author: WALLER, Chief Justice,

text:
    David Lee RICE a/k/a David L. Rice a/k/a David Rice v. STATE of Mississippi.
    No. 2012-CP-01919-SCT.
    Supreme Court of Mississippi.
    March 20, 2014.

      David Lee Rice, appellant, pro se.
    Office of the Attorney General by Lisa L. Blount, John R. Henry, Jr., Attorneys for Appellee.
    Before WALLER, C.J., KITCHENS and COLEMAN, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. David Lee Rice filed a petition for post-conviction relief in the Sunflower County Circuit Court, arguing that he had been improperly sentenced to life without parole as a habitual offender after a 1996 conviction for auto burglary. Rice now appeals the denial of his petition, claiming (1) that the trial court erred in finding that he had been properly sentenced as a habitual offender, (2) that the trial judge abused his discretion in failing to recuse himself from considering the post-conviction petition, and (3) that his sentence is unconstitutionally disproportionate to the crime. Finding Rice’s arguments to be without merit, we affirm the judgment of the trial court.

FACTS

¶ 2. On December 18,1995, a Sunflower County grand jury indicted Rice for burglary of an automobile in Cause No. 95-0269 (“Cause 4”). At the time of his indictment in Cause 4, Rice had three prior felony convictions on his criminal record. Rice was convicted of robbery in Cause No. 9231 (“Cause 1”) in 1985. Rice was convicted of burglary of a dwelling in Cause No. 9717 (“Cause 2”) in 1989. Rice pleaded guilty to burglary of a dwelling in Cause No. 10,108 (“Cause 3”) in 1991. On February 6, 1996, the State moved to amend Rice’s indictment to charge him as a habitual offender pursuant to Section 99-19-88 of the Mississippi Code. The trial court granted the State’s motion on February 24, 1996, and Rice’s indictment was amended to include a habitual-offender charge.

¶ 3. After a jury trial in Cause 4 on June 14, 1996, Rice was found guilty of auto burglary. Because Rice was charged as a habitual offender, the trial court held a separate hearing to determine his sentence. At the hearing, the State presented evidence of Rice’s convictions and sentences in Cause 1 and Cause 3. Ann Evans, a records supervisor for the Mississippi Department of Corrections (MDOC), testified that Rice had served one year and 315 days in prison in Cause 1. When asked whether Rice had served more than one year of his sentence in Cause 3, Evans responded, “Yes, he did.”

¶4. On June 19, 1996, the trial court issued an order in Cause 4, sentencing Rice to life without parole as a habitual offender pursuant to Section 99-19-83. Rice then appealed his conviction and sentence, and the case was assigned to the Court of Appeals. Rice v. State, 723 So.2d 1239 (Miss.Ct.App.1998). The Court of Appeals unanimously affirmed Rice’s conviction and sentence. Relevant to the instant case, the Court of Appeals held that Rice’s sentence did not constitute cruel and unusual punishment because it was within the limits set by the habitual-offender statute. Id. at 1245.

¶ 5. On June 19, 2012, Rice filed his second petition for post-conviction relief, alleging for the first time that the trial court in Cause 4 had erred in sentencing him as a habitual offender. Specifically, Rice argued that the State had failed to prove that he had served at least one year in MDOC custody in Cause 3. This Court granted Rice leave to proceed with his petition in the trial court, limiting the issue to whether Rice actually had served one year or more of his sentence in Cause 3.

¶ 6. At the hearing on Rice’s petition, the State introduced Rice’s “pen packs” for each of his prior convictions into evidence. Gloria Gibbs, a records supervisor for MDOC, testified that Rice was serving probation in Cause 2 when he was arrested in Cause 3. The trial court then revoked Rice’s probation in Cause 2, and he began serving his sentence in MDOC custody. Later, when Rice was convicted in Cause 3, the trial court ordered his sentence in Cause 3 to run concurrently with the sentence he was presently serving in Cause 2. Therefore, Gibbs explained, MDOC calculated Rice’s time served in Cause 3 beginning on the day he was incarcerated in Cause 2. Based on this procedure, Gibbs testified that Rice had served one year and 305 days of his sentence in Cause 3.

¶ 7. On December 11, 2012, the trial court issued an order denying Rice’s petition for post-conviction relief, finding that the State had proved that he actually had served one year or more of his sentences for Cause 1 and Cause 3. Rice now appeals, raising the following issues:

I. Whether the trial court erred in finding that Rice had served one year or more of his sentence in Cause 3.
II. Whether the trial judge abused his discretion in failing to re-cuse himself from considering Rice’s petition for post-conviction relief.
III. Whether Rice’s sentence is unconstitutionally disproportionate to the crime.

STANDARD OF REVIEW

¶ 8. “When reviewing a lower court’s decision to deny a petition for post conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo.” Brorni v. State, 731 So.2d 595, 598 (Miss.1999) (citing Bank of Miss. v. Southern Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)).

DISCUSSION

I. Whether the trial court erred in finding that Rice had served one year or more of his sentence in Cause 3.

¶ 9. Under Section 99-19-83 of the Mississippi Code, “the State must prove that a defendant has not only been at least twice previously convicted but that he has been sentenced to and has served separate terns of one (1) year or more in any state and/or federal penal institution.” Bogará, v. State, 624 So.2d 1313, 1320 (Miss.1993) (emphasis in original). The State must prove these elements beyond a reasonable doubt. Davis v. State, 680 So.2d 848, 851 (Miss.1996). An individual sentenced under Section 99-19-83 “shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.” Miss.Code Ann. § 99-19-83 (Rev.2007).

¶ 10. At Rice’s sentencing hearing in Cause 4, the State relied on Rice’s prior convictions in Cause 1 and Cause 3 to charge Rice as a habitual offender under Section 99-19-83. Rice does not challenge the State’s use of his conviction for robbery in Cause 1, nor does he challenge the characterization of robbery in Cause 1 as “a crime of violence.” Rather, Rice argues that he spent only approximately four months in jail after his conviction in Cause 3, and that the trial court erred in counting his preconviction jail time toward his time served in that cause.

¶ 11. This Court has held that a defendant’s preconviction jail time is included in the calculation of his time served toward a sentence for the purposes of Section 99-19-83. Feazell v. State, 761 So.2d 140, 142 (Miss.2000). In Feazell, the defendant was convicted of multiple crimes and was sentenced to life without parole as a habitual offender. Id. at 141. On appeal, the defendant challenged his eligibility for habitual-offender sentencing, claiming he had not yet served more than a year for his most recent prior conviction when he was indicted in the present case. Id. at 142. The defendant argued that he did not come into MDOC custody until he was convicted of his second felony. Id. The State, on the other hand, argued that the defendant’s service time began when he was arrested and jailed on the second offense, pending trial. Id. This Court recognized that Section 99-19-23 of the Mississippi Code requires preconviction jail time to be credited toward time served on a prisoner’s sentence. Id. Section 99-19-23 provides:

The number of days spent by a prisoner in incarceration in any municipal or county jail while awaiting trial on a criminal charge, or awaiting appeal to a higher court upon conviction, shall be applied on any sentence rendered by a court of law or on any sentence set after all avenues of appeal are exhausted.

Miss.Code Ann. § 99-19-23 (Rev.2007) (emphasis added). This Court reasoned that, by enacting Section 99-19-23, the Legislature clearly intended that the law treat preconviction and postconviction incarceration the same for determining time served. Feazell, 761 So.2d at 142. Therefore, this Court held, “since a convict is entitled to full credit toward service of his sentence for the time he was jailed prior to trial, that time, logically, should also count as time served for purposes of [Section] 99-19-83.” Id. This Court affirmed the defendant’s sentence, finding that he had served more than one year on his second conviction from the time of his arrest to the time he was indicted for his third offense. Id. at 143.

¶ 12. Relying on this Court’s holding in Feazell, the State asserts that Rice served one year and 305 days of his sentence in Cause 3. According to the State, Rice’s incarceration in Cause 3 ran from his initial arrest on December 29, 1989, until July 18, 1991, when he was released on parole, and again from April 23, 1992, when his parole was revoked, until July 2, 1992, the date of his final discharge. The trial court agreed with the State’s calculation and counted the entire period of Rice’s preconviction incarceration in Cause 3 as time served in that cause. The trial court reasoned that “since Rice was entitled to credit towards his sentence in [Cause 3] for the time he was incarcerated in [Cause 2], and received the benefit of having said time counted in his favor, therefore that time should be counted as time served for purposes of § 99-19-83.” The trial court also based its ruling on the fact that Rice’s sentence in Cause 3 was ordered to run concurrently with his sentence in Cause 2, finding that each day Rice served in Cause 2 would also count as time served in Cause 3.

¶ 13. Rice argues that the period between January 19,1990, and June 12,1991, during which he was awaiting resolution of the charges against him in Cause 3, should not count as time served in Cause 3 because he was actually serving his sentence in Cause 2 during that time. While this Court has not squarely addressed Rice’s argument, the Court of Appeals has held that Section 99-19-23 of the Mississippi Code, which allows a prisoner to receive credit toward time served for preconviction jail time, does not apply to a prisoner who is actually serving a sentence for a prior conviction while awaiting trial on an-

other charge. Stanley v. State, 850 So.2d 154, 156 (Miss.Ct.App.2003). In Stanley, the defendant was arrested for a crime in Mississippi and then transferred to Alabama to await trial on charges of a crime committed there. Id. at 155. The defendant was convicted and sentenced to life imprisonment for the Alabama crime. Id. Several years later, the defendant was paroled by Alabama and was returned to Mississippi, where he was convicted and sentenced to fifteen years’ imprisonment for the Mississippi crime. Id. The defendant filed a petition for post-conviction relief, claiming that, under Section 99-19-23, he was entitled to receive credit toward his Mississippi sentence for the time he had spent imprisoned in Alabama, since he was continuously incarcerated from his arrest to his conviction for the Mississippi crime. Id. The Court of Appeals rejected the defendant’s argument, finding that his reliance on Section 99-19-23 was misplaced. Id. at 156. The court reasoned that the purpose of Section 99-19-23 is to ensure that a person who, for some reason, cannot obtain release on bail prior to trial, is credited for that period of incarceration if ultimately convicted. Id. That statute does not, however, require the courts to allow credit toward one sentence for confinement on another sentence already being served. Id. at 157. The Court of Appeals held that “a prisoner actually serving time for another conviction is not, within the meaning of Section 99-19-23, being held to await trial.” Id.

¶ 14. Under our holding in Feazell, the Court of Appeals’ reasoning in Stanley applies equally to the calculation of time served for the purposes of Section 99-19-23 and Section 99-19-83. Thus, if Rice is not entitled to have his preconviction jail time in Cause 3 credited as time served in that cause, then the State cannot count that same time against Rice for the purposes of sentencing him as a habitual offender in a subsequent ease. However, we find that this case is distinguishable from Stanley because Rice’s sentences in Cause 2 and Cause 3 were ordered to run concurrently.

¶ 15. This Court has held that “serving one year or more on concurrent sentences imposed for separate convictions arising out of separate incidents at different times amounts to serving more than one year on each sentence” for the purposes of Section 99-19-83. Bogard, 624 So.2d at 1321. Therefore, each day served on Rice’s sentence in Cause 2 would also count as time served in Cause 3. Gloria Gibbs explained that it was MDOC’s policy to calculate concurrent sentences by beginning with the first date of incarceration for the first cause. Because Rice’s sentence in Cause 3 was ordered to run concurrently with his sentence in Cause 2, which he was already serving, Gibbs testified that MDOC began calculating his sentences for both causes on January 19, 1990-the day his probation was revoked and he was first incarcerated in Cause 2. The one year and 145 days Rice served toward his sentence in Cause 2 while awaiting trial in Cause 3 began to count as time served in Cause 3 when the trial court ordered the two sentences to run concurrently. Therefore, the trial court correctly counted Rice’s preconviction jail time in Cause 3 as time served in that cause for the purposes of Section 99-19-83 and found that Rice clearly had served more than one year of his sentence in Cause 3. We find that Rice’s argument is without merit.

II. Whether the trial court judge erred in failing to recuse himself from considering Rice’s petition for post-conviction relief.

¶ 16. The Honorable Ashley Hines presided over Rice’s trial for auto burglary in Cause 4. On appeal, Rice argues that Judge Hines abused his discretion in failing to recuse himself sua sponte from the post-conviction proceedings. Rice claims that Judge Hines was disqualified from presiding over the post-conviction hearing because he had participated in Rice’s conviction and sentencing in Cause 4.

1117. We find Rice’s argument here to be procedurally barred. Rule 1.15 of the Uniform Rules of Circuit and County Court Practice allows any party to move for the recusal of a judge “if it appears that the judge’s impartiality might be questioned by a reasonable person knowing all the circumstances[.]” URCCC 1.15. However, URCCC 1.15 requires a motion for recusal to be filed “within 30 days following notification to the parties of the name of the judge assigned to the case[.]” Id. The record reflects that Rice never moved to have Judge Hines recused from the post-conviction proceedings, written or otherwise. The failure to seek recusal generally is considered implied consent to have the judge go forward in presiding over the case. Tubwell v. Grant, 760 So.2d 687, 689 (Miss.2000). Because Rice never raised the issue of recusal before the trial court, he consented to have Judge Hines preside over the post-conviction proceeding, and any argument to the contrary on appeal is barred.

¶ 18. Notwithstanding the procedural bar, Rice’s argument fails on its merits. This Court applies an objective test to determine whether a trial judge should have recused himself in a particular matter. “A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality.” Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986). The judge is presumed to be qualified and unbiased, and the challenger bears the burden of overcoming this presumption. Turner v. State, 573 So.2d 657, 678 (Miss.1990). This presumption is overcome only by evidence raising a reasonable doubt as to the validity of the presumption. Bredemeier v. Jackson, 689 So.2d 770, 774 (Miss.1997).

¶ 19. Rice claims that Judge Hines erred in failing to recuse himself from the' post-conviction proceeding because he actively had engaged in Rice’s prosecution and conviction. “Where one actively engages in any way in the prosecution, he is disqualified from sitting as a judge in any matter which involves that conviction.” Banana v. State, 638 So.2d 1329, 1330 (Miss.1994) (citing Moore v. State, 573 So.2d 688, 689 (Miss.1990) (internal citation omitted)). See also Miss. Code of Judicial Conduct, Canon 3E(1)(b). This Court previously has found trial judges to be disqualified from ruling on cases in which they previously had served as prosecutors. See Jenkins v. State, 570 So.2d 1191 (Miss.1990) (trial judge ruling on defendant’s post-conviction motion had prosecuted defendant in the underlying criminal trial). However, Judge Hines never served as a member of the prosecution against Rice, and therefore did not actively engage in Rice’s prosecution or conviction.

¶ 20. Nevertheless, Rice points out that Judge Hines allowed the State to amend Rice’s indictment in Cause 4 to charge Rice as a habitual offender and imposed the habitual-offender life sentence that Rice later challenged in the post-conviction proceeding. We find that these assertions alone do not raise a reasonable doubt as to the presumption of Judge Hines’s impartiality, but merely indicate that Judge Hines was following Section 99-19-83 of the Mississippi Code as applied to the ease. After reviewing the transcript of the post-conviction proceeding, we can find no evidence that would call into question Judge Hines’s impartiality. Judge Hines was very accommodating to Rice, a pro se litigant, and allowed him to voice all of his arguments and objections during the post-conviction-relief hearing. Because Rice has failed to present this Court with evidence raising a reasonable doubt as to Judge Hines’s presumed impartiality, we find Rice’s argument to be without merit.

III. Whether Rice’s sentence in Cause 4 constitutes cruel and unusual punishment.

¶21. Rice argues that the trial court in Cause 4 erred in sentencing him to life without parole, claiming that such a sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment because it is grossly disproportionate to the crime of auto burglary. Factual and legal issues raised in a petition for post-conviction relief that were decided at trial or on direct appeal are barred by res judicata. Miss.Code Ann. § 99-39-21(3) (Rev.2007). Because the Court of Appeals considered and rejected Rice’s Eighth Amendment argument on direct appeal, the doctrine of res judicata bars him from raising it again.

¶ 22. Notwithstanding the procedural bar, we find Rice’s argument here to be without merit. Sentencing is within the complete discretion of the trial court and is not subject to appellate review if it is within the limits prescribed by statute. Reynolds v. State, 585 So.2d 753, 756 (Miss.1991) (citations omitted). Rice was convicted of three separate felonies prior to his conviction in Cause 4. The State used two of these prior convictions to charge Rice as a habitual offender in Cause 4. After determining that the State had satisfied the elements of Section 99-19-83, the trial court sentenced him to life without parole. Rice’s sentence was within the limits set by the statute. We find that Rice’s sentence does not “[lead] to an inference of ‘gross disproportionality[,]’” such that an extended proportionality analysis is warranted. Wilkerson v. State, 731 So.2d 1173, 1183 (Miss.1999) (quoting Smallwood v. Johnson, 73 F.3d 1343, 1347 (5th Cir.1996)).

CONCLUSION

¶ 23. The trial court did not err in finding that Rice served one year or more of his sentence in Cause 3. In addition, Rice waived his recusal argument by failing to file a recusal motion in the trial court. Finally, Rice’s argument regarding the proportionality of his sentence is barred by res judicata, as it was decided on Rice’s direct appeal. Accordingly, this Court affirms the trial court’s denial of Rice’s petition for post-conviction relief.

¶ 24. AFFIRMED.

DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . The State did not include Rice’s conviction in Cause 2 in the habitual-offender portion of Rice's indictment.

      . Rice filed his first petition for post-conviction relief in 2005 to challenge the validity of his sentence in Cause 3. Rice v. State, 910 So.2d 1163, 1165 (Miss.Ct.App.2005). Rice asserted that the trial court lacked the authority to order his sentence in Cause 3 to run concurrently with his sentence in Cause 2, which had been imposed during a previous court term. Id. The Court of Appeals found that Rice was procedurally barred from seeking post-conviction relief because his petition was time-barred, and because his sentence for Cause 3 had expired. Id. at 1166-67. In addition, the court found that Rice’s bare allegation of an illegal sentence was not supported by the record. Id.

      .A "pen pack” is a collection of inmate records maintained by MDOC. See Galloway v. State, 122 So.3d 614, 698 n. 7 (Miss.2013) (citations omitted).

      . Rice was initially sentenced on February 11, 1988, to a three-year suspended sentence with three years of probation in Cause 2. On or about December 29, 1989, while serving probation in Cause 2, Rice was arrested for burglary in Cause 3. On January 19, 1990, the Sunflower County Circuit Court revoked Rice's suspended sentence in Cause 2 due to his violation of probation. On January 22, 1990, Rice was indicted in Cause 3. Accordingly, between January 22, 1990, and June 12, 1991, Rice was both serving his sentence in Cause 2 and awaiting resolution of charges against him in Cause 3. After June 12, 1991, Rice was serving his sentence in both causes. Rice’s pen packs in Cause 2 and Cause 3 indicate that he was given twenty-one days’ credit for time served in those causes for the time period between his arrest in Cause 3 and the revocation of his suspended sentence in Cause 2.


source: Caselaw Access Project

author: LAMAR, Justice, KITCHENS, Justice,

license: Public Domain

text:
    Johnny Ray SIMS a/k/a Johnny R. Sims v. STATE of Mississippi.
    No. 2011-CT-01459-SCT.
    Supreme Court of Mississippi.
    March 20, 2014.

      Johnny Ray Sims, appellant, pro se.
    Office of the Attorney General by Laura H. Tedder, attorney for appellee.
   ON WRIT OF CERTIORARI

LAMAR, Justice,

for the Court:

¶ 1. In a multi-count indictment, Johnny Ray Sims was charged with three counts of aggravated assault, with each count alleging a separate victim. The trial court subsequently accepted the defendant’s best-interest guilty plea to one count of aggravated assault and dismissed the remaining counts. As part of his sentence, Sims was ordered to pay restitution to an alleged victim named in one of the dismissed counts. More than three years later, Sims filed a petition for post-conviction relief, raising a claim of illegal sentence, among several other claims. The trial court dismissed Sims’s petition as time-barred and successive, and the Court of Appeals affirmed the dismissal. We granted Sims’s petition for writ of certiora-ri to review his claim that restitution related to a dismissed charge was improper.

FACTS

On September 13, 2003, Sergeant Pearlie Hendricks saw Sims’s vehicle outside an AutoZone store in Columbia, Mississippi. Sergeant Hendricks knew Sims and believed he had warrants for his arrest. She contacted dispatch to confirm that the warrants were active, and they were. Sims’s girlfriend, Angelina Robinson, was a passenger in the vehicle. When Sergeant Hendricks approached the vehicle, she asked Robinson to open the door. Robinson complied. Sergeant Hendricks tried to speak to Sims through the opening, but Sims told Robinson to close the door. He then drove off at a high rate of speed with police officers in pursuit. During the pursuit, Sims ran a red light and collided with a vehicle driven by Mary Beth Broome. Sims continued to drive, striking a second vehicle driven by Virgie Stevens. Sims’s vehicle then struck a tree, injuring Robinson. Sims exited the vehicle and fled on foot.

¶ 2. Based on these events, Sims was indicted on three separate counts of aggravated assault: Count I for injuries to Virgie Stevens (driver of the second car), Count II for injuries to Angelina Robinson (Sims’s passenger), and Count III for injuries to Mary Beth Broome (driver of the first car).

¶ 3. Sims entered a “best interest” or Alford plea to the count of aggravated assault that pertained to Mary Beth Broome. Upon recommendation of the State, the trial court dismissed the two remaining counts of aggravated assault, but ordered Sims to pay restitution to Mary Beth Broome and Virgie Stevens. Sims was ordered to pay $4,000 to Broome and $6,000 to Stevens.

¶ 4. Sims petitioned for post-conviction relief in the trial court, and his petition was dismissed as time-barred and successive. Addressing the merits, the Court of Appeals affirmed the dismissal and rejected Sims’s argument that restitution to Stevens was an illegal punishment.

STANDARD OF REVIEW

¶ 5. To succeed on appeal from a trial court’s dismissal of a motion impost-conviction relief, the defendant must demonstrate that the trial court’s decision was “clearly erroneous.” When questions of law are raised, the appellate court will examine such issues de novo.

DISCUSSION

¶ 6. In this case, the trial court dismissed Sims’s petition as time-barred, applying the three-year statute of limitations found in Mississippi Code Section 99-39-5(2). Sims claims that the trial court could not legally order him to pay restitution to the alleged victim of a crime for which he was not convicted. As this Court has recognized, an illegal punishment is an exception to post-conviction procedural bars. Therefore, we will address the merits of Sims’s petition.

¶7. The restitution statute provides that “[w]hen a person is convicted of criminal activities which have resulted in pecuniary damages, in addition to any other sentence it may impose, the court may order that the defendant make restitution to the victim.” Prior to accepting his plea of guilty, the trial judge asked the prosecutor to state for the record the facts the State could prove if the case went to trial. The State’s offer of proof at the plea hearing established that Sims struck two vehicles and crashed his car into a tree during a high-speed chase he initiated in an attempt to flee law-enforcement officers. As a result of the collisions, three women were injured and incurred medical expenses. Following the State’s recitation of the facts, the court said “then, Johnny Ray Sims, before I accept your plea, is there anything you want to change about what we’ve gone over?” Sims replied, “No, sir.” As such, it was undisputed that three people suffered pecuniary damages as a result of Sims’s criminal activities. The trial court was well within its discretion to impose restitution for the benefit of any victim “whom the court determines ... suffered pecuniary damages as a result of the defendant’s criminal activities.”

¶ 8. Sims pleaded guilty to the charge of aggravated assault against Broome and was ordered to pay restitution to Broome and Stevens. In exchange, the State agreed to dismiss the charges of aggravated assault against Stevens and Robinson. Sims argues that ordering him to pay restitution to Stevens without a corresponding aggravated-assault conviction constituted a legally void punishment to which Sims could not agree. We disagree.

¶ 9. Our caselaw is abundantly clear that a defendant can forego rights— even constitutional rights — in order to avoid more severe punishment. This Court in the Butler decision found that:

Although the authority to impose restitution flows from the adjudication of guilt or the defendant’s plea of guilty, that is not to say that restitution may not be imposed at any stage of the criminal process through informal, government-sanctioned compromises and settlements between offender and victim so long as detention is not used to induce an agreement.

Sims was ably represented and advised of his constitutional rights when he stood before the Court and entered a plea of guilty. Paragraph 11 of Sims’s sworn plea petition states:

I declare that no officer or agent of any branch of government (Federal, State or Local) has made any promise or suggestion of any kind to me, or within my knowledge to anyone else, that I will receive a lighter sentence, or probation, or any other form of leniency if I plead “GUILTY”, except: Drop 2 Counts of Aggravated Assault.

So in exchange for his plea of guilty, two aggravated-assault charges against Sims were dismissed. We find Sims waived any objection to the restitution order. The restitution statute states that “[i]f the defendant objects to the imposition, amount, or distribution of restitution the court shall, at the time of sentencing, allow him to be heard on such issue.” But if the defendant fails to object at the time of sentencing, he waives any objection to the imposition, amount, or distribution of restitution. Neither Sims nor his attorney ever objected — either at the plea hearing or two weeks later at the sentencing hearing — to the imposition of the restitution or the amount or the distribution of the restitution ordered. Sims should not now be allowed to complain. For these reasons, we affirm the trial court’s dismissal of Sims’s petition for post-conviction relief and the Court of Appeals’ affirmance thereof.

¶10. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., PIERCE AND COLEMAN, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P. J., CHANDLER AND KING, JJ.

KITCHENS, Justice,

dissenting:

¶ 11. I respectfully dissent. Sims was convicted only of the assault of Mary Beth Broome. Virgie Stevens was not a victim of Sims’s assault upon Mary Beth Broome, and thus I find that the imposition of restitution for Stevens within the sentencing process for a crime committed against Broome constitutes an illegal punishment.

¶ 12. The majority recounts that, “[f]ol-lowing the State’s recitation of the facts, the court said, ‘then, Johnny Ray Sims, before I accept your plea, is there anything you want to change about what we’ve gone over?’ ” Sims replied, “ ‘No, sir.’ ” Based on the cited colloquy, the majority opines that, “it was undisputed that three people suffered pecuniary damages as a result of Sims’s criminal activities.” Under Mississippi Code Section 99-37-3, which defines “criminal conduct” for the purposes of the restitution statute, the majority implies that Sims admitted criminal conduct resulting in pecuniary loss to all three victims, since he interposed no objection to the State’s recitation of the facts. But the State never made “an offer of proof ... before the court and the defendant at the plea hearing” that “three women were injured and incurred medical expenses” as a result of Sims’s conduct, as the majority posits. The majority is correct that the State offered proof “that Sims struck two vehicles and crashed his car into a tree during a high-speed chase he initiated in an attempt to flee law-enforcement officers.” But the State mentioned only one victim, Broome: “Through medical testimony, the State would expect to prove that Mary Beth Broome’s vehicle was struck by Mr. Sims’fs] vehicle, and that crash caused her to have cervical disk displacement.” No offer of proof was made with regard to any injuries and medical expenses incurred by Stevens or Angelina Robinson, Sims’s passenger. Respectfully, the majority’s conclusion that Sims admitted causing pecuniary harm to all three victims does not follow from the record.

¶ 13. Further, before the underlying facts of the case were read to the court by the prosecutor, the following exchange occurred:

Judge: You’re ready, then, to enter your plea?
Sims: Yes, sir.
Sims’s Attorney: Your Honor, I’d just like to bring to the court’s attention this is a plea in his best interest.
Judge: Okay. I don’t need to have the charge formally read to you, then?
Sims: No, Sir.
Judge: You understand what it is?
Sims: Yes, Sir.
Judge: It’s a charge of aggravated assault. And to that charge, Johnny Ray Sims, how do you plead?
Sims: Guilty.

(Emphasis added.) The judge clearly indicated during the plea colloquy that Sims was pleading guilty to a single charge of aggravated assault. Later, however, after reciting the factual basis for the charge, the prosecutor stated, “for the record, the State agrees, upon acceptance of his guilty plea in Count Three, the State agrees to dismiss Counts One and Two, but asks that restitution be considered for all three counts.” (Emphasis added.) This is the first point in the record at which the State expressed its intention to seek restitution for all three individuals named in the three original counts of the indictment, and there is nothing to show that Sims was aware of the State’s objective prior to its post-plea announcement.

¶ 14. The majority correctly observes that “a defendant can forego rights — even constitutional rights — in order to avoid more severe punishment.” This presupposes, however, that Sims actually agreed to plead guilty to the aggravated assault upon Broome and to pay restitution to Broome and Stevens. According to the majority, “Sims pleaded guilty to the charge of aggravated assault against Broome and was ordered to pay restitution to Broome and Stevens. In exchange, the State agreed to dismiss the charges of aggravated assault against Stevens and Robinson.” (Emphasis added.) The Court of Appeals articulated a similar analysis: “it seems obvious that Sims had a plea agreement or, at the least, an understanding, that if he pleaded guilty to one of the aggravated-assault counts, the State would dismiss the other two counts upon Sims’s agreement that he would pay restitution to all the victims.” Sims v. State, 134 So.3d 317, 327-28 (Miss.Ct.App.2013). I do not disagree with the majority that “in exchange for his plea of guilty, two aggravated-assault charges against Sims were dismissed.” But the record is entirely devoid of any agreement, oral or written, between Sims and the State regarding payment of restitution in exchange for a guilty plea, and we decline to take the speculative leaps necessary to such a finding.

¶ 15. The majority cites Butler v. State, 544 So.2d 816, 821 (Miss.1989), for the proposition that restitution may “be imposed at any stage of the criminal process through informal, government-sanctioned compromises and settlements between offender and victim so long as detention is not used to induce an agreement.” In Butler, however, the defendant was convicted of one count of manslaughter, his prison sentence was suspended, and he was placed on probation. As a condition of his probation, Butler was ordered to make monthly payments to the minor child of the victim as “child support.” Id. On appeal, the defendant challenged the payments, arguing that they were outside the scope of Mississippi Code Section 99-37-1. Id.

¶ 16. Examining the statutory language, the Butler Court recognized that “it appears that the payment of restitution is not limited only to the person that has been directly injured by a guilty party; the payment of restitution can also be éxtended to members of the victim’s family who suffer pecuniary damages.” Id. at 821. This Court also determined that lost child support was a “type of special damages that is encompassed under the [restitution] statute.” Id. at 823. However, the Court ultimately reversed and voided the support aspect of the court-ordered restitution, because it never had been established that the victim was the child’s biological father. Id. Because the child was born during the mother’s marriage to another man, her husband was the presumed father, not the victim. Id. (“The presumption that a child born in wedlock is the legitimate child of the husband is one of the strongest presumptions known to law and may be overcome only by proof beyond a reasonable doubt that the husband is not the father.”) (citations omitted). The Court found that the child of the victim was not “a legally eligible recipient,” because, without the paternity of the decedent having been judicially established in a paternity hearing, the legal presumption of paternity remained in effect. Id.

¶ 17. The case before us is readily distinguished from Butler since, in that case, the defendant’s criminal act would have deprived the victim’s minor child of financial support, if, indeed, paternity had been established. Unlike Butler, any pecuniary damage suffered by Stevens was not a consequence of Broome’s injuries. Stevens’s injuries were neither directly nor indirectly tied to Broome’s status as a victim of the crime for which Sims was convicted.

¶ 18. Even though all of the original counts may have arisen from the same high-speed chase and allegedly involved the same perpetrator, each count constituted an independent, stand-alone charge. The rules adopted by this Court authorizing the use of multiple count indictments clearly contemplate distinct charges. URCCC 7.07(A) (“Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense ....”) (emphasis added). The rule also requires “a separate verdict for each count,” and “[w]hen a defendant is convicted of two (2) or more offenses charged in separate counts of an indictment, the court shall impose separate sentences for each such conviction.” URCCC 7.07(C), (D) (emphasis added). Because each count of aggravated assault specified only one victim, Virgie Stevens cannot be a victim of the count of aggravated assault that applied to Mary Beth Broome, absent some relevant familial relationship between the two. See Butler, 544 So.2d 816 (parent and child).

¶ 19. Further, notwithstanding the conclusion of the majority and the Court of Appeals below that Sims had agreed that the State’s offer to dismiss two of the aggravated assault charges included his paying restitution to all of the victims, a defendant cannot agree to a legally void punishment. The trial judge was without authority to assess Sims with Stevens’s pecuniary damages. The count of aggravated assault against Stevens was dismissed at the instance of the State. Therefore, the court’s ordering Sims to pay restitution to Stevens constituted punishment for a crime of which he was not convicted, and, at the point at which the restitution to Stevens was ordered, with which Sims was not charged. Clearly, the punishment exceeded that authorized by the legislature. See, e.g., Nichols v. State, 826 So.2d 1288, 1291 (Miss.2002) (“[S]en-tencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.”) (emphasis added). See also Butler, 544 So.2d at 828 (holding that, despite the defendant’s acceptance of restitution as a condition of probation, the provision ordering payments was void because the recipient was not “legally eligible”). Thus, I find that the imposition of restitution to Stevens is void as an illegal punishment.

¶ 20. Finally, the majority echoes the argument of the Court of Appeals, citing Shook v. State, 552 So.2d 841, 851 (Miss. 1989), that “Sims should not now be allowed to complain,” since neither he nor his trial attorney objected to the imposition or amount of restitution. But Shook was ordered to pay restitution after having been convicted and sentenced “on one count of aggravated assault and of shooting into an occupied dwelling.” Id. at 843. Here, the trial court ordered that Sims pay restitution for the count of aggravated assault to which he pled guilty, and the trial court ordered that Sims pay restitution for one of the two counts of aggravated assault which the trial court had dismissed. Thus, Shook is distinguishable. Likewise, the majority cites Harris v. State, 757 So.2d 195, 199 (Miss.2000). However, at issue in Harris was the amount of restitution rather than the legality of the ordered restitution. This Court stated “that by failing to object at sentencing to imposition of a specified amount for restitution for the vietim[,] [defendant] waived this issue on appeal.” Id. (emphasis added) (citing Powell v. State, 536 So.2d 13, 17 (Miss.1988)). Harris is distinguishable from the present case because the question before us is the legality of the restitution rather than its specified amount.

¶ 21. Because Sims was convicted only of the assault of Mary Beth Broome, I would hold that court-ordered restitution to Stevens exceeded the bounds of Mississippi Code Section 99-37-1, and I would reverse the Marion County Circuit Court’s dismissal of Sims’s petition for post-conviction relief, as well as the Court of Appeals’ affirmance of that dismissal. I therefore respectfully dissent.

DICKINSON, P.J., CHANDLER AND KING, JJ., JOIN THIS OPINION.

      . Sims v. State, 134 So.3d 317, 322-23 (Miss.Ct.App.2013).

      . Sims, 134 So.3d at 319-20.

      . See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (under a "best interest plea," the accused "may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”).

      . Brown v. State, 731 So.2d 595, 598 (Miss. 1999).

      . Id.

      . Rowland v. State, 98 So.3d 1032, 1036 (Miss.2012); see also Miss.Code Ann. § 99-39 — 5(1)(a) (Rev.2007) (providing an exception for illegal sentences).

      . Miss.Code Ann. § 99-37-3 (Rev.2007). The restitution statute includes the following definitions:
      "Criminal activities” shall mean any offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant.
      Miss.Code Ann. § 99-37-l(a).
      "Restitution” shall mean full, partial or nominal payment of pecuniary damages to a victim.
      Miss.Code Ann. § 99-37-l(c).
      “Victim” shall mean any person whom the court determines has suffered pecuniary damages as a result of the defendant’s criminal activities.
      Miss.Code Ann. § 99 — 37—1(d).

      . Miss.Code Ann. § 99-37-l(d).

      . See Twillie v. State, 892 So.2d 187 (Miss.2004). In Twillie, the defendant moved to withdraw his guilty plea to life without the possibility of parole, alleging it “was an impermissible ex post facto application of the law.” Id. at 188. The trial court denied Twillie’s motion and Twillie appealed. Id. This Court affirmed the denial, finding Twillie had knowingly and intelligently waived his ex post facto claim based on the transcript of his plea-hearing testimony. Id. at 191.

      . Butler v. State, 544 So.2d 816, 821 (Miss.1989).

      . Miss.Code Ann. § 99-37-3(3) (Rev.2007).

      . Shook v. State, 552 So.2d 841, 851 (Miss.1989); see also Harris, 757 So.2d at 199, and Powell v. State, 536 So.2d 13, 17 (Miss.1988).

      . Shook, 552 So.2d at 851.


author: JESS H. DICKINSON, PRESIDING JUSTICE RANDOLPH, PRESIDING JUSTICE,

text:
    Charles Ray CRAWFORD, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-DR-02147-SCT.
    Supreme Court of Mississippi.
    April 1, 2014.
   EN BANC ORDER

This matter comes before the en banc Court on the State’s Motion to Disqualify the Office of Capital Post-Conviction Counsel in this Case Because of a Conflict of Interest. After review, the Court has determined that the motion is not well taken and should be denied.

It is therefore ORDERED, that the State’s Motion to Disqualify the Office of Capital Post-Conviction Counsel in this Case Because of a Conflict of Interest is hereby denied.

SO ORDERED.

/s/ Jess H. Dickinson

JESS H. DICKINSON, PRESIDING JUSTICE

TO DENY: WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, KING AND COLEMAN, JJ.

RANDOLPH, P.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY CHANDLER AND PIERCE, JJ.

RANDOLPH, PRESIDING JUSTICE,

OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

¶ 1. I decline to join today’s order, without passing on the merits of the State’s “Motion to Disqualify the Office of Capital Post-Conviction Counsel” and Crawford’s “Opposition to the State’s Motion to Disqualify the Office of Capital Post-Conviction Counsel.” I would pass this matter for consideration with Crawford’s “Motion for Leave to File Successive Petition for Post-Conviction Relief.”

¶ 2. Additionally, the Court has failed to address Crawford’s “Motion to Seal Documents.” I would deny that motion, as it fails to comport with Mississippi Rule of Appellate Procedure 48(a). The public should have access to the pleadings and exhibits which this Court will consider regarding Crawford’s new claims.

CHANDLER AND PIERCE, JJ., JOIN THIS STATEMENT.


author: BARNES, J.,

text:
    Chris HARRELL a/k/a Christopher Harrell, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01571-COA.
    Court of Appeals of Mississippi.
    Nov. 6, 2012.
    Rehearing Denied April 23, 2013.

      William R. Labarre, Virginia Lynn Watkins, Alison Oliver Kelly, attorneys for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. Christopher Harrell was convicted for the murder of Frank Damico and for possession of a firearm by a felon. For the capital murder conviction, he was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC); for the possession charge, he was sentenced to ten years, to be served concurrently with his capital murder sentence. On appeal, Harrell argues that errors in the jury instructions and in the admission of evidence warrant a new trial.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. In March 2008, twenty-year-old Harrell was involved in an aggravated assault in Holmes County, Mississippi. Since he was on probation, he escaped to Jackson, Mississippi, to hide from law enforcement. While staying with a female acquaintance in Jackson, he met Frank Damico, a fifty-four-year-old man, who regularly assisted his elderly neighbors with errands. One neighbor had even loaned Damico her brother’s blue Mercury Grand Marquis in exchange for helping her with errands, taking her to church, and taking her to see her brother at the hospital.

¶ 3. On April 6, 2008, Harrell obtained a ride from Damico, presumably to go to a nearby convenience store. A few hours later, Damico’s friends noted that he was missing and contacted the police. Two days later, on April 8, 2008, Harrell called his mother, Martha Engalmann, to tell her that he was coming home to Holmes County. Aware that her son was wanted by law enforcement, Engalmann alerted the local sheriff that Harrell would be at her house. Early the next morning, Holmes County sheriffs deputies went to Engalmann’s home and found Harrell sleeping. A handgun was near the bed. Law enforcement recovered a blue Mercury behind a church near Engalmann’s home; the lining in the trunk had been removed. Harrell had possession of the keys.

¶ 4. On April 15, 2008, Damico was found dead, his body lying in a creek in Holmes County. It was later determined that Damico had died from a gunshot wound to his head. In a series of statements given between April 9, 2008, and June 26, 2008, Harrell gave conflicting stories as to how he came into possession of the car and what had happened to Damico. On April 10, 2008, before Damico’s body had been found, Harrell admitted that he “was at Frank’s house on West Haven” and that Damico had given him a ride to a motel to meet up with a guy named “Shorty.” Harrell claimed Damico left with Shorty, and when Shorty returned with the car, Dami-co was not with him. Yet, in another statement, Harrell claimed that he had never heard of Damico and that Shorty told him he got the car from a guy during a drug deal. He said Shorty gave him the car to use. Then, on May 8, 2008, Harrell said that Shorty left with Damico, and when he returned, Damico’s body was in the trunk. Harrell said he saw the body in the trunk, and he showed Shorty where to dump the body in Holmes County.

¶ 5. However, in Harrell’s June 19, 2008 statement to the Mississippi Bureau of Investigations (MBI), he changed his story again, claiming Damico drove him to see Shorty so that Damico could purchase drugs. Harrell claimed that Shorty had shot Damico in the head two times and that he helped Shorty put the body in the trunk. In his final interview on June 26, 2008, Harrell said Damico took him to see Shorty, and Shorty shot Damico during an argument.

¶ 6. On August 5, 2010, a Hinds County Circuit Court jury convicted Harrell of Count I, capital murder while in the commission of a robbery, and Count II, possession of a firearm by a felon. For Count I, he was sentenced to life imprisonment in the custody of the MDOC; for Count II, he was sentenced to ten years, to be served concurrently with the sentence in Count I. Harrell filed a motion for a judgment notwithstanding the verdict (JNOV), or in the alternative, a new trial. The circuit court denied the motion.

¶ 7. On appeal, Harrell challenges the circuit court’s admission of witness testimony and the giving of three jury instructions. Finding no reversible error, we affirm the circuit court’s judgment.

I. Whether Harrell was denied due process as a result of the circuit court’s failure to give a jury instruction on the underlying felony of robbery.

¶ 8. Harrell argues it was error for the circuit court to admit Jury Instruction S-l, as there was no additional instruction given containing the elements of the underly-

ing felony of robbery. Jury Instruction S-1 stated, in pertinent part:

The Defendant, Christopher Harrell, has been charged in the indictment with the offense of Capital Murder in Count One. The Court instructs the jury that if you find from the evidence in this case beyond a reasonable doubt that:
1. The Defendant, Christopher Harrell;
2. On or about April 6, 2008, in the First Judicial District of Hinds County, Mississippi;
3. Did purposely, knowingly and fe-loniously did murder one, Frank Damico, a human being;
4. with deliberate design or while in the commission of an act eminently dangerous evincing a depraved heart, without the authority of law;
5. and not in necessary self defense!;]
6. at a time when he[,] the said Christopher Harrell!,] was then and there engaged in the commission of the crime of robbery of the said Frank Damicol,]
then you shall find the defendant, guilty of Capital Murder in Count One.

(Emphasis added).

¶ 9. “[J]ury instructions are to be read together and taken as a whole with no one instruction taken out of context.” Davis v. State, 980 So.2d 951, 958 (¶ 12) (Miss.Ct.App.2007) (quoting Austin v. State, 784 So.2d 186, 192 (¶18) (Miss.2001)). If the jury instructions, when read as a whole, “fairly announce the law of the case and create no injustice, no reversible error will be found.” Jackson v. State, 28 So.3d 638, 641 (¶ 7) (Miss.Ct.App.2009) (quoting Johnson v. State, 823 So.2d 582, 584 (¶ 4) (Miss.Ct.App.2002)).

¶ 10. There was no specific objection to the instruction at trial on this ground, nor did the defense submit an instruction on the elements of robbery. Cases from the Mississippi Supreme Court have rejected an appellant’s claim on this issue when there has been a failure to object or request the appropriate instruction. See Gray v. State, 472 So.2d 409, 416 (Miss.1985) (overruled on other grounds) (defendant’s failure to object to instructions offered by the State and failure to submit an instruction on the elements of underlying felony “operates to waive any objection in this issue”). In Ballenger v. State, 667 So.2d 1242, 1252 (Miss.1995), the supreme court considered a case similar to the present one, where no instruction was given to the jury regarding the elements of robbery, the underlying felony to the capital murder charge. The court held it “incumbent upon Ballenger to request an appropriate instruction regarding the elements of robbery.” Id. Therefore, “[t]he combined failure to object or to request an appropriate instruction operate[d] to waive any objection on this issue.” Id. (quoting Gray, 472 So.2d at 416).

¶ 11. Thus, we must find plain error in order to reverse the circuit court’s judgment.

In order to prevail under the plain-error doctrine, an appellant must show that there was an error in the trial court and that the error resulted in a “manifest miscarriage of justice.” Furthermore, this Court may only apply the plain-error doctrine when the error complained of affects a defendant’s fundamental or substantial rights.

Blunt v. State, 55 So.3d 207, 211 (¶ 16) (Miss.Ct.App.2011). “The granting of a jury instruction that does not fully instruct on the elements of the crime amounts to plain error.” Davis, 980 So.2d at 958 (¶ 12) (citing Berry v. State, 728 So.2d 568, 571 (¶ 6) (Miss.1999)); see also Robinson v. State, 42 So.3d 598, 606 (¶ 27) (Miss.Ct.App.2010) (lack of jury instruction regarding elements of crime “impacts” defendant’s “fundamental right to due process.” (citing Shaffer v. State, 740 So.2d 273, 282 (¶ 31) (Miss.1998))).

¶ 12. Shortly after Ballenger, the supreme court decided Hunter v. State, 684 So.2d 625 (Miss.1996), a case where an instruction on the elements of robbery, the underlying offense, was submitted by the defense but refused by the trial court. Id. at 636. The Hunter court found that “even though the defendant did not present an acceptable instruction, the State was obligated to do so.” Id. Therefore, the case was reversed and remanded for “[t]he failure to instruct the jury on the elements of the underlying crime of robbery.” Id. at 637. As a result of the court’s ruling in Hunter, Ballenger submitted a motion for post-conviction relief (PCR), arguing that the intervening law meant the procedural bar to his PCR should not apply. The supreme court agreed in Ballenger v. State, 761 So.2d 214 (Miss.2000), noting the similarities between the issues in Ballenger I and Hunter and the discrepancies in the outcomes of those cases. In a 5-4 decision, the supreme court vacated Ballenger’s sentence and remanded for a new trial. Id. at 220.

¶ 13. In another case, Shaffer, 740 So.2d at 282 (¶ 33), the supreme court reiterated its position, finding that the failure to include the phrase “evincing a depraved heart, regardless of human life,” from a jury instruction was reversible error. The supreme court noted: “Instructing the jury on every element of the charged crime is so basic to our system of justice that it should be enforced by reversal in every case where inadequate instructions are given, regardless of a failure to object or making a different objection at trial.” Id. at (¶ 31). In Moses v. State, 795 So.2d 569, 574 (¶22) (Miss.Ct.App.2001), this Court found plain error in jury instructions that were generic and did not relate to specific charges in a multi-count indictment:

There simply are no shortcuts available to the due process requirements of the criminal process, which include, at a minimum, a complete disclosure of the nature of the charges through the indictment, specific proof by competent evidence showing the commission of the act beyond a reasonable doubt, and a submission of the ease for decision to a jury that is fully instructed as to both the law pertaining to the essential elements of the crime and those critical facts it must find to have occurred as to each charge in order to convict.

(Emphasis added).

¶ 14. However, in Kolberg v. State, 829 So.2d 29 (Miss.2002), the supreme court revisited its decisions in Hunter, Ballen-ger, and Shaffer. In Kolberg, there was no jury instruction given concerning the underlying felony of child abuse. Neither party addressed this issue at trial, and Kolberg did not raise it in his motion for a new trial. It was not until the State mentioned the issue in its response to Kol-berg’s motion for a new trial that Kolberg brought the issue to the court’s attention, citing Hunter. Id. at 46 (¶ 24). The circuit court noted Kolberg’s failure to object but ruled on the merits, finding that the jury was fully instructed, and denied the motion for a new trial. Id. at (¶ 25). On appeal, the supreme court stated:

[B]ecause the trial court is responsible for assuring that the jury is fully and properly instructed on all issues of law relevant to the case, because there can be no doubt that error was committed in failing to instruct the jury on the underlying felony, and because of the current status of the law in this State on this crucial issue, we address, on the merits, the issue of whether the trial court’s failure to instruct the jury in this capital murder case on the underlying felony of child abuse was reversible error.

Id. at (¶ 26).

¶ 15. The Kolberg court concluded, however, that there was “absolutely no way that this lack of information on the part of the jury affected the outcome of this case.” Id. at 51 (¶ 42). Looking at the “overwhelming evidence” of guilt, the supreme court held that “the error in failing to instruct the jury on the underlying felony of child abuse was harmless error because ‘it is clear beyond a reasonable doubt that it did not contribute to the verdict.’ ” Id. at (¶ 43) (quoting Conley v. State, 790 So.2d 773, 793 (¶72) (Miss.2001)). However, the court was quick to warn:

[W]e implore the trial courts to be alert to the need to assure that the jury is adequately instructed on the underlying felony in a capital murder trial. We also acknowledge that our decisions in many cases are “fact-driven” thereby meaning that, even in applying a “harmless error analysis,” had the facts in this case been different, the result here certainly could have been different. We make this statement as a caveat in future capital murder prosecutions under the provisions of Mississippi] Code Annotated section] 97 — 3—19(2) (e) — (f), that should the trial court fail to instruct the jury on the underlying felony, even in applying a “harmless error analysis,” this Court may still be compelled, based on the facts and/or the particular underlying felony, to find such failure to be reversible error.

Id. at 50-51 (¶40); see also Conerly v. State, 879 So.2d 1101, 1108 (¶ 26) (Miss.Ct.App.2004) (finding harmless error because “although the trial court failed to instruct the jury of the elements of aggravated assault, we can say with confidence that it appears beyond a reasonable doubt that the absence of the element instruction did not cause or contribute to the jury reaching the verdict that it reached.”).

¶ 16. As the supreme court noted in Kolberg, each ease is “fact-driven” and “must stand on its own facts.” Kolberg, 829 So.2d at 48, 50 (¶¶ 34, 40) (quoting Carleton v. State, 425 So.2d 1036, 1040 (Miss.1983)). The elements of robbery are: (1) the felonious taking of “the personal property of another, [ (2) ] in his presence or from his person and [ (3) ] against his will, [ (4) ] by violence to his person or by putting such person in fear of some immediate injury to his person[.]” Miss.Code Ann. § 97-3-73 (Rev.2006). Harrell was in possession of Damico’s blue Mercury when law enforcement arrested him. While Harrell told a variety of different stories regarding the death of Dam-ico and his possession of the vehicle, none of the versions could have Harrell guilty of participating in the murder, but not the robbery. The State proved every element of the underlying offense of robbery, and there was overwhelming evidence that Harrell was guilty of murder. Harrell has not provided this Court with any substantive argument that the verdict would have been different had the underlying elements of robbery been included in the jury instruction.

¶ 17. Consequently, based on the rulings in Kolberg and Conerly, we find there was no “manifest miscarriage of justice” here that warrants a finding of plain error. The failure to instruct the jury on the elements of the underlying felony of robbery did not affect the verdict and was harmless error. This issue is without merit.

II. Whether the circuit court erred in admitting Jury Instructions S-5 and S-6.

¶ 18. Harrell claims that the circuit court abused its discretion in giving Jury Instruction S-5, which concerned unexplained flight from law enforcement, and Jury Instruction S-6, which concerned aiding and abetting. Jury Instruction S-5 read:

The Court instructs the Jury that flight is a circumstance from whieh[,] in the absence of a reasonable explanation therefor, guilty knowledge and fear may be inferred. If you find from the evidence in this case, beyond a reasonable doubt[,] that the defendant, Christopher Harrell[,] did flee or go into hiding after killing Frank Damico, then the flight of Christopher Harrell is to be considered in connection with all other evidence in this case. You will determine from all the facts whether the flight was from a conscious sense of guilt of whether it was caused by other things, and give it such weight as you think it is entitled to in determining the guilt or innocence of Christopher Harrell.

At trial, defense counsel argued that the flight instruction should not be admitted, as any flight was related to Harrell’s armed robbery charge in Durant. Counsel further stated: “So I’m not real sure how they’re getting flight out of this because there’s no allegation of flight from Hinds County when they left Hinds County with a body to dispose of it. That’s not flight.”

¶ 19. Our supreme court has held “it is a well-established principle that flight is admissible as evidence of consciousness of guilt.” Fuselier v. State, 702 So.2d 388, 390 (¶ 4) (Miss.1997) (citation omitted). However, a flight instruction “is appropriate only where that flight is unexplained and somehow probative of guilt or guilty knowledge.” Id. (quoting Reynolds v. State, 658 So.2d 852, 856 (Miss.1995)). “When determining whether a flight instruction is appropriate, ... two considerations are paramount: (1) only unexplained flight merits a flight instruction, and (2) flight instructions are to be given only in cases where that circumstance has considerable probative value.” Id. (citations omitted). If there is an independent reason for the flight, then the evidence of flight is inadmissable. Id.

¶ 20. Harrell was wanted by law enforcement in Holmes County, which is why he had been hiding out in Jackson. Harrell admitted that he went back to Holmes County, with Damico’s body in the trunk of the car, for the purpose of dumping the body to hide the evidence of the murder. Harrell claims that returning to Holmes County to dispose of the body “provided an independent reason, such that no flight instruction could be properly given.” We disagree. A defendant’s 'attempt to dispose of evidence “show[s] that the defendant was an active participant in the flight from the officers.” English v. United States, 25 A.3d 46, 50-51 (D.C.2011). “[F]light includes fleeing, even a short distance, to wherever a defendant thinks is safe to dispose of evidence.” State v. Hatten, 297 Mont. 127, 991 P.2d 939, 949 (1999). Harrell’s return to Holmes County was not unexplained; his purpose was to dispose of the murder evidence. Furthermore, as the State argued: “[Harrell’s] flight from Jackson had no possible explanation other than that it was on account of his guilty knowledge”; thus, his flight was probative of his guilt. Accordingly, we find no error in the giving of Jury Instruction S-5.

¶ 21. Jury Instruction S-6 was an “aiding and abetting” instruction. It stated:

The guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by that person through the direction of another person as his or her agent, by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.
If another person is acting under the direction of the defendant or if the defendant joins another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts and conduct of such other persons just as though the defendant had committed the acts or engaged in such conduct.
Before any defendant may be held criminally responsible for the acts of others it is necessary that the accused deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime.
Of course, mere presence at the scene of the crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.
In other words, you may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law.

Harrell argues that the “record is devoid of any evidence showing [he] deliberately sought participation with another in the killing of Frank Damico with the intent to bring about that result.” However, Harrell did not make any objection on this basis at trial; rather, defense counsel only contended that an aiding and abetting instruction could not be given in a case where there is only one defendant. “[A]n objection on one or more specific grounds constitutes a waiver of all other grounds.” Broim v. State, 682 So.2d 340, 350 (Miss.1996). Therefore, Harrell has failed to preserve this error on appeal.

¶ 22. Notwithstanding the procedural bar, we find no error in the giving of this instruction. “[I]f a person is actually or constructively present at the offense, due to his participation, he is an aider and abettor[.]” Hooker v. State, 716 So.2d 1104, 1110 (¶ 20) (Miss.1998). Unlike a conspiracy, “aiding and abetting does not require a common plan or scheme[.]” Shumpert v. State, 935 So.2d 962, 971 (¶31) (Miss.2006). In his later statements to the MBI, Harrell admitted that he was present when Damico was shot and that he assisted “Shorty” in concealing and disposing of the body. It was also undisputed that Harrell possessed the stolen blue Mercury Marquis. Thus, we find there was sufficient evidence to support the circuit court’s giving of the “aiding and abetting” jury instruction.

III. Whether it was prejudicial error to admit Henry Peters’s testimony.

¶ 23. Henry Peters, an MDOC inmate, is a “writ writer” within the prison system, a so-called “jailhouse lawyer,” who assists other inmates with legal advice and research. Peters was housed in the Rankin County Correctional Facility with Harrell. Peters testified at trial that Harrell confided in him that he shot Damico in the head. Although the defense objected to Peters’s testimony, the court allowed it, and Harrell now claims that the admission of Peters’s testimony was prejudicial error. Harrell acknowledges that Peters is not licensed as an attorney, but he claims Peters was acting as an unauthorized legal advisor to him. Therefore, Harrell contends that Peters is held to the same confidentiality standard as a licensed attorney. See M.R.E. 502.

¶24. Under Mississippi Rule of Evidence 502(a)(3), “[a] ‘lawyer’ is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation.” At trial, Peters admitted that he was not licensed to practice law; he merely assisted prisoners with legal research. Peters said he was questioned by Harrell regarding how to transfer a case to another jurisdiction. As the State notes, most prisoners are well aware that writ writers are not lawyers; in this case, Peters did not hold himself out to be a licensed attorney. Furthermore, under Rule 6(a) of the Mississippi Rules of Discipline, attorneys who are “convicted in any court of any state or in any federal court” are suspended from the practice of law. Peters could not, therefore, be an attorney authorized to render legal assistance to others and be an inmate in prison. We find absolutely no merit to Harrell’s contention that his admission to the writ writer is entitled to protection under the attorney-client privilege.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF COUNT I, CAPITAL MURDER, WHILE IN THE COMMISSION OF A ROBBERY, AND COUNT II, POSSESSION OF A FIREARM BY A FELON, AND SENTENCES OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT POSSIBILITY OF PAROLE OR PROBATION ON COUNT I, AND TEN YEARS ON COUNT II, TO BE SERVED CONCURRENTLY WITH THE SENTENCE IN COUNT I, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . At trial, defense counsel merely commented that she did not think there was any legal authority regarding the lesser-included offense contained in the instruction. As the lesser-included-offense language is not pertinent to this issue, it was not included above.