text:
    MISSISSIPPI DEPARTMENT OF REVENUE v. ISLE OF CAPRI CASINOS, INC.; IOC-Lula, Inc.; IOC-Natchez, Inc.; Riverboat Corporation of Mississippi; Riverboat Corporation of Mississippi-Vicksburg; Capri Air, Inc.; IOC Coahoma, Inc.; Lady Luck Gaming Corporation; Lady Luck Vicksburg, Inc.; Casino America, Inc.; IOC Services, LLC; IOC Mississippi, Inc.; Riverboat Services, Inc.; ICC Corp.; Lady Luck Gulfport, Inc.; Lady Luck Biloxi, Inc.; IMPS a.k.a. International Marco Polo Services, Inc.; IOC Manufacturing, Inc.; and IOC Development Company, LLC.
    No. 2012-CA-01419-SCT.
    Supreme Court of Mississippi.
    Feb. 13, 2014.

      Gary W. Stringer, Jackson, Bridgette T. Thomas, attorneys for appellant.
    Robert F. Walker, Everett White, Jackson, attorneys for appellees.
    Before WALLER, C.J., KITCHENS and COLEMAN, JJ.
   COLEMAN, Justice,

for the Court:

¶ 1. The Mississippi Department of Revenue (“the Department”) assessed $4,181,706 in taxes, penalties, and interest against Isle of Capri Casino, Inc. and its affiliated entities (“Isle of Capri”) for tax years 2004, 2005, 2006, and 2007. Isle of Capri appealed, and the chancery court granted summary judgment in its favor. The Department now appeals. Finding no error on the part of the chancery- court, we affirm.

Facts and Procedural History

¶ 2. Isle of Capri computes its Mississippi corporate income and franchise tax on a combined basis along with its affiliated entities pursuant to Mississippi Code Section 27-7-37, which permits the affiliated group to file a combined return but leaves each entity jointly and severally liable for the total amount of tax liability for the affiliated group. See Miss.Code Ann. § 27-7-37 (Rev.2013); Miss. Admin. Code § 35-III-8.07 at 102(5) (repealed Nov. 17, 2011). Four entities in the affiliated group held Mississippi gaming licenses for the taxable years at issue. The four paid license fees based on their monthly gross revenues from gaming operations as required by statute. See Miss.Code Ann. § 75-76-177 (Rev.2009). Isle of Capri then used the license fees as a credit to offset its combined income tax liability in 2007 pursuant to Mississippi Code Section 75-76-179. See Miss.Code Ann. § 75-76-179 (Rev.2009). Applying the credits in the same manner, Isle of Capri filed amended tax returns for 2004, 2005, and 2006.

¶ 3. The Department then audited Isle of Capri’s returns from 2004 through 2007 and assessed $4,181,706 in taxes, penalties, and interest. The Department based the assessment on the application of the license fees as a credit, claiming that only the tax liability of the four entities that actually held the licenses was eligible for offset. In other words, the credit belonged exclusively to the entity that paid the license fee and could not be used to benefit the affiliated group as a whole. Isle of Capri appealed the Department’s assessment first to the Board of Review and then to the Board of Tax Appeals; both affirmed the assessment with minor changes.

¶ 4. Isle of Capri then appealed to the Harrison County Chancery Court, Second Judicial District, and filed a surety bond for half of the assessment as required by statute. See Miss.Code Ann. § 27-77-7 (Rev.2010). Both parties moved for summary judgment. The chancery court granted summary judgment for Isle of Capri and overturned the Department’s assessment. The Department timely appealed. The issues to be determined are: (1) whether Isle of Capri properly filed its statutorily required appeal bond with the chancery court; and (2) whether Isle of Capri properly applied certain gaming license credits to offset its Mississippi income tax liability.

Standard of Review

¶ 5. Generally, we limit our review of an administrative agency’s decision and will reverse only if the agency’s decision: “(1) was unsupported by substantial evidence; (2) was arbitrary and capricious; (3) was beyond the power of the administrative agency to make; or (4) violated the complaining party’s statutory or constitutional right.” Jones County Sch. Dist. v. Miss. Dep’t of Revenue, 111 So.3d 588, 597 (¶ 32) (Miss.2013) (quoting Buffington v. Miss. State Tax Comm’n, 43 So.3d 450, 453-54 (¶ 12) (Miss.2010)). Regarding review of an agency’s decision on questions of law, the Court has explained:

“An agency’s interpretation of a rule or statute governing the agency’s operation is a matter of law that is reviewed de novo, but with great deference to the agency’s interpretation.” Buffington, 43 So.3d at 454.... Recently, this Court clarified what “deference” means in this context. Queen City Nursing Ctr., Inc. v. Miss. State Dep’t of Health, 80 So.3d 73, 84 (Miss.2011). The Court emphasized that it has the ultimate authority and responsibility for interpreting laws. Id. So, even though an “agency’s interpretation is an important factor that usually warrants strong consideration,” the Court does not defer to an agency’s interpretation in the sense that it yields judgment or opinion. Id. Further, no deference is due if the “agency’s interpretation is contrary to the unambiguous terms or best reading of a statute.” Buffington, 43 So.3d at 454....

Jones County, 111 So.3d at 597-98 (¶ 33). Further, a de novo standard is applied when the Court reviews a chancery court’s grant or denial of summary judgment. In re Guardianship of Duckett, 991 So.2d 1165, 1173 (¶ 15) (Miss.2008) (citing Anglado v. Leaf River Forest Prods., 716 So.2d 543, 547 (Miss.1998)).

Discussion

¶ 6. The Department raises two issues on appeal: (1) whether the surety bond filed by Isle of Capri satisfied the requirements of Mississippi Code Section 27-77-7; and (2) whether the license fees can be used to offset the combined tax liability of the affiliated group.

I. Whether the surety bond filed by Isle of Capri satisfied the statutory requirements of Mississippi Code Section 27-77-7, such that the chancery court did not err by exercising jurisdiction over the action.

¶ 7. Isle of Capri filed a surety bond with chancery court in the amount of $2,220,622, half the amount in controversy, as required for appeals from the Board of Tax Appeals. Mississippi Code Section 27-77-7(3) provides:

A petition filed by a taxpayer under subsection (1) of this section that appeals an order from the Board of Tax Appeals affirming a tax assessment shall be accompanied by a surety bond approved by the clerk of the court in a sum half the amount in controversy, conditioned to pay the judgment of the court.

Miss.Code Ann. § 27-77-7(3) (Rev.2010). The Department asserts that Isle of Capri’s bond did not meet the statutory requirements because it was not “conditioned to pay the judgment of the court,” thus, the chancery court never had jurisdiction over the appeal. See 5K Farms v. Miss. Dep’t of Revenue, 94 So.3d 221, 227 (Miss.2012) (holding that statutory appeal bonds relate to the jurisdiction of the court). The relevant portion of the bond reads:

KNOW ALL MEN BY THESE PRESENTS, that the Isle Affiliated Group, as Principal, and Westchester Fire Insurance Company, as Surety, are held and firmly bound unto the Mississippi Department of Revenue in the principal sum of $2,220,622.50 for the payment of which we bind ourselves, successors, and assigns, jointly and severally.
The Condition of this obligation is such, that whereas, the Isle Affiliated Group has appealed from the order of the Mississippi Board of Tax Appeals, rendered on the 6th day of April, 2011, on an appeal of an assessment of the Plaintiff then pending before said Board of Tax Appeals;
NOW THEREFORE, if the Principal shall satisfy any money judgment against said Plaintiff entered by the Board of Tax Appeals in the judgment in full, including, if allowed by law, costs, interest, and attorneys’ fees, and damages for delay in the event said appeal is dismissed or said judgment is affirmed, then this obligation shall be null and void; otherwise to remain in full force and effect.

¶ 8. The Department argues that the bond is defective because “the Board of Tax Appeals does not enter money judgments, but orders and therefore the bond posted does not guarantee payment of anything.” Isle of Capri counters that, when read as a whole, the bond clearly binds the surety to the Department in the amount required by statute. The question of whether the bond satisfies the statutory requirement that it be conditioned on judgment of the court is essentially one of contract construction. Section 27-77-7 simply requires that the bond be (1) approved by the clerk of the court, (2) in a sum half the amount in controversy, and (3) conditioned to pay the judgment of the court. Miss.Code Ann. § 27-77-7(3). The first two elements are not in dispute. However, the Department contends that the bond fundamentally fails to satisfy the third element.

¶ 9. To begin, Section 27-77-7 does not require the bond to contain any specific language. See Miss.Code Ann. § 27-77-7. The purpose of the condition is to ensure that the Department’s' interest is protected. Thus, one way to consider the issue is through the lens of the hypothetical enforcement of the bond that might have followed had the chancellor affirmed the Board of Tax Appeals. In other words, had the chancellor affirmed the assessment, could the Department have enforced the bond as written or would the Department have been left with no recourse against the surety? If the Department could have enforced the bond, it must follow that the bond is conditioned to pay the judgment of the court and satisfies Section 27-77-7.

¶ 10. We conclude that the bond would have been enforceable against the surety and, therefore, satisfies Section 27-77-7. Although the bond does not track the language of Section 27-77-7, it clearly binds the surety to pay the Department, stating that Isle of Capri is “firmly bound” unto the Department. The next paragraph of the bond conditions the obligation to pay on the fact that Isle of Capri has appealed the judgment of the Board of Tax Appeals. When read together, the surety is bound to pay pending the resolution of the appeal. We find that the bond satisfies the statutory requirement that it be conditioned on the judgment of the court.

¶ 11. The Department cites three cases in which jurisdiction was held to be lacking for failure to post the required appeal bond. See Miss. Dep’t of Revenue v. AT & T Corp., 101 So.3d 1139 (Miss.2012); Khurana v. Miss. Dep’t of Revenue, 85 So.3d 851 (Miss.2012); 5K Farms v. Miss. Dep’t of Revenue, 94 So.3d 221 (Miss.2012). In the three cases, the appealing parties failed to post a bond entirely. If the bond in the present case was completely unenforceable they might be instructive, but because the bond satisfies Section 27-77-7, they are irrelevant. We conclude that the bond satisfied Section 27-77-7, and the chancery court properly exercised jurisdiction over the matter.

II. Whether the gaming license tax credits were applied properly to offset Isle of Capri’s tax liability.

¶ 12. The Department argues that, in spite of the combined return of the affiliated group, the tax liability of the group must be determined individually for the purpose of applying the gaming license tax credits. That is, the Department’s position is that each entity’s credit can be. used only to offset the tax that entity would have to pay if it were filing a return individually, and if the credit earned exceeds the entity’s Mississippi income tax liability, it is wasted. Isle of Capri argues, on the other hand, that the credit can be applied to offset the income tax liability of the entire affiliated group.

¶ 13. In support of its position, Isle of Capri cites General Motors Corp. v. Mississippi State Tax Commission, 510 So.2d 498 (Miss.1987), which dealt with the same issue of using tax credits earned by one entity to offset the combined tax liability of an affiliated group of entities. General Motors and its affiliated group filed a consolidated return, and the affiliated group applied a privilege tax credit earned by one of the affiliated entities, General Motors Acceptance Company (“GMAC”), to its total tax liability. Gen. Motors, 510 So.2d at 499. The Mississippi State Tax Commission audited the consolidated return and disallowed the credit to the extent that it exceeded the income tax generated by GMAC’s Mississippi operations. Id. The Court disagreed and held that the affiliated group could use the credit to offset the tax liability of the entire affiliated group. Id. at 502. The Court reasoned that, because GMAC had joint and several liability on the affiliated group’s tax, the credit was being used to offset its tax due. Id. at 500-501.

¶ 14. The Department cites a handful of reasons why General Motors should not control the present case. First, the Department argues that the statute that governs combined returns, Section 27-7-37, is different than when General Motors was decided in that the statute now instructs how to compute the combined taxable income. Section 27-7-37(2) provides:

Two (2) or more members of an affiliated group of corporations, each taxable in Mississippi, may elect to file a combined income tax return. Corporations electing to file combined returns under this section shall determine the Mississippi net business income (or loss) on an individual corporate member basis as required in Section 27-7-23_The Mississippi net business income (or loss) so computed for each individual member shall be combined to determine the Mississippi net business income (or loss) of the combined group of affiliated corporations.

Miss.Code Ann. § 27-7-37(2)(a) (Rev. 2013). Section 27-7-37 instructs the taxpayers to combine the income or loss of the individual entities to get the net income of the affiliated group. That would be calculated prior to the application of a credit, which is applied after the computation of the tax liability. See Gen. Motors, 510 So.2d at 501. That is a critical point in the analysis. The General Motors Court wrote:

We emphasize that we are concerned here with a tax credit as distinguished from a deduction. A deduction is applied to income in the initial computation of net taxable income. A tax credit functionally is applied to the taxpayer’s income tax liability after that tax has been computed and established. The credit, of course, reduces the income tax payable. The tax, however, has become “due” in the sense contemplated by Section 27-21-9 after the consolidated return income tax has been computed and before application of the credit.

Id. Therefore, the tax credit for the license does not become part of the equation until after the tax becomes “due” and after joint and several liability for the tax due has attached. See Miss. Admin. Code § 35-III-8.07 at 102(5) (repealed Nov. 17, 2011). Applying the statutory instruction on how to compute the combined taxable income actually supports Isle of Capri’s interpretation of the statute. Thus, the Department’s argument that Section 27-7-37 is different than when General Motors was decided is without merit.

¶ 15. The Department’s next argument also is semantic. In General Motors the credit was limited to “the total amount of income tax due by the taxpayer[.]” Gen. Motors, 510 So.2d at 499 (citing Miss.Code Ann. § 27-21-9 (1979)). In the present case, the gaming license fee credit is allowed “against the income tax liability of the licensee.” Miss.Code Ann. § 75-76-179 (Rev.2009). The Department argues that the Legislature’s use of “income tax liability” and “licensee” as opposed to “tax due” and “taxpayer” necessitate its interpretation. To begin, the use of the terms “taxpayer” and “licensee” is a similarity to General Motors, not a difference. The General Motors Court held that the term “taxpayer” did not refer the affiliated group. Gen. Motors, 510 So.2d at 500. Likewise, in the present case, the term “licensee” refers to “any person to whom a valid license has been issued.” Miss.Code Ann. § 75-76-5(t) (Rev.2009). The Department is correct to point out that “licensee” does not refer to the affiliated group, but the singularity of the object nouns is inapposite. See Gen. Motors, 510 So.2d at 500-502.

¶ 16. The dispositive phrase in the present case is “income tax liability.” In General Motors, it was “tax due.” We find the two phrases to be identical in meaning. Both refer to the amount of money that the Department is entitled to collect from the taxpayer. That the General Motors Court used them interchangeably reinforces our interpretation. See Gen. Mo tors, 510 So.2d at 500. Therefore, the limitation that the Department claims is on the credit in the present case must be determined in reference to the tax liability of the four licensees in the affiliated group. The licensees are allowed to use the credit to offset their income tax liability. If the credit exceeds their income tax liability, the licensees do not get a check for the difference from the Department. The General Motors Court held that each entity’s tax liability was the same as the tax liability of the affiliated group, because each entity was jointly and severally liable for that amount. Id. at 501. We find no difference in the present case. The regulations provide: “Each member of the affiliated group is severally liable for the tax on a consolidated or combined return and for any subsequently determined deficiency thereon. No intercompany agreement can change this rule.” Miss. Admin. Code § 35-III-8.07 at 102(5) (repealed Nov. 17, 2011). The regulations make it clear that each entity in Isle of Capri’s affiliated group is liable for the sum total of tax liability on the combined return. Therefore, if the limit on the credit is tax liability, then the limit is a reference to the tax liability of the affiliated group and not the hypothetical tax that Isle of Capri would have had to pay.

¶ 17. Finally, the Department argues that since the enactment of Section 75-76-179-the statute that authorized the gaming license credit-the Department has interpreted it to apply only to the income tax generated by the use of the license. Unquestionably, the Department is correct, and the Department’s interpretation of the tax laws is afforded deference. See Jones County, 111 So.3d at 597 (¶ 33); Buffington, 43 So.3d at 454 (¶ 12). However, that deference must be applied in light of General Motors. If it was incorrect “as a matter of common and ordinary construction” for the Department to interpret nearly identical statutory language in a nearly identical manner in General Motors, then, logically, the same interpretation is equally incorrect now. See Gen. Motors, 510 So.2d at 502. Therefore, we hold that Isle of Capri properly applied the credits to offset the tax liability of the combined return.

Conclusion

¶ 18. We hold that the chancellor correctly determined that the appeal bond posted by Isle of Capri met the statutory requirements of Mississippi Code Section 27-77-7(3), and the chancery court properly exercised jurisdiction over the appeal. Additionally, we hold that the chancellor correctly interpreted Mississippi Code Sections 27-7-37 and 75-76-179, and the chancellor was correct in overturning the Department’s assessment against Isle of Capri. The decision of the Harrison County Chancery Court, Second Judicial District, is affirmed.

¶ 19. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ„ CONCUR.

      . The affiliated group includes: Isle of Capri Casinos, Inc.; IOC-Lula, Inc.; IOC-Natchez, Inc.; Riverboat Corporation of Mississippi; Riverboat Corporation of Mississippi-Vicksburg; Capri Air, Inc.; IOC Coahoma, Inc.; Lady Luck Gaming Corporation; Lady Luck Vicksburg, Inc.; Casino America, Inc.; IOC Services, LLC; IOC Mississippi, Inc.; Riverboat Services, Inc.; ICC Coip.; Lady Luck Gulfport, Inc.; Lady Luck Biloxi, Inc.; IMPS a.k.a. International Marco Polo Services, Inc.; IOC Manufacturing, Inc.; and IOC Development Company, LLC.

      . The statute that governed the affiliated group’s return in General Motors referred to the return as a "consolidated return.” The current statute refers to the return as a "combined return.” See Miss.Code. Ann. § 27-7-37 (Rev.2013).


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    J.C. WILLIAMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00944-COA.
    Court of Appeals of Mississippi.
    Dec. 4, 2012.
    Rehearing Denied May 28, 2013.

      Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   LEE, C.J.,

for the Court:

¶ 1. A jury in the Jones County Circuit Court found J.C. Williams guilty of sale of cocaine. Williams was sentenced as a habitual offender to forty years, with thirty years to serve in the custody of the Mississippi Department of Corrections and ten years suspended. Williams filed post-trial motions, which the trial court ultimately denied. Williams now appeals, asserting the trial court erred in amending the indictment to charge him as a habitual offender. Finding no error, we affirm.

DISCUSSION

¶ 2. Williams argues the trial court erred in amending the indictment after trial had commenced. On October 9, 2009, the State filed a motion to amend the indictment to charge Williams as a habitual offender. The motion indicates the State faxed a copy of the motion with notice to Williams’s trial counsel the same day. Williams’s trial began on October 12, 2009, and the trial court granted the State’s motion to amend the indictment that day.

¶ 3. Rule 7.09 of the Uniform Rules of Circuit and County Court states an indictment may be amended to charge the defendant as a habitual offender. Rule 7.09 further states any amendment “shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.” According to the record, the State faxed the motion to Williams’s trial counsel on October 9, 2009. Williams did object to the State’s motion, arguing that the motion was brought in order to punish Williams for exercising his right to a jury trial. But at no time has Williams claimed he was unable to present a defense or that he was unfairly surprised.

¶ 4. On appeal, Williams has offered no evidence to show he was “unfairly surprised” by the amendment or that he was unable to present a defense. Furthermore, since an amendment charging a defendant as a habitual offender does not affect the substance of the crime charged, but only the sentencing, Williams’s defense to the sale-of-cocaine charge was unaffected by the amendment. See Adams v. State, 772 So.2d 1010, 1020-21 (¶¶ 50-51) (Miss.2000) (citation omitted). This Court in Rayborn v. State, 961 So.2d 70, 72 (¶¶ 5-7) (Miss.Ct.App.2007), affirmed the trial court’s decision to allow the amendment of the indictment to reflect habitual-offender status when the State filed the motion to amend two days prior to trial. We find Williams’s argument to be without merit and affirm.

¶ 5. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF FORTY YEARS AS A HABITUAL OFFENDER, WITH TEN YEARS SUSPENDED AND THIRTY YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

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


text:
    William Andrew SHORT, Appellant, v. Kathryn Taylor SHORT, Appellee.
    No. 2011-CA-01096-COA.
    Court of Appeals of Mississippi.
    Jan. 29, 2013.
    Rehearing Denied May 28, 2013.

      David Earl Rozier Jr., Jackson, Jenessa Jo Carter Hicks, attorneys for appellant.
    John A. Ferrell, Booneville, attorney for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   LEE, C.J.,

for the Court:

¶ 1. This case concerns a request for a child-support modification. The chancellor determined William Andrew Short was not entitled to a decrease in his child-support obligation and ordered him to continue paying $3,000 per month in support. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2. William Andrew Short (Andy) and Kathryn Taylor Short (KT) were divorced on March 21, 2007. Included in the final divorce decree was a property-settlement agreement (PSA) previously entered into by the parties. This PSA made provision for the custody of the minor child, including setting child support at $50,000 per year, or $4,166 per month, and ordering Andy to pay other expenses of KT and the child. The PSA also stated that once the child reached kindergarten the child support would be reduced to fifteen percent of Andy’s adjusted gross income. The PSA further stated “in no circumstances shall the support payments of [fifteen percent] of [Andy’s] adjusted gross income fall below $36,000 per year.”

¶ 3. In December 2008, the parties agreed to a modification of child support in order to defer a portion of Andy’s child-support payments. Andy was to pay $3,000 per month from October 1, 2008, through September 1, 2009; then his child-support payments would revert back to the provisions in the PSA. Andy further agreed to pay the deficit for these months in twelve equal installments from October 1, 2009, through September 1, 2010, in addition to his regular child-support payments of $4,166.

¶ 4. In March 2011, KT filed a complaint for contempt alleging that Andy was in arrears in his child-support payments. In response, Andy filed a motion for modification. During this period Andy and KT agreed to reduce Andy’s child-support payments to $2,000 until his request for modification was heard. Andy had been paying $3,000 per month since the child had entered kindergarten.

¶ 5. After a hearing on the matter, the chancellor determined Andy was not entitled to a decrease in his child-support obligation. Relying upon the evidence presented, the PSA, and other factors, the chancellor ordered him to continue paying $3,000 per month in support. Andy now appeals asserting the chancellor erred in setting child-support payments at $3,000 per month.

STANDARD OF REVIEW

¶ 6. A chancellor is afforded broad discretion in the area of modification of child-support obligations, and this Court will reverse only when the chancellor was manifestly in error, abused his discretion, or applied an erroneous legal standard. Wallace v. Wallace, 965 So.2d 737, 741 (¶ 10) (Miss.Ct.App.2007).

DISCUSSION

¶ 7. Andy argues the chancellor erred in setting his child-support payments at $3,000. Specifically, Andy contends that the chancellor disregarded the statutory child-support guidelines, the clause concerning child support in the PSA is contrary to Mississippi law, and the chancellor erred in determining his adjusted gross income.

¶ 8. A party seeking a child-support modification must show a material change in circumstances arising subsequent to the original divorce decree. Pipkin v. Dolan, 788 So.2d 834, 837 (¶ 7) (Miss.Ct.App.2001). In his ruling, the chancellor applied the factors used to determine whether to modify child support. The factors to be considered are: “(1) increased needs of children due to advanced age and maturity; (2) increase in expenses; (3) inflation; (4) relative financial condition and earning capacity of the parties; (5) health and special medical needs of the child, both physical and psychological; (6) health and special medical needs of the parents, both physical and psychological; (7) necessary living expenses of the father; (8) estimated amount of income tax each party must pay; (9) free use of residence, furnishings and automobile; and (10) other facts and circumstances bearing on the support as shown by the evidence.” Powell v. Powell, 644 So.2d 269, 275 (Miss.1994)(citing McEachern v. McEachern, 605 So.2d 809, 813 (Miss.1992)).

¶ 9. In his opinion the chancellor thoroughly discussed each factor and supported his conclusions with findings of fact from the record. The chancellor also pointed out that Andy had signed the PSA, which stated “in no circumstances shall the support payments of [fifteen percent] of [Andy’s] adjusted gross income fall below $36,000 per year.”

¶ 10. The PSA in this case was incorporated into the divorce decree. In the original divorce decree in the case before us, the chancellor found the provisions of the PSA to “adequately and sufficiently provide for the custody and maintenance of the child.... ” See Miss.Code Ann. § 93-5-2(2)(Supp.2012)(a PSA may be incorporated into the divorce judgment if provisions for child support are “adequate and sufficient”). In Seeley v. Stafford, 840 So.2d 111, 113 (¶10) (Miss.Ct.App.2003), this Court said that when such an agreement has been approved by the chancellor, we “will enforce [the agreement] and take a dim view of efforts to modify it, just as when parties seek relief from their contractual obligations.” We stated further that “a non-custodial parent may agree to pay child support in an amount greater than the [statutory] guidelinefs].... ” Id. at 114 (¶ 16). “We will enforce such agreements that are included in final judgments and will allow subsequent modification only upon a showing of appropriate circumstances that justify the modification.” Id.

¶ 11. The chancellor concluded that Andy had agreed to the $3,000 minimum and failed to prove that he was entitled to a modification. The chancellor noted Andy had incurred a loss of income but determined, under the relevant factors, that the circumstances did not warrant a downward modification. As previously stated, the chancellor thoroughly discussed each factor to determine whether Andy was entitled to a modification of child support. The chancellor found Andy failed to present sufficient evidence to justify a downward modification. Upon review of the record, we cannot find the chancellor abused his discretion in finding so.

¶ 12. Andy also contends the chancellor erred in determining his adjusted gross income by adding his monthly mortgage amount to his adjusted gross monthly income. However, it is clear from the record that the chancellor was aware of Andy’s monthly income. The chancellor was merely concerned that Andy’s monthly mortgage seemed excessive at $8,200 per month and was noting that Andy’s monthly income would be greater if he had lower monthly mortgage payments.

¶ 13. Finding no abuse of discretion by the chancellor in declining to reduce Andy’s current child-support payment of $8000 per month, we affirm.

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

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

      . This particular modification is not an issue on appeal.

      . In his brief, Andy states he has not appealed the issue of a material change in circumstances.


author: IRVING, P.J.,

text:
    Barry W. GILMER, Appellant v. MORRIS GOODMAN BUILDERS, INC., Appellee.
    No. 2010-CA-01779-COA.
    Court of Appeals of Mississippi.
    June 25, 2013.
    Rehearing Denied Nov. 12, 2013.
    Certiorari Denied Feb. 13, 2014.

      Derek L. Hall, Jackson, Joel A. Gordon, Seth C. Little, attorneys for appellant.
    John W. Christopher, attorney for ap-pellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Morris Goodman Builders Inc. (Morris Goodman) filed suit against Barry W. Gilmer seeking to recover $83,951.78 in unpaid labor and expenses associated with the construction of Gilmer’s home. Gilmer filed a response to Morris Goodman’s complaint and a counterclaim against Morris Goodman, alleging breach of contract, breach of workmanship, breach of an express warranty, fraudulent inducement, and fraudulent misrepresentation. Following a jury trial, the Madison County Circuit Court entered judgment in favor of Morris Goodman in the amount of $83,951.78 and awarded Morris Goodman attorney’s fees in the amount of $28,542.46.

¶ 2. Feeling aggrieved, Gilmer appeals and asserts eight assignments of error, which we quote:

I. Whether the trial court abused its discretion by refusing to allow Mr. Gilmer to present jury instructions on his theory of fraudulent misrepresentation to the jury.
II. Whether the trial court abused its discretion by allowing Mr. Jim Goodman to offer expert testimony on matters outside his scope of expertise.
III. Whether the jury verdict in favor of Morris Goodman Builders was against the overwhelming weight of the evidence.
IV. Whether the trial court abused its discretion in awarding attorney’s fees to counsel for Appellee by failing to require credible evidence of the reasonableness of fees charged and the necessity of services rendered.
V. Whether the trial court erred in allowing fact witness Wade Buie to testify as to hearsay engineering information concerning the I-joists installed in Appellant’s house.
VI. Whether the trial court erred in failing to consider or properly apply paragraph VIII of the construction contract holding Appellant harmless from any claims arising out of construction, including attorney’s fees.
VII. Whether the trial court erred by allowing counsel for Appellee to engage in a systematic trial tactic of personal attacks upon Appellant and delivery of an inflammatory closing argument alleging abuse of the judicial system without a proper basis in fact or law.
VIII. Whether the trial court erred in allowing counsel for Appellee to commit a fraud upon the jury by presentation of false demonstrations during closing argument.
¶ 3. Finding no error, we affirm.

FACTS

¶ 4. In 1993, Gilmer began contemplating building a house on land that he owned in Madison County, Mississippi. Gilmer had observed houses built by Morris Goodman and decided to hire the company to build his house. In 2000, Gilmer spoke with Jim Goodman (Jim), the company's owner, about hiring the company to build the house. Gilmer told Jim that he wanted to model his house after a house that belonged to one of Gilmer’s acquaintances in Philadelphia, Mississippi. The two traveled to Philadelphia, and Jim took numerous measurements and made notes regarding the layout of the house. Jim used photos that he took at the house and a partial set of the home’s blueprints to draft a set of blueprints for Gilmer’s house. Throughout the building process, Gilmer called Jim’s attention to several defects concerning the framing of the house, the laying of bricks, and the placement and protection of building materials. Although Gilmer paid the initial bills from Morris Goodman, he stopped paying in June 2001. Morris Goodman ceased all work on Gilmer’s house and left the job.

¶ 5. At trial, Jim testified that he went into the construction business with his father after he graduated from high school. When Jim’s father retired in 1995, Jim took over the business. Over the years, Jim has worked in every aspect of home building with the exception of the mechanical and electrical aspects. Jim stated that he had extensive experience in reading plans for the construction of a house but admitted that he had no formal training as an architect. Prior to beginning construction on Gilmer’s house, Jim had built more than fifty homes and supervised the construction on each. Without objection from Gilmer, the court accepted Jim as an expert in the field of residential construction.

¶ 6. Jim stated that he took several pictures and extensive measurements while visiting the house in Philadelphia with Gil-mer. Gilmer asked him if he could draw plans for the house, and he told Gilmer that he could. After drawing the plans, Jim and Gilmer met to discuss costs and to sign a contract allowing Morris Goodman to begin building Gilmer’s house under Jim’s supervision.

¶ 7. According to Jim, the prices for the materials were reasonable, and the work performed during construction met all applicable industry standards. Gilmer chose the windows that Morris Goodman installed in the house. Additionally, Gilmer chose the style of brick for the house. Jim testified that Morris Goodman’s method of framing would accommodate any style of brick. Jim noted that the space between the bricks and the wall of the house met the standard set by the Southern Building Code. Jim could recall only one time that Gilmer expressed some dissatisfaction with his workmanship. However, Jim fixed the problem that Gilmer found at no extra cost to Gilmer and reimbursed him for materials and labor. Jim stated that all of the work performed on Gilmer’s house and all of the materials used in construction were at or above industry standards.

¶ 8. Morris Goodman hired Dale Harrell as a subcontractor to frame Gilmer’s house. Harrell testified that he had worked in construction for approximately thirty years. Harrell described the job on Gilmer’s house as “typical.” He stated that he framed Gilmer’s house according to the industry standards that were applicable at that time. He insisted that he inspected all of the materials that he and his crew used in framing Gilmer’s house so that he could avoid having to “cull” any of the wood before the crew installed sheet-rock. Harrell also stated that he framed the house for the type of brick that Gilmer had chosen.

¶ 9. Harrell also testified regarding the I-joists that he installed in the garage house. He recalled that the blueprints called for sixteen-inch I-joists. However, the manufacturer shipped I-joists that measured only twelve inches. Jim alerted the manufacturer of the mistake, and the manufacturer shipped an additional set of twelve-inch I-joists. Harrell installed the twelve-inch I-joists as directed. He noted that it would have taken an additional two weeks to receive the correct-sized joists.

¶ 10. Wayne Ellis testified that he had been a brick mason for forty-six and one-half years, and Morris Goodman hired him to perform the brick work on Gilmer’s house. Ellis detailed the preparations and labor involved in laying brick on a two-story home. He stated that the type of brick that will be used on the house only affects the house’s framing by changing the amount of space that should be between the brick and the house. Ellis also constructed the chimneys on Gilmer’s house. He stated that the chimneys were built according to industry standards. On cross-examination, Ellis admitted that they had to tear down at least one wall because the bricks were not meeting the window framing like Gilmer had requested. Additionally, on cross-examination, after viewing current photos of the chimneys at Gil-mer’s house, Ellis admitted that one of the chimneys depicted was not plumb. He, nevertheless, insisted that the chimneys that he erected were plumb at the time he built them.

¶ 11. Brad Sellers, zoning administrator for Madison County, testified that one of the county’s inspectors inspected Gilmer’s house throughout construction. The final inspection on Gilmer’s house occurred on October 24, 2008, and the house had passed the inspection. Sellers also noted that cutting or culling ten percent or more of the wall studs in a house would make the house unacceptable, and the house would not pass inspection.

¶ 12. Donnie Edwards testified as an expert in carpentry and framing. Edwards stated that he had been in the construction business for forty years and had experience building and remodeling residential and commercial properties. Gil-mer hired Edwards in 2002 after Morris Goodman left the project. Edwards stated that he discovered that the chimneys at Gilmer’s house were not plumb. Additionally, even though the house was weatherproofed when he arrived, he had to replace approximately ninety percent of the studs in the house because they had been cut or culled. He observed a wall in the kitchen that was in the wrong place. As a result, the hallway and at least two bedroom doorways were too narrow. According to Edwards, the framing on Gilmer’s house was below industry standards, and the house had not been constructed in a workmanlike manner.

¶ 13. Scott Garrett testified as Gilmer’s masonry expert. In 2007, Gilmer hired Garrett to examine and correct the brickwork on his house. Garrett stated that most of the brick had been removed from the house before he got there, but enough brick remained to examine the space between the brick and the wall. Garrett noted that the space between the drywall and the inside of the brick should be one-half inch to three-quarters of an inch. If the space between the brick and the wall was more than three-quarters of an inch, the brick ties would not be sufficiently connected to the walls to hold the two together. Garrett also noted that there is a difference in framing with respect to regular-sized and queen-sized brick. The difference is that, because the queen-sized brick is narrower, the cornice in the framing is not as wide. Garrett opined that the brickwork on Gilmer’s house was not high-quality work. During cross-examination, Garrett admitted that he was unsure about the industry standards for masonry during 2000 and 2001.

¶ 14. Gilmer testified that he initially spoke with Jim’s father, Morris, about building his house. According to Gilmer, the elder Goodman had a reputation for building high-quality homes. However, before Gilmer decided to proceed with his plans for a new house, the elder Goodman had retired, leaving Jim as the owner. Gilmer confirmed that he and Jim visited the house in Philadelphia where Jim took measurements and photographs. Sometime later, Jim presented Gilmer with a construction contract, which Gilmer signed. Jim also represented to Gilmer that his house would be constructed using premium materials. Soon after Gilmer signed the contract, Morris Goodman began building Gilmer’s house. As construction progressed, Gilmer learned that Morris Goodman had only one employee and “operated 100 percent off of [subcontractors].”

¶ 15. Gilmer first complained to Jim about the placement and storage of materials once they were delivered to the construction site. If the builders were not there, the materials would be left in mud or water. Additionally, the materials were frequently left in the rain. Gilmer also complained about some of the brickwork on the house. Morris Goodman’s subcontractor removed the brick wall that contained the defect and rebuilt it. Gilmer then complained about the construction of the chimneys. According to Gilmer, the chimneys were out of plumb. Also, the bricks did not meet the window edges as Gilmer had requested. Furthermore, contrary to Jim’s assertions, Gilmer did not authorize any of the changes that Jim made to the plans for the house mid-construction.

¶ 16. Gilmer admitted that he paid the initial bills from Morris Goodman but that he stopped paying Morris Goodman when he became concerned that Morris Goodman was not building a quality home. Gil-mer stated that he arranged to meet with Jim to discuss his concerns, but when Gil-mer arrived at the construction site, Jim had removed all of the equipment belonging to Morris Goodman. Days later, Jim went to Gilmer’s home and requested the past-due payment. When Gilmer refused to pay Jim until he corrected some of the work on the house, Jim left.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

I. Jury Instructions

¶ 18. Gilmer contends that the circuit court erred by refusing to allow jury instructions regarding fraudulent misrepresentation. Specifically, Gilmer requested a jury instruction concerning fraudulent misrepresentation by the elder Goodman, which the circuit court refused on the ground that there was no evidence to support Gilmer’s claim.

¶ 19. The Mississippi Supreme Court has previously stated the standard of review for jury instructions as follows:

The instructions are to be read together as a whole, with no one instruction to be read alone or taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case. However, the trial judge may also properly refuse the instructions if he finds them to incorrectly state the law or to repeat a theory fairly covered in another instruction or to be without proper foundation in the evidence of the case.

Nunnally v. R.J. Reynolds Tobacco Co., 869 So.2d 373, 378 (¶ 7) (Miss.2004) (quoting Howell v. State, 860 So.2d 704, 761 (¶ 203) (Miss.2003)). In his counterclaim, Gilmer alleged that Jim fraudulently misrepresented the quality of the company’s work. During the jury conference, Gilmer sought to amend his counterclaim to add the elder Goodman.

¶ 20. To establish a claim for fraudulent misrepresentation, Gilmer must show by clear and convincing evidence:

(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of the truth; (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; and (9) his consequent and proximate injury.

Holland v. Peoples Bank & Trust Co., 3 So.3d 94, 100 (¶ 13) (Miss.2008) (quoting Bank of Shaw v. Posey, 573 So.2d 1355, 1362 (Miss.1990)). The elder Goodman was not an original party to Gilmer’s counterclaim, and Morris Goodman was not on notice that the elder Goodman’s acts or omissions might be a basis for liability. Nevertheless, Gilmer contends that his testimony about his initial conversation with the elder Goodman provides sufficient evidence to support the requested jury instruction. We disagree.

¶ 21. Gilmer testified that he relied on the elder Goodman’s reputation when choosing Morris Goodman as his contractor. It is undisputed, however, that the elder Goodman was never involved in the construction of Gilmer’s home and that Gilmer never spoke to the elder Goodman after 1993. Furthermore, Gilmer does not state what representations, if any, that the elder Goodman made to him regarding the quality of the construction of his home. Accordingly, the circuit court did not err in refusing the fraudulent-misrepresentation jury instruction. This issue is without merit.

II. Expert Testimony

¶ 22. At trial, Morris Goodman offered Jim as an expert in the broad field of residential construction. Jim testified regarding blueprints, installing I-joists, and bricklaying. Gilmer argues that the circuit court erred in allowing Jim to testify to matters outside his area of expertise.

¶23. Our supreme court has established that the admission of expert testimony lies within the sound discretion of the circuit court. Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (¶ 4) (Miss.2003). Rule 702 of the Mississippi Rules of Evidence provides factors that must be satisfied in order for expert testimony to be admissible:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of rehable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

¶24. “However,, a witness need not be a specialist in any particular profession to testify as an expert.” Univ. of Miss. Med. Ctr. v. Pounders, 970 So.2d 141, 146 (¶ 17) (Miss.2007) (citing Hubbard v. Wansley, 954 So.2d 951, 957 (¶ 13) (Miss.2007)). “The scope of the witness’s knowledge and experience ... governs the question of admissibility.” Id. (citing West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 719 (Miss.1995)). Furthermore, our supreme court has affirmed that “a witness may qualify to give an expert opinion through his experience only.” McKee v. Bowers Window & Door Co., 64 So.3d 926, 935 (¶ 24) (Miss.2011) (quoting Cain v. Mid-South Pump Co., 458 So.2d 1048, 1050 (Miss.1984)).

¶ 25. Here, Jim’s forty years of experience as a residential contractor certainly qualified him to provide expert testimony in that field, in spite of his testimony that he had no formal education on the matter. Jim testified that throughout his forty-year career, he had performed every aspect of residential construction, including drafting blueprints, installing I-joists, and laying brick, with few exceptions. He testified regarding only those aspects of construction that he was familiar with and that were important to Gilmer’s concerns about the construction of his house. As such, the circuit court did not abuse its discretion in allowing Jim to testify as an expert witness, and his testimony was not outside his area of expertise. This issue is without merit.

III. Weight of the Evidence

¶ 26. Gilmer contends that the jury’s verdict is against the overwhelming weight of the evidence. Specifically, Gil-mer argues that the jury’s verdict cannot stand because the jury disregarded the uncontradicted expert testimony offered during trial. We disagree.

¶ 27. Appellate courts will only disturb a jury’s verdict “in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice[.]” Robinson Prop. Grp., Ltd. P’ship v. McCalman, 51 So.3d 946, 948 (¶ 9) (Miss.2011) (citations omitted). When determining whether a jury’s verdict is against the overwhelming weight of the evidence, this Court has stated that “the scope of review on this issue is limited in that all evidence must be construed in the light most favorable to the verdict[.]” R. McKnight & Son v. C & I Entm’t, 100 So.3d 1022, 1026 (¶ 11) (Miss.Ct.App.2012) (quoting Winding v. State, 908 So.2d 163, 167 (¶ 18) (Miss.Ct.App.2005)).

¶ 28. After considering the evidence that supports the verdict, we find that the verdict is not against the weight of the evidence. Jim testified that he constructed Gilmer’s house according to the building regulations that were applicable during that time. Morris Goodman’s subcontractors testified that they had also followed the applicable building regulations. While Gilmer presented testimony from other expert witnesses regarding the building regulations, none of Gilmer’s experts testified that the regulations that Jim followed were incorrect. Additionally, Morris Goodman’s framer stated that he had not cut or culled any of the studs used to frame Gilmer’s house. While one of Gilmer’s experts testified that over ninety percent of the home’s frame consisted of cut or damaged studs, the expert also admitted that he had inspected the house over one year after Morris Goodman left the job and could not say that the cut and damaged studs had been put in place by Morris Goodman or any of its subcontractors.

¶ 29. As our supreme court has stated, “if the evidence is conflicting, the jury is the sole judge of credibility of the witnesses and the weight of their testimony.” Weathersby Chevrolet Co. v. Redd Pest Control Co., 778 So.2d 130, 133 (¶ 10) (Miss.2001) (citations omitted). The jury certainly heard evidence that supported Morris Goodman’s claims and Gilmer’s claims. It was the jury’s role to resolve any conflicts. Accordingly, we cannot say that the jury’s verdict is against the overwhelming weight of the evidence. This issue is without merit.

IV. Attorney’s Fees

¶ 30. At the conclusion of trial, Morris Goodman filed a motion with the circuit court requesting $28,542.46 in attorney’s fees, which the court granted. Gil-mer argues that the court erred in awarding attorney’s fees to Morris Goodman without requiring credible evidence of the reasonableness of the fees charged. The standard of review for an award of attorney’s fees is abuse of discretion. T. Jackson Lyons & Assocs. v. Precious T. Martin, Sr. & Assocs., 87 So.3d 444, 448 (¶ 10) (Miss.2012). The award of attorney’s fees must be supported by credible evidence. Regency Nissan, Inc. v. Jenkins, 678 So.2d 95, 103 (Miss.1995).

¶ 31. Here, there was evidence of the actual attorney’s fees incurred by Morris Goodman. Morris Goodman attached an affidavit from its attorney to its motion for attorney’s fees. The affidavit detailed the attorney’s hourly rates and compared his rate to the rates of other attorneys in the Madison, Hinds, and Rankin County areas. Morris Goodman also submitted an itemized statement from its attorney, which reflected the work performed and the expenses incurred by the attorney. Accordingly, based on the evidence presented, we cannot say that the circuit court abused its discretion in awarding attorney’s fees to Morris Goodman. This issue is without merit.

V. Testimony of Wade Buie

¶ 32. Buie testified as a rebuttal witness on behalf of Morris Goodman. Gil-mer contends that the circuit court erred in failing to strike Buie’s testimony as hearsay. Gilmer, however, has failed to offer any authority to support his argument that the circuit court erred in allowing Buie’s testimony. As such, Gilmer’s challenge to Buie’s testimony is procedurally barred. See Tentoni v. Slayden, 968 So.2d 431, 441 (¶ 28) (Miss.2007).

¶ 33. Procedural bar aside, this issue is also without merit. Rule 801(c) of the Mississippi Rules of Evidence defines hearsay as a statement, other than one made by the declarant while testifying at trial, offered to prove the truth of the matter asserted. Here, Buie testified that a third-party company designed and manufactured the I-joists that Morris Goodman installed in Gilmer’s garage house. He also stated that the third-party company decided that the installed joists would be adequate to provide the required structural strength in the garage house. Buie never relayed the content of any of the conversations that he had with the third-party company. Therefore, Buie’s testimony does not meet the definition of hearsay, and the circuit court did not err in allowing his testimony. This issue is without merit.

VI.Indemnification Clause

¶ 34. Gilmer asserts that the circuit court failed to consider and properly interpret paragraph VIII of the construction contract. According to Gilmer, Morris Goodman agreed “to indemnify and hold [Gilmer] harmless” for any claims arising out of the construction of the home. Therefore, Gilmer, pursuant to paragraph VIII, cannot be held liable for any of Morris Goodman’s claims against him. We disagree.

¶ 35. Paragraph VIII of the construction contract, in its entirety, states:

Contractor will provide [workers’] compensation and general liability insurance protection for the duration of construction. Contractor indemnifies and hold[s] harmless [Owner] from any claims arising out of construction, to include attorney’s fees.

In interpreting contract language, the focus is on the contract’s objective language. Heritage Cablevision v. New Albany Elec. Power Sys., 646 So.2d 1305, 1313 (Miss.1994). An objective reading of paragraph VIII reveals that the indemnification clause refers specifically to workers’ compensation claims that arise during the construction of Gilmer’s house. There is no evidence and no additional language in the contract between Gilmer and Morris Goodman that would suggest that Morris Goodman intended to abandon its right to seek damages for a breach of the contract as Gilmer suggests. This issue is without merit.

VII. Inflammatory Remarks

¶ 36. Gilmer argues that Morris Goodman’s counsel continuously made inappropriate and prejudicial remarks throughout trial in an effort to prejudice the jury against him. The crux of Gilmer’s challenge is that Morris Goodman’s counsel erroneously alleged that Gilmer abused the judicial system. The specific line of questioning concerned the separate lawsuits that Gilmer had filed against individuals involved in the lawsuit against Morris Goodman. However, after an objection from Gilmer’s attorney, the circuit court disallowed the line of questioning.

¶ 37. Gilmer then asserts that the circuit court should have given a limiting instruction as a result of counsel’s statements. The comment to Rule 105 of the Mississippi Rules of Evidence, however, states that “[t]he rule requires that the party affected make a request to limit the evidence. If no request is made, ... existing practice suggests that no error has been committed.” Here, not only did the circuit court halt Morris Goodman’s attorney’s questions, but Gilmer did not request a limiting instruction. Consequently, the circuit court was under no obligation to issue a limiting instruction to the jury. Accordingly, this issue is without merit.

VIII. False Demonstration

¶ 38. Gilmer contends that Morris Goodman’s counsel presented a fraudulent demonstration to the jury. During closing argument, Morris Goodman’s counsel took a standard brick tie and placed it on the wall next to the jury box. He then fashioned a nail hole against the wall, leaving five inches to reach the prospective brick- and-mortar joint. Later he stated:

That, ladies and gentlemen, is a misrepresentation, to say that you’ve got to bend these things in half. If it is intended to be bent in the middle, you wouldn’t have nail holes all the way up to the end of it. That is what I’m talking about when I say credibility.

¶ 39. First, Gilmer did not object to counsel’s closing argument during trial. Therefore, he is procedurally barred from raising this issue on appeal. See Robinson v. Brown, 58 So.3d 38, 45-46 (¶23) (Miss.Ct.App.2011). Procedural bar aside, this issue is without merit. Morris Goodman’s counsel was not acting as an expert witness by making his demonstration during closing arguments. Counsel simply demonstrated his theory of the case to the jury: Morris Goodman followed the applicable rules while building Gilmer’s house. The demonstration was based on the evidence that had been presented to the jury, and Gilmer does not make any showing of prejudice to his case as a result of the demonstration. Accordingly, this issue is without merit.

¶ 40. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: GRIFFIS, P. J.,

text:
    Lonnie MASSEY a/k/a Lonnie Gene Massey a/k/a Kenneth Ball, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00121-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.
    Rehearing Denied Nov. 5, 2013.
    Certiorari Denied Feb. 13, 2014.

      Lonnie Massey, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   GRIFFIS, P. J.,

for the Court:

¶ 1. Lonnie Massey appeals the denial of his motion for post-conviction collateral relief (PCCR). Massey raises four issues: (1) his guilty plea was involuntary; (2) his counsel was ineffective; (3) there is newly discovered exonerating evidence; and (4) his sentence exceeds the statutory guidelines. We find no error and affirm.

FACTS

¶ 2. On December 6, 2010, Massey pled guilty in the Madison County Circuit Court to two counts of possession of a firearm by a previously convicted felon under Mississippi Code Annotated section 97-37-5 (Supp.2012) and one count of aggravated assault under Mississippi Code Annotated section 97-3-7 (Supp.2012).

¶ 3. On March 29, 2009, the Madison County Sheriffs Department dispatched deputies to a store on Ratliff Ferry Road in Madison County. A caller had reported two men were fighting, and at least one of the men had a firearm. Upon arrival, the deputies were informed that the men had left. The deputies went to a nearby house trailer and witnessed Massey holding a .410 shotgun inside the dwelling. As a result of this encounter, Massey was indicted for possession of a firearm by a previously convicted felon. He had been convicted in Louisiana of multiple felonies.

¶4. On or about August 29, 2009, law enforcement officers responded to a call that alleged Massey had fired a .22 rifle at his neighbors, Ande Daniel and Cynthia Pacquin. They executed reports and attested that Massey had in fact fired a gun at them.

¶ 5. As a result of these separate events, Massey was charged with possession of a firearm by a previously convicted felon and two counts of aggravated assault.

¶ 6. Lisa Ross was appointed as Massey’s defense attorney during the summer of 2010. Ross recommended that Massey plead guilty to the charges. Ross filed a motion to compel discovery, but Massey believed that Ross did not diligently defend him. Massey raised his concerns with the trial court on December 6, 2010.

¶ 7. On December 6, 2010, the trial court appointed Massey a new defense attorney, Bentley Connor. Connor immediately negotiated a plea deal with the State, which he recommended to Massey. A plea hearing was conducted later that day, and Massey was sentenced consistent with the negotiated plea deal. The State agreed it would drop the charge of aggravated-assault of Pacquin, and Massey agreed to plead guilty to the remaining charges.

¶8. The trial court accepted Massey’s guilty plea. On the two counts of possession of a firearm, Massey was sentenced to serve ten years in the custody of the Mississippi Department of Corrections on each count, with the sentences to run concurrently. On the count of aggravated assault of Daniel, Massey was sentenced to serve a term of twenty years, and the court ordered that this sentence run consecutively to the other sentences. The court ordered that Massey be released after he served one day of the aggravated-assault sentence and that he be placed on five years of post-release supervision. The remainder of the sentence was suspended. Massey was sentenced to serve a total of ten years and one day in prison, followed by five years of post-release supervision.

¶ 9. Massey filed his PCCR motion on October 17, 2011. On January 3, 2012, the trial court entered its order denying the motion without a hearing. It is from this judgment that Massey now appeals.

STANDARD OF REVIEW

¶ 10. We will not reverse a trial court’s denial of a PCCR motion unless the trial court’s decision was clearly erroneous. Madden v. State, 75 So.3d 1130, 1131 (¶ 6) (Miss.Ct.App.2011) (citation omitted). When reviewing questions of law, this Court’s standard of review is de novo. Id. (citation omitted).

ANALYSIS

I. Voluntary Guilty Plea

¶ 11. Massey argues that his guilty plea was not voluntary. He claims duress by counsel. Massey argues that his counsel coerced his. plea by threats and stated Massey would be labeled a habitual offender if he did not take the deal. Massey also asserts that he told his counsel that he had no malicious intent towards Daniel when he discharged the firearm. Massey claimed that the altercation was with another individual, Kevin Pacquin. As such, Massey believed he was innocent of the aggravated-assault charge.

¶ 12. Massey’s written plea petition states the factual basis for his guilty plea. It provides, in relevant part:

My lawyer advises me and I understand that the charge to which I am pleading guilty in cause/count number 2010-483/2 is aggravated assault. The elements of that crime are that I did willfully, unlawfully, feloniously, knowingly attempt to cause bodily injury to Ande Daniel by shooting at him with a deadly weapon a firearm.

¶ 13. A guilty plea is enforceable only if entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). A plea is voluntary and intelligent when the defendant is advised of the elements of the charges against him and the consequences of a guilty plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992).

¶ 14. In his plea colloquy, Massey testified:

THE COURT: Do you understand that once you’ve entered your plea of guilty and it’s been accepted by this Court that you cannot withdraw that plea of guilty, nor can you appeal that plea of guilty, Mr. Massey?
DEFENDANT: Yes, sir.
THE COURT: Do you understand the nature of the charge or charges to which you are pleading guilty, Mr. Massey?
DEFENDANT: Yes, sir.

¶ 15. Great weight is placed on a defendant’s sworn testimony given at a plea hearing because “[sjolemn declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). A defendant faces a “high hurdle in recanting that testimony.” Pevey v. State, 914 So.2d 1287, 1290 (¶ 8) (Miss.Ct.App.2005).

¶ 16. Massey expressly acknowledged under oath that he understood the charges against him. He was advised of the rights, challenges, and triable claims he waived upon entering a guilty plea. Massey has only offered his own unsupported allegations as evidence of duress. This evidence alone is insufficient in light of the following testimony:

THE COURT: Okay. Are you satisfied with the services, advice, counsel and assistance of your attorney and/or attorneys, if you’ve had more than one.
DEFENDANT: Yes, sir.
THE COURT: You’re an exception, Mr. Massey. I’m asking you if you’re satisfied with Mr. Connor. Are you satisfied?
DEFENDANT: Yes, sir.
THE COURT: Do you have any complaints you want to make about either of your attorneys if you’re represented by more than one?
DEFENDANT: No, sir.
(Off Record)
THE COURT: Have you been unduly influenced, pressured, intimidated, threatened, forced, coerced or promised any hope of reward to plead guilty, Mr. Massey?
DEFENDANT: No, sir.
THE COURT: Who made the decision to enter the plea of guilty in your case, Mr. Massey?
DEFENDANT: I did.
THE COURT: Are you absolutely sure, Mr. Massey?
DEFENDANT: Yes, sir. Yes, sir.

¶ 17. The law presumes that a defendant prepares the plea petition “with an appreciation of its fateful consequences.” Ward v. State, 879 So.2d 452, 455 (¶ 11) (Miss.Ct.App.2003). As such, Massey did not take the opportunity afforded to him to dispute the facts of the case against him and has not presented sufficient evidence to prove he was coerced by counsel into pleading guilty. Accordingly, we find no merit to this issue.

II. Ineffective Assistance of Counsel

¶ 18. Next, Massey alleges his counsel was ineffective. He argues that one of the victims, Daniel, filed a false police report. That report led to Massey’s second indictment. Massey alleges both of his attorneys neglected to effectively raise this falsity.

¶ 19. Massey’s claims fail to meet the evidentiary burden necessary to establish a claim of ineffective assistance of counsel. We have held that a guilty plea requires the defendant to “prove, by a preponderance of the evidence, that but for the ineffective assistance of counsel, he would not have pled guilty and insisted on a trial.” Townes v. State, 88 So.3d 812, 815 (¶ 7) (Miss.Ct.App.2012) (citing Pleas v. State, 766 So.2d 41, 43 (¶ 7) (Miss.Ct. App.2000)). Massey argues both attorneys, Ross and Connor, were ineffective because both of them should have conducted their own independent investigation of the evidence and interviewed witnesses.

¶20. Massey claims that a letter he sent to Ross is evidence of her ineffectiveness. He explained in the letter that a witness, Patricia Sessums, would be able to file an affidavit to support his claim that Daniel’s police report was not trustworthy. The record and briefs before us show Massey had concerns from initial contact that Ross would not work diligently on his case. As a result, Connor was promptly appointed to the case as soon as Massey raised the issue with the trial court.

¶ 21. Connor immediately met with Massey. They reviewed Massey’s case and discussed Daniel’s report. During the discussion, Massey informed Connor that he believed the report was not truthful. Massey claims in his briefs that Connor did not investigate the matter and recommended that Massey plead guilty. However, Massey conceded Connor’s actions were not sufficiently egregious as to violate the standard for ineffective assistance of counsel established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Massey stated: “It is very true that Mr. Conner, did not violate the Strickland test, a[n] attorney has got to make se[rio]us errors in order to violate that test.”

¶ 22. The high burden set by Strickland, 466 U.S. at 668, 104 S.Ct. 2052, requires Massey to provide credible evidence that counsel actually prejudiced his case. Massey has not offered any evidence beyond his own unsubstantiated allegations. Without other evidence, these are not sufficient grounds to find counsel ineffective. See Vielee v. State, 653 So.2d 920, 922 (Miss.1995) (in the PCCR context, “where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit”).

¶ 23. Further, the record reflects the State had sufficient evidence against Massey to make it a reasonable probability he would be convicted at trial. Massey was fully informed of the State’s evidence and Sessums’s potential testimony when he pled guilty. Massey swore in court, and in his written plea, that he agreed with the State’s allegations against him, he was satisfied with his counsel, and he had no complaints with either attorney’s advice. Massey’s second counsel effectively negotiated a deal with the State that eliminated one charge and reduced his prospective prison sentence by nearly fifty years.

¶ 24. Accordingly, we find no merit to this issue.

III. Newly Discovered Evidence

¶ 25. Massey alleges there is newly discovered evidence that requires his sentence to be vacated. He contends that Sessums is available to testify that Daniel’s report is false. The standard for newly discovered evidence is clear:

In order to warrant the granting of a new trial on the ground of newly discovered evidence, it must appear that the evidence 1) will probably change the result if a new trial is granted, 2) has been discovered since the trial, 3) could not have been discovered before the trial by the exercise of due diligence, 4) is material to the issue, and 5) is not merely cumulative, or impeaching. Moore v. State, 508 So.2d 666, 668 (Miss.1987). Mississippi case law requires that the proponent of the newly discovered evidence satisfy all of the prerequisites of the above stated rule before a reversal can be granted.

Witherspoon v. State, 767 So.2d 1065, 1067 (¶ 6) (Miss.Ct.App.2000).

¶ 26. This Court will not reverse the trial court’s denial of relief where an alleged witness has not provided any support to the factual allegations in the motion. Campbell v. State, 611 So.2d 209, 210 (Miss.1992). Massey has not provided Sessums’s affidavit. He claims he cannot obtain it because he is incarcerated. However, such a “mere allegation” is not a sufficient basis to grant an evidentiary hearing and reverse the trial court. Id.

¶ 27. This Court has held newly discovered evidence is only relevant when a defendant was convicted after a trial. Jones v. State, 915 So.2d 511, 514 (¶ 10) (Miss.Ct.App.2005). “When a defendant pleads guilty, he is admitting that he committed the offense. Therefore, by definition, a plea of guilty negates any notion that there is some undiscovered evidence which could prove his innocence.” Chancy v. State, 938 So.2d 267, 269 (¶ 9) (Miss.Ct.App.2005) (affirmed but criticized on other grounds by Chancy v. State, 938 So.2d 251, 253 (¶ 4) (Miss.2006).

¶ 28. Massey did not go to trial. He pled guilty and admitted in his written plea petition that he had shot at Daniel. Further, the testimony Sessums would have presented at trial is not newly discovered evidence. Not only could the evidence “have been discovered before the trial by the exercise of due diligence,” but Massey clearly knew about it prior to the time he pled guilty and admitted to the allegations against him. See Witherspoon, 767 So.2d at 1067 (¶ 6). Thus, her potential testimony does not meet the requirements of newly discovered evidence. As such, we find no merit to this issue.

¶ 29. Massey also contends an officer of the court falsified court documents by altering the date of his plea bargain. He lists this issue as number four in his brief. However, Massey made no mention of such alteration in his motion. We have consistently held, “If a prisoner fails to raise all of his claims in his original petition for post-conviction relief, those claims will be procedurally barred if the petitioner seeks to bring them for the first time on appeal to this Court.” Willis v. State, 17 So.3d 1162, 1166 (¶ 15) (Miss.Ct.App.2009) (citing Rivers v. State, 807 So.2d 1280, 1281 (¶ 5) (Miss.Ct.App.2002). Because Massey failed to raise this issue before the trial court, he cannot argue it here. Therefore, this issue is procedurally barred. Despite the procedural bar, this claim does not meet the requirements of newly discovered evidence because it is not material to the charges and would not have changed the outcome of a trial. At best, it would be useful as impeachment evidence. As such, we find no merit to this issue.

TV. Sentence Does Not Exceed the Maximum Authorized by Law

¶ 30. Massey claims the circuit court imposed a sentence that exceeds the statutory guidelines for aggravated assault. Mississippi Code Annotated section 97-3-7(2)(a) states that a person who is guilty of aggravated assault “shall be punished by imprisonment in the county jail for not more than one (1) year or in the Penitentiary for not more than twenty (20) years.” Massey miscalculated his sentence for the aggravated-assault charge, under count II of the second indictment, as twenty years and one day. However, the record reflects the trial court sentenced Massey to twenty years in prison. Massey’s sentence was ordered to be suspended after he served one day of this term, and then he was to be placed on post-release supervision. Therefore, Massey was sentenced within the statutory guidelines because his sentence did not exceed twenty years. Accordingly, this issue is without merit.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY DENYING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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

      . Language that appears in bold was handwritten by Massey in the plea petition as a sworn statement.


author: FAIR, J.,

text:
    Aaron James CARLSON a/k/a Aaron Carlson, Appellant v. CITY OF RIDGELAND, Appellee.
    No. 2012-KM-01091-COA.
    Court of Appeals of Mississippi.
    Aug. 6, 2013.
    Rehearing Denied Nov. 12, 2013.
    Certiorari Denied Feb. 13, 2014.

      Kevin Dale Camp, Jackson, attorney for appellant.
    Boty McDonald, Jackson, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. On August 2, 2010, the County Court of Madison County found Aaron Carlson guilty of careless driving and driving under the influence, first offense. Carlson appealed his DUI conviction to the Madison County Circuit Court, which affirmed. Carlson now further appeals his DUI conviction and makes the following contentions: (1) the circuit court erred in affirming his conviction after the appellee’s brief was struck; (2) the City of Ridgeland failed to prove beyond a reasonable doubt that he was under the influence of alcohol the night in question; and (3) the county court judge evinced bias against him. Finding no error, we affirm the judgment of the circuit court.

FACTS

¶ 2. On February 5, 2010, Carlson and a coworker went out for dinner after their shift at work. The pair arrived at the Bulldog restaurant in Jackson around 11:00 p.m., but the restaurant’s kitchen had closed for the evening, and food was no longer being served. Instead of remaining at the Bulldog, Carlson and his coworker went next door to the Electric Cowboy, where they had several drinks. Eventually, Carlson claimed that he did not feel well, and the two men paid their bill and left the Electric Cowboy around 2:00 a.m. The pair drove north on Ridge-wood Road and turned west onto County Line Road. In the process, Carlson struck the concrete lane divider with his driver’s side front tire.

¶ 3. Officer Stephen Webb of the Ridge-land Police Department was in his patrol car facing westbound at the intersection, stopped at the light. He witnessed a vehicle strike the concrete lane divider. Officer Webb activated his lights and siren and stopped the vehicle. As Webb approached the vehicle, the driver’s door opened and the officer noticed a strong smell of alcohol. The driver provided Officer Webb with his driver’s license, which identified him as Aaron Carlson.

¶ 4. Officer Webb asked Carlson if he had been drinking that evening. Carlson responded by asking to speak in private with Officer Webb. They went to the rear of the vehicle where Carlson stated that he “didn’t need this.” Officer Webb then administered a series of field sobriety tests on Carlson. On the horizontal gaze nys-tagmus test, Officer Webb detected six out of six indications that Carlson was under the influence and impaired. On the walk and turn test, Officer Webb detected three out of eight indications. However, Officer Webb did not have a line on the ground for Carlson to walk along and instead used an imaginary line. Finally, on the one-leg stand test, Officer Webb observed four out of four indications.

¶ 5. Officer Webb placed Carlson under arrest and transported him to the Ridge-land Police Department. Carlson was placed under observation for the requisite twenty minutes before entering the Intoxi-lyzer room. While Officer Webb entered Carlson’s information into the Intoxilyzer machine, Carlson fell backwards off the stool and struck his head on the wall behind him. Carlson then began to scream and convulse in what he claims was a seizure. Officers restrained Carlson to prevent him from further injuring himself, and they called for medical personnel to assist. Carlson was taken to the University Medical Center for evaluation.

¶ 6. At the trial de novo before the County Court of Madison County, the judge concluded that there was sufficient evidence to support a conviction for “common law DUI” under Mississippi Code Annotated section 63 — 11—30(l)(a) (Supp.2012), wherein Carlson was too impaired to safely operate a motor vehicle. Additionally, the county court judge found Carlson’s condition that evening resulted from consuming alcohol and was not the product of any alleged medical condition. As such, Carlson was convicted of DUI, first offense. Carlson appealed this conviction to the Circuit Court of Madison County. The circuit court affirmed Carlson’s DUI conviction. Carlson now further appeals.

STANDARD OF REVIEW

¶ 7. The City of Ridgeland failed to file an appellee’s brief with this Court. As such, the appropriate standard of review comes from Chatman v. State, 761 So.2d 851, 854 (¶ 9) (Miss.2000) (internal citation omitted): “An appellee’s failure to file a brief on appeal is tantamount to confession of the errors alleged by the appellant. However, automatic reversal is not required if this Court can say with confidence that the case should be affirmed.”

DISCUSSION

¶ 8. The City’s failure to file a brief is troubling. More disturbing still is the fact that this does not appear to be an isolated incident. Instead, there is a pattern of conduct by the City of Ridgeland that places this Court in a precarious position of potentially acting as an advocate for the City. While the case at bar warrants affirming Carlson’s conviction, the City must perform its duties in the future.

1. Motion to Strike the City’s Trial Brief

¶ 9. Carlson filed an appeal of his DUI conviction from the County Court of Madison County on September 1, 2010. The circuit court judge entered a sua sponte order on March 15, 2011, notifying the City of its deficiency in filing a responsive brief. The City then did not file within the fourteen-day period allowed. On December 29, 2011, and January 20, 2012, the trial court entered sua sponte orders for the City to appear and show cause for failure to file its brief. The City finally filed an appellee’s brief on January 31, 2012. Shortly thereafter, Carlson filed a motion to strike the brief as untimely. The circuit court considered Carlson’s motion and granted it, but the court did not reverse his conviction. Carlson contends this was error.

¶ 10. This case is distinguishable from its companions in that the circuit court never entered a proper order threatening to dismiss the prosecution if a brief was not filed. Instead, the circuit court’s sua sponte order dated March 15, 2011, states, in part:

It is further ordered and adjudged that if appellee fails to file a brief within fourteen (14) days after notification of such deficiency, this cause shall be dismissed, and further that pursuant to [Mississippi Rule of Appellate Procedure] 2(a)(2) a motion for additional time in which to file a brief will not be entertained.

This order does not indicate that the conviction that is the subject of the appeal will be reversed should the appellee fail to file a brief within the fourteen-day period, as did the orders in the other two cases. Rather, by reference to Mississippi Rule of Appellate Procedure 2(a)(2), the order appears to state that the appeal will be dismissed. If this order is found to have effectively dismissed the appeal on or about March 29, 2011, it would reward the City for its failure to perform its duties in prosecuting a criminal appeal.

¶ 11. A reviewing court may affirm the findings of a lower court despite the failure of the appellee to file a brief, if the judgment or conviction can be affirmed with confidence. Chatman, 761 So.2d at 854 (¶ 9). The circuit court’s striking of the City’s brief as untimely has the same effect as the City not filing an appellee’s brief at all. The standard of review does not change, and Chatman applies. The circuit court was not required to automatically reverse Carlson’s conviction if it could affirm the conviction with confidence, which it did. Finding that the circuit court applied the correct standard of review, we find no merit in Carlson’s argument that his conviction should have been reversed because the brief was struck.

2. Sufficiency of the Evidence

¶ 12. Next, Carlson argues the City failed to prove, beyond a reasonable doubt, that he was under the influence of alcohol such that he could not safely operate a motor vehicle under section 63-ll-30(l)(a). Carlson further contends that his impairment on the night in question was the result of a medical condition that manifested itself in a seizure. The county court judge, sitting without a jury at a trial de novo, did not find Carlson’s claim credible and found that the City proved he was driving under the influence beyond a reasonable doubt.

¶ 13. “In a bench trial, the trial judge is ‘the jury’ for all purposes of resolving issues of fact.” Doolie v. State, 856 So.2d 669, 671 (¶ 7) (Miss.Ct.App.2003). As such, a “judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” Id. (quotation omitted).

¶ 14. As for determining whether the evidence the county court judge based his decision upon was sufficient, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 15. During the county court trial, Carlson admitted the Electric Cowboy does not serve food and that, while there, he consumed two to three beers. Officer Webb also testified that after he pulled Carlson over, Carlson admitted he probably should not have been driving. In addition, Carlson’s performance on the field sobriety tests administered by Officer Webb suggested he was impaired. Finally, a video of Carlson, while at the Ridge-land Police Department waiting to take the Intoxilyzer breath exam, depicts Carlson as unsteady, eventually losing his balance and falling off the stool at the examination table.

¶ 16. Carlson contended at trial that he had a seizure while waiting to take the Intoxilyzer test. However, he offered no medical testimony to that effect, nor did he present any evidence of a medical condition. His testimony was only that while at the Electric Cowboy, he started to feel “loopy,” “dizzy,” and as if “the walls were coming on [him].”

¶ 17. Given the above evidence, a reasonable trier of fact could have found the essential elements of DUI, first offense, under section 63-ll-30(l)(a), as the county court did. Since there was substantial, credible, and reasonable evidence, we affirm the conviction.

3. Judicial Bias

¶ 18. Finally, Carlson contends that the county court judge evinced bias against him by disregarding his defense in its entirety. Carlson also claims that the county court judge demonstrated bias by asking defense counsel, “why are we here?” several times and asking whether Carlson had any evidence of his alleged medical condition. “This Court presumes that a judge, sworn to administer impartial justice, is qualified and unbiased.” Hathcock v. State. Farm Bureau Cas. Ins. Co., 912 So.2d 844, 848 (¶ 9) (Miss.2005) (citation omitted). “This presumption is overcome only by showing beyond a reasonable doubt that the judge was biased or unqualified.” Id.

¶ 19. The following exchange allegedly demonstrated bias:

The Court: Why are we here?
Mr. Camp: Because we did an appeal from the City of Ridgeland on a de novo review basis and we basically— we presented evidence to the Court—
The Court: No, I understand that. What’s your defense?
Mr. Camp: My defense is that he was having a seizure at the time. And that at that time, that some of the signs and symptoms that were observed either by the officer, or if the Court sees them, could be because he was in the process of starting his seizure, which you saw, which he was twitching on the ground there, Your Honor.
The Court: Where’s the medical proof that a seizure occurred?
Mr. Camp: I’m sorry, Your Honor?
The Court: Where is the medical proof that a seizure occurred?
Mr. Camp: My — well, I think you see it from the video. I thought it was pretty plain that he was having a seizure on the video.
The Court: How do I know I’m not dealing with a drunk who wanted to fight the cops?
The Court: All he did was drive 15 miles from Pearl to the Bulldog in hopes of finding food and their kitchen was closed, so he walked next door to the Electric Cowboy and, by his testimony, he had three beers on an empty stomach.
Mr. Camp: Uh-huh. And we also provided the Court with the receipt of how much he had spent, which was $18.
The Court: Okay. I’ve got an admission of drinking.
Mr. Camp: Uh-huh.
The Court: The careless driving testimony is pretty solid.
Mr. Camp: Uh-huh.
The Court: So why are we here?
Mr. Camp: I guess I’m not understanding you. Our understanding is he has been accused of a crime, and we’ve presented evidence to show that it didn’t occur. And we were asking for the Court to find him not guilty is what we’re—
The Court: Okay. All right. On the DUI first I’m going to order him to enroll in and successfully complete the next available session of the MASEP class....

¶ 20. This exchange is the only evidence offered by Carlson in support of his argument that the county court judge was biased and failed to consider his defense in its entirety. Carlson’s argument is simply without merit. This exchange is clearly insufficient to prove beyond a reasonable doubt that the judge was biased against Carlson. In fact, it does not even contain any indications of bias; it is merely an inquiry as to what evidence of Carlson’s alleged medical condition the defense had to offer. “[A] trial judge will not be found to be biased just because a defendant does not agree with a judge’s ruling.” Brandon v. State, 108 So.3d 999, 1006 (¶ 19) (Miss.Ct.App.2013) (citation omitted).

¶21. The court here determined that the City met its burden of proof concerning Carlson’s DUI conviction. Carlson admitted he had been drinking, and he presented only the video of what he alleged was a seizure, without any other support. The fact that the trial judge did not accept Carlson’s claim of an unspecified medical condition is not grounds for finding bias.

CONCLUSION

¶22. Applying the appropriate standard of review to Carlson’s conviction, this Court finds no merit in Carlson’s assignments of error and concludes that his conviction for DUI, first offense, can be affirmed with confidence.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE OF FORTY-EIGHT HOURS IN THE CUSTODY OF THE MADISON COUNTY SHERIFF’S DEPARTMENT AND A $1,000 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, MAXWELL AND JAMES, JJ., CONCUR. IRVING, P.J., AND BARNES, J., CONCUR IN PART AND IN THE RESULT. CARLTON, J., NOT PARTICIPATING.

      . Two other cases where the City of Ridge-land failed to file an appellee's brief have recently been before this Court. They are Lobo v. City of Ridgeland, _ So.3d _ (Miss.Ct.App.2013); and Drabicki v. City of Ridgeland, 130 So.3d 113 (Miss.Ct.App.2013).


author: ROBERTS, J.,

text:
    Robert E. LEWIS, Jr. a/k/a Robert Earl Lewis, Jr. a/k/a Robert Lewis, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00912-COA.
    Court of Appeals of Mississippi.
    Aug. 20, 2013.
    Rehearing Denied Dec. 3, 2013.
    Certiorari Denied Feb. 13, 2014.

      Robert E. Lewis Jr., appellant, pro se.
    Office of the Attorney General by Elliott George Flaggs, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. On August 28, 2008, Robert Lewis pled guilty in the Lowndes County Circuit Court to one count of capital murder. Lewis was sentenced, as a habitual offender, to life without the possibility of parole, in the custody of the Mississippi Department of Corrections. Lewis filed a motion for post-conviction relief (PCR) on November 30, 2011. The circuit court summarily dismissed Lewis’s PCR motion, and it is from this dismissal that Lewis now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 14, 2006, a Lowndes County grand jury indicted Lewis on one count of capital murder for the murder of T.C. Turner during the course of a robbery. Later, the State sought to amend Lewis’s indictment to reflect his habitual-offender status pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2007), and the circuit court subsequently granted the State’s motion.

¶ 3. Then, on August 28, 2008, a jury was impaneled to begin Lewis’s trial for capital murder; however, Lewis, represented by three experienced attorneys, decided to enter a guilty plea to the charge of capital murder with a sentence of life without the possibility of parole. In his guilty-plea petition, Lewis agreed that he had been convicted of two prior felony grand-larceny charges; however, the petition also stated that Lewis was not charged as a habitual offender. The circuit court reviewed Lewis’s guilty-plea petition, and it decided that Lewis should be sentenced as a habitual offender based on his prior felony convictions. The circuit court then asked Lewis whether he still wished to plead guilty to capital murder with the sentence of life without the possibility of parole as a habitual offender. Lewis responded that he wished to plead guilty. The circuit court accepted Lewis’s guilty plea as freely and voluntarily entered.

¶ 4. During the sentencing phase of the guilty-plea hearing, the State presented proof of Lewis’s prior convictions. The circuit court then sentenced Lewis to serve life without the possibility of parole as a habitual offender pursuant to section 99-19-81. Lewis’s sentencing order was entered on the same day as his guilty plea was accepted. His sentencing order states that Lewis entered a guilty plea to the charge of capital murder as a section 99-19-81 habitual offender, and he was sentenced to serve life without the possibility of parole.

¶ 5. Lewis filed his PCR motion with the circuit court on December 9, 2011. In it, he claimed that he was denied his right to due process by the circuit judge’s failure to recuse himself from the case. He also claimed that the circuit judge breached the plea agreement, which was also a violation of his due-process rights. The circuit court summarily dismissed Lewis’s PCR motion, finding it was barred from review because it was a subsequent writ. It is from this summary dismissal that Lewis now appeals. On appeal, he raises one issue: “Whether [the circuit court] ... breached the plea agreement!,] which implicates a violation of Lewis’s due process of law.”

ANALYSIS

¶ 6. The 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[.]” Miss.Code Ann. § 99-39-11(2) (Supp.2012). This Court will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate “a claim procedurally alive substantially showing the denial of a state or federal right.” Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009).

¶ 7. First, we find that Lewis’s PCR motion is subsequent-writ barred and time-barred. According to the circuit court’s order summarily dismissing Lewis’s PCR motion, Lewis had filed a previous PCR motion that the circuit court ruled upon on September 8, 2011. Additionally, Lewis had three years from the date of his guilty plea and sentencing to file a PCR motion. Mississippi Code Annotated section 99-39-5(2) (Supp.2012) states: “A motion for relief under this article shall be made[,] ... in [the] case of a guilty plea, within three (3) years after entry of the judgment of conviction.” Lewis entered his guilty plea on August 28, 2008, and he did not file the current PCR motion until December 9, 2011. Lewis had until August 28, 2011, to timely file a PCR motion. He did not do so. Therefore, Lewis’s current PCR motion is procedurally barred from our review.

¶ 8. Procedural bar notwithstanding, Lewis claims that the circuit court breached the plea agreement he had reached with the State that he would not be sentenced to life imprisonment as a habitual offender. It is true that the State recommended Lewis not be sentenced as a habitual offender; however, the circuit court is not bound by the terms of the plea agreement, as was explained to Lewis in the plea petition he signed, and then again explained by the circuit court at the guilty-plea hearing. The plea petition signed by Lewis stated that “the sentence is up to the [circuit c]ourt; that the [circuit c]ourt is not required to carry out any understanding made by me and my attorney with the [district [attorney; and further, that the [circuit e]ourt is not required to follow the recommendation of the [district [a]ttorney[,] if any.” Importantly, during his guilty-plea hearing, the circuit court also informed Lewis that his sentence would be “life in prison without the possibility of parole as [a] habitual offender.” Lewis proceeded to enter a guilty plea even after the circuit court’s statement. Neither Lewis nor his attorneys objected to him being sentenced as a habitual offender. “When an accused fails to object to the habitual offender issue during the sentencing phase, he is procedurally barred [from doing] so the first time on appeal.” Heidelberg v. State, 45 So.3d 730, 732 (¶ 5) (Miss.Ct.App.2010) (quoting Sims v. State, 775 So.2d 1291, 1294 (¶ 16) (Miss.Ct.App.2000)).

¶ 9. Lastly, we note that Lewis was sentenced as a habitual offender pursuant to section 99-19-81. Section 99-19-81 requires the habitual offender to be sentenced to the maximum sentence for the offense charged and precludes eligibility for parole or probation. The maximum sentence for capital murder is the death penalty; however, the death penalty must be imposed by a jury. As a result, the maximum sentence the circuit court could impose on Lewis was life imprisonment without the possibility of parole, as a habitual offender. This sentence is the same as the sentence of life without the possibility of parole for capital murder, the sentence Lewis claims he wants.

¶ 10. For the above reasons, Lewis’s appeal is without merit.

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

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

      . Mississippi Code Annotated section 99-39-5(2)(b) that states: "Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.”