author: BEAM, JUSTICE, KITCHENS, JUSTICE,

text:
    Trevioun Lamont Cornelius BRIGGS a/k/a T.L. Briggs a/k/a T.L. Cornelius Briggs a/k/a Trevious Lamont Corneli Briggs a/k/a Trevioun Lamount Cornelius Briggs a/k/a Trevious Briggs a/k/a Trevioun L.C. Briggs a/k/a Trevioun Briggs v. STATE of Mississippi
    NO. 2015-CT-00016-SCT
    Supreme Court of Mississippi.
    07/27/2017

      OFFICE OF THE STATE PUBLIC DEFENDER, BY: JUSTIN TAYLOR COOK, GEORGE T. HOLMES, ATTORNEYS FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS, ATTORNEY FOR APPELLEE.
   BEAM, JUSTICE,

FOR THE COURT:

¶ 1. Trevioun Briggs was convicted in the Circuit Court of Madison County of robbery and witness-tampering. The Court of Appeals affirmed both convictions in Briggs v. State, 225 So.3d 1253, 1254, 2016 WL 2981728, at *1 (Miss. Ct. App. May 24, 2016). Briggs petitioned this Court for cer-tiorari, which was granted to consider whether his indictment for the witness-tampering count was defective. Finding that the indictment fairly tracked the language of Mississippi Code Section 97-9-115, we affirm the judgment of the Court of Appeals.

FACTS

¶2. Briggs was convicted of robbing a woman in the Northpark Mall parking lot in Ridgeland, Mississippi, on the evening of December 14, 2013. The woman was holding her three-year-old son and loading shopping bags into her car when Briggs approached from behind and struck her in the back of the head, causing her to drop the child. Briggs snatched the shopping bags and ran away. The woman identified her attacker as a black male wearing a red sweatshirt. A few hours later, Briggs was arrested outside .the mall after attempting to return stolen items in exchange for . a cash refund. After his arrest, an orange sweatshirt and other stolen, items were found inside his vehicle. Just before Briggs’s arrest, he successfully had returned other stolen items to various mall retailers, and the retailers’ employees identified him at trial.

¶ 3. Briggs was arrested for false pretense and incarcerated at the Madison County Jail. Four days after his arrest, while in jail, Briggs placed several recorded phone calls to various acquaintances. In the recordings, Briggs requested that the person to whom he was speaking either provide an alibi for the time of the robbery, or ask a third person to do so on his behalf. On March 28,' 2014, Briggs was indicted for robbery and witness tampering. At trial, the State placed the recorded conversations in evidence. The jury found Briggs guilty of robbery and witness-tampering.

LAW AND ANALYSIS

¶ 4. Section 97-9-115 provides:

(1) A person commits the crime of tampering with a witness if he intentionally or knowingly attempts to induce a witness or a person he believes will be called as a witness in any official proceeding to:
(a) Testify falsely or unlawfully withhold testimony; or
(b) Absent himself from any . official proceeding to which he has been legally summoned.

Miss, Code Ann.' § '97-9-115 (Rev. 2014) (emphasis added).

¶ 5. Briggs’s indictment used the word “may” instead of the word.“will,” providing in pertinent part:

[Briggs] did willfully, feloniously, intentionally[,] and knowingly attempt to induce a witness or a person he believed may be called as a witness against him, to-wit: [Briggs], while incarcerated, made contact via telephone with a person whom he then requested she attempt to-coerce another person into deceitfully providing [Briggs] with ... an alibi, in violation of Miss. Code Ann. § 97-9-115 ....

(Emphasis added.)

¶ 6. Briggs’s jury was instructed as follows:

If you find from the evidence in this case beyond a reasonable doubt that:
[Briggs] did willfully, feloniously, inten-tionallyt,] and knowingly attempt to induce a witness or a person he believed would or could be called as a witness at the trial of this cause to testify falsely at this trial, an official proceeding, by providing at said trial an alibi for the Defendant by testifying that the Defendant was at a place other than the location of the crime charged ... at the time the crime was committed, said testimony being false and known by the Defendant to be false, as well as being material to the subject matter of the official proceeding, namely this trial; then you shall find [Briggs] guilty of Tampering with A Witness ....

(Emphasis added.)

¶ 7. Briggs claimed on appeal that both the indictment and the jury instruction failed to track the statute’s language. Briggs submitted that while “it may seem somewhat trivial, the difference between the words ‘will,’ ‘may1 and ‘would or could’ are significant” because all contain “different knowledge requirements.” Without explanation as to how or why, Briggs asserted that by use of the word “may” in the indictment, the State broadened the activity for which Briggs could be found guilty under Section 97-9-115. Briggs then contended that by use of the words “would or could” in the jury instruction, the State lessened its burdened from that in the indictment’s language.

¶ 8. The Court of Appeals found no merit in Briggs’s claims. In reaching its conclusion, the Court of Appeals found that “Briggs contacted a woman and asked her to fabricate an alibi for him during the times in which he was not seen on the mall video.” Briggs, 225 So.3d at 1256, 2016 WL 2981728, at *3. On these facts, the court reasoned that “it makes no difference whether the indictment read ‘will’ or ‘may’ or the jury instruction read ‘will’ or ‘would’ since the factual basis surrounding the charge, and described in the indictment, dictated that Briggs thought, and in fact hoped, that the woman he contacted would be called as a witness to provide Briggs with the alibi he sought.” Id.

¶ 9. We agree.

¶ 10. Again, Briggs asserts that use of the word “may” in the indictment broadens the activity for which Briggs could be found guilty under Section 97-9-115. But Briggs does not speak to what activity the statute circumscribes, or how use of the word “will” limits it, or how the word “may” expands it. He merely suggests, given his assertions, that Section 97-9-115 is limited to those persons designated as a witness by some sort of process.

¶ 11. That may be a proper interpretation for subsection (b) of the statute based on the language: “Absent himself from any official proceeding to which he has been legally summoned.” Miss. Code Ann. § 97—9—115(1)(b) (emphasis added). But subsection (b), which simply sets forth another way a person may commit the crime of witness-tampering, is not applicable in this case. Based on the essential facts alleged in the indictment constituting the offense charged, subsection (a) and the language contained in paragraph (1) that precedes it is what applies here.

¶ 12. First, this language uses both the terms “witness” and “person” to describe who an offender may not induce or attempt to induce to testify falsely in any official proceeding. This signifies that the statute is not limited to those designated as witnesses by process, as Briggs suggests, but applies also to those so regarded by fact or circumstance. See, e.g., State v. Crider, 21 Ohio App. 3d 268, 487 N.E.2d 911, 912 (1984) (holding same for purposes of Ohio’s witness-tampering statute, based on the dictionary definition of the term “witness,” which refers to “one that is cognizant of something by direct experience” or “one who beholds or otherwise has personal knowledge of something”).

¶ 13. Second, the word “attempt” is contained in the statute. This means the offender need not succeed or actually induce the witness or person to testify falsely for purposes of subsection (a); he or she need only attempt to induce the witness or person to do so. Thus, whether that person is ever called to testify in any official proceeding is irrelevant for purposes of subsection (a).

¶ 14. Third, the phrase “any official proceeding” used in paragraph (1) is broadly inclusive, unlike its usage in subsection (b), which by the phrase “to which he has been legally summoned,” limits its application to circumstances in which an official proceeding is pending. For purposes of subsection (a), however, there is no express limitation. Thus, we read “any official proceeding” used in paragraph (1) to mean potential future proceedings. ,

¶ 15. The Oregon Supreme Court reached the same conclusion when construing that state’s witnessing-tampering statute, which is very similar to ours but uses the word “may” instead of the word “will.” See Oregon v. Bailey, 346 Or. 551,213 P.3d 1240 (2009) (interpreting ORS 162.285(D). The Bailey court concluded that its statute does not require that an official proceeding be pending at the time “tampering” conduct occurs. This is because, for purposes of subsection (a), contained in ORS 162.285, there is no express time limitation in reference to “any official proceeding.” Id. at 1243. This, according to Bailey, must mean that any “potential future proceedings [are included] within its sweep.” Id. The Bailey court further concluded that, not only need an official proceeding not be pending for purposes of ORS 162.285(l)(a); an investigation that might be conducted in the case need not yet be underway either. Id. at 1246-47.

¶ 16. We also point out that Alabama has a similar obstruction-of-justice chapter in its criminal code with provisions almost identical to ours. Its witness-tampering statute reads:

(a) A person commits the crime of tampering with a witness if he attempts to induce a witness or a person he believes will be called as a witness in any official proceeding to:
(1) Testify falsely or unlawfully withhold testimony; or
(2) Absent himself from any official proceeding to which he has legally been summoned.

Ala. Code Ann. § 13A-10-124.

¶ 17. In Ivey v. State, 821 So.2d 937, 950 (Ala. 2001), overruled on other grounds, the Alabama Supreme Court concluded that “Section 13A-10-124 does not require that the false testimony or the -withholding of testimony be carried out in order for the charge of witness tampering to be complete.”

¶ 18. In Barnette v. Alabama, 855 So.2d 1129 (Ala. Crim. App. 2003), the Court of Criminal Appeals of Alabama addressed its witness-bribery statute, which, similar to Mississippi’s witness-bribery statute, reads in pertinent part: “A person commits the crime of bribing a witness if he offers, confers or agrees to confer anything of value upon a witness or a person he believes mil be called as a witness in any official proceeding to ... [cjorruptly influence the testimony of that person .... ” See Ala. Code Ann. § 13A-10-121.

¶ 19. In Barnette, a few days following an incident involving a sexual assault of a fourteen-year-old, which had been reported to the police, an acquaintance of the alleged perpetrator called the victim’s stepfather and offered him money to persuade the victim to “tell the police that the [incident] didn’t happen.” Barnette, 855 So.2d at 1130. The acquaintance later was charged and convicted of bribing a witness. On appeal, the defendant claimed there was insufficient evidence to support his conviction because the State did not prove the victim or the stepfather was a witness in an official proceeding, or that an official proceeding had commenced at the time the bribery took place. Id. at 1134.

¶20. In affirming the conviction, the Alabama Court of Appeals found the fact that an official proceeding had not yet begun to be of no moment. Id.

Based on the evidence ... presented, the jury could have reasonably concluded that, even though there was not any official proceeding pending at the time of the appellant’s actions, the appellant believed an official proceeding would be initiated and believed [the victim and/or her step-father] would be called as a witness in that proceeding.

Id. at 1134-35.

¶ 21. The dissent agrees that an official proceeding need not be commenced or pending when the inducement of false testimony is attempted, but contends, however, that the State nonetheless expanded upon the statutory definition of the crime by substituting the word “will” for the word “may.” And by this substitution, according to the dissent, the State made the charge easier to prove. But other than pointing out that the two words can have different meanings, the dissent-like Briggs-fails to explain how use of the word “may” instead of “will” expands upon the conduct Section 97-9-115(l)(a) prohibits, or how its use prejudiced Briggs in any defense he may have had against the charge.

¶ 22. Again, there is no requirement that an offender succeed in his or her attempt to induce another to testify falsely in any potential official proceeding. Nor is there an “inevitability” requirement as the dissent contends the statute contains. Were there such, the offense would not be consummated until the putative witness appeared at the official proceeding and gave false testimony. But that is not the intent of the statute. Its clear purpose is to protect not only those designated as witnesses by process, but those who may become witnesses due to circumstances such as those alleged in Briggs’s indictment.

¶28. In any such case, there always exists the possibility (or contingency) that the person the offender attempted to induce to give false testimony might not be called as a witness to testify in an official proceeding. That is factually what occurred here.

¶ 24. For all intents and purposes, use of the word “may” in this instance was merely grammatical. Its use was inconsequential, and it did not alter the substantive meaning of the statute or disadvantage Briggs in any defense(s) he may have had in the case. We also find the sanie with regard to the complained-of jury instruction.

CONCLUSION

¶25. Briggs’s convictions for witness-tampering and for robbery are affirmed.

¶ 26. AFFIRMED.

WALLER, C.J., AND RANDOLPH, P.J., CONCUR. MAXWELL AND CHAMBERLIN, JJ., CONCUR IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. KITCHENS, J„ CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION ' JOINED BY DICKINSON, P.J., KING AND COLEMAN, JJ.

KITCHENS, JUSTICE,

CONCURRING IN PART AND DISSENTING IN PART:

¶27. I respectfully concur in part and dissent in part. Because the witness tampering count in Briggs’s indictment misstated an essential element of the crime by substituting the word may, for the statutory word will, it was fatally defective. The purported witness tampering count did not charge Briggs with any crime. Therefore, I would find that reversal of Briggs’s conviction of witness tampering is required under the Sixth Amendment to the United States Constitution and Article d, Section 26, of the Mississippi Constitution. I agree that Briggs’s robbery conviction must be affirmed.

A. Constitutional Requirements

¶ 28. Words do matter in indictments, perhaps more so than in most other legal pleadings. The Sixth Amendment to the United States Constitution provides that “the accused shall enjoy the right ... to be informed of the nature and cause of the accusation.” U.S. Const, amend. VI. Under the Mississippi Constitution, “the accused shall have a right ... to demand the nature and cause of the accusation.” Miss. Const. art. 3, § 26. “An indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense.” Gilmer v. State, 955 So.2d 829, 836-37 (Miss. 2007). “An indictment which fails to allege all essential elements of a crime runs afoul of our constitutions and is void.” Thomas v. State, 126 So.3d 877, 879 (Miss. 2013). Because such an indictment is void and legally inoperative, there is no need for a showing of prejudice to the defense. If an indictment misstates the essential elements of the crime, an appellate challenge to the indictment is never procedurally barred, but is subject to de novo review under our longstanding precedent. Gilmer, 955 So.2d at 836.

¶ 29. Article 1, Section 1, of the Mississippi Constitution provides for the separate magistracies of the three governmental departments: legislative, judicial, and executive. Miss. Const, art. 1, § 1. The legislative powers are vested in the legislature. Miss. Const, art. 4 § 33. The legislative power includes the authority to declare and define those acts that constitute crimes. State ex rel. Dist. Attorney v. Winslow, 208 Miss. 753, 761, 45 So.2d 574, 576 (1950). When the prosecutor—a member of the executive branch—initiates a criminal prosecution via a grand jury, the language of the indictment must include the language of the statute that defines the crime being charged. Warren v. State, 187 So.3d 616, 622 (Miss. 2016). If an indictment does not track the statutory language and instead omits or misstates one or more of the crime’s essential elements, it effectively charges no crime, and the indictment must be dismissed. Thomas, 126 So.3d at 879-80. Thus, the drafter of an indictment may not constitutionally attempt to broaden the reach of a criminal statute by substituting language that lightens the evidentiary burden of the prosecution. “[T]he rule is ... that whatever sense of detestation the court may entertain to-wards a party upon the facts, courts nevertheless may not impose punishment upon one not within the strict letter of the law.” Winslow, 208 Miss. at 760, 45 So.2d at 575.

B. The witness tampering count of Briggs’s indictment did not charge him with a crime.

¶30. Count II of Briggs’s indictment purported to charge him with witness tampering under Mississippi Code Section 97-9-115. That statute defines the crime of witness tampering as follows:

(1) A person commits the crime of tampering with a witness if he intentionally or knowingly attempts to induce a witness or a person he believes will be called as a witness in any official proceeding to:
(a) Testify falsely or unlawfully withhold testimony; or
(b) Absent himself from any official proceeding to which he has been legally summoned.

Miss. Code Ann. § 97-9-115 (Rev. 2014) (emphasis added). Official proceeding is defined as “any proceeding heard before any legislative, judicial, administrative, or other government agency or official authorized to hear evidence under oath.”

¶ 31. The charging language of Count II of Briggs’s indictment is as follows:

And, based upon a series of acts connected together and constituting parts of a common scheme and plan, Trevioun Lamount Cornelius Briggs, on or about the 18th day of December, 2013, in the county aforesaid and within the jurisdiction of the Court, did willfully, felo-niously, intentionally and knowingly attempt to induce a witness or a person he believed may be called as a witness against him, to-wit: Defendant, while incarcerated, made contact via telephone with a person whom he then requested she attempt to coerce another person into deceitfully providing Defendant with with [sic] an alibi, in violation of Miss. Code Ann. § 97-9-115 (1972, as amended).

(Emphasis added.)

¶ 32. Briggs contends that the witness tampering statute criminalizes the attempted inducement of false testimony from someone the defendant believes will be called as a witness, not someone the defendant believes may be called as a witness. Briggs argues that the language of his indictment did not track the language of the statute because it substituted the word may for the word will. Briggs also argues that, because the words may and will have different meanings, the substitution was improper and rendered his indictment fatally defective. While Justice Beam’s majority provides much general discussion about the language of Section 97-9-115, it offers scant analysis of the issue raised by Briggs: whether there is any meaningful difference between using the word may in place of the word will in an indictment for witness tampering. With respect, that issue is of paramount importance to our resolution of this case and it is dispositive. Accordingly, I address it as follows.

¶ 33. An indictment properly sets forth the essential elements of the crime sought to be charged when the indictment’s language tracks (follows) the language of the statute. Warren, 187 So.3d at 622. An indictment need not employ the exact descriptive language of the statute. Gilmer, 955 So.2d at 837 (quoting Price v. State, 898 So.2d 641, 654 (Miss. 2005)). But for an indictment sufficiently to set forth the essential elements of the crime, it must use “equivalent words of substantially the same meaning” as the words in the statute. Id. (quoting Price, 898 So.2d at 654); see also Harrington v. State, 54 Miss. 490, 493 (1877) (providing that “it is essential that either the same words, or words of equivalent meaning, and substantially synonymous, should be used”). This Court has held that “[w]here the language used in the indictment is sufficiently specific to give notice of the act made unlawful, and exclusive enough to prevent[ ] its application to other acts, it is sufficient.” Gilmer, 955 So.2d at 837 (quoting Price, 898 So.2d at 654).

¶ 34. Briggs’s indictment charged him with attempting to induce a witness or a person he believed may be called as a witness to provide him a false alibi by means of coercion and deceit. The witness tampering statute proscribes intentionally or knowingly attempting to induce false testimony from a witness or a person the defendant believes mil be called as a witness. Only if it could be said that the words may and will have equivalent meaning and are substantially synonymous terms could we find that the witness tampering charge was adequately worded. But, as this Court has recognized, the two words have vastly different meanings. A bedrock principle of this Court’s law of statutory interpretation is that the word may is a permissive term, and the word shall is mandatory. Tunica Cty. v. Hampton Co. Nat’l Surety LLC, 27 So.3d 1128, 1134 (Miss. 2009). May is “used to indicate possibility or probability.” May, Webster’s New Collegiate Dictionary (9th ed. 1983). It means “may or may not.” Kipp Flores Architects, L.L.C. v. Mid-Continent Cas. Co., 852 F.3d 405, 410 (5th Cir. 2017). On the other hand, will is “used to express inevitability.” Will, Webster’s New Collegiate Dictionary (9th ed. 1983). The words may and mil are not substantially synonymous words of equivalent meaning, and they cannot be used interchangeably. Like shall, mil is mandatory. Thus, a defendant is guilty of witness tampering if the defendant intentionally or knowingly attempts to induce false testimony from a witness or a person the defendant believes, inevitably, regardless of whether such belief is well founded or even realistic, will be called as a witness by the State or by the defendant. A person cannot be guilty of witness tampering for attempting to induce false testimony from someone he believes may or may not be called as a witness. Therefore, Briggs’s indictment was rendered defective when its drafter chose to employ a word that does not appear in the statute and has a meaning that is different from the operative word that does appear in the statute.

¶ 35. In short, Briggs is accused of trying to dispatch a second person to talk a third person into providing Briggs a false alibi. For that to be a crime under Section 97-9-115, the statute the State selected as the legal vehicle for its prosecution of Briggs, it was necessary that Briggs be proven to have believed that the third person will or would be called as a witness, not that she may or might be called as a witness. Had the indictment tracked the statutory language, the State could have undertaken to adduce circumstantial evidence that Briggs himself intended to call the third person as a witness, thus believing the person will or would be called as a witness. The statute does not specify or require any particular basis or means for the unlawful inducement. But Section 97-9-115 does require the State to prove that, for whatever reason, the accused believed, subjectively, that the target of his attempted inducement will be called as a witness. Although the defendant’s belief may be ill founded, altogether misplaced, or completely wrong, nevertheless, the statute demands that the accused, to be guilty of witness tampering, believe that the person he attempts to induce ultimately will be called as a witness, either by the defendant or by the defendant’s adversary—the State.

¶ 36. The Court of Appeals held that, because Briggs requested that those he contacted provide an alibi to the investigating authorities, he essentially was asking them to be witnesses at his trial and to provide false testimony. The Court of Appeals opined that, under those circumstances, Briggs necessarily believed that these persons would have been called as witnesses at his trial. In essence, the Court of Appeals found that Briggs was attempting to “create” a false trial witness. Therefore, the Court of Appeals held, it made no difference that the indictment erroneously substituted may for mil. With respect to my colleagues in Justice Beam’s majority, who approve this analysis, the Court of Appeals’ reasoning mistakenly ignores the constitutional requirement that an indictment must set forth the essential elements of the crime. The Court of Appeals’ apparent belief that Briggs’s conduct could be construed as being within the actual statutory language is not determinative of the adequacy of the indictment. Because the •witness tampering count of Briggs’s indictment erroneously substituted the word may for the word will—a word that has a different meaning—the indictment failed to afford Briggs the constitutionally required notice of the crime charged. As Count II is written, Briggs was giv’en notice of nothing more than an accusation that does not amount to a crime. The question of whether the State could have adduced sufficient evidence to secure a conviction had the witness tampering count properly set forth the essential elements of the crime is irrelevant to our resolution of the dilemma created by poor draftsmanship.

¶37. Further, I respectfully note that Justice Beam’s majority, citing out-of-state case law, mistakenly bases much of its analysis on attempting to resolve the irrelevant question of whether Section 97-9-115 requires an official proceeding to have commenced prior to the defendant’s attempt to induce false testimony. The statutory language proscribes the attempted inducement of false testimony from a person whom the defendant believes will be called as a witness in an official proceeding. Miss. Code Ann. § 97-9-116(a) (Rev. 2014). Whether the statute is violated or not depends on what the defendant believed at the time of the attempted inducement of false testimony, not on whether an official proceeding actually had commenced. With respect for those comprising Justice Beam’s majority, its analysis obscures the real issue in this case by focusing on whether Section 97-9-115 requires an official proceeding to have commenced at the time of the attempted inducement of false testimony.

¶ 38. Because my analysis rests upon a simple comparison of the language of the indictment to the language of the statute; and, since they are patently at odds with each other, I find no need to comb the annals of American law for other judicial interpretations of similar statutes. I would not hold that the witness tampering statute requires that an official proceeding must have begun at the time of the attempted inducement of false testimony. Rather, my analysis of the case before us is based upon the inescapable fact that the words may and will have different meanings; thus, Briggs’s indictment failed to place him on notice of an essential element of the crime.

¶ 39.1 also observe that the State’s pros-ecutorial endeavor would have been far better served if, in drafting the indictment, it simply had utilized the statutory language, instead of attempting to improve on it. The alternative- verb selected by the State—may—materially.deviated from the meaning of the statute. May suggests a contingency. Will, on the other hand, bespeaks a thing certain—in this case, a particular belief on the part of the accused, even if mistaken. The legislature, the sole entity in our state government possessed of the authority to select statutory language, did not choose the word may when it drafted this statute. Even though the prosecutor—a functionary- in the executive branch -of state government—did choose the word may, reasoning, perhaps, that this substitution would make the charge easier to prove—the charging language of the indictment fell short of charging Briggs with a crime known to Mississippi law. The prosecutor’s innovation upon the statute’s plain language renders the witness tampering count of Briggs’s indictment wholly impotent as a criminal charge.

¶40. Finally, I am compelled to underscore that this Court’s disposition of this ease strongly implicates separation of powers. Section 97-9-115 appears, in all respects, to be a valid statute. This Court cannot expand a statute’s meaning beyond its plain, unambiguous language. Green v. State, 183 So.3d 28, 33 (Miss. 2016). Even if Section 97-9-115 were ambiguous, because it is a penal statute, we would be constrained to construe it strictly against the State. Id. at 34. A prosecutor, as a member of the executive branch, has no authority to expand the statutory definition of a crime by substituting words he or she thinks would be more expedient to securing a conviction. The grand jurors who voted to indict Briggs for witness tampering were not well served by such creativity. Only the legislature is empowered to amend a statute; neither the executive nor the judicial branch of our government may do so. To approve the executive branch’s attempted statutory amendment, as Justice Beam’s majority does, is a reckless plunge into judicial activism in which I respectfully decline to participate.

¶41. Because Briggs’s indictment misstated an essential element of the crime of witness tampering by substituting the word may for the word will, his indictment for the witness tampering count was fatally defective. Therefore, Briggs was deprived of his federal and state constitutional rights to notice of the charge against him. I would affirm his conviction of robbery, reverse and render his conviction for witness tampering, and dismiss the witness tampering count of his indictment.

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

      . Oregon’s witness-tampering statute states:
      A person commits the crime of tampering with a witness if:
      (a) The person knowingly induces or attempts to induce a witness or a person the person believes may be called as a witness in any official proceeding to offer false testimony or unlawfully withhold any testimony; or
      (b) The person knowingly induces or attempts to induce a witness to be absent from any official proceeding to which the person has been legally summoned.
      ORS 162.285(1).

      . Compare with Miss. Code Section 97-9-109 (Rev. 2014), which states:
      A person commits the crime of bribing a witness if he intentionally or knowingly offers, confers or agrees to confer any benefit upon a witness or a person he believes will be catted as a witness in any official proceeding with intent to ... [¡Influence the testimony of that person ....

      . Though not raised, I note that, for double jeopardy purposes, Briggs’s indictment should have identified the person or persons whose false testimony Briggs was charged with having attempted to induce. See Goforth v. State, 70 So.3d 174, 189-90 (Miss. 2011).

      . For example, here the charging language would have been compliant with the statute had it used the word "would” instead of "will.” "Would,” in the context of the statutory language, has substantially the same meaning as "will.”

      . I note that Briggs's indictment charged that he intentionally or knowingly attempted to "induce a witness or a person he believed may be called as a witness against him.” Thus, the State imposed upon itself the obligation of proving something not included in the statute: that Briggs believed the person would be called to testify against him by the State, not by the defense. Lee v. State, 944 So.2d 35, 38-39 (Miss. 2006) (citing Richmond v. State, 751 So.2d 1038, 1046 (Miss. 1999)).

      . Justice Beam’s majority interprets my position to be that “the offense would not be consummated until the putative witness appeared at the official proceeding and gave false testimony.” Maj. Op. at ¶ 22. With respect for Justice Beam’s majority, the distinction between may and will is critical not because it matters whether the person from whom the defendant attempted to induce false testimony eventually is called as a witness, but because there is a meaningful distinction between the defendant’s harboring a belief that someone will be called as a witness and his harboring a belief that someone may be called as a witness. I wholeheartedly agree with the conclusion of Justice Beam's majority that the statute can be violated even if the defendant’s belief that the person will be called as a witness is wrong or misplaced.

      , The statute is violated’when a person intentionally or knowingly attempts to induce someone he believes will be called as a witness in any official proceeding to testify falsely. Miss. Code Ann, § 97-9-115(a). Logically, • one person may believe, subjectively, that another will be called as a witness in an official proceeding even if no such proceeding has been commenced or scheduled.

      . Interestingly, in the recent amendment of the witness tampering statute, the legislature did not alter its use of the operative word will. Neither should we, as it is not within this Court's authority so to:do.


source: Caselaw Access Project

author: DICKINSON, PRESIDING JUSTICE, KITCHENS, JUSTICE, CHAMBERLIN, JUSTICE,

license: Public Domain

text:
    William Scott ASHWELL a/k/a William Ashwell a/k/a William S. Ashwell v. STATE of Mississippi William Scott Ashwell a/k/a William Ashwell a/k/a William S. Ashwell v. State of Mississippi
    NO. 2015-CT-00023-SCT CONSOLIDATED WITH NO. 2015-CT-00626-SCT
    Supreme Court of Mississippi.
    8/24/2017

      TIMOTHY KEVIN BYRNE, ATTORNEY FOR APPELLANT.
    OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD, ATTORNEY FOR APPELLEE.
   DICKINSON, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. William Ashwell pleaded guilty to burglary and escape. He now seeks post-conviction relief. Because the circuit court lacked jurisdiction and authority to accept guilty pleas when Ashwell never had been charged with a crime, we reverse and vacate his convictions.

FACTS AND PROCEDURAL HISTORY

¶2. William Scott Ashwell filed two Waivers of Indictment and Petitions to Enter Plea of Guilty in the Circuit Court of Lawrence County. Although the waivers stated that Ashwell stood charged with burglary and escape, no criminal information had been filed. Ashwell pleaded guilty and the circuit judge entered orders of conviction.

¶ 3. Ashwell later filed a pro se Petition for Writ of Habeas Corpus/Motion to Vacate Conviction and Sentence in the Circuit Court of Lawrence County, claiming the circuit court lacked jurisdiction or authority to accept his guilty pleas because the State never filed' any charging documents.-Ashwell supported his petition with copies of the docket sheet from each cause number, which reflected no indictment or information had been filed. The petition also claimed Ashwell’s waivers were ineffective because they failed to specify the dates of the offenses.

¶ 4. The circuit judge treated the filing as a petition for post-conviction relief, appointed Ashwell counsel, and ordered the State to respond. After the State responded, the circuit judge entered an order denying Ashwell relief from the burglary conviction on the merits, and from his escape conviction because Ashwell attacked both convictions in the same petition, which Mississippi Code Section 99-39-9(2)—a procedural statute—purports to prohibit.

¶ 5. The circuit judge found that, even though no indictment or information charging Ashwell with a crime had been filed, such document must exist because of references to it in the plea colloquy and the prosecutor’s affidavit. Ashwell appealed, and the Court of Appeals affirmed. Ashwell then petitioned this Court for writ of certiorari, which we granted.

ANALYSIS

¶. 6. We first consider whether Section 99-39-9(2) prohibited the circuit judge from considering the merits of Ashwell’s claim concerning his escape conviction. The Mississippi Constitution divides “[t]he powers of the government of the State of Mississippi ... into three distinct departments, ... each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.” “No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others!” “The judicial power of the state shall'be vested in a Supreme Court and such other courts as are provided for in this constitution.”

¶7. In Newell v. State, this Court declared “[t]he inherent power of this Court to promulgate procedural rules emanates from the fundamental constitutional concept of the separation of powers and the vesting of judicial powers in the courts.” “This leaves no room for a division of authority between the. judiciary and the legislature as to the power to promulgate procedural rules necessary to accomplish the judiciary’s constitutional purpose.”

¶ 8. Mississippi Code Section 99-39-9(2) states “[a] mqtion shall be limited to the assertion of a claim for relief against one (1) judgment only. If a petitioner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions.” In Wimley v. Reid, this Coürt 'found that Mississippi Code Section 11-1-58’s requirement that a medical-malpractice. plaintiff attach to his complaint a certificate of consultation with a physician was a procedural rule and therefore unconstitutional. While the Court recognized the legislative prerogative to establish substantive presuit requirements, the Court squarely decided that the Mississippi Constitution empowers this Court, not the Legislature, to establish the rules governing the- content of a pleading in the courts of this State.

¶ 9. Section 99-39-9(2) suffers from the same constitutional flaw. Through that statute, the Legislature mandates that a petition for post-conviction relief attack only one conviction. This would be no different from a statute prohibiting more than one count in a tort lawsuit complaint and mandating that plaintiffs must file separate lawsuits for each count; The Constitution grants the Legislature no power .to limit the number of claims a litigant may plead in a particular pleading. So we find that the circuit judge erred by rejecting Ashwell’s claim pertaining to his escape conviction. And we decline to impose any such rule which, in cases such as the one before us today, unnecessarily would require duplicate filings.

¶ 10. It is well settled that “[a] plea of guilty does not waive (1) the failure of the indictment to charge a criminal offense or, more specifically, to charge an essential element of a criminal offense, and a plea of guilty does not waive (2) subject matter jurisdiction.”

¶ 11. The Court of Appeals affirmed the circuit judge’s reasoning that a criminal information must have existed because it was mentioned in the plea documents, plea colloquy, and a prosecutor’s affidavit. But Ashwell’s claim does not rest on the existence of a document, which purported to be a criminal information, but rather on the fact that the State failed ever to charge him with a crime.

¶ 12. The docket sheet in each criminal case reflects that no criminal information—even .assuming .one existed—ever was filed with .the circuit court. Nor did the criminal files themselves include any charging document, a fact the circuit judge confirmed by personally reviewing each criminal file. The prosecutor who handled Ashwell’s cases. could say only that in “[t]he normal procedure” for a prosecution by criminal information, “the Bill of Information is submitted by the; ¡District Attorney’s Office to the Clerk of Court,” and that “[t]o my knowledge, the normal procedure for a plea by Bill of Information would have occurred in this case.” In disputes over the content of a court record, this Court has held that the docket entries control. So the prosecutor’s statement of “would have occurred” is of no help.

¶ 13. The very nature of a criminal information shows .that one must be filed for the court to proceed. Historically, an information was a charging document in the king’s name “filed -ex officio by his own immediate officer, the attorney general” or “filed by the king’s coroner and attorney in the court of king’s bench.” A prosecution by criminal information followed “when an information is filed.”

¶ 14. Likewise, this Court has recognized that a defendant is charged when the information is filed. “[T]he filing of the criminal information charging him with simple robbery and aggravated assault ... took place on July 31, 1989.” So we must agree with Ashwell’s contention that the circuit court lacks jurisdiction and authority to accept a guilty plea for a crime for which he never has been charged.

CONCLUSION

¶ 15. Because the State never charged Ashwell with a crime, the circuit court lacked jurisdiction and authority to accept Ashwell’s guilty pleas.- So we reverse the decision of the Court of Appeals, reverse the judgment of the circuit court, and vacate Ashwell’s-convictions for burglary and escape.

¶ 16. REVERSED AND VACATED.

KING AND COLEMAN, JJ., CONCUR. KITCHENS, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY KING AND COLEMAN, JJ.; MAXWELL, BEAM AND CHAMBERLIN, JJ., JOIN IN PART. CHAMBERLIN, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P. J., MAXWELL AND BEAM, JJ.; KITCHENS, J, JOINS IN PART. BEAM, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. WALLER, C.J., NOT PARTICIPATING.

KITCHENS, JUSTICE,

CONCURRING:

¶17. I concur with Presiding Justice Dickinson’s decision to vacate Ashwell’s burglary and escape convictions due to the absence of charging documents in the record. The circuit court’s docket reveals no documents charging Ashwell with burglary, escape, or any other crime. By executing written waivers of indictment, Ash-well consented to the State’s proceeding against him by information. Before proceeding, with Ashwell’s prosecution, the State was required to have filed' informa-tions with the circuit court. Without bills of information in the record, there .is nothing to show that Ashwell ever was formally charged with any crime. Therefore, the circuit court never obtained jurisdiction over him on either of the two charges. Further, the trial court’s acceptance of Ashwell’s guilty pleas without bills of information violated Ashwell’s federal and state constitutional rights to notice of the. essential elements of the crimes charged and of sufficiently specific facts to enable him to plead double jeopardy in the event of a future prosecution for the same or a similar offense.

' ¶ 18. This Court is faced with a record completely devoid of a charging document for either of the crimes to which Ashwell pled guilty. The circuit court' dockét reflects that, on December 14, 2006, the day of Ashwell’s guilty pleas, his written waivers of indictment and his consent to the State’s proceeding against him by bill of information were filed in each case. His petitions to enter guilty pleas also were filed on that date. But the docket in each of the cases also reveals that informations never were filed. The fact that no charging documents were filed in the circuit court is highly problematic and leaves this Court with no choice but to vacate Ashwell’s convictions of burglary and escape.

¶ 19. The transcript of Ashwell’s plea hearing reflects that he pled guilty as one of twelve defendants, all of whom were represented, as was Ashwell, by Lawyer Robert E. Evans. The only common thread among this group of twelve seems to be their representation by Lawyer Evans. The trial court accepted the guilty pleas of these twelve defendants en masse in a one-size-fits-all proceeding, for a variety of unrelated offenses. At the beginning of the hearing, the judge asked the defendants whether they had been in the courtroom when he had accepted the guilty pleas of an earlier, unrelated group of defendants. Each person answered affirmatively. Then, the judge asked whether they had been paying attention, and each person answered “yes, sir.” The judge replied “All right. So I won’t need to go into quite the same detail with this group as I did with the other group, so that will make it a little easier on me.” The judge invited the defendants to inquire about any matters on which they needed further clarification. No one responded. Then, the judge went through an abbreviated iteration of the inquiries required by Uniform Rule of Circuit and County Court Practice 8.04 with regard to whether the guilty pleas were voluntarily and intelligently made, whether the defendants were competent and understood the nature and consequences of pleading guilty, the maximum and minimum penalties for the crime of which each was charged, and the rights that were being waived by their guilty pleas. See URCCC 8.04. The trial court also ascertained that the defendants understood the proceedings at a jury trial. Id. Notably, the judge omitted the required determination of a factual basis for the guilty pleas in several of the cases, including both of Ashwell’s. Id.

¶20. As Justice Chamberlin astutely recognizes, the record reflects that no factual basis was stated for Ashwell’s guilty pleas. A factual basis for a guilty plea is required because, before a trial court may accept a guilty plea, “the circuit court [must] have before it, inter alia, substantial evidence that the accused did commit the legally defined offense to which he is offering the plea.” Burrough v. State, 9 So.3d 368, 373 (Miss. 2009). But beyond the absence of a factual basis in the record, without indictments or informations on record, Ashwell cannot plead double jeopardy in the event of a future prosecution for either or both of the same named offenses.

¶ 21. Under the federal and state constitutions, a defendant has due process rights to notice of criminal charges. U.S. Const, amend. VI; Miss. Const, art. 3, § 26. We have held that, to fulfill these rights, “[a]n indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense.” Gilmer v. State, 955 So.2d 829, 836-37 (Miss. 2007). A claim that an indictment was substantively insufficient may be raised at any time. Ross v. State, 954 So.2d 968, 1015 (Miss. 2007).

¶ 22. The waiver of indictment for burglary describes Ashwell’s offense as “burglary of an inhabited dwelling” under Mississippi Code Section 97-17-23. The elements of dwelling burglary include “(1) unlawful breaking and entering, and (2) intent to commit a crime therein.” Jackson v. State, 90 So.3d 597, 604 (Miss. 2012); Miss. Code Ann. § 97-17-23 (Rev. 2014). Because no charging document was filed, we are unable to discern the date of Ashwell’s crime, the victim’s name, the particular residence he was pleading guilty to burglarizing, whether the entry was forcible, or the underlying crime that the State sought to prove he intended to commit therein. With neither a true bill of indictment nor a bill of information, it is impossible to discern the essential facts or the essential elements of the crime charged. Thus, Ashwell lacked any notice of the essential elements and essential facts of the crime to which he pled guilty. All that can be discerned from the record is that Ashwell pled guilty to some burglary. Similarly, Ashwell pled guilty to some escape with no notice of the essential elements or essential facts of the crime.

¶ 23. Ashwell would be unable to plead double jeopardy in the event of a future prosecution for the same or similar offenses. A criminal defendant has a federal and state constitutional right against being twice placed in jeopardy for the same offense. U.S. Const, amend. V, XIV; Miss. Const, art. 3, § 22. When determining whether the State seeks to subject an individual to multiple punishments for the same crime, this Court applies the test from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), which provides that: “if each [criminal] statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prose-eution and punishment under the other.” Thus, for double-jeopardy purposes, an indictment must include the essential elements of the crime charged. An indictment also must include the essential facts of the crime charged to enable a reviewing court to distinguish the facts of the charged crime from other crimes. See Goforth v. State, 70 So.3d 174, 189 (Miss. 2011) (holding that multiple, identically worded counts in an indictment were factually insufficient and did not protect against double jeopardy). Because no bill of information was filed in either of Ashwell’s cases, in the event of a future charge of burglary of a dwelling or escape, no court will be able to discern whether he already has been convicted for the identical offense.

¶ 24. For its first eighty-eight years, the Mississippi Constitution of 1890 required grand jury indictments in all felony prosecutions. Miss. Const, art. 3, § 27 (1890). An indictment was an indispensable constitutional prerequisite to the State’s ability to prosecute felony offenses. Then, a 1978 constitutional amendment provided the State an alternative means of placing a felony charge before a court of competent jurisdiction through securing a represented defendant’s sworn, written waiver of indictment and consent to the State’s proceeding by information. 1997 Miss. Laws ch. 590. Now, Article 3, Section 27 provides;

No person shall, for any indictable offense, be proceeded against criminally by information, except in cases arising in the land or naval forces, or the military when in actual service, or by leave of the court for misdemeanor in office or where a defendant represented by counsel by sworn statement waives indictment; but •the legislature, in cases not punishable by .death or by imprisonment in the penitentiary, may dispense with the inquest of the grand jury, and may authorize prosecutions before justice court judges, or such other inferior court or courts as may be established, and the proceedings in such cases shall be regulated by law.

Miss. Const, art. 3 § 27. The crime of burglary, a felony, is an indictable offense. And Ashwell pled guilty to felony escape, also an indictable offense. Article 3, Section 27, begins by prohibiting the State’s prosecution of such charges by information; but, under the added language of the 1978 amendment, it allows the prosecution of an indictable offense upon an information when there has been a sworn waiver of indictment by a defendant who is represented .by counsel'. Thus, the constitution contemplates two required documents: a sworn waiver of indictment and a bill of information. Without an indictment or. a bill of information, Ashwell never, was charged in circuit court with either crime as authorized by the constitution.

¶ 25. The State argues that, even though criminal informations never were filed in these pases, this Court should deduce from other, evidence that informations in fact existed. This was the approach taken by the circuit court, which limited its review to the burglary conviction, at the post-conviction relief hearing, finding “that a bill of information existed at the time Ash-well entered his guilty plea” even though “the bill of information inexplicably did not get placed in the court file and is not to be found.” The circuit court relied 'on the facts to which Ashwell had sworn in 'his pre-printed petition-to enter a guilty plea that he "fully understood] all matters set forth in the indictment or information and waiver of indictment,” and swore during' the plea colloquy that the facts and charges stated in the information were true, Also, Ashwell’s attorney submitted signed, pre-printed certificates of counsel, attached to the plea petitions, that stated he had “read and fully explained to Defendant the allegations contained in the indictment or information and waiver of indictment in this case.” Further, an assistant district attorney, Douglas E. Miller, submitted an affidavit stating he had been the State’s representative in Ashwell’s cases, and that “the normal procedure for a plea by Bill of Information would have occurred in this case.”

¶ 26. A major problem with the circuit court’s reasoning is that, for a circuit court to obtain jurisdiction over a criminal defendant, the indictment “must be presented to the clerk of the circuit court [and] must be marked ‘filed,’ and such entry be dated and- signed by the clerk.” Miss. Code Ann. § 99-7-9 (Rev. 2015); Wilson v. State, 904 So.2d 987, 996 (Miss. 2004). We have held that the “legal evidence of the concurrence of twelve or more of the grand jurors in finding and presenting the indictment is fully established by the signing thereof on the part of the foreman and the marking of it ‘filed’ by the clerk of the court.” McCormick v. State, 377 So.2d 1070, 1074 (Miss.1979) (quoting Temple v. State, 165 Miss. 798, 805-06, 145 So. 749, 751 (1933)). Because a bill of information provides an alternative to the original constitutional means of charging one with a felony, it follows that a bill of information likewise must be filed in the circuit court- for that court to obtain jurisdiction. Each of these charging mechanisms—the first, an indictment, being non-consensual on the part of the defendant and the second, an information, being consensual on the part of the defendant—is a constitutional means of getting the State into the same legal position: that of having a validly charged defendant before a court of competent jurisdiction. Both of these means require a charging document—either an indictment or an information— timely filed and docketed by the court’s clerk.

¶ 27, Another problem with the omission of a bill of information is that our state constitution mandates that “all prosecutions shall be carried on in the name and by the authority of the ‘State of Mississippi.’” Miss. Const, art. 6 § 169. The charging document in a criminal case establishes that the prosecution is brought in the name of the State, an indispensable prerequisite that is conspicuously absent in this case. No evidence is present in the trial record to show that the prosecution of Ashwell was brought in the name of the State. During the plea colloquy, the assistant district attorney made no proffer of the factual bases for Ashwell’s guilty pleas. In fact, it is not evident from the transcript of the plea colloquy that the State participated in Ashwell’s prosecution at all. No remarks regarding Ashwell’s cases were attributed to a state prosecutor, and neither the trial court nor the defense attorney mentioned the State or its representative in connection with Ashwell.

¶28, Ins sum, the trial court-accepted Ashwell’s guilty pleas along with those of eleven other defendants in an impersonal group exercise. Although Ashwell’s written waivers of indictment did meet constitutional requirements, neither was followed by the essential bill of information as required by the constitution. And the absence qf charging documents is reversible error because Ashwell could not plead double jeopardy in the event of future prosecution for the same or similar offenses. Moreover, Ashwell lacked notice because the essential facts and the essential elements of the charges were missing, and the record contains no factual basis for Ashwell’s guilty pleas. In the absence of charging documents, Ashwell’s state and federal due process rights were violated, and the circuit court lacked jurisdiction to accept Ashwell’s guilty- pleas. Therefore, Presiding Justice Dickinson correctly vacates Ashwell’s convictions of burglary and escape.

KING AND COLEMAN, JJ., JOIN THIS OPINION. MAXWELL, BEAM AND CHAMBERLIN, JJ., JOIN THIS OPINION IN PART. -

CHAMBERLIN, JUSTICE,

CONCURRING IN RESULT ONLY:

¶ 29. While I concur with the Presiding Justice Dickinson that William Ashwell’s convictions must be vacated, I do so on separate grounds. I am-not prepared, nor do I believe it necessary, to state that the failure to file the charging instrument, without more, deprives the trial court of jurisdiction. This issue should be decided on a case-by-case basis under the facts of that particular case after a review of the record as a whole.

¶ 30. The problem in this case is not that the charging instrument wasn’t filed. There is sufficient proof in the record that a charging instrument—the bill of information—existed in this ease. The problem is that there is absolutely no evidence as to what was contained in the charging instrument. While the failure to file the charging instrument may not be .fatal in all cases, the failure to present any evidence as to the contents of the instrument certainly is in this case.

¶ 31. The failure to prove the contents of the charging instrument means, in Ash-well’s case, there is no factual basis for his plea. It is not contained in an indictment, a bill of information, transcript or elsewhere in the record. Ashwell’s waiver acknowledges that the charges are for burglary and escape with quoted code sections. This information, ostensibly, advises Ashwell of the elements of the crimes to which he is pleading guilty but not the facts constituting the crime committed.

¶ 32. Rule 8.04 of the Uniform Rules of Circuit and County Court Practice states, in part, as follows:

3. 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.

URCCC 8.04(A)(3).

¶ 33. A defendant may establish a factual basis for his guilty plea simply by pleading guilty; however, his plea “must contain factual statements constituting a crime or be accompanied by independent evidence of guilt.” Hannah v. State, 943 So.2d 20, 26-27 (Miss. 2006) (emphasis added). In other words, “a factual basis is not established by the mere fact that a defendant enters a plea of guilty.” Id. at 27. Rather, the record must contain those facts which are “sufficiently specific to allow the court to determine that the defendant’s conduct was within the ambit of that defined as criminal.” Lott v. State, 597 So.2d 627, 628 (Miss. 1992) (quoting United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir. 1984)). We are not limited to a review of a defendant’s plea transcript when determining if a factual basis existed for his guilty plea, but we may review the record as a whole for evidence of such. See Boddie v. State, 875 So.2d 180, 183 (Miss. 2004); Aucoin v. State, 17 So.3d 142, 146-47 (Miss. Ct. App. 2009).

¶ 34. Furthermore, the requirement of a factual basis for a defendant’s plea is not a mere formality of the plea process, but it is required as part of a “constitutionally valid and enforceable decision to plead guilty.” Carter v. State, 775 So.2d 91, 98 (Miss. 1999) (quoting Lott, 597 So.2d at 628). The trial judge and any reviewing court must be able to ascertain from the record sufficiently specific facts that demonstrate that the defendant’s conduct was criminal. See Lott, 597 So.2d at 628. Simple knowledge of the elements of the crime is not sufficient. Carreiro v. State, 5 So.3d 1170, 1173-75 (Miss. Ct. App. 2009).

¶35. A factual basis for a guilty plea may be established in a number of ways, including a statement of the prosecutor, testimony of live witnesses, prior factual proceedings, as well as actual admissions by the defendant; it is not necessary that factual basis be established with words spoken from the defendant’s own mouth. Corley v. State, 585 So.2d 765, 766-68 (Miss. 1991). The Court has noted that “[a] factual showing does not fail merely because it does not flesh out the details which might be brought forth at trial. Rules of evidence may be relaxed at plea hearings. Fair inference favorable to guilt may facilitate the finding.” Id. at 767. Even the reading of a sufficiently specific indictment has been deemed acceptable. Timmons v. State, 176 So.3d 168, 172 (Miss. App. Ct. 2015) (quoting Drake v. State, 823 So.2d 593, 594 (Miss. Ct. App. 2002)). We look at the record as a whole. Id.

¶ 36. Therein lies the problem. The record as a whole does not answer our questions. Nothing in the record touches on the facts of this case, and we do not know the contents of the charging instrument to determine if it is sufficiently specific to establish a factual basis. We do not know the dates of the crimes, the victims of the burglary, the facility from which Ashwell escaped, the manner employed in the crimes, etc. It is regrettable that the facts of this case played out in the manner in which they did. It is certainly not the fault of the trial, judge who very well may have had the instrument before him at the time of the plea. However, the facts of this case, when considering the record as a whole, require vacation of Ashwell’s convictions. For these reasons, I concur in result only.

RANDOLPH, P.J., MAXWELL AND BEAM, JJ., JOIN THIS OPINION.' KITCHENS, J., JOINS THIS OPINION IN PART.

      . Ashwell v. State, 225 So.3d 1258, 1261-63, 2016 WL 3154003, **2-4 (Miss. Ct. App. June 7, 2016).

      . Miss. Const. art. 1, § 1.

      . Miss. Const. art. 1, § 2.

      . Miss. Const. art. 6, § 144.

      . Newell v. State, 308 So.2d 71, 76 (Miss. 1975) (citing Matthews v. State, 288 So.2d 714 (Miss. 1974); Gulf Coast Drilling & Expl. Co. v. Permenter, 214 So.2d 601 (Miss. 1968); S. Pac. Lumber Co. v. Reynolds, 206 So.2d 334 (Miss. 1968)).

      . Newell, 308 So.2d at 77.

      . Miss. Code Ann. § 99-39-9(2) (Rev. 2015).

      . Wimley v. Reid, 991 So.2d 135, 138 (Miss. 2008).

      . Id. at 138-39.

      . Conerly v. State, 607 So.2d 1153, 1156 (Miss. 1992) (citing Jefferson v. State, 556 So.2d 1016, 1019 (Miss. 1989)).

      . Emphasis added.

        . Bank of Richton v. Jones, 153 Miss. 796, 121 So. 823, 824 (1929); see also Duncan v. Gerdine, 59 Miss. 550, 553 (1882) ("Where the law requires an entry or memorandum of a particular transaction to be made in a court of justice, the official entry or memorandum excludes all independent evidence of the same.”).

      . William C. Sprague, Blackstone’s Commentaries 510 (9th ed. 1915) (emphasis added).

      . Id. at 510-11.

      . Conerly, 607 So.2d at 1156.

      . id.

      , The two waivers were assigned separate circuit court cause numbers,

      . Section 97-17-23 does not include an element requiring the dwelling to have been inhabited at the time of the breaking and entering. Miss. Code Ann. § 97-17-23 (Rev. 2014). But if Ashwell had been charged formally with "burglary of an inhabited dwelling,” the State would have been required to prove that a human being was inside the dwelling at the time of the breaking and entering.

      . Assistant District Attorney Miller did provide a factual basis for another of the twelve defendants charged with a crime at the plea hearing.


author: WALLER, .Chief'Justice, COLEMAN, Justice,

text:
    THE MISSISSIPPI BAR v. Robert Bryan OGLETREE.
    No. 2013-BA-01276-SCT.
    Supreme Court of Mississippi.
    March 5, 2015.

      Melissa Selman Martin, Adam Bradley Kilgore and James Russell Clark, Jackson, attorneys for appellant.
    Robert Bryan Ogletree, Brandon, pro se.
    Christopher A. Tabb, Brandon, attorneys for appellee.
   WALLER, .Chief'Justice,

for the Court:

¶ 1. After finding that attorney Brian Ogletree had violated Rule 1.15(a) and Rule 8.4(a) and (d) of the Mississippi Rules of Professional Conduct, a Complaint Tribunal suspended Ogletree from the practice of law for six months. The Mississippi Bar appeals from this ruling, arguing that a harsher penalty should be imposed. Finding the Complaint Tribunal’s disciplinary action to be sufficient, we affirm Ogle-tree’s six-month suspension.

FACTS & PROCEDURAL HISTORY

¶ 2. Robert Ogletree was admitted to the Mississippi Bar in 1996, and he was an active member in good standing prior to the instant matter. He has not had any previous disciplinary actions.

¶3. The parties submitted a stipulation of facts to the Complaint Tribunal, so the following facts are not in dispute. In January 2011, John Buckley hired Ogletree to represent him in a child-support modification matter. Ogletree requested a $1,000 retainer, from which he would charge $250 per hour. Buckley gave Ogletree a check for $400 as partial payment of the retainer. While Ogletree maintained three trust accounts at the time, he did not deposit Buckley’s $400 check into any of them. Rather, the check was deposited into Ogle-tree’s general operating account. Ogletree subsequently terminated his representation of Buckley. Ogletree wrote Buckley a check for $400 from one of his trust accounts to refund Buckley’s partial payment of the retainer. The check was returned for insufficient funds. Ogletree then delivered $440 in cash tó Buckley. -

¶ 4. Buckley’s new wife then submitted an informal complaint to the Mississippi Bar, claiming that Ogletree had violated the Mississippi Rules of Professional Conduct in the representation of her husband. The Mississippi Bar’s Committee on Professional Responsibility reviewed the matter and requested additional information from Ogletree—specifically, all records pertaining to any lawyer trust accounts Ogletree had' maintained in the previous three years. Ogletree submitted bank statements from three trust accounts, but he did not have ledgers, records of deposits, or records of'the amounts owed to specific clients. Ogletree’s bank records revealed a pattern of misconduct regarding his trust accounts. After an investigatory hearing, the Committee recommended that the Bar file a Formal Complaint against Ogletree.

¶ 5. The Formal Complaint alleged that Ogletree had failed to safekeep client funds, that he had commingled personal and business funds with client and third-party funds, that he had written checks for personal and business expenses from his trust accounts, and that his trust accounts were overdrawn several times and several checks were returned for insufficient funds. The Formal Complaint asserted that Ogletree had violated Rule 1.15(a) and Rule 8.4(a) and (d) of the Mississippi Rules of Professional Conduct. In response to the Formal Complaint, Ogletree admitted that he had paid personal expenses out of his trust accounts, that the trust accounts •had been overdrawn, and that checks had been returned for insufficient funds. However, he claimed that the errors were inadvertent mistakes and the result of miscalculations; he denied commingling or intentional misappropriation of client funds.

¶ 6. In response to the Bar’s request for production of documents, Ogletree produced various bank statements, deposit slips, and check stubs for his three trust accounts for the years 2005 through 2011. Between 2009 and 2011, Ogletree’s trust accounts were overdrawn and/or cheeks were returned for insufficient funds on fourteen occasions. During the same period; Ogletree paid business or personal expenses out of the trust accounts five times, including payments to Dish Network, AT & T, Honda, Wells Fargo Mortgage, and Ogletree’s landlord.

¶ 7. The Complaint Tribunal held a hearing; and Ogletree testified on his own behalf. ■ Ogletree testified that, in 2002, his wife learned that she had a -brain tumor and underwent surgery. A'year and a half later, his wife began having grand mal seizures, and she had to be induced into a coma to stop the seizures. She is now on medication to keep the seizures under control. Since his wife became ill, Ogletree has had trouble sleeping and has suffered from depression and anxiety—conditions for which he takes medication.

¶ 8. Regarding the trust accounts, Ogle-tree testified that he looked at the accounts online every morning and if “something was wrong” he would “try to fix it or move the money to where it was supposed to be.” He admitted that Mississippi Valley Title Company had advised him previously that his record keeping was insufficient. He said he did not intentionally pay his bills out of the trust accounts. He explained that he carried a Voided check from each account in his wallet, so he would have the routing and account numbers and could .pay bills from the road. He admitted that the trust account checks each had “Ogletree Law Firm Trust Account” printed on them and that he should have seen that the check was from a trust account when he was giving the account number over the phone. Ogletree noted that some of the money in his trust accounts represented fees he had earned and simply had failed to transfer to his operating account. Nevertheless, he recognized that he should have paid his business and personal expenses out of his operating account. He testified that he had just made a .mistake and that he should have paid more attention. Ogletree claimed that none of his clients had lost money in spite of his errors.

' ¶ 9. The Complaint Tribunal held that Ogletree had violated Rules 1.15(a) and 8.4(a) and (d) of the Mississippi Rules of Professional Conduct, The Tribunal suspended Ogletree from the practice of law for six months and referred him to the Lawyers and Judges Assistance Program. The Bar filed a motion to reconsider, which was denied. The Bar then appealed to this Court, arguing that Ogletree should have been disbarred or suspended for a minimum of three years. Ogletree initially did not file a brief, and the Court issued a Show Cause Order requiring him to respond to the Bar’s brief. Ogletree responded that his failure to file a brief was not done out of willful disregard; rather, he simply surrendered to the will of the Court. He explained that his financial, physical, and mental resources had been depleted, and his attorney had withdrawn because Ogletree could not pay him. Ogletree wrote that he did not have the resources to fight the Bar, and he believed that the Court would uphold the Complaint Tribunal’s ruling.

STANDARD OF REVIEW

¶ 10. The Supreme Court has exclusive jurisdiction over attorney discipline matters, which we review de novo. Miss. Bar v. Shelton, 855 So.2d 444, 445 (Miss.2003). See also Miss. R. Disc. 1(a). While “no substantial evidence or manifest error rule shields the [Complaint] Tribunal from scrutiny,” this Court may grant deference to the findings of the Tribunal “due to its exclusive opportunity to observe the demeanor and attitude of the witnesses, including the attorney, which is vital in weighing evidence.” Foote v. Miss. Bar Ass’n 517 So.2d 561, 564 (Miss.1987); Parrish v. Miss. Bar, 691 So.2d 904, 906 (Miss.1996). “The burden is usually on the Mississippi Bar to show by clear and convincing evidence that an attorney’s actions constitute professional misconduct.” Shelton, 855 So.2d at 445 (quoting Miss. Bar v. Pels, 708 So.2d 1372, 1374 (Miss.1998)).

DISCUSSION

¶ 11. The Complaint Tribunal suspended Ogletree from the practice of law for six months after finding that he had violated Rules 1.15(a) and 8.4(a) and (d) of the Mississippi Rules of Professional Conduct. Rule 1.15 requires lawyers to maintain separate accounts and complete records for the property of clients and third parties:

A lawyer shall hold clients’ and third persons’ property separate from the lawyer’s own property. Funds shall be kept in a separate trust account maintained in the state where the lawyer’s office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such trust account funds and other property shall be kept and preserved by the lawyer for a period of seven years after termination of the representation.

Miss. R. Profl Cond. 1.15(a). Rule 8.4 defines attorney misconduct, in pertinent part, as follows: “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another; ... (d) engage in conduct that is prejudicial to the administration of justice.” Miss. R. Profl Cond. 8.4(a), (d). The Complaint Tribunal found that Ogletree had violated the rules by commingling client funds with his own, failing to keep safe client property, misusing client funds, and failing to keep adequate records. Ogletree does not dispute the Complaint Tribunal’s findings. The only issue is whether the Complaint Tribunal imposed sufficient punishment.

¶ 12. The Bar asserts that the seriousness of Ogletree’s violations warrants a harsher punishment. Based on the Court’s prior holdings, the Bar argues that disbarment or, at a minimum, a three-year suspension is the appropriate sanction for an attorney who misappropriates client funds and commingles client funds with his own. The Bar is correct that disbarment or a three-year suspension are the most common punishments for commingling client funds. However, “the Court must decide each disciplinary ease on its own unique merits.” Pels, 708 So.2d at 1374 (quoting Fougerousse v. Miss. State Bar Ass'n 563 So.2d 1363, 1366 (Miss.1990)). The Court considers nine factors to determine the appropriate sanction:

(1) The nature of the misconduct involved; (2) the need to deter similar misconduct; (3) the preservation of dignity and reputation of the legal profession; (4) the protection of the public; (5) sanctions imposed in similar cases; (6) the duty violated; (7) the lawyer’s mental state; (8) the actual or potential injury resulting from the misconduct; and (9) the existence of aggravating or mitigating factors.

McIntyre v. Miss. Bar, 38 So.3d 617, 625 (Miss.2010) (quoting Liebling v. Miss. Bar, 929 So.2d 911, 918 (Miss.2006)). We have consolidated and reorganized the Liebling factors for the purpose of discussion.

The nature of the misconduct involved and the duty violated

¶ 13. The Complaint Tribunal found that the nature of Ogletree’s misconduct and the duty violated involved Ogle-tree’s “ethical duty of loyalty to clients.” Specifically, Ogletree’s misconduct included failing to keep safe client funds, commingling client funds with personal funds, paying personal and business expenses out of his trust accounts, and failing to keep adequate records of trust accounts. This Court has held that commingling client funds is the “cardinal sin of the legal profession.” Miss. Bar v. Coleman, 849 So.2d 867, 874 (Miss.2002). The Coleman Court recognized that commingling had been grounds for disbarment in many cases and found that it is “the ultimate breach of fiduciary trust.” Id. “There can be no more damaging evidence ... as to a lawyer’s fitness to practice law than mishandling a trust account.” Reid v. Miss. Bar, 586 So.2d 786, 788 (Miss.1991).

The need to deter similar misconduct, protect the public, and preserve the dignity and reputation of the legal profession

¶ 14. This Court has held that “[t]he purpose of discipline is not simply to punish the guilty attorney, but to protect the public, the administration of justice, to maintain appropriate professional standards, and to deter similar misconduct.” McIntyre, 38 So.3d at 625 (quoting Miss. State Bar Ass’n v. A Miss. Attorney, 489 So.2d 1081, 1084 (Miss.1986)). “Consistent patterns of commingling and misappropriation ... generally are deserving of harsh sanctions, which serve to protect the public from greater harm.” McIntyre, 38 So.3d at 625-26. The Court has said that preserving the dignity of the bar is one of the most important factors. “Worthy of most consideration when contemplating sanctions is vindicating ‘in the eyes of the public the overall reputation of the bar.’ ” Miss. Bar v. Walls, 797 So.2d 217, 219 (Miss.2001) (quoting Hall v. Miss. Bar, 631 So.2d 120, 125 (Miss.1993)). As quoted above, commingling and misappropriation damage the “dignity and reputation of the legal profession.” McIntyre, 38 So.3d at 625.

The actual or potential injury resulting from the misconduct

¶ 15. Ogletree testified that none of his clients had lost money due to his conduct. When the check to Buckley bounced, Ogle-tree paid Buckley in cash and gave him an additional $40 to cover any bank charges. However, this Court has held that restitution of funds does not mitigate the offense. Cotton v. Miss. Bar, 809 So.2d 582, 587, 589 (Miss.2000). In McIntyre, although the attorney replaced the funds after a short time and none of his clients actually lost money, this Court held that a client’s loss of use of the funds for even a short time gives “rise to an actual injury,” and “the potential for the clients’ total loss of use of the funds- made the potential injury great.” McIntyre, 38 So.3d at 627. Thus, although Ogletree’s clients did not lose money, actual injury still occurred, and the potential for injury certainly existed, as Ogletree’s accounts frequently were overdrawn.

The lawyer’s mental state

T16. The Complaint Tribunal held that “Ogletree did not have to intend to steal from his clients and/or third parties for his conduct to warrant discipline.” The Tribunal found that Ogletree was aware that he had mixed personal and client funds,-that his account records did not identify the ownership of the funds in his trust accounts, that each time he paid personal or business funds out of his trust account, he risked misappropriating client funds, and that overdrawing his accounts left balances below the amount with which he was entrusted. The Bar argues that, because Ogletree was aware of the consequences of commingling and failing to keep adequate records, he knowingly converted client funds.

¶ 17. Another element of Ogletree’s mental state is. depression., He testified that his wife had been ill, resulting in his own depression, anxiety, and loss of sleep. Ogletree’s response to the Court’s Show Cause Order is further evidence of Ogle-tree’s deteriorated mental state, as he wrote that his “mental and physical resources” had been depleted and that he surrendered to the will of the Court. However, we note that Ogletree testified that his wife was ill from 2002 to 2007,- and Ogletree’s misconduct occurred between 2009 and 2011. Some of the bank statements Ogletree produced' dated back to 2005, and, while it seems that he has never maintained adequate records, there is no indication that he overdrew his accounts or paid personal expenses out of his trust accounts before 2009.

The existence of aggravating or mitigating factors

¶ 18. Ogletree’s mental status and life circumstances are mitigating factors. Other mitigating factors include that Ogletree has not had any'prior disciplinary violations, he has cooperated with the Bar, and he did not lie to disciplinary authorities. An aggravating factor is that Mississippi Valley Title had warned Ogletree that his record keeping was inadequate, yet he failed to remedy the problem. Further, while this case arises from a single complaint, the evidence presented to the Complaint Tribunal indicated that his misconduct went on for at least three years.

Sanctions imposed in similar cases

¶ 19. “There is no consistent pattern in the sanctions imposed” in commingling cases; this Court’s determination of the appropriate disciplinary action has depended on the circumstances of each ease. McIntyre, 38 So.3d at 625-26. Egregious conduct involving “dishonesty, misrepresentation to his client, lying to the disciplinary authorities, or systematic diversion of his client’s funds for personal purposes” is usually present where the Court has disbarred an attorney for misappropriating client funds. Pels, 708 So.2d at 1375. See McIntyre, 38 So.3d at 626 (attorney disbarred for commingling and misappropriating client funds over a four-year period, where attorney previously had been disciplined by the Bar for similar misconduct); Haimes v. Miss. Bar, 601 So.2d 851, 855 (Miss.1992) (attorney disbarred for withdrawing funds from a guardianship account without court approval and converting the funds to his personal use, where the attorney previously had been disciplined by the Bar for similar misconduct); Clark v. Miss. Bar Ass’n, 471 So.2d 352 (Miss.1985) (attorney disbarred for misappropriating conservatorship funds and misrepresenting his-actions to his client and the'trial court).

¶20. We do not find that Ogletree’s misconduct rises to a level of egregiousness sufficient to warrant disbarment. In the disbarment cases, the attorneys’ conduct was intentional, "the attorneys were dishonest with clients, clients actually lost money, and/or the attorneys had been disciplined previously for the same type of conduct—factors not present in Ogletree’s case. Ogletree’s conduct was certainly careless and possibly negligent, but he did not seem to have an intent to steal. Ogle-tree has no prior disciplinary history, nor did he lie to his clients or to disciplinary authorities. Thus, we must determine whether the Complaint Tribunal’s recommendation of a six-month suspension is a sufficient sanction, or whether harsher action must be taken.

¶ 21. The Bar contends that, where disbarment is not warranted, a three-year suspension is the most appropriate sanction in commingling cases. For example, in both Miss. Bar v. Sweeney, 849 So.2d 884 (Miss.2003), and Miss. Bar v. Odom, 566 So.2d 712 (Miss.1990), the attorneys received three-year suspensions for misappropriating funds in the larger context of mishandling their clients’ estate cases. In Sweeney, the attorney failed to respond to requests for an inventory and accounting of the estate, converted estate funds to personal use over a-three-year period, and allowed estate assets to be sold without court approval. Sweeney, 849 So.2d at 885-86. The Complaint Tribunal entered a default judgment against her after she wholly failed to appear or respond to the Bar’s allegations. Id. at 887. In Odom, the attorney failed to open a separate bank account for the estate, deposited estate proceeds into a bank account he used for his personal and business expenses, overdrew that account, failed to close the estate in a timely manner, “gouged his clients” with an unreasonable fee, and asked his clients, under false pretenses, to “hold” their checks, knowing that he did not have enough money in his account to honor them. Id. at 713-14. Due to the extent of Odom’s failures, his clients found it necessary to hire another attorney to straighten out- their estate. Id. at 716.

¶ 22. The attorney in Mississippi Bar v. Coleman, 849 So.2d 867 (Miss.2002), also received a three-year suspension for converting client funds to his personal use. The attorney in Coleman endorsed a $14,900 check to his client, and deposited it into his personal bank account. Id. at 869-70. Thereafter,, the attorney and his wife wrote seventy-two checks from the account before he finally delivered the funds to his client five weeks later. Id. at 870. This Court found, contrary to the Complaint Tribunal’s assessment, that Coleman’s conduct demonstrated an intent to misappropriate or convert client funds for his own use, and only returned the money upon inquiry. Id. at 875.

¶23. In some cases, this Court has been more lenient with attorneys who commingled or misappropriated client funds. Several of these cases have involved the imposition of reciprocal discipline. See Miss. Bar v. Gardner, 730 So.2d 546 (Miss. 1998) (one-year suspension for misappropriating client funds in Louisiana); Miss. Bar v. Pels, 708 So.2d 1372 (Miss.1998) (thirty-day suspension for commingling client funds in Washington D.C.). Additionally, lesser sanctions often are imposed when the attorney’s misconduct was the result of carelessness or negligence, rather than ill intent. For example, in Catledge v. Mississippi Bar, 913 So.2d 179 (Miss.2005), the attorney deposited client settlement funds into his payroll account rather than a trust account. Catledge was not using his trust account at the time due to alleged problems with his bank, and he admitted that his bookkeeper did not know he was using his payroll account as a temporary trust account. Id. at 181. Cat-ledge’s payroll account then fell below the amount needed to pay his client on several occasions. Id. Catledge eventually was able to repay his client, but she filed a complaint against him concerning his mishandling of the settlement funds. Id. at 182. The Complaint Tribunal concluded that Catledge should be suspended for one year, and both Catledge and the Bar appealed. Id. This Court recognized that Catledge had taken steps to safeguard against future problems with his accounts. Id. at 185. On the other hand, this Court noted that Catledge had “the third worst record in the history of the Mississippi Bar,” with twelve prior adjudications of misconduct. Id. at 186. Ultimately, this Court found that “Catledge’s conduct was not intentional, but was the result of negligence and lack of attention to his law firm’s business and his client.” Id. at 190. Looking at the totality of the circumstances, this Court held that a ninety-day suspension was a sufficient sanction. Id. at 192.

Appropriate discipline

¶ 24. This case presents this Court with a level of misconduct somewhere between that of Catledge and Coleman. The Complaint Tribunal found Ogletree’s conduct to be more analogous to Catledge, although more extensive in scope. We agree. As in Catledge, Ogletree’s act of depositing a retainer check into his operating account, rather than his trust account, is a per se violation of Rule 1.15(a) and Rule 8.4. But, additionally, the evidence presented here reveals that Ogletree commingled his own funds with client funds in his trust account for a prolonged period of time. He testified that he never intentionally paid his own expenses out of his trust account, but he admitted to mistakenly mixing up his bank account numbers from time to time when paying bills on the road. He also admitted that he sometimes kept money he had earned in his trust account, rather than transferring it to his operating account. These acts, while more concerning than those in Catledge, appear to be largely the result of negligence and inattentiveness and do not rise to the level of ill intent detailed in Sweeney, Coleman, or Odom. In contrast to the instant case, the clients in Odom and Sweeney had to resort to litigation to recover the funds their attorneys had misappropriated.

¶25. Additionally, unlike the attorney in Coleman, Ogletree’s mental state and life circumstances were recognized by both the Bar and the Complaint Tribunal as mitigating factors that at least implicitly caused Ogletree’s lapses in judgment. And unlike many of the cases in which this Court has found a three-year suspension to be warranted, Ogletree has not had any prior disciplinary violations. Ogletree’s conduct was certainly careless and possibly negligent, but a complete view of the record indicates that he did not have an intent to steal. Ogletree did not lie to his clients or to disciplinary authorities. He has had life situations that presented challenges, apparently resulting in inattention to his work.

¶26. After considering the totality of the circumstances, including any mitigating and aggravating circumstances presented to the Complaint Tribunal, we hold that a six-month suspension is an appropriate sanction to punish Ogletree for his misconduct. Ogletree also must comply with all provisions of the Complaint Tribunal’s judgment before applying for reinstatement. These additional requirements satisfy this Court’s concern that the public be protected from similar violations in the future.

CONCLUSION

¶ 27. For the foregoing reasons, we affirm the Complaint Tribunal’s judgment suspending Robert Bryan Ogletree from the practice of law for six months.

¶ 28. ROBERT BRYAN OGLETREE SHALL BE SUSPENDED FROM THE PRACTICE OF LAW IN THE STATE OF MISSISSIPPI FOR A PERIOD OF SIX (6) MONTHS AND MUST COMPLY WITH ALL PROVISIONS OF THE COMPLAINT TRIBUNAL’S JUDGMENT PRIOR TO REINSTATEMENT.

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

COLEMAN, Justice,

dissenting:

¶ 29. .In my opinion, the Court’s precedent mandates harsher punishment than that imposed by the majority; therefore, I respectfully dissent. I agree with the majority’s analysis of the Liebling factors, with one exception—“sanctions imposed in similar cases.” Liebling v. Miss. Bar, 929 So.2d 911, 918 (¶ 23) (Miss.2006). In my opinion, a' three-year- suspension is warranted in the instant case.

¶30. The Court has recognized that, while not always consistent, the trend has been “toward harsher sanctions' when a lawyer has committed the ‘cardinal sin’ of law practice and 'misappropriated money belonging to his client.” McIntyre v. Miss. Bar, 38 So.3d 617, 626 (¶ 30) (Miss. 2010). While the- Court has imposed lesser sanctions depending- on other factors at issue, disbarment or a minimum of a three-year suspension áre the most common punishments. Catledge v. Miss. Bar, 913 So.2d 179, 185 (¶ 23) (Miss.2005) (recognizing that a three-year suspension or disbarment is usually imposed, but lesser penalties are warranted in some cases); Cotton v. Miss. Bar, 809 So.2d 582, 589 (¶22) (Miss.2000) (recognizing that the Court has imposed either a three-year suspension or disbarment when an attorney has misused client funds).

¶ 31. The misconduct in McIntyre was similar to the instant case—the balance in McIntyre’s trust account “was less than the amount entrusted to him on- several occasions,” he had overdrawn the account, he had written personal and business checks out of the trust account, and he had misappropriated clients’ funds. McIntyre, 38 So.3d at 622 (¶ 12). Although McIntyre claimed that he had returned all of the money to the trust account, the Court held that for a' client to lose use of his funds, for even a short time gives “rise to actual injury,” and “the potential for the clients’ total loss of use of the funds made the potential injury great.” Id. at 627 (¶ 31). The Bar had reprimanded McIntyre on five separate occasions and once suspended him for one year, which was evidence of a pattern of misconduct. Id. at 624, 627 (¶¶ 22, 33-34). The Court affirmed McIntyre’s disbarment. Id. at 628 (¶ 40).

¶ 32. The attorney in Cotton v. Mississippi Bar was disbarred after mishandling and misappropriating a client’s settlement proceeds. Cotton, 809 So.2d at 583 (¶ 1). The Bar instituted a formal complaint against Cotton, but he did not respond or appear to defend himself. Id. at 583 (¶ 2). The Court’s reasoning and assessment of the mitigating and aggravating factors in Cotton is instructive:

... The fact that Cotton had not previously been disciplined by the Bar is not an especially strong mitigating factor and that he eventually made restitution to all parties involved is not a mitigating factor at all. Additionally, the fact that he made no attempt to mislead the Bar ■ or this Court, and that he candidly admitted his errors, is also not a mitigating factor in his favor. Therefore, no significant mitigating factors weigh, in Cotton’s favor.
.,. Cotton’s fitness to practice law became questionable once he converted his client’s funds for his own use. That he made no attempt to defend himself once the Bar filed a formal complaint raises additional concerns regarding his fitness to practice law. If he does not tend , to his own legal matters, will he tend to the legal matters of his clients? In the case of Evans, he did not. Therefore, disbarment is the sanction'which would most appropriately punish Cotton,, deter at-tomeys from acting in the same manner in the future, and restore public confidence in the Bar.... .

Id. at 589 (¶¶ 22-23). Cotton was disbarred. Id.

¶ 33. The attorney in Reid v. Mississippi Bar also was disbarred for misappropriating client funds. Reid v. Miss. Bar, 586 So.2d 786, 788. (Miss.1991). As mitigating factors,. Reid asserted that he had admitted wrongdoing and expressed remorse and that he had not had any prior complaints. Id. The Court wrote: “These are valid mitigating factors which should be considered by a tribunal as well as this Court, and in a less serious offense could well tip the scales in favor of the accused attorney. There can be no more damaging evidence, however, as to a lawyer’s fitness to practice law than mishandling a trust account.” Id.

¶ 34. The issue in Mississippi State Bar v. Odom, arose from the attorney’s mishandling of proceeds from a real estate transaction. Miss. State Bar v. Odom, 566 So.2d 712, 713 (Miss.1990). Odom paid personal and business expenses with his clients’ money and wrote bad checks to the clients. Id. at 713-14. A Bar complaint followed, and Odom claimed “that he was not consciously aware of writing checks against funds of any client or deliberately taking money from a client” and that “none of his clients had ever lost any money as a result of the manner in which he handled his bank account.” Id. On appeal, the Court held that commingling of client funds is evidence of an attorney’s “unfitness to be a practicing lawyer” and that it is an egregious. act that should. not be tolerated. Id. at 716. The Court held that the Complaint Tribunal had been too lenient in suspending for only three months; the Court suspended Odom from the practice of law for three years. Id.

¶ 35. As illustrated here, disbarment or a three-year suspension are the most common sanctions for misappropriation of client funds. In the cases where the Court ordered less than a three-year suspension, other circumstances warranted the lesser sanction. See, e.g., Catledge, 913 So.2d 179 (attorney’s conduct was not intentional, and errors by the bank worsened the problem); Miss. Bar v. Pels, 708 So.2d 1372 (Miss.1998) (reciprocal-discipline matter in which the attorney already had been disbarred in the jurisdiction where the misconduct occurred); Miss. Bar v. Gardner, 730 So.2d 546 (Miss.1998) (attorney suspended for one year in reciprocal-discipline matter after receiving a two-year suspension in Louisiana for commingling and misappropriating client funds). Ogletree’s case is not a reciprocal-discipline matter, and, while his conduct may not have been intentionally dishonest, he knew which accounts he was depositing client funds into, and he was aware that the accounts often were overdrawn. Ogletree’s case is distinguishable from Catledge⅛, Pels, and Gardner, and those cases do not persuade me that a sanction of less than three years is warranted.

¶ 36. To the other extreme, in the cases where the Court has ordered disbarment, the attorneys had prior disciplinary violations and/or some egregious or intentional conduct. I agree with the majority that Ogletree’s conduct was not as egregious as the conduct in the cases in which disbarment was warranted. I also agree with the majority’s assessment that “Ogletree’s conduct was certainly careless and possibly negligent,” but that he did not seem to have an intent to steal. (Maj. Op. 1! 25). Further, it appears that Ogletree has not lied to his clients, he did not lie to disciplinary authorities, he has not had any prior disciplinary violations, and he- has had extenuating life situations that resulted in inattention to his work. However, the result of Ogletree’s inattention was not a single instance of commingling or misappropriation; Ogletree’s bank statements showed a pattern of misconduct over a three-year period. For Ogletree, commingling was a regular practice. Although his clients did not lose money, in many instances his accounts were overdrawn, and he did not have the funds available to make his clients whole. Further, Ogle-tree’s failure to file a response with the Court is a cause for concern. See Cotton, 809 So.2d at 589 (¶ 23) (“That he made no attempt to defend himself once the Bar filed a formal complaint raises additional concerns regarding his fitness to practice law.”).

¶ 37. While I do not think Ogletree’s conduct was egregious, such that disbarment is warranted, I think a six-month suspension is insufficient. A three-year suspension from the practice of law is consistent with this Court’s precedent. Because I would order Ogletree to be suspended from the practice of law for three years, I dissent.

RANDOLPH, P.J., JOINS THIS OPINION.