfrey, he promptly brought Bailey, an alternate juror, into his chambers for questioning. Bailey told the judge that she saw Dr. Godfrey at lunch and that he had approached her, stating that he had worked with Dr. Carey.

BY JUROR BAILEY: [Dr. Godfrey] asked me if I was on the jury.
BY THE COURT: Okay.
BY JUROR BAILEY: I was at lunch, and I still had my button on, and I said yes. And he said, “Dr. Carey’s.” And I said, ‘Tes, but don’t say anything.” And he said, “I just want to tell you he’s — I’ve practiced with him.” And I said, “Don’t say anything,” and so that’s really all he said. He started and stopped.

Bailey claimed that she immediately halted the conversation before Dr. Godfrey could speak further. She denied having any professional or social relationship with Dr. Godfrey.

¶ 12. Bailey also denied hearing Dr. Godfrey make any comment about the plaintiffs’ expert witness.

BY THE COURT: Now it’s been stated that Dr. Godfrey when he came in, he was making some statements that other people around could hear about one of the experts. Do you remember hearing anything about that? About maybe saying one of them was a hired gun[?]
BY JUROR BAILEY: No.
BY THE COURT: — something like that?
BY JUROR BAILEY: No. No. I didn’t. He never said anything like that, and he — I hadn’t heard that. Bailey averred that she could be fair and impartial.

¶ 13. Consequently, the judge concluded that any comment by Dr. Godfrey did not influence or “contaminate” Bailey from serving as a juror. Moreover, Bailey was never chosen to be on the jury; she remained an alternate and, thus, did not participate in jury deliberations. Therefore, we find no error in the court’s finding that Dr. Godfrey’s remarks did not influence the jury.

II. Whether the circuit court erred by refusing to conduct an investigation into the Bankses’ allegations of party misconduct.

¶ 14. The Bankses alternatively argue that the circuit court should have conducted an investigation based on the allegation of misconduct by Dr. Godfrey. Mississippi Rule of Evidence 606(b) states:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

The Bankses contend that without the circuit court’s investigation, we cannot know whether Dr. Godfrey’s alleged communications “altered the verdict.”

¶ 15. Addressing allegations of juror misconduct, this Court has noted that once the circuit court is made aware of the allegation of misconduct, it must then determine “whether an investigation is warranted.” Perkins v. Dauterive, 882 So.2d 773, 781 (¶ 27) (Miss.Ct.App.2004) (citing Gladney v. Clarksdale Beverage Co., 625 So.2d 407, 418 (Miss.1993)).

An investigation is warranted if there is sufficient evidence to conclude that good cause exists to believe that there was in fact an improper outside influence or extraneous prejudicial information. Although a minimal standard of a good cause showing of specific instances of misconduct is acceptable, the preferable showing should clearly substantiate that a specific, non-speculative impropriety has occurred. The showing must be adequate to overcome the presumption in Mississippi of jury impartiality.

Id.

¶ 16. In the present case, the Bankses did not provide any evidence that a “specific non-speculative impropriety” occurred. It was never shown whether Dr. Godfrey’s comments were actually heard by any member of the jury. The only evidence provided was an affidavit by their investigator, post-trial, claiming that juror Hinson told him Bailey talked to Dr. God-frey and that he had told Bailey that Dr. Carey was a good man and to vote for him. Clearly, the information contained in the affidavit is hearsay. See Gatewood v. Sampson, 812 So.2d 212, 218-19 (¶¶ 7, 9) (Miss.2002) (finding that an affidavit containing information “twice removed from the original [juror/jdeclarant” was not exempt from hearsay exceptions and did “not rise to the necessary level of proof required to conduct an investigation”). It also contradicts Bailey’s testimony before the circuit judge in his chambers. Moreover, Hinson voted in favor of the plaintiff; so, clearly, she was not prejudiced by any alleged statement.

¶ 17. Once allegations of the contact between Dr. Godfrey and Bailey were brought to the circuit judge’s attention, he immediately brought Bailey in for questioning. As noted, Bailey told the judge that Dr. Godfrey merely told her he had worked with Dr. Carey. Bailey also denied she heard any improper comments made by Dr. Godfrey during the course of the trial. Accordingly, we find that the Bankses have not overcome the presumption of jury impartiality, and this issue is without merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Tangela is interchangeably referred to as either Tangela Berry or Tangela Banks in the various courts’ filings. However, as the Appellants' brief notes that the couple is now married, we refer to Tangela by her married name.

      . A settlement had been reached with Carpenter in 2005; however, three years later, the Bankses moved to set aside the settlement. The chancery court granted their motion, and on appeal, the Mississippi Supreme Court affirmed the chancellor’s setting aside of the settlement, and reversed the settlement of the Bankses’ individual claims against Carpenter. See Carpenter v. Berry, 58 So.3d 1158 (Miss. 2011). Therefore, Carpenter was reinstated as a defendant in October 2011.
      After these separate settlements were reached in 2012, final orders of dismissal were entered for Carpenter and Natchez Community Hospital on May 24, 2012.

      .A notice of dismissal was entered for Dr. Daigle, another physician employed with OB-GYN, on July 30, 2004. Jane Does 1-4 are fictitious parties, who were only identified in the original complaint as the "charge nurse, nurse manager, supervisor of nursing, and the director of nursing for Natchez Community Hospital.” However, it is apparent from the record that the plaintiffs never specifically designated the name any of these parties in any amended pleadings. See M.R.C.P. 9(h) ("When a party is ignorant of the name of an opposing party and so alleges in his pleading, the opposing party may be designated by any name, and when his true name is discovered the process and all pleading and proceedings in the action may be amended by substituting the true name and giving proper notice to the opposing parly.”); see also McHazlett v. Otis Eng’g Corp., 133 Ariz. 530, 652 P.2d 1377, 1379 (1982) (holding that the "unserved named defendants and the fictitious defendants in this case are not 'parties’ within the meaning of Rule 54(b)”).

      . The Appellees note that Dr. Godfrey is no longer a partner/shareholder of OB-GYN and is not subject to any personal liability as a result of the lawsuit.


author: ISHEE, J., for the Court:

text:
    Thomas LINDLEY a/k/a Tom Lindley, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KM-00502-COA.
    Court of Appeals of Mississippi.
    July 29, 2014.

      Tommy Wayne Defer, Water Valley, Joseph Whitten Cooper, attorneys for appellant.
    Office of the Attorney General by Barbara Wakeland Byrd, attorney for appel-lee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J., for the Court:

¶ 1. Thomas Lindley was convicted on March 15, 2013, in the Lafayette County Circuit Court of simple domestic violence. He was sentenced to six months, with five months suspended, in the custody of the Lafayette County Detention Center (LCDC). He was also ordered to pay a fine of $1,000. Aggrieved, Lindley appeals.

STATEMENT OF FACTS

¶ 2, On February 6, 2010, Lindley’s daughter, Sarah Lindley, and his ex-wife, Martha Lindley, were having an argument at Martha’s home in Lafayette County, Mississippi. The argument stemmed from Sarah’s complaint that Lindley and Martha treated her differently than her younger siblings, Mark Lindley and Elizabeth Lindley. Mark and Elizabeth were home when the argument occurred. At the time, Sarah, Mark, and Elizabeth were approximately twenty years old, sixteen years old, and fourteen years old, respectively. Lindley and Martha had been separated for seven years and did not live in the same house.

¶ 3. The argument between Sarah and Martha occurred in Martha’s bedroom. Sarah was confronting Martha and had backed Martha into a corner. Mark, who was in another room, became concerned when he heard Sarah threaten Martha. Mark then called Lindley and asked that he come to the home. Shortly after, Mark left with a friend. At trial, Sarah and Martha testified that Sarah also called Lindley at some point during the argument to come to the home so that she could talk to him.

¶ 4. Upon Lindley’s arrival, he found Sarah and Martha in the living room. Martha was standing up, and Sarah was seated on a couch. Lindley entered the room and sat on a love seat next to the couch. At trial, Martha testified that Sarah was crying and “pouring out [her] heart” to Lindley but that he was laughing at Sarah. Martha stated that Sarah then got on Lindley’s lap, knelt on top of him, and said, “Why don’t you love me?” Subsequently, Martha witnessed Lindley stand up and throw Sarah across the room. Martha stated that Sarah hit the couch, and she thought Lindley fell down too. She declared that the incident caused the couch to move and the coffee table to be knocked over.

¶ 5. Sarah testified that when Lindley arrived and sat on the love seat, she went to sit next to him. She stated that while she was confronting him, he grabbed her by the neck and threw her down. She said that she landed by the fireplace and that he hit the floor. In the process, a pair of scissors fell on the floor that had been on the couch or the coffee table. Sarah stood up, grabbed the scissors and her cell phone, and ran outside. Sarah testified that she was terrified Lindley would kill her and that she grabbed the pair of scissors, so he could not use them against her.

¶ 6. While outside, Sarah called 911. Martha remained inside with Lindley, who she said was enraged. Deputy David Box of the Lafayette County Sheriffs Department responded to the call. When Deputy Box arrived on the scene at 3:30 p.m., it was cold and getting dark outside. Sarah approached him from the left side of the house. He noticed that she was wearing shorts and a t-shirt, had several scratches on her neck, and appeared to be upset. Sarah informed Deputy Box that she had been assaulted by her father.

¶ 7. Shortly after Deputy Box’s arrival, Martha and Lindley came outside. Because of Sarah’s report and the scratches present on her arm, Deputy Box arrested Lindley for domestic violence. After placing Lindley in his car, Deputy Box returned to the home to investigate inside and question Martha. While he stated that he did not notice any signs of a struggle or a fight in the home, he testified that Martha’s version of events went along with Sarah’s version. Deputy Box then returned to his car and questioned Lindley. Lindley stated that he was only attempting to protect himself from Sarah, who was kneeing him, or attempting to knee him, in the chest. Deputy Box stated that Lind-ley did not seem overly upset and was cooperative at all times.

¶ 8. On February 8, 2010, Sarah filed charges against Lindley. At trial, Sarah, Martha, and Deputy Box testified on behalf of the State. Mark testified on behalf of Lindley. Sarah admitted that she did not have a great relationship with Lindley. She stated that this was not the first altercation she had with him, and he was always very aggressive. Sarah also said that she went to Urgent Care following the altercation because she was concerned about her neck.

¶ 9. Martha testified that Sarah was the aggressive party in their argument, but that Sarah had not hurt or touched her. She stated that she allowed Sarah to call Lindley because it sometimes helped Sarah to talk to her father when she was angry. Martha described Lindley as being jovial while Sarah was talking to him, but that he suddenly became extremely angry. While Martha could not recall whether Sarah sought medical attention following the incident, she did remember Sarah later having problems "with a device located near her spine to help with interstitial cystitis. She believed this could have been due to the altercation with Lindley. Martha also admitted that she had previously reported Lindley for domestic violence in 2003. She stated that he was arrested, but that she ultimately dropped the charges.

¶ 10. Mark testified that Sarah started the argument with Martha. While he admitted that he was not present in the room, he stated that he heard screaming and sounds as though items in the room were being thrown. Due to this behavior, he contacted Lindley because he felt it was necessary out of concern that Sarah was threatening Martha. Following the evidence put forth at trial, Lindley moved to dismiss the case, arguing that the State failed to prove its case beyond a reasonable doubt. The motion was denied. Subsequently, the circuit court sentenced Lindley to six months, with five months suspended, in the custody of the LCDC. Lindley was also assessed a $1,000 fine. Lindley now appeals.

STANDARD OF REVIEW

¶ 11. “The standard of review for a judgment entered following a bench trial is well settled. In a bench trial, the trial judge is ‘the jury’ for all purposes of resolving issues of fact.” Sendelweck v. State, 101 So.3d 734, 738-39 (¶ 19) (Miss.2012). “The Mississippi Supreme Court has stated that ... for review of the findings of a trial judge sitting without a jury, the appellate court will reverse only where the findings of the trial judge are manifestly erroneous or clearly wrong.” Id. at 739 (¶ 19) (internal citations omitted).

DISCUSSION

I. Sufficiency of the Evidence

¶ 12. On appeal, Lindley argues that the evidence used to convict him of simple domestic violence was insufficient. Lindley contends that there were too many critical contradictions in the evidence and testimony used to convict him to legally justify his convictions. In order for the evidence to be found sufficient to sustain a conviction, the evidence must show “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). This Court will reverse a conviction only if the evidence “point[s] in favor of the defendant on any element of the offense with sufficient force that [a] reasonable [fact-finder] could not have found beyond a reasonable doubt that the defendant was guilty.” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 13. Lindley was convicted under Mississippi Code Annotated section 97-3-7(3) (Supp.2009), which provides in part:

A person is guilty of simple domestic violence who commits simple assault as described in subsection (1) of this section against a current or former spouse or a child of that person, a person living as a spouse or who formerly lived as a spouse with the defendant or a child of that person, other persons related by consanguinity or affinity who reside with or formerly resided with the defendant, a person who has a current or former dating relationship with the defendant, or a person with whom the defendant has had a biological or legally adopted child and, upon conviction, the defendant shall be punished as provided under subsection (1) of this section[.]

Mississippi Code Annotated section 97-3-7(1) (Supp.2009) states:

A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly[,] or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm[.]

At trial, there was ample evidence to support that Lindley committed simple domestic violence on Sarah by purposely, knowingly, or recklessly causing bodily injury to her. During trial, the State presented evidence through witness testimony. Both Sarah and Martha testified that Lindley injured Sarah by throwing her down. Them testimony was supported by the testimony of the first-responding police officer, Deputy Box, who testified that Sarah and Martha had informed him that Lindley had assaulted Sarah. Further, Deputy Box stated under oath that when he arrived on the scene, Sarah was visibly upset and had several scratches on her neck and legs.

¶ 14. After carefully considering the evidence presented, we find that the evidence presented by the State was legally sufficient to convict Lindley of simple domestic violence. Further, we find that a reasonable fact-finder could have found that Lindley committed simple domestic violence beyond a reasonable doubt. This issue is without merit.

II. Weight of the Evidence

¶ 15. Lindley also argues that the verdict was against the overwhelming weight of the evidence. A jury’s verdict will not be disturbed unless “it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). As stated previously, the testimony presented at trial reflected that Lindley committed simple domestic violence on Sarah by purposely, knowingly, or recklessly causing bodily injury to her. It is well settled that “[t]he trial judge has the sole authority to determine the credibility of the witnesses when sitting as trier of fact in a bench trial.” Walker v. State, 913 So.2d 411, 413 (¶ 9) (Miss.Ct.App.2005) (citing Rice Researchers Inc. v. Hiter, 512 So.2d 1259, 1265 (Miss.1987)). We cannot say that the verdict was against the weight of the evidence.

III. Plain Error

¶ 16. Finally, Lindley argues that the circuit court committed plain error when he was sentenced to pay a fine exceeding the statutory maximum. During sentencing, the circuit court judge assessed a fine of $1,000. Mississippi Code Annotated section 97-3-7(1) (Supp.2009) provides, in part, that “upon conviction, [the defendant] shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both.” Since Lindley’s fine was double the amount allotted by the statute, we find that the circuit court erred. As such, the judgment of the circuit court is reversed in part as to the fine only, and the case is remanded for resentencing. In all other respects, the judgment is affirmed.

¶ 17. THE JUDGMENT OF THE LAFAYETTE COUNTY CIRCUIT COURT OF CONVICTION OF SIMPLE DOMESTIC VIOLENCE AND SENTENCE OF SIX MONTHS, WITH FIVE MONTHS SUSPENDED, IN THE CUSTODY OF THE LAFAYETTE COUNTY DETENTION CENTER, IS AFFIRMED. THE SENTENCE TO PAY A $1,000 FINE IS REVERSED, AND THIS CASE IS REMANDED FOR RE-SENTENCING CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Based on the sensitive nature of these proceedings and in the interest of privacy, we have substituted fictitious names for Lindley's family.


author: BOLIN, Justice. MURDOCK, Justice

text:
    Hubert M. NORRIS v. FAYETTE COUNTY COMMISSION.
    1120573.
    Supreme Court of Alabama.
    Sept. 20, 2013.
    As Modified on Denial of Rehearing Dec. 20, 2013.
    See also, 674 So. 2d 77; 879 So. 2d 557.
    Ted Taylor and Rhonda P. Chambers of Taylor & Taylor, Birmingham, for appellant.

      Craig S. Dillard and Mary Pat O’Connor of Webb & Eley, P.C., Montgomery, for appellee.
   BOLIN, Justice.

Hubert M. Norris appeals from a summary judgment entered in favor of the Fayette County Commission (“the Commission”) and the dismissal of his petition for a writ of mandamus. We affirm.

I. Undisputed Facts and Procedural History

Norris held the office of Sheriff of Fay-ette County for consecutive four-year terms beginning June 1974 until his resignation in May 1989. As sheriff, Norris participated in the county’s supernumerary sheriffs’ benefit program; an amount equal to 6% of Norris’s monthly sheriffs salary was deducted from his paycheck and paid into the general fund of Fayette County.

On May 4, 1989, during his fourth term in office, Norris resigned as sheriff pursuant to a plea agreement in federal court. As part of the plea agreement, Norris pleaded guilty to multiple federal felonies, including racketeering, bribery, and tax evasion. Norris was convicted in accordance with the plea agreement, was sentenced to 37 months in prison, and was fined $25,000. On March 14, 1994, Norris received a full pardon from the Alabama State Board of Pardons and Paroles, which restored all of his civil and political rights that had been forfeited by virtue of his 1989 conviction.

On August 29, 1994, then Governor Jim Folsom, Jr., appointed Norris as supernumerary sheriff of Fayette County, pursuant to § 36-22-60, Ala.Code 1975. The Commission thereafter petitioned for a writ of quo warranto, seeking to have Norris excluded from that office pursuant to § 36-9-2, Ala.Code 1975. The Fayette Circuit Court issued the writ, and Norris appealed. On appeal, this Court held that § 36-9-2 precluded Norris from serving as supernumerary sheriff after having received a pardon. Norris v. Humber, 674 So.2d 77 (Ala.l995)(“Norris I”).

In November 2002, Norris ran for and was reelected as Sheriff of Fayette County. Norris served as sheriff from January 2003 until January 2007, and he contributed to the supernumerary sheriffs’ benefit program for each of those years. The State of Alabama thereafter petitioned for a writ of quo warranto, alleging that Norris had unlawfully held the office of sheriff, again relying on § 36-9-2. The circuit court entered a summary judgment in favor of Norris, and the Commission appealed. In State v. Norris, 879 So.2d 557 (Ala.2003) (“Norris II”), this Court affirmed the summary judgment in favor of Norris, holding that § 36-9-2 did not bar Norris from holding the office of sheriff after having been pardoned, because he claimed that office by virtue of his election, not appointment after his pardon.

On November 27, 2006, toward the end of Norris’s term as sheriff, the Commission sought a legal opinion from the attorney general regarding the county’s obligation to pay Norris any supernumerary sheriffs benefits. On December 1, 2006, Norris filed with then Governor Bob Riley a written declaration seeking to become a supernumerary sheriff for Fayette County at the end of his term as sheriff; Norris stated in that declaration that he met all the requirements to be appointed as a supernumerary sheriff pursuant to § 36-22-60(2). On January 9, 2007, Governor Riley commissioned Norris as supernumerary sheriff of Fayette County; the commission was countersigned by the secretary of state. On January 10, 2007, the attorney general issued an opinion stating that Norris was “not qualified to hold the office of supernumerary sheriff because, by virtue of his 1989 conviction, he forfeited the benefits of his entire incumbency as Sheriff of Fayette County that predated his conviction.” Op. Att’y Gen. No. 2007-032 (January 10, 2007).

On February 15, 2007, the Commission sought another legal opinion from the attorney general regarding whether Norris’s appointment to the office of supernumerary sheriff by Governor Riley affected the status of Norris with regard to his supernumerary benefits. On May 7, 2007, the attorney general advised the Commission that, because Governor Riley had already appointed Norris as supernumerary sheriff, the question was moot. On May 17, 2007, Governor Riley’s chief legal advisor purported to rescind Norris’s appointment to the office of supernumerary sheriff after learning of his 1989 felony conviction.

On March 2, 2011, Norris filed with the Fayette Circuit Court a petition for a writ of mandamus compelling payment of past and future supernumerary sheriffs benefits. Norris and the Commission thereafter filed cross-motions for a summary judgment based upon a joint stipulation of uncontested material facts. On January 28, 2013, the trial court entered a summary judgment in favor of the Commission, concluding as a matter of law that Norris had not served as sheriff for the requisite number of years as required by § 36-22-60(2) and that Governor Riley’s appointment of Norris as supernumerary sheriff was void ab initio; the trial court therefore dismissed Norris’s petition for a writ of mandamus.

II. Standard of Review

In Moss v. Williams, 822 So.2d 392, 394 (Ala.2001), this Court stated:

“Normally, we apply the ‘elearly-erro-neous’ standard of review to a trial court’s judgment. In this case, however, the material facts are undisputed. The trial court based its decision on the pleadings, documentary and other evidence introduced at the hearing on the motion for a summary judgment, and arguments of counsel. ‘[W]hen a trial court sits in judgment on facts that are undisputed, an appellate court will determine whether the trial court misapplied the law to those undisputed facts.’ Craig Constr. Co. v. Hendrix, 568 So.2d 752, 756 (Ala.1990). The question before this Court is one of law: [Was Norris qualified pursuant to 36-22-60(2), Ala.Code 1975, to be appointed as supernumerary sheriff?] ‘ “[0]n appeal, the ruling on a question of law carries no presumption of correctness, and this Court’s review is de novo.” Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala.1999) (quoting Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997)).”

III. Discussion

Norris was elected as sheriff for consecutive four-year terms in 1974, 1978, 1982, and 1986. After being pardoned, Norris was reelected as sheriff for the four-year term beginning in 2003. The trial court held that Norris was not qualified to be appointed as a supernumerary sheriff because he had not accumulated the requisite number of years of service credit as a sheriff, as required by § 36-22-60(2). Specifically, the trial court held that § 36-22-60(a) permitted consideration of only Norris’s years of service credit as sheriff from 2003 to 2007 because, it concluded, Norris had forfeited all of his years of service credit as sheriff that preceded his 1989 conviction. On appeal, Norris argues that, because sheriffs in Alabama are elected to four-year terms, he forfeited only the four years of service credit associated with the term of office he was holding when he was removed from office, i.e., the 1986 term. Section 36-22-60(2) prescribes the qualifications for serving as a supernumerary sheriff, and it states that in order to be appointed to the office of supernumerary sheriff one must have had “16 years of service credit as a law enforcement officer, 12 of which have been as a sheriff, and [must have] reached the age of 55 years.” Without question, if Norris did not forfeit all of his previous years of service credit as sheriff that ended with his 1989 conviction, he would meet the statutory requirements of § 36-22-60(2). Norris’s age is not at issue. Before the 1986 term that ended with his conviction, Norris had 12 years of service credit as sheriff; he also had 8 years of service credit in law enforcement as a police officer. The question before this Court is whether, by virtue of his conviction, Norris forfeited all of his service credit as a sheriff predating his conviction or whether he forfeited only the years as sheriff associated with the four-year term he was serving at the time he was removed from office. We find this Court’s holding and rationale in Norris I to be persuasive in our resolution of this issue.

A. Norris I

In Norris I, this Court addressed the issue “whether Norris, having pleaded guilty to felonies, [could] serve as supernumerary sheriff after receiving a pardon.” 674 So.2d at 78. This Court elaborated as follows:

“We must determine whether § 36-9-2, Ala.Code 1975, prevents Norris’s appointment to the office of supernumerary sheriff. Section 36-9-2 states:
“ ‘When any person holding any office or place under the authority of this state is convicted by any court of the United States, of this state or of any other state of a felony, his office or place shall be vacated from the time of the conviction. If the judgment is reversed, new trial granted or judgment notwithstanding the verdict is rendered, he shall be restored to office; but, if pardoned, he shall not be restored to office.’
“(Emphasis added.)
“ ‘We stated in State ex rel. Moore v. Blake, 225 Ala. 124, 126, 142 So. 418, 419 (1932), that the Legislature has the inherent power to prescribe qualifications for the holding of state offices of trust. In § 36-9-2, the Legislature has determined that an official convicted of a felony while holding a public office shall not be restored to office, even if he receives a pardon.’
“[Hendrix v. Hunt,] 607 So.2d [1254] at 1256-57 [ (Ala.1992) ] (emphasis in original).
“... [T]his Court in James v. Thompson, 392 So.2d 1178 (Ala.1981), addressed the character of the office of supernumerary sheriff:
“ ‘[0]ur disposition of the instant appeal is aided by the literal meaning of the word “supernumerary.” The word is derived from two Latin words — super, above or beyond; and numerus, a number. Thus, these two words, when used in combination and translated, mean exceeding a prescribed number. The legislative employment of this term, as a means of providing compensation to public officials conditioned upon age and length of service, created an office of public trust with duties and responsibilities concomitant with its purpose and design. While its members are above and beyond the numbers prescribed for active sheriffs, and its duties are limited and contingent by its nature, its character is not reduced to something less than that of a public office. Indeed, the Act provides that each supernumerary sheriff shall take the oath of office prescribed for sheriffs.’
392 So.2d at 1180.
“This Court addressed a similar issue in Hogan v. Bronner, 491 So.2d 226 (Ala.1986). In Hogan, a retired judge petitioned for writs ordering the payment of retirement benefits he alleged were owed to him. The plaintiff, while serving as a retired judge, was indicted and convicted of bribery and conspiracy to accept bribes during his term as an active judge. The Court reasoned that our judicial retirement law makes it clear that a retired judge holds office conditionally and may forfeit the office and any right to benefits. Citing Ala. Const, of 1901, § 60, and §§ 36-2-l(a)(3) and 36-9-2, Ala.Code 1975, the Court wrote:
“ ‘These provisions mandate the removal of a judge from his office as a retired judge under the judicial retirement law when he has been convicted of the crime of bribery committed while performing active duty as a judge. The removal from office of such a judge so convicted carries with it the forfeiture of the benefits of that office, including retirement benefits.’
491 So.2d at 227.
“Applying the principle of Hogan, we conclude that Norris’s ability to serve in the position of supernumerary sheriff is derived solely from his ability to hold the office of sheriff See §§ 36-22-60 to 36-22-65, Ala.Code 1975. Thus, he cannot enjoy the benefits of the office of supernumerary sheriff if his conviction of the felonies prevents his holding the office of sheriff The trial court properly applied the Hogan principle in this ease.
“... The intent of § 36-9-2 is to remove from office a public official convicted of a felony, and the law prevents such an official from enjoying the benefits of the office he or she has abused.... ”

674 So.2d at 78-80 (footnote omitted; emphasis added).

This Court’s holding in Norris I was based primarily on the holding in Hogan v. Bronner, 491 So.2d 226 (Ala.1986). In Hogan, Elwood Hogan, the judge at issue, committed the crimes of bribery and conspiracy to accept bribes during his term as an active judge. Hogan was convicted of the crimes while serving as a retired judge. This Court held that Hogan’s removal from office as a retired judge carried with it the forfeiture of benefits of that office, including retirement benefits. 491 So.2d at 227. Like Hogan, Norris was convicted of multiple felonies while serving as sheriff of Fayette County. Norris’s removal from the office of sheriff carried with it the forfeiture of the benefits of that office, including supernumerary benefits. The office abused in this case was the office of sheriff; therefore, Norris forfeited all of his years of service credit as sheriff that predated his conviction, not just the four-year term that ended upon his conviction.

Norris erroneously argues that Hogan has been overruled by Johnson v. Board of Control of the Employees’ Retirement Sys tem of Alabama, 740 So.2d 999 (Ala.1999). In Johnson, Inge Johnson, the judge at issue, had taken the oath of a retired circuit judge on inactive status and thereafter was appointed as a United States district judge. This Court addressed the question whether “a circuit judge who meets the eligibility requirements for retirement as provided by Ala.Code 1975, § 12 — 18—6(b)(5), lose[s] the right to [retirement] benefits upon his or her appointment as a United States district judge?” 740 So.2d at 1001. Relying on Hogan, the board argued that in order to receive payments from the Judicial Retirement Fund a judge must hold office as an “extra judge.” This Court stated the following:

“The Board argues that in order to receive payments from the Judicial Retirement Fund a judge must hold office as an extra judge of the state, citing § 12 — 18—7[, Ala.Code 1975]. The Board cites Hogan v. Bronner, 491 So.2d 226 (Ala.1986), in support of this argument. This argument is misplaced. That case did not involve § 280 of the Constitution, nor was § 12-18-7 implicated. In Hogan v. Bronner, this Court addressed the constitutional prohibition of § 60 of the constitution and the corresponding statutory provision, § 36-9-2, requiring the removal of a person from an office of trust or profit after conviction of certain crimes. Hogan was convicted for a crime committed while he was sitting as an active judge. The Court held that § 60 of the constitution required him to vacate the office as circuit judge and that the conviction of a felony while acting as a circuit judge carried with it the forfeiture of retirement benefits. Hogan did not involve § 280 of the constitution, as this case does, and thus it is not authority for the argument advanced by the Board. Hogan lost his right to receive retirement benefits because he was convicted of a crime for acts he committed while serving as a circuit judge.
“While Hogan is distinguishable on its facts from this case and was based upon a separate provision of the state constitution, which has no application here, Hogan does contain dicta that are, at best, confusing and that are, most likely, simply wrong. The fact that a judge is required to vacate his office and forfeit all benefits upon conviction of a felony does not compel the conclusion that a judge with a fully vested pension (having met all statutory requirements for retirement benefits under state law) is required to forfeit that pension upon her appointment to the federal bench.”

Id. at 1009. Accordingly, this Court concluded that “[t]hose statements [in Hogan ], linking the benefits of retirement to the office of a retired judge, were unnecessary to the holding in Hogan; they were wrong and they are hereby overruled.” Id. at 1005.

Clearly, Johnson did not overrule the holding in Hogan, i.e., that Hogan lost his right to receive retirement benefits because he was convicted of a crime that he had committed while serving as a circuit judge. Instead, it overruled only those statements in Hogan constituting dicta that implied that a retired judge’s receipt of retirement benefits was dependent upon his or her performing as an extra judge or being available to serve as an extra judge. Accordingly, Norris’s argument that the pertinent holding in Hogan has been overruled has no merit.

B. Norris II

Norris next posits that this Court’s use of the phrase “term of office” in Norris II supports his argument that he forfeited only the years of service credit associated with the four-year term of office he was serving when he was convicted, i.e., the 1986 term. We disagree. In Norris II, this Court distinguished the effect of § 36-9-2 on the separate issues raised in Norris I and Norris II:

“[Norris /] is distinguishable from the instant case. In [Norris I] this Court decided that § 36-9-2 barred Norris’s appointment to the office of supernumerary sheriff subsequent to his pardon because the supernumerary office depended on the same incumbency as sheriff that Norris had forfeited with his felony conviction. Norris’s current office of sheriff depends only on his new election subsequent to his pardon and not in any way upon the prior incumbency he forfeited with his felony conviction.
“Section 36-9-2 addresses the term of office the official is serving when he is convicted. [Norris I] and Hendrix v. Hunt, 607 So.2d 1254 (Ala.1992), stand for the proposition that the Code section also bars later supernumerary status based on the forfeited office. Norris’s pardon, however, restored his ‘civil and political right[]’ to seek election anew and to hold office as sheriff pursuant to such election. State ex rel. Sokira v. Burr, 580 So.2d 1340 (Ala.1991) (main opinion and Justice Houston’s specially concurring opinion). Neither § 36-9-2 nor any binding precedent bars Norris’s holding the office he won by election after he was pardoned. Therefore, the summary judgment is affirmed.”

879 So.2d at 560 (first emphasis in original; other emphasis added).

As used in § 36-9-2, the word “office” means the office of sheriff. Although the word “term” is not used in § 36-9-2, the Court in Norris II used the phrase “term of office” to refer to the office a person vacates by virtue of a conviction. As previously stated, Norris vacated the office of sheriff; his creditable years of service in that office included all of his years of service as sheriff predating his conviction. Norris interprets the phrase “term of office” as used in Norris II as meaning the four-year term he was serving when he was removed from office. Again, Norris’s interpretation of the word “term” is based on the fact that sheriffs in Alabama are elected to four-year terms. Norris’s interpretation, however, falls outside the application of § 36-9-2, insofar as that statute addresses the effect of a pardon on a person’s ability to be restored to a specific office, and runs afoul of this Court’s holdings in both Norris I and Norris II.

“When interpreting a statute, this Court must read the statute as a whole because statutory language depends on context; we will presume that the Legislature knew the meaning of the words it used when it enacted the statute. Ex parte Jackson, 614 So.2d 405, 406-07 (Ala.1993). Additionally, when a term is not defined in a statute, the commonly accepted definition of the term should be applied. Republic Steel Carp. v. Horn, 268 Ala. 279, 281, 105 So.2d 446, 447 (1958).”

Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala.2003). For the foregoing reasons, Norris’s argument regarding the import of the phrase “term of office” used in Norris II fails.

C. Attorney General’s Opinion, No. 2007-032

We also find persuasive the above-referenced attorney general’s opinion addressing the same issue presented in this appeal. See Alabama-Tennessee Natural Gas Co. v. Southern Natural Gas Co., 694 So.2d 1344,1346 (Ala.1997)(“While an opinion of the attorney general is not binding, it can constitute persuasive authority.”).

Subsequent to his pardon, Norris was reelected as sheriff of Fayette County and served in that position from January 2003 until January 2007. The Commission sought a legal opinion from the attorney general regarding the county’s obligation to pay Norris supernumerary sheriffs benefits. The attorney general’s opinion reads as follows:

“In [Norris II], the Alabama Supreme Court determined that Norris could hold the office of Sheriff of Fay-ette County after his pardon because he claimed the office by virtue of his election, not his pardon. [Norris II], at 560. The court distinguished [Norris II] from [Norris I], pointing out that ‘the supernumerary office [at issue in Norris I ] depended on the same incumbency as sheriff that Norris had forfeited with his felony conviction.’ Id. The court concluded that section 36-9-2 of the Code of Alabama ‘addresses the term of office the official is serving when he is convicted’ and that the [Norris I] decision stands ‘for the proposition that [§ 36-9-2] also bars later supernumerary status based on the forfeited office.’ Id. at 560-61. Thus, the question is whether Norris’s forfeited incumbency is limited to the term of office he was holding at the time of his conviction, or whether the forfeited incumbency included all of his time in office that ended with his conviction.
“There is no definition of the word ‘incumbency’ in Alabama law; however, Alabama courts have, in the past, referred to multiple terms in office as a single incumbency. See, e.g., State v. Pratt, 192 Ala. 118, 124, 68 So. 255, 257 (Ala.1915) (referring to probate judge who was subject of action for impeachment in 1915, the court wrote: ‘Judge Pratt has been for many years, during his incumbency of this office, which began in the year 1898, a very near constant alcoholic drinker’); Macon County v. Abercrombie, 9 Ala.App. 147, 62 So. 449, 450 (1913) (rev’d on other grounds, Macon County v. Abercrombie, 184 Ala. 283, 63 So. 985 (1913) (referencing ‘the present term of his incumbency of the office’)).
“In [Norris II], the Supreme Court quoted the opinion of the circuit court that had also concluded that Norris was eligible to be elected to the office of Sheriff of Fayette County after his pardon. The circuit court reasoned ‘ “[t]hat the office and term of Hubert Norris which was vacated by his conviction of 1989 and § 36-9-2 had expired and the fact that no benefits of that office were restored to him pursuant to Norris [7] ... moots and renders inapposite the application of § S6-9-2 to these facts. ” ’ /Norris 11], 879 So.2d at 560 (quoting lower court decision).
“The fact that both the Alabama Supreme Court and the circuit court in [Norris II ] refer to ‘term of office’ when speaking of the effect of section 36-9-2 on Norris’s ability to hold the office of Sheriff of Fayette County by virtue of election to that office, and yet, when referring to his eligibility for supernumerary status based on his pre-conviction service, simply refer to the ‘benefits of that office,’ and ‘forfeited office’ without the key phrase ‘term of,’ supports the conclusion that Norris’s conviction of the felonies stripped him of the benefits of his entire pre-conviction incumbency in office, and these benefits were not restored by virtue of his pardon.”

Op. Att’y Gen. No. 2007-032 (January 10, 2007).

D. Whether Norris’s Appointment as Supemumary Sheriff Was Void Ab Initio

Governor Riley appointed Norris as a supernumerary sheriff based on Norris’s declaration that he was qualified for that position; Norris’s declaration was accompanied by sworn documentation. Thereafter, Governor Riley’s chief legal advisor wrote a letter to the Commission advising the Commission that the Governor’s office did not have knowledge of Norris’s 1989 conviction when Governor Riley made the appointment. The Governor’s office apparently discovered that information by virtue of the attorney general’s January 10, 2007, opinion, which expressed that Norris was not qualified to hold the office of supernumerary sheriff because he had forfeited all of his years of service credit as sheriff that predated his 1989 conviction. The trial court concluded that Governor Riley’s appointment of Norris to the office of supernumerary sheriff was void ab initio based on the fact that Norris was not qualified pursuant to § 36-22-60(2) to hold that office. The qualifications necessary to participate in the supernumerary sheriffs’ program are stated in § 36-22-60, Ala.Code 1975, which states, in part:

“Any sheriff, on or after July 19,1979, of any county of this state may elect to participate in the supernumerary sheriffs program provided by this article. Any sheriff, on or after July 19, 1979, of any county of this state:
“(2) Who has had 16 years of service credit as a law enforcement officer, 12 of which have been as a sheriff, and who has reached the age of 55 years;
“may elect to become a supernumerary sheriff of the county by filing a written declaration to that effect with the Governor not more than 90 days prior to the end of the 16 year period or reaching the age of 55 years, both having been fulfilled, or at any time thereafter. If the Governor shall find that any such declarant is qualified under either subdivision (1) or (2) of this section, he shall then issue such declarant a commission as supernumerary sheriff.”

(Emphasis added.)

Relying heavily on Tucker v. Watkins, 737 So.2d 443, 445 (Ala.l999)(holding that, “[o]nee the appointment was made by the Governor, the Governor had no power to undo it”), Norris argues that Governor Riley was without power to rescind Norris’s appointment to the office of supernumerary sheriff because, he says, an appointment to office may be revoked only before the appointment becomes final and complete. Norris’s reliance on Tucker is misplaced. In Tucker, the Governor appointed Donald Watkins and Robert Jones to the Board of Trustees of Alabama State University and thereafter purported to rescind the appointments. The appointments in Tucker were made pursuant to § 16-50-20(a), Ala.Code 1975, which provides, in part, that “[t]he trustees shall be appointed by the Governor, by and with the advice and consent of the Senate,” and that “[a]ll appointments shall be effective until adversely acted upon by the Senate.” Based on the language in that statute, this Court held that, “[o]nce the appointment was made by the Governor, the Governor had no power to undo it. That power resided only in the Senate.” 737 So.2d at 445. In the case at hand, § 36-22-60 specifically states that “[i]f the Governor shall find that any such declarant is qualified ..., he shall then issue such declarant a commission as supernumerary sheriff.” Governor Riley appointed Norris to the office of supernumerary sheriff based on Norris’s sworn declaration that he was qualified to hold that office. The statute in this case does not prohibit the Governor from rescinding an appointment upon discovering that the declarant was incorrect and was not initially qualified to be appointed. Accordingly, Governor Riley rightfully rescinded Norris’s appointment to the office of supernumerary sheriff.

In Hale v. State ex rel. Algee, 237 Ala. 191, 195-96, 186 So. 163, 167 (1939), this Court stated:

“Equally well settled is the rule that the appointing power, in making the appointment, must comply with all the formalities prescribed by the law which confers the power, in order that the appointment be valid....
“We are of the opinion, and so hold, that the respondent has not shown a valid title to the office, and that the court a quo committed no error in entering a judgment of ouster.”

Accordingly, because Norris failed to show that he was qualified to be appointed to the office of supernumerary sheriff pursuant to 36-22-60(2), the trial court did not err in holding that his appointment was void ab in initio. Hale, supra.

IV. Conclusion

Because the trial court correctly held that, as a matter of law, Norris did not meet the statutory requirements to be appointed a supernumerary sheriff, Norris was not entitled to the mandamus relief he requested. See Ex parte Lundy, 429 So.2d 998, 1000 (Ala.1983)(“Mandamus is an extraordinary writ and will not be granted unless there is a clear showing of error in the trial court.”). Accordingly, the trial court did not err in entering a summary judgment in favor of the Commission and in dismissing Norris’s petition for a writ of mandamus.

AFFIRMED.

MOORE, C.J., and STUART, PARKER, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MURDOCK, J., dissents.

MURDOCK, Justice

(dissenting).

Because I believe I am compelled to do so by the language of Ala.Code 1975, § 36-9-2,1 respectfully dissent.

Within the framework of that statute, I can see no difference between the term of office of sheriff served by Hubert M. Norris from 2003 to 2007 and those three terms of office of sheriff Norris served and completed between 1974 and 1986. None of these are terms of office of sheriff from which Norris was removed because of his conviction; nor are any of these terms of office to which Norris could ever be returned, regardless of whether he was pardoned. The legislature could, if it chose to do so, provide prospectively that no term of office that has been completed by a public official who is thereafter convicted of a felony shall count toward the service necessary to qualify for retirement or supernumerary status, as the case may be; however, I see no such language in Ala. Code 1975, § 36-9-2, as currently worded.

      . Section 36-22-60(2), Ala.Code 1975, permits a person who has 16 years of service credit as a law-enforcement officer, 12 of which have been as a sheriff, and who has reached the age of 55 years, to be appointed as a supernumerary sheriff.

      . Section 36-9-2, Ala.Code 1975, states:
      "When any person holding any office or place under the authority of this state is convicted by any court of the United States, of this state or of any other state of a felony, his office or place shall be vacated from the time of the conviction. If the judgment is reversed, new trial granted or judgment notwithstanding the verdict is rendered, he shall be restored to office; but if pardoned, he shall not be restored to office."

      (Emphasis added.)

      . Norris challenges only the failure to count the three terms of office of sheriff that he completed in their entirety between 1974 and 1986; he does not challenge the refusal to count the portion of his term of office beginning in 1986 that he completed before his conviction.