text:
    Kristina FASON, Appellant v. TRUSSELL ENTERPRISES, INC. and Hugh D. Trussell, in his individual capacity, Appellees.
    No. 2012-CA-01402-COA.
    Court of Appeals of Mississippi.
    Aug. 27, 2013.

      Hiram Richard Davis, attorney for appellant.
    Walter Alan Davis, Oxford, attorney for appellees.
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Kristina Fason appeals the Webster County Circuit Court’s grant of summary judgment in favor of Trussell Enterprises Inc. and Hugh Trussell under the doctrine of res judicata. She asserts several issues on appeal, some of which we consolidate and rephrase for clarity: (1) whether Fason’s claims for malicious prosecution, false imprisonment, and abuse of process were compulsory counterclaims in a prior collection suit; (2) whether Fason’s claims were properly barred under the doctrine of res judicata; (3) whether Fason’s claims were barred under the doctrine of collateral estoppel; and (4) whether the circuit court erred in granting summary judgment in favor of Trussell. Because we find the res judicata issue dispositive, we decline to address Fason’s third point of error. We further find that issues one and four depend in part on the outcome of the res judicata issue. Upon review, we find that summary judgment was properly granted in favor of Trussell under the doctrine of res judicata. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Fason operated a business known as the Hendrix Corner Store. On October 11, 2008, she entered into a contract with Trussell Enterprises concerning the placement and operation of an automatic teller machine (ATM) inside the Hendrix Corner Store. The contract was executed by Fa-son and Hugh Trussell, the agent, president, and sole shareholder of Trussell Enterprises. Under the contract, Fason would put her own funds in the ATM for distribution. When a customer withdrew funds from the ATM, Trussell Enterprises would withdraw funds from the customer’s bank account for the amount withdrawn, plus a fee. Under the contract, Fason was entitled to a portion of the fee. Fason provided Trussell Enterprises with her CB & S Bank account number, and Trussell Enterprises automatically placed her portion of the fee into this account.

¶ 3. On September 1, 2010, Trussell Enterprises removed the ATM from the Hendrix Corner Store. However, Trussell Enterprises failed to remove the mechanism that automatically deposited funds into Fason’s account. Therefore, the ATM continued to deposit funds into Fason’s account until the error was discovered on March 24, 2011. As of March 24, 2011, $18,520 had been wrongfully placed into Fason’s account. Trussell Enterprises demanded that Fason return these funds, but Fason would not, or could not, comply.

¶ 4. On March 28, 2011, Hugh Trussell executed a criminal affidavit, which was submitted to the Webster County Justice Court. As a result, Fason was charged with grand larceny, and she was subsequently arrested and incarcerated until bonded out. On May 6, 2011, the criminal charges were dismissed by the justice court.

¶ 5. On April 8, 2011, Trussell Enterprises filed a collection suit against Fason in the Webster County Circuit Court, seeking recovery of the $18,520. On April 8, 2011, Fason was served with process, but she failed to timely answer or otherwise defend. Therefore, on May 12, 2011, Trus-sell filed an application for entry of default and a default judgment. On May 13, 2011, a default judgment was entered against Fason in the amount of $18,520, plus attorney’s fees of $2,255, for a total amount of $20,775, with interest and court costs. Subsequent to the default judgment, Fason filed an answer on May 16, 2011. Fason never attempted to set aside the default judgment.

¶ 6. On February 28, 2012, Fason filed her own lawsuit against Trussell Enterprises and Hugh Trussell for malicious prosecution, false imprisonment, and abuse of process for filing a criminal action to collect a civil debt. On April 28, 2012, Trussell filed an answer and affirmative defenses. On April 28, 2012, Trussell filed a motion for summary judgment, arguing that Fason’s claims were compulsory counterclaims that should have been filed in the collection suit, and that the claims were barred by res judicata and/or collateral estoppel. On May 2, 2012, Fason filed a response opposing summary judgment. On May 3, 2012, a notice of hearing was entered, setting the hearing on the motion for summary judgment for May 21, 2012.

¶ 7. On August 6, 2012, the circuit court entered an order granting summary judgment in favor of Trussell as follows:

Trussell’s position is that Fason’s claim is a compulsory counterclaim and is barred by the doctrine of res judicata. The test was set forth in Scruggs, Millette, Bozeman, & Dent, P.A. v. Merkel & Cocke, P.A., 804 So.2d 1000[, 1004 (¶ 5) (Miss.2001) ]. The test is (1) whether the same evidence or witnesses are relevant to both claims; (2) whether the issues of law and fact in the counterclaim are largely the same as those in the plaintiffs claim; (3) whether, if the counterclaim were asserted in a later lawsuit, it would be barred by res judi-cata; and (4) whether or not both claims are based on a “common nucleus of operative fact.” The Court then set forth the procedure for applying the test.
In applying the four-prong test stated in Fulgham, the logical[-]relationship test is
used to determine whether a claim and counterclaim arise from the same transaction or occurrence such that a counterclaim is compulsory; it exists when the same operative facts serve as the basis of both claims or the aggregate core of facts upon which the claim rests activates additional legal rights, otherwise dormant.
Clearly this test is met. While Fason alleges that she could not have filed a claim for malicious mischief in Trussell’s collection suit since her claim had not matured, this allegation is not supported by the facts. Fason was served with process in the Trussell suit on April 8, 2011, the criminal charges against her were dismissed ... on May 6, 2011, and the default judgment was entered on May 13, 2011. Therefore, her malicious[-]prosecution claim, if any, matured before an answer was due and before a default judgment was entered. As noted above[,] no action was taken to set aside the default judgment.
Trussell maintains that since Fason’s claim was a compulsory counterclaim!,] it is barred by res judicata. Res judica-ta consists of four elements: Identity of the subject matter of the action; [¡Identity of the cause of action; [¡Identity of the parties to the cause of action; [and][i]dentity of the quality or character of a person against whom the claim is made. These issues were addressed in Hill v. Carroll County, 17 So.3d 1081 ([Miss.] 2009). The subject matter of each cause of action presented is the same. Fason owed Trussell money. The dispute is over how he proceeded to collect it. The transactional relationship is also identical!,] and therefore, there is identity of the cause of action. There is identity of the parties to the cause of action since the pleadings of both parties acknowledge that Hugh Trussell is in privity with Trussell Enterprises. Fa-son argues otherwise but in fact sued Trussell and Trussell Enterprises ..., [and that] suit could not proceed against both without privity. The character and identity of the parties is the same in both suits[,] and therefore, the identity of the quality or character of a person against whom the claim is made is satisfied.
The [cjourt finds as a matter of law that Fason’s claim was a compulsory counterclaim that she was required to file in Webster County Cause No.2011-29-CVL[,] and that having failed to do so[,] the present suit is barred by res judicata. Therefore, [Trussell’s] [m]otion for [sjummary judgment is granted.

¶ 8. On August 28, 2012, Fason appealed the circuit court’s grant of summary judgment in favor of Trussell.

DISCUSSION

¶ 9. This Court “applies a de novo standard of review to the grant or denial of summary judgment by a trial court.” Hill v. Carroll Cnty., 17 So.3d 1081, 1084 (¶ 7) (Miss.2009). Rule 56(c) of the Mississippi Rules of Civil Procedure states that summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

I. Whether Fason’s claims for malicious prosecution, false imprisonment, and abuse of process were compulsory counterclaims in the prior collection suit.

¶ 10. We begin by noting that whenever “a party does not file a compulsory counterclaim, the right to raise that claim in subsequent litigation is thereby waived.” Scruggs, 804 So.2d at 1003 (¶ 3). Rule 13(a) of the Mississippi Rules of Civil Procedure governs compulsory counterclaims:

Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. But the pleader need not state the claim if:
(1) at the time the action was commenced the claim was the subject of another pending action; or
(2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13; or
(3) the opposing party’s claim is one which an insurer is defending.
In the event an otherwise compulsory counterclaim is not asserted in reliance upon an exception stated in paragraph (a), relitigation of the claim may nevertheless be barred by the doctrines of res judicata or collateral estoppel by judgment in the event certain issues are determined adversely to the party electing not to assert the claim.

“A logical relation must exist between the claim and the counterclaim for the counterclaim to be a compulsory counterclaim.” Scruggs, 804 So.2d at 1004 (¶ 4). To determine whether the case in question arose from the same transaction or occurrence as the initial case under Rule 13(a), we consider the following factors:

(1) Whether the same evidence or witnesses are relevant to both claims;
(2) Whether the issues of law and fact in the counterclaim are largely the same as those in the plaintiffs claim;
(3) Whether, if the counterclaim were asserted in the later lawsuit, it would be barred by res judicata; [and]
(4) Whether ... both claims are based on a “common nucleus of operative fact[.]”

Scruggs, 804 So.2d at 1004 (¶ 5).

¶ 11. In the case before us, Trussell argues that Fason’s claims were compulsory counterclaims and are therefore barred by res judicata. Because resolution of this issue depends in part upon whether the elements of res judicata were met, and because we find that the second issue raised is dispositive of this appeal, we turn to the second issue.

II. Whether Fason’s claims were properly barred under the doctrine of res judicata.

¶ 12. “The doctrine of res judi-cata bars parties from litigating claims ‘within the scope of the judgment’ in a prior action.” Hill, 17 So.3d at 1084 (¶ 8). “This includes claims that were made or should have been made in the prior suit.” Id. The doctrine of res judicata has two functions: “Under the principle known as ‘bar,’ res judicata precludes claims which were actually litigated in a previous action. Under the principle known as ‘merger,’ res judicata prevents subsequent litigation of any claim that should have been litigated in a previous action.” Id. at 1084-85 (¶ 9) (internal citations omitted).

¶ 13. Under Mississippi law, the following four factors must be present before res judicata applies: “(1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identify of the quality or character of a person against whom the claim is made.” Id. at 1085 (¶ 10). Additionally, “the absence of any one of the elements is fatal to the defense of res judicata.” Id. However, “once the four identities of res judicata have been established, any claims that could have been brought in the prior action are barred.” Id. We consider each factor below.

A. Identity of the subject matter of the action.

¶ 14. Under the first factor, our supreme court has noted the following:

The doctrine of res judicata bars a second action between the same parties on the subject matter directly involved in the prior action. In older cases, this Court has referred to subject[-]matter identity as identify in the thing sued for. More recently, the Court defined subject matter as the substance of the lawsuit.

Id. at (¶ 12) (internal citations and quotation marks omitted).

¶ 15. In the case before us, the circuit court found that the subject matter in the collection suit and the subject matter in Fason’s suit for malicious prosecution, false imprisonment, and abuse of process were the same. Specifically, the circuit court found that “Fason owed Trussell money,” and the “dispute [was] over how he proceeded to collect it.” We agree with the circuit court’s conclusion.

B. Identity of the cause of action.

¶ 16. Under this factor, the cause of action in each suit must be the same. Our supreme court has “defined ‘cause of action’ as the underlying facts and circumstances upon which a claim has been brought.” Id. at (¶ 13). This requires us to look “past the legal bases asserted and [rely] more on the factual and transactional relationship between the original action and the subsequent action.” Id. at 1086 (¶ 15). Our supreme court has utilized the transactional approach, which has been described by the United States Supreme Court as follows:

[ Clauses of action are the same if they arise from the same “transaction”; whether they are products of the same “transaction” is to be determined by “giving weight to such considerations as whether the facts are related in time, space, origin, or motivation[;] whether they form a convenient trial unit[;] and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.”

Id. (citing Nevada v. United States, 463 U.S. 110, 131, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983)).

¶ 17. In the case before us, the circuit court found that the factor of identify of the cause of action was satisfied because the transactional relationships were identical. We agree. The facts and circumstances relied upon in both suits are identical.

C. Identity of the parties to the cause of action.

¶ 18. Under this factor, “strict identity of the parties is not necessary. A non-party defendant can assert res judicata so long as it is in ‘privity’ with a named defendant.” Id. at (¶ 17). This Court has noted the following regarding privity:

Privity is a word which expresses the idea that as to certain matters and in certain circumstances persons who are not parties to an action but who are connected with it in their interests are affected by the judgment with reference to interests involved in the action, as if they were parties. “Privity” is a broad concept that requires us to look at the surrounding circumstances in order to determine whether a claim preclusion is justified.

In re Estate of Bell, 976 So.2d 965, 968 (¶ 7) (Miss.Ct.App.2008) (internal citations omitted).

¶ 19. In the case before us, the named parties are identical or in privity with one another. In the collection suit filed by Trussell Enterprises, Fason and Fason’s business, Hendrix Corner Store, were named as defendants. In Fason’s suit, she named Trussell Enterprises and Hugh Trussell as defendants, and she stated in her complaint that Hugh Trussell was the registered agent and president of Trussell Enterprises. The circuit court found that this factor was met because “the pleadings of both parties acknowledge that Hugh Trussell is in privity with Trussell Enterprises.” The circuit court noted that “Fa-son argues otherwise but in fact sued Trussell and Trussell Enterprises ..., [and the] suit could not proceed against both without privity.” We agree with the circuit court’s resolution of this factor.

D. Identity of the quality or character of a person against whom the claim is made.

¶ 20. Our supreme court has noted that it has not “explicitly defined the identify of the quality or character of a person against whom the claim is made.” Hill, 17 So.3d at 1086 (¶ 18). However, where a named defendant was the same in both actions, our supreme court has held that this factor is met. See id. at 1087 (¶ 18).

¶ 21. In the case before us, the circuit court found that the “character and identity of the parties is the same in both suits[,] and therefore, the identify of the quality or character of a person against whom the claim is made is satisfied.” We agree.

¶ 22. In sum, we find that all four res judicata factors have been met. Therefore, Fason’s claims are barred by res judicata. As such, we affirm the circuit court’s grant of summary judgment. Because this issue is dispositive of this appeal, we decline to address the other issues raised by Fason.

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

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

      . We refer to the Appellees collectively as "Trussell” unless the context requires otherwise.

      . On September 21, 2010, Fason stopped operating the Hendrix Corner Store.

      . The default judgment was signed by the circuit court on May 13, 2011, but it was not stamped filed until May 16, 2011.

      . We also note that a "judgment by default is given the same effect as if a verdict was entered for the plaintiff and accordingly can have [a] preclusive effect on other litigation." Franklin Collection Serv., Inc. v. Stewart, 863 So.2d 925, 929 (¶ 10) (Miss.2003).


source: Caselaw Access Project

author: JAMES, J.,

license: Public Domain

text:
    Tony BARFIELD, Appellant/Cross-Appellee v. MISSISSIPPI STATE HOSPITAL, Appellee/Cross-Appellant.
    No. 2011-WC-01577-COA.
    Court of Appeals of Mississippi.
    Aug. 27, 2013.

      Darryl Moses Gibbs, Jackson, Jennie Southerland and Hoyle Pitts, attorneys for appellant.
    Courtney Anne Titus, Richard Mack Ed-monson Jr., attorneys for appellee.
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Tony Barfield filed a claim for workers’ compensation benefits against the Mississippi State Hospital (MSH) following injuries he sustained from a work-related incident. In addition to physical injuries, Barfield claimed that he suffered from post-traumatic stress disorder (PTSD) and other psychological injuries stemming from the incident. The administrative judge (AJ) found that Barfield suffered physical and psychological injuries from the incident, and that his psychological injury rendered him permanently and totally disabled. The Mississippi Workers’ Compensation Commission (Commission) upheld the AJ’s finding of a psychological overlay resulting from Barfield’s work injury, but reversed the AJ’s finding of permanent and total disability. Finding that Barfield was only temporarily totally disabled, the Commission reduced Barfield’s award of disability benefits.

¶ 2. From this order, both parties present separate issues before this Court. Barfield appeals the decision of the Commission to reduce his disability benefits, arguing that the Commission applied an improper legal standard in finding that he was only temporarily disabled. MSH cross-appeals the Commission’s findings of a psychological overlay and temporary total disability. Finding the order of the Commission is based on substantial evidence, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Barfield began working for MSH in 1982 as a direct-care employee. At some point, Barfield was promoted to a supervisory position as a mental-health technician. On July 1, 2004, Barfield was called to assist an employee with a mentally-ill patient who weighed approximately 350 pounds. While assisting the employee, Barfield was violently attacked by the patient. The patient hit Barfield in the head, knocking him to the concrete floor. The patient then sat on top of Barfield and struck him in the head repeatedly. Security guards attempted to restrain the patient and accidentally fell on top of Bar-field. During the melee, Barfield’s head hit the concrete floor multiple times. Bar-field testified that he could not remember what happened next. That same day, Bar-field was treated by Dr. Tim Morris at the Baptist Medical Clinic for back pain, arm pain, and a headache. Dr. Morris diagnosed Barfield with multiple contusions and myalgia, and instructed Barfield not to return to work until the following week.

¶ 4. Four months later, Barfield continued to experience severe headaches and pain in his right foot from the attack. Barfield also began to experience anxiety and insomnia. On November 11, 2004, Barfield was examined by his family physician, Dr. Steven Easley. Dr Easley had been Barfield’s primary physician for nearly fourteen years prior to Barfield’s attack. Barfield informed Dr. Easley about the violent attack, and stated that he was having frequent nightmares about the incident. He also stated that he had not returned to work after the incident because the patient who had attacked him was still a resident at MSH. According to Barfield, he resigned from his job out of fear that the patient would attack him again. Over the next month, Dr. Easley continued to monitor Barfield’s mental status and foot injury. Dr. Easley noted that Barfield had exhibited signs of depression since the incident. Dr. Easley diagnosed Barfield with PTSD, and decided that he needed further treatment. He referred Barfield to Dr. John Norton, a board-certified psychiatrist and neurologist. On December 28, 2004, Barfield filed a petition to controvert.

¶ 5. Dr. Norton began treating Barfield on May 9, 2005. Barfield informed Dr. Norton about the attack, and reported having persistent headaches and anxiety as a result of the incident. Dr. Norton noted that Barfield displayed symptoms of paranoia, anxiety, and memory loss. After nearly two months of treatment, Dr. Norton diagnosed Barfield with a traumatic brain injury and depression. Dr. Norton also noted that the violent attack on July 1, 2004, caused or contributed to Barfield’s psychological condition. According to Dr. Norton, as of June 24, 2005, Barfield had reached his maximum medical improvement, but was not able to return to work full-time.

¶ 6. Thereafter, Barfield applied for Social Security disability benefits. As part of his application, Barfield was examined by Dr. Teresa Elias-Hooper. During the evaluation, Dr. Elias-Hooper administered a series of tests along with a comprehensive mental-status examination. At the end of the evaluation, Dr. Elias-Hooper concluded that Barfield displayed symptoms of PTSD and depression. She also opined that Barfield was unable to “function full-time in any normal work-related environment.” On December 6, 2005, Bar-field was examined by Dr. Andrew Yates as part of his application for Social Security disability benefits. Dr. Yates concluded that Barfield suffered from post-traumatic stress syndrome or traumatic brain injury, with some depression and paranoia.

¶ 7. To determine the extent of Bar-field’s psychological injury, MSH ordered Barfield to undergo an evaluation with Dr. Mark Webb. During the assessment, Dr. Webb noted that Barfield exhibited signs of “abnormal personality traits,” but not to the extent of having a severe psychological impairment. At the end of the assessment, Dr. Webb concluded that Barfield did not suffer from PTSD or any other psychiatric illness. Dr. Webb also concluded that Barfield had “no permanent impairment or restrictions ... relating] to the [July 1, 2004] incident.” Dr. Webb based his conclusions on the results of the assessment, which indicated that Barfield had no symptoms of anxiety and no loss of functioning or enjoyment of life.

¶ 8. At the request of the Commission, clinical psychologist Dr. James Irby evaluated Barfield on January 28, 2010. After reviewing Barfield’s medical records and administering a series of cognitive tests over a two-day period, Dr. Irby opined that Barfield did not have PTSD or a traumatic brain injury. According to Dr. Irby, Barfield did not exhibit any factors that are indicative of a traumatic brain injury, including: “1) loss of consciousness, 2) loss of memory for the events surrounding the impact to the head[,] and/or [3) ] an alteration of consciousness.” Dr. Irby also concluded that Barfield had “no significant cognitive deficits as a result of the incident on July 1, 2004.”

¶ 9. Following a hearing on the matter, the AJ found that Barfield had proven by clear and convincing evidence that his psychological condition was caused by the work incident on July 1, 2004. The AJ also found that Barfield’s psychological injury rendered him permanently and totally disabled, and ordered MSH to pay Bar-field permanent disability benefits of $341 a week, beginning on July 2, 2004, and continuing for 450 weeks. MSH appealed the AJ’s decision to the Commission. On September 21, 2011, the Commission reversed the order of the AJ, and found that Barfield was temporarily and totally disabled as a result of his psychological injury. The Commission ordered MSH to pay Barfield temporary disability benefits of $341 per week from December 26, 2004, until June 24, 2005; and permanent partial disability benefits of $181.57 per week for 450 weeks beginning June 25, 2005.

¶ 10. Both parties now seek relief from the order of the Commission. Barfield seeks reinstatement of the AJ’s order, arguing the Commission applied an improper legal standard in finding that Barfield was temporarily and totally disabled. MSH seeks reversal of the Commission’s finding of a psychological injury resulting from the incident. MSH also appeals the Commission’s finding that Barfield is temporarily and totally disabled as result of the incident. We discuss each of these issues below.

STANDARD OF REVIEW

¶ 11. In workers’ compensation cases, the scope of review is limited. McElveen v. Croft Metals, Inc., 915 So.2d 14, 18-19 (¶ 10) (Miss.Ct.App.2005) (citing KLLM, Inc. v. Fowler, 589 So.2d 670, 675 (Miss.1991)). The Commission is the trier and finder of fact, and its decision will only be overturned if it is arbitrary or capricious, is based on an erroneous application of the law, or is unsupported by the evidence. Scott Colson’s Shop, Inc. v. Harris, 67 So.3d 841, 844 (¶ 9) (Miss.Ct.App.2011). When a workers’ compensation case is appealed to the Commission, the decision of the AJ becomes moot. Id. at (¶ 10) (citing Kitchens v. Jerry Vowell Logging, 874 So.2d 456, 462 (¶ 16) (Miss.Ct.App.2004)). “There may be substantial evidence to support the [AJ’s] findings, but so long as there is also substantial evidence to support the Commission’s contrary findings, the latter will be upheld.” Id. (quoting Kitchens, 874 So.2d at 462 (¶ 17)).

DISCUSSION

I. Whether the Commission applied an improper legal standard in reversing the AJ’s finding of permanent and total disability.

II. Whether the Commission erred in finding that Barfield was temporarily totally disabled.

¶ 12. Both parties present separate issues regarding the Commission’s finding that Barfield is temporarily and totally disabled as a result of the attack at work. We address these assignments of error together, as they are related. MSH argues that the Commission’s finding of temporary total disability is unsupported by the evidence. Barfield argues that the Commission failed to utilize a proper legal standard in determining the extent of his disability. The disputed language in the Commission’s order regarding its finding of temporary total disability reads:

Based on the evidence as a whole, a return to gainful employment does not appear medically or physically impossible for the Claimant. Considering his psychological condition, his age, education, [and] past experience, we believe he has sustained a significant occupational disability which we reasonably estimate to be about 50 [percent].

¶ 13. Barfield claims that the Commission held him to a higher standard of proof by requiring him to show that it was impossible for him to return to work due to his injuries, rather than requiring him to show by clear and convincing evidence that his injuries rendered him permanently and totally disabled. We disagree. Although the Commission referred to Barfield’s capability of returning to gainful employment, this was not the basis of its ruling. In its order, the Commission listed the medical evidence on which it based its finding.

¶ 14. The Commission agreed that Barfield sustained debilitating injuries from the attack. However, it found that Barfield failed to prove that he was permanently disabled as a result. The Commission relied on medical records from Barfield’s visits with two physicians. According to Dr. Webb, Barfield had “no permanent impairment or restrictions ... relating] to the [July 1, 2004] incident.” Dr. Webb also concluded that Barfield suffered from no psychiatric disability whatsoever.

¶ 15. Results from a cognitive assessment given by Dr. Irby suggested that Barfield suffered no significant cognitive defects as a result of the attack. Dr. Irby concluded that while Barfield did score below average in certain areas of the assessment, the results did not reflect his true cognitive abilities. According to Dr. Irby, the results of Barfield’s assessment gave some indication that he was intentionally underperforming. Overall, Dr. Irby determined that Barfield did not suffer from a traumatic brain injury or PTSD. Neither Dr. Webb nor Dr. Irby gave any indication that Barfield was permanently disabled.

¶ 16. The Mississippi Supreme Court has held that “whenever the expert evidence is conflicting, [the reviewing court] will affirm the Commission[’s decision] whether the award is for or against the claimant.” Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 330, 336 (¶ 13) (Miss.2003) (Kersh v. Greenville Sheet Metal Works, 192 So.2d 266, 268 (Miss.1966)). Here, the opinions of the physicians regarding the extent of Barfield’s psychological injury are conflicting. However, we find that the Commission’s finding of temporary total disability is substantiated by the medical evidence discussed above. As previously stated, we give deference to the decision of the Commission, and will not disturb that decision so long as it is supported by substantial evidence. Harris, 67 So.3d at 844 (¶ 10). Accordingly, we find no error in the Commission’s findings. This issue is without merit.

III. Whether the Commission erred in finding a causal link between Barfield’s psychological condition and his work-related injury.

¶ 17. In its cross-appeal, MSH argues that Barfield failed to demonstrate a causal connection between the July 1, 2004 incident and his mental condition. “When a claimant seeks benefits as a result of a compensable mental injury, the burden of proof is raised to clear and convincing evidence of a causal connection between the injury and employment.” Harris, 67 So.3d at 848 (¶ 19) (quoting Hosp. Housekeeping Sys., Inc. v. Townsend, 993 So.2d 418, 423 (¶ 19) (Miss.Ct.App.2008)). In addition, Barfield was required to show that his psychological condition was “caused by something more than the ordinary incidents of employment.” Id. (citing Townsend, 993 So.2d at 424 (¶ 21)). Our review of the record shows that Barfield met his burden of proof.

¶ 18. Following the violent attack at work, Barfield was examined by his family physician of fourteen years. Dr. Easley diagnosed Barfield with PTSD resulting from his work-related incident, and opined that Barfield would not be able to return to work full-time. Dr. Easley noted that since the July 1, 2004 incident, Barfield reported feeling anxious, nervous, and depressed. In fact, the record shows that Dr. Easley felt that Barfield’s psychological symptoms were serious enough to require further treatment with a neurologist. MSH claims that Barfield’s psychological condition was preexisting. However, there is absolutely no evidence in the record before us to show that Barfield suffered from PTSD or was diagnosed with any other psychological illness prior to the July 1, 2004 incident.

¶ 19. Furthermore, Barfield’s medical records from visits with three additional physicians indicate that he sustained psychological injures from the attack at work. After performing a psychological evaluation, Dr. Norton, Barfield’s treating physician, noted the following:

I am treating him for depression, post-traumatic stress disorder, post-consciousness syndrome and/or memory loss. My diagnosis is that of traumatic brain injury and depression. This injury is due to a beating that occurred on July 1, 2004[,] which involved head injury. Mr Barfield does have a permanent disability as a result of this beating and is unable to work.

On a separate occasion, after performing a comprehensive mental-status examination, Dr. Elias-Hooper concluded that Barfield’s symptoms were consistent with those of PTSD. Regarding the effect of the violent attack, Dr. Elias-Hooper noted the following:

This claimant apparently suffered a head injury in July 2004 following a physical attack.... It is believed this claimant would not be able to function full-time in any normal work-related environment. He would, however, be able to complete simple activities.... His ability to complete tasks as he once was able is also affected. Diagnostic consideration would be for post[-]traumatic stress disorder and possibly depression secondary to medical condition.

Following a separate assessment, Dr. Yates opined that Barfield suffered from a traumatic brain injury and post-traumatic stress syndrome as a result of the violent attack.

¶ 20. A review of the record shows that after the attack, Barfield was financially dependent on his mother, as he was no longer able to manage his finances due to memory loss. Considering the evidence, Barfield sufficiently demonstrated a causal link between his psychological condition and the July 1, 2004 incident by clear and convincing evidence. Thus, we find no error in the Commission’s finding of a compensable mental injury. This issue is without merit.

¶ 21. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT/CROSS-APPEL-LEE AND THE APPELLEE/CROSS-APPELLANT.

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

      . The parties stipulated that the date of maximum medical improvement for Barfield’s psychological injury was June 24, 2005.

      . The Commission began Barfield's temporary-disability-benefits period on December 26, 2004, which is the date that Barfield’s PTSD diagnosis first appears in his medical records.

      . After quitting his job at MSH, Barfield was approved for Social Security disability benefits. Testimony revealed that because of Bar-field's frequent memory loss and paranoia, he was not able to receive the benefits until his mother gained power of attorney.


author: ROBERTS, J.,

text:
    Arthur L. STEVENSON a/k/a Arthur Lee Stevenson, Appellant v. MISSISSIPPI PAROLE BOARD, Appellee.
    No. 2012-CP-01313-COA.
    Court of Appeals of Mississippi.
    Aug. 27, 2013.

      Arthur L. Stevenson, appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before IRVING, P.J., ROBERTS, CARLTON and JAMES, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Arthur L. Stevenson filed a motion for post-conviction relief (PCR) and claimed the Mississippi Parole Board (MPB) improperly revoked his parole. The Rankin County Circuit Court dismissed Stevenson’s PCR motion because he filed it in the wrong circuit court, and he did not obtain the Mississippi Supreme Court’s leave before he filed it. Stevenson claims the circuit court erred. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. While Stevenson was a trusty at the Warren County Jail, he killed a seventy-two-year-old jailer by stabbing him twenty-seven times. Stevenson v. State, 733 So.2d 177, 179 (¶ 4) (Miss.1998). A jury sitting before the Warren County Circuit Court found Stevenson guilty of capital murder. Id. at (¶¶ 1-2). The circuit court sentenced Stevenson to life in the custody of the Mississippi Department of Corrections (MDOC). Id. at (¶ 2). Stevenson filed a direct appeal, but the supreme court affirmed the Warren County Circuit Court’s judgment. Id. at (¶ 3).

¶ 3. In April 2010, Stevenson applied “for interstate compact transfer” of his parole supervision to Florida. Documentation from the MDOC indicates that Stevenson was released on conditional parole during June 2010. After being released, Stevenson moved to Pensacola, Florida, where he was supervised by the Florida Parole Commission (FPC).

¶ 4. In August 2011, Stevenson’s live-in girlfriend called the Pensacola Police Department and reported an altercation between her and Stevenson. According to the responding officer’s police report, Stevenson had been drinking, and he “snapped” when he thought that his girlfriend was going to leave him. The responding officer relayed Stevenson’s girlfriend’s statement that Stevenson had thrown a phone at her, pushed her onto a bed, and threatened her with a butcher’s knife. Stevenson also told his girlfriend that he would “cut her head off and then cut his own head off’ if she ever left him. Stevenson was transported to a hospital, and his girlfriend went to stay with her mother for the night.

¶ 5. Stevenson’s Florida parole officer claimed that Stevenson had violated the terms of his parole. Stevenson later received notice that he would receive a preliminary hearing to determine whether he had violated the terms of his parole. Specifically, Stevenson was accused of violating the terms of his parole by drinking alcohol, threatening to harm his girlfriend, and possessing a knife. Stevenson was later transported to Mississippi for his parole-revocation hearing. In October 2011, the MPB conducted a parole-revocation hearing and subsequently revoked Stevenson’s parole.

¶ 6. In January 2012, Stevenson filed a document styled as a “petition for a writ of habeas corpus and/or motion to show or produce evidence of violation.” Although Stevenson’s underlying conviction had been in the Warren County Circuit Court, Stevenson filed his petition in the Rankin County Circuit Court. Additionally, Stevenson did not obtain the supreme court’s leave to file his petition.

¶ 7. In any event, Stevenson argued that there was insufficient evidence that he had violated the terms of his parole. Stevenson also claimed that his Florida parole officer did not have probable cause to arrest him. According to Stevenson, his Florida parole officer had manipulated Stevenson’s girlfriend to file a false report. Stevenson attached an unsworn affidavit from his girlfriend. In the unsworn statement, Stevenson’s girlfriend purportedly claimed that Stevenson had not threatened to cut off her head. She admitted that she told authorities that he had threatened to do so, but she claimed that she had fabricated that aspect of her report to encourage a faster response from authorities because she was afraid that Stevenson was going to harm himself. Stevenson’s girlfriend also claimed that Stevenson’s Florida parole officer had induced her to file a police report by characterizing Stevenson as an extremely dangerous person and showing her pictures of the jailer whom Stevenson had killed. However, Stevenson’s girlfriend did not contradict her earlier report that because she was afraid of Stevenson, she had gone to stay with her mother.

¶ 8. The circuit court held that because Stevenson had been convicted in the Warren County Circuit Court, Stevenson should have filed his PCR motion there. Additionally, the circuit court noted that the supreme court had affirmed Stevenson’s conviction and sentence on direct appeal, so Stevenson was obligated to obtain the supreme court’s leave before filing his PCR motion. Stevenson had failed to obtain the supreme court’s leave to file his PCR motion. Because Stevenson had filed his PCR motion in the wrong circuit court, and Stevenson had failed to obtain the supreme court’s leave before he filed his PCR motion, the circuit court dismissed his PCR motion. Stevenson appeals.

STANDARD OF REVIEW

¶ 9. “This Court will not disturb a trial court’s dismissal of a [PCR motion] unless the [circuit] court’s decision was clearly erroneous.” Wardley v. State, 37 So.3d 1222, 1223-24 (¶ 4) (Miss.Ct.App.2010). A circuit court “may summarily dismiss a PCR motion where ‘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.’ ” White v. State, 59 So.3d 633, 635 (¶ 4) (Miss.Ct.App.2011) (quoting Miss.Code Ann. § 99-39-11(2) (Supp. 2010)). Questions of law receive a de novo review. Id.

ANALYSIS

¶ 10. Stevenson argues that the circuit court erred when it dismissed his PCR motion. Stevenson reiterates his claim that the MPB improperly revoked his parole. Stevenson’s argument is primarily based on the concept that the MPB relied on false information. However, we do not reach the merits of Stevenson’s PCR motion.

¶ 11. Stevenson filed a “petition for a writ of habeas corpus and/or motion to show or produce evidence of violation.” Within that document, he claimed his parole had been unlawfully revoked. Mississippi Code Annotated section 99-39-5(l)(h) (Supp.2012) provides that “[a]ny person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated, ... may file a motion to vacate, set aside or correct the judgment or sentence ... if the person claims ... [t]hat his ... parole or conditional release [has been] unlawfully revoked.... ” Accordingly, Stevenson’s petition was effectively a PCR motion.

¶ 12. Mississippi Code Annotated section 99-39-7 (Supp.2012) provides that a prisoner whose conviction and sentence have been affirmed on direct appeal must obtain the supreme court’s leave before filing a PCR motion. The supreme court affirmed Stevenson’s conviction on direct appeal. Stevenson, 733 So.2d at 179 (¶ 3). Stevenson did not obtain the supreme court’s leave before he filed his PCR motion. Consequently, the circuit court did not have jurisdiction to consider Stevenson’s PCR motion.

¶ 13. Section 99-39-7 also provides that a prisoner must file his PCR motion in the trial court where the prisoner was convicted. Stevenson was convicted in the Warren County Circuit Court, but he filed his PCR motion in the Rankin County Circuit Court. Accordingly, Stevenson filed his PCR motion in the wrong jurisdiction. It appears that Stevenson filed his PCR motion in Rankin County because he is incarcerated there. But the Rankin County Circuit Court did not acquire jurisdiction over Stevenson’s PCR motion by virtue of the fact that Stevenson is incarcerated in Rankin County. See Maston v. State, 768 So.2d 354, 355 (¶ 5) (Miss.Ct.App.2000).

¶ 14. To reiterate, the circuit court had no jurisdiction' over Stevenson’s PCR motion because (1) Stevenson did not obtain the supreme court’s leave before he filed his PCR motion, and (2) Stevenson filed his PCR motion in the wrong circuit court. The circuit court was imminently correct when it summarily dismissed Stevenson’s PCR motion. It follows that we affirm the circuit court’s judgment.

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

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

      . Because Stevenson committed the crime that led to his life sentence prior to the 1995 amendments to Mississippi Code Annotated section 47-7~3(l)(h), Stevenson was eligible to be considered for parole after he served ten years of his life sentence. See Miss. Code Ann. § 47-7-3(1) (Rev. 1994) (providing that a prisoner who has been "sentenced for the term of the natural life of such prisoner” is not eligible for parole until he "has served not less than ten (10) years of such life sentence.”)


author: FAIR, J., CARLTON, J.,

text:
    Wiley Z. CARROLL a/k/a Wiley Zachary Carroll, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00887-COA.
    Court of Appeals of Mississippi.
    Aug. 27, 2013.

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

for the Court:

¶ 1. Wiley Carroll was banished from the Third Circuit Court District as a condition of his post-release supervision. He appeals the dismissal of his post-conviction-relief (PCR) petition for removal of the banishment restriction as illegal. He also claims his counsel was ineffective in allowing him to agree to an illegal sentence. Because the record before us does not indicate whether the trial court addressed the requisite banishment considerations, as articulated in Cobb v. State, 437 So.2d 1218, 1220-21 (Miss.1983), we reverse and remand.

STANDARD OF REVIEW

¶ 2. The trial court may summarily dismiss a PCR motion without an eviden-tiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2012). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999).

¶ 3. When reviewing the denial of a PCR motion, an appellate court “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008). Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Young, 731 So.2d at 1122 (¶ 9).

FACTS

¶ 4. On February 11, 2004, Carroll pled guilty to attempted robbery and was sentenced to twenty years in the custody of the Mississippi Department of Corrections, with nine years to serve, eleven years suspended, and the first five years of suspended incarceration on post-release supervision. In exchange for his plea, the State agreed to drop other charges pending against both him and his wife. As a condition of the post-release supervision portion of his sentence, Carroll was banished from the Third Circuit Court District. He made no objection to the banishment at the plea hearing.

¶ 5. The transcript of the plea hearing shows that the prosecution requested banishment to assist Carroll in his rehabilitation, and Carroll joined in that request. Specifically, the goal was to help Carroll avoid persons and places of disrepute or criminal activity. When asked whether he understood the implications of the banishment provision, Carroll stated that he did:

Q. [A]nd, finally they’re asking the Court to order that in order to assist you in your rehabilitation and avoid persons and places of disrepute or criminal activity that upon your release from the penitentiary you reside outside of the Third Circuit Court District. That means, Benton, Tippah, Marshall, Lafayette, Union, Calhoun and Chickasaw Counties.
You understand the recommendation that’s going to be made in this case by the District Attorney’s office as to sentencing?
A. Yes, sir.
Q. All right.
Q. The Court is going to accept the recommendation if I accept your plea of guilty, and that’s the sentence I am going to impose. You need to understand the implications of the sentence because with eleven years suspended, when you get out of the penitentiary if you violate your probation, you could get those eleven years; do you understand that?
A: Yes, sir.
Q: Okay. The part about remaining outside of the Third Judicial District, the Third Circuit Court District that I just talked about with you a minute ago, is that a condition of your release and probation that you are prepared to accept and live with?
A: Yes, sir.

(Emphasis added). After accepting Carroll’s guilty plea, the judge stated the following to Carroll:

Finally, based on your stated desire and agreement to leave the Third Judicial District, this Court is going to include in this order that you will, as an additional effort at rehabilitation upon your release from the penitentiary that you will refrain from residing in or traveling through the Third Circuit Court District and that you will, of course, avoid persons and places of disrepute both in the Third Circuit Court District and elsewhere ....

DISCUSSION

¶ 6. Mississippi Code Annotated section 99-89-21(1) (Rev.2007) states the following:

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

Additionally, Carroll pled guilty, so pursuant to Mississippi Code Annotated section 99-39-5(2) (Supp.2012), he had three years from the entry of the judgment of his conviction to file a PCR motion. We must therefore determine whether an exception to these procedural bars applies. Bell v. State, 95 So.3d 760, 763 (¶ 10) (Miss.Ct.App.2012).

¶ 7. “[Ejrrors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act].” Id. at (¶ 12) (citation omitted). Since Carroll’s sentencing, the constitutional requirements of banishment have been clarified by our highest court, notably in a five-justice concurrence by Justice Graves in Means v. State, 43 So.3d 438, 447 (¶ 33) (Miss.2010). The concurrence outlined an affirmative obligation of the trial court to hold a hearing and make mandatory, on-the-record, findings.

1. Banishment

¶ 8. The history of banishment, its current status, and particularly the mandatory requirements imposed on Mississippi trial judges were the subject of a recent law-journal article by Judge Maxwell, entitled And Stay Out! A Look at Judicial Banishment in Mississippi, 82 Miss. L.J. 1 (2012). The most recent case cited in that article, Means v. State, is authoritative. Means recognizes first that banishment fits within the constitutional exception to the procedural bar. Means, 43 So.3d at 442 (¶ 11). Carroll’s assigned error is, therefore, squarely before the Court.

¶ 9. Under Means, banishment remains an allowable condition of post-release supervision — provided the reason or reasons for its imposition are -within acceptable parameters and made the subject of an on-the-record analysis. The Supreme Court of Mississippi “reaffirm[ed] the duty” announced in Mackey v. State, 37 So.3d 1161, 1167 (¶ 23) (Miss.2010), to apply the “Cobb factors” and added that although earlier decisions “did not necessarily place an affirmative duty on the trial judge to articulate the Cobb factors on the record,” such is now mandatory. Means, 43 So.3d at 444 (¶ 20). It reversed and remanded for a hearing to give the trial judge the opportunity to “pass on the propriety of Means’s banishment order.” Id. at 447 (¶ 29).

¶ 10. In Cobb, our supreme court outlined four factors to be considered and applied for properly banishing a person convicted of a crime. As clarified in Means the trial court must find, on the record and with analysis of each factor, that: (1) the banishment provision bears a reasonable relationship to the purpose of probation; (2) the ends of justice and the best interest of the defendant and the public would be served by the banishment; (3) public policy is not violated and the rehabilitative purpose of probation is not defeated by the banishment; and (4) the defendant’s rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution are not violated by the imposition of the banishment. Means, 43 So.3d at 442 (¶ 13) (citation omitted).

¶ 11. This Court has actually required on-the-record findings since 2000, four years before Carroll’s sentencing, when we unanimously said: “In order for banishment to be an appropriate form of punishment[,] an on the record analysis of the Cobb factors is required.” Hamm v. State, 758 So.2d 1042, 1047 (¶ 15) (Miss.Ct.App.2000). This specific requirement was later enunciated with “read my lips” clarity by the supreme court in Mackey and Means when it not only adopted and mandated this on-the-record-finding approach, but went one step further and retroactively applied these requirements in both cases. See Means, 43 So.3d at 444 (¶ 21) (noting the Court of Appeals’ prior recognition of this affirmative duty and adopting and retroactively applying an on-the-ree-ord-finding approach to reverse a banishment condition).

¶ 12. So while the dissent is technically correct that the supreme court “only recently” mandated factual findings, the pertinent and dispositive fact it overlooks is that our high court applied the requirements retroactively in Mackey, then a few months later reaffirmed that approach in Means—reversing both cases, which were PCR challenges like Carroll’s. Thus, we cannot jettison retroactive application of this approach in today’s case, particularly since Carroll’s challenge is to a post-Hamm and post-Weaver 2004 sentence, and his PCR motion was filed after both Mackey and Means had already been decided.

¶ 13. The record in Carroll’s case is simply insufficient to determine whether the trial court made the required findings. Carroll designated all pertinent transcripts in his “Designation of Record on Appeal.” However, the record only includes two pages of the transcript from the plea hearing and does not include a transcript from the sentencing hearing. In those pages, the trial court only alluded to the Cobb factors without making an on-the-record analysis. In Means, under similar circumstances, the supreme court was “simply unable to determine from the record before [it] whether the sentencing judge examined, on the record, any specific facts or circumstances of Means’s case relevant to the Cobb factors to support the banishment.” Means, 43 So.3d at 446 (¶ 28). The court also noted that while “Means is responsible for designating the record pursuant to Mississippi Rule of Appellate Procedure 10(b) in a manner sufficient to allow this Court to review his asserted issues[,] ... it is the absence itself of record support for Means’s banishment which requires additional review.” Means, 43 So.3d at 446 (¶¶ 28-29).

¶ 14. It has been suggested that the fact that the banishment was part of the plea agreement prevents this Court from reversing and remanding this ease. On the contrary, our supreme court in Means reversed and remanded the trial court’s decision despite the fact that Means’s sentence was a result of a negotiated plea agreement. Id. at (¶ 29). See also Mackey v. State, 37 So.3d 1193, 1195 (¶ 8) (Miss.Ct.App.2009) (reversed and rendered by the supreme court in Mackey, 37 So.3d at 1167 (¶ 24), notwithstanding the fact that Mackey “eagerly” accepted banishment as a condition of his suspended sentence). Carroll’s sentence, like Means’s sentence and Mackey’s sentence, was the result of a negotiated plea agreement. In Means, the supreme court explained:

This Court only recently imposed an affirmative duty on the trial judge to analyze the Cobb factors on the record before banishing the defendant. See Mackey, 37 So.3d at 1166-67. So there may be, in fact, some reasons for and benefits of Means’s banishment under Cobb and McCreary, but they do not appear in the scant PCR record before us. And since no hearing was held on Means’s present PCR motion, the trial court has not had an opportunity, in this PCR proceeding, to pass on the propriety of Means’s banishment under Cobb and McCreary. That court should be given the opportunity before this Court rules on it.

Means, 43 So.3d at 447 (¶ 29).

¶ 15. Therefore, we must remand this case so that the trial court may determine, from the complete record of Carroll’s plea and sentencing, whether the standard set by Cobb has been met.

2. Ineffective Assistance of Counsel

¶ 16. Carroll also argues his counsel was ineffective. “The Mississippi Supreme Court has consistently held that the time bar of Mississippi Code Annotated section 99-39-5(2) applies to ... post-conviction relief claims based on ineffective assistance of counsel.” Chancy v. State, 938 So.2d 267, 270 (¶ 11) (Miss.Ct.App.2005). This Court has held:

[ W]hile it is conceivable that under the facts of a particular case, this Court might find that a lawyer’s performance was so deficient, and so prejudicial to the defendant that the defendant’s fundamental constitutional rights were violated. However, [we have] never held that merely raising a claim of ineffective assistance of counsel is sufficient to surmount the procedural bar.

McBride v. State, 914 So.2d 260, 264 (¶ 12) (Miss.Ct.App.2005) (citation omitted).

¶ 17. In order to prevail on a claim of ineffective assistance of counsel, “a defendant must prove that his counsel’s performance was deficient, and that the deficiency prejudiced his defense.” Thomas v. State, 933 So.2d 995, 997 (¶ 6) (Miss.Ct.App.2006) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “[I]n order to satisfy the second prong, [Carroll] was required to show that but for his counsel’s error(s): he would not have pleaded guilty; he would have instead insisted on going to trial; and the ultimate outcome would have been different.” Henderson v. State, 89 So.3d 598, 602 (¶ 15) (Miss.Ct.App.2011).

¶ 18. Carroll has provided nothing in support of his assertions on this issue. A defendant is obligated to provide “more than conclusory allegations on a claim of ineffective assistance of counsel.” Carpenter v. State, 899 So.2d 916, 921 (¶ 23) (Miss.Ct.App.2005). Accordingly, this issue is without merit.

CONCLUSION

¶ 19. This Court concludes, as the Supreme Court of Mississippi did in Means, that:

[Carroll]’s PCR motions should have been excepted from the procedural bars, and the trial court erred in its dismissal. Therefore, we must remand this case to the trial court to review the record as it existed at the time of [Carroll]’s sentencing to determine, on the record as required in Means, if it contains the requisite reasons for and benefits of [Carrollj’s banishment under Cobb and McCreary. ...

See Means, 43 So.3d at 447 (¶ 29). Further:

If the record as previously made — which may include the transcript of [Carroll’s] plea and/or sentencing proceedings — reveals that no such reasons exist, or that the sentencing judge did not address the Cobb considerations as they relate to [Carroll], then [Carroll’s] banishment violated his due-process rights, and the revocation of the suspension of [Carroll’s] sentence (for violating the banishment) was unlawful. If, upon review of the record, the trial court reaches this conclusion, the trial court shall vacate the revocation and reinstate the original, suspended sentence with all the conditions except the banishment.

Id. at 447 (¶ 30).

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

CARLTON, J.,

dissenting:

¶21. I respectfully dissent from the majority’s opinion because I find the record reflects that the trial judge sufficiently articulated his reasoning for imposing banishment from the Third Circuit Court District, setting forth the factors as required by Cobb v. State, 437 So.2d 1218, 1219-21 (Miss.1983). I also dissent from the majority’s finding that the record contains a sufficient factual basis for such banishment. See Means v. State, 43 So.3d 438, 447 (¶ 33) (Miss.2010) (Graves, P.J., specially concurring) (acknowledging that the supreme court only recently began requiring the trial courts to affirmatively articulate their reasoning for, as well as the benefits of, imposing banishment when applying the Cobb factors).

¶ 22. The record in this case shows that during the plea colloquy in 2004, the trial judge fully explained the condition of the sentence of banishment to Carroll. The trial judge explained that the sentence was imposed to assist him in his rehabilitation and in avoiding persons and places of disrepute or criminal activity. The trial court informed Carroll during the colloquy that he would be banished from the Third Circuit Court District, and identified the counties in that district for Carroll: Benton, Tippah, Marshall, Lafayette, Union, Calhoun, and Chickasaw Counties. The court also explained to Carroll that based upon the offenses to which he was pleading guilty, he faced a maximum punishment of life without parole, but that the district attorney’s office recommended the trial court sentence Carroll to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC), with eleven of those years suspended, leaving nine years to serve. The district attorney also recommended placing Carroll on post-release supervision for five years upon his release from incarceration. The trial court further explained that in the event the guilty plea was accepted, the district attorney also agreed to retire to the file a couple of other cases against Carroll; to not indict him or prosecute him on an armed-robbery charge; and to retire charges against his wife in the case in which he pled guilty. The trial court then explained the consequences of the sentence in the event the court accepted Carroll’s guilty plea. The trial court also explained to Carroll the consequences of violating the banishment provision after his release from incarceration.

¶ 23. In addition to an excerpt of the guilty-plea colloquy, the record also contains the trial court’s written sentencing order. The sentencing order reflects Carroll’s sentence to serve twenty years in the custody of MDOC, with eleven of those years suspended and nine to serve. The sentencing order also clearly sets forth the condition of banishment from a defined geographical area, the Third Circuit Court District. I submit that the record reflects that the banishment imposed is not arbitrary, unreasonable, or ambiguous, and is enforceable as set forth in the sentencing order.

¶24. Additionally, the plea colloquy shows that after confirming with Carroll on the record that he qualified for habitual-offender status for sentencing, as well as explaining the district attorney’s agreement to retire charges and refrain from prosecuting him in an armed-robbery charge, the trial judge explained that he imposed the banishment condition to assist Carroll in his rehabilitation and to help him avoid persons and places of disrepute or criminal activity upon his release from the penitentiary. The reasoning and factual basis articulated by the trial judge in the record sufficiently addresses the Cobb and McCreary factors, and sufficiently provided the due process required by Cobb, McCreary, and Mackey, Until the supreme court’s 2010 opinion in Mackey v. State, 37 So.3d 1161, 1167 (¶ 23) (Miss.2010), the supreme court placed no affirmative duty on trial courts to articulate their reasoning on the record as to the Cobb factors. See also Means, 43 So.3d at 447 (¶ 33). The court in Mackey cited Mississippi Code Annotated section 47-7-35 in providing that banishment was not prohibited and stating that a trial court may impose banishment to a defined geographic region of the state as a condition of the sentence as long as the trial judge addressed the Cobb and McCreary factors in doing so. Mackey, 37 So.3d at 1167 (¶ 23). The opinion in Mackey explained that a trial judge may not simply cite Cobb and state that the court considered the Cobb factors when sentencing a defendant, but that the reasoning articulated by the trial court must indeed address the required factors. Id. at 1165 (¶ 14).

¶25. In the case before us, the trial judge, in my view, sufficiently addressed the Cobb and McCreary factors, and I recognize that the trial court sentenced Carroll before the Mackey court required the trial court’s reasoning to be affirmatively stated on the record. The trial court sentenced Carroll in 2004, but as acknowledged in Means, the supreme court only recently began requiring the trial court’s reasoning for imposing banishment as a condition of a sentence to be affirmatively articulated, as well as the banishment to be factually supported by the record. Here, the trial court’s banishment condition was limited to banishment from the Third Circuit Court District, and the trial judge identified by name the counties in that district for Carroll.

¶ 26. Upon review of the banishment condition imposed, I rely upon the supreme court precedent of Means v. State, which I quote in length:

We held in McCreary that banishments from the entire state violate public policy. Specifically, we explained that “banishment from a large geographical area, especially outside of the State, struggles to serve any rehabilitative purpose, and implicates serious public policy questions against the dumping of convicts on another jurisdiction.” McCreary, 582 So.2d at 427-28 (citing [United States ] v. Abushaar, 761 F.2d 954, 959-60 (3d Cir.1985); Rutherford v. Blankenship, 468 F.Supp. 1357, 1360-61 (W.D.Va.1979)). See also, Simoneaux v. State, 29 So.3d 26, 39 (Miss.Ct.App.2009) (“While banishing Simoneaux from Mississippi would perhaps provide a degree of protection to the citizens of our state, we certainly do not want our sister states repaying us for the favor.”).
Cobb represents this Court’s seminal decision on banishment. The criminal charge in Cobb stemmed from an incident in which Cobb’s nephew had thrown rocks at Cobb’s vehicle as he passed by. Cobb, 437 So.2d at 1220. Instead of notifying his brother (the boy’s father) of the incident so that he could properly discipline the child, Cobb, who had a notoriously bad temper, shot the boy. Id. Thankfully, the boy recovered. Cobb pleaded guilty to aggravated assault and was sentenced to twelve years’ imprisonment. Yet the circuit judge suspended the sentence and put Cobb on probation for five years, provided he leave Stone County and stay 125 miles away from the county. Id. at 1219. On direct appeal, Cobb raised several arguments regarding the impropriety of the banishment.
In addressing Cobb’s contentions, this Court first held that the banishment provision bore a reasonable relationship to the purpose of probation. We specifically pointed out that “Mississippi Code Annotated [section] 47-7-35 (Supp.1982) provides that courts shall determine the terms and conditions of probation and may order the probationer to ‘... [r]e-main within a specified area[.]’ ” Cobb, 437 So.2d at 1219 (quoting Miss.Code Ann. § 47-7-35(g) (Supp.1982)). And we explained that, “instead of being a matter of right, it is by grace that probation is granted a defendant, and within his sound judicial discretion the trial judge may fix reasonable conditions of probation.” Id. at 1221 (citing Owens v. Kelley, 681 F.2d 1362 (11th Cir.1982)). We also found that the banishment did not violate public policy nor defeat the rehabilitative purpose of probation. Cobb, 437 So.2d at 1220-21. We noted that the judge “recognized that Cobb had an uncontrollable temper, and related this to the community,” explaining that until Cobb learned to control his temper, it was not likely that he could live in harmony with his brother’s family. Id. at 1220. The judge cautioned that, had the boy died, Cobb likely would have received a life sentence. Id. But the judge did not want to punish “a man of Cobb’s character” so severely. Since Cobb’s house was only three-eighths of a mile from his brother’s house, the circuit judge thought the best interests of everyone required getting Cobb “away from his brother and family.” Id. at 1220-21. The circuit judge noted that “compared to what I could have done, I think I have been relatively kind.” Id. at 1221. We also recognized that “some amount of punitive aspects of probation serve the public interest as well as the probationer’s interest.” Id. at 1221. So we agreed with the circuit judge that “the ends of justice and the best interests of the public as well as the defendant would be served by the banishment.” Id. at 1220.
Finally, we found that the trial court had not violated Cobb’s constitutional rights by imposing the banishment condition. We noted that:
Here the record shows that the trial judge carefully and meticulously explained to Cobb his rights which shows that Cobb understood that he could be sentenced to 20 years in the penitentiary upon the indictment to which he pled guilty. As found by the trial judge, Cobb voluntarily and knowingly pled guilty and specifically acknowledged his guilt. Then the court deferred sentence, so that the Mississippi Department of Corrections could “conduct an investigation of this defendant” and present a pre-sentence report to the trial court, all of which presumably was done. The judgment of the court fixing the sentence and conditions here complained of shows that Cobb (while represented by counsel) signed the judgment underneath the following language: “I accept the above probation in accordance with the terms thereof.”
Cobb, 437 So.2d at 1221. We thus found that Cobb’s rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution had not been violated by imposition of the conditions of his probation, including the banishment. Id.
Based on the trial court’s on-the-record adjudication of all those factors, this Court held on appeal, in pertinent part, that:
Upon the record as made and presented, we find that the conditions imposed by the sentencing judge were reasonably related to Cobb’s circumstances and his intended rehabilitation. Upon these facts, we are unable to say that removing him from the area was unreasonable or arbitrary or in any sense violated public policy or his authority under the pertinent statutes.
Cobb, 437 So.2d at 1220, 1221 (emphasis added). Further, in McCreary, we explained why Cobb’s banishment had been affirmed. We stated that:
In Cobb, the Court satisfied itself from the record that the banishment provision bore a reasonable relationship to the purpose of probation; that the ends of justice and the best interest of the defendant and the public would be served; that public policy was not violated and the rehabilitative purpose of probation was not defeated; and that Cobb’s rights under the First, Fifth and Fourteenth Amendments to the United States Constitution were not violated.
McCreary, 582 So.2d at 427 (citing Cobb, 487 So.2d at 1219-21) (emphasis added). So this Court affirmed Cobb’s banishment because we were satisfied from the record as made and presented — which included specific facts regarding Cobb’s situation, character, and offense — that Cobb’s banishment would achieve a rehabilitative purpose, serve the ends of justice, and protect the rights and interests of Cobb and the public. Cobb, 437 So.2d at 1219-21; McCreary, 582 So.2d at 427.
Our decisions in Cobb and McCreary do not necessarily place an affirmative duty on the trial judge to articulate the Cobb factors on the record. Cobb and McCreary simply indicate that we will affirm a banishment only if we are satisfied from the record as made and presented that the banishment is appropriate, taking the Cobb factors into consideration. Cobb, 437 So.2d at 1219-21; McCreary, 582 So.2d at 427. But we cannot be satisfied from the record that the banishment is proper if no record is made or presented that the banishment would achieve the goals outlined by Cobb and McCreary. So a trial judge who imposes banishment as a condition of probation or a suspended sentence, and wishes to have the banishment affirmed on appeal, will be best served by articulating, on the record, the reasons for and benefits of the banishment under the Cobb factors as they relate to the defendant.
To that end, this Court recently held that “a trial judge’s reasons for ordering banishment must be articulated and supported in the record by a factual basis, as required by Cobb and McCreary.” Mackey v. State, 37 So.3d 1161, 1167 (Miss.2010). Mackey thus imposes an affirmative duty on the trial court to articulate, on the record, the Cobb factors as they relate to the defendant to support the banishment. The Court of Appeals has recognized this affirmative duty for some time now. Put simply, “in order for banishment to be an appropriate form of punishment, an on the record analysis of the Cobb factors is required.” Hamm v. State, 758 So.2d 1042, 1047 (Miss.Ct.App.2000) (deriding this “outmoded form of punishment”).
Today, we reaffirm the duty we announced in Mackey, and we provide more significant reasons for our imposition of it. It is evident from a reading of the Cobb decision that banishment is a unique and extraordinary form of punishment and should be seldom and cautiously imposed. Both Cobb and McCreary make clear that unreasonable, arbitrary, or unjustified banishment orders will not be upheld. See Mackey, 37 So.3d at 1166-67 (“compelling reasons must be offered to justify allowing a defendant convicted of a serious criminal offense to leave the jurisdiction unsupervised, as opposed to incarceration or keeping the defendant in the jurisdiction of the court, with supervision”). See also K.N.L. v. State, 803 So.2d 1245, 1249 (Miss.Ct.App.2002) (affirming banishment from shopping mall of teenager convicted of shoplifting from store in mall).

Means v. State, 43 So.3d 438, 442-45 (¶¶ 14-22) (Miss.2010) (emphasis added).

¶ 27. I would accordingly affirm the trial court’s judgment.

      . Cobb v. State, 437 So.2d 1218, 1220-21 (Miss.1983); see also McCreary v. State, 582 So.2d 425, 427 (Miss.1991); Hamm v. State, 758 So.2d 1042, 1046-47 (¶¶ 12-15) (Miss.Ct.App.2000); Weaver v. State, 764 So.2d 479, 480-81 (¶¶ 6-8) (Miss.Ct.App.2000).

      . See Watts v. Brewer, No. 2:09cv122-KS-MTP, 2012 WL 1301261, *6-8 (S.D.Miss. Mar. 16, 2012) (Mississippi courts recognize that a suspended sentence with conditions implies a period of probation for a maximum period allowed by law); see also Hamm v. State, 758 So.2d 1042, 1046-47 (¶¶ 12-15) (Miss.Ct.App.2000) (sentence of ten years with nine suspended; suspended sentence was revoked within five years even though sentence listed no specific probationary period); see also Shumpert v. State, 764 So.2d 1250, 1252-53 (¶ 9) (Miss.Ct.App.2000).

      . McCreary v. State, 582 So.2d 425, 427 (Miss.1991).

      . Mackey v. State, 37 So.3d 1161, 1167 (¶ 23) (Miss.2010).

      . Carroll pled guilty in 2004. In Means v. State, a 2010 case, the supreme court acknowledged that the requirement to affirmatively articulate the Cobb and McCreary factors was recent. Means, 43 So.3d at 444 (¶ 21).


text:
    Robbie O’CAIN a/k/a Robbie Dale O’Cain a/k/a Robbie Dale O’Cain, Jr. a/k/a Robbie O’Cain, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00951-COA.
    Court of Appeals of Mississippi.
    Aug. 27, 2013.
    Robbie O’Cain, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.

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

for the Court:

¶ 1. Robbie O’Cain (pro se) appeals the order of the Leake County Circuit Court dismissing his motion for post-conviction relief (PCR). The circuit court found that O’Cain’s motion lacked merit, and the motion was procedurally barred as a successive writ. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. O’Cain was indicted for armed robbery on June 26, 2007. On September 6, 2007, O’Cain entered a guilty plea and was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections (MDOC). On August 28, 2008, O’Cain filed his first PCR motion, arguing that his counsel misadvised him as to the amount of time he was required to serve before he could be eligible for parole. Apparently, O’Cain was erroneously advised that he would only have to serve ten years of his sentence, as opposed to the required full fifteen years. O’Cain claimed that he would not have entered a guilty plea had he known that he was required to serve the entire sentence. Following an evidentiary hearing on the matter, the circuit court granted the motion. O’Cain’s conviction was vacated, and his sentence was set aside.

¶ 3. On April 20, 2009, O’Cain was rear-raigned, and he entered a new plea agreement. This time, O’Cain pled guilty to strong-armed robbery and was sentenced to serve fifteen years in the custody of MDOC. On November 8, 2011, O’Cain filed a letter with the circuit court requesting clarification of his sentence. In the letter, O’Cain argued that he was not given credit for the time he had served for his armed-robbery conviction, which was one year, two months, and five days. Treating the letter as a PCR motion, the circuit court denied O’Cain’s request on the following ground:

Petitioner’s [mjotion for [p]ost-[c]onviction relief should be denied because the Petitioner has failed to state a cause of action for which the court may grant relief. To be sure, Petitioner was initially indicted and charged with armed robbery. A charge of armed robbery prohibits the possibility of trustee status if the criminal defendant is convicted. However, in Petitioner’s case, he ultimately pled guilty to strong armed robbery. As such, Petitioner is not eligible to receive trustee status for the time[ ]period he was in custody awaiting his criminal disposition.

¶ 4. On April 19, 2012, O’Cain filed a third motion for relief, requesting earned-time allowance for time served on his sentence for armed robbery. The circuit court, again, denied the motion on the same grounds, and dismissed the motion as a successive writ. O’Cain now seeks relief before this Court.

STANDARD OF REVIEW

¶ 5. We will not reverse a circuit court’s dismissal of a PCR motion unless the circuit court’s findings are clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). For issues involving questions of law, the applicable standard of review is de novo. Id. (citing Pace v. State, 770 So.2d 1052, 1053 (¶ 4) (Miss.Ct.App.2000)).

DISCUSSION

¶ 6. We begin by noting that the circuit court properly dismissed the instant PCR motion as a successive writ. Under Mississippi Code Annotated section 99-39-23(6) (Supp.2012), a movant is prohibited from filing successive motions for post-conviction relief. The November 8, 2011 letter filed by O’Cain requesting clarification of his sentence served as a PCR motion. Here, O’Cain is simply reasserting the same ground for relief that was previously rejected by the circuit court. Thus, the current motion is procedurally barred.

¶ 7. Procedural bar notwithstanding, we find that O’Cain’s PCR motion lacks merit. Mississippi Code Annotated section 99-39-11(2) (Supp.2012) permits the circuit court to summarily dismiss a PCR motion “if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]” Anderson v. State, 89 So.3d 645, 649 (¶ 5) (Miss.Ct.App.2011). Further, “dismissal of a PCR motion is proper where ‘it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Id. (quoting State v. Santiago, 773 So.2d 921, 923-24 (¶ 11) (Miss.2000)).

¶ 8. The circuit court found that O’Cain was not eligible for earned-time credit for the period he was awaiting rear-raignment due to his armed-robbery conviction. Under Mississippi Code Annotated section 47-5-139(l)(e) (Rev.2011), an inmate who “has not served the mandatory time required for parole eligibility for a conviction of robbery or attempted robbery with a deadly weapon” shall not be eligible for an earned-time allowance. Having served only one year, two months, and five days of his armed-robbery sentence, O’Cain fell short of the mandatory-time requirement. He was not eligible to earn credit for trustee time. The record reflects he did receive proper credit for the time he served in custody on his armed-robbery sentence. Accordingly, we affirm the order of the circuit court dismissing O’Cain’s PCR motion.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. BARNES AND ROBERTS, JJ., CONCUR IN RESULT ONLY.