author: PICKETT, Judge.

text:
    Frank J. VERRET v. TYSON FOODS, INC.
    17-1068
    Court of Appeal of Louisiana, Third Circuit.
    April 18, 2018 Rehearing Denied June 6, 2018
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli, and Frieman, 3320 W. Esplanade Ave. North, Metairie, LA 70002, (504) 831-7270, COUNSEL FOR EMPLOYER-APPELLANT: Tyson Foods, Inc.
    Harry K. Burdette, 300 Stewart St., Lafayette, LA 70501, (337) 233-1471, COUNSEL FOR CLAIMANT-APPELLEE: Frank J. Verret
    Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Candyce G. Perret, Judges.
   PICKETT, Judge.

Tyson Foods, Inc. appeals the judgment of the Office of Workers' Compensation (OWC) finding that the court had subject matter jurisdiction to adjudicate Frank Verret's claim against Tyson and the award of workers' compensation benefits to Mr. Verret.

FACTS

Mr. Verret, a resident of Lafayette, Louisiana, was employed as a long-haul truck driver for Tyson on January 25, 2015. On that date, Mr. Verret lost control of his truck and crashed into the barrier in the median of a highway in Durant County, Oklahoma. Mr. Verret suffered lacerations to his hand and complained of back pain to the emergency medical personnel who responded to the scene of the accident. He was transported to the Medical Center of Southeast Oklahoma emergency room, where he repeated his complaints of back pain. The hospital records show Mr. Verret's back was x-rayed. According to hospital records, Mr. Verret was given prescriptions for Flexeril and Prednisone, though Mr. Verret denied getting these prescriptions at trial. The emergency room records also suggest that Mr. Verret follow up with his doctor within two or three days. Mr. Verret was then transported to McKinney, Texas for mandatory drug screening before he returned to the Tyson facility in Springdale, Arkansas, where he had begun his route on January 24, 2015.

When he returned to Springdale, Ms. Bonnie Cameron, a nurse employed by Tyson, scheduled a follow-up appointment for Mr. Verret with Dr. Karl Haws. She also gave him a voucher to have his prescriptions from the emergency room doctor filled at a local pharmacy, though Mr. Verret denies this happened. Mr. Verret saw Dr. Haws on January 27, 2015. Dr. Haws's records indicate that Mr. Verret stated that his back pain had resolved. Mr. Verret denies that he told Dr. Haws that his back pain was resolved. Dr. Haws noted that Mr. Verret could return to full-duty work.

Tyson's employment records indicate Mr. Verret retired from Tyson on January 28, 2015. He has never returned to work.

Mr. Verret filed a Disputed Claim for Compensation on March 26, 2015, alleging injuries to his back and shoulders. Tyson denied that he was entitled to workers' compensation benefits. Tyson also filed a motion for summary judgment (more appropriately a declinatory exception) alleging that the OWC lacked subject matter jurisdiction to adjudicate this case. The workers' compensation judge (WCJ) referred the exception to the trial. Following a trial, the WCJ found that the contract of hire between Mr. Verret and Tyson was formed in Louisiana, and therefore the OWC had subject matter jurisdiction. The WCJ further found that Mr. Verret's back injury was related to the work accident and awarded benefits retroactive to the date of the accident. The WCJ found that Mr. Verret's shoulder injury was not related to the accident. The WCJ did not award penalties and attorney fees to Mr. Verret. Tyson Food now appeals the judgment of the WCJ.

ASSIGNMENTS OF ERROR

Tyson alleges three assignments of error:

1. The trial court erred in denying the employer's Exception of Lack of Subject Matter Jurisdiction.
2. The trial court erred in finding that the claimant's accident caused any type of disabling injury to his lower back.
3. The trial court erred in awarding disability benefits from the date of the accident.

DISCUSSION

It is undisputed that this accident occurred in Oklahoma. Louisiana Revised Statutes 23:1035.1(1) states:

If an employee, while working outside the territorial limits of this state, suffers an injury on account of which he, or in the event of his death, his dependents, would have been entitled to the benefits provided by this Chapter had such injury occurred within this state, such employee, or in the event of his death resulting from such injury, his dependents, shall be entitled to the benefits provided by this Chapter, provided that at the time of such injury
(a) his employment is principally localized in this state, or
(b) he is working under a contract of hire made in this state.

There is no dispute that Mr. Verret's employment was not principally located in Louisiana. While he parked his truck in Lafayette when he was not working, the evidence shows that his routes always began at a Tyson facility outside of Louisiana. Further, Mr. Verret, by his own admission, made limited deliveries to customers in Louisiana.

The issue in this case for the purpose of subject matter jurisdiction is whether the employment contract between Mr. Verret and Tyson was confected in Louisiana. This court has determined that whether an employee is working under a contract of hire made in Louisiana is a determination of fact which we will not disturb on appeal unless it is manifestly erroneous or clearly wrong. Hanks v. Kinetics Grp., Inc., 03-1354 (La.App. 3 Cir. 6/2/04), 878 So.2d 782, writs denied, 04-1517, 04-1693 (La. 10/1/04), 883 So.2d 990, 994. In a workers' compensation case, the intent of the parties is paramount in deciding whether a contract should be regarded as a Louisiana contract or that of another state. Offord v. Border to Border Trucking, 00-1201 (La.App. 3 Cir. 2/7/01), 779 So.2d 1090 ; Hurtado v. CJC Serv., Inc., 05-736 (La.App. 5 Cir. 3/14/06), 926 So.2d 624.

Mr. Verret learned that Tyson was hiring long-haul drivers from a friend of his wife. Sometime in 1999, he traveled to a Tyson facility in Center, Texas, to apply for a position. At some later time, Mr. Verret called Tyson from his home in Lafayette, Louisiana, to inquire about the status of his application. Mr. Verret claims that during this call, he was hired to drive for Tyson. He then drove to Center to pick up his truck and begin his employment. He claims he would not have returned to Center to get his work assignment unless he had been hired.

Tyson introduced the affidavit and deposition of Scott Wilkinson, the terminal manager for the Tyson facility in Center before Mr. Verret was hired. As terminal manager, Mr. Wilkinson oversaw hiring.

Mr. Wilkinson explained that, as an initial step, an applicant would have to appear in person at the facility in Center to fill out an application for employment and sign a release for their driving records. Mr. Wilkinson would review the application, the driving record of the applicant, and contact references. If the applicant was still a prospect for employment, the applicant had to return to Center for a drug test, a physical examination, and a road test, all mandated by the United States Department of Transportation. An applicant was not considered hired until he passed the drug test, the physical examination, and the road test. Tyson contends that when Mr. Verret called to inquire about the job from Lafayette, any offer of employment would have been conditional until the required tests were passed, and Mr. Verret would not actually be hired until he was in Center, Texas.

In Granger v. F.F.E. Transportation Service , 98-127 (La.App. 3 Cir. 5/13/98), 713 So.2d 667, a recruiter for a trucking company contacted the claimant, who at the time was a student at a driving school in Lake Charles. The claimant completed an application for employment in Louisiana, an offer for employment was made in Louisiana, and the employer provided transportation from Louisiana to Texas for training. After completing training, the claimant was injured in Indiana while in the course and scope of her employment. This court, citing a similar situation in Lakvold v. Stevens , 95-866 (La.App. 1 Cir. 12/15/95), 665 So.2d 828, held that the OWC had subject matter jurisdiction to adjudicate the claim because the contract for hire was made in Louisiana.

In Offord , 779 So.2d 1090, employees of a trucking company delivered an application to the claimant in Louisiana. One of these employees later picked up the application and returned it to the company's personnel manager in Texas. The personnel manager then contacted the claimant at his home in Opelousas and offered him a job. When the claimant accepted the job, he was transported by company employees to Texas to complete the formalities necessary for his employment. The claimant was injured in the course and scope of his duties in Tennessee. The WCJ held that the contract for hire was made in Louisiana. This court affirmed, holding that the WCJ was not unreasonable in finding that the OWC had subject matter jurisdiction.

In Baldwin v. North American Energy Services , 07-667 (La.App. 3 Cir. 10/31/07), 970 So.2d 101, writ denied , 07-2310 (La. 2/1/08), 976 So.2d 717, the claimant suffered a head injury in an accident in the course and scope of his employment in Las Vegas. While the claimant could not remember the details of his hiring process, his friend, Clint Ainsworth, who was hired at the same time testified about how he was hired. He contacted a company representative in Texas about employment after hearing about a job in Las Vegas from another friend, Justin Wells. Mr. Ainsworth testified that he was hired over the phone. Mr. Giametta informed the men that they were hired as long as their drug screens were negative. The drug screens were performed in Louisiana. After passing the drug screens in Louisiana, Mr. Ainsworth and Mr. Wells flew to Las Vegas from Alexandria to begin work. They were reimbursed by the company for their travel. The WCJ determined that because the men initiated contact with the company representative, the contract for hire was not made in Louisiana and found no subject matter jurisdiction. This court reversed, finding that because "all negotiation, paperwork, testing, and agreements were performed and finalized in Louisiana," the contract for hire was made in Louisiana. Id. at 103.

In Hesser v. Nabors Drilling USA, LP , 10-741 (La.App. 3 Cir. 12/8/10), 52 So.3d 1095, the claimant, while looking for employment, visited his friend at a company rig in Westdale, Louisiana. The friend introduced the claimant to the rig manager, to whom he recommended the claimant for employment. The rig manager advised the claimant to visit the company's human resource office in Kilgore, Texas, but did not offer the claimant a job. The claimant then travelled to Texas and completed a job application, a pre-employment physical, and drug and alcohol screening. He then signed a conditional offer form, pending the results of the drug screen, physical, a background check, and completion of all paperwork. When these results were received, and while still in Texas, the claimant was offered a job with the company. Three months later, while in the course and scope of his employment in Texas, claimant suffered a back injury. He filed a Disputed Claim for Compensation in Louisiana. Believing he had a job offer when he left the rig in Westdale, the claimant argued that the contract of hire was formed in Louisiana. The employer filed an exception of subject matter jurisdiction. The employer introduced the testimony of the claimant's friend and the Westdale rig manager, who denied they offered the claimant a job. The WCJ found the contract of hire was executed in Texas, and the OWC lacked jurisdiction. This court found the WCJ made a credibility determination and affirmed the dismissal of the case.

In Martin v. Southwest Moving & Delivery , 29,892 (La.App. 2 Cir. 10/29/97), 701 So.2d 1351, the second circuit considered a case where the claimant, a resident of Shreveport, was injured in California in the course and scope of his employment with a moving truck company. The claimant originally discussed the job with the owner of the company while in Florida. After returning home to Louisiana, the claimant called the employer in Houston to further discuss the job. The claimant, believing he had a job waiting for him in Houston, travelled to Houston. The employer stated that all discussions about employment details occurred in Houston. The WCJ determined that the OWC lacked subject matter jurisdiction. The second circuit affirmed, stating "the only Louisiana contact in the episode rests upon the fact that a Louisiana domiciliary initiated a phone call from this state to a Texas employer." Id. at 1354.

In Williams v. Morris Transportation , 50,054 (La.App. 2 Cir. 11/18/15), 184 So.3d 136, writ denied , 16-247 (La. 4/4/16), 190 So.3d 1207, the claimant, a resident of Louisiana, was injured in the course and scope of his employment as a truck driver in Mississippi while working for a company based in Arkansas. The claimant worked for this company, left in 2006, and returned to work for the company in 2007. The claimant filed a workers' compensation claim in Louisiana. The employer filed an exception of lack of subject matter jurisdiction. The WCJ found that the claimant "had a reasonable expectation of a job" in Arkansas based on a phone call that he originated in Louisiana with a representative of the company. The WCJ denied the exception. The employer took a writ.

Before reviewing the circumstances of the claimant's re-hire, the second circuit reviewed the jurisprudence and the factors considered in the case:

Prior to the enactment of Section 1035.1, the Louisiana Supreme Court considered a Mississippi work-related accident which injured a Louisiana resident. Mattel v. Pittman Const. Co., 248 La. 540, 180 So.2d 696 (1965). The claimant, an ironworker, reported to the union hall in New Orleans where he was directed by a union officer to the defendant/employer's jobsite in Gulfport. The terms of employment with respect to wages and time were understood by the claimant in New Orleans. The court found that by agreement, the union had become the agent of the employer and was authorized to make the job offer in New Orleans. The defendant's claim that the employer could have rejected the claimant at the jobsite did not convince the court that the contract was not a Louisiana contract. The court specifically noted that the employee did not go to the employer's office (presumably in Mississippi), fill out a written application, or direct any oral requests for employment to the employer. The court therefore determined that "the contract of hiring was made in" Louisiana, not Mississippi.
This expression for the "making" of the contract thereafter became codified as the test of Section 1035.1 in 1975. Thompson v. Teledyne Movible Offshore, Inc., 419 So.2d 822 (La.1982). Recently, this court in Hughes v. T.G. Mercer Consulting Services, 44,908 (La.App.2d Cir. 12/9/09), 26 So.3d 954, writ denied, 10-0361 (La. 4/23/10), 34 So.3d 267, surveyed the jurisprudence concerning these cases involving the out-of-state employer and the injured Louisiana resident. The Hughes review shows that the making-of-the-contract test requires examination of the intent of the parties and how and where the agreement was initiated through offer and acceptance. The employer's requirements for contract documentation or drug testing, as in the present case, are factors for consideration. The place of issuance of work implements or equipment is also a factor. The facts concerning the employee's travel from Louisiana to the employer's place of business for the initiation of the work activities are considered as well.
Another consideration which is present in this dispute concerns the interplay between the two tests of Section 1035.1. The WCJ easily determined that the "localization" test did not show that the job principally involved Louisiana performance. As an Arkansas corporation, MTI did not have any offices in Louisiana. Its trucking activities were not concentrated in Louisiana. Williams was not hired to drive the MTI trucks for deliveries primarily in Louisiana. Thus, the parties' understanding of the place of the job performance activities is also a measure of the parties' intent for where the contract was "made."

Id. at 139 (footnotes omitted).

Applying these facts to the case, the second circuit found that the company representative the claimant spoke to over the phone lacked the authority to hire him. Further, as an experienced driver, the claimant knew of the federally-mandated requirements, including drug testing, before he could formally be hired. The claimant was not paid to travel to Arkansas before he was hired. The claimant did not do any work in Louisiana before he was hired. The truck was provided to the claimant in Arkansas. The second circuit concluded that the contract was made in Arkansas, and the OWC lacked subject matter jurisdiction.

We find that the facts of Mr. Verret's case are very similar to the situation in Williams . Mr. Verret travelled to Texas to apply for a job with Tyson. While he may have expected that he was hired when he returned to Texas a second time based on his phone conversation while in Louisiana, Tyson introduced sufficient evidence to show that Mr. Verret would not actually be hired until he passed a road test and a physical examination. These are not mere formalities, but federally-mandated requirements. The job was not principally located in Louisiana. Mr. Verret had to go to Center, Texas, or Springdale, Arkansas, or some other Tyson facility to pick up a load and actually begin getting paid for his job. Tyson did not have any long-haul facilities in Louisiana, and Mr. Verret made infrequent deliveries to Louisiana.

We find the WCJ committed manifest error in finding the OWC had subject matter jurisdiction over this claim. The declinatory exception of lack of subject matter is sustained. Mr. Verret's claims against Tyson are dismissed.

CONCLUSION

The judgement of the WCJ is reversed. Costs of this appeal are assessed to the appellee, Mr. Verret.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    Gerald ARCENEAUX v. Mark Joseph TURNER, et al.
    17-1066
    Court of Appeal of Louisiana, Third Circuit.
    April 25, 2018
    Michael R. Sistrunk, Kyle P. Kirsch, E. Madison Walker, McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, LLC, 909 Poydras Street, Suite 1000, New Orleans, LA 70112, (504) 831-0946, COUNSEL FOR DEFENDANT/APPELLEE: Axis Surplus Insurance Company
    Dana G. Hall, Law Offices of Harold G. Toscano, 400 E. Kaliste Saloom Road, Suite 8300, Lafayette, LA 70508, (337) 291-0108, COUNSEL FOR DEFENDANTS/APPELLEES: Allstate Insurance Company, Mark Joseph Turner
    Richard P. Voorhies, III, James F. Flinn, The Voorhies Law Firm, 1100 Poydras Street, Suite 2810, New Orleans, LA 70163, (504) 876-2223, COUNSEL FOR PLAINTIFF/APPELLANT: Gerald Arceneaux
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Van H. Kyzar, Judges.
   SAUNDERS, Judge.

This appeal involves a granted motion for summary judgment on the lack of coverage provided by an uninsured/underinsured Motorist (UM) policy. The plaintiff contends that the policy provides coverage to him because he fits the definition of an insured under the policy. The insurance provider argues that La.R.S. 22:1295(1)(e) dictates that the policy provides no coverage to the plaintiff. The trial court granted the insurance provider's motion for summary judgment.

The plaintiff raises three assignments of error. We find merit in the argument that the vehicle in the accident is a temporary substitute vehicle, and, as such, the plaintiff is an insured for the purposes of adjudicating this summary judgment motion. This finding pretermits the remaining assignment of error. Thus, we reverse the trial court's judgment and remand the case for further proceedings.

FACTS AND PROCEDURAL HISTORY :

Gerald Arceneaux (Arceneaux) owns Gerald's Towing and Used Cars, Inc. (Gerald's Towing). Axis Plus Insurance Company sold Gerald's Towing a "Garage Coverage" policy that included UM coverage. The policy was in effect on November 26, 2014. On that date, Arceneaux was involved in a motor vehicle accident while driving his 2012 Ford F250 home from work at Gerald's Towing. Arceneaux's affidavit states that he was "on call" at the time of the accident and the Ford F250 was equipped with roadservice tools and equipment for any road side service request made to Gerald's Towing. It further stated that his Ford F250 was being used at the time of the accident because the Ford F450 Wrecker owned by Gerald's Towing was in need of repairs. Otherwise, the Ford F450 would be the truck used for any roadside service request made to Gerald's Towing.

Arceneaux filed an amended petition adding Axis as a defendant and alleging UM coverage. Thereafter, Axis filed a motion for summary judgment on the basis that its policy does not provide UM coverage for Arceneaux's claims.

After a hearing on the motion, the trial court granted Axis' motion for summary judgment and dismissed Arceneaux's claim against Axis. Arceneaux appeals and asserts four assignments of error.

ASSIGNMENTS OF ERROR:

1. The Trial Court Erred in Ruling that the Ford F250 Was Being "Regularly" and/or Permanently Used by Gerald's Towing and Used Cars, Inc.; and Therefore Was Not a Temporary Substitute Vehicle for the Ford F450 Wrecker Truck.
2. The Trial Court Erred in Ruling That At the Time of the Collision Mr. Arceneaux "Was Not Going to Do Anything On Behalf of the Company;" and Therefore, the Ford F250 Was Not a Temporary Substitute Vehicle.
3. The Trial Court Erred in Ruling That Mr. Arceneaux Did Not Have UM Coverage Because He Did Not Qualify as an "Insured" Under the Liability Coverage Form.
4. The Exclusion Under the UM Coverage Form Violates Louisiana's Public Policy Concerning UM Coverage.

ASSIGNMENTS OF ERROR NUMBERS ONE, TWO, AND THREE:

Arceneaux's first two assignment of error deal with whether his Ford F250 was a temporary, substitute vehicle for Gerald Towing's Ford F450 Wrecker. Arceneaux's third is whether he was an insured under Axis' policy. These three assignments are closely related, as one issue leads to the next. As such, we will address them under this single heading detailing the merits of the trial court's grant of Axis' motion for summary judgment.

" 'Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate.' " Elliott v. Continental Cas. Co. , 06-1505, p. 10 (La. 2/22/07), 949 So.2d 1247, 1253 (quoting Reynolds v. Select Props., Ltd. , 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183 ). "After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

La.Code Civ.P. art. 966(D)(1). "[D]espite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor." Willis v. Medders , 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050.

An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. The parties' intent, as reflected by the words of the policy, determine the extent of coverage. Words and phrases used in a policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Where the language in the policy is clear, unambiguous, and expressive of the intent of the parties, the agreement must be enforced as written. However, if after applying the other rules of construction an ambiguity remains, the ambiguous provision is to be construed against the drafter and in favor of the insured.
The purpose of liability insurance is to afford the insured protection from damage claims. Policies therefore should be construed to effect, and not to deny, coverage. Thus, a provision which seeks to narrow the insurer's obligation is strictly construed against the insurer, and, if the language of the exclusion is subject to two or more reasonable interpretations, the interpretation which favors coverage must be applied.

Reynolds , 634 So.2d at 1183 (citations and footnote omitted).

Louisiana Revised Statutes 22:1295(1)(e) states:

The uninsured motorist coverage does not apply to bodily injury, sickness, or disease, including the resulting death of an insured, while occupying a motor vehicle owned by the insured if such motor vehicle is not described in the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of the policy. This provision shall not apply to uninsured motorist coverage provided in a policy that does not describe specific motor vehicles.

According to Axis, Arceneaux was operating his personal vehicle at the time of the accident. Arceneaux's personal vehicle was not described in the policy and was not included in the list of covered autos present in the policy. Thus, Axis contends that La.R.S. 22:1295(1)(e) dictates, as a matter of law, that Arceneaux is not entitled to UM coverage.

Arceneaux counters that La.R.S. 22:1295(1)(e) does not apply because his Ford F250 was a "replacement motor vehicle covered under the terms of the policy." According to Arceneaux, the Axis policy provides coverage to him, personally, as he is an "insured." Under the policy's Section (B)(2)(a) (emphasis added), "insureds" are "[a]nyone 'occupying' with the Named Insured's express or implied permission a covered 'auto' or a temporary substitute for a covered 'auto.' The covered 'auto' must be out of service because of its breakdown, repair, servicing, 'loss,' or destruction."

In support of his argument, Arceneaux points to his affidavit, which states:

Around the time of the collision, Mr. Arceneaux and Gerald[']s Towing and Used Cars, Inc. owned and maintained a Ford F[ ]450 Wrecker Truck that was typically used for service and road side assistance calls, but was out of service and in need of repairs.... Mr. Arceneaux, on a few occasions, and on the date of the incident, used the 2012 Ford F250 to perform work that could and/or would have been completed by the Ford F[ ]450 Wreck[er] Truck absent its out of service status.

In looking to the validity of Arceneaux's argument, it is clear that the named insured is Gerald's Towing, and that it gave Arceneaux permission to drive on its behalf considering that Arceneaux owns Gerald's Towing. Further, Arceneaux's affidavit, when inferred to be in Arceneaux's favor, is evidence that the covered auto is a Ford F450 Wrecker Truck, and that his Ford F250 was a temporary substitute for the Ford F450.

We are aware that the trial court found that Arceneaux's Ford F250 did not qualify as a temporary substitute vehicle because "he regularly used the vehicle for business purposes." Our review of the record is that the only evidence that can possibly be construed to support this finding is Paragraph 7 of Arceneaux's affidavit. Axis selectively cites this paragraph in brief quoting the affidavit as stating that Arceneaux "regularly used the 2012 Ford F250 to answer service call requests, drive to road service call locations, provide jump starting services, auto lock out services, flat tire changes on behalf of Geralds Towing and Used Cars, Inc." However, when reading Paragraph 7 in full, it qualifies the selectively cited language by beginning the paragraph with a limitation of the time in which the statement applies to: "On or around the date of the collision." This temporal description can reasonably be inferred to mean that Arceneaux used the F250 on the day of the accident or close to that date regularly. To interpret the paragraph of the affidavit as Axis suggests and as the trial court did is to make a factual inference against the nonmoving party by ignoring the temporal limitation that opens the paragraph. This is improper for summary judgment proceedings.

The trial court also found that Arceneaux was simply going home and not going to do anything on behalf of Gerald's Towing. According to the trial court, this is significant in its adjudication of Axis' summary judgment motion. However, according to Arceneaux's affidavit, the Ford F250 "was equipped with road service tools and equipment allowing him to be on call for any road side service request made to Gerald's Towing[.]" (emphasis added). Arceneaux's affidavit went on to state that the Ford F450 Wrecker "was typically used for service and road side assistance calls, but was out of service and in need of repairs."

Whether someone is "on call" "is a factual determination based on the credibility of witnesses." Lacoste v. Crochet , 99-602, pp. 7-8 (La.App. 4 Cir. 1/5/00), 751 So.2d 998, 1003. A factual determination by the trial court that Arceneaux was not "on call" is an impermissible finding under the applicable standard for adjudication of summary judgments.

Given this Summary Judgment standard, we find that the trial court erred in granting Axis' motion for summary judgment. The factual inferences in Arceneaux's affidavit, when resolved in his favor as we are directed to do, dictate that Arceneaux's Ford F250 was a temporary substitute for a covered vehicle, namely the Ford F450 Wrecker, under Section (B)(2)(a) of the policy. Further, the applicable standard necessitates a finding that Arceneaux was on call for Gerald's Towing at the time of the accident. Thus, Arceneaux, for purposes of adjudicating Axis' motion for summary judgment, was an insured under the policy at the time of the accident. Accordingly, Axis failed to carry its burden of proof that its policy does not provide coverage to Arceneaux for his damages.

Accordingly, we reverse the trial court's judgment granting Axis' motion for summary judgment. Axis failed to carry its burden of proof that Arceneaux is excluded from recovery under its policy. We remand the case for further proceedings.

ASSIGNMENTS OF ERROR NUMBER FOUR:

Our finding in Assignments of Error Numbers One, Two, and Three above pretermits Arceneaux's remaining assignment of error. As such, we will not discuss its merits.

CONCLUSION:

Gerald Arceneaux raises four assignments of error. We find merit to the first three which leads to our finding that the trial court erroneously granted Axis Plus Insurance Company's summary judgment motion by ruling that the Ford F250 was being regularly and/or permanently used by Gerald's Towing and Used Cars, Inc. and, as such, was not a temporary, substitute vehicle for the Ford F450 wrecker. As such, we find, for the purpose of adjudicating the summary judgment motion, that Gerald Arceneaux was an insured under Axis Plus Insurance Company's policy and that Axis Plus Insurance Company did not carry its burden of proof on the motion. Accordingly, we reverse the trial court's judgment and remand this matter for further proceedings consistent with this opinion.

This finding pretermits the remaining assignment of error. All costs of these proceedings are assessed to Axis Plus Insurance Company.

REVERSED AND REMANDED.


author: IRVING, P.J., FOR THE COURT:

text:
    Thomas J. HOOGHE a/k/a Thomas Hooghe a/k/a Thomas James Hooghe, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01039-COA
    Court of Appeals of Mississippi.
    October 3, 2017 Rehearing En Banc Denied February 20, 2018 Certiorari Denied May 10, 2018
    ATTORNEY FOR APPELLANT: THOMAS J. HOOGHE (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Thomas Hooghe appeals the Madison County Circuit Court's summary denial and dismissal of his motion for post-conviction relief (PCR). After a consideration of the many issues raised by Hooghe, pro se, and discussed later in this opinion, we find no error. Therefore, we affirm.

FACTS

¶ 2. Many facts of this case were presented in Hooghe v. State , 187 So.3d 682, 682-83 (¶¶ 2-3) (Miss. Ct. App. 2016). We cite relevant facts from that case and supplement them as needed.

¶ 3. Hooghe was arrested on April 24, 2014, in connection with various thefts that had occurred at the Baptist Healthplex in Madison County, Mississippi, where someone had stolen patrons' keys out of their gym lockers and then used those keys to steal a motor vehicle and items out of other vehicles in the gym parking lot. On June 12, 2014, a Madison County grand jury indicted Hooghe for three counts, stemming from a common scheme and plan occurring on April 22, 2014: (1) theft of a motor vehicle in violation of Mississippi Code Annotated section 97-17-42 (Rev. 2006), as a subsequent motor-vehicle-theft offender due to a previous conviction of the crime in Texas, and therefore subject to enhanced punishment pursuant to Mississippi Code Annotated section 97-17-42(4) ; (2) grand larceny for the theft of a bicycle and a sum of cash in the amount of $500 or more, in violation of Mississippi Code Annotated section 97-17-41(1) (Rev. 2006); and (3) grand larceny for the theft of a sum of cash in the amount of $500 or more, in violation of section 97-17-41(1). On September 18, 2014, Hooghe was indicted for another single count of grand larceny: theft, on April 19, 2014, of a men's Rolex watch and a money clip containing $500 or more, in violation of section 97-17-41(1). This second indictment also charged Hooghe as a habitual offender in violation of Mississippi Code Annotated section 99-19-81 (Rev. 2015), due to a 2012 conviction of motor-vehicle theft in DeSoto County, Mississippi, and a 1996 conviction of burglary in Ohio.

¶ 4. On September 22, 2014, the circuit court conducted a plea hearing, wherein Hooghe entered a plea of guilty to all four of the charges against him. During the plea hearing, the State informed the court that it was abandoning the prosecution of Hooghe as a habitual and subsequent offender, in exchange for his guilty plea. On September 29, 2014, the court sentenced him to a total of forty-five years: fifteen years as a subsequent offender under count one for motor-vehicle theft, ten years under count two for grand larceny, ten years under count three for grand larceny, and ten years for the second indictment's single count of grand larceny, all to run consecutively.

¶ 5. On December 30, 2014, Hooghe, acting pro se, filed an unsworn PCR motion in the circuit court, alleging multiple errors. On February 9, 2015, he filed an amended version of that PCR motion, still unsworn. On March 4, 2015, the circuit court summarily dismissed Hooghe's PCR motion. On March 29, 2016, this Court affirmed the circuit court's dismissal of Hooghe's PCR motion because it did not contain a sworn statement of facts or a verified oath as required by Mississippi Code Annotated section 99-39-9(1)(d) and (3) (Rev. 2015), but did so without prejudice, so that Hooghe could file a procedurally proper motion. Hooghe , 187 So.3d at 683 (¶ 6).

¶ 6. On May 19, 2016, Hooghe filed a new PCR motion with a properly sworn statement of facts and verified oath attached. In this PCR motion, Hooghe asserted the following bases for post-conviction relief: (1) the State denied him preliminary hearings; (2) his first indictment was multiplicitous; (3) both indictments failed to allege the "proximate cause" element of larceny; (4) he was illegally sentenced due to an amendment of the larceny statutes; (5) the circuit court was without jurisdiction to accept his guilty plea as to the second indictment; (6) the auto-larceny statute under which he was convicted is unconstitutionally vague; (7) there was no factual basis for his convictions; (8) he received ineffective assistance of counsel; and (9) these cumulative errors prejudiced him. Hooghe made no mention of the argument he makes on appeal, that his excessive sentence violated his right to be free from cruel and unusual punishment. On July 7, 2016, the circuit court denied Hooghe's PCR motion. Hooghe timely filed a notice of appeal and was allowed to proceed in forma pauperis.

DISCUSSION

¶ 7. "When reviewing a lower court's decision to deny a petition for post[-]conviction relief [appellate courts] will not disturb the trial court's factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo." Brown v. State , 731 So.2d 595, 598 (¶ 6) (Miss. 1999) (citations omitted). Mississippi Code Annotated section 99-39-23(7) (Rev. 2015) provides that post-conviction relief shall not be granted unless a petitioner proves by a preponderance of the evidence that he is entitled to such relief.

1. Preliminary Hearing

¶ 8. Hooghe maintains that he was wrongly deprived of preliminary hearings for all charges brought against him, despite his repeated requests while in custody. Further, Hooghe contends that he was denied his right to due process, as he was not served with the first indictment until July 11, 2014, nearly three months after his arrest, and he was not served with the second indictment until September 18, 2014, five months after his arrest. In response, the State argues that Hooghe's right to a preliminary hearing was waived once he had been indicted by a grand jury.

¶ 9. Rule 6.05 of the Uniform Rules of Circuit and County Court Practice provides, "A defendant who has been indicted by a grand jury shall not be entitled to a preliminary hearing." "[O]nce the indictment occurs, even had a preliminary hearing not been provided, that question becomes moot." Sanders v. State , 847 So.2d 903, 907 (¶ 22) (Miss. Ct. App. 2003) (citation omitted). "The indictment by a grand jury removes the purpose of the hearing and none need thereafter be conducted." Id. (citation omitted). As Hooghe was formally indicted by the Madison County Grand Jury, his argument that he was denied a preliminary hearing is without merit.

¶ 10. Likewise, Hooghe's argument that he was denied his right to due process because of the length of time between his arrest and his indictments is without merit. In Beal v. State , 118 So.3d 162, 165 (¶ 9) (Miss. Ct. App. 2012), this Court held:

The Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to the defendant's rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. To determine if actual prejudice has occurred, three factors should be considered: the length of the delay, the reason for the delay, and the prejudice which the delay may have caused the accused.

(Internal citations and quotations omitted). Hooghe pleaded guilty to all charges against him; thus, there was no "substantial prejudice to [his] rights to a fair trial." Furthermore, Hooghe presents no evidence to suggest that this delay "was an intentional device to gain tactical advantage over [him]." As such, we find no merit to this issue.

2. Multiplicity in Indictment

¶ 11. Hooghe maintains that his first indictment violated his right to be free from multiple punishments for the same offense, because it charged him for three separate counts even though all counts stemmed from the same occurrence: theft at the Baptist Healthplex in Madison, Mississippi, on April 22, 2014, at approximately 5:00 p.m. Hooghe contends that because the three counts were all part of a common plan and scheme, he should only have been charged with one count of larceny. The State, in response, argues that Hooghe's voluntary plea of guilty waived this argument.

¶ 12. "[T]he entry of a knowing and voluntary guilty plea waives all other defects or insufficiencies in the indictment," with only two exceptions: (1) "a guilty plea does not waive an indictment's failure to charge an essential element of the crime," and (2) a guilty plea "does not waive lack of subject matter jurisdiction." Joiner v. State , 61 So.3d 156, 159 (¶ 7) (Miss. 2011). The State points out that neither of these exceptions is at issue here.

¶ 13. Additionally, the Mississippi Supreme Court has repeatedly held that the protection against double jeopardy is a fundamental right, which is not subject to procedural bars. Rowland v. State , 42 So.3d 503, 508 (¶ 14) (Miss. 2010) (citing Graves v. State , 969 So.2d 845, 846-47 (Miss. 2007) ; Fuselier v. State , 654 So.2d 519, 522 (Miss. 1995) ). However, "[c]haracterizing a constitutional right as 'fundamental' does not mean it is impossible to waive it by pleading guilty." Knight v. State , 192 So.3d 360, 364 (¶ 13) (Miss. Ct. App. 2016). In Knight , this Court went on to specify that certain double-jeopardy claims may be waived by pleading guilty. Id. at 364-65 (¶¶ 13-15). Quoting the United States Supreme Court's decision in United States v. Broce , 488 U.S. 563, 576, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), the Knight court held that "prisoners who plead guilty to indictments that on their face described separate crimes essentially waive the right to contradict the admissions inherent in their guilty pleas. ... Conscious waiver of double jeopardy is not required." Knight , 192 So.3d at 365 (¶ 14) (internal quotations and citations omitted). "Just as a defendant who pleads guilty to a single count admits guilt to the specified offense, so too does a defendant who pleads guilty to two counts with facial allegations or distinct offenses concede that he has committed two separate crimes." Broce , 488 U.S. at 570, 109 S.Ct. 757.

¶ 14. Here, the indictment set forth three distinct charges against Hooghe. Hooghe pleaded guilty to all charges, without raising any argument regarding how the charges were organized or described in the indictment. As such, we find that when he pleaded guilty to the charges in the indictment that, on its face, described separate crimes, he waived the argument that he now makes-that he received multiple punishments for one offense.

3. Sufficiency of Indictments

¶ 15. Hooghe argues that both indictments failed to set out the "proximate cause" element of the grand-larceny counts. Hooghe goes on to argue that the State failed to prove how he committed the alleged larceny. We are unable to discern exactly what Hooghe means by claiming the indictments failed to set out the "proximate cause element" of the larceny. We assume he means that the indictments failed either to specify how he committed the offenses or to identify the elements of the offenses. The State again argues that Hooghe's voluntary guilty plea waived this argument. As noted above, however, "a guilty plea does not waive an indictment's failure to charge an essential element of the crime ...." Joiner, 61 So.3d at 159 (¶ 7). We briefly address the issue based on our perception of Hooghe's argument.

¶ 16. Rule 7.06 of the Uniform Rules of Circuit and County Court Practice requires an indictment to include, among other things, "a plain, concise and definite written statement of the essential facts constituting the offense charged and [that it] shall fully notify the defendant of the nature and cause of the accusation." At the time that Hooghe entered his guilty plea, Mississippi Code Annotated section 97-17-41 read as follows:

Every person who shall be convicted of taking and carrying away, feloniously, the personal property of another, of the value of Five Hundred Dollars ($500.00) or more, shall be guilty of grand larceny, and shall be imprisoned in the Penitentiary for a term not exceeding ten (10) years.

The grand-larceny counts in Hooghe's two indictments each specify that Hooghe did "wilfully, unlawfully, feloniously take, steal and carry away ... the personal property of [another] ... with the intent to permanently deprive the owner thereof." As such, these indictments set forth the essential elements of grand larceny. The State is not required to prove how Hooghe may have committed the crime, only that he did so beyond a reasonable doubt. And because Hooghe entered a guilty plea, the State's burden to do so was removed. We therefore find no issue with the sufficiency of these indictments.

4. Illegal Sentencing

¶ 17. Hooghe argues that his sentence pursuant to section 97-17-41 was illegal, because the statute was amended between the time that Hooghe was arrested and the time that he was sentenced. Specifically, Hooghe references House Bill 585, passed on March 31, 2014, in which the minimum threshold value for a charge of grand larceny was increased from $500 of stolen personal property to $1,000. 2014 Miss. Laws ch. 457, § 15 (H.B. 585). In response, the State contends that Hooghe failed to timely object to his sentence, thereby waiving the matter. The State also argues that Hooghe was sentenced under the correct statute, pursuant to Mississippi caselaw (citing Flowers v. State , 35 So.3d 516, 518 (¶ 5) (Miss. 2010), in which the Mississippi Supreme Court held that "the statute in effect at the time an offense is committed is the one that must control the prosecution of the offense").

¶ 18. Whether procedurally barred or not, this issue is without merit. Mississippi Code Annotated section 99-19-1 (Rev. 2015) provides:

No statutory change of any law affecting a crime or its punishment or the collection of a penalty shall affect or defeat the prosecution of any crime committed prior to its enactment, or the collection of any penalty, whether such prosecution be instituted before or after such enactment; and all laws defining a crime or prescribing its punishment, or for the imposition of penalties, shall be continued in operation for the purpose of providing punishment for crimes committed under them, and for collection of such penalties, notwithstanding amendatory or repealing statutes, unless otherwise specially provided in such statutes.

House Bill 585 was passed on March 31, 2014; however, section 83 of the bill provides, "This act shall take effect and be in force from and after July 1, 2014." 2014 Miss. Laws ch. 457, § 83 (H.B. 585). Thus, although the bill was passed before Hooghe allegedly committed the offense on April 22, 2014, the amended version of the statute was not yet in effect. As such, Hooghe was properly sentenced under the former version of the statute, wherein $500 was the minimum threshold amount of stolen personal property for a charge of grand larceny.

5. Lack of Jurisdiction

¶ 19. Hooghe asserts that the circuit court "did not have jurisdiction to accept a guilty plea" with respect to his second indictment, on the basis that it was never lawfully served and no arraignment or preliminary hearing was ever held. In response, the State argues that Hooghe's guilty plea waived this argument and, alternatively, that the record indicates that Hooghe was served with the indictment and waived arraignment.

¶ 20. Again, procedural bar notwithstanding, this issue is without merit. The record includes a document entitled "Waiver of Arraignment and Entry of Plea," signed by Hooghe, wherein he acknowledges service of the second indictment and waives arraignment. Further, as stated previously, the fact that Hooghe received an indictment removes any entitlement to a preliminary hearing that he may have had.

6. Unconstitutional Statute

¶ 21. Hooghe maintains that section 97-17-42, the auto-larceny statute under which he was convicted, is unconstitutional. In response, the State contends that Hooghe waived his right to this argument by failing to raise it prior to filing his PCR motion.

¶ 22. Mississippi Code Annotated section 99-39-21(1) (Rev. 2015) "prohibits a prisoner from raising certain issues in a PCR motion if they should have been raised prior to filing a PCR motion, and failure to raise these issues acts as a waiver." Swilley v. State , 93 So.3d 901, 904 (¶ 8) (Miss. Ct. App. 2012). "A valid guilty plea waives the defendant's right to make certain constitutional challenges ...." Id. (quoting Battaya v. State , 861 So.2d 364, 366 (¶ 5) (Miss. Ct. App. 2003), in which this Court held that the defendant was barred from bringing a claim that his rights were violated under the Fourth Amendment after entering a guilty plea). The United States Supreme Court explained in Tollett v. Henderson , 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) :

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he many not thereafter raise independent claims relating to the deprivation of his constitutional rights that occurred prior to the entry of the guilty plea.

¶ 23. Here, the transcript of Hooghe's plea hearing reflects that he was fully informed of the charges against him and the statutes he was accused of violating. Hooghe failed to make any objection to those statutes on the basis of their purported unconstitutionality. As such, he is barred from raising this issue on appeal.

7. Guilty Pleas

¶ 24. Hooghe maintains that the circuit court abused its discretion in failing to determine whether there was a factual basis sufficient to sustain his convictions. Specifically, Hooghe takes issue with Counts I and II of the first indictment, charging auto larceny and grand larceny, respectively, under which Hooghe was convicted for taking both a vehicle and a bicycle that was inside the vehicle. The State, in response, argues that Hooghe's claim is materially contradicted by the record, particularly his admission of guilt during the plea hearing.

¶ 25. We point out that we have already addressed Hooghe's argument with respect to multiplicity in his indictment, and have found no violation in charging him with three separate counts because they were all part of a common scheme and plan. We see no reason re-address this issue.

¶ 26. The remainder of Hooghe's argument with respect to this issue has no merit. "In order for a guilty plea to be accepted, the record must contain enough that the court may say with confidence the prosecution could prove the accused guilty of the crime charged." Simoneaux v. State , 29 So.3d 26, 33 (¶ 20) (Miss. Ct. App. 2009) (internal quotations and citation omitted). The record includes a statement by the Madison County police officer who arrested Hooghe, detailing the fact that Hooghe was in the area of the crime and wearing similar clothing to the suspect.

¶ 27. The transcript of Hooghe's plea hearing is included in the record. During the hearing, the court read to Hooghe the elements of each charge, and the State set forth a factual basis for each charge. The State represented that it had video surveillance of Hooghe going in and out of the locker room at the Baptist Healthplex on the evening the crimes occurred, walking through the parking lot, and stealing a vehicle. Hooghe agreed that the State could prove the factual basis of each charge beyond a reasonable doubt, and that it was more likely than not that he would be convicted of each charge if the matter proceeded to trial. Hooghe further testified that the probability of his conviction was greater than his acquittal, and that he wished to take advantage of the plea bargain being offered by the State. We therefore find that this issue is without merit.

8. Ineffective Assistance of Counsel

¶ 28. Hooghe asserts that he received ineffective assistance of counsel. Specifically, Hooghe contends that, on September 22, 2014, he arrived at the courthouse for his scheduled trial. However, fifteen minutes before the trial was scheduled to begin, his court-appointed attorney informed him for the first time that a second indictment had been handed down by the grand jury, charging him with a single count of grand larceny, and that Hooghe was to be tried for both indictments that day. Hooghe argues that this information surprised him, and that he pleaded with his attorney to seek an immediate continuance or severance. However, according to Hooghe, his attorney stated that the judge would not allow either and that the trial was going to commence right away. Consequently, he pleaded guilty to all charges against him. In response, the State argues that Hooghe's assertion is barred by his guilty plea. Alternatively, the State argues that Hooghe stated during his plea hearing that he was satisfied with his lawyer.

¶ 29. "A voluntary guilty plea waives claims of ineffective assistance of counsel except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea." Rigdon v. State , 126 So.3d 931, 936 (¶ 16) (Miss. Ct. App. 2013) (citations and quotations omitted). As Hooghe's argument involves the voluntariness of his guilty plea, we address it here.

¶ 30. "The standard of review for claims of ineffective assistance of counsel is the two-prong test from Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a showing that (1) counsel's performance was deficient and (2) that the deficiency prejudiced the defense."

Deloach v. State , 937 So.2d 1010, 1011 (¶ 5) (Miss. Ct. App. 2006). The burden is on the defendant to prove both prongs. Id. (citation omitted). For a defendant to challenge his guilty plea on the basis of ineffective assistance of counsel, "he must show that counsel's errors proximately resulted in the guilty plea and, but for counsel's errors, he would not have entered the guilty plea." Id. (citation omitted).

¶ 31. Hooghe presents insufficient evidence to show that he was to be tried on both indictments the same day. Moreover, Hooghe stated during his plea hearing that he was satisfied with his lawyer's representation. Hooghe had ample opportunity during his plea hearing to inform the trial judge that he had been told that his second indictment would be tried that day, despite having just received notice of it. However, Hooghe failed to mention anything whatsoever pertaining to this argument. As such, we find that Hooghe has failed to show that his counsel's performance was deficient, or that said deficiency prejudiced him.

9. Cruel and Unusual Punishment

¶ 32. Hooghe was sentenced to serve a term of forty-five years in the custody of MDOC; he maintains that this "de facto life sentence" violated his Eighth Amendment right to be free from cruel and unusual punishment. In response, the State argues that Hooghe waived this argument by failing to assert it at the time he entered his guilty plea. Further, the State points to Hooghe's signed plea petition-wherein he acknowledged that the statutory maximum punishment for his crime is forty-five years-in support of its argument that Hooghe understood the sentence that he was subject to receiving.

¶ 33. Hooghe failed to assert this issue in his PCR motion, and raises it for the first time on appeal. For this reason, it is procedurally barred. However, we note that, "[g]enerally, if a sentence falls within the limits provided by statute, it will not be disturbed on appeal." Morgan v. State , 966 So.2d 204, 206 (¶ 8) (Miss. Ct. App. 2007) (citation omitted). During his plea hearing, the trial judge explained to Hooghe that the maximum sentence for his crimes would be forty-five years. Hooghe stated that he understood. Hooghe also signed a plea petition explaining such. We find no merit to this issue.

10. Cumulative Error

¶ 34. Hooghe argues that the above cumulative errors prejudiced him. However, we find no error. Hooghe has failed to satisfy his burden of showing that he is entitled to post-conviction relief by a preponderance of the evidence, pursuant to section 99-39-23. As such, we affirm the circuit court's denial of his PCR motion.

¶ 35. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      Of note is the fact that Counts I and II involved property belonging to Joseph Anthony House, and Count III involved property belonging to Jeffery Cox.

      The Uniform Rules of Circuit and County Court Practice relating to criminal practice were recently superseded by the Mississippi Rules of Criminal Procedure. The former rules apply here because they were in effect during the proceedings in Hooghe's case.

      See supra n.2.

      Hooghe maintains that "while [he] had been told by jail staff that a detainer had been lodged against him by the Ridgeland (Miss.) Police Department, the specific charge was not entered (and thus unknown to him until that moment)." Hooghe further contends that he wrote several times to the Ridgeland Police Department to ask about the nature of the charge; further, Hooghe had received a "Notice of Setting" one week prior to September 22, 2014, notifying him that a proceeding had been scheduled on September 23, 2014, in Ridgeland Justice Court.


author: GRIFFIS, P.J., FOR THE COURT: IRVING, P.J., DISSENTING:

text:
    Albert Lewis WATTS a/k/a Albert L. Watts a/k/a Albert Watts, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00025-COA
    Court of Appeals of Mississippi.
    April 10, 2018
    ATTORNEY FOR APPELLANT: ALBERT LEWIS WATTS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT
    BEFORE GRIFFIS, P.J., WESTBROOKS AND TINDELL, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Albert Lewis Watts filed a petition for post-conviction collateral relief (PCCR) in the Circuit Court of Leake County. The circuit court found it lacked jurisdiction to entertain the petition due to Watts's failure to obtain leave from the Mississippi Supreme Court to proceed in the circuit court. Because we find the circuit court had jurisdiction to consider the petition for PCCR, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2012, Watts was convicted of armed robbery and sentenced to life imprisonment as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 2007). Watts v. State , 132 So.3d 1062, 1063-64 (¶¶ 1, 4) (Miss. Ct. App. 2014). On appeal, we found the State failed to prove beyond a reasonable doubt that Watts had served a term of at least one year on each sentence, as required under section 99-19-83. Id. at 1065 (¶ 9). As a result, we affirmed Watts's conviction but reversed and remanded for resentencing under Mississippi Code Annotated section 99-19-81 (Rev. 2007). Id.

¶ 3. On remand, Watts was resentenced as a habitual offender under section 99-19-81 to serve twenty-three years in the custody of the Mississippi Department of Corrections. A new sentencing order was entered by the circuit court. Watts did not appeal from that order.

¶ 4. On April 22, 2016, Watts filed the subject petition for PCCR in the circuit court. On December 12, 2016, the circuit court found it was without jurisdiction to entertain the petition since Watts failed to obtain leave from the Mississippi Supreme Court prior to filing his petition in the circuit court. As a result, the circuit court dismissed Watts's petition for PCCR. Watts timely appealed.

¶ 5. In addition to this appeal, Watts also filed with the Mississippi Supreme Court an "application for leave to proceed in [the] trial court with petition for PCCR." In his application, Watts sought permission to file his petition for PCCR in the circuit court. On February 8, 2017, the Mississippi Supreme Court found "that Watts's current sentence has not been appealed and that the request for post-conviction relief should be dismissed without prejudice to be filed in the [circuit] court."

STANDARD OF REVIEW

¶ 6. We will not disturb a circuit court's denial of a petition for PCCR unless the factual findings are clearly erroneous. Kennedy v. State , 179 So.3d 82, 83 (¶ 5) (Miss. Ct. App. 2015). However, questions of law are reviewed de novo. Id.

ANALYSIS

¶ 7. Pursuant to Mississippi Code Annotated section 99-39-7 (Supp. 2009), a petition for PCCR

shall be filed as an original civil action in the [circuit] court, except in cases in which the petitioner's conviction and sentence have been appealed to the Supreme Court of Mississippi and there affirmed or the appeal dismissed. Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the [petition for PCCR] shall not be filed in the [circuit] court until the [petition] shall have first been presented to a quorum of the Justices of the Supreme Court of Mississippi ... and an order granted allowing the filing of such [petition] in the [circuit] court.

Thus, unless Watts's conviction and sentence have been appealed and affirmed, or the appeal was dismissed, any petition for PCCR must be filed in the circuit court.

¶ 8. Here, as the Mississippi Supreme Court noted, Watts's current sentence has not been appealed. Since his current sentence has not been appealed, Watts was not required to seek leave to proceed in the circuit court. Thus, Watts's petition for PCCR was properly filed in the circuit court, which had jurisdiction to entertain the petition pursuant to section 99-39-7.

¶ 9. The dissent agrees that the circuit court had jurisdiction to consider Watts's petition for PCCR but asserts, "it would be a waste of judicial economy to remand this case to the circuit court for review and consideration." However, that is exactly what our supreme court instructed. In the February 8, 2017 order, the supreme court noted that a "related matter is pending in Cause Number 2017-TS-00025." That pending matter is the case before us. Thus, the supreme court was aware that Watts had filed his petition for PCCR in the circuit court and that his petition had been dismissed for a lack of jurisdiction. The supreme court could have denied Watts's application as meritless but, instead, found that the circuit court had jurisdiction to hear the petition and stated "that the request for post-conviction relief should be ... filed in the trial court."

¶ 10. Additionally, the dissent asserts we "may affirm a trial court's decision if the correct result is reached, even if the trial court reached the result for the wrong reason." While we agree with the dissent's assertion, the dissent ignores the fact that a dismissal and a denial are different. Here, the circuit court dismissed the case due to a lack of jurisdiction, which does not implicate the merits of the case. In other words, the circuit court dismissed the petition for PCCR without addressing the issues raised by Watts. Yet, on appeal, the dissent addresses those issues and finds them to be meritless. Thus, assuming the dissent's analysis and conclusions are correct, it would result in a denial of the petition for PCCR, not dismissal . As the circuit court dismissed the case for a lack of jurisdiction, we find the correct result was not reached. Accordingly, we reverse the judgment of the circuit court and remand Watts's petition for PCCR to the circuit court for review and consideration.

¶ 11. REVERSED AND REMANDED.

LEE, C.J., BARNES, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CARLTON, J.

CARLTON, J., JOINS THIS OPINION.

IRVING, P.J., DISSENTING:

¶ 12. The majority reverses the judgment of the Circuit Court of Leake County dismissing Watts's petition for post-conviction relief (PCR) because, in the view of the majority, Watts was not required to obtain permission from the Mississippi Supreme Court before filing his PCR petition in the circuit court. I agree with the majority that the circuit court erred in finding that obtaining such permission was a prerequisite to Watts's filing his PCR petition with that court. Consequently, I agree with the majority that the circuit court had jurisdiction to consider Watts's PCR petition. However, I disagree with the majority that the circuit court's erroneous decision to dismiss Watts's PCR petition on jurisdictional grounds requires us to reverse and remand the case to the circuit court for review of Watts's petition. Therefore, I dissent.

¶ 13. The majority correctly notes that only Watts's conviction was affirmed by this Court on appeal, and the statutory requirement-that a defendant obtain permission from the supreme court before filing a PCR petition in the circuit court-is applicable only in cases where both the conviction and sentence of the defendant has been affirmed or dismissed on appeal. Nevertheless, I believe to remand this case to the circuit court is to exhort form over substance. I explain.

¶ 14. First, I reiterate that Watts's conviction was affirmed. In his direct appeal of his conviction, he raised only two issues: "(1) the trial court erred in not declaring a mistrial or instructing the jury to disregard the testimony of State witness Judice Eubanks, and (2) the trial court improperly sentenced him as a habitual offender." Watts , 132 So.3d 1062, 1063 (¶ 1) (Miss. Ct. App. 2014). We affirmed Watts's conviction but remanded the case for the court to resentence Watts. Id. So the issues that were raised or could have been raised in his direct appeal cannot be relitigated in a PCR petition. Miss. Code Ann. § 99-39-21 (Rev. 2015). Second, we reversed Watts's sentence not because the State did not prove that he was a habitual offender, but because the State failed to prove that he was a habitual offender pursuant to section 1983 of the Mississippi Code of 1972 as amended and annotated. In other words, the State failed to prove that Watts had served a term of at least one year on each sentence that he had received for the predicate felonies giving rise to his habitual status. Watts , 132 So.3d at 1065 (¶ 9). We found the evidence sufficient to prove that Watts was a habitual offender pursuant to section 99-19-81 of the Mississippi Code of 1972 as amended and annotated, and remanded the case to the circuit court for resentencing pursuant to that code section. Id.

¶ 15. After Watts was resentenced on remand in accordance with the provisions of section 99-19-81, he filed the PCR petition leading to this appeal. In his PCR petition, he alleged three grounds for relief, which I quote verbatim (except for the addition of some minor punctuation) because of their importance to my view of the resolution of the issue before us, and for the additional reason of avoiding any chance of inadvertently mischaracterizing them. Those issues are:

Petitioner was convicted and is in custody of the M.D.O.C. in violation[ ] of the United States Constitution Laws and Treaties, the Mississippi constitution Bill of Rights by: false imprisonment through denial of due process and equal protection of laws for a fair trial and right to testify and compulsory process to establish alibi defense and lack of probable cause for arrest initially through breach of duty to investigate exculpatory evidence and racial discrimination[,] malicious prosecution, selective prosecution, prosecutorial and judicial misconduct[,] ADA discriminations[.]
Petitioner was convicted and is in custody of the M.D.O.C. in violation[ ] of the United States Constitution Laws and Treaties[,] the Mississippi Constitution Bill of Rights and State Laws through denial of competent effective counsel and discovery of evidence favorable to defense[,] false statements of trial counsel[,] deficient performance.
Petitioner was convicted and is in custody of the M.D.O.C. in violation[ ] of the United States Constitution Laws and Treaties[,] the Mississippi Constitution Bill of Rights and State Laws through denial of competent effective appellate counsel[,] and cruel and unusual punishment[,] illegal sentence[,] double jeopardy[.]

¶ 16. I note that Watts's appellate counsel was different from his trial counsel. Therefore, during his direct appeal, he was required to raise any issues regarding the ineffectiveness of trial counsel. Ronk v. State , 172 So.3d 1112, 1130 (¶ 37) (Miss. 2015). He did not. Consequently, any issue regarding trial counsel's performance is procedurally barred in post-conviction proceedings. Id. So on remand, the circuit court would not be obligated to hear any issues that Watts raises regarding his trial counsel's performance. It seems clear to me that such a bar would cover the first and second issues quoted above.

¶ 17. In the third issue, Watts, in a rather convoluted manner, states that he is in custody "through" the denial of competent effective appellate counsel. He then explains in his recitation of supporting facts that he had a right to a false-imprisonment claim on direct appeal that appellate counsel failed to file. He continues his factual explanation with the following inexplicable statement, which I quote verbatim in an effort to discern its contextual meaning: "Also rights to access to the records discoveries property stolen by defense counsel and District Attorney Larry McMurtry. Petitioner was entitled to a prosecutorial and judicial misconduct claim arguments on direct appeal." I assume by the first portion of Watts's statement, he means that appellate counsel should have asserted on direct appeal that trial counsel had not shared discovery with Watts. As to the last portion of the quoted explanation, I cannot fathom Watts's assertion. Finally, Watts claims that appellate counsel did not raise an argument regarding "compulsory[-]rights violations," apparently meaning that appellate counsel did not raise an issue regarding trial counsel's failure to subpoena a witness who allegedly would have given testimony rebutting the State's evidence or would have given mitigating testimony. However, Watts fails to give any specifics.

¶ 18. Watts did not attach any affidavits in support of the allegations made in his PCR petition, nor did he state in details in his petition why none could be obtained as required by Mississippi Code Annotated section 99-39-9(1)(e) (Rev. 2015). He stated that members of the jury would have to be "subpoenaed for their ancillary testimony on those issues presented and supplemental change of heart [sic] after remand." He also stated that other witnesses would have to be subpoenaed to verify their affidavits. However, as stated, Watts did not attach any affidavits to his PCR petition.

¶ 19. It is clear to me that while Watts's PCR petition alleges that he is being unlawfully held in custody, it does not meet the pleading requirements of section 99-39-9(1)(e). Therefore, it would be a waste of judicial economy to remand this case to the circuit court "for review and consideration" as directed by the majority. I would affirm the dismissal of Watts's petition on the basis that it does not meet the pleading requirements of section 99-39-9(1)(e). "An appellate court may affirm a trial court's decision if the correct result is reached, even if the trial court reached the result for the wrong reasons." Boone v. State , 148 So.3d 377, 379 (¶ 7) (Miss. Ct. App. 2014).

      The State concedes that the circuit court has jurisdiction to consider Watts's petition for PCCR and agrees that we should remand this case to the circuit court for further review.


author: WESTBROOKS, J., FOR THE COURT:

text:
    Earnest STUCKEY, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00067-COA
    Court of Appeals of Mississippi.
    April 17, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, JACKSON
    BEFORE IRVING, P.J., FAIR AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. The grand jury of Washington County indicted Earnest Stuckey for one count of first-degree murder with a firearm enhancement. Following a jury trial, Stuckey was convicted of second-degree murder with a firearm enhancement and sentenced to forty years in the custody of the Mississippi Department of Corrections (MDOC) and five years for the firearm enhancement, to run consecutively. Stuckey filed a motion for a judgment notwithstanding the verdict (JNOV), or for a new trial, which the trial court denied. Stuckey timely appeals. After review of the record, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In late 2013 or 2014, Stuckey met Jennifer Triplett. The pair began dating and moved in with each other in Greenville, Mississippi. They often referred to each other as "husband" and "wife." Jennifer's brother, Arthur Triplett, would stay with Stuckey and Jennifer from time to time, and several witnesses testified that Stuckey and Arthur had a good relationship. Sharnika Laws, Arthur's niece, testified that she considered Stuckey and Arthur to be friends, and Stuckey also referred to Arthur as his "brother-in-law."

¶ 3. In January 2015, Jennifer, Stuckey, Arthur, Sharnika, and Sharnika's daughter were visiting out at Jennifer and Stuckey's home. Jennifer testified that some of the guests were consuming beer and alcohol. At some point in the evening, Clifford "Cliff" Gray stopped by the home. Stuckey testified that Arthur and Cliff were involved in a heated exchange regarding loud music that Cliff was playing when he entered Jennifer and Stuckey's home.

¶ 4. Jennifer testified that shortly after this exchange, everyone left except Arthur and Stuckey. Jennifer stated that Clifford left, because she called the police after Cliff and Arthur's brief exchange. Jennifer testified that while she was in her daughter's room she heard Stuckey and Arthur loudly yelling. Jennifer stated that she left the house and drove to a gas station because she had a headache. After about ten minutes, Jennifer's niece, Sharnika, arrived at the gas station.

¶ 5. Sharnika testified that after speaking with Jennifer at the gas station, she drove to Jennifer's home to locate Arthur. Sharnika stated that as soon as Stuckey opened the door, she saw a big puddle of blood at the front door and that when she asked Stuckey about Arthur's whereabouts, Stuckey replied, "I shot him." Further, Sharnika stated that Stuckey falsely informed her that an ambulance came to pick up Arthur. She stated that she believed him because Stuckey's demeanor was calm. However, moments later Sharnika and her Aunt Marsha found Arthur lying in the street right down from Jennifer and Stuckey's home. Arthur had been shot, and he was bleeding. Sharnika stated that she tried to stop the bleeding by applying pressure to the wound while Marsha prayed. Shortly after, the police and the ambulance arrived to care for Arthur; however, Arthur later died from his injuries.

¶ 6. Cordell Daniels, an officer with the Greenville Police Department at the time, arrived to Jennifer and Stuckey's home. Officer Adams and Officer Michael Hollingsworth also were at the scene shortly after Arthur's body was discovered in the street. Officer Daniels testified that Stuckey admitted to shooting Arthur or "his brother-in-law" after Arthur lunged at him twice. However, Officers Daniels and Hollingsworth testified that there were no scrapes or bruises on Stuckey. Officer Daniels also testified that he saw a shotgun in Stuckey's bedroom closet.

¶ 7. Stuckey was arrested and taken to the Greenville Police Department. Stuckey signed a Miranda waiver and informed Lieutenant Louis White, formerly with the Greenville Police Department, that he shot Arthur because he "lunged at him twice." Investigator Tammie Hudson also was present during Stuckey's interrogation. Stuckey stated to Lieutenant White and Investigator Hudson that he "shot the [s***] out of Arthur."

¶ 8. Following a trial, Stuckey was convicted of second-degree murder with a firearm enhancement and sentenced to forty years in the custody of the Mississippi Department of Corrections (MDOC) and five years for the firearm enhancement, to run consecutively. Stuckey filed a motion for a JNOV, or for a new trial, which the trial court denied. Stuckey timely appeals.

STANDARD OF REVIEW

¶ 9. "Our review of the denial of a motion for directed verdict and a motion for a JNOV is under the same [de novo] standard of review, a challenge to the legal sufficiency of the evidence." See Bradford v. State , 102 So.3d 312, 314-15 (¶ 6) (Miss. Ct. App. 2012) (citation omitted). "On appeal, a challenge to the sufficiency of the evidence is reviewed on the last occasion that the trial court ruled on the sufficiency of the evidence." Id. at 314 (¶ 6) (citing McClain v. State , 625 So.2d 774, 778 (Miss.1993) ). In this case, the last occasion on which the trial court considered the legal sufficiency of the evidence was in ruling on Stuckey's JNOV motion.

¶ 10. Further, "[i]n reviewing a challenge to the legal sufficiency of the evidence, this Court considers all of the evidence in the light most favorable to the prosecution and accepts all evidence supporting the verdict as true." Id. at (¶ 7) (citation omitted).

DISCUSSION

¶ 11. Stuckey asserts that he should have been convicted of manslaughter under the theory of "imperfect self-defense." As a result, he argues that the evidence was not legally sufficient to render a second-degree murder conviction.

¶ 12. Stuckey was convicted of second-degree murder under Mississippi Code Annotated section 97-3-19(1)(b) (Rev. 2014). This section states in part:

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:
(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be second-degree murder[.]

¶ 13. Stuckey also was convicted under Mississippi Code Annotated section 97-37-37(1) (Rev. 2014). This section reads:

(1) Except to the extent that a greater minimum sentence is otherwise provided by any other provision of law, any person who uses or displays a firearm during the commission of any felony shall, in addition to the punishment provided for such felony, be sentenced to an additional term of imprisonment in the custody of the Department of Corrections of five (5) years, which sentence shall not be reduced or suspended.

¶ 14. The Mississippi Supreme Court has held that "under the theory of imperfect self-defense, an intentional killing may be considered manslaughter if done without malice but under a bona fide (but unfounded) belief that it was necessary to prevent death or great bodily harm." Brown v. State , 222 So.3d 302, 307 (¶ 21) (Miss. 2017). This Court has held that "[t]he chief distinction between murder and manslaughter is the presence of deliberation and malice in murder and its absence in manslaughter." Hunter v. State , 187 So.3d 674, 677 (¶ 10) (Miss. Ct. App. 2016).

¶ 15. The following is an excerpt from Stuckey's cross-examination:

Q: Mr. Stuckey, I just have a few more questions to ask, okay? You said that Mr. Triplett pushed you, right?
A: He pushed me more than one time.
Q. He pushed you more than one time. Were you scared when he pushed you?
A: No. I haven't met a man I was scare of. I met mens I didn't want to mess with.
Q: So you wasn't scared of him when he pushed you?
A: No.

¶ 16. Stuckey's testimony demonstrates that he could not have been found not guilty under the theory of "imperfect self-defense." Stuckey was not afraid of Arthur and did not believe Arthur would cause serious bodily injury. Therefore, this argument fails.

¶ 17. Furthermore, the Mississippi Supreme Court stated that under a charge of second-degree murder, "[t]o demonstrate no regard for another's life is the basic requirement of guilt." Dowda v. State , 776 So.2d 714, 716 (¶ 7) (Miss. Ct. App. 2000). Stuckey lied to Sharnika when she arrived at the scene. Several witnesses testified that Stuckey did not seem remorseful of his actions. Moreover, Stuckey's demeanor after the shooting was described as calm. Stuckey testified that he went to the bedroom to retrieve his shotgun because Arthur kept pushing him. However, Stuckey exhibited no bruises from their altercation, and no weapon ever was recovered from Arthur's person.

¶ 18. The State presented evidence that Arthur was shot and killed with a 20-gauge shotgun through Dr. John Davis's testimony and photographs of Arthur's injuries. Dr. John Davis, Deputy Chief Medical Examiner, testified that Arthur's manner of death was ruled as a homicide from a gunshot wound to the chest. Further, Chad Suggs, a forensic scientist with the Mississippi Forensic Lab, testified that Stuckey tested positive for gunshot residue. Mark Boackle, a forensic pathologist specializing in firearms, testified that the pellets found in Arthur's chest came from a 20-gauge shotgun.

¶ 19. Stuckey maintains that he was in a physical altercation with the victim and was fearful of bodily injury; however, testimony presented at trial refuted that claim. The officers and investigators at the scene of the crime reported that the house did not look disturbed-aside from a blood trail leading from the inside to the outside of the home. Officer Hollingsworth, Lieutenant White, and Investigator Hudson testified that Stuckey informed them that Stuckey shot Arthur after the victim pushed him two or three times. Stuckey testified that he believed he was loading blank ammunition into the shotgun; however, Investigator Hudson testified there were no blanks found while recovering ammunition from the home.

¶ 20. Furthermore, the jury was instructed on manslaughter, first-degree murder, and second-degree murder. This Court previously has held that "the determination of a defendant's mental culpability is an issue properly resolved by the jury." Hunter , 187 So.3d at 677 (¶ 10) (citing Shumpert v. State , 935 So.2d 962, 967 (¶ 14) (Miss. 2006) ). The jury considered all of the evidence and testimony presented and determined that Stuckey acted neither in the heat of passion, nor committed imperfect self-defense.

¶ 21. Viewing the evidence in the light most favorable to the prosecution, we find that a rational juror could have concluded that all of the elements of second-degree murder were satisfied.

¶ 22. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND TINDELL, JJ., CONCUR.

      Arthur Triplett also was referred to as "Uncle June" in the record.


author: STUART, Chief Justice.

text:
    EX PARTE Jimmy WILLIAMS, Jr.
    (In re: Jimmy Williams, Jr. v. State of Alabama)
    1131160
    Supreme Court of Alabama.
    August 25, 2017
    Bryan A. Stevenson, Charlotte R. Morrison, and Alicia A. D'Addario, of Equal Justice Initiative, Montgomery, for petitioner.
    Steve Marshall, atty. gen., and Andrew L. Brasher, deputy atty. gen., and Lauren A. Simpson, asst. atty. gen. for respondent.
    On Remand from the United States Supreme Court

      The United States Supreme Court's order remanding this case was issued on March 7, 2016; this Court was not notified of the remand until June 1, 2017.

   STUART, Chief Justice.

The United States Supreme Court has vacated this Court's earlier judgment in this case, see Ex parte Williams, 183 So.3d 220 (Ala. 2015), affirming the judgment of the Alabama Court of Criminal Appeals, Williams v. State, 183 So.3d 198 (Ala. Crim. App. 2014), and has remanded the case for our further consideration in light of Montgomery v. Louisiana, 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). Williams v. Alabama, --- U.S. ----, 136 S.Ct. 1365, 194 L.Ed.2d 347 (2016).

Jimmy Williams, Jr., was convicted of murder made capital because it was committed during a robbery in the first degree, see § 13A-5-40(a)(2), Ala. Code 1975; the offense was committed when Williams was 15 years old. The trial court sentenced Williams to life imprisonment without the possibility of parole-the only possible sentence and one that was mandatory.

In June 2013, Williams petitioned the Montgomery Circuit Court, pursuant to Rule 32, Ala. R. Crim. P., for a new sentencing hearing, asserting that his life-without-the-possibility-of-parole sentence was unconstitutional and unlawful in light of the United States Supreme Court's decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). In Miller, the Supreme Court held that a mandatory sentence of life imprisonment without the possibility of parole for a juvenile defendant violates the prohibition of cruel and unusual punishment in the Eighth Amendment to the United States Constitution. In his Rule 32 petition, Williams reasoned that, because he was a juvenile at the time he committed the offense and because his sentence of life imprisonment without the possibility of parole was mandatory, his sentence was unconstitutional and illegal and he was entitled to a new sentencing hearing. The circuit court, the Court of Criminal Appeals, and this Court disagreed, each holding that Williams was not entitled to a new sentencing hearing because the rule in Miller did not apply retroactively to cases such as Williams's, which were final when Miller was decided. See Ex parte Williams, 183 So.3d at 230-31 ; Williams v. State, 183 So.3d at 218 ; and the Montgomery Circuit Court's order dismissing Williams's Rule 32 petition, Williams v. State, CC-1998-2385.60 (July 22, 2013). Williams petitioned the United States Supreme Court for certiorari review of this Court's decision.

After this Court decided Ex parte Williams and while Williams's petition for certiorari review was pending in that Court, the United States Supreme Court issued its opinion in Montgomery, which clarified its holding in Miller, stating that " Miller announced a substantive rule that is retroactive in cases on collateral review." 577 U.S. at ----, 136 S.Ct. at 732.

The United States Supreme Court, in light of its decision in Montgomery, then granted Williams's petition for a writ of certiorari, vacated this Court's judgment, and remanded the case for further consideration. Upon receiving notice of the Supreme Court's order, this Court ordered the parties to submit briefs addressing the impact of Montgomery on Williams's case.

Williams and the State have filed a joint brief agreeing that, in light of the United States Supreme Court's decisions in Miller and Montgomery, the judgment of the Court of Criminal Appeals affirming the circuit court's dismissal of Williams's Rule 32 petition must be vacated and the case ultimately remanded to the circuit court for further proceedings. Given the United States Supreme Court's holding in Montgomery that the rule of Miller applies retroactively to cases on collateral review, Williams is entitled to a new sentencing hearing.

Because of this Court's inadvertent delay in addressing the United States Supreme Court's remand order, the clarification in Montgomery that the rule of law in Miller applies retroactively to cases on collateral review, and the parties' agreement that Williams is entitled to the relief sought in his Rule 32 petition-i.e., a new sentencing hearing-we vacate the judgment of the Court of Criminal Appeals and remand this case directly to the circuit court for proceedings consistent with Miller and Montgomery.

JUDGMENT VACATED AND CASE REMANDED.

Bolin, Parker, Murdock, Shaw, Main, Wise, Bryan, and Sellers, JJ., concur.