author: ROBERTS, J.,

text:
    Stephen MONTALTO a/k/a Stephen Daniel Montalto a/k/a Stephen D. Montalto, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01625-COA.
    Court of Appeals of Mississippi.
    April 30, 2013.
    Rehearing Denied Aug. 20, 2013.

      Stephen Montalto, appellant, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Stephen Daniel Montalto entered his best-interest guilty pleas to two counts of aggravated assault in cause number 17937, oné count of kidnapping in cause number 18213, and one count of aggravated assault also in cause number 18213. The Rankin County Circuit Court accepted Montalto’s pleas on September 16, 2008, and sentenced him on September 22, 2008. Mon-talto filed two motions for post-conviction relief (PCR), one motion per cause number, on September 9, 2011. Subsequently, the circuit court entered an order summarily dismissing Montalto’s motions. It is from this summary dismissal that Mon-talto currently appeals and requests this Court grant him immediate release from the custody of the Mississippi Department of Corrections (MDOC), or, in the alternative, to set aside his guilty pleas.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 20, 2006, a Rankin County grand jury indicted Montalto in cause number 17937 for two counts of aggravated assault and one count of grand larceny stemming from events occurring on June 22-23, 2005. Then, on November 4, 2006, Montalto was involved in a series of incidents in Rankin County after he had been released on bail in September 2005. These later incidents resulted in the grand jury indicting Montalto in cause number 18213 for one count of aggravated assault, one count of kidnapping, and one count of escape.

¶ 3. Montalto initially hired the Honorable Victor Carmody to represent him. However, after his preliminary hearing, Montalto hired the Honorable Sam Wilkins as his attorney. Prior to his plea hearing, Montalto hired the Honorable Arthur R. Harris to represent him. At Montalto’s request, Dr. Gerald O’Brien evaluated Montalto at the Rankin County Detention Center on November 17, 2006. Dr. O’Brien reported that he had no opinion as to whether Montalto could rationally understand the proceedings against him, but he did have questions as to whether Montalto could sufficiently communicate with his attorney. According to his report, Dr. O’Brien stated that Mon-talto may be suffering from a significant affective disorder, possibly bipolar disorder. Dr. O’Brien recommended Montalto undergo a comprehensive evaluation to determine his competency. The circuit court subsequently entered an order in October 2007 for a mental evaluation and treatment for Montalto. The order stated that the evaluation was a result of Montal-to’s motion to be transferred to Whitfield pursuant to Mississippi Code Annotated section 99-13-11 (Rev.2007) and Uniform Rule of Circuit and County Court 4.08. Among other things, the circuit court ordered Montalto’s transfer and evaluation to determine whether he was competent to stand trial.

¶4. In February 2008, Dr. Criss Lott filed his detailed, eighteen-page evaluation report on Montalto. He evaluated Montal-to on two occasions: the first on February 4, 2008, at the Rankin County Detention Center; and the second on February 8, 2008, at Dr. Lott’s office. In his report, Dr. Lott provided the following findings:

It is my opinion, to a reasonable degree of psychological certainty, that [Montal-to] has the sufficient present ability to confer with his attorney with a reasonable degree of rational understanding, and he has a good rational and factual understanding of the nature and object of the legal proceedings against him. [Montalto] recognizes the nature and possible consequences of the charges against him. He [understands] the roles of the major participants in the court[,] and he noted that he had not had any difficulty communicating with his attorney. He had a very good understanding of the plea process.... [Montalto] should have no difficulty comprehending and communicating with his attorney about his case.

Montalto then filed a motion for an independent medical determination of his competency to stand trial. He also filed notice of his intent to use insanity as a defense at trial. At Montalto’s request, Dr. Rodrigo Galvez performed an evaluation on Montal-to. Dr. Galvez’s report, dated June 2, 2008, stated that Montalto was mentally ill and should get psychiatric treatment before trial. The report also noted that he found no family history of psychiatric illnesses or treatments and that Montalto was of average intelligence. Further, Dr. Galvez found that Montalto was “in contact with reality” and that Montalto denied he suffered from any hallucinations, delusions, or illusions. Dr. Galvez’s conclusion was that Montalto does suffer from bipolar disorder, rendering him unable to understand the consequence of his behavior during the November 4, 2006 crimes. Dr. Galvez further concluded that Montalto was unable to tell right from wrong at the time of the November 4, 2006 crimes. However, the report did not contain any opinion about Montalto’s competency to stand trial.

¶ 5. Montalto’s cases were set for trial approximately eight times, with the final agreed order setting his trial for September 16, 2008. The day before his scheduled trial, on September 15, 2008, Montalto appeared before the circuit court to enter a best-interest plea. At this hearing, the State moved to amend the indictment in cause number 17937 to correct the spelling of Montalto’s first name. Additionally the State sought to amend Count I in the same cause number. In that count, Montalto was charged with a violation of Mississippi Code Annotated section 97 — 3—7(2)(b); however, the intent language in the indictment was that of Mississippi Code Annotated section 97-3-7(2)(a). Montalto did not object to either amendment and specifically noted that the amended indictment heightened the State’s burden of proof. After granting the State’s motions to amend the indictment, the circuit court questioned Montalto as to whether he understood everything in his guilty-plea petition. Mon-talto indicated that he did not, so the circuit court allowed him to confer with his attorney. Montalto then stated that he understood everything in his guilty-plea petition, but when questioned as to whether everything in his guilty-plea petition was true and correct, Montalto responded no. The circuit court recessed the hearing and stated it could not accept Montalto’s guilty pleas and that trial would commence as scheduled on the following day.

¶ 6. On September 16, 2008, Montalto again appeared before the circuit court prior to trial to enter his best-interest pleas. Montalto informed the circuit court that he was thirty-two years old with a high school diploma and six years of college education. The circuit court questioned Montalto’s attorney if he was “of the opinion and belief [that Montalto] appreciates the nature and consequences of his actions.” Montalto’s attorney responded: “I do, your Honor. And I have specifically asked him, over the course of the last couple of days, about his medications and whether or not it would make him become unaware of what he was doing, and he satisfied me that, despite the medications, ... he understood what he was doing.” The circuit court then asked Mon-talto’s attorney whether Montalto had been able to assist in his defense; the response was ‘Tes, sir.” The circuit court then meticulously questioned Montalto about his guilty-plea petition. Montalto affirmed he had read and signed and that he understood his petition. The circuit court then explained all the elements of the crimes Montalto was pleading to committing, the minimum and maximum sentences possible, and the constitutional rights he would be waiving as a result of the pleas. Montalto indicated that he understood these explanations. The State presented its factual basis for each charge, and Montalto agreed that the State could prove each factual basis. Montalto also affirmed that he was entering his pleas not under any threat, force, intimidation, or promises of reward. The circuit court also questioned Montalto about his satisfaction with his attorney’s performance. Montalto had no complaints about his attorney’s performance and was satisfied with his representation. The State announced that, as a result of negotiations, the following recommendation would be presented: twenty years for Count I in cause number 17937, twenty years for Count I in cause number 18213, twenty years for Count II in cause number 17937, and twenty years for Count II in cause number 18213. The sentences in Count I of both cause numbers would run concurrently to one another. The sentences in Count II of both cause numbers would run concurrently to one another. The sentences in Counts I and II would run consecutively to one another. Further, and importantly, the sentences in Count II in both cause numbers would be suspended, and Montalto would be placed on five years of supervised probation. Montalto would also be subject to registration as a sex offender because the kidnapping offense involved a young child. The State also recommended that Counts III in both cause numbers would be dismissed upon the circuit court’s acceptance of Montalto’s pleas. After Montalto expressed some confusion regarding the recommendation, the circuit court stated that it “believe[d Montalto] understood] what the recommendation was[,]” but that it was not too late to stop the hearing if Montalto desired. Montalto again expressed his desire to continue with the hearing and proceeded to plead guilty to the charges. The circuit court accepted Montalto’s pleas as freely, voluntarily, and knowingly given and found that there was a sufficient factual basis provided.

¶ 7. The State then sought to put in the record that while Montalto had filed a notice of intent to use insanity as a defense, an expert had found Montalto to be sane and competent. The circuit court made a clear finding of Montalto’s present competency when it stated that “it was clear to [it] that [Montalto] was aware of what was going on[,] and [he] was participating with [his attorney] in his defense .... And under [the] circumstances, [the circuit court was] convinced that he [was] aware of what [was] going on, and this [was] a valid plea, or otherwise, [the circuit court] would not have taken it.” Sentencing was postponed until September 22, 2008.

¶ 8. At his sentencing hearing, Montalto asked the court to “see to it that [he receive] the medical and mental treatment that [he needed] so [he could] continue with [his] life.” Montalto’s attorney also stated that Montalto was on medication for a mental illness, “which is easing some of the burden that he himself ha[d] been living with for the last few years.” The State responded that none of the psychological reports indicated that Montalto was not competent to stand trial or enter a plea. The circuit court accepted the State’s above recommendation as to Mon-talto’s sentence. Montalto was also ordered to pay court costs of $615, to be paid within six months of his release.

¶ 9. Montalto filed his pro se PCR motions on September 9, 2011. His PCR motion in cause number 17937 alleged ineffective assistance of counsel, an improper indictment, and violations of his due-process rights. In cause number 18213, Mon-talto’s PCR motion claimed a violation of his due-process rights and ineffective assistance of counsel. The circuit court summarily dismissed Montalto’s PCR motions. Feeling aggrieved, Montalto executed the current appeal and argues that his due-process rights were violated and that he received ineffective assistance of counsel.

STANDARD OF REVIEW

¶ 10. “When reviewing a circuit court’s denial or dismissal of a PCR motion, we will reverse the judgment of the circuit court only if its factual findings are ‘clearly erroneous’; however, we review the circuit court’s legal conclusions under a de novo standard of review.” Boyd v. State, 65 So.3d 358, 360 (¶ 10) (Miss.Ct.App.2011).

ANALYSIS

I. DUE PROCESS

¶ 11. In regard to his due-process rights, Montalto claims that the failure of the circuit court to conduct a competency hearing was a violation and that there was a two-year delay in having the ordered psychiatric exam performed. Additionally, he submits that the suppression of a police surveillance video was a violation of his due-process rights and that his Miranda rights were violated. Montalto also claims that the State’s amendment to the indictment was impermissible. Lastly, he claims that his guilty pleas were involuntary because they were induced by fear and false promises.

A. Competency

¶ 12. There are two distinct instances in which a defendant’s mental state of mind may become relevant: (1) at the time of the crime, or (2) at trial or the guilty-plea hearing. “[C]ompetency to stand trial is an entirely different issue from an insanity defense because the latter concerns the defendant’s present mental capacity while the former relates to a past mental state.” Sanders v. State, 9 So.3d 1132, 1137 (¶ 21) (Miss.2009) (citation omitted). The supreme court has adopted the standard for determining competency based on the seminal case of Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). “The standard for competence to stand trial is whether the defendant has ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding1 and ‘has a rational as well as factual understanding of the proceedings against him.’ ” Martin v. State, 871 So.2d 693, 697-98 (¶ 17) (Miss.2004) (quoting Dusky, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824). The test for insanity at the time of the crimes differs from the determination of competency to stand trial or enter a guilty plea.

In Mississippi, the test set forth in M’Naghten’s Case, 10 Clark & F. 200, 210, 8 Eng. Rep. 718, 722 (1843), is applied by our courts in determining the sanity of a defendant. For a defendant to be found insane, he must not have had “the ability to realize and appreciate the nature and quality of his deeds when committed and the ability to distinguish between right and wrong.”

Rodgers v. State, 100 So.3d 989, 993 (¶ 12) (Miss.Ct.App.2012) (internal citation omitted) (quoting Russell v. State, 729 So.2d 781, 784 (Miss.1997)). For example, a defendant may have been M’Naghten insane at the time of the crimes, but is presently fully competent to stand trial or enter a guilty plea. Governing issues of competency at the time of trial is Uniform Rule of Circuit and County Court 9.06, which states:

If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court....
After the examination the court shall conduct a hearing to determine if the defendant is competent to stand trial. After hearing all the evidence, the court shall weigh the evidence and make a determination of whether the defendant is competent to stand trial. If the court finds that the defendant is competent to stand trial, then the court shall make the finding a matter of record and the case will then proceed to trial.

The same standard for competency applies when a defendant enters a guilty plea. Smith v. State, 831 So.2d 590, 593 (¶ 11) (Miss.Ct.App.2002).

¶ 13. First, we note Montalto argues that there was a two-year delay between when the circuit court ordered a psychiatric evaluation of Montalto and when the court-ordered evaluation was actually performed by Dr. Lott. The psychiatric evaluation was ordered in October 2007, and Dr. Lott’s evaluations of Montalto and report were filed with the circuit court in February 2008. Thus, Montalto’s claim is without merit, as two years did not pass.

¶ 14. Next, we address Montalto’s claim that the circuit court erred in failing to conduct a competency hearing after the circuit court ordered a psychiatric evaluation, including an evaluation of his competency to stand trial. According to Montal-to, there existed at least one opinion from a doctor concerned about Montalto’s ability to communicate with his attorney about the current legal situation.

¶ 15. Uniform Rule of Circuit and County Court 2.04 states: “It is the duty of the movant, when a motion or other pleading is filed, ... to pursue said motion to hearing and decision by the court. Failure to pursue a pretrial motion to hearing and decision before trial is deemed an abandonment of that motion.... ” Although the record does not contain the motion from Montalto, the circuit court’s order granting a mental evaluation stated that it was before the circuit court “on the motion of the [defendant....” After Dr. Lott’s evaluation and report were filed with the circuit court, Montalto filed a motion for an independent medical determination on the issue of Montalto’s competency. Following that motion, Montalto was evaluated by Dr. Galvez. In his report, Dr. Galvez stated that Montalto should be given “adequate psychiatric treatment before he goes to trial.” Dr. Galvez made no definitive statement finding Montalto presently incompetent. The record contains no other evidence that Montalto or his attorney attempted to request the circuit court hold a hearing on Montalto’s competency. Further, in response to the circuit court’s detailed questioning at the guilty-plea hearing on whether he was “of the opinion and belief [that Montalto] appreciate^] the nature and consequences of his actions[,]” Montal-to’s attorney responded affirmatively and noted that Montalto “satisfied [him] that, despite the medications, ... he [understood] what he was doing.” Montalto’s attorney also stated that Montalto was able to assist in his own defense. Further, in Montalto’s guilty-plea petition, Montalto and his attorney both signed a certificate of attorney of record, which contained the following statement: “Having discussed this matter carefully with [Montalto], I [ (Montalto’s attorney) ] am satisfied that he is mentally competent and physically sound; there is no mental or physical condition of which I am aware which would affect his ability to understand these proceedings .... ” Later in the guilty-plea hearing, the circuit court stated “for the record ... that it was clear ... that [Mon-talto] was aware of what was going on and [was] participating with [his attorney] in his defense.” The circuit court also noted that Montalto was “the one that raised best interest yesterday [at the guilty-plea hearing]. And under these circumstances, [the circuit court was] convinced that [Montalto was] aware of what [was] going on, and this [was] a valid guilty plea.... ” As was stated above, the record contains no evidence that Montalto or his attorney expressed concern about Montalto’s competency or lack of a competency hearing when entering his guilty pleas. Montalto’s abandonment of the motion notwithstanding, we still find that the circuit court made an implicit, if not explicit, finding based upon the totality of the evidence before it that Montalto was presently competent. We detect no reversible error in the circuit court’s failure to hold a separate and distinct competency hearing.

¶ 16. Most recently in Sanders v. State, 9 So.3d at 1133, the Mississippi Supreme Court reversed and remanded the case for a new trial due to the circuit court’s failure to conduct a competency hearing pursuant to Rule 9.06. However, we find Sanders is distinguishable from the present case. In Sanders, the supreme court stated:

[0]ne may argue or speculate that the appellate record before us today was sufficient to assume that [Keith] Sanders was competent to stand trial. However, we reiterate the fact that the appellate record before use contains no evidence that Sanders was found to be competent to stand trial. At a minimum, there was no definitive testimony or report that determined Sanders competent to stand trial. Thus, we are bound by the record before us. Without any evidence concerning Sanders’s competency to stand trial, to hold that testimony regarding sanity at the time of the offense is sufficient to demonstrate competency to stand trial would disregard and blur the well-established distinction between the two legal concepts.

Sanders, 9 So.3d at 1139 (¶ 25). In the present case, the appellate record provides evidence that Montalto was competent to enter his guilty pleas. First, we have Dr. Lott’s report finding that Montalto was competent to go to trial or enter a guilty plea. In Sanders, the circuit court did not make a finding on the record regarding Sanders’s competency; whereas, in the present case, the circuit court stated that it was clearly satisfied with Montalto’s understanding of the crimes and charges and his ability to confer with his attorney. Montalto’s attorney even confirmed Mon-talto’s present competency to enter his guilty pleas. Also, Montalto asked the circuit court if he would get credit for time he spent in pretrial detainment. As such, we find Montalto’s case distinguishable from Sanders and that there is sufficient evidence contained in the record for this Court to likewise conclude that Montalto was competent to enter his guilty pleas.

¶ 17. This issue is without merit.

B. Voluntariness of the Pleas

¶ 18. Montalto next argues that his pleas were involuntary because they were the product of fear and false promises. “A plea is considered voluntary when the defendant knows what the elements are of the charge against him including an understanding of the charge and its relation to him, what effect the plea will have, and what the possible sentence might be because of his plea.” Pearson v. State, 906 So.2d 788, 791-92 (¶ 11) (Miss.Ct.App.2004) (citing Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991)). Montalto claims on appeal that he was told he would be eligible for parole after one year and that he was improperly medicated. A review of the record reveals that Montalto expressed that he was not threatened or intimidated into entering guilty pleas, nor was he promised or given hope of a reward for entering guilty pleas. He also affirmed that he was the one that decided to enter his guilty pleas. Statements made in open court under oath “carry a strong presumption of veracity.” Nichols v. State, 955 So.2d 962, 965 (¶ 6) (Miss.Ct.App.2007) (quoting Herrod v. State, 901 So.2d 635, 636 (¶ 5) (Miss.Ct.App.2004)). Montalto has not presented any other evidence besides the assertions in his brief that he was promised anything in exchange for his guilty pleas, or that he was intimidated into entering his guilty pleas.

¶ 19. This issue is without merit.

C. Suppression of Evidence, Miranda Violations, and Amended Indictment

¶ 20. Because we find that Montalto entered voluntary and valid guilty pleas, his claim involving his Miranda rights, and his claim that the circuit court improperly suppressed police surveillance videos have been waived. “[A] valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial.” Anderson v. State, 577 So.2d 390, 391 (Miss.1991) (citing Ellzey v. State, 196 So.2d 889, 892 (Miss.1967)); see also Jones v. State, 922 So.2d 31, 33-34 (¶¶ 4-8) (Miss.Ct.App.2006) (citations omitted).

¶ 21. Montalto also contends that the circuit court erred in allowing the State to amend his indictment. Montalto was charged with a violation of Mississippi Code Annotated section 97 — 3—7(2)(b); however, the intent language in the indictment was that of Mississippi Code Annotated section 97-3-7(2)(a). First, we find that Montalto was given fair notice of the crimes with which he was charged. Mon-talto did not object to the amendment and specifically noted that the amended indictment heightened the State’s burden of proof. Further, a valid guilty plea waives certain constitutional rights, including in-sufficiencies or defects of form in the indictment. Shields v. State, 75 So.3d 86, 89 (¶ 9) (Miss.Ct.App.2011) (citing Conerly v. State, 607 So.2d 1153, 1156 (Miss.1992)). The amendments to Montalto’s indictment were of form and not substance, and it does not appear that Montalto was in any way prejudiced by the amendment since he desired to plead guilty to the amended counts. Therefore, this issue is without merit.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 22. “In order to prevail on a claim of ineffective assistance of counsel, a defendant must prove that his attorney’s performance was deficient, and that the deficiency was so substantial as to deprive [him] of a fair trial.” Parker v. State, 30 So.3d 1222, 1233 (¶ 37) (Miss.2010) (citations omitted). Additionally, “an appellate court must strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance.” Robinson v. State, 75 So.3d 1148, 1152 (¶ 14) (Miss.Ct.App.2011) (quoting Liddell v. State, 7 So.3d 217, 219 (¶ 6) (Miss.2009)). In the context of reviewing a guilty plea, “the defendant must show that, were it not for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Burrough v. State, 9 So.3d 368, 375 (¶ 22) (Miss.2009).

¶ 23. Montalto asserts a variety of claims that his attorney was deficient. Some of those claims include: that his attorney failed to properly research Mon-talto’s background and mental illness; that his attorney did not present any exculpatory or mitigating evidence at his plea or sentencing hearings; that his attorney failed to challenge the police’s theory of the case; that his attorney did not investigate any other individuals involved in the incidents; and that his attorney did not protect his right to a speedy trial.

¶ 24. While Montalto raises these alleged deficiencies, he nowhere claims that, were it not for the deficiencies, he would have insisted on going to trial and would not have entered his guilty pleas. A review of the record indicates that Montalto did not dispute that he committed the crimes and that the State had a strong case against him, including a confession. His claims primarily involve his attorney’s failure to investigate his mental state at the time of the crimes; however, once found competent to enter a guilty plea, Montalto’s mental state at the time of the crime is not relevant to the validity of his guilty pleas. M’Naghten insanity at the time of the crimes is an affirmative defense that must be pled, and, when disputed, the affirmative defense is normally resolved by a jury at trial. An otherwise valid guilty plea waives this affirmative defense. Additionally, Montalto was initially indicted for two counts of aggravated assault and one count of grand larceny in cause number 17937 and one count of kidnapping, one count of aggravated assault, and one count of escape in cause number 18213. With the help of his attorney, Montalto negotiated the dismissal of two charges and was only sentenced to serve, on all remaining four counts, forty years in the custody of the MDOC, with twenty years of the sentence suspended and five years of supervised probation. Solely based on the three aggravated-assault charges, Montalto could have been sentenced up to sixty years in the custody of the MDOC had he gone to trial. Montalto was subject to a possible life sentence for kidnapping. We simply cannot conclude that Montalto has shown that he would have insisted on going to trial but for his attorney’s deficiencies. He makes no such claim.

¶ 25. Finally, the supreme court “has implicitly recognized in the post-conviction relief context that where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995) (citing Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990)). Montalto submits nothing else beyond his brief to support his assertions; thus, we can find no merit in his argument.

¶ 26. 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., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL AND FAIR, JJ„ CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT. JAMES, J., CONCURS IN PART.

      . In cause number 17937, Montalto was charged with violating Mississippi Code Annotated section 97 — 3—7(2)(b) (Rev.2006). This statute has since been amended in 2012, and the numbering in the amended version differs from the prior version. For the purposes of this opinion, we will rely on the prior version.

      . The record is void of any expert report or opinion that Montalto was legally insane when committing the June 22-23, 2005 crimes in cause number 17937.

      . Section 97-3-7(2)(b) requires unlawful, knowing, and purposeful intent, while section 97-3-7(2)(a) requires recklessness under circumstances manifesting extreme indifference to the value of human life.

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

      . Montalto does not dispute that these incidents occurred; however, he does claim that his intent was incorrectly perceived as being malicious and dangerous when, in actuality, his mental illness convinced him that his actions were helpful.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Richard REEVES, Lauren Drummond, Rega, Inc., Meridian Home Center, Inc. and Rega Pipeline, LLC, Appellants v. MIDCONTINENT EXPRESS PIPELINE, LLC, Appellee.
    No. 2011-CA-01817-COA.
    Court of Appeals of Mississippi.
    May 14, 2013.
    Rehearing Denied Aug. 20, 2013.

      Roy H. Liddell, Ridgeland, Eric A. Tie-bauer Jr., Waynesboro, Kevin Alan Rogers, Ridgeland, attorneys for appellants.
    William L. Smith, William C. Reeves, Jackson, Donald Alan Windham, Bradley Mason Reeves, Jackson, Ronnie L. Walton, Meridian, attorneys for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. REGA Pipeline LLC (REGA) filed a complaint in the Smith County Circuit Court against Midcontinent Express Pipeline LLC (MEP), Bryan Gable, Smith County Lime Plant LLC, and Blue Diamond Minerals Inc. REGA’s specific claims against MEP included breach of contract, intentional breach of contract, breach of the implied covenant of good faith and fair dealing, negligent and intentional interference with a contract, and defamation.

¶ 2. MEP subsequently filed motions to sever the claims and for a change in venue. The Smith County Circuit Court granted MEP’s motions, finding that the claims against the other defendants were unrelated to those claims against MEP. The court severed the claims against MEP and transferred these claims to the Clarke County Circuit Court.

¶ 3. In May 2011, MEP filed a motion for summary judgment, which was granted. REGA now appeals, asserting that the Smith County Circuit Court abused its discretion in transferring venue to Clarke County and that the Clarke County Circuit Court erred in granting summary judgment to MEP on REGA’s claims based on breach of contract, intentional interference with a contract, and quantum meruit.

FACTS

If 4. In 2009, MEP began construction on a natural-gas pipeline to begin in Oklahoma and end in Alabama. MEP contracted with numerous general contractors for the construction of specified lengths of the pipeline, called “Spreads.” Henkels and McCoy Inc. (Henkels) was hired to construct a portion of the pipeline, part of which ran through Clarke County. Henk-els hired REGA as a subcontractor for the first stages of construction to clear the right-of-way for its portion, identified as Spread 10. REGA contends that it had an oral agreement with MEP to perform additional work on the pipeline not included in Spread 10, and that it made preparations to handle the additional work.

¶ 5. The contract between Henkels and REGA provided for the clearing of 340,560 linear feet of the right-of-way beginning March 7, 2009, and to be completed by May 14, 2009. Although there was no written contract between MEP and REGA, the contract between MEP and Henkels stated that any subcontractor hired by Henkels was subject to approval by MEP. However, the contract between MEP and Henkels further stated that MEP’s review of any subcontractor did not constitute an employer-employee relationship between MEP and such a subcontractor, nor did MEP retain any control over the actions, work, or payment of the subcontractor. The subcontract between Henkels and REGA and the contract between Henkels and MEP specified that time was of the essence. Both the contract between MEP and Henkels and the contract between Henkels and REGA stated they contained the entire agreement between the parties and superseded any prior oral or written understandings of any kind between the parties.

¶ 6. After eleven days, REGA had cleared less than 10,000 linear feet. On March 18, 2009, Henkels notified REGA that it needed to clear 5,800 linear feet per day in order to complete the project on schedule, and that it needed to clear 29,000 linear feet by March 20 in order to stay on schedule. REGA was ultimately terminated by Henkels for failing to remedy its performance defects. REGA claimed that it was terminated for failing to pay approximately $80,000 in kickbacks to Henkels. REGA further contended it was unjustly terminated for certain environmental violations that were manufactured by MEP solely for the purpose of terminating REGA’s contract with Henkels.

STANDARD OF REVIEW

¶ 7. In reviewing a trial court’s grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., Inc., 716 So.2d 543, 547 (¶ 13) (Miss.1998). Summary judgment “shall be rendered ... if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). This Court will consider all of the evidence before the trial court in the light most favorable to the nonmoving party. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995). The party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

DISCUSSION

I. VENUE

¶8. In its first issue on appeal, REGA argues the Smith County Circuit Court abused its discretion in transferring the case to Clarke County. Specifically, REGA contends the Smith County Circuit Court should have allowed REGA to choose the forum. The standard of review for a transfer of venue is abuse of discretion. Laurel Ford Lincoln-Mercury, Inc. v. Blakeney, 81 So.3d 1123, 1125 (¶ 5) (Miss.2012). After severing the claims against MEP, the trial court determined that, pursuant to Mississippi Code Annotated section 11-11-3 (Rev.2004) and considering “judicial economy and efficiency,” venue should be transferred to Clarke County. REGA then filed a motion for relief pursuant to Mississippi Rule of Civil Procedure 60(b)(6) asking the trial court to reconsider. This motion was filed on November 5, 2010, approximately one month after the order transferring venue was entered. The trial court denied REGA’s motion.

¶ 9. Section ll-ll-3(l)(a)(i) states:

Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.

MEP was a nonresident defendant; thus, venue was appropriate in Clarke County because the “substantial alleged act” or “substantial event” causing the injury occurred there. We find no abuse of discretion by the trial court in transferring venue to Clarke County. We further note that REGA sought a scheduling order and a trial setting in Clarke County. See Fredericks v. Malouf, 82 So.3d 579, 582 (¶ 16) (Miss.2012) (“Venue is an affirmative right that generally may be waived or abandoned.”). This issue is without merit.

II. BREACH-OF-CONTRACT CLAIM

¶ 10. In its second issue on appeal, REGA contends the trial court erred in granting MEP’s motion for summary judgment. Specifically, REGA contends it had an oral contract with MEP to perform all of the right-of-way clearing in Mississippi, not just Spread 10. MEP denies the existence of any oral contract with REGA. The existence of an oral contract is a fact issue. Putt v. City of Corinth, 579 So.2d 534, 538 (Miss.1991). “The formation of a contract, either oral or written, requires (1) an offer, (2) acceptance of the offer, and (3) consideration.” Scott v. Magnolia Lady, Inc., 843 So.2d 94, 96 (¶ 9) (Miss.Ct.App.2003).

¶ 11. The trial court did not find any specific terms of an agreement between REGA and MEP; thus, the essential elements of an oral contract were not met. According to Billy Brown, a REGA employee who was deposed pursuant to Mississippi Rule of Civil Procedure 30(b)(6), Dennis Egger of MEP discussed future business between the two companies. Brown admitted that their discussions “never did reach negotiation stage” and that material terms still needed to be negotiated. Brown also answered affirmatively when asked if Egger was “promising” REGA a contract. Richard Reeves, an owner of REGA, stated he met once with Egger in a parking lot to discuss REGA doing work for MEP. It is unclear from Reeves’s deposition as to what exactly Egger promised REGA. In his deposition, Egger stated he did not promise to give REGA work; he only stated that he would put REGA in touch with the spread contractors. Egger said he ultimately did facilitate a meeting between Henkels and REGA, which led to Henkels hiring REGA. Egger also stated REGA understood it was too small of a company to be considered a spread contractor.

¶ 12. The evidence submitted to the trial court does not support the formation of an oral contract; rather, the evidence shows at most the intention of MEP and REGA to enter into a future contract. “[M]ere agreements to agree are unenforceable.” Denbury Onshore, LLC v. Precision Welding, Inc., 98 So.3d 449, 453 (¶ 14) (Miss.2012). We agree with the trial court and find no contract was formed between the parties. This issue is without merit.

III. INTENTIONAL INTERFERENCE WITH A CONTRACT

¶ 13. REGA contends MEP intentionally interfered with its contract with Henkels for several reasons: REGA refused to pay $80,000 in kickbacks to Henk-els; REGA was terminated due to its noncompliance with environmental regulations and not for its failure to clear a certain number of linear feet; and MEP changed a wetland sign in order to find REGA in violation of the environmental regulations. “An action for [intentional] interference with [a] contract ordinarily lies when a party maliciously interferes with a valid and enforceable contract, causing one party not to perform and resulting in injury to the other contracting party.” Hollywood Cemetery Ass’n v. Bd. of Mayor & Selectmen of McComb City, 760 So.2d 715, 719 (¶ 15) (Miss.2000) (citation omitted). To prevail on an intentional-interference-with-a-contract claim, REGA must prove the following:

(1) that the acts were intentional and willful; (2) that they were calculated to cause damage to the plaintiff in his/her lawful business; (3) that they were done with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the defendant (which acts constitute malice); and (4) that actual damage or loss resulted.

Scruggs, Millette, Bozeman & Dent, P.A. v. Merkel & Cocke, P.A., 910 So.2d 1093, 1098 (¶ 23) (Miss.2005) (citation omitted). REGA must also “prove that the contract would have been performed but for the alleged interference.” Par Indus., Inc. v. Target Container Co., 708 So.2d 44, 48 (¶ 8) (Miss.1998).

¶ 14. Since REGA never contends that MEP was involved in the purported kickback scheme with Henkels, we fail to see how this supports REGA’s claim for intentional interference with a contract.

¶ 15. To support its argument concerning MEP changing a wetland sign, REGA submitted a deposition from Sam Clark, a former employee of Henkels, and an affidavit from Fred Phillips, a former employee of Henkels and REGA. The trial court found Phillips’s affidavit to be insufficient since it “contains no indication of personal knowledge, and simply makes broad con-clusory allegations unsupported by specific facts.” Under Mississippi Rule of Civil Procedure 56(e), “supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein.” “A conclusory, self-serving affidavit, unsupported by material facts relevant to the proposition at issue, is insufficient as a basis to grant summary judgment.” Dal ton v. Cellular S., Inc., 20 So.3d 1227, 1238-34 (¶ 14) (Miss.2009). Phillips’s affidavit makes broad conclusory allegations, such as “REGA was wrongfully delayed by MEP [i]nspectors on several occasions” or “MEP and Nick Walters of Henkels & McCoy acted together to terminate [REGA] because of [REGA’s] refusal to pay kickbacks.” Phillips does state that MEP changed a wetland sign with a magic marker. However, Phillips does not state that any of this information is based on his first-hand knowledge.

¶ 16. In his deposition, of which only certain pages are included in the record, Clark stated he was in the Henkels office when he overheard Jerry Vickery, Gary Zak, Bobby Kerbo, and Nick Walters discussing changing wetland signs on the project site to get REGA terminated. Clark called Vickery, Zak, and Kerbo “MEP representatives,” but in reality these men were inspectors working for Mustang Engineering (Mustang). Clark did acknowledge that these three men worked for Mustang and Walters worked for Henkels. Clark admittedly had no personal knowledge of anyone changing the wetland sign; he only heard it had happened. MEP submitted the affidavit of Kevin Dahncke, who was vice president of construction for Kinder Morgan and was directly responsible for the construction and installation of the pipeline. Kinder Morgan was one of the owners of MEP. Dahncke investigated REGA’s claims that Vickery, Zak, and Kerbo were MEP representatives. Dahncke determined that the three men worked for Mustang, and any environmental inspectors during construction of the pipeline were independent contractors.

¶ 17. Upon reviewing the record de novo, we find REGA has failed to prove the existence of a genuine issue of fact that MEP maliciously interfered with the contract between REGA and Henkels. All of REGA’s evidence, much of which consists of hearsay and is not based on personal knowledge, points toward bad behavior by Henkels, whom REGA has not filed suit against. We find this issue to be without merit.

IV. QUANTUM MERUIT

¶ 18. In its last issue, REGA contends the trial court erred in granting summary judgment to MEP on its quantum meruit claim. REGA claims it purchased equipment and hired staff in anticipation of the MEP project, but was never paid since MEP failed to deliver on its promise. Recovery under quantum meruit “may be premised either on express or ‘implied’ contract, and a prerequisite to establishing grounds for quantum meruit recovery is [the] claimant’s reasonable expectation of compensation.” Tupelo Redevelopment Agency v. Gray Corp., 972 So.2d 495, 514 (¶ 56) (Miss.2007) (quoting In re Estate of Fitzner, 881 So.2d 164, 173 (¶ 25) (Miss.2003)). The essential elements of recovery under a quantum meruit claim are:

(1) valuable services were rendered or materials furnished; (2) for the person sought to be charged; (3) which services and materials were accepted by the person sought to be charged, [and] used and enjoyed by him; and (4) under such circumstances as reasonably notified [the] person sought to be charged that [the] plaintiff, in performing such services, was expected to be paid by [the] person sought to be charged.

Fitzner, 881 So.2d at 173-74 (citations omitted).

¶ 19. REGA’s quantum meruit claim fails for several reasons. Since there was no contract with MEP, express or implied, we cannot find REGA had a “reasonable expectation of compensation.” Most importantly, REGA does not contend that any valuable services were actually rendered or furnished to MEP. In fact, Lauren Drummond, who owned fifty-one percent of REGA, testified all of the equipment it purchased and the personnel it hired were used on other projects, including its contract with Henkels. This issue is without merit.

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

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . Other plaintiffs included Richard Reeves; Lauren Drummond; REGA Inc.; and Meridian Home Center Inc. Reeves and Drummond had formed REGA Inc., which in turn owned REGA Pipeline. Reeves and Drummond also operated Meridian Home Center.

      . REGA should have filed a motion for reconsideration of the transfer order under Rule 60(c) rather than a Rule 60(b)(6) motion. However, motions filed pursuant to Rule 60(c) are required to be filed within ten days after the entry of the transfer order.

      . The trial court also granted summary judgment to MEP on REGA’s unjust-enrichment claim. REGA did not raise this as an issue on appeal.


text:
    Kathy HAWKINS, Appellant v. CITY OF MORTON, Appellee.
    No. 2011-CA-01047-COA.
    Court of Appeals of Mississippi.
    May 21, 2013.
    Rehearing Denied Aug. 20, 2013.

      Richard Paul Williams III, Courtney McReynolds Williams, Jackson, attorneys for appellant.
    Robert S. Addison, Jackson, Steven James Grifñn, Flowood, attorneys for ap-pellee.
   LEE, C.J.,

for the Court:

¶ 1. This is a premises-liability case filed pursuant to the Mississippi Tort Claims Act (MTCA) against the City of Morton, Mississippi. We must determine whether granting summary judgment in favor of the City was premature.

PROCEDURAL HISTORY

¶ 2. Kathy Hawkins was injured when she fell at Farris Municipal Park (the Park) in Morton on February 24, 2009. Hawkins and her husband, Eddie Hawkins, were walking in a grassy area from their car to a baseball field when Hawkins stepped over wooden crossties and slipped on gravel. Hawkins broke her ankle.

¶ 3. Hawkins filed suit against the City alleging it was negligent for various reasons. The City filed a motion for summary judgment. After a hearing, the Scott County Circuit Court granted the City’s motion for summary judgment, finding that Mississippi Code Annotated section ll-46-9(l)(v) (Rev.2012) was a complete bar to Hawkins’s recovery. Hawkins now appeals asserting the trial court erred by: (1) finding section ll-46-9(l)(v) was a complete bar to her recovery; (2) finding the danger was open and obvious; (3) finding she was a licensee, not an invitee; and (4) finding the case involved active, not passive, negligence. Finding section 11-46-9(l)(v) to be applicable, we affirm.

FACTS

¶ 4. Hawkins testified via deposition that she and her husband parked in a grassy area adjacent to a gravel road. Rather than walk down the gravel road to the main sidewalk, they decided to cut through a grassy area to get to the baseball field. The main sidewalk was estimated to be forty yards from where Hawkins and her husband parked. Hawkins admittedly saw the wooden crossties and knew she would have to step over them to continue to the baseball field. Eddie, Hawkins’s husband, saw the crossties as well and warned Hawkins to be careful. Although the lighting was limited, Hawkins said she could see the erossties. Two crossties were stacked on top of each other making them approximately one foot high. The City had placed a row of crossties approximately one or two feet from where cars were parked next to the gravel road. There was no testimony as to how many crossties were placed in this row. There are no pictures depicting the location of the crosstie Hawkins stepped over since the crossties were later moved to their permanent location in a new parking area at the end of the gravel road.

¶ 5. Hawkins stated she placed her left foot over the crosstie and was bringing her right foot over when her right foot slipped out from under her. Hawkins says she slipped on loose gravel and dirt around the crossties. Hawkins’s right ankle was broken. In her deposition, Hawkins stated that her foot “didn’t get caught on anything. There was nothing for it to get caught on. I am assuming when it hit the loose gravel, that [loose gravel made it slip].” Hawkins also stated she did not see anything else on the ground other than the crossties. In his deposition, Eddie stated that the only thing in the area other than the crossties was gravel and “maybe a little kicked-up dirt.” Eddie thought the area was a construction zone, but there was no evidence produced to support this assumption.

¶ 6. Stephen Fournier was designated by Hawkins as an expert in the field of recreational facilities, site safety, and fall prevention. Fournier’s affidavit states the following: the City failed to maintain the area in which Hawkins was walking so as to protect against slipping, tripping, and falling; the area where Hawkins fell was not properly marked with warning signs; there was no safe alternative for the Haw-kinses to get to the baseball field; the area where Hawkins fell was not properly illuminated; the area where Hawkins fell was a dangerous condition the City failed to inspect, maintain, repair, or replace; and the dangerous condition was not open and obvious.

¶ 7. According to Billy Meeks, there was a new parking lot being constructed at the end of the gravel road. Meeks was the parks and recreation director of the City, and he testified pursuant to Mississippi Rule of Civil Procedure 30(b)(6). Meeks stated that the City had begun construction on a new parking area in October 2008, but no construction activities were occurring on the date of Hawkins’s accident. Meeks testified that the crossties were used to form a boundary around the new parking area. Meeks said some of the crossties had been placed in the area prior to Hawkins’s fall, but most were placed in the new parking area in March 2009. Meeks further stated that he and another employee routinely inspected the park each morning for problems. Meeks said they had not received any complaints regarding the crossties. Meeks testified that when visitors park where the Haw-kinses had parked, these visitors normally walk down the gravel road to the main sidewalk.

STANDARD OF REVIEW

¶ 8. In reviewing the trial court’s grant of a motion for summary judgment, this Court conducts a de novo review and “examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So.2d 977, 979 (¶ 7) (Miss.2001) (citations omitted). The moving party has the burden of demonstrating that no genuine issue of material facts exists, and the nonmoving party must be given the benefit of the doubt concerning the existence of a material fact. Id. “If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party’s favor.” Monsanto Co. v. Hall, 912 So.2d 134, 136 (¶ 5) (Miss.2005). However, the Court reviews conclusions of law, including the proper application of the MTCA, de novo. City of Jackson v. Presley, 40 So.3d 520, 522 (¶ 9) (Miss.2010).

DISCUSSION

¶ 9. The MTCA provides the exclusive civil tort remedy against a governmental entity, and as such, dictates the elements a plaintiff must satisfy to recover against the City. The MTCA, as it relates to the present case, provides, in pertinent part:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(v) Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care.

Miss.Code Ann. § 11^46-9(l)(v). In order for Hawkins to get beyond the statutory immunity provided by the MTCA, Hawkins had to show: (1) an injury was suffered; (2) the injury was caused by a dangerous condition at the Park, which was caused by the negligent or other wrongful conduct of a City employee; (3) the City had either actual or constructive notice of the dangerous condition; (4) the City had an adequate opportunity to protect or warn of this condition; and (5) the condition was not open and obvious to one exercising due care.

¶ 10. We find that there was insufficient evidence to establish a dangerous condition on the City’s property of which it had constructive notice and time to correct or warn against. Hawkins is not arguing the crossties were themselves dangerous; rather, she contends the gravel and loose dirt around the crossties was dangerous. However, there was no evidence the City caused or had actual notice of any loose dirt or gravel in the area where Hawkins fell. Meeks inspected the property daily, and there was no evidence he failed to exercise reasonable care in inspecting the Park. There was no evidence of any other complaints from visitors to the Park about the condition of the ground where Hawkins fell. Furthermore, Hawkins admits her foot did not “get caught on anything,” and stated she was “assuming when it hit the loose gravel, that [the loose gravel] made” her slip. One of Hawkins’s treating physicians indicated he was informed Hawkins “had slipped and fallen on a hillside.” The photograph of the area where Hawkins fell shows a grassy area that sloped down toward the baseball field.

¶ 11. There was much confusion in the record as to whether the area where Hawkins fell was a construction area. This confusion apparently stems from Eddie’s assumption that the area was a construction zone, due to the presence of the cross-ties. However, neither Hawkins nor her husband saw any equipment in the area where Hawkins fell to indicate the area was a construction zone.

¶ 12. Hawkins contends Fournier’s expert opinion is enough to defeat summary judgment. Fournier’s affidavit indicates he never visited the Park but merely relied upon depositions, photographs, and other discovery documents to reach a conclusion. It appears Fournier also assumed Hawkins fell in a construction area; thus, his opinion was focused on the City’s duties in regard to protecting any pedestrians walking in a construction area. We reiterate that there was no credible testimony or evidence that Hawkins did in fact fall in a construction area.

¶ 13. Finding insufficient evidence to establish that there was a dangerous condition at the Park where Hawkins fell, we affirm the trial court’s decision to grant summary judgment in favor of the City. Since we find section ll-46-9(l)(v) to be a complete bar to Hawkins’s recovery, we decline to address her remaining issues.

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

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS AND FAIR, JJ., CONCUR. JAMES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. CARLTON AND MAXWELL, JJ., NOT PARTICIPATING.


author: IRVING, P.J.,

text:
    Raphael FLOWERS, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00711-COA.
    Court of Appeals of Mississippi.
    June 11, 2013.

      Leslie S. Lee, Jackson, Erin Elizabeth Pridgen, attorneys for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. In June 2006, a Leflore County grand jury indicted Raphael Flowers on two counts of statutory rape and two counts of sexual battery. Flowers’s first trial ended in a mistrial due to misconduct by the assistant district attorney. Flowers was tried again in the Leflore County Circuit Court for two counts of statutory rape and two counts of sexual battery. The circuit court granted a mistrial on three of the counts after the jury was unable to reach a unanimous verdict, but Flowers was convicted on one count of statutory rape. Flowers appealed his conviction, and the Mississippi Supreme Court reversed the jury’s verdict, finding that Flowers’s indictment was flawed. Flowers v. State, 35 So.3d 516, 518-19 (¶ 6) (Miss.2010). The supreme court remanded Flowers to the custody of the Leflore County Sheriff until the grand jury decided if Flowers should be tried for sexual battery. Id. at 519 (¶ 7).

¶ 2. The grand jury subsequently indicted Flowers on four counts of sexual battery. However, before trial, counts two, three, and four were severed. At trial, the prosecution asked Detective Kenneth Spencer, Chief Investigator of the Leflore County Sheriff Department and one of the investigators on Flowers’s case, about the victim’s inconsistent testimony regarding whether other little boys were present and molested at the same time that he was molested. Flowers requested a mistrial, which the circuit court denied. The jury convicted Flowers of sexual battery. Flowers moved for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied. Feeling aggrieved, Flowers appeals and argues that he was deprived of a fair trial when the circuit court denied his motion for a mistrial following the prosecution’s mention of potentially prejudicial matters.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. In April 2006, Flowers was arrested after the victim, his then-seven-year-old cousin, accused Flowers of having sexual relations with him. Flowers admitted in his statement to the police that the victim had performed oral sex on him and that he had penetrated the victim anally in an abandoned house. During the trial at issue, counsel had a discussion in the judge’s chambers, with defense counsel making it clear that he would impeach the victim’s testimony and prior statements with caution, as not to open the door to other prejudicial information. More specifically, defense counsel declared that during cross-examination of Detective Spencer, he would not reference the specific content of the victim’s statements that referred to the severed counts involving other children.

¶ 5. Defense counsel asked Detective Spencer the following during cross-examination:

Q: Can you tell me whether or not you agree with me that [the victim] has given previous testimony and information that is inconsistent with what transpired at the house [and] inconsistent with the statement that’s been provided to this jury here today?
A: No, sir, I wouldn’t say that. From the initial report on up to the statement, [the victim] and your client [are] consistent.
Q: Are you familiar with the fact that [the victim] has on previous occasions placed three other children in the house when this assault allegedly occurred. Are you familiar with that fact?
A: Yes, sir, I am.
Q: My question is, would you agree or disagree that that statement is inconsistent with the statement that he provided to me?
A: If you’re asking me did he mention it, no. It’s not in the statement, no he did not at that time.

The following exchange took place during the prosecution’s redirect examination of Detective Spencer:

Q: Detective Spencer, has [the victim’s] testimony in any prior hearing ever ehange[d] from his saying that the defendant put his penis in his mouth and his butt?
A: No, sir, it’s not changed one iota.
Q: So his testimony has always been consistent, correct?
A: It has been consistent.
Q: And is this inconsistency that Mr. Horan [ (defense counsel) ] is talking about is whether other little boys were also there and molested at the same time?

¶ 6. Additional facts, as necessary, will be related during the analysis and the discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. The proper standard of review for determining whether the court erred in denying a motion for a mistrial is abuse of discretion. Gunn v. State, 56 So.3d 568, 571 (¶ 14) (Miss.2011). “A determination of whether such an error is incurable, resulting in a mistrial, rests within the sound discretion of the [circuit] court.” Snelson v. State, 704 So.2d 452, 456 (¶ 26) (Miss.1997) (citing Logsdon v. State, 183 Miss. 168, 170, 183 So. 503, 503 (1938)). In Snelson, certain remarks had “such a prejudicial effect that it [could not] be concluded that such remarks did not influence the jury.” Id. at 457 (¶ 30). Errors are deemed harmless if the same result would have been reached even without those errors. Gunn, 56 So.3d at 572 (¶ 16). “[R]eversal is not required ... when the evidence weighs overwhelmingly against the defendant.” Id.

¶ 8. Flowers admitted in his statement to the police that not only did the victim perform oral sex on him, but that he had performed anal sex on the victim, both of which fall under the definition of sexual battery pursuant to Mississippi Code Annotated section 97-3-95(l)(d) (Rev.2006). The statute states, in pertinent part, that “[a] person is guilty of sexual battery if he or she engages in sexual penetration with ... [a] child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.” Id. Sexual penetration includes both fellatio and the penetration of anal openings by any part of another person’s body. Miss. Code Ann. § 97-3-97(a) (Rev.2006). During the hearing on his motion to suppress his statement, Flowers admitted that he voluntarily signed the statement, even though he insisted that he did not know what he was signing. The evidence here clearly weighs overwhelmingly against Flowers.

¶ 9. The judge instructed the jury to disregard the prosecution’s question regarding the victim’s claim that other children were molested. The judge then emphasized that the jury should disregard all statements made by the lawyers that were not proven true by the evidence. The judge added that the jury must base its verdict upon the evidence, not on the lawyers’ arguments. “Absent unusual circumstances, where [an] objection is sustained to improper questioning!,] ... and the jury is admonished to disregard the question or testimony, [appellate courts] will not find error.” Hill v. State, 4 So.3d 1063, 1065 (¶ 16) (Miss.Ct.App.2009) (quoting Wright v. State, 540 So.2d 1, 4 (Miss.1989)). The jury is presumed to follow the instructions given by the court. Id. at 1066. There is no indication here that the jury did not follow the court’s order to disregard the statement.

¶ 10. We find that the circuit court’s denial of Flowers’s motion for a mistrial was appropriate because there is no evidence that the jury was prejudiced by the remarks made by the prosecution. This issue is without merit.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF FIFTY-FIVE YEARS AND SIX MONTHS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE COUNTY.

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


author: FAIR, J.,

text:
    Demario WALKER, Appellant v. William R. ALLEN, Appellee.
    No. 2012-CP-00506-COA.
    Court of Appeals of Mississippi.
    June 25, 2013.

      Demario Walker, appellant, pro se.
    William Polk Thomas, Tommie Sullivan Cardin, Ridgeland, attorneys for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Demario Walker has been incarcerated since 2002. He has filed over forty non-habeas lawsuits for perceived mistreatment while incarcerated. Most of them were dismissed voluntarily. In two of these lawsuits, Attorney William Allen had represented Jefferson Davis County and its board of supervisors against Walker’s claims. In 2009, Walker filed a lawsuit against Allen. Walker appeals from the trial court’s order dismissing his complaint with prejudice for failure to prosecute. We find that the trial court did not abuse its discretion in dismissing Walker’s claim after two years of inactivity. Therefore, we affirm.

FACTS

¶ 2. On February 26, 2009, Walker filed a complaint against Allen in the Forrest County Circuit Court, alleging legal malpractice, bad faith, and fraud. Allen filed his answer on October 19, 2009. On November 9, 2009, Walker filed a response to Allen’s motion for a change of venue. There was no further activity in the suit until March 25, 2011, when Allen filed a motion to dismiss for Walker’s failure to state a claim. Walker never responded to the motion. As a result, Allen also filed a motion to dismiss for failure to prosecute on November 22, 2011. On January 19, 2012, after two years of inactivity by Allen and in response to a “stale case” letter, Walker filed a motion for continuance and the case was called up for consideration of all pending motions. After a hearing on Allen’s motions, the trial court dismissed his case with prejudice. We find dismissal on that ground to be proper and affirm.

STANDARD OF REVIEW

¶ 3. “We employ an abuse-of-discretion standard when reviewing a trial court’s dismissal for failure to prosecute pursuant to Rule 41(b).” Holder v. Orange Grove Med. Specialties, P.A., 54 So.3d 192, 196 (¶ 16) (Miss.2010) (citing Am. Tel. & Tel. Co. v. Days Inn of Winona, 720 So.2d 178, 180 (¶ 6) (Miss.1998)).

DISCUSSION

¶ 4. Mississippi Rule of Civil Procedure 41(b) allows a defendant to move for the dismissal of an action when a plaintiff fails to prosecute. “Rule 41(b) embodies the tenet that any court of law or equity may exercise the power to dismiss for want of prosecution. This power, inherent to the courts, is necessary as a means to the orderly expedition of justice and the court’s control of its own docket.” Hillman v. Weatherly, 14 So.3d 721, 726 (¶ 17) (Miss.2009) (quotation and citations omitted).

¶ 5. The supreme court has adopted the standard promulgated by the Fifth Circuit for review of dismissals with prejudice for failure to prosecute under Rule 41(b). See Am. Tel. & Tel. Co., 720 So.2d at 181 (¶¶ 12-13) (citing Rogers v. Kroger Co., 669 F.2d 317 (5th Cir.1982)). Once an action has been filed, there is no set time limit for prosecution. Id. at 180 (¶ 12). Therefore, what constitutes failure to prosecute is determined on a case-by-case basis. Id. at 181 (¶ 12) (citation omitted). The propriety of a dismissal with prejudice is strengthened by the presence of aggravating factors, including: (1) “the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay,” (2) “the degree of actual prejudice to the defendant,” and (3)“whether the delay was the result of intentional conduct.” Id. at (¶ 13) (quotation omitted).

¶ 6. Walker asserts that dismissal of this case with prejudice was inappropriate. At the hearing on Allen’s motions to dismiss, Walker stated that he had not taken action in over two years because he was waiting for the court to enter a default judgment. However, Walker’s. default judgment motion was filed on November 9, 2009, the same day as his response to Allen’s motion for a change of venue. In addition, Allen had already filed an answer to Walker’s complaint on October 19, 2009. Clearly, Walker’s pro se motion for a default judgment was without merit.

¶ 7. In Tolliver ex rel. Wrongful Death Beneficiaries of Green v. Mladineo, 987 So.2d 989, 999 (¶ 25) (Miss.Ct.App.2007), this Court upheld a trial court’s dismissal after two years and five months of sparse activity. We stated that “[t]he significant question that must be asked in determining whether a plaintiff has engaged in dilatory behavior concerns the activity occurring in the case after it has been filed.” Id. at 998 (¶ 23). Finding that the record showed a clear delay on the plaintiffs behalf, this Court affirmed the trial court’s dismissal with prejudice. See id.

¶ 8. Similarly, in this case, the trial court did not abuse its discretion in dismissing Walker’s claim with prejudice based on two years of inactivity. The record shows that Walker was responsible for the delay and that the delay was, in fact, intentional. Walker admitted that he failed to take any action for over two years. “We find the trial court’s decision understandable in an effort to rid its docket’s accumulation of unprosecuted or stale cases.” Tolliver, 987 So.2d at 999 (¶ 25). For these reasons, the judgment of the trial court dismissing the suit against Allen is affirmed.

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

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


text:
    Tracy HANDY, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00682-COA.
    Court of Appeals of Mississippi.
    July 30, 2013.
    Tracy Handy, appellant, pro se.
    Office of the Attorney General by Elliott Flaggs, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS, MAXWELL and FAIR, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Tracy Handy appeals the Tishomin-go County Circuit Court’s decision to summarily dismiss his motion for post-conviction relief (PCR). Handy claims the circuit court erred when it revoked his ten-year suspended sentence for fondling. However, the circuit court correctly held that Handy’s PCR motion was procedurally barred as a successive writ. Additionally, the circuit court had the discretion to revoke Handy’s suspended sentence because Handy pled guilty to domestic violence during his term of post-release supervision. Accordingly, we affirm the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. In September 2005, Handy was convicted of fondling and sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with ten years suspended and five years to serve, followed by five years of post-release supervision. Handy served the entire balance of his initial five-year mandatory sentence.

¶ 3. After Handy began serving his five-year term of post-release supervision, he was arrested for domestic violence. The State successfully moved to revoke Handy’s suspended sentence. The circuit court revoked Handy’s ten-year suspended sentence and ordered him to serve five years “at a facility to be designated by” MDOC, with the remaining five years suspended, followed by five years of post-release supervision.

¶ 4. During December 2011, Handy filed a document styled as a “motion for reconsideration of sentence.” Within his motion, Handy claimed that the circuit court had erred when it revoked his probation. Reviewing Handy’s motion as a PCR motion, the circuit court found no merit to Handy’s claim. As a result, the circuit court denied Handy’s PCR motion.

¶ 5. In March 2012, Handy filed another PCR motion. In Handy’s second PCR motion, he again claimed that the circuit court had erred when it revoked his suspended sentence. Noting that Handy had raised the same issue in his first PCR motion, the circuit court found that Handy’s second PCR motion was procedurally barred because it was a successive writ. Additionally, the circuit court reiterated that Handy’s suspended sentence had been revoked because he had failed to “live at liberty without violating any laws.” Specifically, the circuit court again detailed that Handy had pled guilty to domestic violence while he was serving his term of post-release supervision. Accordingly, the circuit court summarily dismissed Handy’s second PCR motion. Handy appeals.

STANDARD OF REVIEW

¶ 6. “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

¶7. Handy revisits his claim that the circuit court erred when it revoked his suspended sentence. According to Handy, the circuit court denied him due process of law. Handy cites the appropriate standard regarding the minimum due-process requirements of a probation-revocation hearing. However, Handy does not specify exactly how or when the circuit court infringed on his due-process rights. As best we can tell, Handy claims that the circuit court relied on erroneous information when it revoked his suspended sentence. Handy also claims that the circuit court should not have revoked his suspended sentence because he was not delinquent regarding his obligation to pay restitution to the victim of his underlying fondling conviction.

¶ 8. We note that the circuit court summarily dismissed Handy’s second PCR motion, in which Handy had raised the exact same issues that he had raised in his first PCR motion. Mississippi Code Annotated section 99-39-23(6) (Supp.2012) provides that successive PCR motions are barred if the prisoner has filed a previous PCR motion. Accordingly, the circuit court correctly held that Handy’s second PCR motion was procedurally barred because it was a successive writ.

¶ 9. Furthermore, Handy’s suspended sentence was based upon a number of conditions, including the condition that he “shall hereafter commit no offenses against the laws of this or any state of the United States.” During the revocation hearing, Handy admitted that he had been arrested for domestic violence. The State introduced Handy’s girlfriend’s statement that Handy “slapped [her] in the face and pushed [her] down on the bed.” The State also introduced a copy of an abstract from the Tishomingo County Justice Court indicating that Handy had pled guilty to domestic violence. Handy said that “[t]he [justice court] gave [him] time served.” Consequently, notwithstanding the procedural bar, there is no merit to Handy’s claim that the circuit court erred when it revoked his suspended sentence.

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

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


author: MAXWELL, J.,

text:
    C.W. MOORE a/k/a Charles Moore a/k/a C.W., Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00656-COA.
    Court of Appeals of Mississippi.
    July 30, 2013.

      George T. Holmes, Jackson, Hunter Nolan Aikens, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Charles Moore, a/k/a C.W., shot Horace Walker Jr. outside Moore’s nightclub in Clarksdale, Mississippi. He was convicted of aggravated assault and sentenced to twelve years’ imprisonment, with five years suspended. He now appeals.

¶ 2. His appellate counsel submitted a “Lindsey brief’ — a brief in which counsel, after detailing the facts and procedural history, certified he had diligently scoured the record but could find no arguable issues for appeal. After an independent review of the record, we too are satisfied that no arguable error occurred. We affirm Moore’s judgment of conviction and sentence.

Background

¶ 3. The afternoon before the August 8, 2011 shooting, Moore’s brother, George, and Moore’s victim, Walker, were playing cards at Moore’s nightclub, C.W.’s. According to witnesses, George and Walker got into a fight that ended in Walker saying as he left, “Somebody’s gonna die.”

¶ 4. Walker returned to the club later that evening, this time getting into a fight with Moore. Moore pulled a knife on Walker and kicked him out of the club. Walker threatened, “It ain’t over with.” Though Moore ended up calling the police, Walker was gone by the time an officer arrived.

¶ 5. Around 2:30 a.m., Walker made a third trip to C.W.’s. Moore was swatting his nephew with a pool cue for taking bags of potato chips from the bar without permission when Walker encountered Moore in the parking lot. George was also in the parking lot. According to witnesses, George walked up to Walker and put his hands in Walker’s face. When Walker knocked George’s hands away, George told his brother Moore, who had a gun, to “shoot him.” And Moore did.

¶ 6. Walker sustained a gunshot wound to the abdomen and was taken to a local hospital for treatment. Moore told the police, “I’m the one who shot him and I wish he had died.” An officer recovered. Moore’s .38-caliber pistol from his truck.

¶ 7. At trial, Moore claimed self-defense. He testified that Walker approached him, not his brother, while he had his gun drawn. And it was when Walker knocked Moore’s hand that Moore fired the gun. While Moore admitted he never saw a gun on Walker, he testified that he knew Walker had a gun and believed Walker was going to kill him.

¶ 8. Moore was indicted for violating Mississippi Code Annotated section 97-3-7(2) (Rev.2006), by purposely or knowingly causing bodily injury to Walker with a deadly weapon. At trial, the jury heard testimony from the eyewitnesses who saw Moore shoot Walker. They also heard Moore’s audio-recorded confession to police, as well as Moore’s testimony that he shot Walker in self-defense. The jury was instructed that to find Moore guilty of aggravated assault, it had to find beyond a reasonable doubt that Moore purposefully caused bodily injury to Walker with a deadly weapon, “to-wit: a pistol.” And the jury was further instructed that if the State failed to prove beyond a reasonable doubt that Moore did not act in necessary self-defense, it had to find Moore not guilty.

¶ 9. The jury found Moore guilty of aggravated assault. The trial judge sentenced him to twelve years in the custody of the Mississippi Department of Corrections, with five suspended. Within ten days of the final judgment, Moore filed post-trial motions for a judgment notwithstanding the verdict or a new trial. When these motions were denied, Moore timely appealed in forma pauperis.

Discussion

¶ 10. Moore’s appellate counsel, who did not represent him at trial, has determined from the record that there are no arguable appellate issues. The Mississippi Supreme Court has laid out a five-step procedure for this situation:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(l)-(4),(7)[.]
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining:
(a) the reason for the arrest and the circumstances surrounding arrest;
(b) any possible violations of the client’s right to counsel;
(c) the entire trial transcript;
(d) all rulings of the trial court;
(e) possible prosecutorial misconduct;
(f) all jury instructions;
(g) all exhibits, whether admitted into evidence or not; and
(h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Lindsey v. State, 939 So.2d 743, 748 (¶ 18) (Miss.2005) (internal citations omitted).

¶ 11. Moore’s appellate counsel filed a brief with a detailed procedural and factual history that cited the record. Counsel certified he reached his conclusion that there are no arguable issues on appeal after scouring the record and specifically examining relevant issues. Counsel also confirmed he had sent a copy of the brief to Moore and informed Moore of his right to file a pro se brief. But Moore did not file a pro se brief. And we do not find the circumstances warrant supplemental briefing. All that remains is that we consider the merits of Moore’s appeal.

¶ 12. We have reviewed the record and agree with Moore’s counsel that there are no arguable assignments of error. Moore received proper notice of the aggravated-assault charge based on his injuring Walker with a deadly weapon. See Miss. Code Ann. § 97-3-7(2) (Rev.2006). Moore exercised his right to testify in his defense and was granted a jury instruction on his theory of self-defense. The jury’s guilty verdict was not against the overwhelming weight of the evidence and was supported by sufficient evidence. And Moore’s twelve-year sentence is within the statutory minimum and maximum. See id.

¶ 13. We affirm Moore’s conviction and sentence.

¶ 14. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

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

      . Lindsey v. State, 939 So.2d 743, 748 (¶ 18) (Miss.2005).

      . Since the shooting, Mississippi’s assault statute has been amended. While the substance of the crime of aggravated assault by causing bodily injury to another with a deadly weapon has not changed, assault with a deadly weapon is now codified under subsection 97-3-7(2)(a)(ii). The version in effect at the time of the shooting codified assault with a deadly weapon under subsection 97-3-7(2)(b).