author: ISHEE, J., FOR THE COURT:

text:
    Cornelius CANNADY, Sr. a/k/a Cornelius Cannady a/k/a Cornelius G. Cannady, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01756-COA
    Court of Appeals of Mississippi.
    July 25, 2017 Rehearing Denied February 13, 2018 Certiorari Denied June 14, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE, JACKSON
    BEFORE IRVING, P.J., ISHEE, FAIR AND WILSON, JJ.
   ISHEE, J., FOR THE COURT:

¶ 1. In November 2015, Cornelius Cannady was convicted by a jury in the Madison County Circuit Court of false pretense and conspiracy to commit false pretense. Cannady was sentenced as a habitual offender to serve a term of fifteen years in the custody of the Mississippi Department of Corrections (MDOC)-ten years for the false-pretense count, and five years for the conspiracy count, with the sentences to run consecutively to one another. Cannady moved for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The circuit court denied the motions. Cannady's appeal was assigned to the Office of the State Public Defender, Indigent Appeals Division (IAD). In his appellate brief, Cannady's attorney asserted that he had conducted a good-faith inquiry into arguable issues for appeal, but ultimately could find none. Having reviewed the record, we also find no meritorious issues and affirm the circuit court's judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. After extensive investigation, Cannady was indicted on one count of false pretense, and one count of conspiracy to commit false pretense-as a habitual offender.

¶ 3. At trial, Investigator Jason Rudd, with the Ridgeland Police Department, testified that Cannady was the mastermind behind a check-cashing scheme involving several individuals. Rudd's testimony revealed that fraudulent payroll checks-from nonexistent businesses-were cashed at All American Check Cashing (All American). Rudd explained that Jeremiah Jackson, Charwona Page, and Jason Johnson were involved in this scheme and that Cannady was the ringleader. Cannady would drive the various individuals around in his van and have them cash the fake payroll checks. In return, the individuals would receive approximately $100 for each check they cashed. After Cannady was arrested, Rudd found two cell phones and a bank card belonging to Page's fake business, CP Sales and Services, in his car.

¶ 4. Russell Boyette, an employee of All American, testified that on October 7, 2014, Jackson, Johnson, and Page came into his business-at two different times-and presented three different fraudulent checks to be cashed. The check Page cashed was in the amount of $681.20, and the two checks Jackson and Johnson cashed totaled over $1,000. Later, All American called to verify the authenticity of the checks, and after being told they were legitimate, cashed them. It was only a few days later that they learned that the checks were actually fraudulent. On cross-examination, Boyette admitted that Cannady himself never came into All American. And Boyette further testified that he was not aware that Cannady ever attempted to cash any checks himself.

¶ 5. Edward Keys testified that Cannady, whom he knew as "Check Man," approached him about the opportunity to make money by cashing checks and opening bank accounts. Cannady took him to open a checking account for Keys Automotive, and then to the Secretary of State's office to incorporate the business. Keys admitted that he never had a car-lot business-or even an office or phone number. Keys testified that he thought the phone number associated with the business was actually Cannady's. And although they used Keys's address and phone number to open the checking account, Cannady paid the initial deposit of $250, and Keys gave the debit cards and checks associated with the account to Cannady; Keys never used them himself. Keys further testified that once he "figured out it was a scam," he attempted to close the checking account, but the bank would not allow him to because it was so overdrawn.

¶ 6. Page also testified that she knew Cannady as "Check Man," and that the scheme was his idea. She testified that when someone would call the phone number for Keys Automotive, it was set up to call Cannady's phone. Page told the jury that Cannady took her to open up "CP Sales and Service," which was a fictitious business, and provided her with the funds to open the account. And like Keys, Page gave Cannady the debit cards tied to the account. Page testified that on October 7-when she went to cash the fraudulent checks-she went at the direction of Cannady, and they both knew there was no money in the account. She also testified that Cannady "had his computer and his printer with him 24/7," and she witnessed him print fake checks.

¶ 7. After the State rested, Cannady moved for a directed verdict; this motion was denied. Cannady presented no witnesses and was found guilty of both counts. Cannady filed a motion for a JNOV or, in the alternative, a new trial. The circuit court denied his motion. Cannady appealed. His case was assigned to the IAD.

¶ 8. Cannady's IAD attorney submitted a brief stating that he was unable to find any arguable issue for appeal despite a good-faith inquiry into Cannady's case. The IAD attorney listed eleven matters that he had considered, reviewed, and included in his inquiry. He acknowledged his willingness to prepare and submit supplemental briefing on any issues requested by this Court. The IAD attorney also requested that the Court grant Cannady forty days of additional time in which to file a pro se brief should he desire to do so. After being granted the additional forty days, Cannady filed a pro se brief. In his brief, Cannady alleges the following: insufficient evidence; a verdict against the overwhelming weight of the evidence; judicial and prosecutorial misconduct; ineffective assistance of counsel; and an illegal sentence.

DISCUSSION

¶ 9. The case of Lindsey v. State , 939 So.2d 743 (Miss. 2005), governs this appeal. In Lindsey , the Mississippi Supreme Court promulgated procedures an attorney must follow when the "appellate counsel represents an indigent criminal defendant and does not believe his or her client's case presents any arguable issues on appeal." Id. at 748 (¶ 18). When this situation arises, an attorney must:

(1) [F]ile and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1)-(4), (7) ;
(2) [C]ertify [in the brief] that there are no arguable issues supporting the client's appeal, and [that the attorney] has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding the arrest; (b) any possible violations of the client's right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing[; and]
(3) [S]end a copy of the brief to the defendant, inform the [defendant] that counsel could find no arguable issues in the record, and advise the [defendant] of his or her right to file a pro se brief.

Lindsey , 939 So.2d at 748 (¶ 18) (citations omitted).

¶ 10. Cannady's counsel has complied with the requirements of Lindsey . Counsel further petitioned this Court for an extension of time for Cannady to submit a pro se brief. The extension was granted, and Cannady submitted a pro se brief. Having reviewed the record, however, we cannot find any arguable issue for appeal or reversible error committed at the trial level. As to Cannady's ineffective-assistance-of-counsel claim, we dismiss this claim without prejudice to his ability to raise it in postconviction proceedings, if he chooses to do so. Thus, we affirm Cannady's conviction and sentence.

¶ 11. AFFIRMED.

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


source: Caselaw Access Project

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

license: Public Domain

text:
    Brent RYAN a/k/a Brent Everett Ryan a/k/a Brent Everet Ryan a/k/a Brent E. Ryan, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00125-COA
    Court of Appeals of Mississippi.
    August 15, 2017 Rehearing Denied June 12, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE
    DISTRICT ATTORNEY: FORREST ALLGOOD
    BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Brent Ryan appeals the judgment of the Lowndes County Circuit Court, adjudicating him guilty of felony fleeing and aggravated domestic violence. His counsel submits that the verdict is against the overwhelming weight of the evidence, and that the court erred in sentencing Ryan as a habitual offender. In a supplemental pro se brief, Ryan argues that he should receive a new trial because his trial counsel was ineffective, his due-process rights were violated, and prosecutorial misconduct occurred during his trial.

FACTS

¶ 2. Ryan and Aelishia Horn married in Onalaska, Texas, when she was nineteen and pregnant with the couple's child. Soon after their son was born, Ryan left to join the army, and Aelishia did not hear from him for many years. Years later, Ryan found her on Facebook and wanted to know about their son. Another year or two elapsed before she and Ryan spoke again and finally made arrangements for him to visit. Eventually, the couple agreed to work things out and began living together in Lowndes County, Mississippi. Horn was paying all the bills, because, at the time, Ryan was not working. Horn testified that after several months had passed, she told Ryan that "she couldn't do it anymore." The next morning, she repeated the sentiment and stated that Ryan pinned her on the couch and choked her until she was unconscious. Upon gaining consciousness, she escaped the home and ran to a neighbor's home to call for emergency assistance. Ryan was arrested the next day after a high-speed chase.

¶ 3. Ryan was indicted by a grand jury on one count of felony fleeing from a law enforcement officer, in violation of Mississippi Code Annotated section 97-9-72 (Rev. 2014). He was also indicted on one count of aggravated domestic violence against Horn, in violation of Mississippi Code Annotated section 97-3-7 (Supp. 2016). On the eve of trial, the court granted the State's motion to amend Ryan's indictment to charge him as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015). Following the conclusion of the evidence, Ryan was found guilty of both counts. The circuit court sentenced him to five years on the felony-fleeing count and twenty years on the aggravated-domestic-violence count, with the sentences to be served consecutively in the custody of the Mississippi Department of Corrections, without the benefit of early release or parole. Aggrieved, Ryan filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The court denied his motion, and this appeal followed.

DISCUSSION

I. Weight of the Evidence

¶ 4. The Mississippi Supreme Court held in Bush v. State that

when reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. We have stated that on a motion for new trial, the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. However, the evidence should be weighed in the light most favorable to the verdict.

Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005).

¶ 5. Ryan asserts that the jury's finding-that he strangled Horn-was against the overwhelming weight of the evidence, as he argues that the State failed to prove the legal element of strangulation. He argues that the only evidence the jury had to rely on to justify his conviction for aggravated domestic violence was Horn's testimony, photos taken at the scene, and the testimony of Deputy John Pevey. He points out that Horn had no visible injuries or symptoms the following day, that she refused to go the hospital on the day of the incident, and that the hospital found no abnormal results from her CT scans. He also notes that Horn was simply released from the hospital with pain relievers. Ryan contends that the jury based its guilty verdict on weak evidence, and points to the lack of medical evidence, the lack of credible eyewitness testimony, and Horn's subsequent actions. In his view, this proves that the jury did not have enough credible evidence to support its guilty verdict. For those reasons, he asserts that the trial court erred in denying his motion for a new trial.

¶ 6. The State responds that the jury's verdict on the charge of aggravated domestic violence was not against the overwhelming weight of the evidence presented at trial, and points out that the testimonies of Horn and Deputy Pevey, the photographs of Horn's neck, and Ryan's flight from authorities constitute ample evidence for reasonable jurors to find that Ryan committed domestic violence against Horn by strangling her. Further, the State asserts that Ryan presented no evidence to contradict its case, and that this is not an exceptional case where the evidence preponderated heavily against the verdict, requiring a reversal. We agree.

¶ 7. At trial, the State was required to prove that Ryan strangled or attempted to strangle his spouse. The Legislature has defined "strangle" as the following: "to restrict the flow of oxygen or blood by intentionally applying pressure on the neck, throat or chest of another person by any means or to intentionally block the nose or mouth of another person by any means." Miss. Code Ann. § 97-3-7(9)(a).

¶ 8. During the State's case, Horn testified concerning Ryan's assault on her. More specifically, she testified that Ryan put his hands around her throat and choked her, making it impossible for her to breathe, which caused her to lose consciousness. She further testified, "I couldn't breathe. I passed out. I kept on saying I feel the life leaving my body. I could feel me dying. I can't breathe. Please stop." Deputy Pevey testified that he observed red marks on Horn's neck on the day in question. Photographs of Horn, taken on the day the strangulation occurred, were also admitted into evidence. This evidence, coupled with Horn's testimony that Ryan had strangled her, supported the jury's verdict. The jury could reasonably infer from the testimony and the photographs adduced at trial that Ryan strangled his wife.

¶ 9. Finally, although the nurse practitioner that treated Horn the next day did not find any visible signs that she had been strangled, he testified that there was no test available in the emergency room that could have objectively determined if Horn had been strangled. He also stated that, in his expert opinion, it is entirely possible to have been strangled without bruising or for the bruising's visibility to subside within a day.

¶ 10. In Kirk v. State , 160 So.3d 685, 697 (¶ 31) (Miss. 2015), the Mississippi Supreme Court addressed a challenge to the weight of the evidence. In that case, Marvin Kirk was convicted of strangling his wife. Kirk's wife testified that her husband grabbed her by the neck, choked her, and prevented her from breathing, which ultimately caused her to lose consciousness. Id. at 696 (¶ 27). She ran to her neighbor's house, and the neighbor testified that her neck was red, as did a responding deputy. On appeal, Kirk complained that there was no medical expert testimony showing strangulation, and the victim's testimony was not enough for a conviction. Id. at (¶¶ 27-28). The Kirk court disagreed, finding that the evidence was sufficient and that the verdict was not against the overwhelming weight of the evidence because "[t]he jury reasonably could infer from the testimony and the photographs adduced at trial that Marvin Kirk strangled his wife." Id. at (¶ 32).

¶ 11. Nearly the same set of facts is present in Ryan's case. The jury heard Horn's testimony that she was strangled by her husband and the testimony of the first responding officer, who said Horn's neck was red with abrasions. They also saw pictures of Horn's neck, some of which showed redness and an abrasion. Other than his assertion that Horn was lying and was only looking for drugs, Ryan presented no evidence to cast doubt on Horn's story. Therefore, this issue is without merit.

II. Habitual-Offender Status

¶ 12. Ryan asserts that the State did not present competent evidence of the three convictions it relied on to prove that he was a habitual offender within the meaning of section 99-19-81. During the trial, Ryan objected to the court's use of the uttering-of-a-forgery convictions in Case Number CF-2002-202, because an incorrect date of birth and social security number were listed. In attempting to verify the identify of the defendant in that case, Eric Granderson, deputy sheriff with the Lowndes County Sheriff's Department, printed a web page from the Oklahoma Department of Corrections' website.

¶ 13. On the website, Deputy Granderson identified a page with Ryan's photo and a list of his prior convictions, including the convictions in Case Number CF-2002-202. Ryan contends that Deputy Granderson made no attempts to get this record certified by the Oklahoma Department of Corrections and that Deputy Granderson could not vouch for the authenticity or accuracy of the information. The trial court acknowledged that the internet search was not certified, but took notice that the document stated that it was an official record from the Oklahoma Department of Corrections and ruled that the State had proved beyond a reasonable doubt that Ryan was the same defendant that had been convicted of all three prior charges.

¶ 14. The State argues that Ryan was properly sentenced as a habitual offender. "In order to sentence a defendant as a habitual offender, the accused must be properly indicted as a habitual offender, the prosecution must prove the prior offenses by competent evidence, and the defendant must be given a reasonable opportunity to challenge the prosecutor's proof." Hull v. State , 174 So.3d 887, 900 (¶ 43) (Miss. Ct. App. 2015). The State contends that Ryan was properly indicted as a habitual offender by amendment of the indictment. The court ruled that the evidence the State used-Oklahoma Department of Corrections website data and Ryan's pre-sentencing report-was competent to sentence him as a habitual offender. Although the social security number and birth dates differed, there was a photo and conviction data on the website, and Ryan admitted to the offenses in his pre-sentencing report. He was given an opportunity to challenge the State's proof through cross-examination at his sentencing hearing. Ryan's counsel was also given additional time after the trial concluded, the week of November 16, 2015, to investigate his claim that the charges were inapplicable, before a second hearing was conducted on December 3, 2015. "As long as the trial judge applied the correct legal standards, this Court will not reverse [his] decision unless it is manifestly in error, or is contrary to the overwhelming weight of the evidence." Frazier v. State , 907 So.2d 985, 990 (¶ 8) (Miss. Ct. App. 2005). We find that the State proved Ryan's habitual status beyond a reasonable doubt.

III. Ineffective Assistance of Counsel

¶ 15. In his pro se brief, Ryan argues that he received ineffective assistance of counsel because his attorney failed to: object to a defective indictment, object to missing elements of the crime, pursue motions that Ryan had filed, and object to hearsay evidence.

A. Defective Indictment

¶ 16. Ryan alleges that his indictment was defective in four aspects and that his counsel failed to object to the "fatally defective" indictment. As to the indictment's alleged defects, Ryan asserts: (1) the indictment did not list the judicial district pursuant to Rule 7.06(4) of the Uniform Rules of Circuit and County Court, (2) count II did not list the code subsection and was therefore ambiguous as to the charge and failed to constitutionally inform him of the nature and cause of the accusation against him, and (3) the indictment failed to charge an essential element of the crime of aggravated assault, "serious bodily injury." Lastly, Ryan contends that the indictment misidentified the alleged victim, his wife, and the court erred in allowing the indictment to be amended to change his wife's name from "Aelishia Ryan" to Aelishia Horn a/k/a Aelishia Ryan, because substantive amendments to an indictment must be made by a grand jury.

¶ 17. In response to Ryan's first allegation of error, the State correctly notes that Lowndes County only has one judicial district. "In such counties with one judicial district, the supreme court has held that the indictment is not required to contain the judicial district." Morgan v. State , 966 So.2d 204, 207 (¶ 17) (Miss. Ct. App. 2007). His second complaint states that count II did not list the code subsection of Mississippi Code Annotated section 97-3-7. The State notes that his indictment contained a header that informed him that he had been indicted for one count of "fleeing a law enforcement officer" ( § 97-9-72 ) and one count of "domestic violence-aggravated assault" ( § 97-3-7 ). The domestic-violence count reads, in part: Ryan did "unlawfully, feloniously, purposely, and knowingly, strangle Aelishia Ryan, a person, his spouse[.]" This language tracks section 97-3-7(4)(a)(iii), which reads, in part: "When the offense is committed against a current or former spouse of the defendant ... a person is guilty of aggravated domestic violence who ... strangles, or attempts to strangle another." Miss. Code Ann. § 97-3-7(4)(a)(iii). "As a general rule, where an indictment tracks the language of a criminal statute it is sufficient to inform the accused of the charge against him." Stevens v. State , 808 So.2d 908, 918 (¶ 31) (Miss. 2002). The indictment clearly states the charge and gives sufficient descriptive facts to put Ryan on notice of the accusations against him. Ryan provided no evidence that the indictment hampered his defense in any way.

¶ 18. Third, the State asserts that the court did not err in allowing the indictment to be amended to change Ryan's wife's name from Aelishia Ryan to Aelishia Horn a/ka as Aelishia Ryan. At trial, there was no objection to this amendment, and Ryan conceded that he and Horn were, in fact, married. The trial judge even made a special notation on his order stating, "The defendant has no objection to this amendment." Again, Ryan alleges no prejudice to his case derived from this amendment. "All indictments may be amended as to form but not as to the substance of the offense charged .... Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised." URCCC 7.09. "Furthermore, an amendment is lawful if it is does not 1) materially alter the essential facts of the offense or 2) materially alter a defense that the defendant had under the original indictment so as to prejudice his case." Harris v. State , 757 So.2d 195, 199 (¶ 16) (Miss. 2000).

¶ 19. Lastly, the State correctly points out that "serious bodily injury" is not an element of the crime of aggravated domestic violence brought under section 97-3-7(4)(a)(iii). We agree with the State's responses, and see no need to comment further. This issue is without merit.

B. Pro Se Motions and Hearsay

¶ 20. Ryan also complains that his counsel failed to object to hearsay evidence and that his attorney was ineffective for failing to pursue Ryan's numerous pro se motions: motion to reveal the deal, motion for FBI and NCIC reports, motion to dismiss, motion for supplemental discovery and disclosure, motion to prevent snitch testimony, motion to suppress statements, and motion to dismiss for violation of the right to a speedy trial. "A movant has the duty to pursue his motion through to hearing and decision. URCCC 2.04. Pre-trial motions not ruled upon by the time of trial are deemed abandoned." Roy v. State , 878 So.2d 84, 89 (¶ 23) (Miss. Ct. App. 2003).

¶ 21. Ryan's counsel was appointed on November 10, 2014. Ryan alleges that he attempted to submit the motions pro se, but he was notified by the clerk that the deadline to submit motions had passed. He further alleges that he told his counsel about all of the motions he wanted to submit, but at that point it was past the deadline for submission, and his attorney never notified him of such date. Undeterred, Ryan submitted his motions to the court and wrote a letter to the judge asking for their consideration. The record does not show that these motions were ever ruled on. It is unclear whether Ryan's counsel was aware that Ryan had filed the motions, although Ryan said he informed his counsel.

¶ 22. The State responds that there is no requirement that retained counsel pursue a defendant's pro se motions. The State cites Paty v. State , 162 So.3d 850, 855 (¶ 23) (Miss. Ct. App. 2014), for the proposition that the duty to pursue pro se motions is on the defendant, not his attorney or the trial court. We agree.

¶ 23. With respect to hearsay, Ryan argues that the State made multiple prejudicial, inflammatory remarks during closing arguments that misstated the evidence. "As a general rule, prosecutors are to be given wide latitude in making their closing arguments." Green v. State , 887 So.2d 840, 844 (¶ 6) (Miss. Ct. App. 2004). However,

[n]otwithstanding the wide latitude afforded attorneys in closing arguments, [t]he standard of review that appellate courts must apply to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.

Id. Ryan argues that the officer that identified him was never called to testify, and the only evidence offered that he was in fact driving in the area was offered by hearsay testimony of third parties. The State responds that every officer who testified identified Ryan as the driver of the truck that they were chasing. Ryan counters that the prosecutor stated, during his closing, that two vehicles were run off the road, but that was never testified to by the officers. However, the record is clear:

COUNSEL: ... How many cars were run off the road during this chase?
DEPUTY JASON HUMBERS: Two.
COUNSEL: Two vehicles were run off the road?
DEPUTY JASON HUMBERS: Yes.

Thus, we find no merit to this issue.

IV. Due-Process Violations

¶ 24. Ryan alleges that his due-process rights under the Eight and Fourteenth Amendments to the United States Constitution were violated prior to and during trial. He asserts that he was not given an initial appearance within forty-eight hours of his arrest and that he was not given a preliminary hearing after he requested one. Finally, he asserts that the court allowed incompetent evidence regarding his habitual-offender status to be admitted into evidence.

¶ 25. The State replies that neither the record nor Ryan's brief contains any evidence to support his argument that his initial appearance was untimely or unreasonably delayed. He also fails to provide any evidence supporting his argument that he never had a preliminary hearing after he requested one. As discussed previously, the State notes that the court ruled that his habitual-offender status had been proven beyond a reasonable doubt. This issue is without merit.

V. Prosecutorial Misconduct

¶ 26. Ryan contends that his wife was a confidential informant for the Golden Triangle Drug Task Force, and had multiple contacts with the police. He submits that a simple NCIC check or report, as he requested by motion before trial, would have shown her bias and the State's failure to turn over impeachment evidence that would be considered Brady material. Ryan does not explain how a NCIC check would reveal his wife's bias and we cannot discern any. Ryan also fails to identify any material or evidence constituting Brady material that the State failed to turn over to him. As such, we have no basis for further discussion of the issue.

¶ 27. The State argues that whether the victim in a domestic-aggravated-assault case is a confidential informant is irrelevant and that Ryan has provided no evidence of these assertions regarding Horn. Further, the State points out that the prosecution is under no legal duty to inform the jury about a victim's unrelated history with police. We agree. This issue is without merit.

¶ 28. In summary, we find no merit to any of Ryan's arguments and no prejudicial errors committed by the circuit court. Accordingly, we affirm Ryan's convictions of felony-fleeing and aggravated domestic violence and consecutive sentences, as a habitual offender, of five and twenty years, respectively, to be served in the custody of the Mississippi Department of Corrections, without the benefit of early release or parole.

¶ 29. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      On August 19, 2016, this Court issued an order granting Ryan's request to file a pro se supplemental brief.

      The parties use several variations in spelling the victim's name; for clarity, we adopt the spelling from the trial-court transcript.

      The indictment does not allege a subsection, but based on its contents, it is clear that Ryan was indicted under subsection (4)(a)(iii) of section 97-3-7.

      This motion had been pending for several months.

      Ryan does not dispute his prior domestic-abuse conviction.

      For clarity, these issues have been condensed in our discussion of them.

      We note that the Uniform Rules of Circuit and County Court are no longer in effect, and its provisions relating to criminal practice were supplanted by the Mississippi Rules of Criminal Procedure. But because the former rules were in effect at the time of Ryan's offense, Rule 7.06 applies to his case. The same goes for other Rules of Circuit and County Court cited in this opinion.

      Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


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

text:
    Edith Davis ELMORE, Appellant v. DIXIE PIPELINE COMPANY, Appellee
    NO. 2015-CA-01499-COA
    Court of Appeals of Mississippi.
    October 3, 2017 Rehearing Denied March 6, 2018 Certiorari Denied June 21, 2018
    ATTORNEYS FOR APPELLANT: JOHN W. CHRISTOPHER, JAMES W. NOBLES JR.
    ATTORNEYS FOR APPELLEE: JAMES G. HOUSE III, LAURA D. GOODSON
    BEFORE GRIFFIS, P.J., FAIR AND GREENLEE, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Edith Davis Elmore appeals the exclusion of her expert witness and the entry of summary judgment on all asserted claims. Upon review, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Dixie Pipeline Company ("Dixie") operates a buried pipeline through which liquid propane is transported. The pipeline, which was constructed in 1961, extends approximately 1,100 miles from Texas to North Carolina, and includes various sizes of pipe. The particular segment at issue consists of a 395-mile stretch of 12-inch-diameter pipe, which runs from the west side of the Mississippi River near Erwinville, Louisiana, eastward to Opelika, Alabama, and passes through Clarke County, Mississippi. Lone Star Steel Company manufactured the pipe using a low-frequency electric resistance welding (ERW) process.

¶ 3. In 1988 and 1989, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued an alert notice to all hazardous-liquid-propane operators who had in place ERW pipe manufactured before 1970. The notices advised of operational failures of pipeline constructed with ERW pipe manufactured prior to 1970. The notices included certain recommendations by the PHMSA. Neither notice required pipeline operators to cease operating pre-1970 manufactured ERW pipe, or remove and replace the pipe.

¶ 4. On November 1, 2007, the pipeline ruptured near Carmichael, Mississippi. As a result of the rupture, liquid propane was released, some of which vaporized and exploded. At the time of the explosion, Elmore owned a house located approximately 1.1 miles from the accident site. Elmore claims her house suffered structural damage as a result of the shockwaves from the explosion.

¶ 5. The National Transportation Safety Board (NTSB) investigated the pipeline rupture. The NTSB noted that the pipeline segment at issue was hydrostatically pressure tested in 1961, and again in 1984. Additionally, in-line inspections were subsequently performed in 1998, 2005, and 2006. Based on the inspections, the NTSB determined that no defects or anomalies in the subject pipe joint could be correlated with the 2007 rupture. The NTSB ultimately concluded that "the probable cause" of the subject pipeline rupture "was the failure of a weld that caused the pipe to fracture along the longitudinal seam weld, a portion of the upstream girth weld, and portions of the adjacent pipe joints." Importantly, the NTSB concluded that the following were not factors in the rupture: corrosion, excavation damage, the controller's actions, or the operating conditions of the pipeline.

¶ 6. In her amended complaint, Elmore asserted claims of negligence, strict liability, and punitive damages against Dixie, as the operator of the pipeline. Following the agreed-upon discovery deadline, Elmore filed a motion to direct Dixie to produce the transcript of the corporate deposition taken in a case that involved the same pipeline rupture, but was litigated in Texas. The circuit court denied the untimely motion.

¶ 7. Dixie subsequently filed motions for summary judgment on all claims asserted by Elmore. The circuit court granted summary judgment in favor of Dixie on the strict-liability and punitive-damages claims, but denied the motion as to Elmore's negligence claim.

¶ 8. Dixie further filed a motion to exclude the opinions and testimony of Elmore's expert witness, Dr. Kendall Clarke. Following a hearing, the circuit court granted the motion, in part, and excluded Dr. Clarke from offering opinion testimony regarding the standard of care for pipeline operators, or any violation of that standard of care by Dixie.

¶ 9. Prior to trial, Dixie filed a renewed motion for summary judgment on Elmore's negligence claim. On reconsideration, and in light of the partial exclusion of Dr. Clarke's testimony, the circuit court granted summary judgment as to Elmore's negligence claim. Elmore now appeals and argues the circuit court erroneously: (1) denied her motion to produce the transcript of the corporate deposition taken in the Texas litigation, (2) excluded Dr. Clarke, (3) granted summary judgment on her strict-liability claim, (4) granted summary judgment as to her negligence claim, and (5) granted summary judgment on her punitive-damages claim.

ANALYSIS

I. The Denial of the Production of the Corporate-Deposition Transcript

¶ 10. Elmore first argues the circuit court erroneously denied her "motion to direct [Dixie] to produce the corporate deposition taken in the Texas litigation." "[Circuit] courts are afforded broad discretion in discovery matters, and this Court will not overturn a [circuit] court's decision unless there is an abuse of discretion." Ashmore v. Miss. Authority on Educ. Television , 148 So.3d 977, 981 (¶ 9) (Miss. 2014).

¶ 11. On February 27, 2014, an agreed order extending case-scheduling deadlines was entered by the circuit court, which extended the discovery-completion date to March 28, 2014. This was the second extension entered by the circuit court to allow the parties to complete discovery. On April 15, 2014, almost three weeks after the expiration of the agreed-upon discovery deadline, Elmore filed the subject motion and sought the production of "a true and correct copy of the deposition [transcript], with all exhibits, given by representatives of Dixie in the referenced Texas litigation."

¶ 12. Prior to the agreed-upon discovery deadline, Elmore propounded written discovery to Dixie and deposed two corporate representatives of Dixie. At no time before the close of discovery did Elmore request Dixie to produce prior corporate depositions taken in Texas. In fact, Elmore acknowledged that a formal request was not made until the filing of the motion at issue, which was after the expiration of the discovery deadline.

¶ 13. The circuit court "has the authority and indeed the duty to maintain control of the docket and ensure the efficient disposal of court business." Douglas v. Burley , 134 So.3d 692, 699 (¶ 20) (Miss. 2012) (emphasis omitted) (citing Venton v. Beckham , 845 So.2d 676, 684 (¶ 25) (Miss. 2003) ). We find no abuse of discretion in the circuit court's denial of Elmore's untimely discovery motion.

II. The Exclusion of Dr. Clarke's Testimony

¶ 14. Elmore next argues the circuit court erroneously excluded the opinions and testimony of her expert, Dr. Kendall Clarke. "The standard of review for the admission or exclusion of expert testimony is abuse of discretion." Patterson v. Tibbs , 60 So.3d 742, 748 (¶ 19) (Miss. 2011).

"This Court should find error in the [circuit] court's decision to exclude expert testimony only if the decision was arbitrary or clearly erroneous." Id.

¶ 15. The circuit court excluded Dr. Clarke's opinion testimony regarding the standard of care of pipeline operators, and the alleged breach of that standard by Dixie. Rule 702 of the Mississippi Rules of Evidence stated :

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

In Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court held that expert testimony must be relevant and reliable. Thus, "[w]hen determining whether expert testimony is admissible, our [circuit] judges should act as gatekeepers and must determine whether the proposed testimony meets the requirements of Rule 702 and Daubert 's relevance and reliability prongs." Patterson , 60 So.3d at 749 (¶ 22).

¶ 16. Elmore retained Dr. Clarke, a metallurgical engineer, to offer expert opinions and testimony regarding Dixie's alleged negligence in its operation of the pipeline. In formulating his opinions, Dr. Clarke relied upon the NTSB report, the American Petroleum Institute (API) Standards, and the American Society of Mechanical Engineers Standards. Dr. Clarke did not rely upon the federal safety regulations, including 49 C.F.R. § 195 (2015), "Transportation of Hazardous Liquids by Pipeline."

¶ 17. Elmore acknowledges that Dr. Clarke's opinions did not include a violation of the federal regulations. However, Elmore asserts that Dr. Clarke was not required to base his opinions upon the federal regulations and to opine whether or not the federal regulations had been violated since her case was "based on common-law tort claims" and not on the federal statute. We disagree.

¶ 18. The Dixie pipeline became subject to the federal safety regulations for hazardous liquid pipelines, codified in 49 C.F.R. § 195, upon enactment in 1969 by the U.S. Department of Transportation. Under these regulations, propane is classified as a highly volatile liquid. In his deposition, Dr. Clarke admitted that he had no familiarity with the federal regulations that govern integrity management for the pipeline. Additionally, Dr. Clarke admitted that he did not apply or consider those applicable federal regulations and standards in rendering his opinions in this matter. Instead, Dr. Clarke used "the API code because that applies in [his] business."

¶ 19. While the record indicates the pipeline was made of API-grade steel pipe and manufactured according to API standards, the pipe was not manufactured by Dixie. Instead, Dixie was the operator of the pipeline. The record shows the operation and maintenance of transmission pipelines is governed by federal safety regulations and standards. Indeed, the NTSB relied upon and cited 49 C.F.R. § 195 in its accident report.

¶ 20. Dr. Clarke, unlike the NTSB, never inspected the ruptured pipe joint, nor did he perform any testing or analysis on the ruptured pipeline segment. During his deposition, Dr. Clarke acknowledged that he had never been retained in any other case that involved a rupture in an interstate piping system that carried a highly volatile liquid. Dr. Clarke admitted that he had not "looked at a pipeline involving this type of stuff before" and further admitted that he had not "looked at a transportation pipeline governed by [the] DOT before this case." Moreover, Dr. Clarke testified that he had never before opined that a company failed to follow applicable standards or regulations for the integrity of its product.

¶ 21. Dr. Clarke opined the pipeline was running at too high a pressure, particularly given its age. However, the NTSB specifically determined that the operating conditions of the pipeline was not a factor in the rupture. Moreover, Dr. Clarke acknowledged that the pipeline can run up to maximum operating pressure 24 hours a day, 7 days a week, 365 days a year. Although Dr. Clarke stated it was not a "good practice," he admitted that such a practice was allowed.

¶ 22. Additionally, Dr. Clarke opined that Dixie should have either removed from service every anomaly identified in the in-line inspections and replaced it with new pipe, or de-rated the pressure in the pipeline to a lower maximum operating pressure. When asked the basis of his opinions, Dr. Clarke did not cite to any federal regulation or standard. Instead, Dr. Clarke stated, "I believe it's fair to say this is my opinion at this point based on all of my training from my doctorate on up." However, the NTSB, which spent nearly two years investigating this accident, did not reach the same conclusions. In fact, the NTSB determined that no defects or anomalies in the subject pipe joint could be correlated with the 2007 rupture. Moreover, the corrective measures suggested by Dr. Clarke were not required under the federal regulations, nor would such measures have been warranted, as there was no evidence a rupture was imminent on November 1, 2007.

¶ 23. The circuit court found:

The people [who are] using the pipe, they have got to use it according to the government reg[ulation]s because they are transporting interstate liquefied propane .... And there are government regulations that are in place to say this is what you have got to do to do it safely in accordance with the regulatory guidelines. And I'm not hearing ... Dr. Clarke or anybody else to say that Dixie violated any of those standards. What you are saying is, well, he said that-API standards say that whoever manufactured the pipe should do something different. Well, the people that are telling Dixie how to safely manage their facility that transports interstate-items interstate, I'm not hearing them say that they violated any standard.
Dr. Clarke, however, it doesn't seem to me that he can-I mean, unless he-unless he states an opinion that relates to a violation of the applicable government regulatory standards, then I don't see how that applies to what you are dealing with.
I think [Dr. Clarke] is a qualified metallurgist, and he can be qualified to make an opinion or render an opinion as to what happened there that resulted in an explosion .... I would allow him to testify about what happened in the pipeline that allowed the gas to escape .... He can testify to that .... As to violations of API standards[,] ... I don't think that has any relevance. I think the relevant issue is whether Dixie was operating their pipeline in accordance with regulatory guidelines, and he has not expressed any opinion about that.

¶ 24. Since Dr. Clarke lacked familiarity with or understanding of the federal regulations and standards, the circuit court properly excluded his ability to opine as to the standard of care for pipeline operators or any violation of that standard of care by Dixie. As the circuit court noted, testimony regarding the violations of API standards would be irrelevant and would not assist the trier of fact. We find no error.

III. The Dismissal of Elmore's Strict-Liability Claim

¶ 25. In her amended complaint, Elmore alleged that "[b]ecause of the inherently dangerous product being transported through its pipeline by [Dixie] with the potential for a devastating loss of property and/or life in the event of an explosion[,] [Dixie] is strictly liable for [Elmore's] damages." Elmore's strict-liability claim is based on her assertion that the transportation of liquid propane is an ultrahazardous activity. The circuit court noted that Mississippi has not declared such an activity ultrahazardous, and therefore found strict liability inapplicable. Elmore now argues the circuit court erroneously granted summary judgment on her strict-liability claim.

¶ 26. "We employ a de novo standard of review of a [circuit] court's grant or denial of summary judgment and examine all the evidentiary matters before it." Davis v. Hoss , 869 So.2d 397, 401 (¶ 10) (Miss. 2004). Summary judgment is proper when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). "The evidence is viewed in the light most favorable to the party opposing the motion." Davis , 869 So.2d at 401 (¶ 10). However, "an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56(e).

¶ 27. In support of her claim, Elmore relies on Donald v. Amoco Prod. Co. , 735 So.2d 161 (Miss. 1999). In Donald , the plaintiff purchased a twenty-acre parcel of property from the bank, which had seized the property at foreclosure. Id. at 164 (¶ 1). The former owners of the property were in the oil business and had allegedly transported oil-field waste to the property and disposed of it. Id. The plaintiff sued the bank and claimed it had negligently misrepresented the condition of the property. Id. at 164 (¶ 2). The plaintiff further sued various oil companies for negligence, nuisance, trespass, breach of contract, waste, strict liability, and outrageous conduct. Id. The circuit court dismissed the strict-liability claim since oil-waste disposal was not considered an ultrahazardous condition. Id. at 171 (¶ 30).

¶ 28. On appeal, the Mississippi Supreme Court found that the plaintiff's strict-liability claim could be addressed without having to determine whether oil-waste disposal was an ultrahazardous activity since the plaintiff's nuisance, trespass, and strict-liability claims "[were] not separate theories of liability." Id. at 172 (¶ 33). The Court explained that "a plaintiff may recover damage by a physical invasion of his property on a simple showing that the defendant was responsible for the physical invasion ... regardless of whether [the plaintiff] categorizes his claim of physical invasion as nuisance or strict liability or trespass[.]" Id. at 172 (¶¶ 33-34). Since the plaintiff "ha[d] alleged such a physical invasion for which the [o]il [d]efendants were responsible," the Court reversed the circuit court's dismissal of the plaintiff's strict-liability claim. Id. at 172 (¶ 34).

¶ 29. We find Elmore's reliance on Donald is misplaced. Here, Elmore does not allege a physical invasion of her property, nor does she allege nuisance or trespass. Instead, Elmore's strict-liability claim is based solely on the fact that the transportation of liquid propane is an ultrahazardous activity. However, as noted in Donald , "strict liability for ultrahazardous activity has only been found ... in cases involving explosives." Id. at 171 (¶ 30). The fact that liquid propane can ignite and become explosive does not mean activities that involve it are ultrahazardous for purposes of strict liability. See Lewis v. Kinder Morgan Se. Terminals LLC , Nos. 2:07cv47KS-MTP, 2:07cv48KS-MTP, 2008 WL 3540174, at *10 (S.D. Miss. Aug. 6, 2008) ("There is no evidence to suggest that the storage of gasoline ... and the use of a loading rack to load and unload gasoline into tank trucks is an ultrahazardous [condition].").

¶ 30. In Searle v. Suburban Propane , 263 A.D.2d 335, 700 N.Y.S.2d 588, 589-90 (2000), the plaintiff filed a products-liability action against the designer and installer of a custom propane-transmission system and sought damages for the death of the decedent killed in a propane explosion following a pipe rupture. The trial court entered partial summary judgment in favor of the designer and installer on certain causes of action, including strict liability and res ipsa loquitur. Id. at 590. On appeal, the supreme court, appellate division, affirmed. Id. at 592.

¶ 31. Specifically, the appellate court found that "the installation and maintenance of a propane gas storage tank, transmission system and fixtures d[id] not constitute an ultrahazardous activity so as to impose absolute liability." Id. at 591. In determining whether an activity was ultrahazardous, the court considered the six factors set forth in the Restatement (Second) of Torts section 520, which are:

(a) existence of a high degree of risk of some harm to the person, land[,] or chattels of others,
(b) likelihood that the harm that results from it will be great,
(c) inability to eliminate the risk by the exercise of reasonable care,
(d) extent to which the activity is not a matter of common usage,
(e) inappropriateness of the activity to the place it was carried on, and
(f) extent to which its value to the community is outweighed by its dangerous attributes.

Id. The court ultimately concluded, "[i]n view of the widespread use of propane gas as a commercial, consumer and household product, and the reasonable precautions that can be taken to prevent explosion, we are not persuaded to label it as an ultrahazardous activity." Id.

¶ 32. Additionally, in Melso v. Sun Pipe Line Co. , 394 Pa.Super. 578, 576 A.2d 999, 1003 (1990), a trial court found that the operation of a petroleum pipeline under a residential community was an abnormally dangerous activity so that Sun Pipe was subject to liability for harm, even if it took all reasonable care and the rupture was caused by the intervening act of a third party. The trial court determined that there was the potential that pipeline gasoline could cause an "environmental catastrophe of considerable magnitude" and "the pipeline transportation of large quantities of gasoline underneath a residential community is neither a matter of common usage, nor an activity appropriate to the place where it is carried on." Id.

¶ 33. On appeal, the Pennsylvania Superior Court reversed and found the transmission of natural gas and petroleum products by pipeline is "a common activity in a highly industrialized society such as our own." Id. The appellate court noted a jury instruction previously given, which stated:

The measure of care is not that of an insurer to everyone who sustains loss by reason of gas escaping and exploding, but it is liable for an explosion where it knew or by the exercise of ordinary care should have known of the defect in its pipes or mains.

Id.

¶ 34. In New Meadows Holding Co. v. Washington Water Power Co. , 102 Wash.2d 495, 687 P.2d 212, 217 (1984), the appellate court found that a gas company was not strictly liable for damages involving the transmission of natural gas through underground lines. The court examined the factors set forth in section 520 of the Restatement (Second) of Torts and conceded factors (a) and (b). Id. at 216.

¶ 35. With regard to factor (c), the court stated:

Some degree of risk of natural gas pipeline leaks will always be present. This does not mean, however, that the "high degree of risk" with which section 520 is concerned cannot be eliminated by the use of reasonable care .... Gas companies are subject to strict federal and state safety regulations.

Id. Accordingly, the court found that "the transmission of natural gas through underground lines can be eliminated by the use of reasonable care and legislative safeguards." Id.

¶ 36. The court found factors (d), (e), and (f) weighed against the imposition of strict liability. Id. Specifically, the court found "the transmission of gas is a matter of common usage, which is appropriate to the place where it is carried on." Id. The court further noted the widespread use of natural gas for residential needs. Id.

¶ 37. Additionally, the court compared the underground transmission of natural gas to the hauling of gasoline in commercial quantities upon public highways. Id. at 216-17. The court stated:

Natural gas flows through a small (2-inch) pipe which is buried underground, away from the dangers of the surface world. There are no careless drivers, faulty brakes, or slippery roads with which to contend. The heightened danger resulting from the storage of a highly volatile substance in large commercial quantities, rolling at high speed on a well traveled highway, is also absent.

Id. at 217.

¶ 38. In Kentucky Utilities Co. v. Auto Crane Co. , 674 S.W.2d 15, 17 (Ky. Ct. App. 1983), the appellate court found the transmission of electricity was not an ultrahazardous activity for purposes of strict liability. The court noted that the transmission of electricity is a public necessity and stated, "the rules for strict liability for abnormally dangerous activities rarely apply to activities carried on in pursuance of a public duty." Id. at 18.

¶ 39. Here, our analysis of the Restatement factors leads us to conclude that the transportation of liquid propane is not an ultrahazardous activity for purposes of strict liability. As in New Meadows Holding Co. , 687 P.2d at 216, we too concede factors (a) and (b).

¶ 40. Regarding factor (c), Dr. Clarke opined Dixie's utilization of repeated pressure cycles and operating pressures caused the cracks to grow to critical length and depth. However, Dr. Clarke did not opine that the reduction of pressure cycles and operating pressures would reduce or eliminate the risk of a rupture. Importantly, the NTSB found that controller actions and operating conditions of the Dixie pipeline were not factors in the rupture. Moreover, the transportation of liquid propane is a regulated commercial activity, subject to state and federal regulations.

¶ 41. Additionally, factors (d), (e), and (f) weigh against the imposition of strict liability. The Dixie pipeline is a major pipeline through which liquid propane is transported from refineries in Texas, Louisiana, and Mississippi to customers all throughout the southeastern United States. The pipeline was built in 1961 and extends about 1,100 miles through multiple states from Texas to North Carolina. There is no evidence to suggest the placement of the pipeline was inappropriate. Moreover, the transportation of liquid propane is of great value to commerce and local, regional, and nationwide communities.

¶ 42. Overall, we find the transportation of liquid propane does not constitute an ultrahazardous activity. Accordingly, the circuit court did not err in dismissing Elmore's strict-liability claim on summary judgment.

IV. The Dismissal of Elmore's Negligence Claim

¶ 43. To succeed on a claim for negligence, the plaintiff must show "(1) the existence of a duty 'to conform to a specific standard of conduct for the protection of others against the unreasonable risk of injury,' (2) a breach of that duty, (3) [a] causal relationship between the breach and [the] alleged injury, and (4) injury or damages." Donald , 735 So.2d at 174 (¶ 42) (quoting Meena v. Wilburn , 603 So.2d 866, 870 n.5 (Miss. 1992) ). "Duty and breach of duty are essential to finding negligence and must be demonstrated first." Id.

¶ 44. As previously noted, Elmore designated Dr. Clarke to offer expert testimony regarding the alleged negligence of Dixie. Dr. Clarke admitted that he has no familiarity with the federal regulations that govern integrity management for the Dixie pipeline. Thus, Dr. Clarke was not qualified to opine as to the applicable duty owed by pipeline operators or any breach of that duty by Dixie. Absent such evidence, there was no genuine issue of material fact to preclude summary judgment. Thus, Elmore's negligence claim fails.

¶ 45. Elmore asserts "this is a proper case for [the] application of the negligence doctrine of res ipsa loquitur." "Res ipsa loquitur, literally translated 'the thing speaks for itself,' is simply one form of circumstantial evidence." Gray v. BellSouth Telecomm., Inc. , 11 So.3d 1269, 1272 (¶ 11) (Miss. Ct. App. 2009). "Under the doctrine of res ipsa loquitur, negligence can be inferred in certain factual situations." Id. However, the doctrine should be applied cautiously." Id.

¶ 46. To apply res ipsa loquitur, the plaintiff must prove three elements:

First, the defendant must have control and management of the instrumentality causing the plaintiff's injury. Second, the injury must be such that in the ordinary course of things it would not occur if those in control of the instrumentality used proper care. Third and finally, res ipsa loquitur only applies where the injury is not a result of the plaintiff's voluntary act.

Id. at 1272 (¶ 12). We find Elmore failed to demonstrate the second element.

¶ 47. The second element requires Elmore to show "that in the ordinary course of things, the injury would not have happened if [Dixie] had used proper care." Id. at 1272 (¶ 13). Here, there is simply no evidence that in the ordinary course of things, the pipeline would not have ruptured had Dixie used proper care. The record shows Dixie complied with the governing federal regulations for the operation and management of interstate pipeline. The NTSB found no substantive violations by Dixie and specifically found that controller actions and operating conditions were not factors in the rupture. Thus, Elmore's claim that the pipeline ordinarily would not have ruptured had Dixie "used reasonable care and caution in the operation of the pipeline" is without merit.

¶ 48. As there were no genuine issues of material fact regarding both negligence and res ipsa loquitur, the circuit court properly dismissed Elmore's claim.

V. The Dismissal of Elmore's Punitive-Damages Claim

¶ 49. Elmore last argues the circuit court "ha[d] no authority to grant summary judgment on the issue of punitive damages and committed reversible error in doing so." Since summary judgment was properly granted on Elmore's claims of strict liability and negligence, we decline to address the final issue of punitive damages, as the claim is moot.

CONCLUSION

¶ 50. Upon review, we find the circuit court did not abuse its discretion in denying Elmore's discovery motion or excluding Dr. Clarke. Additionally, as no genuine issues of material fact exist, we find the circuit court's entry of summary judgment was proper on Elmore's claims of strict liability and negligence. Accordingly, we affirm.

¶ 51. AFFIRMED.

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

      In a hydrostatic pressure test, a pipe segment is filled with water at a specific pressure to test the strength and leak-resistance of the pipe.

      The case, styled Catherine Mitchell, individually, as Administratrix of the Estate of Mattie L. Mitchell, deceased et al. versus Enterprise Products Partners, L.P. and Dixie Pipeline Company , was filed in the District Court of Harris County, Texas, 55th Judicial District, and arose from the same pipeline explosion.

      The Rules of Evidence were restyled in 2016 to make the rules clearer and easier to use without changing the substantive meaning. See Order Restyling the Mississippi Rules of Evidence (Miss. July 1, 2016). Because the proceedings in this case preceded this change, we have quoted the former rule.


author: FAIR, J., FOR THE COURT: WILSON, J., CONCURRING IN PART AND DISSENTING IN PART:

text:
    Vincent YOUNG a/k/a Vincent Edward Young a/k/a Vincent E. Young, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00542-COA
    Court of Appeals of Mississippi.
    October 3, 2017 Rehearing Denied April 3, 2018 Certiorari Denied June 21, 2018
    ATTORNEY FOR APPELLANT: VINCENT YOUNG (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN
    EN BANC.
   FAIR, J., FOR THE COURT:

¶ 1. In 1990, Vincent Young pled guilty to armed robbery. In exchange for joining the State's recommendation that he receive a life sentence, the prosecution dropped an aggravated assault count and agreed not to prosecute Young as a habitual offender on the armed robbery charge. The circuit court followed the agreed recommendation and sentenced Young to life imprisonment under Mississippi Code Annotated section 97-3-79.

¶ 2. Now, more than twenty-five years later, Young has filed a motion for post-conviction relief, claiming that his sentence was illegal because under the prevailing interpretation of the statute at the time of his offense, only a jury could sentence him to life imprisonment for armed robbery. The Mississippi Supreme Court recently abandoned that interpretation of the statute's operative language, holding that statutes which permit the trial court to sentence a defendant to "any term" of incarceration include life sentences. Bester v. State , 188 So.3d 526, 529-30 (¶¶ 7-10) (Miss. 2016). The circuit court dismissed Young's petition, finding it both time-barred and without merit under Bester . On appeal, Young acknowledges that his sentence is legal in light of Bester , but he contends that applying Bester 's holding to him amounts to an ex post facto law. We find that Young waived his right to challenge his sentence by joining the State's recommendation. We also conclude that Young's sentence was legal under Bester and that Bester did not violate the Ex Post Facto Clauses of the Mississippi and United States Constitutions. We affirm the circuit court's dismissal of Young's PCR motion.

STANDARD OF REVIEW

¶ 3. The circuit court may summarily dismiss a PCR petition "[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]" Miss. Code Ann. § 99-39-11(2) (Rev. 2007). "On appeal, this Court will affirm the summary dismissal of a PCR [petition] if the petitioner has failed to demonstrate 'a claim procedurally alive substantially showing the denial of a state or federal right.' " Flowers v. State , 978 So.2d 1281, 1283 (¶ 5) (Miss. Ct. App. 2008) (quoting Young v. State , 731 So.2d 1120, 1122 (¶ 9) (Miss. 1999) ). We review questions of law de novo. Johnson v. State , 962 So.2d 87, 89 (¶ 8) (Miss. Ct. App. 2007).

DISCUSSION

¶ 4. Young argues that his claim is not subject to the time-bar because his fundamental constitutional rights were violated by an illegal sentence. "[E]rrors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act]." Rowland v. State , 42 So.3d 503, 506 (¶ 9) (Miss. 2010). But mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar. Chandler v. State , 44 So.3d 442, 444 (¶ 8) (Miss. Ct. App. 2010). Rather, "there must at least appear to be some basis for the truth of the claim before the [procedural bar] will be waived." Id.

¶ 5. Young acknowledges that his sentence is legal today in light of Bester v. State , 188 So.3d 526, 529-30 (¶¶ 7-10) (Miss. 2016), where the Mississippi Supreme Court held that statutes that permit the trial court to sentence a defendant to "any term" include sentences of life imprisonment. Young argues, however, that at the time he was sentenced, the controlling precedent of the Mississippi Supreme Court held that only a jury could pronounce a life sentence for armed robbery. See, e.g., Stewart v. State , 372 So.2d 257, 258 (Miss. 1979).

¶ 6. First of all, it is apparent that Young has waived any right to challenge the sentence he received. Young voluntarily agreed to his life sentence as part of his plea bargain. The circuit court's order accepting Young's plea and imposing his sentence explained that the State "agreed to reduce that portion of the indictment charging [Young] as a habitual offender in return for the acceptance by [Young] of a sentence of life imprisonment, as a non-habitual, for the offense of [armed] robbery." The parties to the plea bargain even agreed that if Young's life sentence is ever set aside, the State's "agreement to reduce the habitual offender portion of the indictment will have been abrogated and the said habitual offender portion of the indictment will be restored ... upon the request of the State." Young voluntarily accepted a life sentence with the possibility of parole in order to avoid a life sentence without the possibility of parole as a violent habitual offender. And the circuit judge who accepted Young's plea found that it was "freely, voluntarily, knowingly, and intelligently made."

¶ 7. In this Court's opinion in Bester , on materially indistinguishable facts, we held that the defendant waived any objection to the legality of his life sentence by voluntarily agreeing to the sentence as part of his plea bargain. Bester v. State , 188 So.3d 576 (Miss. Ct. App. 2014), aff'd on other grounds , 188 So.3d 526 (Miss. 2016). We reasoned that "Bester's sentence [was] not an illegal sentence, as life imprisonment is a sentence permitted as a lawful punishment for forcible rape, albeit when imposed by a jury." Id. at 578 (¶ 9). Therefore, there was "no public-policy concern that Bester received a sentence not authorized by statute." Id. We further reasoned that "[b]y pleading guilty and negotiating a 'mutually acceptable' plea agreement, Bester ... waived his right to a trial by a jury of his peers, and also the right for the jury to impose his sentence." Id. at 580 (¶ 14). We held that Bester could not, years later, "trifle with the circuit court and effectively renege on his plea agreement after he freely and voluntarily waived his right to have a jury impaneled for his trial and sentencing." Id. at (¶ 15).

¶ 8. The supreme court affirmed on other grounds in Bester , but it did not disapprove of this Court's opinion. This Court's opinion remains good law, and its reasoning applies to the facts of this case. The record is clear that Young voluntarily agreed to a life sentence in order to avoid the risk of a sentence of life without the possibility of parole. By doing so, he waived any right to jury sentencing or to claim that his sentence is "illegal."

¶ 9. Moreover, as the supreme court held in Bester , Young's sentence was legal. Young himself concedes that Bester controls; he just disputes the constitutionality of its application to him. We shall address that issue in turn, but since this Court does not unanimously agree that Bester controls, we will explain our reasons for finding it to be controlling precedent in this case. The Mississippi Supreme Court held in Bester that the language of the statute, which provided that the court could sentence the defendant to "any term" in the state penitentiary, meant what it appeared to say-the court could sentence the defendant to any term, including life imprisonment, even if no jury had chosen that punishment.

Bester v. State , 188 So.3d 526, 529-30 (¶¶ 7-10) (Miss. 2016). The problem, according to the separate opinion, is that Bester concerned the rape statute, while today's case concerns the armed robbery statute. The separate opinion reasons that even though the operative language of the armed robbery statute and the operative language of the rape statute are identical, this Court lacks the authority to apply the holding in Bester because the supreme court did not expressly overrule any of its prior decisions addressing the armed robbery statute.

¶ 10. We certainly agree with the separate opinion that this Court, as an intermediate appellate court, lacks the authority to overrule decisions of the Mississippi Supreme Court. Nor do we claim the authority to ignore precedent because this Court believes the supreme court would rule differently if it were to decide the case anew. We find Bester controlling because, although it only expressly overruled rape cases, the supreme court's former interpretation of the armed robbery statute was expressly derived from a rape case that was directly overruled by Bester . The holding in Bester was not premised on anything unique to the rape statute. Instead, the court spoke to the construction of specific statutory language-language that has direct application to today's case because it is also used in the armed robbery statute. The supreme court in Bester noted the "any term" language of the rape statute and held:

"Any term" includes life imprisonment. "Our law has long provided that the imposition of sentence following a criminal conviction is a matter within the discretion of the Circuit Court, subject only to statutory and constitutional limitations." Jackson v. State , 551 So.2d 132, 149 (Miss. 1989) (emphasis added). Bester's sentence violates neither. And "[s]o long as these are not offended, we rarely interfere." Id. As such, Bester's sentence is not illegal.

Bester , 188 So.3d at 529 (¶ 6). The operative language of the rape statute and the armed robbery statute is identical. The rape statute ( Mississippi Code Annotated section 97-3-65(2) ) read at the relevant time:

[U]pon conviction, [the defendant] shall be imprisoned for life in the State Penitentiary if the jury by its verdict so prescribes; and in cases where the jury fails to fix the penalty at life imprisonment the court shall fix the penalty at imprisonment in the State Penitentiary for any term as the court, in its discretion, may determine.

The armed robbery statute at issue in today's case, Mississippi Code Annotated section 97-3-79 (Rev. 2014) (which has not been amended since Young's offense) reads:

[U]pon conviction, [the defendant] shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.

The supreme court held in Bester that "any term" includes life sentences. Bester , 188 So.3d at 529 (¶ 6). We cannot fairly distinguish that holding simply because Bester was a rape case and today's case in an armed robbery case.

¶ 11. Furthermore, this Court has already addressed this issue, last year, and we concluded that Bester applies to armed robbery cases. In Hayes v. State , 203 So.3d 1144, 1146 (¶¶ 6-7) (Miss. Ct. App. 2016), a post-conviction petitioner argued on appeal that his sentence was illegal because it exceeded his life expectancy. He based his argument on Stewart v. State , 372 So.2d 257 (Miss. 1979), which was an armed robbery case applying the pre- Bester rationale to find a sentence illegal for exceeding the defendant's life expectancy. This Court noted that Stewart was the "progeny" of Lee v. State , 322 So.2d 751 (Miss. 1975), a rape case, and thus had been overruled by Bester when it expressly overruled Lee . See Hayes , 203 So.3d at 1146 (¶¶ 6-7). This Court referred to Stewart (the armed robbery case) as no longer being "good law." Hayes , 203 So.3d at 1146 (¶¶ 6-7).

¶ 12. The supreme court itself has also repeatedly held or observed that the rape and armed robbery statutes, because they employ identical operative language, are inexorably linked. In Stewart , the first armed robbery case employing the old interpretation of "any term," the supreme court referred to Lee , a rape case, as a "conflicting decision" to its prior armed robbery precedent. Stewart , 372 So.2d at 258. The Stewart court then simply applied its holding in Lee , noting that it was the "sounder rule." Id. at 259.

¶ 13. In 2014, Bester was previewed in separate opinions in Hampton v. State , 148 So.3d 992 (Miss. 2014), and Foster v. State , 148 So.3d 1012 (Miss. 2014), both of which concerned the armed robbery statute and were handed down the same day. Justice Coleman authored concurring opinions in both cases, which were joined in part by three other justices. He offered the same reasons for overruling the prior interpretation of the "any term" language that the court later adopted in Bester . Justice Coleman also noted that the rape statute had the same relevant language, but its code section had been amended by the Legislature in the years since the decision in Lee in 1975, while the armed robbery statute had not been amended since Stewart in 1979. Thus, the only conceivable reason to distinguish between Stewart and Lee cuts toward upholding Lee based on ratification by the Legislature-but it was Lee the supreme court expressly overruled in Bester .

¶ 14. The dissenters in Bester also recognized that the same standard was at issue in both rape and armed robbery cases. Justice Kitchens quoted Justice Chandler's dissent in Hampton describing Stewart and Lee as establishing "the standard" that had "been consistently applied ... to both armed robbery and forcible rape statutes." See Bester , 188 So.3d at 531 (¶ 17) (Kitchens, J., dissenting) (quoting Hampton , 148 So.3d at 1010-11 (¶ 53) (Chandler, J., dissenting)). Justice Chandler's dissent in Hampton had further observed that "[t]he sentencing statute for forcible rape uses substantially identical language, and our case law consistently has applied both statutes in an identical manner." Hampton , 148 So.3d at 1010-11 (¶ 52).

¶ 15. Thus, we reaffirm our prior holding in Hayes - Bester overruled Stewart when it overruled Lee . Stewart was explicitly based on Lee , the relevant statutory language is identical, and the statutes have always been treated the same way by the supreme court. See Hayes , 203 So.3d at 1146 (¶¶ 6-7).

¶ 16. Finally, we turn to Young's claim that a change in the interpretation of the statute amounts to the imposition of an ex post facto law when applied to him, since Bester was handed down long after he committed the offense. Young contends that the relevant standard is an absolute one, outlined in Collins v. Youngblood , 497 U.S. 37, 50, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) -that Bester "[made] more burdensome the punishment for a crime, after its commission." But what the United States Supreme Court actually held is that the Ex Post Facto Clause prohibits "any statute ... which makes more burdensome the punishment for a crime, after its commission, after its commission." Id. (quoting Beazell v. Ohio , 269 U.S. 167, 169, 46 S.Ct. 68, 70 L.Ed. 216 (1925) ) (emphasis added). Bester was a judicial decision, not the enactment of a statute. The Supreme Court has held that judicial decisions are not subject to ex post facto challenges. See Rogers v. Tennessee , 532 U.S. 451, 459-60, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001). Thus, Bester's contention is without merit.

¶ 17. A challenge, if it were to be made at all, must be under the Due Process Clause. The relevant test is different and much more lenient-the judicial decision can be applied retroactively unless it is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." Id. at 466, 121 S.Ct. 1693. But this issue has not been briefed or argued and is therefore barred on appeal. See Gilmer v. State , 955 So.2d 829, 837 (¶ 29) (Miss. 2007). We do not find it barred because Young cited the wrong constitutional clauses, but because the due process question is one of first impression and it has not been briefed or argued on appeal by either party. The fault lies with Young, who, as the appellant, was required to raise the issue and meaningfully support his assignments of error with "the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.' " Hill v. State , 215 So.3d 518, 524 (¶ 20) (Miss. Ct. App. 2017) (quoting M.R.A.P. 28(a)(7) ). "While pro se litigants are afforded some leniency, they must be held to substantially the same standards of litigation conduct as members of the bar." Id. (quoting Sumrell v. State , 972 So.2d 572, 574 (¶ 6) (Miss. 2008) ).

¶ 18. Young's challenge to Bester as an ex post facto law is without merit, and we will not consider the potential due process issue because his total failure to address it bars it from consideration on appeal.

¶ 19. AFFIRMED.

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

WILSON, J., CONCURRING IN PART AND DISSENTING IN PART:

¶ 20. The majority denies Young's claim on three grounds: (A) by virtue of his voluntary, negotiated plea agreement, Young waived his present challenge to the legality of his life sentence, ante at (¶¶ 6-8); (B) the Ex Post Facto Clauses of the State and Federal Constitutions apply to legislative acts, not judicial decisions, id. at (¶ 16); and (C) Young waived any due process challenge to the retroactive application of Bester v. State , 188 So.3d 526 (Miss. 2016), because he failed to brief that issue on appeal, id. at (¶¶ 17-18).

¶ 21. I concur in the result and in proposition (A)-that holding is dispositive, and the opinion could end there. Proposition (B) is a correct statement of law. I have doubts about proposition (C), but I would not write separately just to address that issue of waiver.

¶ 22. Rather, I write separately to address the majority's extended digression on whether Bester , a case interpreting the forcible rape statute, implicitly overruled Stewart v. State , 372 So.2d 257 (Miss. 1979), a precedent interpreting the armed robbery statute. See ante at (¶¶ 9-15). This digression is dicta, as it is not necessary to any of the "grounds" on which the majority's "decision rests." Ante at n.2. After arguing at length that Bester overruled Stewart , the majority renders the entire issue moot by declaring that Young has waived any viable objection to the retroactive application of Bester . Ante at (¶¶ 16-18). If Young waived that issue, then it simply does not matter whether Bester overruled Stewart .

¶ 23. Ordinarily, I would not write separately just to respond to dicta. I do so here only because the dicta is inconsistent with this Court's obligation to continue to follow directly controlling Supreme Court precedent.

¶ 24. I agree with the majority that if our Supreme Court extends Bester 's reasoning to the armed robbery statute, then a circuit court will have the authority to sentence a defendant convicted of armed robbery to life imprisonment without a jury recommendation. The armed robbery statute provides that "in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years." Miss. Code Ann. § 97-3-79 (Rev. 2014) (emphasis added). Interpreting the similarly worded forcible rape statute in Bester , the Supreme Court held: " 'Any term' includes life imprisonment." Bester , 188 So.3d at 529 (¶ 6). Therefore, the Court held that the statute permitted a judge to impose a life sentence without a jury recommendation. Id. I agree with the majority that there is no material difference between the relevant language in the forcible rape statute and the armed robbery statute; however, since its decision in Bester , the Supreme Court has not revisited the proper interpretation of the armed robbery statute.

¶ 25. Our problem, as an intermediate appellate court, is that directly controlling Supreme Court precedent holds that the armed robbery statute does not permit the sentencing judge to impose a life sentence without a jury recommendation. See Stewart , 372 So.2d at 259. In Stewart , the Supreme Court held that unless a jury first determines that the defendant should be sentenced to life imprisonment, the judge must sentence the defendant to "a definite term" of years "reasonably expected to be less than life." Id. The Supreme Court has never overruled Stewart , and this Court lacks authority to do so.

¶ 26. Bester does not overrule Stewart . Indeed, the concise majority opinion in Bester focused solely on the forcible rape statute and did not even mention Stewart or the armed robbery statute. See Bester , 188 So.3d at 527-30 (¶¶ 1-10). Only a dissent briefly referenced Stewart . See id. at 531 (¶ 17) (Kitchens, J., dissenting).

¶ 27. Thus, while Bester 's reasoning signals that the Supreme Court may or is likely to overrule Stewart in the future, that is no basis for this Court to declare that Stewart has already been overruled. "This Court, sitting as an intermediate appellate court, is bound by established precedent as set out by the Mississippi Supreme Court and we do not have the authority to overrule the decisions of that [C]ourt." Bevis v. Linkous Constr. Co. , 856 So.2d 535, 541 (¶ 18) (Miss. Ct. App. 2003). As the United States Supreme Court has instructed the federal courts of appeals, "If a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/Am. Exp. Inc. , 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). An intermediate appellate court may not, "on its own authority, ... take[ ] the step of renouncing" precedent of a higher court. Id.

¶ 28. The majority notes that this Court has "referred to Stewart ... as no longer being 'good law.' " Ante at (¶ 11) (quoting Hayes v. State , 203 So.3d 1144, 1146 (¶ 7) (Miss. Ct. App. 2016) ). However, Hayes addressed a sentence for child exploitation that was imposed under a materially dissimilar statute-a statute that specifies a maximum term of years. In Hayes , we expressly recognized that Stewart 's holding "did not apply to sentencing statutes that designate a specific maximum term of years." Hayes , 203 So.3d at 1146 (¶ 7). Given that Stewart simply "did not apply" in Hayes , our commentary that Stewart was no longer "good law" was dicta.

¶ 29. The majority also notes that Justice Coleman has argued in two specially concurring opinions that Stewart should be overruled. However, those opinions were "joined in part" by only three other justices, two of whom have since retired from the Court. Those special concurrences are not precedent and, therefore, cannot overrule precedent.

¶ 30. Moreover, although Justice Dickinson joined Justice Coleman's opinions in part, he also wrote separately to state that "due-process considerations" would preclude retroactive application of any decision overruling Stewart -i.e., that Stewart 's interpretation of the statute would continue to govern in a case such as this one. Indeed, Justice Coleman himself acknowledged that "the retroactive application of any holding overruling Stewart " would raise due process "concerns." He did not address that issue precisely because he recognized "the fact that a majority of the Court disagree[d] with him and wishe[d] to uphold Stewart ." Thus, not even one justice in Foster or Hampton stated that Stewart should be overruled and that its overruling should be applied retroactively in a case such as this. Only one thing is clear from the various opinions in Foster and Hampton : a majority of the Court was unwilling to overrule Stewart .

¶ 31. Overruling Stewart would also require the Supreme Court to consider the principle of stare decisis, which is sometimes said to be "particularly applicable to cases involving the construction of statutes."

Land Comm'r v. Hutton , 307 So.2d 415, 421 (Miss. 1974). That remains a decision for the Supreme Court, not this Court.

¶ 32. On behalf of the State, the Attorney General "recognizes that ... this Court ... cannot expressly overrule Stewart ." The State raises this issue-whether the armed robbery statute permits a life sentence without a jury recommendation-only to preserve it "for certiorari review, should such a review be necessary." The State's primary argument is that this Court should affirm because Young waived any challenge to his life sentence when he accepted the sentence as part of a voluntary, negotiated plea agreement. Thus, the State also recognizes that only the Supreme Court can overrule Stewart .

¶ 33. Following its discussion of Bester and Stewart , the majority finds that Young's retroactivity claim is "barred" for a second reason: He cites the wrong constitutional clauses. Young mistakenly relies on the Ex Post Facto Clauses of the State and Federal Constitutions, which govern the retroactive application of legislative acts, rather than the "limitations on ex post facto judicial decision making ... inherent in the notion of due process ." Rogers v. Tennessee , 532 U.S. 451, 456, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2000) (emphasis added); ante at (¶¶ 16-18). In other words, the substance of Young's claim is clear, but he relies on the wrong authority, so the claim is barred. This seems strict for a pro se prisoner who, on his first motion for post-conviction relief, filed a concise, legible, and intelligible brief that presents only one claim. But if Young's claim really is barred for two different reasons, that just makes the majority's extended discussion of Bester and Stewart all the more unnecessary.

¶ 34. In summary, I concur in the holding in paragraph eight of the majority opinion. I respectfully dissent from the dicta that follows because it is inconsistent with this Court's obligation to follow directly controlling Mississippi Supreme Court precedent.

GRIFFIS, P.J., AND CARLTON, J., JOIN THIS OPINION.

      A prisoner convicted of armed robbery prior to October 1, 1994, is eligible for parole after he has served ten years. Miss. Code Ann. § 47-7-3(c)(i) (Rev. 2015).

      Although we address this point in the alternative, as this Court routinely does in post-conviction cases, our alternative holding on this point is not dicta. "[W]here a decision rests on two or more grounds, none can be relegated to the category of obiter dictum." Woods v. Interstate Realty Co. , 337 U.S. 535, 537, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949) ; see also In re Hearn, 376 F.3d 447, 453-54 n.5 (5th Cir. 2004) ("It is well-established that alternative holdings of this Court are binding on future panels.").

      "Dicta are statements 'not necessary to the court's ruling.' " Smith v. Normand Children Diversified Class Tr. , 122 So.3d 1234, 1237 (¶ 5) (Miss. Ct. App. 2013) (quoting McKibben v. City of Jackson , 193 So.2d 741, 745 (Miss. 1967) ).

      The majority also states that it addresses the issue because "this Court does not unanimously agree that Bester controls." Ante at (¶ 9). This is circular. The disagreement would not arise, and this opinion would not exist, if the majority opinion did not raise and address the issue.

      Foster v. State , 148 So.3d 1012, 1020 (¶ 26) (Miss. 2014) (Coleman, J., specially concurring); Hampton v. State , 148 So.3d 992, 1005 (¶ 36) (Miss. 2014) (Coleman, J., specially concurring).

      Foster , 148 So.3d at 1025-26 (¶ 39) (Dickinson, P.J., dissenting); accord Hampton , 148 So.3d at 1006 (¶ 37) (Dickinson, P.J., dissenting).

      Foster , 148 So.3d at 1025 (¶ 37) (Coleman, J., specially concurring); Hampton , 148 So.3d at 1005 (¶ 35) (Coleman, J., specially concurring).

      Id. In Bester , the Court requested briefing from an amicus curiae on a similar issue but then did not mention the issue in its opinion. See Bester , 188 So.3d at 536 n.10 (King, J., dissenting). Young raises the retroactivity issue in his brief in this appeal.

      While a concession by the Attorney General is not binding on this Court, see McCollum v. State , 186 So.3d 948, 950 n.7 (Miss. Ct. App. 2016), it is at least as noteworthy as a concession of a pro se litigant. See ante at (¶ 9) (noting that "Young himself concedes that Bester controls").

      See, e.g. , Chapman v. State , 167 So.3d 1170, 1172 (¶ 7) (Miss. 2015) ("[A] pro se prisoner's meritorious claims may not be ignored because of inartful drafting."); cf. Slayton v. Willingham , 726 F.2d 631, 634 n.7 (10th Cir. 1984) ("A pro se litigant's mere citation of the wrong constitutional amendment does not preclude his cause of action so long as the facts he alleges state a claim under an obviously applicable constitutional provision.").