author: BARNES, J.,

text:
    Edward Lamont NEAL a/k/a Edward Neal a/k/a Edward L. Neal, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00403-COA.
    Court of Appeals of Mississippi.
    March 12, 2013.
    George T. Holmes, Mollie Marie McMil-lin, Stephanie L. Mallette, Jackson, attorneys for appellant.

      Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   BARNES, J.,

for the Court:

¶ 1. Edward Lamont Neal was tried and convicted of armed robbery and aggravated assault in the Circuit Court of Lowndes County and sentenced as a habitual offender to terms of forty years and twenty years, respectively, in the custody of the Mississippi Department of Corrections (MDOC). Neal appeals his convictions and sentences, arguing that the trial court erred in denying his motion to suppress his statement given to police. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Neal, who was already in custody at the Lowndes County Jail for felony escape, was taken to the Columbus Police Department on January 24, 2007, to be charged for the armed robbery and aggravated assault of Samuel Livingston, and for the burglary of the home of Robert Peterson. Neal was placed in an interview room and talked briefly with Lieutenant Wayne McLemore. Neal asked to speak with his attorney. Lieutenant McLemore left the room, sarcastically stating that he had a “little gift” for Neal. Lieutenant McLe-more returned, holding arrest warrants, and told Neal how much time Neal could expect from the charges. Neal stated that he understood, but proclaimed his innocence.

¶ 3. Neal was then taken down the hall to make an initial appearance before Judge Curtis Austin. After being formally charged for the three crimes, Neal was being taken back to the county jail. However, Neal spied Officer Eric Lewis and Commander John Pevey in a briefing room and asked to speak to Lewis. Neal and Lewis went into the briefing room and closed the door. Lewis was not aware of the facts concerning the crimes for which Neal was being charged. Although Lewis denied being told that Neal had invoked his right to counsel, Lieutenant McLemore later testified that he had advised Lewis that Neal had invoked his rights.

¶ 4. After speaking with Lewis, Neal got into a patrol car with Officer David Crid-dle. At that point, Neal said he wanted to talk; so Lieutenant McLemore and Officer Criddle returned with Neal to the police station and recorded their discussion with him. Since Neal had requested to talk to them, Office Criddle and Lieutenant McLemore simply sat and listened and did not ask any questions except to clarify when Neal gave them two different names. When Neal stopped talking, Criddle read him his Miranda rights, and Neal waived his rights. Neal then told Officer Criddle and Lieutenant McLemore an account of how he, Paul Hargrove, and a girl named Brittany had conspired to rob Livingston. Neal’s statement was slightly different from the evidence at trial.

¶ 5. According to Livingston’s testimony at trial, he received a telephone call on December 8, 2006, from a young man, Neal, who stated that he was looking to rent a small house in Columbus. Livingston, who managed rental property, agreed to show a vacant house to Neal. Livingston said he could meet Neal later that morning. Neal called Livingston a second time, claiming to be lost. Livingston refused to meet him at the mall, but agreed to meet him in the back of the Lowndes County Library in Columbus.

¶ 6. When Livingston arrived at the library, “a young black man” tapped on his passenger-sidé window. Neal got into Livingston’s truck, and Livingston told Neal that he would not be able to bring him back to the library. Neal told Livingston that he would ride with him, and his girlfriend would follow. At that point, Livingston noticed that Neal had a gun. Livingston opened his door and got out of the truck with the truck still in gear and rolling across the street. Neal got out and jumped into a waiting car.

¶7. Livingston got back into his truck and drove a few blocks until a car passed him and blocked his lane of traffic. Neal stepped out of the car and pointed a 12-gauge automatic shotgun at the windshield of Livingston’s vehicle. Livingston was then shot in both legs. Livingston testified that Neal shot him; Neal claimed that Hargrove was the shooter. Livingston drove off, but lost control of his truck and hit the porch of a building. Livingston crawled out of the truck and onto the porch, where he was able to call for help. Livingston, who was eighty-three at the time, spent thirteen days in the hospital before being released.

¶8. Neal initially denied any involvement with the crime and blamed Hargrove and Brittany. Neal was indicted by a Lowndes County grand jury for Count I, armed robbery; Count II, aggravated assault; and Count III, burglary. The indictment was later amended to charge him as a habitual offender. As previously noted, Neal was tried and convicted on the burglary charge in a separate proceeding.

¶ 9. Prior to trial, Neal filed a motion to suppress the taped statement that he gave to police. The trial court denied the motion. After a jury trial held November 15-17, 2010, Neal was convicted on both counts and sentenced as a habitual offender, without eligibility for parole or probation, to a term of forty years on Count I, and to a term of twenty years on Count II, to be served in the custody of the MDOC. Neal’s post-trial motion for a new trial and/or a judgment notwithstanding the verdict (JNOV) was denied. On appeal, we find no error in the circuit court’s denial of Neal’s motion to suppress and affirm the judgment.

STANDARD OF REVIEW

¶ 10. This Court has held:

In reviewing a trial court’s denial of a motion to suppress a confession, “we apply the familiar general rule that since the trial court sits as the fact-finder when determining the issue of whether an accused’s confession has been intelligently, knowingly and voluntarily given, we will only reverse the trial court’s determination of this issue when such determination is manifestly wrong.”

Pannell v. State, 7 So.3d 277, 281 (¶ 8) (Miss.Ct.App.2009) (quoting Glasper v. State, 914 So.2d 708, 716 (¶21) (Miss.2005)). Unless the trial court commits manifest error or applies an incorrect legal standard, or its decision to admit a defendant’s confession is contrary to the overwhelming weight of the evidence, we will not reverse the trial court’s ruling on appeal. Id. (citing Glasper, 914 So.2d at 716-17 (¶ 21)). “[A] confession is admissible only after the State has proven beyond a reasonable doubt that the accused’s confession was not the product of promises, threats or inducements.” Id. (quoting Glasper, 914 So.2d at 717 (¶ 21)).

DISCUSSION

Whether the trial court erred by not suppressing the videotaped confession of the appellant.

¶ 11. Neal argues the trial court erred in denying his motion to suppress the confession that he gave to police officers. He contends his statement was involuntary and given without a knowing, voluntary, and intelligent waiver of his rights. Since Neal had requested counsel before he gave the statement, he contends that the police violated his constitutional rights when they continued to interrogate him without his attorney present. He argues that his waiver of rights was not effective because of repeated pressure by police.

¶ 12. The Mississippi Supreme Court has already decided the specific issue presented by Neal in this appeal. In Neal v. State, 57 So.3d 1271 (Miss.2011) {“Neal I ”), which concerned the appeal of Neal’s burglary conviction and sentence, the supreme court found no error in the trial court’s failure to suppress the confession Neal gave to Officer Criddle and Lieutenant MeLemore. As noted by the supreme court, Neal was in custody on felony escape charges at the time he made the request for an attorney. Id. at 1277 (¶ 16). “Had Neal been asked any questions regarding the offense of felony escape, his Sixth-Amendment right to counsel would have been violated, but he was not.” Id. The supreme court, citing the United States Supreme Court decision in United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984), stated that the Sixth Amendment right to counsel is “offense specific.” Neal I, 57 So.3d at 1278 (¶ 19).

¶ 13. Certainly, Neal had a Fifth Amendment right not to sign anything or to request to speak to an attorney. See id. at 1279 (¶21). However, prior to asking any questions, but not before Neal made statements concerning the charges against him, the officers read Neal his Miranda rights and had Neal sign a waiver of those rights.

¶ 14. In Neal I, the Mississippi Supreme Court concluded that the trial court followed the proper procedure in conducting a hearing on the admissibility of the confession, and the confession was “intelligently, knowingly, and voluntarily given and not the product of police threats, promises[,] or inducements.” See id. at 1280 (¶23) (citing Manix v. State, 895 So.2d 167, 180 (¶ 39) (Miss.2005)). The supreme court further found that “[t]he precise issue presented to the trial court for finding of fact was whether or not Neal initiated contact with the officers after having invoked his right [to counsel].” Id. at (¶ 28). The supreme court concluded that there was no basis for overruling the trial court’s finding that Neal had initiated the contact. Id. Therefore, “the trial court did not abuse its discretion in admitting the confession.” Id. at 1282 (¶ 32).

¶ 15. Accordingly, in the present case, we find no error in the admission of the confession into evidence and affirm the decision of the trial court.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTIONS OF COUNT I, ARMED ROBBERY, AND COUNT II, AGGRAVATED ASSAULT, AND SENTENCES AS A HABITUAL OFFENDER OF FORTY YEARS IN COUNT I AND TWENTY YEARS IN COUNT II, WITH THE SENTENCES TO RUN CONSECUTIVELY, 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 LOWNDES COUNTY.

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

      . Neal was tried and convicted on the burglary charge in a separate proceeding. The Mississippi Supreme Court affirmed Neal’s burglary conviction and sentence in Neal v. State, 57 So.3d 1271, 1283 (¶ 38) (Miss.2011) ("Neal I").

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


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Dennis FAUST, Sr. a/k/a Dennis Faust, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00268-COA.
    Court of Appeals of Mississippi.
    May 7, 2013.

      Mollie Marie McMillin, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Dennis Faust appeals the judgment of the Amite County Circuit Court, which convicted him of robbery and sentenced him as a habitual offender to serve fifteen years in the custody of the Mississippi Department of Corrections (MDOC). Faust argues (1) the trial court erred in granting Jury Instruction S-3, which allegedly constructively amended the indictment against Faust and broadened the grounds on which Faust could be convicted, and (2) the verdict is against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS

¶ 2. On June 22, 2011, Bridgett Smith worked in automobile sales for R.E. Smith Motor Company, her parents’ business. While working, Smith saw a man outside on the car lot. Assuming him to be a customer, Smith walked outside. When Smith asked if she could help the man, he replied that he was looking for a vehicle with a key in it. The man walked over to where Smith and her parents parked their personal vehicles. The man opened the door to a 2004 GMC Sierra crew cab, Smith’s mother’s vehicle. Smith informed the man that the vehicle was not for sale and attempted to shut the door to the truck. When Smith verbally protested the man’s alarming actions, he pushed and hit her with his cane. The man also threatened to kill her. Smith testified as to her fear that the man could seriously harm her, if not kill her. After pushing Smith away, the man drove off in the GMC truck. Smith and her mother immediately contacted law enforcement. In court, Smith identified Faust as the man who took her mother’s vehicle.

¶ 3. Chief Deputy William Vallely, with the Amite County Sheriff’s Office, testified that shortly after he received notification of the alleged robbery of the GMC truck, he learned that the Gloster Police Department had stopped a suspect driving a vehicle that matched the description of the GMC vehicle. Deputy Vallely testified that when he arrived at the scene, the vehicle was stopped “in the middle of the road.” Deputy Vallely identified Faust as the man driving the GMC truck.

¶ 4. Deputy Danny Meaux, also with the Amite County Sheriff’s Office, testified that he found a cane on the front seat of the truck. Deputy Meaux also identified Faust as the person who was removed from the allegedly stolen GMC truck.

¶ 5. Faust testified at trial. He testified that he walked up to the car lot on his way to the store for his aunt. Faust admitted to taking the truck “around the block” and alleged that he came right back. Faust claimed that when he was preparing to park the truck back on the car lot, he noticed a commotion and decided to park in front of the nearby library. Police detained Faust at that time. Faust denied being told the GMC truck was not for sale. Faust also denied threatening or pushing Smith. In fact, Faust claimed Smith was not present when he drove the vehicle off the car lot.

¶ 6. A grand jury before the Amite County Circuit Court indicted Faust for the crime of robbery. The indictment provided that on or about June 22, 2011, Faust “did willfully, unlawfully and felo-niously take one 2004 GMC pickup truck, the personal property of Bridgett Smith or another, from her person and against her will by violence to her person by throwing her to the ground and threatening to kill her[.]” The grand jury indicted Faust under Mississippi Code Annotated section 97-3-73 (Rev.2006), the general robbery statute, and as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007).

¶7. A trial commenced on January 31, 2012. At the conclusion of the trial, the jury found Faust guilty of robbery. The trial court sentenced Faust as a habitual offender under section 99-19-81 to fifteen years in the custody of the MDOC.

DISCUSSION

I. JURY INSTRUCTIONS

¶ 8. Faust argues that the trial court erred in allowing the jury to be improperly instructed on the elements of robbery. Faust contends that the elements instruction, Jury Instruction S-3, constructively amended the indictment against him, in essence lowering the proof required for the State to show that Faust committed robbery. Faust asserts that rather than requiring the jury to find that Faust took a 2004 GMC pickup truck, as alleged in the indictment, the instruction allowed the jury to find that Faust took “personal property” belonging to Smith. Faust claims that he received no notice to defend himself on the broader charge that he took personal property in general, rather than the specific 2004 GMC truck.

¶ 9. After reviewing the record, we find that Faust waived the issue of an alleged constructive amendment of the indictment for appeal since he failed to raise the issue before the trial court. See Robinson v. State, 966 So.2d 209, 213 (¶ 10) (Miss.Ct. App.2007) (“It is well[ jsettled that a trial court will not be found in error on an issue upon which it was never requested to rule.”); Brown v. State, 781 So.2d 925, 928 (¶ 12) (Miss.Ct.App.2001). Nonetheless, we find that the trial court abused no discretion in instructing the jury at trial. See Bolton v. State, 87 So.3d 1129, 1132 (¶ 10) (Miss.Ct.App.2012) (“It is well settled that jury instructions generally are within the discretion of the trial court, and the appropriate standard of review is abuse of discretion.” (quotation marks omitted)).

¶ 10. Regarding jury instructions, this Court has stated:

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

Id. Here, the robbery indictment charged Faust with taking “one 2004 GMC pickup truck, the personal property of Bridgett Smith or another[.]” Therefore, the indictment reflects that Faust was indeed charged with taking personal property and that the property was identified by the indictment as the truck at issue. Additionally, the evidence in this case matched the charge set forth in the indictment. Thus, no variance between the evidence and the indictment occurred, and Faust’s assertion of a constructive amendment fails. See Bell v. State, 725 So.2d 836, 855 (¶ 58) (Miss.1998).

¶ 11. Jury Instruction S-3 provides, in part, as follows:

[Faust] has been charged with the offense of robbery.
If you find from the evidence in this case beyond a reasonable doubt that:
1. [Faust], on or about June 22, 2011, in Amite County, Mississippi^]
2. Willfully took personal property of Bridgett Smith or another;
3. From her person; and
4. Against the victim’s will;
5. By violence toward Bridgett Smith by pushing her and threatening to kill her; and
6. At the time, [Faust] had the intent to permanently deprive Bridgett Smith of the property, then you shall find the Defendant guilty as charged.
If the prosecution has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find the Defendant not guilty of Robbery.

(Emphasis added). The record reflects that the jury instructions, including Jury Instruction S-3, were consistent with the notice provided to Faust in the indictment on the robbery charge. See Arrington v. State, 69 So.3d 29, 33 (¶ 14) (Miss.Ct.App. 2011) (“The purpose of an indictment is to put a defendant on notice of the charges against him so that he is able to prepare an adequate defense.”). Jury Instruction S-3 and the other instructions given by the trial court properly related the robbery charge to the testimony and evidence presented to the jury for their deliberations. The record fails to reflect any evidence of variation between the elements and the factual proof in support of each element of the robbery charge. No prejudice resulted to Faust’s defense. This issue is without merit.

II. OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 12. Faust argues that the verdict is against the overwhelming weight of the evidence. Faust alleges that the victim and the defendant were the only witnesses to the alleged robbery, and their stories differ significantly. Faust claims that his explanation that he possessed no intent to permanently deprive Smith of the vehicle is supported by the fact that he only drove the vehicle a short distance before parking it at the library down the street from the car lot and being arrested.

¶ 13. Appellate courts review a trial court’s decision to deny a motion for a new trial utilizing an abuse of discretion standard of review. Simpson v. State, 993 So.2d 400, 410 (¶ 35) (Miss.Ct.App.2008). When considering a challenge to the weight of the evidence, the verdict will only be disturbed “when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005).

¶ 14. While Faust claimed in his testimony that he never intended to permanently deprive Smith of the use of- the GMC truck, nor did he threaten or harm Smith in any way, Smith and the law enforcement officers presented evidence at trial indicting otherwise. Smith testified that Faust used force and violence against her to take possession of the GMC truck. Smith stated that Faust “hit” her and pushed her with his cane. Smith further stated that Faust threatened to kill her. Smith identified the stolen vehicle as her mother’s truck and as “a 2004 GMC Sierra crew cab, silver birch in color.” Smith identified Faust as the person who took the GMC truck from her control. Deputy Vallely testified that at the time of Faust’s arrest, the GMC truck was stopped in the middle of the road, rather than neatly parked at the library. Also, Deputy Vallely and Deputy Meaux identified Faust as the person removed from the allegedly stolen GMC truck on the day in question.

¶ 15. While Faust’s testimony contradicts the evidence presented by the State, we have held that “the jury is the sole judge of the weight of the evidence and the credibility of the witnesses.” Johnson v. State, 101 So.3d 717, 723 (¶ 23) (Miss.Ct.App.2012). “Conflicts in the evidence are for the jury to resolve.” Id. Furthermore, we are mindful that questions of criminal intent, such as whether a defendant possessed the specific intent to permanently deprive another of his property, are for the trier of fact to resolve. Williams v. State, 590 So.2d 1374, 1379 (Miss.1991). After reviewing the record, we find that the overwhelming weight of the evidence supports the jury’s verdict. This issue is without merit.

¶ 16. THE JUDGMENT OF THE AM-ITE COUNTY CIRCUIT COURT OF CONVICTION OF ROBBERY AND SENTENCE AS A HABITUAL OFFENDER OF FIFTEEN 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 AMITE COUNTY.

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

      . See Bell v. State, 725 So.2d 836, 855 (¶ 58) (Miss. 1998) ("A constructive amendment of the indictment occurs when the proof and instructions broaden the grounds upon which the defendant may be found guilty of the offense charged so that the defendant may be convicted without proof of the elements alleged by the grand jury in its indictment.”).

      . See Williams v. State, 590 So.2d 1374, 1379 (Miss.1991).


author: GRIFFIS, P. J., CARLTON, J.,

text:
    Donnie SYLVESTER, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00856-COA.
    Court of Appeals of Mississippi.
    May 7, 2013.

      Donnie Sylvester, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P. J.,

for the Court:

¶ 1. Donnie Sylvester appeals the dismissal of his motion for post-conviction collateral relief. In this appeal, Sylvester claims: (1) his guilty plea was involuntary; (2) his sentence violated his constitutional rights, because he was not given an evi-dentiary hearing; and (3) he received ineffective assistance of counsel. Finding error, we reverse and remand for further proceedings.

FACTS

¶2. On December 12, 2008, a Perry County grand jury indicted Sylvester and his wife, Jennifer, on four charges: conspiracy, shooting into a dwelling, drive-by shooting, and aggravated assault. On September 2, 2009, Sylvester filed his petition to plead guilty to two of the four charges, drive-by shooting and aggravated assault.

¶ 3. The court held a hearing on Sylves-tér’s guilty plea. During the hearing, the court asked Sylvester if he was completely satisfied with his attorney’s services; Sylvester replied that he was. Sylvester also stated that he understood that the court was not bound by any recommendation of the State or district attorney and that the court would determine Sylvester’s sentence. Sylvester admitted that no one had promised him anything to get him to plead guilty. Sylvester also stated that no one told him that the court would give him a lighter sentence if he pled guilty. Sylvester was properly informed of the minimum and maximum sentences that he could receive, and Sylvester responded that he understood this. Finally, Sylvester said that no one led him to expect the state or district attorney would recommend a sentence less than the one he heard them recommend at the hearing.

¶4. On September 3, 2009, the circuit court entered an order of conviction for the charges of drive-by shooting and aggravated assault. In the order, the trial court accepted Sylvester’s plea after it found the plea was entered voluntarily and intelligently. The court sentenced Sylvester to serve thirty years for the crime of drive-by shooting, with fifteen years to serve in the custody of the Mississippi Department of Corrections and fifteen years suspended, with five years of post-release supervision. The court also sentenced Sylvester to serve fifteen years for the crime of aggravated assault. The court ordered that the sentences for aggravated assault and drive-by shooting would run concurrently. The remaining two counts, conspiracy and shooting into a dwelling, were remanded to the file on the condition that Sylvester complied with the terms of his post-release supervision and suspended sentence.

¶ 5. On August 9, 2010, Sylvester filed a motion for post-conviction collateral relief. In his affidavit, Sylvester said that his attorney had incorrectly informed him that he would receive trusty earned time and would be released on post-release supervision after he served five years.

¶ 6. The motion also included an affidavit signed by Barbara Biglan, Sylvester’s sister. Biglan’s affidavit read:

On or about the afternoon of Friday, August 28, 2009, I called [Sylvester’s attorney] to cheek on the status of Donnie’s case. [The attorney] informed me that he had spoken to Donnie that morning, and Donnie had accepted a good deal [the attorney] had worked out with the district attorney. [The attorney] informed me that in exchange for Donnie pleading guilty to, among other things, the drive-by shooting, Donnie would be sentenced to thirty years, fifteen years to serve, five years [of] post-release supervision, and with application of trusty earned time and meritorious earned time, Donnie would be released from prison in five years, sooner if he qualified for twenty-five percent as a first time offender.

The affidavit also indicated that Biglan spoke with Sylvester the next day and confirmed what the attorney had said. She also attested that, based on this information, Sylvester stated that he would forego his right to a trial by jury and enter a guilty plea on the charge of drive-by shooting.

¶ 7. By order dated August 4, 2011, the trial court summarily dismissed Sylvester’s motion. The court determined that it was plainly evident that Sylvester was not entitled to any relief. Sylvester now appeals this judgment.

STANDARD OF REVIEW

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

ANALYSIS

¶ 9. In this appeal, Sylvester argues that the trial court erred when it did not give Sylvester an evidentiary hearing to prove that his counsel had misinformed him of the consequences of his sentence. “[T]he trial court may summarily dismiss a motion for post-conviction relief ‘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.’ ” Burrough v. State, 9 So.3d 368, 371 (¶ 6) (Miss.2009) (quoting Miss. Code Ann. § 99-39-11(2) (Rev.2007)). When the only support the defendant offers is his own affidavit, and it is contradicted by unimpeachable documents in the record, the supreme court has held that an evidentiary hearing is not required. Gable v. State, 748 So.2d 703, 706 (¶ 12) (Miss. 1999).

¶ 10. However, when the movant attaches an affidavit of another who supports the allegation, the trial court may be required to conduct an evidentiary hearing. This Court has held that “an attack on a facially correct plea may survive summary dismissal if supporting affidavits of other persons are attached.” Mitchener v. State, 964 So.2d 1188, 1194 (¶ 15) (Miss.Ct. App.2007). In Mitehener, this Court held that “[t]he information contained in the affidavits was of sufficient evidentiary strength that we cannot say Mitchener’s claims were overwhelmingly belied by the plea petition and plea hearing transcript.” Id. at (¶ 17). As a result, this Court reversed and remanded the case for an evi-dentiary hearing. Id. at 1195 (¶ 18).

¶ 11. The issue before this Court is whether Sylvester’s motion and Biglan’s affidavit were sufficient evidence such that his allegations were not overwhelmingly belied by the plea-hearing transcript.

I. Involuntary Plea

¶ 12. “A voluntary guilty plea ‘emanates from the defendant’s informed consent.’ ” Readus v. State, 837 So.2d 209, 212 (¶ 9) (Miss.Ct.App.2003) (quoting Myers v. State, 583 So.2d 174, 177 (Miss. 1991)). “An allegation that the defendant pled guilty in response to counsel’s mistaken advice may vitiate the plea, because it indicates the defendant may not have been fully aware of the consequences of the plea.” Id.

¶ 13. Sylvester claims that his plea was not voluntary because his attorney had incorrectly informed him that he would receive trusty earned time and would be released on post-release supervision after he had served five years. Biglan’s affidavit indicated that she talked to the attorney, and he made the same representation to her.

¶ 14. Readus is similar to this case. In his motion, Readus attached his mother’s affidavit to support his claims. Id. at 211 (¶ 4). Readus’s mother claimed that the attorney told her that Readus “would get about six years and he said something about papers after that.” Id. at (¶ 5). In his affidavit, Readus claimed his attorney told him he would receive “six months and ten years on paper.” Id. at 212 (¶ 9). Readus also stated that his attorney told him he would be sent to the Regimented Inmate Discipline (“RID”) program. Id. at 211 (¶ 4). The circuit court summarily dismissed Readus’s motion without an evi-dentiary hearing based on the conclusion that the allegations in Readus’s affidavit were belied by the plea-hearing transcript. Id. at 213 (¶ 10).

¶ 15. This Court noted the presumption of truthfulness attached to a defendant’s in-court declarations and that “a collateral attack on a facially correct plea must include supporting affidavits of other persons.” Id. at (¶ 11) (citation omitted). Readus met this requirement when he attached his mother’s affidavit. Id. at (¶ 12). Both of the affidavits claimed that Readus’s attorney led Readus to expect a far more lenient sentence. Id. at 214 (¶ 14). We concluded that the “alleged deficiency was not ‘cured’ by the plea colloquy because the erroneous advice was not directly contradicted by the [trial] court’s questioning.” Id. at 214-15 (¶ 18). In addition, because Readus alleged that he would not have pled guilty if he had known the actual consequences of the plea, we found that he had grounds for an ineffective-assistance-of-counsel claim. Id. at 214 (¶ 18). Thus, Readus was entitled to an evidentiary hearing as to whether his guilty plea was involuntary and whether his counsel was ineffective. Id. at 210 (¶2).

¶ 16. In Thomas v. State, 881 So.2d 912, 915 (¶5) (Miss.Ct.App.2004), Thomas filed a motion for post-conviction collateral relief that was summarily dismissed. Thomas alleged that his plea was involuntary because it was entered in response to his attorney’s erroneous advice about his parole eligibility. Id. at 915-16 (¶ 9). This Court acknowledged:

A guilty plea is binding on a defendant only if it is entered voluntarily and intelligently. A plea is considered “voluntary and intelligent” only if the defendant is informed of the nature of the charge against him and the consequences of the plea. Before the trial court may accept a guilty plea, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. As part of its voluntariness inquiry, the court must determine whether the accused understands the minimum and maximum sentences for the charge.

Id. at 916 (¶ 9) (citations and quotation marks omitted). We also noted that parole eligibility is not a consequence of a guilty plea. Id. at (¶ 10). Thus, the Court found that it is not a prerequisite to a voluntary plea that the defendant understand his eligibility for parole. Id. However, the court noted that “a plea is involuntary if a defendant is affirmatively misinformed regarding the possibility of parole and pleads guilty in reliance on the misinformation.” Id.

¶ 17. While a misunderstanding created by the erroneous advice of defense counsel may be corrected by the circuit court during the voluntariness inquiry, this Court determined that the transcript revealed the issue of parole was never addressed. Id. at 917 (¶ 13). Thus, the erroneous advice went uncorrected. Id. The Court noted that a defendant is entitled to an evidentiary hearing if he alleges that his plea is involuntary because he relied on his attorney’s erroneous advice regarding the possibility of parole. Id. at (¶ 14) (citation omitted). Thus, this Court determined Thomas was entitled to an evidentiary hearing. Id.

1118. In Salter v. State, 64 So.3d 514, 516 (¶ 6) (Miss.Ct.App.2011), Salter argued his plea was involuntary and his trial counsel was ineffective because his attorney and the court gave him erroneous information about parole and earned time release. Because Salter failed to raise this issue in his first petition for post-conviction collateral relief, it was procedurally barred. Id. at 517 (¶ 12). However, this Court noted that if Salter had raised the issue in his first petition, he would have been entitled to an evidentiary hearing. Id. at (¶ 11). We found that “[ejrroneous information concerning parole and sentencing given by the circuit court at least entitles the petitioner to an evidentiary hearing on whether he relied on the erroneous information.” Id. (quoting Fairley v. State, 834 So.2d 704, 707 (¶8) (Miss. 2003)).

¶ 19. We find that Sylvester’s eligibility for trusty earned-time is analogous to eligibility for parole or the RID program. As such, if a defendant alleges he was given erroneous advice by his attorney as to his eligibility for trusty earned time and that erroneous advice goes uncorrected, and he provides evidence other than his own statement (such as a sworn affidavit from a third party), he is entitled to an evidentiary hearing.

¶ 20. The plea-hearing transcript indicates Sylvester was informed of the maximum and minimum sentences. However, his affidavit and his sister’s affidavit assert he was misinformed as to his eligibility for trusty earned time. Thus, the plea colloquy did not correct the alleged misinformation. Sylvester was entitled to an evidentiary hearing. For these reasons, we find that Sylvester is entitled to an evidentiary hearing on whether his plea was knowingly, intelligently, and voluntaria ly entered, and we reverse and remand for the circuit court to conduct such a hearing.

II. Ineffective Assistance of Counsel

¶21. Sylvester also argues that his attorney was ineffective. To prove ineffective assistance of counsel, Sylvester must demonstrate: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Sylvester bears the burden of proof. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990).

¶22. Under this analysis, it is presumed that counsel’s representation falls within the-range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. However, the defendant may overcome the presumption. To do so, “[t]he 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.

¶ 23. Sylvester alleges that his attorney erroneously told him that he would be eligible for trusty earned time if he entered a guilty plea. As discussed above, this was incorrect advice. He claims that if he had been given the correct advice, he would not have entered a guilty plea. To prevail on his ineffective-assistance claim, Sylvester must show that but for his attorney’s errors, he would not have entered his guilty plea. Deloach v. State, 937 So.2d 1010, 1011 (¶ 5) (Miss.Ct.App.2006) (citations omitted). The affidavits submitted by Sylvester are sufficient to establish his claim. See Thomas, 881 So.2d at 918 (¶16).

¶ 24. However, there is a strong presumption that in-court declarations are truthful. Gable v. State, 748 So.2d 703, 706 (¶ 11) (Miss.1999). At the plea hearing, the following occurred:

THE COURT: Mr. Sylvester, are you satisfied with the services of your attorney?
SYLVESTER: Yes, sir.
THE COURT: Has he promised you anything or threatened you in any manner in order to get you to plead guilty?
SYLVESTER: No, sir.
THE COURT: Do you believe your attorney has properly advised you in this plea?
SYLVESTER: Yes, sir.
THE COURT: Do you believe he’s properly represented you in this case?
SYLVESTER: Yes, sir. '

Although Sylvester answered the standard questions and indicated his satisfaction with his attorney, the plea hearing does not show that Sylvester received correct advice about his eligibility for earned time. Therefore, Sylvester has successfully alleged that he received ineffective assistance of counsel due to his attorney’s incorrect advice about his eligibility for earned time. Sylvester is entitled to an evidentiary hearing to explore the merits of this claim.

¶ 25. We find that Sylvester is entitled to an evidentiary hearing. For these reasons, we reverse and remand this case for an evidentiary hearing on the issues raised in the motion for post-conviction collateral relief.

¶ 26. THE JUDGMENT OF THE PERRY COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PERRY COUNTY.

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

CARLTON, J.,

dissenting:

¶27. I respectfully dissent from the majority’s opinion. I would affirm the summary dismissal by the trial court.

¶ 28. Where the appellant asserts counsel gave faulty advice preceding the plea hearing, “the error is cured if the defendant unequivocally is given the correct information and indicates his understanding of it during the hearing itself.” Henderson v. State, 769 So.2d 210, 214 (¶ 12) (Miss.Ct.App.2000). The trial court may summarily dismiss a motion for post-conviction relief (PCR) if it plainly appears from the face of the motion, any annexed exhibits, and the prior proceedings that the movant is not entitled to relief. Miss. Code Ann. § 99-89-11(2) (Supp.2012).

¶ 29. To prove ineffective assistance of counsel, Sylvester must show deficient performance by his counsel utilizing an objective standard, and he must also show, but for counsel’s professional errors, the result would have been different. Hannah v. State, 943 So.2d 20, 24 (¶ 6) (Miss.2006) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The burden of proof is upon Sylvester, the petitioner. See McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). The affidavits submitted by Sylvester fail to overcome the presumption of verity that applies to his sworn testimony in court at his plea hearing as quoted from the plea-hearing transcript by the trial court in its order of dismissal. The record fails to contain Sylvester’s entire guilty-plea colloquy, but the trial court’s opinion and order quotes from the transcript at length. In its order of dismissal, the trial court also provided that during the plea hearing, the court informed Sylvester of the sentences authorized for the offenses to which he was pleading guilty. In the plea-hearing transcript, as quoted in the trial court’s order, Sylvester acknowledged that he understood the minimum and maximum sentences and that the trial court was not bound by any recommendations of the State or the district attorney. Sylvester also told the court that no one told him that the trial court would be lighter on him if he pled guilty.

¶ 30. The affidavit of Sylvester’s sister fails to provide sufficient support for Sylvester’s claim since she was not privy to Sylvester’s conversation with his attorney regarding advice on his plea. Her affidavit avers what she claims Sylvester’s counsel told her in a telephone call, not anything she witnessed counsel telling Sylvester. See Higginbotham v. State, 114 So.3d 9, at 15-16 (¶ 20) (Miss.Ct.App. 2012) (rehearing denied Feb. 26, 2013). Therefore, Sylvester failed to show sufficient evidence of deficient performance by counsel to warrant an evidentiary hearing, and in so failing, did not prove by a preponderance of the evidence the first prong of Strickland, which is necessary to show ineffective assistance of counsel. Sylvester acknowledged under oath in his plea colloquy, as quoted at great length in the order of dismissal by the trial court, that he understood the punishment for the offenses to which he pled, and that the trial court was not bound by any recommendation by the State or the district attorney. Solemn declarations in open court carry a strong presumption of verity. Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); Baker v. State, 358 So.2d 401, 403 (Miss.1978).

¶ 31. To succeed on an ineffective-assistance-of-counsel claim, the petitioner must also show prejudice. See Underwood v. State, 919 So.2d 931, 937 (¶ 13) (Miss.2005) (if claim of ineffective assistance of counsel fails on either the deficiency or prejudice prongs, then the claim fails); Mason v. State, 42 So.3d 629, 633 (¶ 11) (Miss.Ct. App.2010) (finding that movant must show that counsel’s unprofessional errors were of substantial gravity and also that, without these errors, petitioner reasonably would not have pled guilty based upon the evidence).

¶ 32. In Mills v. State, 986 So.2d 345, 350-51 (¶¶ 14-15) (Miss.Ct.App.2008), this Court affirmed the summary dismissal of a PCR motion, despite the affidavit of Mills’s sister. In affirming, Mills distinguished both Myers v. State, 583 So.2d 174 (Miss. 1991), and Readus v. State, 837 So.2d 209 (Miss.Ct.App.2003), and I find the Mills analysis instructive in distinguishing those cases from the instant case. Mills, 986 So.2d at 350 (¶¶ 12-13). The Mills Court distinguished Myers, acknowledging that, in Myers, the PCR motion was supported by the affidavits of Myers’s mother and sister, who both attested to being present with Myers when he received erroneous advice by his lawyer. Id. at 349-50 (¶¶ 11, 13). In contrast, in Mills, the affidavit of Mills’s sister, like the affidavit of Sylvester’s sister, reflected that she was not present when Mills’s lawyer allegedly erroneously advised him. Also, the plea-colloquy questions by the trial court cured any defect in Mills. See id. at 350 (¶ 14). Readus is also distinguishable from Mills and the instant case, since upon review, the Court in Readus found that the plea-colloquy questions by the trial court failed to cure the alleged erroneous advice of counsel, and the Readus opinion also reflected that Readus’s mother met with his lawyer at the plea hearing, where he withdrew his initial plea and then entered an open plea, with the sentencing hearing held later that day. Readus, 837 So.2d at 211-14 (¶¶4,14).

¶ 33. Salter v. State, 64 So.3d 514, 518 (¶ 15) (Miss.Ct.App.2010), fails to support the majority opinion since in Salter, this Court affirmed the summary dismissal of Salter’s PCR motion wherein he alleged ineffective assistance of counsel, claiming he received erroneous legal advice about parole and earned-time release. Since Salter filed his PCR motion more than three years after his conviction and sentence, this Court found his petition time-barred. Id. at (¶ 14). The Salter opinion found Salter’s claim not excepted from the three-year statutory filing period as a violation of a fundamental constitutional right. Id. In addressing Sylvester’s claims, the majority relies on dicta in the Salter opinion providing hypothetical conjecture of what this Court would have done if Salter had raised the issue timely in a PCR motion. See id. at 517-18 (¶¶ 11-14).

¶ 34. The trial court’s opinion summarily dismissing Sylvester’s petition reflects that any erroneous advice was cured by the questioning by the trial court during the plea colloquy upon entry of Sylvester’s guilty plea. The opinion also reflects that his sister lacked personal knowledge of the interview between Sylvester and his counsel regarding advice on his plea since she was not present for any such conversation between them. Her affidavit only attests to what she alleges she was told, and Sylvester’s plea colloquy, as set forth in the trial court’s order, contradicts her assertions. As acknowledged, the plea colloquy cures any alleged erroneous advice and reflects that Sylvester understood the correct minimum and maximum sentences; had not been promised any lesser sentence for his guilty plea; had not been threatened to plead guilty; and was satisfied with counsel’s representation of him. Based upon the foregoing, I submit that the trial court properly summarily dismissed Sylvester’s PCR motion. Therefore, I respectfully dissent from the majority’s opinion.

JAMES, J., JOINS THIS OPINION.

      . Miss.Code Ann. § 97-3-109 (Rev.2006).

      . Miss.Code Ann. § 97-3-7(2) (Rev.2006).

      . Mississippi Code Annotated section 47-5-138 (Supp.2012) provides for normal earned-time allowances. Mississippi Code Annotated section 47-5-138.1 (Rev.2011) provides for trusty earned time; however, section 47-5-138.1(2)(d) disqualifies a person convicted of "drive-by shooting” as eligible for trusty earned time. Mississippi Code Annotated section 47-5-142 (Rev.2011) provides for meritorious earned time. These sections provide for different reductions of a sentence.

      . The order of conviction provides that Sylvester was convicted of drive-by shooting under Mississippi Code Annotated section 97-3-109 (Rev.2006) and aggravated assault under Mississippi Code Annotated section 97-3-7(2) (Supp.2012) after being advised of his constitutional rights and the consequences of his guilty plea. Sylvester was indicted on four counts but pled guilty to the two counts mentioned.

      . See Avant v. State, 55 So.3d 1115, 1122 (¶ 20) (Miss.Ct.App.2010) (presumption that counsel’s representation was competent); Blackmore v. State, 988 So.2d 393, 394 (¶¶ 3-4) (Miss.Ct.App.2008); Dennis v. State, 873 So.2d 1045, 1048 (¶ 7) (Miss.Ct.App.2004) (plea petition showed defendant knew minimum and maximum sentences, and therefore trial judge’s failure to advise defendant of possible sentencing range constituted harmless error); Whitfield v. State, 845 So.2d 762, 763 (¶ 4) (Miss.Ct.App.2003) (addressing determination of whether petitioner met threshold showing of an evidentiary basis); Wilson v. State, 760 So.2d 862, 864 (¶ 5) (Miss.Ct. App.2000) (trial court may disregard petitioner’s assertions where substantially contradicted by court record of proceedings that culminated in guilty plea). See' also Miss.Code Ann. § 99-39-11(2).


text:
    Kelvin “Buck” PERRY a/k/a Kelvin Perry a/k/a “Buck” Perry a/k/a “Buck”, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00142-COA.
    Court of Appeals of Mississippi.
    May 21, 2013.
    George T. Holmes, Jackson, attorney for appellant.

      Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Kelvin Buck Perry appeals the judgment of the Carroll County Circuit Court, wherein a jury found him guilty of possession of less than one kilogram but more than thirty grams of marijuana with the intent to sell or transfer. Perry absconded during a break in the trial and failed to return. At the conclusion of the trial, the trial court sentenced Perry as a subsequent drug offender and as a habitual offender to sixty years in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or probation. Unaware of his client’s whereabouts, Perry’s counsel perfected his appeal, asserting error as follows: (1) the trial court erred in overruling Perry’s motions for a directed verdict and a judgment notwithstanding the verdict (JNOV), and (2) the weight of the evidence fails to support the verdict.

¶ 2. The State responded to the assignments of error raised by Perry’s counsel, and the State asserted a motion to dismiss the appeal citing the fugitive disentitlement or fugitive dismissal rule. See Hires v. State, 882 So.2d 225, 227-28 (¶ 6) (Miss. 2004). We passed the State’s motion for consideration on the merits. Upon review, this Court finds the fugitive dismissal rule applicable to this case, and we dismiss Perry’s appeal.

FACTS

¶ 3. Around 10:00 p.m. on April 16, 2010, Deputy Rob Banks, with the Carroll County Sheriffs Department, while on patrol, observed a vehicle driving backwards, or backing out, of a driveway and saw the vehicle continue traveling backwards and weaving in the roadway. Deputy Banks stopped the vehicle and approached the driver’s side. Deputy Banks testified that he smelled marijuana, and that he observed what he suspected to be marijuana residue on the driver’s lap. When he discovered the driver of the vehicle did not have a driver’s license, Deputy Banks placed him under arrest. Deputy Banks identified Perry in court as the driver of the vehicle. A passenger, later identified as Allen Davis, was also in the vehicle.

¶4. In patting down Perry upon his arrest, Deputy Banks testified that he felt an unidentifiable bulge in Perry’s waistband. Deputy Banks lifted Perry’s shirt and observed, and then retrieved, a ziplock plastic bag with a green leafy substance inside. Deputy Banks placed Perry in his patrol vehicle. About that time, a back-up deputy arrived at the scene and secured Davis, the passenger.

¶ 5. After placing Perry in his patrol car, Deputy Banks searched Perry’s vehicle and found what appeared to be loose marijuana wrapped in a newspaper under the front passenger’s seat. According to Deputy Banks, Perry admitted that “all the marijuana was his.”

¶ 6. Davis testified for the prosecution. Davis testified that Perry had “done some deals” earlier in the evening before Deputy Banks stopped their vehicle, specifically two marijuana transactions. At trial, Davis claimed ownership of the marijuana found under Perry’s seat. In contradiction to Davis’s trial testimony, Deputy Banks testified that Davis had acknowledged to him that Perry had planned to give Davis the marijuana found in Perry’s vehicle in payment for an alleged debt. Laura Graham, a forensic scientist with the Mississippi Crime Laboratory, testified that the marijuana found in the plastic bag weighed 127.11 grams, and the loose marijuana weighed 82.38 grams.

¶ 7. On October 19, 2010, a grand jury before the Carroll County Circuit Court indicted Perry for possession of over 209 grams of marijuana with intent to distribute in violation of Mississippi Code Annotated section 41-29-139 (Supp.2012). Shortly thereafter, on November 18, 2010, the circuit court entered an “Order Amending Indictment,” which charged Perry as a second and subsequent offender under Mississippi Code Annotated section 41-29-147 (Supp.2012) and as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). Prior to the trial, Perry’s counsel argued a motion to suppress the evidence seized from the search of Perry’s person and his vehicle, which the trial court denied.

¶ 8. The jury found Perry guilty of possession of less than one kilogram but more than thirty grams of marijuana with the intent to sell or transfer. While the trial was recessed for a lunch break, Perry voluntarily absented himself, and the record reflects that as of the date of the filing of the appellate brief in this case by Perry’s counsel, Perry remained absent. In a separate sentencing hearing, the trial court sentenced Perry in his absence as a subsequent drug offender and habitual offender to sixty years in the custody of the MDOC without eligibility for parole or probation.

¶ 9. After a denial of post-trial motions, Perry appealed with his counsel asserting the appeal on his behalf in his continued absence. Perry’s appellate counsel asserts that at the time of the filing of the appellate brief on Perry’s behalf, Perry remained at large but not on bail.

DISCUSSION

¶ 10. “It is well settled that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal.” Hires, 882 So.2d at 227-28 (¶ 6) (citing Ortega-Rodríguez v. United States, 507 U.S. 234, 239, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993); see also Derrick v. State, 406 So.2d 48 (Miss.1981)). This principle is often referred to as the “fugitive dismissal” or “fugitive disentitlement” rule. Hires, 882 So.2d at 228 (¶ 6). See also Weaver v. Parks, 947 So.2d 1009, 1013-15 (¶¶ 9-14) (Miss.Ct.App.2006) (ruling by chancery court that the fugitive dismissal rule precluded consideration of father’s appeal). According to the Mississippi Supreme Court, “[t]he rationale behind the rule is that ‘dismissal by an appellate court after a defendant has fled its jurisdiction serves an important deterrent function and advances an interest in efficient, dignified appellate practice.’ ” Id. (quoting Ortega-Rodriguez, 507 U.S. at 242, 113 S.Ct. 1199).

¶ 11. We find the rationale behind the application of the fugitive dismissal rule applicable and controlling to the facts of this case. Perry escaped during his trial and remained at large at the time of his counsel’s filing of an appellate brief on his behalf. In response to Perry’s appeal, the State filed a motion to dismiss and responded upon brief to the merits of Perry’s asserted appeal. We passed the State’s motion to dismiss the appeal to the merits, and upon review, we find the State’s motion to dismiss to be well taken in light of the fugitive dismissal rule and precedent. Accordingly, applying the fugitive dismissal rule, we dismiss Perry’s appeal.

¶ 12. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CARROLL COUNTY.

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

      . The marijuana in the ziplock bag allegedly from Perry’s pants weighed 127.11 grams. The marijuana under Davis's seat weighed 82.38 grams.

      . The Weaver court noted that ”[t]he fugitive dismissal rule ... operates to limit a litigant’s ‘access to the judicial system whose authority he evades.’ " Id. at 1013 (¶ 9).


text:
    IMPERIAL PALACE OF MISSISSIPPI, LLC, Appellant v. Bonnie F. RYAN, Appellee.
    No. 2011-WC-01474-COA.
    Court of Appeals of Mississippi.
    May 21, 2013.
    Patrick R. Buchanan, Pascagoula, attorney for appellant.
    James Kenneth Wetzel, Garner James Wetzel, Gulfport, attorneys for appellee.

      Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   BARNES, J.,

for the Court:

¶ 1. Imperial Palace of Mississippi LLC (Imperial Palace) appeals from the order of the Mississippi Workers’ Compensation Commission (Commission), which affirmed an administrative judge’s order awarding compensation to Bonnie F. Ryan for surgery and other medical-treatment expenses. The only issue on appeal is whether there is substantial evidence to support the Commission’s decision. Finding that substantial evidence exists, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Ryan works for Imperial Palace as a PBX operator and trainer. On August 10, 2010, Ryan was sitting at her desk when her chair broke. In an attempt to prevent herself from falling, Ryan reached out to an adjacent desk chair. While Ryan did not strike the floor, this maneuver resulted in her body twisting to the right. Ryan claimed that this twisting caused severe pain in her neck, back, shoulders, arms, hands, and legs. Ryan reported this incident to her supervisor, Andrea Creel, on August 12, 2010.

¶ 3. On August 12, 2010, Ryan met with her family physician, Dr. Tricia Aultman, who diagnosed her with whiplash. Dr. Aultman prescribed pain medication and steroid injections to treat Ryan’s pain. Ryan then visited Dr. Tana Cooper on August 13, 2010, for a second opinion. Dr. Cooper did not diagnose Ryan with any significant injury but did recommend a limitation on carrying or lifting heavy objects. Dr. Cooper also prescribed pain medication and recommended physical therapy.

¶ 4. When Ryan’s symptoms of pain did not subside, she was sent by Paula Melmly, a nurse practitioner for Imperial Palace, for an x-ray. On August 17, 2010, Ryan underwent an x-ray exam for her neck and upper spine at Ocean Springs Hospital. Ryan returned to Dr. Aultman, who sent her for an MRI exam. On August 25, 2010, Ryan underwent the MRI exam of her neck and upper spine at Ocean Springs Hospital. After reviewing the exam results, Dr. Aultman referred Ryan to Dr. Eric Graham, a neurosurgeon, for consultation and medical treatment.

¶ 5. Ryan first met with Dr. Graham on September 13, 2010. Dr. Graham noted an abnormal range of motion in her neck with pain at the extremes of motion. Dr. Graham further noted Ryan’s pain symptoms were distributed to her neck, upper shoulders, and arms, with tenderness to the touch. Dr. Graham diagnosed Ryan with “cervical radiculitis, a herniated cervical disc with myelopathy, and cervical spondylosis with myelopathy.” Dr. Graham noted that the cervical spondylosis potentially predated the accident of August 10, 2010, but he was not certain. Dr. Graham prescribed pain medication and referred her for an epidural steroid injection. Dr. Graham scheduled a follow-up exam with Ryan to discuss further treatment options.

¶ 6. Ryan next saw Dr. Graham on October 25, 2010. Dr. Graham again noted an abnormal range of motion in her neck with pain at the extremes of motion. Dr. Graham further noted Ryan’s pain symptoms were distributed to her neck, upper shoulders, and arms, with tenderness to the touch. Attempts to treat Ryan’s symptoms with pain medication and steroid injections continued to be ineffective. Dr. Graham and Ryan discussed the surgical treatment options available. Dr. Graham recommended an anterior cervical diskec-tomy and fusion of four levels of Ryan’s cervical vertebrae. Ryan reviewed the information regarding her symptoms and agreed to have Dr. Graham perform the procedure. Dr. Graham obtained informed consent from Ryan to perform the surgery.

¶ 7. Ryan then saw Dr. Jhinho Kim for a clinical consultation on November 30, 2010. Dr. Kim diagnosed Ryan with “severe cervical spondylosis, cervical spinal canal stenosis, a spontaneous fusion of cervical vertebrae C6-C7, and myofascial and facet joint strain of the cervical spine.” Dr. Kim noted that the cervical spondylosis was a preexisting condition, predating the August 10, 2010 accident. Dr. Kim reviewed the surgical recommendation by Dr. Graham. Dr. Kim recommended treating Ryan with “a neck brace for two to three months before considering surgical options.”

¶ 8. Ryan filed a petition to controvert with the Commission on December 1, 2010. The Commission granted a hearing before an administrative judge (AJ) on March 24, 2011. On April 20, 2011, the AJ issued an order stating that the accident of August 10, 2010, aggravated or accelerated Ryan’s preexisting condition; that the surgical procedure recommended by Dr. Graham was reasonable and necessary; and that the Imperial Palace was financially responsible for the surgery and other medical treatment recommended by Dr. Graham.

¶ 9. On April 25, 2011, Imperial Palace filed a petition for a full Commission review of the AJ’s order. The Commission reviewed and affirmed the order on September 20, 2011. Imperial Palace filed a notice of appeal on September 30, 2011.

STANDARD OF REVIEW

¶ 10. “The standard of review by which an appellate court resolves a workers’ compensation case is that of substantial evidence; however, where the issue is one of law and not of fact, the standard of review is de novo.” Hugh Dancy Co. v. Mooneyham, 68 So.3d 76, 79 (¶ 6) (Miss. Ct.App.2011) (quoting Shelby v. Peavey Elees. Corp., 724 So.2d 504, 506 (¶ 8) (Miss. Ct.App.1998)). “Substantial evidence, though not easily defined, has been said to be ‘such relevant evidence as reasonable minds might accept as adequate to support a conclusion.’ ” Kukor v. Ne. Tree Serv., Inc., 77 So.3d 1134, 1136 (IT 7) (Miss.Ct. App.2011) (quoting Delta CMI v. Speck, 586 So.2d 768, 773 (Miss.1991)).

¶ 11. “We will only overturn a decision of the Commission ‘for an error of law or an unsupportable finding of fact.’ ” Shipp v. Thomas & Betts, 13 So.3d 332, 334 (¶ 6) (Miss.Ct.App.2009) (quoting Ga. Pac. Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991)). “The Commission ‘serves as the ultimate fact[-]finder in addressing conflicts in medical testimony and opinion.’ ” Smith v. Tronox LLC, 76 So.3d 774, 780 (¶ 23) (Miss.Ct.App.2011) (quoting Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 330, 336 (¶13) (Miss. 2003)). “Where medical expert testimony is concerned, the supreme court has held that whenever the expert evidence is conflicting, the Court will affirm the Commission’s decision whether the award is for or against the claimant.” Id.

DISCUSSION

¶ 12. The only issue on appeal is whether there is substantial evidence to support the Commission’s award of compensation to Ryan.

¶ 13. For an award of workers’ compensation benefits, a claimant must prove “(1) an accidental injury; (2) arising out of and in the course of employment; and (3) a causal connection between the injury and the claimed disability.” Bever ly Healthcare v. Hare, 51 So.3d 223, 230 (¶ 25) (Miss.Ct.App.2010) (quoting Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 13 (Miss.1994)). There is no dispute that, on August 10, 2010, Ryan suffered an accidental injury, which arose out of and in the course of employment, and caused a com-pensable disability.

¶ 14. Rather, Imperial Palace argues here that the proposed neck surgery by Dr. Graham is to treat a preexisting degenerative condition. Imperial Palace contends that since Ryan returned to work in her normal position and without any apparent limitations, the contribution stemming from her injury was resolved. Imperial Palace further argues that the current condition of Ryan’s neck is the result of her preexisting condition for which it is not financially responsible.

¶ 15. The Mississippi Supreme Court noted in Rathbome, Hair & Ridge-way Box Co. v. Green, 237 Miss. 588, 594, 115 So.2d 674, 676 (1959):

The rule in this State is that when a preexisting disease or infirmity of an employee is aggravated, lighted up, or accelerated by a work-connected injury, or if the injury combines with the disease or infirmity to produce disability, the resulting disability is compensable. A corollary to the rule just stated is that when the effects of the injury have subsided, and the injury no longer combines with the disease or infirmity to produce disability, any subsequent disability attributable solely to the disease or infirmity is not compensable.

The central issue for the Commission to determine was whether a causal connection existed between the August 10, 2010 accident and the current condition of Ryan’s neck. Essentially the Commission had to determine whether the contribution of the August 10, 2010 injury to Ryan’s neck condition was resolved. The Commission determined that it had not. We find this decision was based on substantial evidence in the record.

¶ 16. The AJ determined that a causal connection existed based upon the deposition of Dr. Graham and the medical records of Dr. Kim. In his February 10, 2011 deposition, Dr. Graham was asked about the relationship between the 'accident of August 10, 2010, and Ryan’s current medical status:

Q. Based upon the history you obtained from her and specifically with reference to the L’hermitte sign that followed the injurious insult, and based on your full examination, diagnostic review of her studies, do you have an opinion based on a reasonable medical probability as to whether or not the industrial accident of August 10, 2010 at the IP Casino contributed to, accelerated, or aggravated her underlying condition, which is the need for your recommended surgery?
A. I would say it aggravated it. I feel very comfortable saying that.

Dr. Kim examined Ryan on November 30, 2010, and documented this consultation. The medical records from that examination state that the “contribution of the injury to the changes in the intraspinal compartment cannot be ruled out.”

¶ 17. Both Dr. Graham and Dr. Kim indicated that Ryan continues to suffer pain symptoms and had not yet reached maximum medical improvement. Dr. Graham’s medical records, dated August 13, 2010, and October 25, 2010, state that Ryan was experiencing “pain to the extremes of flexion, extension, and side bending” in her neck during both examinations. Dr. Kim’s medical records of November 30, 2010, indicate similar symptoms-“her main complaints are that of posterior neck pain from craniocervical junction down along the trapezius ridge toward the shoulder.... ” Dr. Kim also stated in his records that Ryan had not reached “maximum medical improvement ... since cervical immobilization has never been tried.”

¶ 18. The Commission then considered evidence as to whether a surgical procedure was medically reasonable and necessary. Dr. Kim recommended in his examination of November 30, 2010, that Ryan wear a neck brace for a period of two to three months. This treatment would decompress Ryan’s cervical spine and immobilize her neck. However, Dr. Kim also noted in his records that Ryan “had a pain that has been fairly refractory to nonsurgical treatment including pain medication, muscle relaxant, and epidural steroid injection treatment.” If the neck brace did not alleviate Ryan’s symptoms of pain, Dr. Kim recommended a posterior surgical approach rather than the anterior approach recommended by Dr. Graham. However, Dr. Kim could not indicate whether “either approach is right or wrong.”

¶ 19. Dr. Graham was asked in his deposition of February 10, 2011, why he disagreed with Dr. Kim’s recommended procedure:

Q. But you don’t agree with that?
A. I agree that a posterior laminecto-my, which is what he’s recommending, would adequately decompress her spinal canal, thereby alleviating her mye-lopathic symptoms. It will not address her neck pain issues if they persist following the procedure. I have no problems if the answer is all the parties want you to have the posterior laminectomy, fíne. That’s a case to do. But I don’t want anyone to be surprised if she continues to have neck pain afterwards and then demands another procedure to be performed. And I give everyone the choices upfront, and then let them decide which direction they want to go.
Q. All right. The surgical procedure, does that address the bad neck, or does that address the pain in the neck from falling on the stool?
A. Depends on which procedure you do. If you do the posterior procedure you’re addressing the bad neck. If you do the fusion, you’re more addressing the neck pain, as well.
Q. He also recommended that she do a neck brace for two to three months—
A. Yes.
Q. —as a conservative treatment?
A. Yes, sir.
Q. Would you agree with that attempt at treatment?
A. You’re certainly welcome to. You’re not going to change the fact that she has five millimeters of space available for her cord....

The Commission’s determination that the anterior surgical procedure recommended by Dr. Graham was medically reasonable and necessary is based on substantial evidence.

CONCLUSION

¶ 20. The Commission issued an order that affirmed the AJ’s order awarding compensation for surgery and other medical treatment to Ryan. The order holds that Imperial Palace is financially responsible for these expenses. The Commission’s order is based on substantial evidence. Therefore, we are bound by the Commission’s finding of facts in this matter and affirm.

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

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


text:
    Travis WHITE a/k/a Travis Brice White, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00485-COA.
    Court of Appeals of Mississippi.
    May 21, 2013.

      Travis White, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   BARNES, J.,

for the Court:

¶ 1. Travis White pleaded guilty to a charge of murder and was convicted on April 23, 1992. He was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. Nineteen years later, on August 5, 2011, White filed a motion for post-conviction relief (PCR), alleging a defective indictment. He also filed a motion for permission to proceed out of time on August 12, 2011. The Hancock County Circuit Court held that White’s PCR motion was time-barred since it was filed outside the three-year statute of limitations as provided for in Mississippi Code Annotated section 99-39-5(2) (Rev.2007). On appeal, White reasserts that his indictment was defective and that he received ineffective assistance of counsel and an illegal sentence as a result. Finding no error, we affirm.

DISCUSSION

¶ 2. As White’s motion was filed nineteen years after his conviction, the circuit court held that the motion was time-barred and that the circuit court did not have jurisdiction to consider the motion. See Miss.Code Ann. § 99-39-5(2) (in the case of a guilty plea, a PCR motion must be filed “within three (3) years after entry of the judgment of conviction.”). This procedural bar includes claims alleging a defective indictment. See Edwards v. State, 90 So.3d 637, 642 (¶ 12) (Miss.Ct. App.2012) (“Claims alleging defective indictment are also barred when a motion for post-conviction relief is not filed within the three-year time limitation.” (quoting Barnes v. State, 949 So.2d 879, 881 (¶ 8) (Miss.Ct.App.2007))). We find no error in the circuit court’s dismissal of White’s PCR motion based on lack of jurisdiction.

¶ 3. Regardless of the procedural bar, we find no merit to White’s claim. In his PCR motion, White argued that his indictment was “fatally defective,” as it did not conform to the requirements of Mississippi Code Annotated section 99-17-20 (Rev.2007), which states:

No person shall be tried for capital murder, or any other crime punishable by death as provided by law, unless such offense was specifically cited in the indictment returned against the accused by setting forth the section and subsection number of the Code defining the offense alleged to have been committed by the accused.

(Emphasis added). “It is the intent of Section 99-17-20 that the relevant code section be cited to place the defendant on notice as to what makes the offense a capital one.” Davis v. State, 914 So.2d 200, 205 (¶ 19) (Miss.Ct.App.2005) (citing Gray v. State, 728 So.2d 36 (¶ 173) (Miss. 1998)). White is correct that the section and subsection for capital murder were not contained in the indictment as required by section 99-17-20. The indictment only states that White “did then and there wil-fully, unlawfully, feloniously and without any design to effect death, kill and murder Leon Howard Wallace, a human being[,] while in the commission of the crime and felony of Robbery, as defined by Section 97-3-73, Miss.Code of 1972[.]” Misreading the indictment’s language, White erroneously argues that he was charged with robbery, not capital murder.

¶ 4. While the indictment would not have been adequate to try White for capital murder, he was not tried for capital murder. Furthermore, the indictment’s language was sufficient to charge White with simple murder, the criminal offense to which he pled guilty. “The ‘purpose of an indictment is to provide the accused reasonable notice of the charges against him so that he may prepare an adequate defense.’ ” Johnson v. State, 94 So.3d 1209, 1215 (¶ 26) (Miss.Ct.App.2011) (quoting Brawner v. State, 947 So.2d 254, 265 (¶ 31) (Miss.2006)). One definition of murder is “[t]he killing of a human being without the authority of law by any means or in any manner ... [w]hen done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life.... ” Miss.Code Ann. § 97-3 — 19(l)(b) (Rev.2006). This Court would certainly view the act of robbery as “eminently dangerous to others” especially as it is a crime for which capital murder may be charged. Moreover, in a recent case, Dockery v. State, 96 So.3d 759 (Miss.Ct. App.2012), this Court considered a similar argument made by a defendant that his indictment was fatally defective as it charged him with capital murder, not simple murder, the crime for which he was convicted. We concluded that the indictment was sufficient since murder, a lesser-included offense of capital murder, was “inherently included within the crime of capital murder as reflected in [the defendant’s] indictment.” Id. at 762-63 (¶¶ 11, 14). While the indictment in this case did not specifically cite the “relevant code section” for capital murder with the underlying offense of robbery, it did correctly set forth the elements of capital murder. Therefore, while we acknowledge that the indictment was not sufficient to try White for capital murder, we find it sufficiently charged White with capital murder and its lesser-included offense of murder.

¶ 5. Any failure to list the section or subsection as required by section 99-17-20 did not render White’s indictment “fatally defective” as to simple murder. Accordingly, we find that the indictment’s language was sufficient to give White reasonable notice of the charge of murder. As a result, White’s remaining claims, which are based on his claim of a defective indictment, are rendered moot.

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

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

      . White claims that he pleaded guilty to murder because his attorney told him that he was indicted for capital murder and that he would receive the death penalty if convicted.


author: STUART, Justice. SHAW, Justice MURDOCK, Justice

text:
    Ex parte John Earl BRANDON. (In re John Earl Brandon v. Carolyn Anne Brandon).
    1111538.
    Supreme Court of Alabama.
    Nov. 30, 2012.
    Randall W. Nichols and Joshua T. King of Massey, Stotser & Nichols, P.C., Birmingham, for petitioner.
    Karen N. Dice, Tuscaloosa, for respondent.
   STUART, Justice.

John Earl Brandon (“the father”) petitions this Court for a writ of mandamus directing the Tuscaloosa Circuit Court to transfer the portion of this custody-modification action filed by Carolyn Anne Brandon (“the mother”) involving the parties’ minor son to the Pickens Circuit Court. We grant the petition and issue the writ.

Facts and Procedural History

On February 25, 2009, the father and the mother were divorced by a judgment of the Tuscaloosa Circuit Court. The judgment approved and incorporated a separate agreement giving the mother primary physical custody of the two then minor daughters and giving the father primary physical custody of the minor son. The agreement contained detailed visitation and custody provisions, as well as provisions controlling postdivorce responsibilities for such items as insurance, medical expenses, etc. Since the divorce, the mother and the daughters have resided in Tuscaloosa County; the father and the son have resided in Pickens County.

On June 7, 2012, the mother petitioned the Tuscaloosa Circuit Court for emergency relief to enforce her right to five weeks of summer visitation with the minor son, as provided in the agreement; to hold the father in contempt for violating visitation orders; and to modify postminority-sup-port provisions of the agreement by transferring control of funds for the older daughter’s postsecondary education to the mother. The father answered the petition, filed a counterpetition seeking to hold the mother in contempt and seeking clarification of court orders regarding postsecond-ary educational costs for the older daughter, and moved to transfer to the Pickens Circuit Court all issues in the mother’s petition that related to the minor son. In his motion for a change of venue, the father explained:

“[P]ursuant to § 30-3-5, [Ala.Code 1975,] since the prior orders regarding custody of [the minor son] were entered in the Circuit Court of Tuscaloosa County, and since [the father] and [the minor son] have resided in Pickens County for a period of at least three (3) consecutive years immediately preceding the filing of [the mother’s] petition, [the father] has a choice of venue as to Tuscaloosa County or Pickens County.”

In July 2012, after conducting a hearing on the father’s motion for a change of venue, the trial court denied the motion.

The father then petitioned the Court of Civil Appeals for mandamus relief. The Court of Civil Appeals denied the petition without an opinion. Ex parte Brandon (No. 2111105, August 21, 2012), — So.3d -(Ala.Civ.App.2012) (table).

Standard' of Review
“ ‘A petition for the writ of mandamus is the appropriate means by which to challenge a trial court’s order regarding a change of venue. The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows “‘“(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” ’ ” Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000)(quoting Ex parte Gates, 675 So.2d 371, 374 (Ala.1996)); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala. 1999).’
“Ex parte Children’s Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala.2005).
“Applying the general rules to a petition for a writ of mandamus challenging a ruling related to venue, this Court has held: ‘The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.’ Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987). ‘Our review is limited to only those facts that were before the trial court.’ Ex parte Kane, 989 So.2d 509, 511 (Ala. 2008).”

Ex parte Lugo de Vega, 65 So.3d 886, 891 (Ala.2010).

Discussion

The father, contends that, as the minor son’s custodial parent, he has, pursuant to § 30-8-5, Ala.Code 1975, a clear, legal right to chose the venue for adjudication of the mother’s claims involving the minor son. The mother does not dispute that the father satisfies the requirements of § 30-3-5; she maintains that the statute does not apply in this case because, she argues, the action she filed in the Tuscaloosa Circuit Court pleads not only claims involving the minor son, but also claims as to which venue is proper in the Tuscaloosa Circuit Court. She contends that, because it is improper to transfer the entire action, the claims involving the minor son should remain in the Tuscaloosa Circuit Court.

Section 30-3-5 states:

“Notwithstanding any law to the contrary, venue of all proceedings for petitions or other actions seeking modification, interpretation, or enforcement of a final decree awarding custody of a child ... and/or granting visitation rights ... and/or granting post-minority benefits for a child or children is changed so that venue will lie in: (1) the original circuit court rendering the final decree; or (2) in the circuit court of the county where both the current custodial parent or, in the case of post-minority benefits, where the most recent custodial parent, that parent having custody at the time of the child’s attaining majority, and the child or children have resided for a period of at least three consecutive years immediately preceding the filing of the petition or other action. The current or most recent custodial parent shall be able to choose the particular venue as herein provided, regardless of which party files the petition or other action.”

(Emphasis added.)

Section 30-3-5 provides that venue for an action seeking modification, interpretation, or enforcement of an order involving a child' is proper either in the circuit court that issues the order or in the circuit court of the county where the custodial parent and the child have resided for at least three years before the filing of the action. Section 30-3-5 further provides that if the custodial parent and child satisfy the residence requirement, then the custodial parent can select the venue. See also Ex parte Baker, 575 So.2d 98, 99 (Ala.Civ.App.1990); Johnson v. Meadows, 628 So.2d 892 (Ala.Civ.App.1993); and Ce-ruzzi v. Ceruzzi, 688 So.2d 850 (Ala.Civ. App.1997). The language in § 30-3-5 is clear and unambiguous. The legislature unequivocally stated that the custodial parent “shall be able to choose the particular venue” with regard to claims involving the child. “The word ‘shall’ is clear and unambiguous and is imperative and mandatory.” Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala.1998). This Court is bound by the words used by the legislature in the statute.

In Ex parte Hester, 682 So.2d 6, 7 (Ala. 1996), this Court recognized that “§ 30-3-5 gives the trial court no discretion to grant or to deny a motion by the custodial parent to transfer; rather, it provides .that the current custodial parent shall be able to choose the venue.” The Hester Court addressed facts similar to the ones presented here. In Hester, the father was granted physical custody of the minor son, and the mother was granted physical custody of the minor daughter. The mother and daughter resided in the county in which the divorce judgment was entered; the father and son resided in an adjacent county. Six years after the entry of the divorce judgment, the mother petitioned for custody of the son. The father moved, pursuant to § 30-3-5, to transfer the action to the county of his and the son’s residence. The court denied the motion, and the father petitioned this Court for a writ of mandamus directing the court to transfer the case to the county of his and the son’s residence. We granted the writ, stating:

“The father has shown that he was awarded primary physical custody of the child, that he and his son have lived in Franklin County for over three years, and that the underlying action is a custody petition involving the custody of the son only. He has therefore demonstrated that he has a clear legal right under § 30-3-5 to chose the venue of this action and that the trial court had no discretion to deny his choice.”

682 So.2d at 7-8.

The mother contends that this Court’s decision in Ex parte Hester does not control this case. She maintains, in a case like this one involving multiple claims, that, even though a custodial parent may satisfy the requirements of § 30-3-5 for the selection of venue, if the venue to which the transfer is sought is not a proper venue for all the claims, then § 30-3-5 has no application and the custodial parent does not get to choose venue. She argues:

“Section 30-3-5 is silent about severing or bifurcating claims in order to transfer one or more but less than all of the claims in the proceeding. If the case pending was properly filed in Tuscaloosa, there is no option available for transfer if the entire case cannot be transferred.... [A]ll of the claims in the ‘underlying action’ pending must be proper in the venue chosen of the party requesting the transfer.”

To agree with the mother and to deny a custodial parent the opportunity to select venue as provided in § 30-3-5 with regard to claims involving a child in a custody-modification action because those claims were filed with other claims would require this Court to ignore the plain language of the statute and to thwart the purpose of the statute. Like the mother, this Court can envision situations where the application of this statute may create inconsistent results and inequities. However, this Court is bound to say what the law is, not what it should be.

The father has shown that he was awarded primary physical custody of the minor son, that he and the minor son have resided in Pickens County for over three years before the mother filed the present action, and that he requested a change of venue as to only those claims involving the minor son. He has, therefore, demonstrated a clear legal right under § 30-3-5 to select the venue for adjudication of those claims, and the Tuscaloosa Circuit Court was without discretion to deny his choice.

Conclusion

Based on the foregoing, the father is entitled to a writ of mandamus. The Tuscaloosa Circuit Court is directed to vacate its order denying the father’s motion to transfer the claims related to the minor son and to enter an order transferring those claims to the Pickens Circuit Court.

PETITION GRANTED; WRIT ISSUED.

WOODALL, BOLIN, PARKER, MAIN, and WISE, JJ., concur.

SHAW, J., concurs in the result.

MURDOCK, J., dissents.

MALONE, C.J., recuses himself.

SHAW, Justice

(concurring in the result).

I concur in the result reached in the main opinion. Alabama Code 1975, § 30-3-5, states:

“Notwithstanding any law to the contrary, venue of all proceedings for petitions or other actions seeking modification, interpretation, or enforcement of a final decree awarding custody of a child or children to a parent and/or granting visitation rights ... will lie in: (1) the original circuit court rendering the final decree; or (2) in the circuit court of the county where both the current custodial parent ... and the child or children have resided for a period of at least three consecutive years immediately preceding the filing of the petition or other action. The current or most recent custodial parent shall be able to choose the particular venue as herein provided, regardless of which party files the petition or other action.”

(Emphasis added.)

The mother argues that this Code section does not expressly provide for the severance of claims, and, by necessity, of proceedings, in the manner ordered by this Court today; the father, on the other hand, argues that the section does not expressly preclude such a severance. The mother is correct that the language does not refer to a severance of the claims as a means of complying with the mandate of the Code section; however, the Code section governs venue only, not matters relating to the proper procedure for assuring compliance with it. What the section does provide, however, is that the “custodial parent shall be able to choose the particular venue.... ” Ordering the severance of the claims in the manner contemplated by the main opinion effectuates the apparent intent of the language of the Code section; precluding such a severance or ordering all the claims to be transferred to the Pickens Circuit Court would not allow both custodial parents to have a say in choosing the appropriate venue, as the Code section contemplates in cases involving split custody of multiple children. Ordering the severance of the claims in this manner allows for compliance with the provisions of the Code section. Although the mother argues that severance of the claims is not in the interest of efficient judicial administration, the Code section contemplates compliance, “[njotwithstanding any law to the contrary,” thus requiring compliance, notwithstanding the aspirational nature of the general legal principles of efficiency advanced by the mother.

MURDOCK, Justice

(dissenting).

Section 30-8-5, Ala.Code 1975, makes reference simply to “the custodial parent”; it does not reference actions involving multiple claims by and against two custodial parents. That is, § 30-3-5 does not contemplate a case such as this, in which custody of two or more siblings has been bifurcated and in which claims and counterclaims regarding the continued custodial rights of both parents are part of a single action. Consequently, it is the application of § 30-3-5 to the present case that is the source of the venue issue presented, not the solution to that issue.

The correct “solution” to the venue issue that results from applying the last sentence of § 30-3-5 to a case involving two “custodial parents” is the same as the “solution” to any action involving multiple claims or counterclaims. “When the venue of an action is appropriate as to one claim or party, it is appropriate as to other claims or parties in the same action. See Rule 82(c), Ala. R. Civ. P. (“Where several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought.”).

The mother is the “master” of her complaint. Venue for the mother’s action to modify the prior custody judgment of the Tuscaloosa Circuit Court is proper in that court, and venue for all other claims in her action is proper in that court as well.

The main opinion contains no discussion per se of the issue of severance, yet severance of the mother’s and the father’s respective claims is a necessary result of the Court’s holding today. The trial court expressly ruled, however, and gave reasons for so ruling, that the various claims and issues presented should not be severed into separate actions. See Appendix F to the father’s petition (trial court’s order) (“[T]he case would have to be bifurcated with the claims related to the son being heard in Pickens County and the claims related to the daughters being heard in Tuscaloosa County. Bifurcation could result in, among other things, the possibility of overlapping issues, inconsistent results and the waste of judicial resources and the parties’ resources.”). Before applying the last sentence of § 30-3-5 in the manner prescribed in the main opinion, we first would be required to conclude that the trial court exceeded its discretion and erred as a matter of law in refusing to order a severance of the various claims presented in this proceeding. See Ex parte Turpin Vise Ins. Agency, Inc., 705 So.2d 368, 371 (Ala.1997) (“In exercising its discretion [as to severance], the trial court should consider the prejudice that may result to the parties if the claims are severed,” as well as “practicality, judicial economy, and the possibility of inconsistent results.” (emphasis added)). I do not believe we can do that in this case.

If we are not able to find error as a matter of law under normal severance standards, then the only alternative premise upon which we could proceed would be that the statute itself somehow gives the father an absolute right to severance in a bifurcated custody case. No such right is expressed in the statute. Nowhere in § 30-3-5 is there any mention of the concept of severance. The statute speaks only to the appropriate venue for a given “proceeding” or “action.”

      . One of the daughters is no longer a minor.

      . I acknowledge that § 30-3-5 opens with the clause "[n]otwithstanding any law to the contrary.” Logically, however, this clause can be a reference only to "law” outside the statute in which it appears. Normally, one could understand this clause to mean that whatever venue rule follows in the statute will supersede “law” outside the statute, for example Rule 82(c). The obvious problem with attempting to apply such an understanding in the present case is that the venue conflict we are here trying to resolve is itself entirely a function of the sentences in § 30-3-5 that follow this opening clause. The clause "[n]ot-withstanding any law to the contrary” that opens this statutory section logically cannot resolve the venue conflict created in subsequent portions of the same statute. Thus, Rule 82(c) remains standing as a perfectly well suited device for resolution of the venue conflict now before us.
      Looked at from another perspective, the reference to "[n]otwithstanding any law to the contrary” should be understood as referring to venue provisions such as those in § 6-3-7, Ala.Code 1975, that substantively and directly conflict with this statute.