author: KING, Justice,

text:
    Richard L. CADE Individually and d/b/a the Ridges Plantation v. Kenny BEARD, Individually, and on Behalf of the Estate of Zachary Warren Beard and All Wrongful Death Beneficiaries and Mickie Beard. Trustmark National Bank as Trustee of the Estates of the Defendant Trusts of, Charles Lambert Huff, Ilanette Huff Byrd and Kathleen Huff Cowling v. Kenny Beard, Individually and On Behalf of the Estate of Zachary Warren Beard and All Wrongful Death Beneficiaries and Mickie Beard.
    Nos. 2012-IA-00935-SCT, 2012-IA-00936-SCT.
    Supreme Court of Mississippi.
    Jan. 9, 2014.

      Grover Clark Monroe, II, Eric Reynolds Price, Ridgeland, Roslyn Nichole Griffin, attorneys for appellant.
    Rebecca M. Langston, Shane F. Lang-ston, Jessica Elizabeth Murray, Jackson, attorneys for appellees.
    Before RANDOLPH, P.J., KING and COLEMAN, JJ.
   KING, Justice,

for the Court:

¶ 1. Zachary Beard, while hunting on Ridges Plantation, died of injuries he sustained in an all-terrain vehicle (ATV) accident. Zachary’s parents, Kenny and Mickie Beard, sued Richard Cade (doing business as Ridges Plantation) and Trust-mark Bank, trustee of the property (the Trust), alleging that the defendants failed to adopt policies and procedures regarding the operation of ATVs by unlicensed and unsupervised minors. Cade and the Trust filed motions for summary judgment, and the trial court denied both motions. Now, Cade and the Trust appeal and argue that (1) Zachary was a licensee, and (2) the parties had no duty to implement such policies and procedures.

¶ 2. We find that the trial court erred by denying the motions for summary judgment and thus, reverse the trial court’s judgment and remand for entry of judgment in favor of the appellants.

FACTS AND PROCEDURAL HISTORY

¶ 3. C.L. Huff, Cade’s grandfather, owned a tract of land known as Ridges Plantation. On May 16, 1997, Huff leased Ridges Plantation to Cade for twenty years and gave Cade exclusive hunting rights to the property and the ability to sublet the property for hunting. In exchange, Cade agreed to pay the yearly property taxes, approximately $12,000.

¶ 4. Huff died, and in 2001, Ridges Plantation passed to a trust owned by his daughters — Ilanette Huff Byrd and Kathleen Huff Cowling. Trustmark Bank manages the trust, which includes several properties. Specific to Ridges Plantation, Trustmark maintains documents pertaining to the real estate and monitors the lease, taxes due, and insurance. A Trust-mark representative testified that the property is inspected yearly .to ensure the property still exists; a forester also inspects for fallen timber and monitors the growth and cutting of timber.

¶ 5. Given his rights under the lease, Cade organized an informal hunting club which included several of his friends. No membership applications or agreements were executed. In 2008, each member paid $1,500 in dues. Cade used the dues collected to pay the property taxes and other hunting-club expenses.

¶ 6. Kenny Beard (Kenny) was a dues-paying member of the hunting club for more than ten years. As a general practice, members were allowed to bring their minor children to hunt for no additional fee. Kenny’s son Zachary hunted with him at Ridges Plantation. Members also were allowed to use and store their personal ATVs on the property. Neither Cade nor Ridges Plantation provided ATVs for members’ use. At all times, each member had exclusive control of his personal ATV. Kenny owned a modified, red Honda ATV with a 680-cc engine, and Zachary owned a yellow ATV with a 400-cc engine.

¶ 7. On January 26, 2008, Kenny gave Zachary permission to retrieve deer-hunting stands with other members of the hunting camp. Unbeknownst to Kenny, Zachary took the larger, red ATV on his excui-sion. At some point, Zachary separated from the group. The ATV rolled and landed on top of’Zachary, causing his death. No one witnessed the accident.

¶ 8. In his deposition, Kenny stated that he rarely allowed Zachary to use the red ATV because he did not want him to damage it. Kenny indicated that Zachary had been riding ATVs for seven years, and he considered Zachary to be an expert rider. Kenny also stated that Zachary was able to navigate difficult terrain, and he was familiar with Ridges Plantation’s terrain, having hunted there for years. Kenny guessed that Zachary, in an attempt to avoid small trees, had attempted to ride the steep slope of the spur or slid off the side of the spur. Kenny did not blame Zachary’s accident on the landscape. Kenny stated that the landscape was in its natural condition, and he did not think anything should have been done to change it. Instead, Kenny stated that Zachary’s accident would not have occurred if the hunting camp had rules in place regarding ATV use and supervision of minors.

¶ 9. In his deposition, Cade stated that a minor’s ATV use was left up to the parent. Although Cade did not witness Zachary’s accident, he opined that Zachary probably made a mistake while traversing the terrain. Cade denied that the area was inherently dangerous, but he acknowledged that the area, in its natural state, was hilly. Cade stated that, during the hunting club’s history, there had never been an ATV accident; thus, no need existed to implement rules concerning ATV use. Hunting-camp rules generally were discussed and implemented as needs arose.

¶ 10. On January 25, 2011, Kenny sued Cade and the Trust on a negligence theory, claiming the defendants failed to implement policies and procedures regarding the use of ATVs by unsupervised, unlicensed minors. In April 2012, Cade and the Trust filed separate motions for summary judgment, arguing that they did not breach any legal duties to Zachary. The trial court denied both motions and found that questions of fact existed regarding Zachary’s status, the defendants’ liability, and the amount of diligence exercised in performing the duties owed to Zachary. Aggrieved, Cade and the Trust filed separate motions for interlocutory appeal. The Court granted the parties’ motions and consolidated the cases for appellate review.

ANALYSIS

¶ 11. The Court reviews the grant or denial of summary judgment de novo. Double Quick, Inc. v. Moore, 73 So.3d 1162, 1165 (¶7) (Miss.2011). The evidence is viewed in the light most favorable to the nonmoving party. Id. The moving party bears the burden to show no genuine issue of material fact exists. Poppenheimer v. Estate of Coyle, 98 So.3d 1059, 1062 (¶ 8) (Miss.2012). To survive summary judgment, the opposing party may not rely on mere allegations but must set forth specific facts to show genuine issues for trial. Whiting v. Univ. of S. Miss., 62 So.3d 907, 914 (¶ 9) (Miss.2011). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

I. The Trust

¶ 12. The Trust argues that Zachary was a licensee, and it did not breach any duty owed to him. Conversely, Kenny argues that Zachary was an invitee and, thus, owed a higher duty. Kenny alleges that the Trust failed to ensure that Ridges Plantation operated under sufficient policies, procedures, rules, and regulations to prevent harm to Zachary. The Trust counters that Kenny’s argument is not supported by law, and no such duty exists.

A. Status

¶ 13. In premises-liability cases, the Court must determine the victim’s status, the duty owed by the defendant, and whether the defendant breached that duty. Double Quick, 73 So.3d at 1166 (¶¶ 11-12). Three categories exist — invitee, licensee, or trespasser. Id. at 1166 (¶ 12). For purposes of this case, we must decide only whether Zachary was an invitee or a licensee.

¶ 14. An invitee enters “the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage.” Corley v. Evans, 835 So.2d 30, 37 (¶ 21) (Miss.2003). A licensee, however, enters “the property of another for his own convenience, pleasure, or benefit pursuant to the license or implied permission of the owner.” Id. When circumstances surrounding the victim’s purpose on the property are in dispute, status will be a fact question for a jury to decide. Little by Little v. Bell, 719 So.2d 757, 760 (¶ 17) (Miss.1998). But where there are no factual disputes, status is a question of law for the trial court’s determination. Id.

¶ 15. Kenny claims Zachary was the Trust’s invitee. According to Kenny, the lease allowed the Trust to repossess the property if Cade violated terms of the lease agreement. Under the lease, Cade was required to “govern himself and any subleases or assignees according to the game laws of the State of Mississippi and ordinary hunting practices.” And Kenny claims that the Trust was required to ensure Cade abided by these rules. Kenny asserts that Cade, by failing to implement rules regarding ATV use by minors, violated the lease. Also, because the Trust knew that Cade was operating a hunting camp on the property, Kenny contends the Trust also was responsible for Cade’s breach.

¶ 16. The Trust argues that Kenny’s position is not supported by law. Under premises-liability law, the Trust claims that Zachary was a licensee, not an invitee. First, the Trust states that it was not involved in the promotion, development, or operation of the hunting club. Second, although Cade used hunting-club proceeds to pay the property taxes, the Trust states that it did not receive money from Cade’s operation of the facility, and Cade was responsible for paying property taxes regardless of income he derived from the hunting club. Thus, it claims Zachary was not an invitee but a licensee-on the premises for his own pleasure and benefit.

¶ 17. This case is similar to Corley. In Corley, Stacey Evans (Stacey) hosted a crawfish boil on property she owned jointly with her father, James Evans (James). Corley, 835 So.2d at 32 (¶ 4). The victim, Scott Corley, paid an entry fee to attend. Id. at 32 (¶ 5). During the event, Corley was shot accidentally by a friend. Id. at 33 (¶¶ 7-8). Corley sued Stacey and James for the injuries and damages he sustained from the shooting. Id. at 32 (¶ 2). The Court determined that Corley was Stacey’s invitee. Id. at 37 (¶ 22). Corley and Stacey enjoyed a mutual advantage. Id. She received money in exchange for Corley’s benefit to attend the crawfish boil. Id. But in regard to James, the Court held that Corley was a licensee, finding that “James derived no benefit from the crawfish boil and was not involved in its promotion or staging.” Id. at 39 (¶ 28).

¶ 18. The Court of Appeals reached the same conclusion in Howze v. Garner, 928 So.2d 900 (Miss.Ct.App.2005). In Howze, B.J. Garner allowed his daughter to host a pool party at his home. Id. at 901 (¶ 3). The daughter charged guests to attend the party. Id. During the party, a child drowned in the pool. Id. at 901 (¶ 4). The child’s parents sued Garner “for creating dangerous conditions on his premises and failing to warn of such dangerous conditions.” Id. at 902 (¶ 6). As to Garner, the Court of Appeals determined that the child was a licensee, stating that “Garner did not sponsor the party, did not attend, and did not receive any money from the party.” Id. at 903 (¶ 10).

¶ 19. Like James and Garner, the Trust neither promoted the hunting camp, operated the hunting camp, nor received any money from the hunting camp. We thus find that Zachary was a licensee.

B. Duty

¶20. Zachary was a licensee to the Trust. As a licensee, the Trust owed Zachary a duty to refrain from willfully or wantonly causing injury to him. Corley, 835 So.2d at 39 (¶ 28). “This Court has defined ‘willful and wanton’ as ‘knowingly and intentionally doing a thing or wrongful act.’ ” Vaughn ex rel. Vaughn v. Estate of Worrell, 828 So.2d 780, 788 (¶13) (Miss.2002). No evidence in the record suggests that the Trust did anything willful or wanton to injure Zachary. We thus find that the Trust did not breach its duty to Zachary.

¶ 21. “[T]he pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). Accordingly, we find that the trial court erred by denying the Trust’s motion for summary judgment. The trial court’s denial of summary judgment is reversed, and we remand for entry of judgment in favor of the Trust.

II. Cade

¶ 22. Cade also argues that Zachary was a licensee and that he did not breach any duty owed to Zachary. Conversely, Kenny argues that Zachary was an invitee and thus was owed a higher duty. Kenny alleges that Cade failed to ensure that Ridges Plantation operated under sufficient policies, procedures, rules, and regulations to prevent harm to Zachary. Alternatively, Cade argues that, even if Zachary were an invitee, he did not breach any duty owed to Zachary.

A. Status

¶ 28. As mentioned previously, the Court must decide only whether Zachary was an invitee or a licensee. An invitee enters “the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage.” Corley v. Evans, 835 So.2d 30, 37 (¶ 21) (Miss.2003). A licensee, however, enters “the property of another for his own convenience, pleasure, or benefit pursuant to the license or implied permission of the owner.” Id.

¶ 24. Because Kenny (a paying member of the hunting club) invited Zachary to hunt, Kenny claims Zachary was an invitee as to Cade. Kenny states that his hunting-club membership encompassed him (the hunter) and his children less than eighteen years old. Kenny asserts that an invitee’s minor child, who accompanies the invitee on the premises for a legitimate business purpose, also is entitled to invitee status. Kenny argues further that Cade had created rules for minors to follow (e.g., how many bucks a child could claim each year); thus, Cade should have enacted rules regarding ATV use and supervision of minors. Because Cade failed to implement such rules, Kenny claims that Cade breached the duty owed to Zachary. Kenny also states that he has expert testimony to prove that: (1) rules regarding ATV use and minors’ supervision should have been in place, and (2) dangerous terrain should have been marked, and visitors should have been warned of any known dangers.

¶ 25. Because Kenny owned the ATV and allowed his son to ride, Cade argues that Kenny was responsible for supervising Zachary’s ATV use. Cade neither accepted custody or responsibility for Zachary, nor was he obligated to regulate ATV use on the property. In addition, Cade claims that Zachary was a licensee. Alternatively, if the Court finds that Zachary was an invitee, Cade argues he did not breach any duty owed to an invitee.

¶ 26. The law is clear; Zachary was an invitee of Cade and Ridges Plantation. In Gulf Refining Company v. Moody, a child accompanied her father to a gas station. Gulf Refining Co. v. Moody, 172 Miss. 377, 160 So. 559, 560 (Miss.1935). While there, a lamp globe fell on her head, causing severe injuries. Id. The Court held that the minor, who accompanied her father to the gas station for a legitimate business purpose, was entitled to invitee status. Id. at 562. In a subsequent case, the Court stated that “[ojrdinarily, a child who accompanies a parent or other adult customer onto business premises to conduct business is an invitee.” Hoffman v. Planters Gin Co., 358 So.2d 1008, 1011 (Miss.1978) (citing Gulf Refining, 160 So. at 562).

¶ 27. Kenny was an invitee as to Ridges Plantation. Cade gave Kenny an express invitation to enter the premises for their mutual advantage. Cade collected a fee, and Kenny was allowed to hunt on the land. Although Kenny did not pay a separate fee for Zachary to hunt, Kenny’s hunting-club membership allowed him to bring Zachary, his minor child, to hunt at no additional charge. Thus, to the extent that Kenny was entitled to invitee status, Zachary was entitled to invitee status as well. These facts were not in dispute; thus, the trial court erred by finding Zachary’s status was a question for the jury.

B. Duty

¶ 28. Zachary was an invitee as to Ridges Plantation. “[A] property owner is not the insurer of an invitee’s safety.” Double Quick, 73 So.3d at 1166 (¶ 13). But Cade, as the lessee, owed Zachary, the invitee, “a duty ... to keep the premises reasonably safe and, when not reasonably safe, to warn only of hidden dangers not in plain and open view.” Id. As an invitee, Zachary also had a duty: “The invitee is still required to use in the interest of his own safety that degree of care and prudence which a person of ordinary intelligence would exercise under the same or similar circumstance.” Vu v. Clayton, 765 So.2d 1253, 1255 (¶ 7) (Miss.2000) (quoting Fulton v. Robinson Indus., Inc., 664 So.2d 170, 175 (Miss.1995)).

¶ 29. Ridges Plantation was used for hunting. In its natural state, Ridges Plantation consisted of many hills and ridges. Kenny stated that Zachary was an expert ATV rider, he was very familiar with Ridges Plantation’s terrain, and he was skilled enough to navigate difficult terrain. The site of the accident, hunting stand twenty-two, was a permanent stand that had been there for two years. Kenny stated that Zachary had hunted there at least a dozen times that hunting season. When asked whether anything should have been done to the property to make it safer, Kenny said no. Instead, Kenny blamed Zachary’s accident on the lack of hunting-camp rules regarding ATV use and supervision of minors.

¶ 30. Kenny argues that Cade’s response to interrogatory three was an admission that the property was dangerous. Cade answered:

While it appears Zachary Beard did something to cause the accident, at this time, I am not able to say whether Zachary was using the ATV in an unsafe manner. I will need to rely upon experts my attorney will hire to evaluate Zachary Beard’s actions. Without waiving said objection, Zachary was operating the subject ATV in a naturally wooded area, which by its nature is filled with uneven ground, debris, and other objects. At the time the accident occurred, it appears that Zachary was driving along the side of a very steep hill and the ATV rolled over on top of him. American Honda has made specific assertions related to the vehicle operation which I adopt as my own as well. It appears that Zachary Beard rode the vehicle into an area he should not have taken the ATV and he is responsible for that decision....

We disagree with Kenny’s assessment of the answer. No evidence exists that Cade failed to keep the premises reasonably safe or failed to warn Zachary of any hidden dangers. As evidenced by Kenny’s deposition testimony, Zachary was quite familiar with Ridges Plantation’s terrain, especially the terrain near stand twenty-two, and Zachary was a skilled ATV rider.

¶ 31. In regard to the lack of rules, Kenny has failed to provide any authority in support of his claim that Cade had a legal duty to implement rules regarding ATV use and supervision of minors. If a legal duty did exist, Kenny has failed to show how a lack of rules was the proximate cause of Zachary’s death. See Double Quick, 73 So.3d at 1166 (¶ 15). Accordingly, we find that Cade did not breach any duty owed to an invitee.

¶ 32. “[T]he pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). Thus, we find that the trial court erred by denying Cade’s motion for summary judgment. The trial court’s judgment is reversed, and we remand for entry of judgment in favor of Cade.

CONCLUSION

¶ 33. As to the Trust, Zachary was a licensee. The Trust owed Zachary a duty to refrain from willfully or wantonly causing injury to him. Neither the record nor Kenny’s allegations suggest that the Trust did anything willful or wanton to injure Zachary. Because no genuine issue of material fact exists, the trial court erred by denying the Trust’s motion for summary judgment.

¶ 34. As to Cade, Zachary was an invitee. Cade owed Zachary a duty to keep the premises reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that is not in plain and open view. The record does not show that Cade failed to keep the premises reasonably safe or failed to warn Zachary of any hidden dangers. Because no genuine issue of material fact exists, the trial court erred by denying Cade’s motion for summary judgment.

¶ 35. Accordingly, we reverse the trial court’s judgment and remand the case for entry of judgment in favor of the appellants.

¶ 36. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER AND COLEMAN, JJ., CONCUR. PIERCE, J., NOT PARTICIPATING.

      . Cade explained that the fees were designed around usage of camp facilities and food. Because minors did not consume much, he did not charge a fee for minors. In the event a minor killed a deer, it would be attributed to the main member’s (typically their father’s) harvest.

      . Deer stands were numbered at Ridges Plantation. Zachary's accident occurred near stand twenty-two. Kenny stated that stand twenty-two was their favorite stand. It was a permanent stand, which had been in its location for two years. According to Kenny, Zachary had hunted at stand twenty-two at least a dozen times that hunting season.

      . Kenny stated that all members were allowed to give input regarding hunting-camp rules. Kenny, however, admitted that he did not participate in camp meetings or get involved in discussions regarding rules. According to Kenny, he did not have much of an opinion on camp rules, and he went along with everyone else.

      . Cade’s deposition centered around his answer to an interrogatory in which Kenny claims Cade admitted the area near stand twenty-two was dangerous. The interrogatory and subsequent answer reads:

        INTERROGATORY NO. 3: If you contend that Zachary Warren Beard was using or operating the subject ATV in a manner for which it is not intended, designed, or recommended to be used at the time of the subject accident, please state in complete detail the way(s) in which you contend such use or operation by Zachary Warren Beard was not an intended use and/or a misuse of the subject ATV, how such use contributed to the accident or his injuries, and identify all persons with personal knowledge thereof.

        RESPONSE TO NO. 3: ... While it appears Zachary Beard did something to cause the accident, at this time, I am not able to say whether Zachary was using the ATV in an unsafe manner. I will need to rely upon experts my attorney will hire to evaluate Zachary Beard's actions. Without waiving said objection, Zachary was operating the subject ATV in a naturally wooded area, which by its nature is filled with uneven ground, debris, and other objects. At the time the accident occurred, it appears that Zachary was driving along the side of a very steep hill and the ATV rolled over on top of him. American Honda has made specific assertions related to the vehicle operation which I adopt as my own as well. It appears that Zachary Beard rode the vehicle into an area he should not have taken the ATV and he is responsible for that decision....
      Cade stated that it was his attorney, not he, who provided the answer. And Cade stated that the answer was not an admission that tire area was dangerous.

      . Kenny fails to identify what gaming laws or ordinary hunting practices Cade did not follow.

      . For this information, Kenny relies on the designation of experts he filed with the lower court. No expert filed a sworn affidavit in this case.

      . "Proximate cause is defined as the 'cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred.’ " Double Quick, 73 So.3d at 1166 (¶ 15) (quoting Delahoussaye v. Mary Mahoney’s, Inc., 783 So.2d 666, 671 (¶ 13) (Miss.2001)).


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    FFE TRANSPORTATION SERVICES, INC. and Liberty Mutual Insurance Company, Appellants v. Tim BROWN, Appellee.
    No. 2011-WC-01766-COA.
    Court of Appeals of Mississippi.
    May 21, 2013.
    Rehearing Denied Oct. 1, 2013.
    Certiorari Denied Jan. 16, 2014.
    John S. Gonzalez, Gulfport, Nathan L. Burrow, attorneys for appellants.

      James Kenneth Wetzel, Garner James Wetzel, Gulfport, attorneys for appellee.
   IRVING, J.,

for the Court:

¶ 1. FFE Transportation Services (FFE) and its insurance company, Liberty Mutual Insurance Company (Liberty Mutual), appeal the decision of the Mississippi Workers’ Compensation Commission (Commission), which affirmed the decision of the administrative judge (AJ), holding that the Commission had jurisdiction over Tim Brown’s workers’ compensation claim. FFE and Liberty Mutual raise one issue on appeal: whether Brown was regularly employed in the State of Mississippi to provide Mississippi with jurisdiction over his claim.

¶ 2. Finding that the Commission’s judgment was not a final decision on the merits, we dismiss this appeal due to lack of jurisdiction to address the merits of this case.

FACTS AND PROCEDURAL HISTORY

¶ 3. On January 25, 2010, Brown sustained an injury to his lower back while unloading cargo from a tractor-trailer rig in Metairie, Louisiana. At the time of the injury, Brown was employed as a commercial driver for FFE, an over-the-road shipping company based in Dallas, Texas. In that capacity, Brown was required to travel all over the country to pick up and deliver cargo. It was undisputed that Brown was a resident of Hancock County, Mississippi, and he was hired by FFE in the State of Texas.

¶ 4. On February 10, 2010, Brown filed a petition to controvert with the Commission. On February 26, 2010, FFE and Liberty Mutual, filed an answer, asserting that the Commission did not have jurisdiction to hear the claim because Brown’s injury had occurred in Louisiana, he was hired and employed in Texas, and he was not regularly employed in Mississippi.

¶ 5. On October 20, 2010, a hearing was held before the AJ. On December 21, 2010, the AJ entered an order finding that Brown was hired in Texas, but that the Commission had jurisdiction to hear the matter because Brown was regularly employed within the State of Mississippi. FFE and Liberty Mutual appealed to the Commission, which affirmed the AJ’s decision. FFE and Liberty Mutual now appeal the decision of the Commission.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. Although not raised by either party, we must address whether this Court has jurisdiction to rule on the merits of this appeal. “[A]n appeal may not be taken unless the Commission’s order is final.” Superior Mfg. Grp., Inc. v. Crabtree, 62 So.3d 992, 995 (¶ 11) (Miss.Ct.App.2011) (citation omitted). If the order is not final, it is considered interlocutory. See Cunningham Enters., Inc. v. Vowell, 937 So.2d 32, 33-34 (¶¶ 2-3) (Miss.Ct.App.2006). The Mississippi Supreme Court has stated that “an order is interlocutory when the substantial rights of the parties involved in the action remain undetermined!)]” Bullock v. AIU Ins. Co., 995 So.2d 717, 723 (¶ 20) (Miss.2008) (citations and internal quotation marks omitted).

¶ 7. Here, the AJ merely determined that a Mississippi tribunal had authority to hear this case. The issues regarding compensation and the extent and nature of Brown’s disability have not been resolved. Therefore, the Commission’s order is not a final order, and we must dismiss this appeal for lack of jurisdiction.

¶ 8. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: IRVING, P.J.,

text:
    Deon S. BALLARD, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00455-COA.
    Court of Appeals of Mississippi.
    June 11, 2013.
    Rehearing Denied Oct. 15, 2013.

      Deon S. Ballard, appellant, pro se.
    Office of the Attorney General by R. Stewart Smith Jr., attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On October 6, 2008, Deon S. Ballard pleaded guilty to armed robbery. The Rankin County Circuit Court sentenced him to twenty-five years in the custody of the Mississippi Department of Corrections, with twelve years to serve, thirteen years suspended, and five years of supervised probation. On February 1, 2012, Ballard filed a motion to vacate his sentence, which the circuit court dismissed, treating it as a motion for post-conviction relief (PCR). Feeling aggrieved, Ballard appeals and argues that the circuit court erred in dismissing his motion and that he received ineffective assistance of counsel.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. During Ballard’s sentencing hearing for the armed-robbery charge on November 17, 2008, he tried to withdraw his guilty plea because his trial counsel did not communicate a favorable plea offer from the State to him before the offer expired. The circuit court refused to allow Ballard to withdraw his plea and sentenced him to twenty-five years in prison. On December 8, 2008, Ballard filed his first motion with the circuit court challenging his sentence. He alleged that “he was entitled to an evidentiary hearing on certain rights [that] he was ignorant of during his guilty[-]plea hearing, that his counsel was ineffective in violation of his [Sixth] Amendment [r]ight, that his counsel had a conflict of interest[,] and that his sentence was unfair.” The circuit court denied Ballard’s motion. Ballard filed his second motion on May 18, 2009, alleging that his counsel was ineffective and had a conflict of interest. The circuit court denied this second motion as well.

¶ 4. On February 1, 2012, Ballard filed a motion requesting that his sentence be vacated. He alleged that he had received ineffective assistance of counsel. The circuit court treated Ballard’s motion as a PCR motion and determined that the motion was time-barred and barred as a successive writ. Additionally, the court held that Ballard did not receive ineffective assistance of counsel. It is from this order that Ballard appeals.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 6. Appellate courts review the dismissal of PCR motion for abuse of discretion. Burrough v. State, 9 So.3d 368, 371 (¶ 6) (Miss.2009). A circuit court may-dismiss a PCR motion “[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).

I. Procedural Bars

a. Time-Bar

¶ 7. Mississippi Code Annotated section 99-39-5(2) (Supp.2012) states that PCR motions must be filed within three years after the entry of judgment. The circuit court sentenced Ballard on November 17, 2008. Thus, the period allowed for Ballard to file his PCR motion expired on November 17, 2011. Ballard filed this motion to vacate his sentence on February 1, 2012—nearly three months after the limitations period had expired.

¶ 8. Although Ballard did not allege in his motion to vacate that an intervening decision exempted his PCR motion from procedural bars, he, nevertheless, maintains on appeal that his PCR motion is exempted from the three-year limitations period because of an intervening decision from the United States Supreme Court. In Missouri v. Frye, -U.S.-,-, 132 S.Ct. 1399, 1408, 182 L.Ed.2d 379 (2012), the Supreme Court held that defense counsel has a duty to communicate formal plea offers to the defendant before the offers expire.

¶ 9. However, Ballard’s case is distinct from Frye. In Frye, the defendant was charged with driving with a revoked license after having been convicted of that same offense on three prior occasions. Id. at 1404. The prosecutor sent a letter to the defendant’s attorney offering the defendant a choice of two plea bargains. Id. The letter noted that the offers would expire in six weeks. Id. The defendant’s attorney failed to communicate the offers to the defendant before they expired. Id.

¶ 10. After a discussion regarding the standard that it espoused in Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court held that “as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Frye, 132 S.Ct. at 1408. Therefore, because the defendant’s attorney failed to communicate to him a formal plea offer from the prosecution, the defendant’s attorney had rendered deficient performance. Id. at 1409.

¶ 11. Here, unlike Frye, there is no evidence that the State made a formal plea offer to Ballard that his attorney did not communicate to him. Hence, there is no evidence that Ballard’s counsel’s performance was deficient, and in the absence of any evidence to the contrary, we presume that Ballard’s counsel’s conduct was adequate. Burns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001). Accordingly, the circuit court did not err in dismissing Ballard’s PCR motion as time-barred.

b. Successive-Writ Bar

¶ 12. Mississippi Code Annotated section 99-39-23(6) (Supp.2012) prohibits successive PCR motions. According to the circuit court’s order, Ballard filed his first PCR motion on May 18, 2009. Therefore, Ballard’s motion to vacate his conviction and sentence is barred as a successive writ because it is his second PCR motion. Accordingly, the circuit court did not err in dismissing Ballard’s PCR motion as a successive writ.

II. Ineffective Assistance of Counsel

¶ 13. Notwithstanding the procedural bars, Ballard contends that he received ineffective assistance of counsel. However, Ballard has failed to designate a transcript or other supporting documents to serve as a factual foundation for his appeal. As the appellant, it is Ballard’s responsibility to provide this Court with a record sufficient to review his asserted issues. See Means v. State, 43 So.3d 438, 446 (¶ 28) (Miss.2010). Although Ballard attached an uncertified copy of the transcripts from his plea and sentencing hearings to his brief, simply attaching copies of the transcripts does not properly place a record of the previous proceedings before this Court. See Henderson v. State, 783 So.2d 769, 771 (¶4) (Miss.Ct.App.2000). Accordingly, without a proper record, we cannot hold the circuit court in error on this issue.

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

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

      . Although Ballard styled his motion as one to vacate his sentence, the circuit court properly treated the motion as a PCR motion. The Mississippi Supreme Court has held that motions that are "cognizable under the [Uniform Post-Conviction Relief Act] UPCCRA will be treated as a motion for post-conviction relief that is subject to the procedural rules promulgated therein, regardless of how the plaintiff has denominated or characterized the pleading.” Knox v. State, 75 So.3d 1030, 1035 (¶ 12) (Miss.2011) (citations omitted). Therefore, even though Ballard presented his motion as one to vacate his sentence, the motion is clearly cognizable under the UPCCRA, and the circuit court correctly treated the motion as a PCR motion.


author: MAXWELL, J.,

text:
    Meika DeSean BRITTON a/k/a M. DeSean Britton a/k/a Meika D. Britton a/k/a Meike Britton a/k/a Meika Britton, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00308-COA.
    Court of Appeals of Mississippi.
    June 11, 2013.
    Rehearing Denied Oct. 15, 2013.
    Certiorari Denied Jan. 16, 2014.

      Meika DeSean Britton, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, C.J, CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Meika DeSean Britton appeals the dismissal of his motion for post-conviction relief, in which he sought to set aside his Alford plea to one count of child solicitation. Because we find that a sufficient factual basis supports his voluntary plea and that his attorney was not ineffective in representing him, we affirm.

Background

¶ 2. A DeSoto County grand jury charged Britton in July 2009 with one count of child exploitation. The indictment alleged that Britton had solicited a thirteen-year-old boy to depict sexual acts for the viewing of another person over a computer network in violation of Mississippi Code Annotated section 97-5-33(7) (Supp.2012). Maintaining his innocence but conceding the State had sufficient evidence to convict him, Britton entered an Alford plea to the charge. See North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). At the conclusion of the plea colloquy, the trial court accepted Britton’s plea and continued the case for sentencing.

¶ 3. But before sentencing, Britton tried to back out of the plea. He filed a pro se letter alleging, among other things, that his plea was involuntary and that he had received ineffective assistance of counsel. The trial court treated Britton’s letter as a motion to withdraw his guilty plea and held a hearing on the request. Britton and his defense counsel both testified at the hearing. The judge considered their testimony and found Britton had voluntarily and intelligently entered his plea. Thus, he denied the withdrawal request. Based on the State’s sentencing recommendation, the judge sentenced Britton to five years’ imprisonment, followed by ten years’ post-release supervision.

¶ 4. On December 19, 2011, Britton filed a PCR motion. He alleged: (1) there was an insufficient factual basis supporting his guilty plea, (2) his guilty plea was involuntary, (3) his indictment was substantively defective, and (4) his counsel was ineffective. By order dated February 16, 2011, the court dismissed Britton’s motion without an evidentiary hearing. Britton then filed a second PCR motion within ten days of the court’s ruling. The court treated this second PCR motion as one to alter or amend the judgment under Rule 59 of the Mississippi Rules of Civil Procedure. Once again, the court dismissed Britton’s motion without a hearing.

Discussion

¶ 5. In considering the dismissal of a PCR motion, we review the trial court’s findings of fact for clear error. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). When reviewing issues of law, our standard is de novo. Id. “A circuit court may summarily dismiss a PCR motion ‘if 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.’ ” Ivory v. State, 999 So.2d 420, 424 (¶ 9) (Miss.Ct.App.2008) (quoting Miss.Code Ann. § 99-39-11(2) (Rev.2007)). If the petitioner fails “to demonstrate a claim procedurally alive substantially showing denial of a state or federal right,” we will affirm the trial court’s dismissal. Id. (quoting Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999)) (internal quotations omitted).

I. Factual Basis for Guilty Plea

¶ 6. Britton first challenges the validity of his Alford plea, claiming there was an insufficient factual basis for the judge to accept his plea. Though an admission of guilt is not essential for a valid guilty plea, there must be a factual basis for the plea. Reynolds v. State, 521 So.2d 914, 916 (Miss.1988); URCCC 8.04(A)(3). A court may accept a guilty plea “despite the defendant’s protestations of innocence where there exists substantial evidence of the defendant’s guilt.” Reynolds, 521 So.2d at 916 (citing Alford, 400 U.S. at 38, 91 S.Ct. 160). In deciding the sufficiency of a factual basis, “we are allowed to review the record as a whole.” Boddie v. State, 875 So.2d 180, 183 (¶8) (Miss.2004) (citing Gaskin v. State, 618 So.2d 103, 106 (Miss.1993)). Upon review, we find the State provided a sufficient factual basis.

¶ 7. At Britton’s change-of-plea hearing, the State read Britton’s indictment. It then detailed the evidence it would offer to show Britton had solicited a child to make a “masturbation video.” The proffered proof included a forensic computer examiner’s testimony about messages sent by Britton over a computer network soliciting the minor to depict sexual acts for another viewer. The State also described Britton’s videotaped confession during which he admitted soliciting a minor on another person’s behalf. Britton did not challenge the State’s proffered factual basis. Rather, he acknowledged his satisfaction that the State could prove, beyond a reasonable doubt, he was guilty of child solicitation.

¶8. From these facts, we find a more than ample factual basis for Britton’s Alford plea.

II. Voluntariness of Guilty Plea

¶ 9. Britton next argues he should have been permitted to withdraw his Alford plea because he had not been fully informed of the elements of child solicitation. He also takes issue with the erroneous maximum punishment listed in his plea petition.

¶ 10. “[T]he decision of whether to allow a defendant to withdraw a valid guilty plea ... lies within the discretion of the trial court.” Burrough v. State, 9 So.3d 368, 372-73 (¶ 11) (Miss.2009) (citing URCCC 8.04(A)(5)). “A plea of guilty is binding only if it is entered voluntarily and intelligently.” Brooks v. State, 89 So.3d 626, 629 (¶ 14) (Miss.Ct.App.2011) (citing Myers v. State, 583 So.2d 174, 177 (Miss.1991)). For a plea to be voluntary and intelligent, the defendant must be informed of the charges against him. Kelley v. State, 913 So.2d 379, 382 (¶ 5) (Miss.Ct.App.2005). He or she must also understand “the maximum and minimum penalties provided by law.” URCCC 8.04(A)(4)(b).

¶ 11. The burden remains with the defendant to prove the invalidity of a guilty plea by a preponderance of the evidence. Williams v. State, 31 So.3d 69, 74 (¶ 13) (Miss.Ct.App.2010) (citing Terry v. State, 839 So.2d 543, 545 (¶7) (Miss.Ct.App.2002)).

A. Elements of the Offense

¶ 12. Britton was charged with child solicitation under section 97-5-33(7). This particular subsection required the State to prove Britton did “knowingly entice, induce, persuade, seduce, solicit, advise, coerce or order a child to produce any visual depiction of adult sexual conduct or any sexually explicit conduct” by any means, including a computer. Miss.Code Ann. § 97-5-33(7).

¶ 13. While Britton acknowledged in his plea petition that his attorney “advised him of the elements” of the charged offense, the trial judge neither recited the elements of child solicitation nor asked Britton’s attorney if he had explained the charge to him. However, during the plea colloquy, the prosecutor read the charge aloud in Britton’s presence, which included the required elements. Specifically, the prosecutor proffered:

The [S]tate is prepared to prove by credible and admissible evidence beyond a reasonable doubt that this defendant between the dates of September 23, 2008, and January 5, 2009, did willfully, unlawfully, feloniously, purposely, knowingly entice, induce, persuade, seduce, solicit, advise, coerce, or order [a minor] to produce any visual depiction of adult sexual contact or any sexually explicit conduct.

¶ 14. We have previously addressed a similar challenge to the voluntariness of a defendant’s guilty plea, where the trial court neither advised the defendant of the elements of the crimes nor asked his defense counsel whether the elements had been explained to him. Williams, 31 So.3d at 79 (¶ 28). In Williams, the prosecutor, rather than the judge or defense counsel, made an on-the-record statement reiterating the charging language in the indictment. Id. at (¶ 29). In denying a claim similar to Britton’s, we reasoned that “a prosecutor’s on-the-record statement properly identifying the elements of the crime should carry no less weight than an assurance to the court by either the defendant or defense counsel that counsel did so at some previous point off the record.” Id. at (¶ 28). Because the State’s proffer in Williams, like Britton’s case, included all of the required elements of the charged offense, we found “no constitutional infirmity with the elements of the crime ... being explained to the defendant by the prosecutor rather than the judge at a plea hearing.” Id.

¶ 15. As we did in Williams, we find the prosecutor’s on-the-record statement, made in front of Britton and his attorney during Britton’s plea hearing, which closely tracked the language of section 97-5-33(7), sufficiently informed Brit-ton of the required elements of child solicitation.

B. Consequences of Plea

¶ 16. Britton also claims he was not fully advised of the consequences of his plea. He attributes this to the plea petition listing the maximum sentence for child solicitation as twenty years, instead of the correct maximum, forty years. See Miss.Code Ann. § 97-5-35 (Rev.2006) (“Any person who violates any provision of Section 97-5-33 shall be guilty of a felony and upon conviction ... shall be imprisoned for not less than five (5) years nor more than forty (40) years.”).

¶ 17. While Britton’s plea petition misstated the maximum punishment, the trial court fully rectified this error. During the plea hearing, Britton’s attorney notified the trial judge that the incorrect maximum punishment was listed in Brit-ton’s plea petition. At this point, the judge advised Britton that, if he pled guilty to child solicitation, he could be sentenced to not less than five but not more than forty years. The judge asked Britton if he needed to confer with his attorney based on the revelation of the heightened maximum sentence. But Britton declined the opportunity to break and meet with counsel. Instead, he explained that he fully understood the forty-year maximum punishment. Britton then initialed the corrected maximum sentence on his plea petition and continued with his Alford plea. Thus, the record reflects Britton fully understood the consequences of his guilty plea.

III. Defective Indictment

¶ 18. Britton next contends his indictment was defective because it misspelled his first name as “Meike” rather than “Meika.” As a general rule, “a guilty plea waives all defects in an indictment with two exceptions — (1) failure to charge an essential element of a criminal offense and (2) subject[-]matter jurisdiction.” Black v. State, 806 So.2d 1162, 1164 (¶ 5) (Miss.Ct.App.2002). And we find neither of these types of material defects are present. Further, a mere clerical error in an indictment may be amended without submission to a grand jury, as it was here, by the trial judge. See URCCC 7.09. Britton did not object to remedying this clerical error, and he has never claimed he is not the person named in the charging instrument. So we find this claim lacks merit.

IV. Ineffective Assistance of Counsel

¶ 19. Lastly, Britton argues his attorney’s representation was constitutionally deficient. To prevail on an ineffective-assistance-of-counsel claim, Britton must show: (1) his counsel’s performance was deficient, and (2) the deficiency was prejudicial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Both prongs must be pleaded with specific detail.” Clark v. State, 54 So.3d 304, 308 (¶ 13) (Miss.Ct.App.2011) (citing Coleman v. State, 749 So.2d 1003, 1012 (¶ 26) (Miss.1999)). There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance[.]” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. For prejudice to exist, there must be a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. Because Britton challenges a guilty plea based on ineffective assistance of counsel, he must show “counsel’s errors proximately resulted in the guilty plea and, but for counsel’s error, he would not have entered the guilty plea.” Deloach v. State, 937 So.2d 1010, 1011 (¶ 5) (Miss.Ct.App.2006).

¶ 20. While Britton raises numerous alleged deficiencies on his attorney’s part, his primary complaint is that his attorney misrepresented the nature of the plea agreement. Britton insists his attorney told him that, in exchange for his Alford plea, the State would allow him to remain out on bond pending sentencing and that he would not receive any post-supervision release. We find no viable record evidence to support Britton’s claims.

¶21. Under Mississippi Code Annotated section 99-39-9(1)(e) (Rev.2007), Brit-ton was required to provide the trial court with the affidavits of supporting witnesses who would testify and copies of documents or records he intended to use to prove his claim. The Mississippi Supreme Court has held that when a movant “offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

¶22. Though Britton submitted statements and affidavits from witnesses with his PCR motion, only his affidavit bolsters his claim that his attorney was ineffective. But the plea-hearing transcript belies his attack on his attorney and the voluntariness of his Alford plea. The transcript shows the trial judge thoroughly questioned Britton about his understanding of the proceedings and satisfaction with his attorney. And Britton maintained he had fully discussed his case with his attorney and was satisfied with his lawyer’s advice. Absent supporting affidavits from witnesses other than Britton or record evidence that contradicts his sworn testimony, we cannot find Britton’s attorney was ineffective.

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

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

      . An Alford plea is a guilty plea in which a defendant does not acknowledge guilt, but concedes the government’s evidence is sufficient to prove his guilt beyond a reasonable doubt. See North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).


text:
    James TUCKER, Appellant v. BELLSOUTH TELECOMMUNICATIONS, INC., Appellee. James Tucker, Appellant v. Bellsouth Telecommunications, Inc., Appellee.
    Nos. 2012-WC-00093-COA, 2012-WC-00580-COA.
    Court of Appeals of Mississippi.
    June 18, 2013.
    Rehearing Denied Oct. 1, 2013.
    Certiorari Denied Jan. 16, 2014.

      Rogen K. Chhabra, Darryl Moses Gibbs, Jackson, attorneys for appellant.
    Thomas Lynn Carpenter Jr., Robert Elliott Briggs III, attorneys for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. James Tucker filed two claims for benefits with the Mississippi Workers’ Compensation Commission (Commission) for injuries that he suffered in two separate accidents while working for BellSouth Telecommunications Inc. (BellSouth). The Commission issued two separate orders, addressing each accident. Feeling aggrieved, Tucker appeals and argues that the Commission erred in determining that he suffered no loss of wage-earning capacity after his first injury, in limiting the compensation period to 450 weeks for the two separate injuries that occurred as a result of his second injury, and in consolidating his cases.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Tucker started working for Bell-south in 1973. On February 14, 2006, Tucker, a cable-repair technician, was involved in a traffic accident while en route to a job assignment from BellSouth. The parties agreed that Tucker’s neck was injured in the accident. He underwent a cervical-spine fusion for his neck injury and was off work for several months after-wards. Tucker returned to work with “light-duty” restrictions from his treating surgeon, who also assigned Tucker a twenty-five percent permanent medical impairment rating. Tucker testified that when he returned to work, he could not perform half of the duties that he could perform before his injury, and of the half that he could still perform, he had trouble performing seventy-five percent of those duties. He could not carry his ladder, climb poles, or work aloft due to the reaching. Tucker also noted that his supervisor accommodated his surgeon’s restrictions and that his coworkers assisted him with his duties. On August 3, 2007, Tucker filed a petition to controvert with the Commission seeking compensation for his neck injury.

¶ 4. On August 27, 2007, Tucker was in his work truck en route to a job assignment from BellSouth when another vehicle struck him from behind. The parties agreed that Tucker injured his right shoulder, back, and re-injured his neck in the accident. On March 17, 2008, Tucker filed a second petition to controvert as a result of the second accident. He had surgery to repair the rotator cuff in his right shoulder and underwent therapy for his back and neck injuries. Even though his surgeon permanently restricted him from climbing and lifting greater than twenty-five pounds with his right arm, he returned to work. On April 16, 2010, BellSouth notified Tucker that the most recent restrictions could not be accommodated and terminated his employment with the company.

¶ 5. The Administrative Judge (AJ) held separate hearings on the merits for each case. The AJ consolidated the cases and issued one order, which held that Tucker sustained, in total, a seventy-five percent loss of wage-earning capacity due to the 2006 work-related neck injury, the 2007 aggravation of his neck injury, and his back injury. The AJ also found that Tucker had sustained a one hundred percent industrial loss of use to his right shoulder. The order declared that the total recovery of compensation was limited by Mississippi Code Annotated section 71-3-13(2) (Rev. 2011).

¶ 6. BellSouth appealed the AJ’s decision to the Commission, alleging that the AJ’s decision was “contrary to the great and overwhelming weight of the evidence, ... contrary to the credible evidence, and ... contrary to the law.” The Commission issued two separate orders, at Tucker’s request, addressing the 2006 and 2007 injuries. In the order addressing the 2006 injury, the Commission explained that the parties stipulated that Tucker’s pre-injury average weekly wage (AWW) was $1,046 and that his post-injury AWW prior to the August 2007 accident was $2,137.19. Accordingly, the Commission concluded that Tucker suffered no loss of wage-earning capacity as a result of the 2006 injury and was not entitled to receive permanent disability benefits for that injury.

¶ 7. The order addressing the 2007 injuries explained that Tucker would be awarded permanent-partial disability benefits of $387.68 per week for his neck and back injuries — together considered a body-as-a-whole injury — that would be paid for 450 weeks beginning April 20, 2009. Additionally, Tucker would receive permanent-partial disability benefits of $387.68 per week for his right shoulder injury for 200 weeks beginning February 8, 2010. The Commission’s order explained that in all other respects, the AJ’s order as it related to the 2007 injuries, which included that the total recovery of compensation is limited by section 71-3-13(2), was affirmed.

¶ 8. Tucker requested a lump-sum payment of his disability awards. The Commission granted Tucker’s request, but limited the payment to what Tucker would receive over a compensation period of 450 weeks, citing section 71-3-13(2). The Commission determined that the award owed for the body-as-a-whole injury was $59,375.11, after discounting what Bell-south had already paid. The Commission also determined that the right-shoulder award would yield a total of $81,987.64. Tucker only received the lump-sum payment for the body-as-a-whole injury, under the Commission’s reasoning that paying the additional award for his right shoulder would exceed the 450-week statutory limit.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 10. Appellate courts will only reverse a decision from the Commission if the “Commission[’s] order is not based on substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law.” Weatherspoon v. Croft Metals Inc., 853 So.2d 776, 778 (¶ 6) (Miss.2003) (citing Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.1992)).

I. Loss of Wage-Earning Capacity after the 2006 Accident

¶ 11. The Commission found that Tucker had not demonstrated a- loss of wage-earning capacity after the 2006 accident. Tucker asserts that, even though he continued to work at BellSouth after his accident at the same pay -rate, he offered substantial evidence to rebut the presumption that he suffered no loss of wage-earning capacity. Specifically, Tucker claims that BellSouth paid him the same wages after his injury out of sympathy and that his testimony of needing assistance from coworkers and his physical restrictions of pulling, stooping, and working overhead were indicative of his loss of wage-earning capacity.

¶ 12. “In its determination of the claimant’s loss of wage-earning capacity, the Commission should take into consideration all of the factual elements presented to it in order to arrive at its conclusion regarding the extent of the claimant’s disability.” Mosby v. Farm Fresh Catfish Co., 19 So.3d 789, 794 (¶ 10) (Miss.Ct.App.2009) (quoting Airtran Inc. v. Byrd, 953 So.2d 296, 301 (¶ 11) (Miss.Ct.App.2007)) (internal quotation marks omitted). A rebuttable presumption that the claimant has suffered no loss of wage-earning capacity arises when the claimant’s post-injury wages are either equal to or exceed the claimant’s pre-injury wages. Id. The claimant can rebut the presumption by demonstrating that his post-injury earnings are an unreliable indicator of his post-injury wage-earning capacity because there has been an increase in general wage levels since the time of the accident, he has greater maturity or training, he worked longer hours after the accident, or his post-injury earnings are temporary and unpredictable. Id.

¶ 13. Tucker relies on Cooper Tire & Rubber Co. v. Harris, 837 So.2d 789 (Miss.Ct.App.2003), to support his claim that his need for assistance from his coworkers demonstrates that his post-injury earnings are unreliable. However, Tucker’s reliance on Cooper Tire is misplaced. We affirmed the Commission in Cooper Tire because the Commission not only considered the fact that the claimant received assistance from coworkers, but also considered that the claimant worked fewer hours after his injury, and that all employees in the same position received an increase in pay after the claimant’s injury, all of which were indicative of his loss of wage-earning capacity. Id. at 793 (¶ 13).

¶ 14. Tucker had the opportunity to rebut the presumption that he did not suffer a loss of wage-earning capacity. However, simply asserting that his post-injury wages were paid out of sympathy and that he needed assistance to perform his job duties is insufficient evidence to rebut the presumption. There was no evidence that there had been a general increase in pay after Tucker’s injury, that he had greater maturity or training after his injury, that he worked longer hours after his injury, or that his post-injury earnings were temporary and unpredictable. Accordingly, this issue is without merit.

II. Maximum Award for the 2007 Injuries

¶ 15. Tucker argues that the Commission erred in limiting the disability benefits from the 2007 accident to 450 weeks so as to not exceed the maximum recovery period mandated by section 71-3-13(2). More specifically, Tucker contends that the body-as-a-whole injury and the shoulder injury are two separate and distinct injuries that should be considered separately under the statute and have separate compensation periods that run consecutively. He asserts that, in addition to being compensated with a lump-sum payment of $59,375.11 for the body-as-a-whole injury, he should also receive the $81,987.64 lump-sum payment for the shoulder injury.

¶ 16. Section 71-3-13(2) states, in pertinent part, that:

[t]he total recovery of compensation ... arising from the injury to an employee or the death of an employee, or any combination of such injury or death, shall not exceed the multiple of four hundred fifty (450) weeks times sixty-six and two-thirds percent (66-2/3%) of the average weekly wage for the state.

It is a well-established rule “that a claimant may not pyramid benefits and receive in excess of the maximum weekly benefits provided by statute during any one period.” Walls v. Hodo Chevrolet Co. Inc., 302 So.2d 862, 867 (Miss.1974) (citations omitted).

¶ 17. Based on the Commission’s order addressing the 2007 accident, the award for the body-as-a-whole injury and the award for the shoulder injury would pyramid, as the 450-week award begins on April 20, 2009, and would still be running on February 8, 2010, when the 200-week award would begin to run. Even though the Commission granted Tucker’s request for a lump-sum award, receiving lump-sum payments does not avoid the problem of pyramiding because, according to Walls, the effect of a lump-sum payment is to compensate Tucker for the entire period of time during which he would otherwise have been entitled to weekly benefits for that injury. Id. at 868. Therefore, we find that the Commission’s order limiting the lump-sum payment to what Tucker would have received for 450 weeks is without error. This issue is without merit.

III. Consolidation of Cases

¶ 18. Tucker contends that the 2006 and 2007 cases should not have been consolidated because they involved separate injuries that occurred in separate years. The Mississippi Supreme Court has stated that “consolidation is in the sound discretion of the ... court and should be liberally construed.” U.S. Fidelity & Guar. Co. v. Estate of Francis, 825 So.2d 38, 46 (¶ 22) (Miss.2002). “[Cjonsolidated actions never lose their identity as separate actions.” Id. (citation omitted).

¶ 19. While it is true that a court should not consolidate cases if consolidation would prejudice the claimant in any way, there is no evidence that consolidating the cases has prejudiced Tucker. See M.R.C.P. 42 cmt. Tucker argues that the injuries that occurred in 2007 should not have a bearing on the outcome of the case involving the 2006 injury and that the 2007 injuries should not have been referenced when discussing the 2006 injury. We find that the 2007 injuries had no effect on the outcome of the case concerning the 2006 injury, as the result would have been the same without reference to the 2007 injuries. The Commission found that Tucker went back to work after the 2006 accident with the same wages, raising the presumption that he did not suffer a loss of wage-earning capacity, despite the help that he received from his coworkers. The reference to the 2007 injuries in the order addressing the 2006 injury only points out that Tucker’s AWW doubled between the date of the 2006 injury and the date of the 2007 injuries. The Commission did not abuse its discretion by consolidating Tucker’s cases. Accordingly, this issue is without merit.

¶ 20. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: ISHEE, J.,

text:
    John Edward McDONALD a/k/a John McDonald, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00023-COA.
    Court of Appeals of Mississippi.
    June 18, 2013.
    Rehearing Denied Oct. 15, 2013.
    Certiorari Denied Jan. 16, 2014.

      George T. Holmes, Jackson, Eleanor Johnson Peterson, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before ISHEE, P.J., CARLTON and FAIR, JJ.
   ISHEE, J.,

for the Court:

¶ 1. John Edward McDonald was indicted in the First Judicial District of Hinds County Circuit .Court for possession of more than one kilogram of marijuana with intent to distribute. McDonald was pulled over in the parking lot of his apartment complex based on an informant’s tip. He was then questioned, and he consented to a search of his vehicle. After a trial, McDonald was convicted and sentenced as a subsequent drug offender to sixty years in the custody of the Mississippi Department of Corrections (MDOC). McDonald now appeals arguing: (1) the statements elicited during the traffic stop should be suppressed, and his consent to search his vehicle was not voluntary; (2) his post-Miranda silence was improperly introduced at trial; (8) his pri- or drug offenses were improperly introduced at trial; and (4) the indictment was not properly amended to include his status as a subsequent drug offender. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 23, 2009, Hinds County Sheriffs Deputy Mick Brown and Jackson Police Officer Roy Dickerson conducted a routine traffic stop. During the stop, they discovered the driver was in possession of marijuana, and arrested the unnamed individual. Thereafter, the unnamed individual told the police officers that he knew where they could locate ten pounds of marijuana. According to the unnamed individual, the marijuana would be in a black bag in the trunk of a dark-colored rental car parked in the back of a car wash on Beasley Road in Jackson, Mississippi. He further stated a black male would be driving the vehicle. The officers then relayed the information to Mississippi Bureau of Narcotics (MBN) Agent Casey Dennis.

¶ 3. After receiving the information, Agent Dennis and his partner proceeded to the car wash on Beasley Road. When they arrived, they observed a dark-colored vehicle being driven by a black male exiting the car wash. They then saw a paper “U-Save Car Rental” tag on the back of the car. The agents followed the vehicle down Beasley Road and the vehicle pulled into an apartment complex. As the vehicle pulled into a parking space, the agents initiated a traffic stop based on an improperly displayed tag.

¶ 4. After parking the vehicle, McDonald exited the car, locked the doors, and handed the keys to a woman who had approached him. Agent Dennis then approached McDonald, asked for his driver’s license, and told him he had been stopped due to an improperly displayed tag. Agent Dennis asked if he could search McDonald’s vehicle. McDonald replied: “I know my rights, get a warrant.” Agent Dennis called dispatch to determine whether McDonald had any outstanding warrants. He also checked the vehicle’s vehicle identification number, and called for a K-9 unit.

¶ 5. Agent Dennis pulled McDonald to the side to discuss the informant’s tip. According to Agent Dennis, McDonald was not under arrest at this time and was not handcuffed or restrained from leaving in any way. Agent Dennis also stated that McDonald’s car was not blocked from leaving. Accordingly, McDonald was not given any Miranda warning. However, McDonald disputed this version of the events. He testified that he was, in fact, handcuffed and prevented from leaving. He further asserted that he asked for an attorney during the questioning; however, the questioning continued, and an attorney was not provided.

¶ 6. Agent Dennis asked McDonald about the allegations that had been made about him. McDonald admitted he was previously in possession of ten pounds of marijuana but that he had given it to his brother. He also admitted that he had a “smoke sack” in the car and was willing to provide information regarding forty pounds of marijuana in exchange for leniency. Agent Dennis reportedly told McDonald that if the amount of marijuana was less than an ounce, he would not be arrested. McDonald denied telling Agent Dennis any of this information.

¶ 7. Agent Dennis and McDonald walked over to McDonald’s vehicle. McDonald motioned to the woman holding the keys. The woman brought the keys to McDonald, and he then handed them to Agent Dennis. Agent Dennis opened the trunk and found a black gym bag. When they opened the bag, they discovered numerous ziplock bags containing marijuana, digital scales, and a box of ziplock bags. In addition to these items, Agent Dennis found two hotel receipts from June 14, 2009. McDonald was then arrested. When he was taken into custody, they discovered $2,818 on his person.

¶ 8. McDonald denied that the drugs were his. He claimed that the first time he saw the drugs was when Agent Dennis opened the trunk. While he acknowledged that the receipts found in the bag were his, he stated that he did not know how they got in the bag. McDonald further stated that the money found on his person was to pay the individual painting his car.

¶ 9. On November 3, 2009, McDonald was indicted by a Hinds County grand jury. He was charged as a subsequent drug offender for possession of marijuana in an amount of more than one kilogram with the intent to distribute. The indictment further charged that the offense occurred within 1,500 feet of a church building in violation of Mississippi Code Annotated section 41-29-142 (Rev.2009). After a trial on the matter, McDonald was convicted and sentenced as a subsequent drug offender to sixty years in the custody of the MDOC. McDonald now appeals.

DISCUSSION

I. Suppression of Evidence and Admissions

A. Unreasonable Detention

¶ 10. McDonald does not challenge the initial traffic stop. He acknowledges that stopping the vehicle for an improperly displayed tag was appropriate. However, McDonald contends that once the officer determined that the tag had been applied for and no other issues were present, the justification for the stop ended. Therefore, any further withholding constituted an unreasonable detention.

¶ 11. Routine traffic stops are noncustodial investigatory stops, and we treat them as a Terry stop. United States v. Brigham, 382 F.3d 500, 506 (5th Cir.2004) (citation omitted). When considering the legality of a Terry stop, “[appellate courts] first examine whether the officer’s action was justified at its inception, and then inquire whether the officer’s subsequent actions were reasonably related in scope to the circumstances that justified the stop.” Id. The “detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop, unless further reasonable suspicion, supported by articulable facts, emerges.” Id. at 507. Reasonable suspicion for an investigatory traffic stop “may be based on an officer’s personal observation or an informant’s tip if it bears an indicia of reliability.” Floyd v. City of Crystal Springs, 749 So.2d 110, 118 (¶ 30) (Miss.1999) (citation omitted).

¶ 12. Here, the justification for the teaffic stop was twofold. As McDonald admits, the officer was justified in stopping the car for an improperly displayed tag. However, the traffic stop was also appropriate based on the informant’s tip. The tip was sufficiently reliable to justify the traffic stop. The informant stated there would be a dark-colored rental vehicle being driven by a black male at a car wash on Beasley Road. The- officers then observed a dark-colored rental vehicle being driven by McDonald exiting a car wash on Beasley Road. There was sufficient corroboration between the informant’s tip and the officer’s own observations to justify the traffic stop based on the tip.

¶ 13. McDonald is correct that the justification for the stop based on the improperly displayed tag ended once the officer determined that the tag had been applied for and that no other issues were present. However, at that point, the purpose of the stop based on the informant’s tip had not been effectuated. Accordingly, we find there was no unreasonable detention. This issue is without merit.

B. Consent to Search

¶ 14. Next, McDonald argues the consent to search his vehicle was coerced and involuntary, thus making the evidence discovered during the search inadmissable as fruit of the poisonous tree. McDonald asserts that because the State did not prove that the officer gave him his driver’s license back before obtaining consent to search, the consent to search was invalid.

¶ 15. When the validity of the search is based on consent, “the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.” Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). McDonald cites United States v. Chavez-Villarreal, 3 F.3d 124, 128 (5th Cir.1993), as support for his proposition that the consent was not voluntary. In that case, the United States Court of Appeals for the Fifth Circuit found that the consent to search was coerced because the officer obtained consent while holding the defendant’s alien-registration card. Id.

¶ 16. At trial, there was no testimony that Agent Dennis kept McDonald’s driver’s license. Instead, there was simply a lack of testimony regarding whether the driver’s license was handed back. This is insufficient to find that McDonald’s consent was coerced. Furthermore, McDonald initially declined to permit the officers to search his vehicle, stating: “I know my rights, get a warrant.” He made this statement after he had handed Agent Dennis his driver’s license. Therefore, he was not coerced based on the officer’s alleged possession of his driver’s license. However, after speaking with Agent Dennis regarding the informant’s tip, McDonald attempted to gain favorable treatment by admitting to the presence of drugs in his vehicle. At this point, McDonald changed his mind, and permitted the search of his vehicle. Therefore, it is clear that McDonald voluntarily consented to the search of his vehicle, and no coercion was involved. This issue is without merit.

C. Admissions Made During the Traffic Stop

¶ 17. Finally, McDonald argues that he was in custody during the traffic stop; therefore, he should have been given a Miranda warning before any questioning commenced. Accordingly, he asserts that any admissions he made during the “interrogation” should have been excluded from trial.

¶ 18. Miranda warnings are required when “there has been such a restriction on a person’s freedom as to render him ‘in custody.’ ” Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). We consider the issue of whether a reasonable person would feel that he or she was in custody based on the totality of the circumstances. Hunt v. State, 687 So.2d 1154, 1160 (Miss.1996). The factors we consider are:

(a) the place of interrogation; (b) the time of interrogation; (c) the people present; (d) the amount of force or physical restraint used by the officers; (e) the length and form of the questions; (f) whether the defendant comes to the authorities voluntarily; and (g) what the defendant is told about the situation.

Id. Furthermore, “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

¶ 19. McDonald claims he was in custody due to the large number of police officers at the scene and that the police cars prevented him from leaving. Agent Dennis stated there was a clear path of egress. McDonald also cites the fact that Agent Dennis had him walk thirty to fifty feet away from his vehicle to talk as support for his claim that he was in custody. McDonald further asserts that he was handcuffed at the scene; however, Agent Dennis stated that McDonald was not handcuffed.

¶ 20. We find that McDonald was not in custody and, thus, no Miranda warning was required. Agent Dennis stated that there was a clear path of egress and that McDonald was not handcuffed. There was also no physical force or verbal intimidation used. McDonald voluntarily walked approximately thirty to fifty feet away to talk with Agent Dennis. He was free to refuse to do so. Furthermore, McDonald was pulled over in the parking lot of his apartment complex. He could have left and gone to his apartment at any time. We find, based on the totality of the circumstances, McDonald was not in custody during the questioning; therefore, no Miranda warning was required. This issue is without merit.

II. Post -Miranda Silence

¶ 21. McDonald argues that the testimony discussing his post-arrest, post-Miranda silence was improperly introduced at trial, thus violating his constitutional right to remain silent and constituting reversible error. The challenged testimony came during the State’s direct examination of Agent Dennis. The State asked Agent Dennis: “When [ (McDonald) ] signed the Miranda warning, did he sign the Miranda [-]rights waiver that was on the warning?” Agent Dennis replied: “No, sir, he did not sign his waiver.” McDonald objected, but his objection was overruled.

¶ 22. It is well-established law that “[i]t is never proper to comment on an accused’s post-Miranda silence, and normally it will be regarded by [appellate courts] as reversible error.” Gossett v. State, 660 So.2d 1285, 1291 (Miss.1995). However, an error may nonetheless be deemed harmless if the overwhelming weight of the evidence points to the defendant’s guilt. Id. “[E]ven errors involving a violation of an accused’s constitutional rights may be deemed harmless beyond a reasonable doubt where the weight of the evidence against the accused is overwhelming.” Emery v. State, 869 So.2d 405, 409 (¶ 22) (Miss.2004) (citing Riddley v. State, 777 So.2d 31, 35 (¶ 11) (Miss.2000)).

¶23. The above questioning is the only time McDonald’s post-Miranda silence was discussed. Furthermore, there was overwhelming weight of McDonald’s guilt. Prior to being in custody and therefore being Mirandized, McDonald admitted to having a “smoke sack” and to having three pounds of marijuana. The police found a black gym back containing marijuana, ziplock bags, and digital scales in the trunk of McDonald’s car. The black bag also contained two hotel receipts that McDonald admitted were his and, therefore, connected him to the black bag. Finally, McDonald had $2,818 in currency in his possession from which the jury could infer illegal activity. While we find the trial court erred by permitting the question posed by the State to Agent Dennis, we find the error was harmless. Because of the overwhelming amount of evidence against McDonald, there was no reversible error committed.

III. Introduction of Prior Drug Offenses

¶24. The State was allowed to introduce McDonald’s three drug convictions at trial, which included distribution of cocaine, possession of marijuana, and possession of cocaine. McDonald objected to the introduction of the convictions, but the trial court permitted their introduction. In allowing the convictions into evidence, the trial court stated:

This [c]ourt is going to find that under the particular nature of the charge which is pending against [McDonald], which is possession of a controlled substance with the intent to distribute the same, that the involvement of [McDonald] in the drug industry is relevant and pertinent to proof of the allegations set out in the indictment, that the admissibility of [McDonald’s] record would be more probative than prejudicial.

McDonald argues this violates Mississippi Rules of Evidence 403 and 404(b). He asserts there was sufficient evidence to establish intent without introducing the convictions; thus, the convictions were not more probative than prejudicial. The State argues the convictions were used to establish proof of his intent to distribute. The State further argues that the juiy was instructed that it could not use the evidence of McDonald’s convictions when determining whether he was guilty or not guilty of the instant charge.

¶ 25. Mississippi Rule of Evidence 403 states: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Mississippi Rule of Evidence 404(b) states: “Evidence of other crimes ... is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

¶ 26. “It is settled in Mississippi jurisprudence that under Mississippi Rule of Evidence 404(b) evidence of prior sales is admissible to show or prove intent to distribute.” Hosey v. State, 77 So.3d 507, 516 (¶ 34) (Miss.Ct.App.2011) (citation omitted). “Evidence of prior involvement in the drug trade is admissible to prove intent to distribute.” Holland v. State, 656 So.2d 1192, 1196 (Miss.1995) (citations omitted). “[Ejvidence of prior acts to show intent to distribute [is] admissible if it passe[s] the [Rule] 403 filter and [is] accompanied by an instruction limiting its use to show intent.” Holland, 656 So.2d at 1196.

¶ 27. McDonald relies heavily on Holland, 656 So.2d 1192, to contrast that case with the one at hand. He asserts that there is more evidence to establish intent in this ease than in Holland. He argues that, unlike in Holland, the evidence was not more probative than prejudicial. In Holland, the defendant (1) was observed having an exchange with another individual, (2) was in an area associated with drug use and was found carrying $223.75 in cash and a pager, and (3) provided a written statement admitting he had sold drugs in the past three weeks. Id. at 1195. Because the evidence alone was insufficient to establish intent, the written statement concerning his past drug activity was introduced under Rules 404(b) and 403 to show intent. Holland, 656 So.2d at 1196. Ultimately, the intent-to-distribute conviction was reversed for insufficient evidence. Id. at 1196-97.

¶ 28. Mississippi law clearly supports the introduction of McDonald’s intent-to-sell conviction. The intent-to-sell conviction is admissible under Rule 404(b) to establish intent with respect to the present charge. However, the introduction of McDonald’s possession convictions does not serve any purpose for which they would be admissible under Rule 404(b). Therefore, the trial court should not have permitted the introduction of the possession convictions. Nonetheless, the error is harmless. McDonald’s argument that “[w]ith the amount of drugs involved, the digital scales, and the baggies, there was no need for the [S]tate to present evidence of McDonald’s prior convictions[,]” supports the argument that even if the convictions had been excluded, “the same result would have been reached[.]” Accordingly, we find no reversible error.

IV. Status as a Second or Subsequent Drug Offender

¶ 29. In his final issue on appeal, McDonald argues his sentence as a second or subsequent drug offender was illegal because an order amending the indictment was never entered on the record. He further asserts his attorney was ineffective for failing to object to the lack of an order amending the indictment and for failing to preserve the issue for appeal.

¶ 30. Mississippi Code Annotated section 99-17-15 (Rev.2007) provides for amendments to the indictment during the course of the trial. It states, in its entirety:

The order of the court for amendment of the indictment, record[,] or proceedings provided in section 99-17-13 shall be entered on the minutes, and shall specify precisely the amendment, and shall be a part of the record of said case, and shall have the same effect as if the indictment or other proceeding were actually changed to conform to the amendment; and wherever necessary or proper for the guidance of the jury, or otherwise, the clerk shall attach to the indictment a copy of the order for amendment.

Miss.Code Ann. § 99-17-15. “It is the law that an amendment to an indictment must be by order of the court which must precisely specify the amendment!,] and the order must be spread on the minutes.” Thomas v. State, 167 Miss. 504, 505, 142 So. 507, 507 (1932) (citations omitted). Thus, a valid order must be entered in the record to amend the indictment.

¶31. Here, when granting the amendment to the indictment, the trial court stated: “The [c]ourt has allowed the State’s motion to amend the indictment.” No order was ever entered on the record. Accordingly, the trial court did not conform to the requirement of Mississippi Code Annotated section 99-17-15, and the indictment was not properly amended. However, although the indictment was not properly amended, the issue must have also been preserved for appeal.

¶ 82. “The State is required to make sure that ... an order [amending the indictment] appears in the record[,] and the defense is required to object to the absence of such [an] order if it wishes to preserve this point for appeal.” Reed v. State, 506 So.2d 277, 279 (Miss.1987) (citing Sturgis v. State, 379 So.2d 534 (Miss.1980)). In Doby v. State, 532 So.2d 584, 587 (Miss.1988), the trial court granted the State’s motion to amend the indictment but failed to enter an order on the minutes. The Mississippi Supreme Court, quoting Dunaway v. State, 398 So.2d 658, 659 (Miss.1981), stated: “[A] defendant must specifically bring the absence of an order on the minutes of the court allowing the amendment to the attention of the trial court, or the error will be waived and ... may not be raised for the first time on appeal.” Doby, 532 So.2d at 587. Because the defendant failed to object to the absence of an order on the minutes either during trial or in the motion for a new trial, the supreme court found he had waived the right to present the issue on appeal. Id. at 588.

¶ 33. Here, neither the State nor the defense counsel sought to have the order entered on the record. The defense counsel did not object'when the trial judge initially granted the amendment, nor did the defense counsel raise the issue in the motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. Because the defense counsel did not object to the lack of an order amending the indictment, the issue is waived on appeal.

¶ 34. Although the issue is procedurally barred, McDonald makes a second argument, that his defense counsel was ineffective for failing to object to the amendment and the resulting failure to preserve the issue for appeal. To establish an ineffective-assistance-of-counsel claim, the defendant must show (1) counsel’s performance was deficient, and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “With respect to the overall performance of the attorney, ‘counsel’s choice[s] of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy’ and cannot give rise to an ineffective assistance of counsel claim.” Powell v. State, 806 So.2d 1069, 1077 (¶ 18) (Miss.2001) (quoting Cole v. State, 666 So.2d 767, 777 (Miss.1995)).

¶ 35. “It is unusual for this Court to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal.” Aguilar v. State, 847 So.2d 871, 878 (¶ 17) (Miss.Ct.App.2002).

This Court will rule on the merits on the rare occasions where “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.”

Id. (quoting Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct.App.1999)). When an ineffective-assistance-of-counsel claim cannot be supported on direct appeal, “the appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief.” Id.(citing Read v. State, 430 So.2d 832, 837 (Miss.1983)). We do not find that the record before us is sufficient to support a finding of ineffective assistance of counsel. Uncertainty exists regarding whether the attorney’s performance prejudiced McDonald and whether the result would have been different had the attorney objected. The proper time to decide this issue would be when McDonald properly files a motion for post-conviction relief. Accordingly, we find this issue is without merit.

¶ 36. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE AND SENTENCE AS A HABITUAL OFFENDER OF SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).