text:
    MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY, OFFICE OF STANDARDS AND TRAINING, Appellant v. Olaf R. RAYBON and James Oliver Holden, Appellees.
    No. 2012-SA-02046-COA.
    Court of Appeals of Mississippi.
    April 29, 2014.

      Office of the Attorney General by Malis-sa W. Winfield, attorney for appellant.
    Nathan S. Farmer, Picayune, attorney for appellees.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. Officers Olaf Raybon and James Holden sought certification as full-time law enforcement officers with the Mississippi Board on Law Enforcement Officer Standards and Training (Board) under Mississippi Code Annotated section 45 — 6—11 (2)(b) (Rev.2011). This statute stated, in pertinent part, that certified part-time officers “may” obtain certification, for a limited period of time, as a full-time law enforcement officers “without having to meet further requirements” of the Board, if they have twenty-five years of law enforcement experience. The Board unanimously denied Raybon’s and Holden’s applications. Accordingly, Raybon and Holden appealed to the Pearl River County Chancery Court, which reversed the Board’s decision, granting them full-time certification. The Board now appeals. Finding error with the chancery court’s judgment, we reverse its decision and reinstate the Board’s decision.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. In 1981, the Mississippi Legislature enacted the Law Enforcement Officers Training Program (the Act) under Mississippi Code Annotated sections 45-6-1 through -19 (Rev.2011). The Act established the Board and vested it with absolute authority to establish minimum standards for employment, training, and education of law enforcement officers. Miss.Code Ann. §§ 45-6-5, -7. Under section 45-6-7(c), the Board has the authority to “[cjertify persons as being qualified under the provisions of this chapter to be law enforcement officers or part-time law enforcement officers.”

¶ 3. In 2009, State Senator Sid Albrit-ton drafted Senate Bill 2803, which became codified as section 45 — 6—11 (2)(b). The bill’s title states it is an Act “to revise the qualifications to be designated as a law enforcement officer for part-time officers having a certain level of experience.” That section provides:

Any person who has twenty-five (25) years of law enforcement experience, whether as a part-time, full-time, reserve or auxiliary officer, and who has received certification as a part-time officer, may be certified as a law enforcement officer as defined in Section 45-6-3(c) without having to meet further requirements. Application to the board to qualify under this paragraph shall be made no later than June 30, 2009.

Miss.Code Ann. § 45-6-ll(2)(b) (emphasis added). The bill became law in April 2009, leaving approximately seventy-six days for officers to submit an application to the Board to qualify under this new subsection.

¶ 4. On July 16, 2009, at the regular meeting of the Board, it considered the timely applications of twenty part-time officers, including Raybon and Holden. Senator Albritton personally appeared before the Board and explained that the legislation was originally designed for the narrow intent of certifying one part-time officer, Raybon, as a full-time law enforcement officer, so he could work as a school resource officer. At the time, Raybon had approximately forty-six years in law enforcement as a part-time officer. Raybon needed full-time employment because he no longer had a side business. Previously, he had tried to become full-time certified, but the Board rejected him. Raybon understood the Board could not make exceptions to the full-time certification requirements, and thus Senator Albritton opened this avenue for him.

¶ 5. During the open meeting, the Board considered public comments from law enforcement personnel who were “vigorously opposed” to the legislation because it was contrary to the Board’s long-standing policy requiring applicants for full-time certification to meet the minimum requirements by attending the regimented training academy. Many were concerned it would lower the level of professionalism in law enforcement, as well as be unfair to those officers who went through the rigors of the training academy to become certified. Senator Albritton remarked on the bill’s usage of the term “may,” and acknowledged the final decision for certifying the officers was at the Board’s discretion. The discussion was followed by a motion to go into executive session due to “possible litigation.” Ultimately, the Board voted unanimously to deny all twenty applicants for full-time certification, including Raybon and Holden. The Board’s denial was because the applicants did “not meet the minimum standards for full-time certification.” The Board informed the Picayune, Mississippi chief of police of Raybon’s denial by letter dated July 22, 2009. The letter stated Raybon would have to fulfill the requirements of basic training in order to receive full-time status.

¶ 6. Raybon and Holden appealed the Board’s decision to the chancery court, which ruled that there were insufficient “findings” by the Board regarding the “across the board denial.” Additionally, the court found that the Board’s “staff documents” relating to Raybon and Holden indicated they did not need further training, and the Board’s reason for going into executive session was inadequate. Further* the court found that, given the testimony that Raybon was the reason the new statute was created, the Board’s decision to deny certification was arbitrary, capricious, and not supported by substantial evidence. The chancery court thus reversed and rendered the Board’s decision, certifying Raybon and Holden as full-time law enforcement officers without having to meet further requirements. The Board timely appealed.

STANDARD OF REVIEW

¶ 7. An administrative agency’s decision will not be disturbed “unless the agency order was unsupported by substantial evidence, was arbitrary or capricious, was beyond the agency’s scope or powers, or violated the constitutional or statutory rights of the aggrieved party.” Miss. Bd. on Law Enforcement Officer Standards & Training v. Clark, 964 So.2d 570, 573 (¶ 7) (Miss.Ct.App.2007) (citing Miss. Bd. on Law Enforcement Officer Standards & Training v. Voyles, 732 So.2d 216, 218 (¶ 6) (Miss.1999)). Furthermore, an appellate court “cannot substitute its judgment for that of the agency”; instead, the “[ajppel-late review of an agency decision is limited to the record and the agency’s findings.” Id. “When this Court finds that the lower court has exceeded its authority in overturning an agency decision, we will reverse and reinstate the agency’s decision.” Id.

¶ 8. Additionally, “[a]n 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.” Miss. Methodist Hosp. & Rehab. Ctr., Inc. v. Miss. Div. of Medicaid, 21 So.3d 600, 606 (¶ 15) (Miss.2009) (citing Sierra Club v. Miss. Envtl. Quality Permit Bd., 943 So.2d 673, 678 (¶ 10) (Miss.2006)). “This ‘duty of deference derives from our realization that the everyday experience of the administrative agency gives it familiarity with the particularities and nuances of the problems committed to its care which no court can hope to replicate.’ ” Id. at 606-07 (¶ 15) (quoting Gill v. Miss. Dep’t of Wildlife Conservation, 574 So.2d 586, 593 (Miss.1990)).

ANALYSIS

¶ 9. The Board argues that the chancery court erred in finding its unanimous decision to deny full-time certification to Raybon and Holden was not supported by substantial evidence, and was arbitrary and capricious. An administrative agency’s decision will be deemed arbitrary and capricious if it is not based on substantial evidence. Pub. Emps’ Ret. Sys. v. Allen, 834 So.2d 50, 53 (¶ 10) (Miss.Ct.App.2002). We note the chancery court did find that, absent an arbitrary and capricious decision, the grant or denial of certification under section 45—6—11 (2) (b) was within the Board’s discretion.

I. Whether the Board’s decision was arbitrary and capricious.

¶ 10. The Board argues its decision was not arbitrary and capricious. “An administrative agency’s decision is arbitrary when it is not done according to reason and judgment, but depending on the will alone.” Miss. Gaming Comm’n v. Pennebaker, 824 So.2d 552, 556 (¶ 12) (Miss.2002) (quoting Miss. State Dep’t of Health v. Natchez Cmty. Hosp., 743 So.2d 973, 977 (¶ 13) (Miss.1999)). “An action is capricious if done without reason, in a whimsical manner, implying either a lack of understanding of or disregard for the surrounding facts and settled controlling principles.” Id.

¶ 11. Raybon and Holden argue that there were only two requirements under section 45-6-11 (2) (b): twenty-five years of law enforcement experience and receiving certification as a part-time officer. Additionally, they argue the Board only had discretion to decide whether the applicants met these two requirements, and if they did, the Board had no discretion to deny certification. We disagree.

¶ 12. Regarding statutory interpretation,

[t]he function of the Court is not to decide what a statute should provide, but to determine what it does provide. The court must not broaden or restrict a legislative act. The Court’s goal is to give effect to the intent of the Legislature. To determine legislative intent, the Court first looks to the language of the statute. If the words of a statute are clear and unambiguous, the Court applies the plain meaning of the statute and refrains from using principles of statutory construction.

Lawson v. Honeywell Int’l, Inc., 75 So.3d 1024, 1027 (¶ 7) (Miss.2011) (citations omitted). Specifically, “[i]n statutory interpretation, the term ‘may' indicates a permissive term, not a mandatory term, such as the term ‘shall’ would indicate.” Tunica Cnty. v. Hampton Co. Nat’l Sur., 27 So.3d 1128, 1134-35 (¶ 20) (Miss.2009) (citing Weiner v. Meredith, 943 So.2d 692, 694 (¶ 8) (Miss.2006)).

¶ 13. After a review of the record, we find that the Board’s decision was neither arbitrary nor capricious. The plain and unambiguous language of the statute, and the use of the term “may,” gave the Board discretion to deny full-time certification for the applicants, even if they had the requisite twenty-five years of law enforcement experience and received certification as part-time officers. Thus, the plain language of the statute authorizes, but does not require, that every applicant meeting the two requirements be certified as full-time. Moreover, prior to the statute’s amendment, the Board was not authorized to grant such an exception for full-time certification. The Board notes that almost every subsection of section 45-6-11, including the subsection at issue here, also used the term “shall” when an action was mandated. Because Raybon and Holden did not meet the minimum standards, the Board rejected their applications for full-time certification. As stated earlier, chapter 1, section 101.03 of the manual lists the guidelines the applicant must meet in order to be employed as a law enforcement officer. Individuals who meet both the requirements of section 101.03 and “the minimum employment guidelines are eligible to be employed as an officer.”

¶ 14. Moreover, Senator Albritton, the author of the legislation, spoke at the July 16, 2009 Board meeting. He stated the original intent of Senate Bill 2803 was for Raybon to receive certification, but “naturally, the decision is [the Board’s].” Regarding the specific language of the bill, he stated:

The intent on the “may,” rather,than “shall”[;] when you have these you don’t have much discretion where when you do look at this and say these people did do this or they can’t document training or time in. That’s the intent of the “may”[;] of course you could take it any way you want. It was intended for the original people, but at the same time if there were other people they could go in it. The intent was to open this avenue, very limited, and close it.

However, legislative intent may only be inferred from a statement of the bill’s author when the statement is consistent with the statutory language and other legislative history. The interpretation of a bill by the author is not binding on a court. Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 48.15 (6th ed.2007). The Board’s legal counsel, James Dale, commented that because of the use of the word “may” in the legislation, the Board did not have to certify any of the applicants. Accordingly, the Board had the discretion to decline to offer another venue for full-time certification that required no training.

¶ 15. The Board’s action was consistent with the Board’s policy of how an applicant becomes certified full-time. The use of the term “may” in section 45 — 6—11 (2) (b) authorized, but did not require, the Board to approve the applicants as full-time officers through a different venue than its usual policy. The Board’s denial was a reasonable interpretation of the statute. Therefore, the decision cannot be considered arbitrary and capricious.

II. Whether the Board’s decision was supported by substantial evidence.

¶ 16. The Board claims Ray-bon and Holden did not meet the minimum standards under the Board’s long-standing policy for full-time certification. We agree, and find substantial evidence supported its decision to deny Raybon and Holden full-time certification. Substantial evidence is defined as “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Pub. Emps’ Ret. Sys. v. Marquez, 774 So.2d 421, 425 (¶ 13) (Miss.2000) (citing Delta CMI v. Speck, 586 So.2d 768, 773 (Miss.1991)). Substantial evidence is “more than a ‘mere scintilla’ or suspicion.” Id. Because there was no hearing, the Board’s minutes of its July 16, 2009 open meeting constitutes the evidence in this matter. “[P]ublic boards speak only through their minutes and their actions are evidenced solely by entries on the minutes.” Thompson v. Jones Cnty. Cmty. Hosp., 352 So.2d 795, 796 (Miss.1977).

¶ 17. The Board argues the chancery court erred in ruling that the Board’s “findings” were inadequate and in improperly reducing the Board’s findings to the following paragraph in the minutes:

Regarding item # 5 dealing with Senate Bill 2803, does the Board have a motion[?] Mr. Snyder stated that he had a motion. Mr. Snyder stated that while twenty (20) requests for full-time certification have been submitted to the Board pursuant to Mississippi Code Section 45 — 6—11 (2)(b), I hereby move that the Board deny full-time certification to these twenty (20) applicants on the ground that they do not meet the minimum standards for full-time certification. Mr. Cole seconded the motion. The vote was unanimous and the motion carried.

Based on the entirety of the Board’s minutes, not merely the above excerpt, we agree that there was substantial evidence to support the Board’s decision. The qualification issues were discussed at length. Further, several negative public comments were made at the Board’s meeting regarding the certification of officers under Senate Bill 2808, which justifies the Board’s decision. Chief Ken Winters, director of the Mississippi Chiefs of Police Association, stated:

[Standards have been in place for twenty-nine (29) years and their association vigorously opposed this piece of legislation .... Everything we have done to raise the level of professionalism in law enforcement basically with one swipe of the pen nullifies it.... [I]f you open that door and let politics into this regulatory commission, you may as well do away with this board and let the legislature decide who should be certified, that standards mean[ ] nothing.

Chief David Lindley, former president of the same organization, and chair of the association’s legislative committee, agreed, commenting: “The idea that someone has been in law enforcement for twenty-five (25) years, but does not have the professional dedication or frame of mind to go to the academy (and there are many of them across the state now),” he found problematic and unfair to those people who had been “put through a strenuous, rigorous training exercise” to get certification. He continued that “[w]e are trying to raise the standard and raise the bar where certification in Mississippi means something. These individuals have had their entire lifetime to go to the academy and they didn’t do it.... This is not in the best interest of law enforcement.”

¶ 18. We also agree with the Board that the chancery court misinterpreted certain “staff documents” related to the twenty applicants. The court interpreted these “documents” as stating that Raybon and Holden did not need any further training. These documents were actually a chart, presented at the meeting, entitled “Equivalency of Training for Senate Bill 2803,” which gave the basic course, agency, “equivalency rule” (Senate Bill 2803), and training required for each of the twenty applicants. Holden was shown as having completed the Pearl River County Sheriffs Department Reserve Academy in September 2006, receiving part-time certification and having twenty-five years of law enforcement experience. Raybon’s part-time certification was based on “various in-service training.” The Board explained that this method was the “grand-fathered” method of certification under section 45-6-11(1). The chart showed that for both individuals, there were “no further requirements” under the “training required” column. However, the Board explained this notation did not mean that Raybon and Holden qualified for full-time certification under the bill. The Board stated there have always been two ways to become certified full-time: complete the basic course training or comply with the requirements of equivalency training, both of which are explained in the Board’s manual. The Board stated neither Raybon nor Holden qualified under these two preexisting methods. However, section 45-6-ll(2)(b) provided a third method for the Board to provide full-time certification, which was available during a short period of time (approximately seventy-six days). The method provided no training; instead, the individual must have twenty-five years’ experience and part-time certification. The applicants on the chart were seeking certification under Senate Bill 2803 (the “equivalency rule”), not the other two equivalency methods in the manual; thus, the chart showed “no further requirements” under the “training required” column. The Board, however, denied the third method of certification for them. And there was no evidence to suggest that Raybon and Holden were not required to meet the minimum requirements for full-time certification after the denial.

¶ 19. In its order reversing the Board’s decision, the chancery court, and subsequently Raybon and Holden, also criticized the Board for calling an executive session based on an inadequate reason (“possible litigation”), and not providing minutes of the session. The court cited to LaCroix v. Marshall County Board of Supervisors, 28 So.3d 650, 661 (¶ 30) (Miss.Ct.App.2009), where calling an executive session for “pending litigation” was deemed insufficient, in a claim under the Open Meetings Act. (Citing Hinds Cnty. Bd. of Sup’rs v. Common Cause of Miss., 551 So.2d 107, 111-12 (Miss.1989)). While a public body may enter into executive session for a variety of reasons, the reason given “must be meaningful” and “more than some generalized term.” Id. at (¶¶27, 29). The LaCroix court also found that there was no evidence that “the Board [wa]s violating the Open Meetings Act by not taking minutes in executive session as required by statute.” Id. at 662 (¶ 31). The minutes of an executive session must reflect certain basic information or record “any final actions taken.” “Unless final actions or votes are taken during executive session, no minutes are required unless ‘the public body requests [they] be included.’” Id.

¶20. LaCroix is distinguishable. The case before us does not consist of an Open Meetings Act claim, as LaCroix did. And even though the Board’s reason for calling an executive session was insufficient under LaCroix, we do not find this inadequacy reversible error. Further, the Board’s minutes reflected all of the necessary basic information about the Board’s decision, regardless of whether minutes were taken during the executive session.

¶21. Raybon and Holden also claim that the Board did not properly examine their- respective applications. However, because the Board declined the invitation of the Legislature to certify the applicants under section 45 — 6—ll(2)(b), the Board was not required to examine carefully their applications. Raybon and Holden did not meet the minimum qualifications set forth in the Board’s policy. We conclude the Board’s denial was supported by substantial evidence in the minutes.

CONCLUSION

¶ 22. We find the chancery court erred in its reversal of the Board’s decision. Accordingly, we reverse the judgment of the chancery court, and we render a judgment to reinstate the Board’s decision.

¶ 23. THE JUDGMENT OF THE CHANCERY COURT OF PEARL RIVER COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS AND MAXWELL, JJ, CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. FAIR, J., NOT PARTICIPATING.

      . In the record, Officer Raybon’s agency was listed as the Picayune Police Department, in Pearl River County, and Officer Holden’s agency was the Pearl River County Sheriff’s Department.

      . The Board's Professional Certification Policy and Procedures Manual also describes the policies and procedures the Board has established concerning the employment of law enforcement officers in Mississippi. Chapter 1, section 101.03 of the manual sets forth the basic guidelines that a law enforcement applicant must meet in order to be employed as a law enforcement officer. Board Manual, http://www.sos.ms.gov/ACProposed/00013666 b.pdf. Chapter 1, section 101.04 states: “Individuals who meet both the definition of a law enforcement officer in 101.03 ... and who meet the minimum employment guidelines are eligible to be employed as a law enforcement officer.” Id. Chapter 1, Section 101.02(1) states Mississippi Code Annotated section 45-6-11(1) provides an exclusion or "grand-father clause" to the guidelines of section 101.03 for eligible law enforcement officers who are already serving under permanent appointment as of July 1981, among others. Id. These individuals "are not required to meet any of the provisions of the LEOTP [ (Law Enforcement Officers Training Program) ]. This is the sole qualifying factor for any exemption under the ‘grand-father clause’ of the LEOTP Act. The Act does not provide for any exemption based on prior years of service.” Id.

      . The Board claims the statute had the "unintended result of opening the door” for twenty law enforcement officers to apply for full-time certification.

      . The bill originally required thirty years of law enforcement experience to accommodate Raybon, but the bill was revised to twenty-five years to allow a second individual to qualify for full-time certification.

      . See Miss.Code Ann. § 45-6-11(1) ("Law enforcement officers already serving under permanent appointment on July 1, 1981 ... shall not be required to meet any requirement of subsections (3) and (4) of this section as a condition of continued employment .... ”); § 45-6-1 l(2)(a) ("Any person who has twenty (20) years of law enforcement experience and who is eligible to be certified under this section shall be eligible for recertification .... ”); § 45-6-1 l(3)(a) ("No person shall be appointed or employed as a law enforcement officer or a part-time law enforcement officer unless that person has been certified as being qualified _”); § 45-6-1 l(3)(b) ("No person shall be appointed or employed as a law enforcement trainee in a full-time capacity ... for a period to exceed one (1) year.”); § 45-6-11(4) (“[T]he board, by rules and regulations consistent with other provisions of law, shall fix other qualifications for the employment of law enforcement officers ....”) (emphasis added).
      Further, the Board also points out on appeal that bills identical to Senate Bill 2803 were introduced in legislative sessions before 2009, and each bill used the term "shall” and not "may,” and each bill died in committee. The failure of these bills suggests that the Legislature in 2009 did not intend the term “may” to be mandatory. See http://billstatus. ls.state.ms.us/2010/pdf/history/SB/SB2899. xml; http://biIIstatus.ls.state.ms.us/2011/pdf/ history/SB/SB2462.xml; and http://billstatus. ls.state.ms.us/2012/pdf/history/SB/SB2162. xml.

      . The chancery court correctly pointed out that Raybon and Holden were not deprived of due process. Therefore, there was no due process hearing, and none was needed, be- . cause this case did not deal with the recall of a previously issued certificate, nor did Ray-bon and Holden have a property interest in their application for certification.

      . See also Board's Manual, Chapter 1, Section 101.02, http://www.sos.ms.gov//ACProposed/ 00013666b.pdf.

      . The manual states that the full-time basic course curriculum is 400 hours and the part-time course is 200 hours, http://www.sos.ms. gov//ACProposed/00013666b.pdf (p. 61-64). Once applicants who are eligible for certification successfully complete the Board-approved basic-training course, and are approved by the Board, the staff will distribute certificates. Id. at 22 (Chapter 1, Section 102.04(d) & 102.5). Certification based on equivalency training can include training received from other federal agencies, including the military. Id. at 88 (Chapter 8, Section 101.03(1)). “Applicants may also qualify for an alternative basic course equivalency based on experience, education and training” based on a point system. Id. (Chapter 8, Section 101.03(2)). The Board states neither Raybon nor Holden qualified under the points method.


source: Caselaw Access Project

author: GRIFFIS, P. J.,

license: Public Domain

text:
    Walter ROBEY, Sr., Appellant v. CLEVELAND SCHOOL DISTRICT, Appellee.
    No. 2012-CA-00755-COA.
    Court of Appeals of Mississippi.
    May 6, 2014.

      Jon M. Mooney Jr., attorney for appellant.
    Elizabeth Lee Marón, Ridgeland, Jamie Ferguson Jacks, Cleveland, Lindsey Nicole Oswalt, Ridgeland, attorneys for ap-pellee.
    Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.
   GRIFFIS, P. J.,

for the Court:

¶ 1. Walter Robey appeals the decision by the Cleveland School District Board of Trustees not to renew his employment contract as principal of East Side High School. Robey argues that the decision should be reversed because it was arbitrary and capricious, was not supported by substantial evidence, and was in violation of his constitutional and statutory rights. We find no error and affirm.

FACTS

¶ 2. In July 2008, Robey was employed by the Cleveland School District as principal of East Side High School. In February 2011, Robey was advised that the Board would not renew his employment contract for the upcoming 2011-2012 school year.

¶ 3. Dr. Jackie Thigpen, the superintendent of the Cleveland School District, gave the Board five reasons for the recommendation: Robey’s failure to follow district policy regarding out-of-state travel, his failure to follow district policy regarding school-activity requests, his failure to follow district financial-procedures policy, his failure to meet the Adequate Yearly Progress (AYP) goals for his school, and the failure to maintain a clean learning environment.

¶ 4. As required by the Mississippi Education Employment Procedures Law (EEPL), the Board notified Robey of its decision in writing. Robey requested and was granted a hearing. At the hearing, Robey was represented by counsel. He testified along with four other witnesses. Several documents were offered into evidence. Thereafter, the Board upheld Thigpen’s nonrenewal recommendation.

¶ 5. On appeal to the chancery court, Robey challenged the Board’s decision. The chancellor affirmed the Board’s decision of nonrenewal. As to the procedural issues presented, the chancellor determined that any defects in providing the required notice, under Mississippi Code Annotated section 37-9-113(4) (Rev.2012), constituted “harmless error.” As to the substantive legal issues, the chancellor determined that the Board’s nonrenewal decision was supported by the evidence in the record. It is from this decision that Robey now appeals.

STANDARD OF REVIEW

¶6. When this Court reviews a decision by a chancery or circuit court concerning an agency action, we apply the same standard of review that the lower courts are bound to follow. Hinds Cnty. Dist. Bd. of Trs. v. R.B. ex rel. D.L.B., 10 So.3d 387, 394 (¶ 17) (Miss.2008). Further, Mississippi statutory law sets the standard of review of a school board’s decision not to renew an employment contract:

The scope of review of the chancery court in such cases shall be limited to a review of the record made before the school board or hearing officer to determine if the action of the school board is unlawful for the reason that it was: (a) Not supported by substantial evidence; (b) Arbitrary or capricious; or (c) In violation of some statutory or constitutional right of the employee.

Miss.Code Ann. § 37-9-113(3) (Rev.2012). Uncorroborated hearsay is not substantial credible evidence. Noxubee Cnty. Bd. of Educ. v. Givens, 481 So.2d 816, 820 (Miss.1985).

ANALYSIS

1. Whether the Board violated Robey’s statutory rights and his due-process rights.

¶7. Robey argues that the conduct of the Board in regard to his nonre-newal hearing was clearly erroneous and violated his statutory rights and his due-process rights. Particularly, Robey argues that the Board’s one-day delay in providing notice of his nonrenewal violated provisions of the EEPL.

¶ 8. Mississippi Code Annotated section 37-9-105(a) (Rev.2012) provides:

If a recommendation is made by the school district not to offer an employee a renewal contract for a successive year, written notice of the proposed nonreem-ployment stating the reasons for the proposed nonreemployment shall be given no later than the following:
If the employee is a principal, the superintendent, without further board action, shall give notice of nonreem-ployment on or before March 1....

Also, Mississippi Code Annotated section 37-9-113(4) provides that “no relief shall be granted based upon a court’s finding of harmless error by the board in complying with the procedural requirements of [sections 37-9-101 to 37-9-113.” The supreme court has interpreted this provision as providing that any defects in the timeliness of notice and other procedural defects are harmless error when the school board makes a good-faith attempt to follow the applicable procedures. See Ford v. Holly Springs Sch. Dist., 665 So.2d 840, 845 (Miss.1995) (noted that a six-day delay in service would have been harmless procedural error excusable under section 37-9-113(4)); see also Cox v. Thomas, 403 So.2d 135, 137-38 (Miss.1981) (held that certain procedural defects can be excused where there is a “substantial and manifestly good faith attempt by the superintendent and the school board to comply with the law”).

¶ 9. This Court recently affirmed a school district’s employment-nonrenewal decision and found that the school board’s failure to comply with the EEPL when it did not permit the employee to give a closing statement after his hearing before a hearing officer constituted “harmless error.” Alexander v. Reeves, 90 So.3d 1273, 1281 (¶ 22) (Miss.Ct.App.2012). Because the plaintiff employee “was given ample notice of the charges against him, was represented by counsel, and was afforded a full opportunity to address [the charges] on the three separate hearing dates,” he suffered no prejudice, despite the procedural error, as “there was a ‘substantial and manifestly good faith attempt’ to comply with the statute.” Id.

¶ 10. Robey’s claim here is based on the contention that he did not personally receive his notiee-of-nonrenewal letter until March 2, one-day late. Thus, he argues that the Board’s actions were clearly erroneous and his nonrenewal decision should be reversed.

¶ 11. The record indicates that Thigpen prepared Robey’s nonrenewal letter on February 24. She planned to deliver it in person at East Side High School that day. However, Robey was not at school that day. After Thigpen realized Robey was out sick and would not return to work until March 1, she mailed the nonrenewal letter by certified mail to Robey on February 25. She also planned to deliver a copy personally to Thigpen when he returned to work on March 1, as he initially claimed he would.

¶ 12. When Robey failed to return to work on March 1, Thigpen sent a process server to deliver the letter to Robey’s home. The process server made several attempts to deliver the letter on March 1. Although Robey claimed he was home sick, no one answered the door at his house. The process server attempted to serve Ro-bey the next day, but his wife refused service. It was not until Robey’s wife went to the mailbox and accepted the certified letter that Robey actually received the letter.

¶ 13. We find that Thigpen’s efforts to serve Robey with the notice of nonrenewal constitute a substantial good-faith effort, and Robey was not prejudiced by the one-day delay. As a result, we conclude that the one-day delay was harmless error.

¶ 14. Robey further contends that the Board violated the EEPL when Thig-pen did not announce Robey’s nonrenewal decision at the Board’s February 14, 2011 meeting. Mississippi Code Annotated section 37-9-15 (Rev.2013) provides:

No later than February 15 of each year, the superintendent of each school district, or such other person designated or authorized by the school board, shall recommend to the school board thereof the assistant superintendents and principals to be employed for each of the schools of the districts except in the case of those assistant superintendents and principals who have been previously employed and who have a contract valid for the ensuing scholastic year.

¶ 15. At the February 14, 2011 Board meeting, Thigpen neither stated affirmatively that Robey’s contract was renewed nor stated categorically that his employment would not be renewed. She described his employment status as pending.

¶ 16. Robey argues that because Thig-pen did not announce her decision to not renew his employment at that February 14 meeting, she violated his statutory rights. We disagree. Section 87-9-15 only required Thigpen submit to the Board a list of the principals that would be renewed. It does not require Thigpen to submit a list of employees who will not be renewed.

¶ 17. At the Board meeting, Thigpen announced Robey’s status as “pending,” and she stated that she had not yet made a decision to renew his employment. Thig-pen subsequently decided not to renew Robey’s employment and attempted to notify him of her nonrenewal decision before the statutorily required March 1 deadline. We find that the decision by the Board was proper and did not violate section 37-9-15.

2. Whether the Board’s decision was not supported by substantial evidence, was arbitrary and capricious, or violated Robey’s statutory or constitutional rights.

¶ 18. Next, Robey argues that the Board’s decision was arbitrary and capricious because the allegations against Ro-bey were untrue and not substantiated by the record. The Board replies that there was substantial evidence to support the reasons for nonrenewal.

¶ 19. The terms “arbitrary” and “capricious” imply “a lack of understanding of or a disregard for the surrounding facts and settled controlling principles.” St. Dominic-Jackson Mem’l Hosp. v. Miss. State Dep’t of Health, 910 So.2d 1077, 1082 (¶ 15) (Miss.2005) (quoting HTI Health Servs. of Miss., Inc. v. Miss. State Dep’t of Health, 603 So.2d 848, 851 (Miss.1992)). An arbitrary act is not done according to reason or judgment, but on will alone. Miss. Methodist Hosp. & Rehab. Ctr. v. Miss. Div. of Medicaid, 21 So.3d 600, 610 (¶ 25) (Miss.2009) (citation omitted). It is “absolute in power, tyrannical, despotic, non-rational[ ] — implying either a lack of understanding of or a disregard for the fundamental nature of things.” Id. Capricious means “freakish, fickle,” or “done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles.” Id. If the reasons for nonrenewal are a sham, or are in retaliation for the employee’s constitutionally protected activity, the Board has acted arbitrarily and capriciously. Claiborne Cnty. Bd. of Educ. v. Martin, 500 So.2d 981, 986 (Miss.1986). However, if the nonrenewal decision of the Board is “fairly debatable,” that is, if reasonable minds could debate the propriety of the Board’s decision for nonrenewal, then it is “the antithesis of arbitrary and capricious.” Rayner v. Barbour, 47 So.3d 128, 135 (¶ 19) (Miss.2010) (citations omitted).

¶ 20. Thigpen gave five reasons for the nonrenewal of Robey’s contract. She stated the reasons were due to Robey’s: (1) failure to follow district policy regarding out-of-state travel, (2) failure to follow district policy regarding school-activity requests, (3) failure to follow district financial-procedures policy, (4) failure to meet the AYP goals for his school, and (5) failure to maintain a clean learning environment.

A. Failure to Follow Out-of-State Travel Policy

¶21. Thigpen testified at the nonre-newal hearing that Robey failed to obtain school-board approval for the boys’ basketball team to travel to Kentucky on December 13, 2010. The Board neither knew about nor consented to the trip. Thigpen testified that she was not even aware that the East Side High School basketball team was representing the school in another state until the team’s bus broke down on the side of the road on the way home.

¶ 22. Robey submitted a travel request for board approval after the trip. Three days later, Thigpen issued a written reprimand to Robey for his failure to obtain Board consent for the student trip. She attached to the letter the specific travel policy of the school district, which stated that student trips out of state require prior Board approval. The letter also referenced prior occasions where Robey violated this policy and failed to timely submit travel requests. Robey was reprimanded twice for his failures to timely submit requests for bus permits on March 2, 2010, and August 16, 2010.

¶23. Robey testified that the Board had to know about his out-of-state travel, because he provided a basketball schedule that included the Kentucky trip, even though he did not submit a formal travel request pursuant to stated district policy. Robey did not specify when the schedule was provided, nor did he submit evidence that the Board actually received a copy of the schedule. Robey also testified that Thigpen had to know about the trip because her nephew was on the basketball team. Lastly, he argued that a formal travel request, subject to Board approval, was unnecessary in this case because the trip was not paid for by the school. Robey provided no additional evidence to support his explanations. In fact, the Board policy for out-of-state travel was clear that all student trips had to be approved by the Board. .

B. Failure to Follow District Policy Regarding School Activity Requests

¶ 24. In addition to his two documented reprimands for failure to timely submit requests for bus permits, Thigpen testified that Robey signed a contract and scheduled two football games with Greenwood High School for 2011 and 2012, without getting the district’s approval. Robey claimed that the contract that scheduled the Greenwood High School games was signed by Thigpen; therefore, it was approved by the district.

¶ 25. Thigpen claimed that Robey ignored district policy when he permitted Chris Parks to serve as an assistant or part-time coach for the football team without either obtaining approval from the Board or making clear to Parks that he would not be paid. Parks went to the district office and made a demand for payment for his services as an assistant coach, even though his employment was not authorized by the Board. Robey claimed that the football coach and athletic director were responsible for making a recommendation to hire members of the coaching staff. He claimed that Parks, though he started out as a volunteer, wanted to be paid for his services and made a complaint to the district.

¶ 26. Finally, Thigpen testified that Ro-bey permitted janitors to operate a “store” that sold candy, chips, pickles, and miscellaneous food items in violation of the district policy on fundraising. The Board had the authority to approve all fundraising activities, and all proceeds for school fund-raising must have been appropriately accounted for in the district’s business office. Robey did not deny these allegations. Instead, he claimed that the fundraising was initially for a janitor’s family member’s pageant, which then turned into a fundraiser for the science club.

C. Failure to Follow District Financial-Procedures Policy

¶ 27. Thigpen alleged that Robey violated district policy by an attempt to misuse federal funds to purchase jackets and other incentives for his staff. When he made the order, Robey identified the items being purchased as “student incentives,” which could be paid for by the school’s federal funds. This was the designation on the purchase order, despite the fact that the items ordered were specific to the faculty as to quantity, size, and monograms.

¶ 28. Just before the invoice was paid, Brenda Ellis, federal-funds coordinator for the district, discovered that the money was actually being used to buy jackets for staff members. Robey characterized the funding request as a mistake that he corrected once it was brought to his attention that the items could not be purchased with federal funds.

D. Failure to Meet the AYP Goals for His School

¶ 29. Thigpen testified that Robey failed to meet the AYP attendance goals for the 2010-2011 school year. Specifically, while Robey met the AYP state goal by reaching 93% attendance, he failed to meet the district goal of 95% attendance along with his own personal goal of 98% attendance.

¶ 30. Robey submitted a plan, which was approved by Thigpen, prior to the school year to improve attendance. The plan called for Robey to call absent students to encourage them to come to school, among other things. While Robey explained some of the actions he took to ensure regular school attendance, he provided no evidence or documentation that he took the actions specified in the plan to improve attendance.

E.Failure to Maintain a Clean Learning Environment

¶ 31. Thigpen alleged that Robey had difficulty keeping the school clean on a day-to-day basis. Thigpen gave credit to Robey for the work he had done to clean the school over the summer; however, she contended that her issue with Robey was his inability to keep the school clean on a daily basis.

¶ 32. Robey did not deny or offer evidence to the contrary. He argues that a photograph of the condition of one of the bathrooms in the school was taken only days before his nonrenewal hearing and, therefore, should have not been used as evidence of his inability to keep the school clean on a daily basis. The Mississippi Department of Education approved the cleanliness of the schools after Robey made improvements in the summer of 2010. However, Thigpen alleged that the school was not cleaned at multiple other times during Robey’s tenure and that was the basis of her decision for nonrenewal.

¶ 33. We note that the standard of review does not allow this Court to substitute our judgment for the judgment of the Board, as our standard of review is not de novo. Bowden v. Lawrence Cnty. Sch. Dist. 948 So.2d 487, 492 (¶ 19) (Miss.Ct.App.2007). Our limited standard of review constrains us to review the record for substantial evidence to support the Board’s decision. Id. “Substantial evidence means more than a scintilla or a suspicion.” St. Dominic-Jackson, 910 So.2d at 1081 (¶ 13) (quoting Miss. State Dep’t of Health v. Natchez Cmty. Hosp., 743 So.2d 973, 977 (¶ 12) (Miss.1999)). Specifically, substantial evidence requires less than a preponderance of the evidence. Miss. Dep’t of Envtl. Quality v. Weems, 653 So.2d 266, 280-81 (Miss.1995).

¶ 34. We find there was substantial evidence to support the Board’s decision not to renew Robey’s contract. We are unable to say that the Board’s proffered reasons to terminate Robey were a sham. On the whole, the evidence indicated that Robey had difficulties in following district policy regarding out-of-state student travel requests, school activities, and financial management. He was unable to meet established attendance goals for the district. He failed to maintain a consistently clean and sanitary school environment. And Ro-bey made several policy decisions without the required Board approval. Therefore, we find that this issue has no merit.

3. Other Issues

¶ 35. In his brief, Robey also makes two separate claims of gender discrimination against the district. Essentially, he claims that the district’s treatment violated the Equal Protection Clause of the Fourteenth Amendment and Title VII. Robey argues that the Board chose to renew the contract of two female principals in the district who were “similarly situated” to him.

¶ 36. Robey did not raise these issues before the chancery court or the Board, during the nonrenewal hearing. Instead, Robey merely alleged that the Board’s decision was in retaliation for his gender-discrimination claims that he previously filed with the Equal Employment Opportunity Commission. We find that his failure to raise this issue at the trial level constitutes a waiver of this issue. Davis v. Estate of Tiblier, 107 So.3d 181, 184 (¶ 9) (Miss.Ct.App.2013) (citing Foster v. State, 716 So.2d 538, 540 (¶ 7) (Miss.1998)). We decline to address this issue.

¶ 37. Having considered the issues properly raised in this appeal, we find no error and affirm the judgment of the chancery court.

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

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


author: ISHEE, J.,

text:
    Ondre Ray BELTON a/k/a Ondra Ray Belton, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00213-COA.
    Court of Appeals of Mississippi.
    May 6, 2014.

      Ondre Ray Belton, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Ondre Belton pleaded guilty in the Copiah County Circuit Court on November 9, 2011, to the charge of taking possession of and taking away an automobile, or car theft. He was sentenced to six years in the custody of the Mississippi Department of Corrections (MDOC). On January 14, 2013, Belton filed a motion for post-conviction relief (PCR), which was denied. He now appeals. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On November 9, 2011, Belton pleaded guilty to car theft. The information presented against Belton stated that he unlawfully took possession of and took away a truck belonging to Blain Companies on May 21, 2011. At that time, Belton was employed by Blain Companies. At his guilty-plea hearing, the State testified that it was prepared to show that Belton took possession of the truck while he was off duty, and disabled the global-positioning system so he could take the truck for his own use, temporarily depriving Blain Companies of its property.

¶ 3. After being advised of his rights, the charge made against him, and the penalty of that charge, Belton pleaded guilty. Upon the State’s recommendation, the circuit court sentenced Belton to six years in the custody of the MDOC. Belton filed a PCR motion on January 14, 2013, which was denied. Aggrieved, Belton appeals.

DISCUSSION

¶4. A circuit court’s denial of a PCR motion will not be disturbed unless the decision was clearly erroneous. Bell v. State, 105 So.3d 401, 403 (¶5) (Miss.Ct.App.2012) (citing Smith v. State, 12 So.3d 563, 564 (¶ 4) (Miss.Ct.App.2009)). Questions of law are reviewed de novo. Id.

¶ 5. Belton argues that the charges against him were invalid, and he challenges the sufficiency of the evidence. It is well settled that a guilty plea is valid so long as it was “voluntarily and intelligently made by the criminal defendant before the trial court.” Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss.2009) (citing King v. State, 738 So.2d 240, 241 (¶¶2-3) (Miss.1999)). “To determine whether the plea is voluntarily and intelligently given, the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea.” Id. (citing Harris v. State, 806 So.2d 1127, 1130 (¶ 9) (Miss.2002)).

¶ 6. Belton pleaded guilty to the charge of car theft under Mississippi Code Annotated section 97-17-42 (Supp.2013). At the plea hearing, the elements of this charge were explained to Belton. He was informed of the facts underlying the charge that the State was prepared to present to prove his guilt. Belton was then informed of his constitutional rights and that he would be waiving these rights by pleading guilty, and he informed the circuit court he understood these rights and was prepared to waive them. Initially, Belton stated that he was not guilty of the crime of car theft. At that time, the circuit court allowed Belton the opportunity to discuss his case with his attorney before entering his plea.

¶ 7. After returning to the courtroom, Belton informed the circuit court that an understanding had been reached and that he was prepared to plead guilty. The circuit court asked Belton if he stole someone’s truck and Belton replied, “Yes, sir.” The circuit court asked if Belton had been influenced to plead guilty, to which Belton replied, “No.” The circuit court asked Belton if he was pleading guilty because he was guilty and Belton replied, ‘Tes, sir.”

¶ 8. As such, the circuit court found that “Belton has knowingly and intelligently waived his constitutional rights, he has freely and voluntarily entered a plea of guilty in this cause, ... [and] there is a factual basis to support the charges against him[.]” We agree. While Belton may have expressed concerns regarding his guilty plea, he was given the opportunity to consult with his attorney, and he decided to continue with the entry of his guilty plea. Therefore, we find that Bel-ton knowingly and intelligently waived his constitutional rights and voluntarily entered his plea of guilty.

¶ 9. “A valid guilty plea waives the right to challenge the sufficiency of the State’s evidence.” Grissom v. State, 66 So.3d 1280, 1282 (¶ 6) (Miss.Ct.App.2011) (citation omitted). Therefore, Belton waived his right to challenge the sufficiency of the evidence. This issue is without merit.

¶ 10. Belton also asserts that he was denied effective assistance of counsel. In order to make a claim based on ineffective assistance of counsel, Belton must prove that his counsel’s performance was deficient and that his defense was prejudiced by this deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “In the context of guilty pleas, this means the defendant must show that, were it not for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Ivy v. State, 103 So.3d 766, 769 (¶ 11) (Miss.Ct.App.2012) (citations omitted).

¶ 11. Belton contends that his attorney failed to inform him of available defenses and failed to investigate the validity of the charge, as well as the evidence presented against him. Belton, however, only offers his own affidavit in support of these arguments and does not provide any further proof. “In cases involving post-conviction collateral relief, where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Watts v. State, 97 So.3d 722, 726 (¶12) (Miss.Ct.App.2012) (citations omitted). Belton failed to prove that his counsel’s performance was deficient. Therefore, this issue is without merit. We affirm the judgment of the circuit court.

¶ 12. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

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


author: GRIFFIS, P.J.,

text:
    Thomas J. HOOGHE a/k/a Thomas Hooghe, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00845-COA.
    Court of Appeals of Mississippi.
    May 6, 2014.

      Thomas J. Hooghe, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Thomas Hooghe appeals the dismissal of his motion for post-conviction collateral relief (PCCR). Hooghe argues that there was no factual basis to support his guilty plea; he was prejudiced by the amended, superseding indictment; the amended, superseding indictment was the result of prosecutorial vindictiveness and misconduct; and he received ineffective assistance of counsel. We find no error and affirm.

FACTS

¶ 2. On August 5, 2011, DeSoto County Deputy Sheriff Shane Foster saw a car almost come to a complete stop on Interstate 55. He called dispatch and ran the tag number. The dispatcher reported the vehicle had been stolen out of Little Rock, Arkansas. Deputy Foster stopped the vehicle.

¶ 3. Detective Jerry Owensby was dispatched to the scene. Hooghe refused to speak about the car, but told Detective Owensby that he had eaten at a steakhouse in Southaven, Mississippi, and had been driving around. Hooghe would not tell Detective Owensby where he was from or where he was going. Detective Owens-by suspected that Hooghe was driving under the influence, so Hooghe was taken into custody, where he refused to provide a breath sample.

¶ 4. On December 13, 2011, Hooghe was indicted and charged with the crime of receiving stolen property, a violation of Mississippi Code Annotated section 97-17-70 (Supp.2013). On June 29, 2012, the State filed a motion to amend the indictment to charge Hooghe as a habitual offender, under Mississippi Code Annotated section 99-19-81 (Rev.2007).

¶5. On July 18, 2012, a grand jury issued an amended, superseding indictment. Hooghe was charged with the crime of unlawful taking of a motor vehicle, a violation of Mississippi Code Annotated section 97-17-42 (Supp.2013). He was also charged under section 99-19-81 as a habitual offender.

¶ 6. On August 20, 2012, Hooghe pled guilty to the unlawful taking of a motor vehicle. As part of the plea agreement, the habitual-offender charge was dropped in exchange for his guilty plea. The circuit court accepted the guilty plea and sentenced Hooghe to serve ten years in the custody of the Mississippi Department of Corrections.

¶7. Hooghe filed documents with the Circuit Court of DeSoto County. On January 22, 2013, the circuit judge entered an order that directed the circuit clerk to file Hooghe’s documents and to treat the filed documents as a PCCR motion. In the documents, Hooghe claimed ineffective assistance of counsel, the indictment was defective, and his right to a speedy trial was violated. By order dated May 6, 2013, the circuit judge dismissed Hooghe’s PCCR motion. It is from this judgment that Hooghe now appeals.

STANDARD OF REVIEW

¶ 8. This Court will not reverse a trial court’s dismissal 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. (citing Brown v. State, 731 So.2d 595, 598 (116) (Miss.1999)).

ANALYSIS

I. Whether the trial court erred in accepting Hooghe’s guilty plea.

¶ 9. Hooghe asserts that the trial court had no factual basis to ascertain that Hooghe had any connection to the car theft in Arkansas. Also, Hooghe contends that because the car was stolen in another state, DeSoto County did not have jurisdiction to proceed.

¶ 10. Uniform Rule of Circuit and County Court 8.04(A)(3), titled “Entry of Guilty Plea,” provides:

Voluntariness. Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.

(Emphasis added). In Turner v. State, 961 So.2d 734, 736-37 (¶ 6) (Miss.Ct.App.2007), this Court held that a defendant’s admission of guilt amounts to an adequate factual basis, as does any record evidence before the trial court.

¶ 11. The following exchange occurred at the plea hearing:

Court: Do you understand that you’re in the Circuit Court of DeSoto County and that you’re offering a plea of guilty to the charge of unlawful taking of a motor vehicle?
Hooghe: I understand.
Court: Would the [Sjtate please give me a factual basis for the charges against Mr. Hooghe?
State: If this case were to go to trial, the [Sjtate would prove by admissible and credible evidence and beyond a reasonable doubt that Thomas Hooghe did on or about August 5, 2011, willfully, unlawfully, feloniously and without authority take possession of or take away a motor vehicle, that being one 2003 Infiniti G35 of any value belonging to Robert McCarville, with the intent to either permanently or temporarily convert or to permanently or temporarily deprive the owner of possession or ownership.
The facts would more specifically show that the vehicle listed in the indictment was stolen from Little Rock, Arkansas, prior to August 5, 2011. The victim, Robert McCarville, stated that he had left it, I believe, in the parking lot of a YMCA in Little Rock. He would testify that he does not know this defendant nor did he give this defendant permission to have his vehicle.
The [Sjtate would also call Officer Shane Foster with the DeSoto County Sheriffs Department, who would testify that he conducted a traffic stop on that vehicle and that he ran the tag, that it came back reported stolen out of Arkansas, that this defendant, Mr. Hooghe, was driving the vehicle, and that he was taken into custody at that time.
These events occurred within DeSoto County, Mississippi, therefore within this court’s jurisdiction and venue.
Court: Mr. Hooghe, do you understand and recall the events bringing you here today, sir?
Hooghe: One correction, sir. The arrest was August 4. That might come in down the road somewhere. It was before midnight on August 4. She [ (the prosecutor) ] says August 5.
Court: All right. Other than that date, Mr. Hooghe, do you have any disagreements with the factual basis as set out by the prosecutor?
Hooghe: I do not.

¶ 12. Section 97-17-42 is titled “Taking possession of or taking away a motor vehicle.” This section provides:

Any person who shall, willfully and without authority, take possession of or take away a motor vehicle of any value belonging to another, with intent to either permanently or temporarily convert it or to permanently or temporarily deprive the owner of possession or ownership, and any person who knowingly shall aid and abet in the taking possession or taking away of the motor vehicle, shall be guilty of a felony and shall be punished by commitment to the Department of Corrections for not more than ten (10) years.

Miss.Code Ann. § 97-17-42(1).

¶ 13. Hooghe expressly acknowledged under oath that he understood the charge he was pleading guilty to and its factual basis. He was also advised of his rights and the claims he was waiving by pleading guilty. We find that there was an adequate factual basis for the trial court to determine that Hooghe was in fact guilty of car theft. In fact, the State informed the court that the State could prove that “Thomas Hooghe did on or about August 5, 2011, willfully, unlawfully, feloniously and without authority take possession of or take away a motor vehicle, that being on 2003 Infiniti G35 of any value belonging to Robert McCarville, with the intent to either permanently or temporarily convert or to permanently or temporarily deprive the owner of possession or ownership.” Hooghe then agreed that the State had sufficient evidence to prove these facts. Thus, we find that the factual basis offered by the State was sufficient to prove each element of the crime.

¶ 14. 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). Thus, we cannot find that the trial court was clearly erroneous. Therefore, we find that Hooghe’s claim is without merit.

¶ 15. As part of this issue, Hooghe also asserts that jurisdiction was improper in DeSoto County because the car was stolen in Arkansas. Mississippi Code Annotated section 99-11-23 provides:

Where property is stolen in another state or country and brought into this state, or is stolen in one county in this state and carried into another, the offender may be indicted and tried in any county into or through which the property may have passed, or where the same may be found.

This applies to the crime of larceny. See Brown v. State, 281 So.2d 924, 927 (Miss.1973).

¶ 16. Here, the car was stolen from Arkansas. Hooghe was driving the car in Mississippi. Accordingly, based on section 99-11-23, DeSoto County had proper jurisdiction and venue. We find no merit to this argument.

II. Whether Hooghe was prejudiced by the amended, superseding indictment.

¶ 17. Hooghe claims that he was prejudiced when the grand jury handed down an amended, superseding indictment, which replaced the original indictment. Hooghe asserts that he was surprised by the new indictment, because he was not notified that the State intended to seek a new indictment. The State, he claims, failed to follow the law regarding the amendment of an indictment.

¶ 18. As noted in the facts, Hooghe was initially indicted for receiving stolen property. The State filed a motion to amend the indictment, which was served on Hooghe on June 29, 2012. The motion to amend the indictment provided that the amendment was “one of form and not of substance.” The State, pursuant to Uniform Rule of Circuit and County Court 7.09, moved the trial court to amend Count 1 of the indictment to include Hooghe’s previous convictions and status as a habitual offender. An amended, superceding indictment was returned by a second grand jury. In this indictment, Hooghe was charged with the unlawful taking of a motor vehicle, as a habitual offender.

¶ 19. In Montgomery v. State, 891 So.2d 179, 185 (¶ 22) (Miss.2004), the Mississippi Supreme Court held that “[t]he question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by th[e] Court.” (Quoting Nguyen v. State, 761 So.2d 873, 874 (¶ 3) (Miss.2000)). “It is fundamental that courts may amend indictments only to correct defects of form[;] however, defects of substance must be corrected by the grand jury.” Montgomery, 891 So.2d at 185-86 (¶ 22) (quoting Evans v. State, 813 So.2d 724, 728 (¶ 21) (Miss.2002)).

¶ 20. In Doss v. State, 119 So.3d 1070, 1073 (¶ 12) (Miss.Ct.App.2012), Doss argued that he was unaware of the amendment to his indictment prior to the day of his guilty-plea hearing. This Court found that Doss was not unfairly surprised, because his guilty-plea petition reflected that Doss was aware of a possible sentence enhancement and his previous conviction. Id. at 1074 (¶¶ 15-16). In addition, the Court found no merit to Doss’s argument, because Doss “knowingly entered his guilty plea.” Id. at (¶ 16).

¶ 21. Here, the form and substance of the indictment were amended. The State filed a motion to amend the form of the indictment to include Hooghe’s prior convictions, pursuant to Rule 7.09. The substance of the indictment was amended by a grand jury. This changed the charge against Hooghe to the crime of unlawful taking of a motor vehicle as a habitual offender, rather than receipt of stolen property. Pursuant to the plea agreement, the habitual-offender status was dropped, and Hooghe pled guilty to one count of unlawful taking of a motor vehicle. Hooghe signed the guilty-plea petition and was present for the guilty-plea hearing. He acknowledged that he committed the crime he was charged with. Thus, we find no merit to Hooghe’s argument that he was prejudiced by the amended, superseding indictment.

¶ 22. Further, Hooghe contends that he should have been notified of the State’s intention to impanel a grand jury to amend the indictment. Mississippi Code Annotated section 13-7-29 (Rev. 2012) provides:

Grand jury proceedings are secret, ... [and][t]he only persons who may be present in the state grand jury room when a state grand jury is in session, except for deliberations and voting, are the state grand jurors, the Attorney General or his designees, an interpreter if necessary and the witness testifying.

Hooghe, as a defendant, was not entitled to notification of the grand-jury proceedings; but he was entitled to be notified of the charges against him: “The primary purpose of an indictment is to notify an accused of the charges against him in order to allow him to prepare an adequate defense.” White v. State, 958 So.2d 241, 244 (¶ 10) (Miss.Ct.App.2007) (quoting Brown v. State, 944 So.2d 103, 106 (¶ 8) (Miss.Ct.App.2006)).

¶ 23. Here, once notified of the charge against him, Hooghe decided to plead guilty. He signed a guilty-plea petition and was present for his guilty-plea hearing. Thus, we find no merit to this argument.

III. Whether the amended, superseding indictment was the result of prosecutorial vindictiveness and whether the prosecutor exhibited misconduct.

¶ 24. Hooghe asserts that the second indictment was the result of prosecutorial vindictiveness. Specifically, Hooghe claims that the State sought to amend the indictment for the sole purpose of punishing him. Hooghe argues that the State has shown no material circumstances that would support its seeking a superseding indictment. Hooghe claims that the superseding indictment increased his possible sentence from ten years to fifteen years. Hooghe also asserts that prosecu-torial misconduct occurred.

¶ 25. During his plea hearing, Hooghe never claimed prosecutorial vindictiveness or misconduct, nor did he ever mention it. This assertion is made for the first time on appeal. Because this issue was not raised before the trial court, it is waived. Reed v. State, 118 So.3d 157, 161 (¶ 16) (Miss.2013). Notwithstanding this waiver, we will address both claims.

¶ 26. “The doctrine of prose-cutorial vindictiveness ‘precludes action by a prosecutor that is designed to penalize a defendant for invoking any legally protected right available to a defendant during a criminal prosecution.’ ” Russell v. State, 79 So.3d 529, 539 (¶ 28) (Miss.Ct.App.2011) (quoting Garlotte v. State, 915 So.2d 460, 467 (¶ 23) (Miss.Ct.App.2005)). There is a presumption of prosecutorial vindictiveness where there is a reasonable likelihood that the sentence is a product of prosecu-torial vindictiveness on the part of the sentencing authority. Id. Where no such likelihood exists, the burden is on the defendant to prove actual vindictiveness. Id.

¶ 27. Here, the State recommended to the trial court that it sentence Hooghe to a term of ten years as a non-habitual offender. Based on this recommendation and the trial court’s decision to sentence Hooghe to ten years, Hooghe’s sentence was not increased. Hooghe received the same sentence under the superseding indictment that he could have received under the original indictment. Because his habitual-offender status was dropped, he did not receive a sentence enhancement. Hooghe has failed to prove prosecutorial vindictiveness. Thus, we find no merit to this issue.

¶28. Hooghe also argues that prosecutorial misconduct occurred. Hooghe ascertains that after he filed a lawsuit against the DeSoto County Sheriff and Lieutenant Chad Wicker challenging conditions at the jail, he was informed by Lieutenant Wicker that his indictment had been amended to include his habitual-offender status. He claims that the State improperly discussed his case with Lieutenant Wicker, and he suggests that the State filed a motion to amend his indictment to include habitual-offender status out of spite.

¶29. Again, there is no indication of prosecutorial misconduct. Hooghe has offered no evidence to support this claim, and there is no indication that the State was acting in a spiteful manner to punish Hooghe. Further, the State’s recommendation that Hooghe should be sentenced to ten years was identical to the sentence Hooghe could have received had he pled guilty to the original indictment. Thus, we find no merit to this issue.

IV. Whether Hooghe received ineffective assistance of counsel.

¶ 30. Finally, Hooghe claims that he received ineffective assistance of counsel.

¶ 31. To prove ineffective assistance of counsel, Hooghe must prove: “(1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense.” Evans v. State, 114 So.3d 778, 782 (¶ 13) (Miss.Ct.App.2013) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The burden of proof rests with Hooghe to show both prongs. Id. (citing McQuarter v. State, 574 So.2d 685, 687 (Miss.1990)). Pursuant to Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, Hooghe must show that there exists “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

¶ 32. Because this case involves a guilty plea, Hooghe has to show that, but for his counsel’s performance, he would have gone to trial and the outcome would have been different. See Mitchell v. State, 58 So.3d 59, 62 (¶ 15) (Miss.Ct.App.2011). Hooghe has not met this burden.

¶ 33. Hooghe has not offered any evidence to show that his counsel’s performance amounted to ineffective assistance. Hooghe claims that his counsel failed in his responsibility to properly advise him of the facts surrounding his indictment, which Hooghe asserts could not have sustained a conviction. Hooghe argues that his guilty plea was unknowing and involuntary, and his decision to plead guilty was based on erroneous advice from his counsel. Furthermore, Hooghe asserts that his counsel failed in his duty to investigate the facts and circumstances of the case.

¶ 34. Such allegations directly contradict Hooghe’s statements made under oath at his guilty-plea hearing. Hooghe testified that he had read the plea petition and that he understood that he was giving up his right to appeal by offering a plea of guilty. Hooghe testified that he knew and understood that he may not receive any parole or early release and that any sentence he was given for the charge may have to be served day-for-day. Hooghe testified that he had discussed everything with his counsel, that he was satisfied with his counsel’s representation, that his counsel had made himself available to him at all reasonable times and places, and that he had no complaints against his counsel. Hooghe testified that he committed the crime as charged in the indictment, and that the decision to plead guilty was his and not his counsel’s.

¶ 35. We find no merit to Hooghe’s claim of ineffective assistance of counsel. We affirm the judgment of the circuit court.

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

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


author: FAIR, J.,

text:
    Jo Ann MILLER, Appellant v. JOHNSON CONTROLS and Ace American Insurance Company, Appellees.
    No. 2013-WC-00016-COA.
    Court of Appeals of Mississippi.
    May 6, 2014.

      C. Ray Scales Jr., Henry P. Pate III, attorneys for appellant.
    Marjorie T. O’Donnell, Oxford, attorney for appellees.

      Before IRVING, P.J., BARNES AND FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Jo Ann Miller suffered from intense hip and back pain after working on an assembly line at Johnson Controls. She was ultimately diagnosed with spondy-losis, which required multiple surgeries over the course of several years.

¶2. Miller’s attending physicians concluded that her work at Johnson Controls had aggravated or accelerated the worsening of her back condition until it became disabling. The Mississippi Workers’ Compensation Commission disagreed, relying on an employer’s medical examination. But that examination was conducted before the cause of Miller’s back pain was known. We conclude that, when viewed in context, the employer’s examination does not contradict the findings of Miller’s attending physicians. The decision of the Commission as to Miller’s back injury is otherwise without factual support in the record and therefore must be reversed. We remand for a determination of the extent of Miller’s disability and a calculation of benefits.

FACTS

¶ B. Miller began her employment at Johnson Controls on July 7, 2008. At that time she was forty-three years of age. Miller initially steamed car seats, but after about six weeks she began working as a material handler, keeping the assembly line stocked with materials. After four weeks of that physically demanding work, she began feeling pain and tingling in her legs, and she had difficulty rising from a seat. Miller testified that on December 15, 2003, after working a twelve-hour shift, she began feeling intense pain in her back and hips. The pain continued through the night, and the next morning she went to an emergency room for treatment.

¶ 4. There was a dispute about whether Miller reported the December 2003 injury to her employer. It was uncontested, however, that she pursued short-term disability benefits and that such benefits were not supposed to be claimed in the case of workplace injuries. Miller eventually made a workers’ compensation claim for the December 2003 injury, which was denied, and she has not appealed that decision.

Medical History

¶ 5. After the 2003 injury, Miller was attended by Dr. Jacob Mathis, a neurosurgeon. Miller underwent an MRI scan that, in Dr. Mathis’s opinion, showed that her “hips [were] normal” but “indicate[d] a hypertrophied right L4/5 facet which is encroaching upon the L4/5 foramen and causing some narrowing and stenosis.” Dr. Mathis alternatively described the MRI scan as “revealing significant degeneration and bulges of both the L4/5 and L5/S1 disc cartilages.” Dr. Mathis ordered a lumbar discogram to “determine the integrity of the disc cartilages at L3/4, L4/5, and L5/S1.” The result was “normal,” in that “there was no evidence of any concordant pain on injection of her disc cartilages.” Dr. Mathis also reviewed a “contrast CT scan” that was performed at the same time as the discogram; he also described its results as normal. Dr. Mathis concluded that Miller would not require surgery. He referred her to a chiropractor and suggested continuing pain treatment.

¶ 6. Miller’s various treatments were described as conservative, and in Dr. Mathis’s opinion, they produced excellent results. By July 1, 2004, Miller was “comfortable,” “no longer [had] any tenderness of her sacroiliac [SI] joints,” and had a “normal neurological examination.” Dr. Mathis cleared Miller to return to work on July 6, 2004, and she did.

¶7. Back at Johnson Controls, Miller was supposed to be gradually reintroduced to a full day of manual labor. But shortly after she returned, apparently through an accident or miscommunication, Miller ended up working full time carrying car seats back and forth on the assembly line. She stated that she would have to lift, carry, and manipulate bench seats that weighed sixty pounds. Miller did this until July 14, when she became so overwhelmed with pain that she required assistance to rise from a toilet seat in the restroom at work. Miller reported this injury to Johnson Controls. She also complained- of pain in her left hand and wrist, though it was disputed whether she immediately reported it as a workplace injury.

118. Miller returned to Dr. Mathis on July 15, where he concluded that Miller was again temporarily totally disabled and instructed her not to return to work. Miller again undertook what were described as conservative treatments — pain medicine, injections, and physical therapy. Dr. Mathis also noted that Miller was suffering from “very painful carpal tunnel syndrome of the left hand.” In 2001, Miller had surgery on her right hand for carpal tunnel syndrome; at that time her left hand had “mild to moderate” carpal tunnel syndrome. After the 2004 injury, Dr. Mathis observed that Miller’s left-hand carpal tunnel syndrome had worsened. Later that year, Miller underwent a surgical “left carpal tunnel release endoscope,” performed by Dr. Adam Lewis, who was associated with Dr. Mathis at the Jackson Neurosurgery Clinic.

¶ 9. On May 2, 2005, Miller met with Dr. Howard Katz, who conducted an employer’s medical evaluation. Dr. Katz reviewed Miller’s medical records up to that point and conducted a physical examination. He stated that he “[could] not identify a specific cause for [Miller’s] low back pain” but also noted that she did “not have apparent neurologic dysfunction or radicu-lopathy.” Dr. Katz concluded that her pain did “not appear to be discogenic but rather related to SI joint arthritis and right trochanteric bursitis.” He opined “to a reasonable degree of medical certainty [that] her job in December 2008 and in July 2004 neither caused nor aggravated her SI joint dysfunction or trochanteric bursitis[,] although I do believe it temporarily exacerbated that problem.” Dr. Katz also noted in his report that “[Miller] believes that both carpal tunnel surgeries were related to her work at her previous place of employment.”

¶ 10. Dr. Katz found that Miller had a three percent impairment to the body as a whole stemming from her SI joint dysfunction, trochanteric bursitis, general physical condition, and history of carpal tunnel syndrome. He added that Miller could “work at light duty and sedentary work at this time.”

¶ 11. On June 6, 2005, Dr. Mathis wrote a letter to Johnson Controls’ insurance carrier stating that he disagreed with Dr. Katz’s determination about whether Miller had injured her back and left wrist at Johnson Controls, noting that “[t]o date, all of her studies have failed to reveal the etiology of her continuing subjective low back pain-” Dr. Mathis agreed that Miller had reached maximum medical improvement and that she had a three percent impairment rating. After Dr. Katz rendered his opinion, the employer/carrier stopped paying Miller workers’ compensation benefits.

¶ 12. On October 24, 2005, Miller returned to Dr. Mathis, who at this point had not seen her for about a year. Dr. Mathis noted that despite her continuing treatment, Miller still had complaints of back pain. “[T]o give [Miller] the benefit of the doubt,” he ordered another lumbar MRI. This MRI revealed significant degeneration since the MRI conducted before the June 2004 injury. The 2005 MRI “clearly indicated ... degenerative grade I spon-dylolisthesis at L4/5.” Dr. Mathis opined that “this slippage of the vertebra was felt to be related to the [July 2004] on-the-job injury because it was not present on her previous study.” A new lumbar discogram “now showed concordant back pain upon the injection of the L4-5 and L5-S1 levels.” Dr. Mathis also changed his mind as to whether Miller had reached maximum medical improvement and returned her to total temporary disability.

¶ 18. Dr. Lewis, Dr. Mathis’s partner at the Jackson Neurosurgery Clinic, performed an “anterior lumbar interbody fusion L4-5, L5-S1” on December 19, 2005. Miller continued to complain of pain following the surgery. A May 2006 x-ray showed a non-union at the L4-5 level, which required another surgery — a spire plate posterior fusion, performed on June 29, 2006. Miller also underwent a L3^4 and L4-5 lumbar laminectomy on June 30. In late 2006 Dr. Mathis recommended that Miller not return to her previous job or other strenuous manual labor to avoid further back injury.

¶ 14. Miller continued to suffer from pain. On February 6, 2007, she had a stimulator implanted that had to be removed shortly thereafter because it caused her some paralysis. Later that year, further back degeneration was discovered that resulted in another surgery in February 2009, which apparently was successful. Throughout this time, Miller continued to be treated for various pains, with varying degrees of success.

Workers’ Compensation Claim

¶ 15. Miller filed a petition to controvert on August 27, 2004. She claimed two injuries, one in December 2003 to her back and one in July 2004 to her back and left wrist. The employer/carrier admitted that there was some kind of back or hip injury in 2004, but it ceased paying benefits in June 2005, after Dr. Katz concluded that Miller’s pain stemmed from a temporary aggravation of preexisting hip/SI conditions.

¶ 16. A hearing was finally held before the administrative judge (AJ) on October 30, 2009. The AJ found that Miller did not prove a compensable injury in 2003, but her long history of back pain and treatment did arise out of the compensable 2004 back injury. The AJ also found the 2004 wrist injury to be compensable. The AJ concluded that the 2004 back and wrist injuries had left Miller permanently and totally disabled. The AJ also decided that the employer/carrier was liable for Miller’s surgeries performed by Dr. Lewis, notwithstanding that Miller had not sought approval beforehand with the employer/carrier.

¶ 17. The employer appealed to the full Commission, which reached a different result: it found that the back problems predated the 2004 injury and that the 2004 injury itself was only an aggravation of hip/SI conditions, as Dr. Katz had concluded. Thus, Miller’s surgeries and resulting occupational disability did not stem from the 2004 injury. The Commission concluded that Miller’s left-wrist carpal tunnel syndrome was also preexisting. On appeal, the circuit court affirmed the finding of the Commission, and Miller has appealed from that judgment.

STANDARD OF REVIEW

¶ 18. “The review of a decision of the Workers’ Compensation Commission is limited to determining whether the decision was supported by substantial evidence, was arbitrary and capricious, was beyond the scope or power of the agency to make, or violated one’s constitutional or statutory rights.” Cook v. Home Depot, 81 So.3d 1041, 1044 (¶ 3) (Miss.2012) (citation and internal quotations omitted). “Because the Commission is the ultimate fact-finder and judge of the credibility of the witnesses, [an appellate court] may not reweigh the evidence before the Commission.” Id. at 1044-45 (¶ 3) (citation omitted).

DISCUSSION

¶ 19. In her brief on appeal, Miller enumerates five issues, but there really are only four, which we will address in the most logical order rather than the order presented.

1. Miller’s Back Injury

¶ 20. As we detailed above, in the years following her alleged workplace injury, Miller’s back condition deteriorated, causing her significant pain and requiring numerous surgeries. Some (although certainly not all) of her treatment history has been detailed above. Miller originally claimed to have suffered two workplace injuries at Johnson Controls, one in December 2003 and one in July 2004; but the December 2003 injury was found not to be work-related and that finding has never been contested by Miller. A 2004 injury was admitted by the employer, but it was contended to only be a temporary aggravation of hip/SI ailments, while Miller’s back condition was found by the Commission to predate the 2004 injury and thus was not compensable.

¶ 21. Before the Commission were the opinions of Dr. Mathis, Miller’s treating physician from 2003 to the time of the hearing in 2009, and Dr. Katz, who performed an employer’s medical examination in May 2005. Dr. Mathis opined that Miller’s back problems arose from her 2004 injury. Dr. Katz said Miller’s pain following the 2004 injury “seemed” to stem from hip problems that were only temporarily aggravated by her work.

¶ 22. The full Commission rejected Dr. Mathis’s conclusion. It noted that he had initially stated that Miller’s early 2004 MRI “reveal[ed] marked degeneration” and would probably require surgery; the Commission found that this contradicted Dr. Mathis’s later assertion that the etiology of Miller’s back pain complaints had been unknown. The Commission also noted that Dr. Mathis had found Miller at maximum medical improvement in mid-2005 and later changed his opinion.

¶ 23. After reviewing the record, we find that Dr. Mathis clearly explained this apparent contradiction and that his opinion in mid-2005, with which the Commission finds fault, was based on the evidence available to him at that time; in fact, Dr. Mathis’s assessment at that time was shared by Dr. Katz. Dr. Mathis stated that after the 2003 injury and the early 2004 MRI, he had initially believed Miller’s pain stemmed from the stenosis noted in the MRI. However, a discogram — a test to determine whether an abnormal spinal condition causes pain — showed that the back problem, at that time, was not causing Miller pain. The discogram and the success of Miller’s conservative treatments had led Dr. Mathis to conclude that Miller would not need surgery and could return to work in July 2004.

¶ 24. In the year following the July 2004 injury, no new MRI or discogram was performed. Both Dr. Mathis and Dr. Katz noted Miller’s complaints of back pain following the 2004 injury, but they could not find a cause; Dr. Katz stated this explicitly: “I cannot identify a specific cause for [Miller’s] low back pain.” Apparently relying on the prior discogram, Dr. Katz stated that the back pain did not “seem” to be discogenic, but hip- and SI joint-related. Notably, Dr. Katz only increased his confidence “to a reasonable degree of medical certainty” when he went on to opine that Miller’s trochanteric bursitis and SI joint dysfunction were not caused by her employment at Johnson Controls.

¶ 25. Dr. Mathis also did not initially believe that Miller’s back pain following the 2004 injury was discogenic, but later in 2005 he decided to give Miller “the benefit of the doubt” (in his words at the time) and ordered a new MRI and new disco-gram. The 2005 MRI—the first since Miller’s 2004 injury—showed that the condition noted after the alleged 2003 injury had worsened and that Miller now had grade I spondylolisthesis. The new disco-gram confirmed that it was causing pain. At that point, Dr. Mathis ordered surgery. Later he opined in no uncertain terms that the slippage of the vertebra shown on the 2005 MRI, not present in the early 2004 MRI, was caused by Miller’s work at Johnson Controls in July 2004. There is nothing in the record to contradict these findings.

¶ 26. Ordinarily, “whenever the expert evidence is conflicting, [an appellate court] will affirm the Commission whether the award is for or against the claimant.” Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 380, 336 (¶ 13) (Miss.2003). However, Dr. Katz did not express an opinion as to the cause of Miller’s back pain, nor did he have access to the late 2005 MRI that Dr. Mathis relied upon in reaching his decision.

¶27. After thoroughly reviewing the record, we conclude that the Commission simply misunderstood Dr. Mathis’s opinion. It was not only uncontradicted in the record, it is consistent with his own prior findings and those of Dr. Katz, based on what was known at the time. The Commission cannot simply disregard the uncontested and well-reasoned opinion of Miller’s treating physician; instead, when “the claimant makes out a prima facie case of disability, the burden of proof shifts to the employer.” Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 13 (Miss.1994). Johnson Controls offered nothing to refute Dr. Mathis’s opinion as to causation.

¶28. The Commission’s concern that the back condition was preexisting is also not a basis to deny compensation. “[A]n injury arises out of and in the cour[se] of employment even if it amounts to aggravation or exacerbation of a preexisting condition.” Id. Miller’s back condition, prior to the 2004 injury, was not symptomatic, and Miller was released to work in July 2004 without any restrictions. The preexisting condition was therefore not occupationally disabling, and to the extent the aggravation or acceleration is found to be disabling, it is fully compensa-ble under the law as it existed at the time of the injury. See Stuart’s, Inc. v. Brown, 543 So.2d 649, 655 (Miss.1989) (“[Wjhere the evidence establishes ... a preexisting (symptomatic or asymptomatic) condition which causes the employee to experience no pre-injury occupational disability, apportionment may not be ordered.”).

¶ 29. We reverse the Commission’s decision on this issue and remand for a determination of benefits.

2.Miller’s Wrist Injury

¶30. Miller also claims to have injured her left wrist in July 2004. This injury was denied by the employer, and the Commission found, “based on the evidence as a whole,” that Miller did not prove she had sustained a compensable left wrist injury in July 2004.

¶ 31. The Commission cited several facts in support. Miller had been diagnosed with “mild to moderate” left-wrist carpal tunnel syndrome in 2001 and had had surgery recommended on both wrists at that time (but she only had the right wrist done). She had also complained to one of her treating physicians about increased pain in her left wrist several months before the alleged July 2004 injury. And she was noted by several physicians as attributing her left wrist pain to her work at her previous employment; she told one that she had not had surgery on the left wrist because her prior employer had closed down. Miller also did not report the wrist injury to Johnson Controls in July 2004, when she reported the back injury.

¶ 32. On the other hand, Miller’s left wrist was shown in 2004 to have degenerated significantly since the last test in 2001, and Dr. Mathis opined that the degeneration was caused by Miller’s employment at Johnson Controls. However, Dr. Mathis did not explain his findings on this point.

¶ 33. After reviewing the record, we conclude that because Miller complained of increased pain in her wrist shortly before the alleged injury, there was sufficient evidence for a reasonable finder of fact to have found for or against Miller on this issue. As the Commission is the finder of facts, our standard of review requires this Court defer to the Commission on this point.

3. Extent of Disability

¶ 34. As we have reversed the Commission’s decision as to the extent of Miller’s back injury, we likewise reverse its finding of the extent of Miller’s resulting disability. We remand to the Commission for such a determination consistent with our decision.

4. Payment for Dr. Lewis’s Surgeries

¶ 35. Dr. Lewis, Dr. Mathis’s partner, performed many of Miller’s back surgeries and provided her with other treatment. The Commission found that since the back ailment was not caused by Miller’s 2004 injury, the surgeries were not compensable. It also reluctantly found that, in the alternative, Johnson Controls could not be held liable for the treatment because Miller was not entitled to the services of two neurosurgeons without preapproval from the employer or the Commission. The former finding has been abrogated by our decision as to the extent of Miller’s 2004 injury, detailed above, and the alternative rationale is based on a misreading of the controlling statute.

¶ 36. Mississippi Code Annotated section 71-3-15(1) (Supp.2013) permits the employee to choose one physician, who may refer the employee to other specialists. See PDN, Inc. v. Loring, 843 So.2d 685, 688 (¶ 10) (Miss.2003). Section 71-3-15(1) has a limitation, however: “Referrals by the chosen physician shall be limited to one (1) physician within a specialty or sub-specialty area.” For a second referral within the same specialty area, the statute requires preapproval of the employer/carrier or the Commission, except in emergencies. Id.; see also Wal-Mart Stores, Inc. v. Patrick, 5 So.3d 1119, 1126 (¶¶ 20-21) (Miss.Ct.App.2008).

¶ 37. It is contended that Dr. Mathis, a neurosurgeon, could not refer Miller to Dr. Lewis, since Dr. Lewis is also a neurosurgeon. The flaw in this argument is that the Commission found that Dr. Mathis was Miller’s treating physician, a point that has been conceded by Johnson Controls in its brief on appeal. Thus there was only one referral from the treating physician (Dr. Mathis) to a neurosurgeon (Dr. Lewis), and preapproval of Dr. Lewis’s treatment was not required by the statute. We reverse and remand on this point, for an award of the costs of Dr. Lewis’s services in treating the 2004 back injury.

CONCLUSION

¶ 38. We affirm the Commission’s finding that Miller’s wrist problems did not arise from her employment at Johnson Controls. However, we reverse the Commission’s decision as to the extent of Miller’s 2004 back injury. We remand to that tribunal for a determination of the extent of Miller’s disability resulting from the 2004 back injury and for an award of the costs of treating that injury, including the surgeries performed by Dr. Lewis.

¶ 39. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS AFFIRMED IN PART AND REVERSED IN PART, AND THIS CASE IS REMANDED TO THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

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

      . Dr. Katz reviewed Miller’s medical records and performed an in-person physical examination, but he did not give a detailed explanation for his findings.

      . Mississippi Code Annotated section 71-3-7(2) (Supp.2013), the statute governing apportionment in workers’ compensation cases, was amended in 2012 to provide that for injuries occurring after July 1, 2012, ‘'[t]he preexisting condition does not have to be occupationally disabling for ... apportionment to apply.”