author: CARLTON, J.,

text:
    Joshua WILLIAMS a/k/a Joshua Devon Williams a/k/a Joshua D. Williams a/k/a Josh Williams, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00382-COA
    Court of Appeals of Mississippi.
    02/28/2017

      JOSHUA WILLIAMS (PRO SE), ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE, ATTORNEY FOR APPELLEE
   CARLTON, J.,

FOR THE COURT:

¶ 1. Joshua Williams appeals the Jefferson Davis County Circuit Court’s denial of his petition, for postconviction relief (PCR). On appeal, Williams asserts the following issues: (1) whether he was competent to enter valid guilty pleas; (2) whether he was denied effective assistance of counsel; and (3) whether he was unlawfully convicted of manslaughter. Finding no error, we affirm.

FACTS •

¶2. On March 14, 2012, a Jefferson Davis County grand jury indicted Williams and his two co-indictees for one count of capital murder. See Miss. Code Ann. § 97-3-19(2)(e) (Rev. 2006). At the plea hearing on'July 23, 2013, the State moved to reduce Williams’s capital-murder charge to manslaughter and armed robbery.' See Miss. Code Ann. § 97-3-35 (Rev. 2006); Miss. Code Ann. § 97-3-79 (Rev. 2006). Following a plea colloquy at the July 23, 2013 hearing, the circuit court accepted Williams’s guilty pleas to the armed-robbery and manslaughter charges. The circuit court subsequently sentenced Williams to twenty years for the manslaughter conviction and a consecutive ten-year term for the armed-robbery conviction, with both sentences to be served in the custody of the Mississippi Department of Corrections.

¶3. Williams filed an unsuccessful motion to reconsider his sentences. He then filed a PCR petition and an amendment of his PCR claims, in which he asserted several additional assignments of error. After reviewing Williams’s PCR petition, as well as “all files, records, transcripts, and correspondence pertaining to the judgment under attaek[,]” the circuit court filed an order on July 14, 2015, denying Williams’s PCR petition and finding no merit to each of his asserted claims, Aggrieved by the circuit court’s judgment, Williams appeals.

STANDARD OF REVIEW

¶ 4, ‘When reviewing a circuit court’s denial or dismissal of a PCR motion, we will reverse the judgment of the circuit court only if its factual findings are clearly erroneous; however, we review the circuit court’s legal conclusions under a de novo standard of review.” Boyd v. State, 65 So.3d 358, 360 (¶ 10) (Miss. Ct. App. 2011).

DISCUSSION

I. Whether Williams was competent to enter valid guilty pleas.

¶ 5. Williams asserts that the circuit court erred by not conducting a hearing to determine whether he was competent at the time he entered his guilty pleas. He further claims that, due to a history of mental-health issues, his guilty pleas were not entered voluntarily, knowingly, and intelligently.

A. Competency

¶ 6, Under certain circumstances, a trial court should order a competency hearing:

If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court ....
After the examination^] the court shall conduct a hearing to determine if the defendant is competent to stand trial, After hearing all the evidence, the court shall weigh the evidence and make a determination of whether the defendant is competent to stand trial. If the court finds that the defendant is competent to stand trial, then the court shall make the finding a matter of record[,] and the case will then proceed to trial.

URCCC 9.06.

¶ 7. This Court has previously explained:

Though geared toward[ ] competency to stand trial, Rule 9.06 may be applied to a defendant’s entry of a guilty plea. The standard of competency necessary to enter a plea of guilty is the same as that for determining competency to stand trial. The key phrase in assessing a trial court’s responsibility to order a competency hearing is that a reasonable ground exist. ■
The determination of what is reasonable rests largely within the discretion of the trial judge because the judge sees the evidence first hand and observes the demeanor and behavior of the defendant. The Fifth Circuit Court of Appeals suggested the following test for reviewing a decision to forego a competency hearing: did the trial judge receive information which, objectively considered, should reasonably have raised a doubt about the defendant’s competence and alerted him to the possibility that the defendant could neither understand the proceedings, appreciate their significance, nor rationally aid his attorney in his defense?

Smith v. State, 831 So.2d 590, 593 (¶ 11) (Miss. Ct. App. 2002) (internal citations and quotation marks omitted). We uphold the factual findings a trial court makes at the time a defendant enters his guilty plea unless the court’s findings are clearly erroneous. Id. at 594 (¶ 13).

¶8. During his plea hearing, Williams offered no evidence to show he was incompetent to enter his guilty pleas. Instead, when the circuit court asked whether he was under the influence of drugs or alcohol, or whether he had any emotional or physical problems that would prevent him from participating in the hearing, Williams answered negatively while under oath. In addition, the record reflects that the circuit court repeatedly asked questions to determine whether Williams understood the consequences of pleading guilty to the crimes charged and whether Williams was doing so voluntarily, knowingly, and intelligently. The record also reflects that, by signing his plea petition, Williams acknowledged under oath that his physical health and mental health were “presently satisfactory” and that he was “not under the influence of any drugs or intoxicants.” Furthermore, along with Williams’s plea petition, Williams’s attorney submitted a signed certificate stating that, after fully discussing the case with Williams, she was satisfied that Williams was competent and had no condition that affected his ability to understand the guilty-plea proceedings.

¶ 9. As an exhibit to his PCR petition, Williams attached a copy of medical records from 2004, which indicated that Williams had received treatment when he was fifteen years old for mental-health problems. However, nothing in the attached medical records from 2004 indicated that Williams lacked the competency at the time of his plea hearing years later on July 23, 2013, to enter valid guilty pleas. Furthermore, as previously discussed, the record as a whole fails to show that Williams ever raised the issue of his competency with the circuit court or presented any evidence to the circuit court to demonstrate incompetence. As the movant, Williams bore the burden of proof to show that he lacked the competency to enter his guilty pleas. See Vanwey v. State, 55 So.3d 1133, 1136 (¶ 6) (Miss. Ct. App. 2011). Because Williams failed to meet his burden of proof, we find no support for Williams’s claim that the circuit court erred by failing to sua sponte order a competency hearing. See id.; Smith, 831 So.2d at 594 (¶¶13-14). Accordingly, this argument lacks merit.

B. Voluntariness of the Pleas

¶ 10. We likewise find no merit to Williams’s assertion that his pleas were not voluntary, knowing, and intelligent. Our caselaw clearly establishes that Williams bore “the brn-den of proving by a preponderance of [the] evidence that [his] guilty plea[s] [were] involuntary.” Timmons v. State, 176 So.3d 168, 171-72 (¶ 9) (Miss. Ct. App. 2015) (citations omitted). “A plea is considered voluntary when the defendant knows what the elements are of the charge against him[,] including an understanding of the charge and its relation to him, what effect the plea will have, and what the possible sentence might be because of his plea.” Montalto v. State, 119 So.3d 1087, 1095 (¶ 18) (Miss. Ct. App. 2013) (citation omitted).

¶ 11. Williams claims on appeal that his prior mental-health issues rendered his guilty pleas involuntary. However, the plea-hearing transcript reflects Williams’s statements under oath in open court that he voluntarily wished to change his pleas to guilty; he understood the consequences of waiving his constitutional rights and pleading guilty; he was not presently under the influence of drugs or alcohol; and he had no emotional or physical problems that would prevent him from participating in the hearing. See id. at 1096 (¶ 18) (recognizing that statements made under oath in open court carry a strong presumption of truthfulness). In addition, Williams acknowledged during the plea hearing that he had not been coerced, threatened, or promised anything to induce him to change his pleas; he had fully discussed with his attorney the charges he faced; and he understood the minimum and maximum sentences associated with the charges against him.

¶ 12. Moreover, the medical records that Williams provides from 2004 fail to present evidence to impact Williams’s competency at his plea hearing in 2013 or his ability in 2013 to enter voluntary, knowing, and intelligent guilty pleas. As already discussed, the movant bears the burden of proof to demonstrate the defendant’s lack of competency. Vanwey, 55 So.3d at 1136 (¶ 6). In the present case, Williams failed to meet his burden.

¶ 13. Thus, based on our review of the record and applicable caselaw, we find no support for Williams’s assertion that his guilty pleas were not entered voluntarily, knowingly, and intelligently. We therefore find that this assignment of error lacks merit.

II. Whether Williams was denied effective assistance of counsel.

¶ 14. Williams contends that he received ineffective assistance of counsel because his attorney failed to (1) investigate his competency to enter his guilty pleas and (2) interview crucial witnesses in the ease.

¶ 15. To prove his ineffective-assistance-of-counsel claim, Williams must show that (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant bears the burden to prove both prongs of Strickland, and a strong presumption exists that an attorney’s conduct falls within the wide range of reasonable professional assistance. Smith v. State, 129 So.3d 243, 246 (¶ 9) (Miss. Ct. App. 2013).

¶ 16. This Court has previously explained:

When applying the [Strickland ] test to a guilty plea, [the defendant] must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty, would have insisted on going to trial, and the outcome would have been different. Additionally, a defendant must plead claims of ineffective assistance of counsel with specificity, and the claim must be supported by affidavits other than his own. When a movant fails to attach any supporting affidavits and relies solely on his own sworn motion, his ineffective-assistance claim must fail.

Avery v. State, 179 So.3d 1182, 1188-89 (¶ 13) (Miss. Ct. App. 2015) (internal citations and quotation marks omitted).

¶ 17. As support for his ineffective-assistance claim, Williams argues that his attorney knew about his history of mental-health issues but failed to investigate his competency and inform the circuit court that he was incompetent to enter a valid guilty plea. In addition, Williams claims that his attorney failed to interview crucial witnesses in his case. According to Williams, had his attorney properly investigated the case and interviewed these crucial witnesses, the outcome of the proceedings would have been different. Williams insists that he never would have withdrawn his “not guilty” plea but would have proceeded to trial.

¶ 18. Upon review, we find that Williams’s allegations lack support. As previously discussed, Williams fails to provide any evidence to demonstrate that he lacked competency during the time period in which he committed the charged offenses, was indicted, and then entered his guilty pleas. Instead, Williams provides only his own bare assertions to support his claims. See id. at 1189 (¶ 13).

¶ 19. In addition, as stated, the record reflects that Williams entered his guilty pleas under oath in open court. See Montalto, 119 So.3d at 1096 (¶ 18). In doing so, Williams acknowledged that his attorney had reviewed his guilty-plea petition with him, as well as the charges he faced and what the State had to prove for him to be found guilty of the crimes charged. Williams stated that he had no questions about his petition and that he understood the charges against him and the rights he waived by pleading guilty. Moreover, the record reflects that, by signing his plea petition, Williams agreed that his attorney “had done all that anyone could do to counsel and assist” him and that he was “satisfied with the advice and help” that his attorney had provided.

¶ 20. Williams bore the burden below to demonstrate that he lacked the competency to enter a valid guilty plea. See Vanwey, 55 So.3d at 1136 (¶ 6). On appeal, he also bears the burden to show by a preponderance of the evidence that he is entitled to relief. See Smith, 129 So.3d at 245 (¶ 5). After reviewing the record and relevant caselaw, however, we find that Williams fails to meet his burden of proof on his ineffective-assistance claim. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Williams has not sufficiently shown that his attorney’s “performance fell below an objective standard of reasonableness.” Avery, 179 So.3d at 1190 (¶ 16). Furthermore, “even assuming errors on his attorney’s part, [Williams fails to show that] the outcome would have been different had he proceeded to trial.” Id. We therefore find that this assignment of error lacks merit.

III. Whether Williams was unlawfully convicted of manslaughter.

¶21. In addition to his other claims, Williams asserts that he “is actually and factually innocent” of the manslaughter charge. In discussing this issue, this Court has previously stated:

Rule 8.04(A)(3) of the Uniform Circuit and County Court Rules provides that[,] 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 sufficient factual basis requires an evidentiary foundation in the record [that] is sufficiently specific to allow the court to determine that the defendant’s conduct was within the ambit of that defined as criminal. We review the entire record to discern whether a sufficient factual basis exists.

Porter v. State, 126 So.3d 68, 72 (¶ 12) (Miss. Ct. App. 2013) (internal citations and quotation marks omitted).

¶22. As already stated, we find that Williams voluntarily, knowingly, and intelligently entered his guilty pleas to the crimes charged. See id. Furthermore, despite Williams’s claim of innocence, the record clearly reflects his statements under oath as to the following: he committed the crimes charged; the facts and allegations contained in the charges were true; and he was pleading guilty to the charges of his own free will. Because the record reflects that the circuit court possessed a sufficient factual basis to accept Williams’s guilty pleas, we find that this argument lacks merit. See id.

¶ 23. THE JUDGMENT OF THE JEFFERSON DAVIS COUNTY CIRCUIT COURT DENYING THE PETITION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JEFFERSON DAVIS COUNTY.

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

      .' After finding that Williams failed to timely receive á copy-of the order denying his PCR petition, the circuit court granted Williams’s motion for permission to file an' out-of-time appeal,

      . According to the medical records, information at the time of Williams’s hospital admission revealed that he had experienced auditory hallucinations and paranoia, suicidal thoughts, social withdrawal, sadness, irritability, a decrease in self-esteem, and a past history of trying to harm himself and others. At the time of discharge, the psychiatrist evaluating Williams diagnosed him with schizoaffective disorder (depressed type) and conduct disorder and determined that Williams had severe psychological stressors in his life. The psychiatrist recommended that Williams receive follow-up care, including psychiatric management, case management, and individual and group therapy. The psychiatrist also noted that, at the time of his discharge, Williams was “without plans of harming himself or others or features of psychosis.” With continued outpatient care and therapy, the psychiatrist determined Williams's prognosis to be fair.

      . See Smith, 831 So.2d at 594 (¶¶ 13-14) (finding that, although the defendant had a history of mental-health problems and took antipsychotic medication, he failed to offer sufficient evidence to demonstrate he lacked competency at the time of the plea hearing),


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Brenda FRANKLIN, Appellant v. Cornelius TURNER d/b/a Golden Age Apartments, and Cornelius Turner d/b/a Major Management, Inc., Appellees
    NO. 2014-CA-01006-COA
    Court of Appeals of Mississippi.
    03/29/2016
    Rehearing Denied June 29, 2017

      ATTORNEYS FOR APPELLANT: BRENT HAZZARD SORIE S. TARA-WALLY, Jackson, KELLY GUNTER WILLIAMS
    ATTORNEYS FOR APPELLEES: FRANCES R. SHIELDS KATRINA SANDIFER BROWN
   MODIFIED OPINION ON MOTION FOR REHEARING

BARNES, J.,

FOR THE COURT:

¶ 1. The motion for rehearing is denied. The previous opinion of this Court is withdrawn, and this opinion is substituted in its place.

¶ 2. This appeal stems from a complaint filed on February 19, 2013, by Brenda Franklin, a tenant of Golden Age Apartments, against Cornelius Turner d/b/a Golden Age Apartments and Major Management (collectively referred to as “Turner”), and Robert Swinney, seeking $1,000,000 in damages. The complaint alleged that Swinney, the caretaker/employee of the apartment complex, was liable for assault and battery against Franklin. It further alleged Turner breached a duty to protect residents from the actions of its employee and was liable for its failure to monitor and maintain safe premises. Finally, the complaint asserted that all defendants were liable for false imprisonment, gross negligence, and intentional/negligent infliction of emotional distress.

¶ 3. According to Franklin, Swinney came to the door of her apartment at approximately 5:30 p.m. on January 20, 2012, saying that her dog had gotten loose and bitten another tenant. He allegedly told her the police had been called, and she allowed him in her apartment to wait. Though Franklin claimed that she did not know Swinney, she fed him dinner. After he had eaten, she asked him to leave, but he sexually assaulted her and stayed at her apartment until early the next morning.

¶ 4. Franklin did not report the attack until January 23, 2012, when she told Billy Joe White, the complex’s former caretaker with whom she had a prior relationship, about the incident. Over Franklin’s objections, White contacted the police. Law enforcement came to Franklin’s apartment to question her, and she was sent to the hospital for examination. Her medical records indicated no apparent injuries, and there had been too much passage of time since the attack to collect any lab specimens. Swinney was arrested, and after spending three months in jail because he could not post bail, he entered an Alford plea to attempted aggravated assault. He received ten years in the custody of the Mississippi Department of Corrections (MDOC), with nine years and 272 days suspended, ninety-three days served, and five years of supervised probation.

¶ 5. Swinney, however, has continued to protest his innocence, testifying that he had a prior consensual sexual encounter with Franklin, and she had invited him over for dinner that evening. The record does contain substantial contradictory testimony about the events surrounding the incident. Although Franklin initially claimed she had never seen or met Swin-ney prior to the attack, she later admitted that she had his phone number and called him after the attack. Subpoenaed phone records show that between the time of the assault and Swinney’s arrest, Swinney and Franklin sent several text messages to one another.

¶ 6. Additionally, Franklin claimed that she sat in her tub “scrubbing her skin” for hours that following morning after Swin-ney left and saw no one that day. But she subsequently admitted that she let Swin-ney back into the apartment that following day to fix her tub. Another man, Richard Boyd, confirmed that he and Swinney had been in Franklin’s apartment to fix her tub on January 21, 2012. A neighbor, Joyce Kimball, testified that she saw Swinney go into Franklin’s apartment on January 20, and heard laughing and giggling coming from Franklin’s apartment until Kimball feel asleep at midnight. Kimball said she witnessed Swinney leaving the next morning and “heard Mrs. Franklin telling Mr, Swinney to return soon to make some repairs to her apartment.”

¶7. On April 2, 2014, Turner filed a motion for summary judgment, or in the alternative, a partial motion for summary judgment, claiming that Swinney was not its employee at the time of the alleged assault and maintaining that Swinney did not sexually assault Franklin. Turner also submitted an alternative argument that even if Swinney were an employee, he was acting outside his scope of employment “had he committed a sexual act toward Franklin while ‘on-duty.’ ” Franklin filed a motion to extend deadlines on April 29, 2014, and a response to Turner’s summary-judgment motion on May 12, 2014, arguing Turner had “ratified” Swinney’s actions by continuing his employment as a caretaker after he had entered his felony guilty plea.

¶ 8. After a motions hearing held on May 28, 2014, the circuit court granted Turner’s motion for summary judgment on May 30, 2014, finding that Turner had met its burden of proof that Swinney was not an employee “who was acting within the course and scope of his duties at the time of the alleged attack” and that Turner had no knowledge that Swin-ney “may have a violent nature or that an atmosphere of violence exists on [its] premises.” Noting that while it “may be a question for the jury as to whether ... Swinney was an employee or agent” at the time of the attack, the court concluded “that .the alleged sexual assault of [Franklin] by Swinney was not within the scope of his employment, if any.” The circuit court further held that retaining Swinney as an employee' after his entry of a guilty plea for attempted aggravated assault, while “ill-advised,” was “insufficient to impose liability on the Turner defendants for the original acts.” The circuit court denied Franklin’s motion for an extension of deadlines, finding the issue was rendered moot based on its grant of summary judgment.

¶ 9. The circuit court entered a final order under Mississippi Rule of Civil Procedure 54(b). Franklin asserts two issues on appeal: (1) whether the circuit court erred in granting Turner’s motion for summary judgment; and (2) whether the court erred in denying Franklin’s motion to extend deadlines. Finding the circuit court did not err in granting the motion for summary judgment, we affirm; Franklin’s second issue is thereby rendered moot by our decision.

DISCUSSION

Whether the circuit court erred in granting summary judgment.

¶ 10. We conduct a de novo review of a circuit court’s grant or denial of summary judgment. Hubbard v. Wansley, 954 So.2d 951, 956 (¶ 9) (Miss. 2007) (citing Leffler v. Sharp, 891 So.2d 152, 156 (¶9) (Miss. 2004)). “Summary judgment is appropriate when the .evidence is considered in the light most favorable to the nonmoving party, there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law.” Id. (citing M.R.C.P. 56(c)).

A. Whether Swinney was Turner's employee.

¶ 11. Franklin claims that the circuit court erred in accepting Turner’s assertion that Swinney was not an employee and in failing to apply the employee/independent contractor test. However, the record shows the circuit court, in fact, made no determination as to Swinney’s employment status in its order. Rather, it recognized that it “may be a question for [a] jury” whether Swinney was an employee on the day of the attack. The circuit court, instead, went on to address the necessary' question of “whether the alleged actions took place within the scope of [Swinney’s] employment.” Thus, it clearly gave the benefit of the doubt to Franklin, the nonmovant, on this issue, reaching its decision to grant summary judgment based on the assumption that, even if Swinney was an employee, Turner could not be held vicariously hable for Swinney’s alleged tort, as he was acting outside any scope of employment.

,¶ 12, We find no error in the circuit court’s analysis. “An ‘employer is responsible for the torts of its employee only when the torts are committed within the scope of the employment.’ ” Parmenter v. J & B Enters. Inc., 99 So.3d 207, 215-16 (¶ 14) (Miss. Ct. App. 2012) (emphasis added) (quoting Favre v. Wal-Mart Stores Inc., 820 So.2d 771, 774 (¶5) (Miss. Ct. App. 2002)). “[A] master is not liable for its employee’s actions if the employee ‘abandoned his employment and went about some purpose of his own not incidental to the employment.’ ” Id. at 216 (¶ 14) (quoting Favre, 820 So.2d at 774 (¶5)). In Adams v. Cinemark USA Inc., 831 So.2d 1156, 1157-58 (¶¶ 1-5) (Miss. 2002), a patron brought suit against Cinemark under the doctrine of respondeat superior for injuries sustained when a Cinemark employee struck the patron after refusing to admit the patron and two minors to an R-rated film. Evidently, the patron and employee exchanged harsh words prior the altercation. The box office employee’s duties included selling movie tickets and handling money. Id at 1158 (¶ 2). The on-site manager stated in a deposition that employees were trained to avoid confrontation with a patron and to get a manager if a dispute arose. Id. at (¶ 6). The supreme court concluded the employee’s assault of the patron was not incidental to her employment, reasoning: “[The employee’s] act was motivated by personal animosity. She was never vested with any duty on that day other than selling tickets. She assaulted [the patron] because of her anger, not because she was concerned about protecting Cinemark’s property or increasing Cinemark’s profit.” Id. at 1160 (¶ 13). Therefore, summary judgment was properly granted, as there was no genuine issue of material fact as to whether the employee was acting within the scope of her employment in the assault of the patron. Id at 1161 (¶ 16).

¶ 13. Assuming Swinney was employed as a caretaker for Turner at the time of the attack, nothing within his job description required him to assault Franklin in her apartment. Thus, Swinney would have been acting for purposes unrelated to his employment. Furthermore, as Franklin acknowledges in her reply brief, she “has never argued that the attack was within ... Swinney’s scope and course of employment.” We find no error in the circuit court’s grant of summary judgment to Turner based on the theory of respondeat superior, and we affirm' the court’s judgment on this issue.

B. Whether Turner is liable for negligently hiring and retaining Swin-ney as an employee.

¶ 14. Franklin claims that Turner was liable because it knew of Swinney’s propensity for violent behavior and still hired and retained him as an employee. To support her claim, Franklin submitted deposition testimony by the former caretaker, White, that Turner knew Swinney had harassed another tenant, Bertha Gibson, and that Swinney had a drinking problem'. “In' Mississippi, ‘an employer will be hable for negligent hiring or retention of his employee when an employee injures a third party if the employer knew or should have known of the employee’s incompetence or unfitness.’” Parmenter, 99 So.3d at 217 (¶ 18) (quoting Doe v. Pontotoc Cty. Sch. Dist., 957 So.2d 410, 416-17 (¶ 16) (Miss. Ct. App. 2007)).

¶ 15. We find that Franklin has provided no evidence Turner had any prior knowledge Swinney had a propensity for the type of violent behavior to which he pled guilty. White never said he ever saw Swin-ney inebriated and admitted he had no firsthand knowledge that Swinney was fired for drinking. Furthermore, had Turner fired Swinney for being “a drunk” prior to this incident, as claimed by White, this fact does not show that Swinney had the propensity to sexually assault someone.

¶ 16. White did testify that Gibson had cried to him “a couple of times saying [Swinney] wouldn’t leave her alone.” If White was Turner’s employee/caretaker at the time he talked to Gibson, knowledge of his behavior would be imputed to Turner. See Glover v. Jackson State Univ., 968 So.2d 1267, 1276 n.9 (Miss. 2007) (noting that “[a]n employee’s knowledge is imputed to his employer” (citing 30 C.J.S. Employer-Employee § 211 (1992))). However, White’s testimony in regard to his employment status at the time Gibson allegedly made those statements is vague. He initially said Gibson made the statements “[j]ust before [Swinney] messed with [Franklin],” which would have been when White was employed as the caretaker. But upon further questioning, White recanted his testimony, stating: “I don’t remember if I was caretaker then or not. No, I don’t think so. Unh-unh (negative response), I wasn’t the caretaker then.” Thus, as Franklin has not provided sufficient evidence that White was caretaker when Gibson made those statements to create a genuine issue of material fact, we cannot find that White’s knowledge would be imputed to Turner.

¶ 17. Morever, White further said that he discounted Gibson’s claims, as she “wasn’t right” and had exhibited unstable behavior in the past, such as running naked in the parking lot, throwing her clothes in the dumpster, and setting her apartment on fire.

Q. So you really didn’t put a lot of stock in what she said?
A. No, I didn’t — I didn’t put a lot of stock into what she was saying. That’s why I didn’t say nothing about Mr. Swinney messing with her, because I didn’t really know, you know. She just — she just said he did.

Based on all the foregoing, we cannot find a genuine issue of material fact from which negligent hiring could be attributed to Turner.

¶ 18. “[Unsupported speculation and allegations are not sufficient to defeat a motion for summary judgment.” Adams, 831 So.2d at 1161 (¶ 19). The record reflects that Turner ran a criminal background check on Swinney; it showed no criminal offenses. Accordingly, we find this issue is without merit, as Franklin has failed to produce any evidence to show Swinney had a criminal record or any violent tendencies, and nothing indicates any actual or constructive knowledge by Turner.

C. Whether Turner’s retention of Swinney as an employee after his arrest and guilty plea ratified his actions and created liability for Turner.

¶ 19. Franklin further argues that the retention of Swinney as an employee after he pleaded guilty to attempted aggravated assault “ratified” his actions and creates a genuine issue of material fact that Turner is vicariously liable for Swinney’s actions. For an employer to be liable for an employee’s actions, “the act must have been one authorized by the employer prior to its commission, ratified after its commission, or committed within the scope of the employment.” Horton v. Jones, 208 Miss. 257, 261, 44 So.2d 397, 400 (1950) (emphasis added). ‘Where an employer learns of the past intentional conduct and does nothing to reprimand the employee, this acts as a ratification.” Jones v. B.L. Dev. Corp., 940 So.2d 961, 966 (¶ 17) (Miss. Ct. App. 2006) (citing Royal Oil Co. v. Wells, 500 So.2d 439, 446 (Miss. 1986); Allen v. Ritter, 235 So.2d 253, 255-56 (Miss. 1970)). Franklin cites Jones to support her claim. In Jones, this Court held that a genuine issue of material fact existed that B.L. Development was liable for the supervising employee’s sexual harassment of a subordinate employee because the supervisor took “a tangible employment action against an employeeDVic-tim],” and the harassment “was aided” by the agency relationship. Id. at 967 (¶¶ 20, 22). We find Jones distinguishable from the present case. As stated, the supervisor’s sexual harassment of the employee, while not considered to be within the scope of employment, was aided by his position as an agent of the employer. And the “notorious” conduct by the supervisor, Jimmy Miller, was ongoing and known not only to his own supervisor, Rhonda Kennedy, but to several others as well. However, no disciplinary action was taken against Miller until the harassment was reported to Kennedy’s supervisor. Id. at 966 (¶ 18).

¶ 20. In Allen, 235 So.2d at 255, a malicious-prosecution case, the supreme court held: “The principals, where they direct, where the act is within the scope of authority of the agent, or where the principals participate in or ratify the actions of the agents, are liable.” (Citation omitted). Because there was conflicting evidence whether the employee was acting within the scope of the employment, and whether the master ratified the act, it held that such questions “should have been submitted to the jury.” Id. The supreme court made no determination as to whether the retention of the employee in that case constituted ratification.

¶ 21. However, as the circuit judge stated in his order granting summary judgment, our supreme court has held: “While the fact of ... retention of the offending servant in the employment of the master may be admitted in evidence as bearing upon the ratification, the mere retention of the servant in the employment will not constitute such ratification as will render the master liable for the unauthorized act.” Wells v. Robinson Bros. Motor Co., 153 Miss. 451, 459, 121 So. 141, 142-43 (1929). In Craft v. Magnolia Stores Co., 161 Miss, 756, 764, 138 So. 405, 407 (1931), the supreme court reiterated:

Having reached the conclusion that the act of [the servant] was unauthorized so far as the master was concerned, and that he was at the time acting upon his own initiative for purposes of his own and not in the performance of any duty expressed or implied which he owed the master, it then follows that the retention of [the servant] in its employ with knowledge of his tortious act would not render the principal or master liable. The mere fact that such employee is retained in the master’s employ, and mere silence on the master’s part relative to the [tort], is not sufficient evidence that the master adopted the act, nor does it lead to the inference that he assumes responsibility for the servant’s slander of another.

¶22. Accordingly, based on the facts before us, we affirm the circuit court’s holding that Turner’s retention of Swinney as caretaker would not be considered ratification, rendering it vicariously liable for his tortious action, and affirm the circuit court’s grant of summary judgment.

■ ¶ 23. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.

      . The complaint inaccurately states that the assault occurred on February 20, 2012, and that Franklin reported it to police on that same day.

      . For purposes of summary judgment, we accept these statements as true. See Nelson v. Sanderson Farms Inc., 969 So.2d 45, 52 (¶ 14) (Miss. Ct. App. 2006) ("On summary judgment, we are required to accept all evidence and inferences favorable to the plaintiff's case as true.” (citing Harris v. Shields, 568 So.2d 269, 275 (Miss. 1990))).

      .There is disputed evidence whether White was still the caretaker at the time of the incident. He was in the hospital when the attack occurred, and while Franklin contends Swinney was caretaker when he assaulted her, Turner management testified that White was not released from his caretaking duties until January 31, 2012.

      . See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . While the circuit court uses the term "alleged,” we decline to utilize that term, as Swinney did enter a guilty plea to attempted aggravated assault.

      . Swinney is not a party to this appeal.

      . Whether Swinney is an employee of Turner, while a disputed question of fact, is therefore not a material issue of fact. See Bradley v, Kelley Bros. Contractors, 117 So.3d 331, 338 (¶ 27) (Miss. Ct. App. 2013) ("To survive summary judgment, it is not enough that disputed facts exist — such facts must also be material ... in an outcome determinative sense.”'(citing Citifinancial Retail Servs. v. Hooks, 922 So.2d 775, 779 (¶ 18) (Miss. 2006))).

      . There was no testimony by Gibson to support these statements; White testified that she had committed suicide shortly thereafter.

      . For the purposes of summary judgment, this Court will assume Swinney was an employee at the time of the assault. See Nelson, 969 So.2d at 52 (¶ 14).

      . We find the facts of the other case cited by Jones are not applicable to the present case. In Royal Oil Co., 500 So.2d at 441, an employee, Pamela Wells, was accused of embezzlement by another employee, Curtis Miller, and the manager, April Miller (who were married to one another). The employee brought suit for malicious prosecution and argued Royal Oil was liable as the company ratified the Millers’ behavior by failing to "reprimand or fire [them.]” Id. at 446. The supreme court held the evidence showed that the Millers acted with authority on behalf of Royal Oil, and it upheld the verdict in favor of Wells.


author: CARLTON, J„

text:
    Sharone SIMMONS, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00710-COA
    Court of Appeals of Mississippi.
    05/23/2017

      ATTORNEY- FOR APPELLANT: SHARONE SIMMONS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.

      . The record before Ais Court fails .to contain Simmons’s plea colloquy.

   CARLTON, J„

FOR THE COURT:

¶1. On January 8, 2010, the Lafayette County Circuit Court sentenced Sharone Simmons to ten years in the custody of the Mississippi Department of Corrections (MDOC), with eight years suspended and three years of postrelease supervision (PRS), for uttering a forgery in violation of Mississippi Code Annotated section 97-21-59 (Rev. 2006). The trial court later revoked Simmons’s PRS and .imposed his previously suspended eight-year - sentence after finding that Simmons committed a new crime in violation of his PRS. Simmons filed his current motion for postcon-viction relief (PCR) on April 19, 2016. The trial court denied Simmons’s PCR motion, as time-barred. Notwithstanding the time-bar, the trial court also found that Simmons’s motion lacked merit. Aggrieved, Simmons timely appeals. -

¶2. On appeal, Simmons argues: (1) the trial court unlawfully revoked his PRS; (2) newly discovered evidence entitles him to relief; (3) his right against double jeopardy was violated; (4) his indictment .was defective; and (5) his right to a speedy trial was violated.

¶3. Finding no error in the trial court’s denial of Simmons’s PCR motion as time-barred, we affirm.

FACTS

¶4. On January 8, 2010, the trial court sentenced Simmons to ten years in MDOC’s custody, with eight years suspended and three years of PRS, for uttering a forgery in violation of section 97-21-59. On October 17, 2011, Simmons entered an initial appearance for the sale of cocaine in violation of Mississippi Code Annotated section 41-29-139 (Rev. 2009). By its December 16, 2011 order, the trial court revoked Simmons’s PRS and imposed his previously suspended eight-year sentence because the trial court found that Simmons committed a “new felony crime — sale of cocaine” and was “a[ ] habitual offender.”

¶5. On June Í4, 2012, a grand jury indicted Simmons for the sale of a controlled substance in violation of section 41-29-139(a)(1). Pursuant to a negotiated plea agreement, Simmons signed a plea petition on July 9, 2014. The plea petition stated that Simmons, who was under oath, pled guilty to the sale of a controlled substance in exchange for the district attorney’s recommendation of a one-year sentence. The one-year sentence was to run consecutively to Simmons’s eight-year sentence for' his 2010 conviction (uttering a forgery). In its July 9, 2014 judgment, the trial court accepted Simmons’s guilty plea and sentenced him according to the district attorney’s recommendation.

¶6. On April 19, 2016, Simmons filed his current PCR motion to attack the validity of his 2010 conviction for uttering a forgery. Because Simmons filed the motion six years after his January 8, 2010 sentencing, the trial court denied the motion as time-barred. Notwithstanding the time-bar, the trial court found Simmons’s motion lacked merit. Aggrieved, Simmons appeals.

STANDARD OP REVIEW

¶7. “When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s decision if it is clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review.” Thinnes v. State, 196 So.3d 204, 207-08 (¶ 10) (Miss. Ct. App. 2016) (quoting Carson v. State, 161 So.3d 153, 155 (¶ 2) (Miss. Ct. App. 2014)).

DISCUSSION

¶8. As a preliminary matter, only two issues Simmons raises are properly before this Court on appeal. Mississippi Code Annotated section 99-39-9(2) (Rev. 2015) provides: “A motion 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.”

¶9. In Simmons’s current PCR motion, he identifies his 2010 conviction for uttering a forgery as the subject of the motion. From a review, of the record and Simmons’s brief, however, it appears Simmons’s requests for relief regarding double jeopardy, a defective indictment, and a speedy trial relate only to his 2014 conviction for the sale of a controlled substance. Because these issues are not properly before this Court, we decline to consider them on appeal. Instead, we limit our review to Simmons’s claims regarding the unlawful revocation of his PRS and newly discovered evidence, which pertain to his 2010 conviction.

¶10. Upon review, we acknowledge that Mississippi Code Annotated section 99-39-5(2) (Rev. 2015) “provides that PCR motions ‘shall be made ... within three (3) years after entry of the judgment of conviction’ in cases involving guilty pleas.” Cummings v. State, 203 So.3d 1174, 1175 (¶ 7) (Miss. Ct. App. 2016) (quoting Miss. Code Ann. § 99-39-5(2)). Thus, Simmons’s current PCR motion concerning his 2010 conviction, to which he acknowledges he pled guilty, is time-barred by the three-year time limit unless Simmons can show an exception applies. As set forth below, however, we find that Simmons fails to meet his burden.

¶11. As the PCR movant, Simmons bears the burden of demonstrating that his claims are not procedurally barred and that an exception applies. See McComb v. State, 135 So.3d 928, 931-32 (¶¶10, 13) (Miss. Ct. App. 2014). Three statutory exceptions exist to the three-year time limit, two of which Simmons raises on appeal: (1) “his parole, probation, or conditional release has been unlawfully revoked”; and (2) the existence of “new evidence, not reasonably discoverable at trial, which would have caused a different result in the conviction or sentence.” Cummings, 203 So.3d at 1176 (¶ 8) (citing Miss. Code Ann. §§ 99-39-5(2)(a)-(b) & 99-39-23(6)).

¶12. Simmons first argues that the trial court unlawfully revoked his PRS. “A probationer does not have to be convicted of a crime to be in violation of his probation[;] rather, probation may be revoked when it is more likely than not that a violation has occurred.” McCalpin v. State, 166 So.3d 24, 26-27 (¶ 7) (Miss. 2013) (citation omitted). The record here does not contain the conditions of Simmons’s PRS. The record does contain, however, Simmons’s “Certificate of Initial Appearance,” which states that Simmons was charged with the sale of cocaine in violation of section 41-29-139. In the trial court’s order revoking Simmons’s PRS, the trial court found that Simmons’s commission of the crime of the sale of cocaine violated the terms of his PRS. Simmons fails to provide in the record any evidence to contradict the trial court’s finding. Thus, the trial court’s finding that Simmons violated the terms of his PRS was not clearly erroneous, and Simmons’s argument that his PRS was unlawfully revoked lacks merit.

¶ 13. Simmons also argues that newly discovered evidence entitles him to relief. To succeed on this claim, Simmons must show:

(1) the new evidence was discovered after the trial; (2) it could not by due diligence have been discovered prior to trial; (3) it is material to the issue and not merely cumulative or impeaching; and (4) the new evidence will probably produce a different result or verdict in the new trial.

Van Norman v. State, 114 So.3d 799, 801 (¶ 11) (Miss. Ct. App. 2013) (citing Crawford v. State, 867 So.2d 196, 203-04 (¶ 9) (Miss. 2003)). Simmons asserts that the officer who arrested him for the sale of a controlled substance was fired for fabricating charges against defendants, including Simmons, and that “all cases involving [Simmons’s arresting officer] were thrown out.”

¶ 14. Simmons fails, however, to support his bare assertions with any legal authority or record evidence. As the movant, Simmons bears the burden of providing authority and support for his assignments of error, and if he does not provide such support for an assignment of error, this Court is under no duty to consider the claim. See Hoops v. State, 681 So.2d 521, 526 (Miss. 1996). Because Simmons fails to provide any support for his argument beyond his own assertions, we find no merit to his claim that newly discovered evidence entitles him to relief.

CONCLUSION

¶ 15. Simmons fails to demonstrate on appeal that an exception to the three-year statutory time-bar applies. As a result, we find no error in the trial court’s denial of his PCR motion.

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

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

      . See Miss. Code Ann. § 47-7-37.1 (Rev. 2035) (providing that the commission of a felony constitutes a substantive violation that warrants the revocation of probation).

      . See Ivy v. State, 103 So.3d 766, 770 (¶ 13) (Miss. Ct. App. 2012) ("This Court ‘will not consider matters which are outside the record and must confine ourselves to what actually does appear in the record.’ ” (quoting Jones v. State, 776 So.2d 643, 649 (¶ 17) (Miss. 2000))).


author: GRIFFIS, P. J.,

text:
    Cornell STUBBS a/k/a Cornell Leland Stubbs a/k/a Cornell L. Stubbs, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00924-COA
    Court of Appeals of Mississippi.
    05/23/2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: BENJAMIN A. SUBER.
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART.
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   GRIFFIS, P. J.,

FOR THE COURT:

¶ 1 Cornell Stubbs appeals his conviction of burglary of a storage shed. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Stubbs and Jonathan Holmes were indicted on the charge of burglary of a building other than a dwelling pursuant to Mississippi Code Annotated section 97-17-33 (Supp. 2013). The indictment was subsequently amended to charge Stubbs as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2014). The State of Mississippi proceeded to trial against Stubbs. At the conclusion of voir dire, Stubbs advised the circuit court that he no longer wanted his attorney to represent him. Following instructions from the circuit court, Stubbs waived his right to counsel and proceeded to trial self-represented. The circuit court ordered Stubbs’s trial counsel to remain present to assist, if necessary.

¶ 3. At trial, the victim, Williams Jones, testified that he was in his yard when he heard a loud pop come from the direction of his storage shed. Although there was a fence between Jones and the shed, Jones stated he could see that the top of the door to the shed was open. Jones looked over the fence and saw a truck backed up to the shed and two men standing at the entrance of the shed. The two men were later identified as Stubbs and Holmes. Jones stated he saw Stubbs and Holmes grabbing stuff from inside the shed. When Jones asked them what they were doing, Stubbs responded that “John Smith” had given them permission to enter the shed and take the property. Jones then called 911. Stubbs and Holmes subsequently left in the truck. Shortly thereafter, they were stopped by law enforcement.

¶ 4. Sergeant Clint Breland located the truck approximately two to three blocks from Jones’s residence. Breland testified that Stubbs was driving the truck and Holmes was in the passenger seat. After Breland initiated the traffic stop, he observed a pair of bolt cutters, a broken lock, and a measuring wheel in the back of the truck.

¶ 5. Detective Tyson Fairley, the lead investigator on the ease, responded to the scene. Fairley collected into evidence a large industrial-size bolt cutter, a damaged lock, and' a road-measuring tool, which were found in the back of the subject truck. Fairley subsequently interviewed Stubbs. During the interview, Stubbs admitted to cutting and/or assisting in cutting the lock. When Fairley asked Stubbs to give him a description of John Smith, Stubbs was unable to describe Smith, other than to say that Smith was about the same height as Stubbs. Additionally, Stubbs’s description of the vehicle that Smith was driving changed throughout the interview. In the beginning of the interview, Stubbs advised that Smith was driving a truck, but later described Smith’s vehicle as a van. Fairley stated that the measuring wheel was determined to be Jones’s property and was ultimately returned to Jones.

¶6. In support of his defense, Stubbs called Jonathan Magee and Holmes as witnesses. Magee testified that the night before their arrest, Stubbs and Holmes were at his house working on a remodeling project. Magee gave Stubbs “a draw on the job” in the amount of $800. After Stubbs and Holmes left his house that night, Ma-gee did not hear from them again. A couple of days later, Magee learned that Stubbs and Holmes had been arrested. As a result, Magee posted bail for Stubbs and Holmes. Stubbs and Holmes then finished the job at Magee’s house. Magee testified that Stubbs and Holmes had worked at his house alone numerous times and had never stolen anything. On cross-examination, Magee acknowledged that he was not with Stubbs or Holmes on the day of the alleged burglary and did not know what Stubbs or Holmes did that day.

¶ 7. Holmes testified that on the morning of the incident, he and Stubbs were driving in their truck and saw a man, later identified as John Smith, in front of a storage shed who looked like he was struggling. Holmes asked Smith if he needed help, to which Smith replied, “yeah, man, I need some help.” As a result, Holmes got out of the truck, and Stubbs backed up the truck to the shed, popped the lock, and opened the door to the shed. As the door opened, a measuring wheel fell out of the shed. According to Holmes, Smith said they could take the measuring wheel. Stubbs then picked up the measuring wheel and threw it in the back of the truck.

¶8. Holmes stated that Smith subsequently left to get his truck and trailer. Approximately thirty-five seconds later, Jones came out and asked Holmes and Stubbs what they were doing. Stubbs explained to Jones that it was a mistake, and that he would pay for the broken lock. Stubbs attempted to explain to Jones that Smith would be right back. However, Jones interrupted Stubbs and advised that he was “going to [his] gate” and would “be back.” Stubbs decided not to wait for Jones to come back, and he and Holmes left in their truck.

¶ 9. On cross-examination, Holmes described Smith as a thirty-eight- to thirty-nine-year-old Caucasian, who was about six feet tall, with a beard. Holmes stated Smith was driving a car, not a truck, but could not recall the color of the car. On redirect, Holmes changed his testimony and stated that Stubbs did not pop the lock, nor did Stubbs go near the shed other than to look in it. Additionally, Holmes claimed that Stubbs did not steal anything from the shed.

¶ 10. Stubbs was found guilty of burglary and sentenced, as a habitual offender, to serve seven years in the custody of the Mississippi Department of Corrections, Stubbs filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied. Stubbs now appeals and argues: (1) the verdict was against the overwhelming weight of the evidence, (2) the circuit court erroneously failed to continue the trial after he fired his counsel, and (3) he was denied his fundamental right to a preliminary hearing.

ANALYSIS

I. The Weight of the Evidence

¶ 11. Stubbs first argues the verdict was against the overwhelming weight of the evidence and, as a result, he is entitled to a new trial. Stubbs does not explain how the verdict was against the overwhelming weight of the evidence, nor does he cite any authority in support of his position, other than this Court’s standard of review. Instead, Stubbs simply argues that when one looks at the facts as presented, “[his] story seems plausible.” We disagree and find the evidence supports the verdict.

¶ 12. “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.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss. 2005). The evidence is weighed in the light most favorable to the verdict. Id.

¶ 13. Burglary of a nondwelling consists of the breaking and entering of a building, in which any goods, merchandise, equipment, or valuable thing is kept for use, sale, deposit, or transportation, with the intent to steal therein, or to commit any felony. Gales v. State, 131 So.3d 1238, 1240 (¶ 9) (Miss. Ct. App. 2013) (citing Miss. Code Ann. § 97-17-33(1)). “The slightest physical entry into the previously secure enclosure is sufficient to satisfy the ‘entering’ component of a burglary.” Ram-er v. State, 156 So.3d 919, 923 (¶ 12) (Miss. Ct. App. 2014) (quoting Henderson v. State, 756 So.2d 811, 813 (¶ 8) (Miss. Ct. App. 2000)).

¶ 14. The testimony shows Stubbs popped the lock to the shed using bolt cutters, opened the door to the shed, picked up the measuring wheel that had fallen out of the shed, and put the measuring wheel in his truck. The measuring wheel and the damaged lock, both of which were owned by Jones, were found in Stubbs’s truck.

¶ 15. Although Holmes testified that he and Stubbs were simply helping Smith, and had permission from Smith to take the measuring wheel from the shed, the jury rejected this testimony. “[T]he jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness.” Lewis v. State, 110 So.3d 814, 817 (¶ 7) (Miss. Ct. App. 2013) (quoting Meshell v. State, 506 So.2d 989, 992 (Miss. 1987)). The jury heard testimony from Jones and Holmes, and therefore heard both versions of the story. Although Stubbs claims his story is plausible, the jury determined otherwise.

¶ 16. Having considered the evidence, we do not find the verdict to be so contrary to the overwhelming weight of the evidence that to allow the verdict to stand would sanction an unconscionable injustice. Accordingly, we find the circuit court’s denial of Stubbs’s motion for a new trial was proper.

II. Trial Continuance

¶ 17. Stubbs next argues he was “forced” to go to trial after terminating his counsel. Stubbs claims the circuit court should have continued the trial. We find this assignment of error is procedurally barred.

¶ 18. Stubbs failed to provide authority and support for this assignment of error. “It is the duty of an appellant to provide authority and support of an assignment of error,” Wilcher v. State, 863 So. 2d 776, 811 (¶ 102) (Miss. 2003). Because Stubbs has failed to provide authority to support, his assignment of error, this issue is procedurally barred. Id.

¶ 19. Procedural bar notwithstanding, we find Stubbs’s claim fails. According to Stubbs, his attorney “did not adequately respect his wishes to have certain witnesses present to aid in his defense.” However, the record shows Stubbs’s witnesses were present and testified on his behalf. Thus, Stubbs was allowed to put on evidence in support of his defense. Importantly, Stubbs never moved for a continuance. Instead, as acknowledged by Stubbs in his brief to this Court, Stubbs “insisted on representing himself.”

¶ 20. “The decision to grant or deny a continuance is left to the sound discretion of the [circuit] court.” Moore v. State, 873 So.2d 129, 131 (¶8) (Miss. Ct. App. 2004). While a defendant has the right to counsel, “the right to choose counsel is not absolute” and “must not be abused or manipulated in such a way as to ‘thwart the progress of a trial.’” Id. at (¶ 10).

¶ 21. Upon review, we find no abuse of discretion in the circuit court’s failure to continue the trial.

III. Preliminary Hearing

¶22. In his pro se supplemental brief, Stubbs argues his “fundamental constitutional right to a serious preliminary hearing” was denied. Stubbs claims his attorney forged Stubbs’s name on the waiver of preliminary hearing, which “hindered his right to present a defense in calling witnesses in his favor.” Stubbs asserts that pursuant to “Rules 1.04 and .1.07,” he could have produced and cross-examined certain witnesses during his preliminary hearing to show that no probable cause existed for his arrest.

¶23. We find no support for Stubbs’s claim that his signature was forged. Moreover, the authority upon which Stubbs relies has been superceded.

¶ 24. The purpose of a preliminary hearing is to determine probable cause and the conditions for release, if any. URCCC 6.04. If from the evidence it appears that there is probable cause to believe that an offense has been committed, and that the defendant committed it, the defendant is bound over to await action of the grand jury. Id. If no probable cause exists, the defendant is discharged from custody. Id.

¶ 26. In support of his claim, Stubbs relies on Uniform Criminal Rules of Circuit Court Practice 1.04 and 1.07. Under Rules 1.04 and 1.07, at the preliminary hearing, a defendant was allowed to produce witnesses on his behalf and to cross-examine witnesses against him. However, on May 1,1995, Uniform Criminal Rules of Circuit Court Practice 1.04 and 1.07 were superceded by Uniform Rules of Circuit and County Court 6.04 and 6.05. Pursuant to Rules 6.04 and 6.05, a defendant no longer has the right to call or cross-examine witnesses during the preliminary hearing.

¶26. Had a preliminary hearing occurred, Rules 6.04 and 6.05 would have applied. Thus, Stubbs would not have had the right to call and/or cross-examine witnesses at the preliminary hearing. Accordingly, Stubbs’s claim of a “hindered” defense is without merit.

¶27. We find Stubbs’s claim fails as there is no evidence of forgery, and Rules 6.04 and 6.05 control.

¶ 28. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A NONDWELLING AND SENTENCE AS A HABITUAL OFFENDER OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PROBATION, PAROLE, OR EARLY RELEASE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

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

      . Stubbs was unable to advise Fairley of Smith’s race, age, hair color, or whether Smith had a beard, mustache, or any other physical attribute.

      . The record shows that Holmes, the codefen-dant, was represented by counsel and had been advised of his rights and the potential dangers of testifying on behalf of Stubbs. Despite this, Holmes elected to testify.


text:
    COMPETITION MARINE OF MS, INC. a/k/a Competition Sports of MS, Inc. and Gina Prichard Nadeau, Appellants v. WHITNEY BANK, a Mississippi State Chartered Bank f/k/a Hancock Bank, a Mississippi State Chartered Bank Doing Business Under Trade Name Hancock Bank, Appellee
    NO. 2016-CA-00007-COA
    Court of Appeals of Mississippi.
    05/23/2017

      ATTORNEYS FOR APPELLANTS: WILLIAM B. WEATHERLY, RICHARD CLARENCE SMITH
    ATTORNEYS FOR APPELLEE: MICHAEL ANTHONY SHAW, BENJAMIN HARTE HARRIS III
    BEFORE LEE, C.J., BARNES, ISHEE AND GREENLEE, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. In this debt-collection case, Compe.tition Marine of MS Inc. (Competition Marine) and Gina Nadeau, its president, appeal the judgment of the Circuit Court of Harrison County, which granted Whitney Bank’s motion for summary judgment. The case involved two promissory notes executed by Appellants in favor of Whitney Bank. The trial court awarded Whitney Bank $633,401.72 on the first promissory note (Note 1). This amount represented principal, accrued interest, and late fees; pre-judgment interest of $9,243.82; and post-judgment interest at the rate of 5.250%. The trial court awarded Whitney Bank $191,324.80 on the second promissory note (Note 2), representing principal, accrued interest, and late fees; pre-judgment interest of $2,928.96, and post-judgment interest at the rate of 6.0%. The trial court also awarded attorney fees at the rate of 25% of the indebtedness. Finding no error, we affirm the trial court’s decision granting summary judgment in favor of Whitney Bank.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On July 6, 2007, Competition Marine executed Note 1 payable to Whitney Bank for the principal amount of $700,000 at an interest rate of 7.5%. Nadeau, as president of Competition Marine, executed a Commercial Guaranty for the loan, personally guaranteeing full repayment for Competition Marine’s indebtedness to the bank. Note 1 was to be repaid in fifty-nine monthly installments of $5,703.79, beginning August 20, 2007. Note 1 was secured by a deed of trust in favor of the bank on real property at 309 Courthouse Road in Gulfport, Mississippi. On August 24, 2012, Competition Marine renewed Note 1 for another five years with the principal amount totaling $632,555.84.

¶ 3. On December 8, 2011, Competition Marine executed a second promissory note, Note 2, payable to Whitney Bank for the principal amount of $191,324.80, with an interest rate of 6%, to be repaid in fifty-nine monthly installments of $2,132.61, beginning January 8, 2012. The provisions of Note 2 were similar to that of Note 1. Collateral for the loan consisted of deeds of trust in favor of Whitney Bank on real property at 309 Courthouse Road, and additionally, #2 Villa Cove Drive in Gulf-port. Nadeau again personally guaranteed the commercial loan.

¶ 4. On July 15, 2014, counsel for Whitney Bank sent two letters to Nadeau demanding payment on the loans as they were in default. When payment was not made Whitney Bank sued Competition Marine and Nadeau for monetary damages in the amount of $748,496.19. Whitney Bank also sought attorney’s fees of at least 25% of this figure, or $187,124.05, and other expenses, as well as pre- and post-judgment interest.

¶ 5. Competition Marine and Nadeau in turn filed a counterclaim against Whitney Bank on the grounds the bank intentionally misled them into believing the loans were current in order to add fees and interest to the debt. Also, Nadeau believed the payments were being automatically drafted from a bank account. Competition Marine and Nadeau also claimed that Whitney Bank was deliberately bringing financial harm to them by suing on collection of the debt rather than invoking rights under the deeds of trust. They contend the bank refused to release the deeds of trust, thereby making it impossible for them to use the collateral to satisfy the debt.

¶ 6. On August 4, 2015, Whitney Bank moved for summary judgment. Competition Marine and Nadeau responded, arguing the bank should be required to foreclose on the underlying collateral before obtaining summary judgment for monetary damages, because a foreclosure sale would reduce Nadeau’s liability under the guaranties. They acknowledged their argument was not supported by current law but based on principles of fairness, equity, and public policy.

¶ 7. After a hearing, the circuit court granted summary judgment in favor of Whitney Bank. Competition Marine and Nadeau timely appealed.

STANDARD OF REVIEW

¶8. An appellate court reviews a trial court’s grant of a motion for summary judgment de novo. Bosarge v. LWC MS Properties LLC, 158 So.3d 1137, 1142 (¶ 14) (Miss. 2015) (citation omitted). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” M.R.C.P. 56(c). “The moving party has the burden of demonstrating that no genuine issue of material fact exists, and the nonmoving party must be given the benefit of the doubt concerning the existence of a material fact.” Bosarge, 158 So.3d at 1142 (¶ 14). If the moving party meets its burden, the non-moving party “may not rest upon the mere allegations or denials of the pleadings,” but “must set forth specific facts showing there is ■ á genuine issue for trial.” Id. (citation omitted).

ANALYSIS

¶ 9. Appellants argue that a genuine issue of fact remains regarding whether Whitney Bank acted reasonably in choosing to proceed with a collection action against Appellants before pursuing foreclosure proceedings on the real-estate collateral used to secure the loan. They admit current Mississippi law is not in their favor, but make a public-policy argument to change the law in this area.

¶ 10; Appellants base their “reasonableness”-argument upon the contractual principle of the implied covenant of good faith and fair dealing. Appellants claim a party who has. broad contractual discretion “owes a duty to the other party to exercise discretion in a reasonable and expected manner that is consistent and non-interfering with the other party’s attempt to comply with the terms of the contract.” For public policy’s sake, Appellants contend that bank creditors' should not be permitted to “strategically prosecute collection actions against debtors and guarantors while simultaneously holding on to their rights” in the collateral that secures the debt, when the debt could' be reduced by a foreclosure sale. Furthermore, they suggest this policy would also substantially reduce the attorney’s fees awarded in these types of actions.

¶ 11. More specifically, Appellants request that the controlling authority of West Point Corp. v. New North Mississippi Federal Savings & Loan Association, 506 So.2d 241 (Miss. 1987), be revisited and .overturned. In West Point, the Mississippi Supreme Court held that the lender “had the right to sue and recover in a coulrt of law on the promissory note, without first proceeding to a foreclosure of the deed of trust.” Id. at 242. The court cited the American Jurisprudence treatise in support: “[A] creditor whose debt is secured by mortgage may pursue his remedy in personam for the debt, or his remedy in rem to subject the mortgaged property to its payment.” Id. (citing 55 Am. Jur. 2d Mortgages § 541 (1971)). Additionally, the West Point Court stressed the long-standing nature of this holding by citing Rea v. O’Bannon, 171 Miss. 824, 158 So. 916 (1935). Rea.discussed how, in the context of a default where there was a lien- on the property, a promissory note holder has the right to elect the remedy of either foreclosure or collect the debt in a legal forum, or both. Id. at 832, 158 So. at 918.

¶ 12, This Court has addressed a similar situation in Knight Properties Inc. v. State Bank & Trust Company, 77 So.3d 491 (Miss. Ct. App. 2012). In Knight, this Court affirmed summary judgment in favor of the lender/bank. Id. at 492-93 (¶ 1). As here, the corporate borrower had secured a commercial loan with real estate and later defaulted on the loan. Id. at 492 (¶ 1). One of the officers, Chad Knight, executed a commercial guarantee. Id. at 493 (¶ 4). Although Knight .claimed the collateral was valued at $300,000, he failed to inform the bank that the property had restrictions which substantially decreased its value. Id. Upon default, the bank began foreclosure proceedings until it discovered the discrepancy in the land’s value. Id. Because of the discrepancy, the bank decided to forego foreclosure and pursue a monetary judgment against the corporation and the guarantor. Id. at (¶ 5). Based upon the principle established in Rea and West Point that “there is no inconsistency in a mortgagee’s legal and equitable rights” after a breach, this Court held that the lender was not precluded by the doctrine of election of remedies from seeking monetary judgment against a promisor and guarantor instead of foreclosure. Id. at 494-95 (¶15) (quoting Rea, 171 Miss. at 832, 158 So. at 918). Knight illustrates the longstanding law in Mississippi that a lender has multiple remedies upon default, and may sue upon the note before foreclosing on collateral.

¶ 13. Here, the loan documents for both notes specifically call for monetary payment to the bank, and do not require the bank to foreclose in the event of a default. Accordingly, the lender may choose to proceed with a collection suit on the loan instead of foreclosing on real-estate collateral. Appellants here cited no Mississippi authority to the contrary. Instead, Appellants cite cases from Idaho and New Jersey in support of a “foreclosure-first rule.” However, these cases are governed by unique state statutes. Idaho’s “one-action rule” requiring that a mortgagee exhaust the security before proceeding against the debtor on the underlying debt is based on statute. See Eastern Idaho Prod. Credit Ass’n v. Placerton Inc., 100 Idaho 863, 606 P.2d 967, 971 (1980); McCray v. Twitchell, 112 Idaho 787, 735 P.2d 1098, 1099 (Idaho Ct. App. 1987). The New Jersey casé cited by the Appellants is also based on a state statute. See Wildwood Title & Trust Co. v. Geisenhoner, 11 N.J. Misc. 871, 168 A. 751, 752 (1933). The case explains the statute was “enacted to counteract a prevailing evil which then existed and which was very oppressive to mortgage debtors.” 168 A. at 753. However, the Appellee notes current New Jersey statutory law excludes commercial loans from the foreclosure-first rule. See N.J.S.A. 2A: 50-2.3. Appellants’ arguments for a “foreclosure-first rule” are more appropriately addressed to the Mississippi Legislature.

¶ 14. Appellants’ argument that such lending practices breach the implied covenant of good faith and fair dealing also fails. The Mississippi Uniform Commercial Code defines “good faith” as “honesty in fact and the observance of reasonable commercial standards of fair dealing.” Miss. Code Ann. § 75-1-201(b)(20) (Rev. 2016). We cannot say, under the promissory notes executed, that the transaction was contractually unfair or unreasonable according to current commercial lending practices in Mississippi. Additionally, the Mississippi Supreme Court has stated that taking actions expressly authorized by the contract cannot breach the implied covenant of good faith and fair dealing. See Limbert v. Miss. Univ. For Women Alumnae Assoc., 998 So.2d 993, 999 (¶ 14) (Miss. 2009) (quoting GMAC v. Baymon, 732 So.2d 262, 269 (¶ 29) (Miss. 1999)).

¶ 15. Most importantly, however, this Court is not at liberty to overturn Mississippi Supreme Court precedent, regardless of any possible public-policy benefits or principles of equity. We are “bound to uphold and apply all precedent handed down from the supreme court” and are not “empowered to reverse the precedent surrounding the issue presented.” Carr v. State, 942 So.2d 816, 817 (¶ 4) (Miss. Ct. App. 2006). Under current Mississippi case law, Whitney Bank’s actions were legal and proper; Appellants have failed to create a genuine issue of material fact to the contrary. Therefore, we find the trial court did not err in granting summary judgment in favor of Whitney Bank.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY, FIRST JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Whitney Bank was formerly known as Hancock Bank, a Mississippi state-chartered bank doing business under the trade name Hancock Bank. Although many of the pertinent events occurred while the bank was known as Hancock Bank, we shall refer to the Appellee as Whitney Bank throughout.

      . Note 1 provided the following:
      LATE CHARGE. If a payment is 16 days or more late, Borrower will be charged 4.000% of the unpaid portion of the regularly scheduled payment or $5.00, whichever is greater.
      INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, the total sum due under this Note Will continue to accrue interest at the interest rate under this Note.
      DEFAULT. Each of the following shall constitute an event of default ("Event of Default”) under this Note:
      Payment Default: Borrower fails to make any payment when due under this Note.

      LENDER’S RIGHTS. Upon default Lender may declare the entire unpaid principal balance under this Note and all accrued unpaid interest immediately due, and then Borrower will pay that amount.
      ATTORNEYS’ FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits under applicable law, Lender’s attorneys’ fees and Lender’s legal expenses, whether or not there is a lawsuit, including attorneys’ fees, expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), and appeals, if not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law.

      .The Commercial Guaranty stated as follows:

        CONTINUING GUARANTEE OF PAYMENT AND PERFORMANCE. For good and valuable consideration, Guarantor absolutely and unconditionally guarantees, full and punctual payment and satisfaction of the Indebtedness of Borrower to Lender, and the performance and discharge of all Borrower’s obligations under the- Note and the Related Documents. This is a guaranty of payment and performance and not of collection, so Lender can enforce this Guaranty against Guarantor even when Lender has not exhausted Lender’s remedies against anyone else obligated to pay the Indebtedness or against any collateral securing the indebtedness, this Guaranty or any other guaranty of the Indebtedness. Guarantor will make any payments to Lender or its order, on demand, in legal tender of the United States of America, in same-day funds, without set-off or deduction or counterclaim, and will otherwise ■ perform Borrower’s obligations under the Note and Related Documents. Under this Guaranty, Guarantor’s liability is unlimited and Guarantor’s obligations are continuing.
      (Emphasis added).

      . The Rea Court stated; "There is no inconsistency between the legal and equitable remedial rights possessed by a mortgagee in case of a breach, and he may exercise them all at the same time, and resort to one is not a waiver of the other.” Id. at 832, 158 So. at 918.

      . The Idaho Supreme Court explained, however, that the law was established for public policy concerns: "To allow the creditor to retain the security without ascertaining its value, and then to give him a judgment for the full amount of the debt, is contrary to the policy of Idaho law requiring foreclosure pri- or to recovery on the debt.” Placerton Inc., 606 P.2d at 972.


author: WILSON, J.,

text:
    Elliott FREEMAN a/k/a Elliott Anthony Freeman a/k/a Elliott A., Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00986-COA
    Court of Appeals of Mississippi.
    05/30/2017

      ATTORNEY FOR APPELLANT: ELLIOTT FREEMAN (PRO SE)
    ATTORNEY FOR APPELLEE: KAY-LYN HAVRILLA MCCLINTON
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. Elliott Freeman appeals from the summary dismissal of his second motion for post-conviction relief (PCR). Freeman pled guilty but now alleges that his indictment failed to charge the crime of burglary of a dwelling. Freeman’s claim is barred because his motion is an impermissible successive PCR motion filed well beyond the three-year statute of limitations of the Uniform Post-Conviction Collateral Relief Act (UPCCRA). Moreover, even if Freeman’s claim were not procedurally barred, it is wholly without merit. Freeman’s appellate brief raises additional issues that were not presented to the circuit court; however, these issues are also procedurally barred and without merit. Therefore, we affirm.

FACTS

¶2. In 2009, Freeman pled guilty as a habitual offender to conspiracy to commit burglary of a dwelling, burglary of a dwelling, and petit larceny. In connection with Freeman’s plea, the district attorney agreed to allow him to plead guilty as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015) rather than under section 99-19-83. The court imposed consecutive sentences of five years for conspiracy and twenty-five years for burglary and a concurrent sentence of six months for petit larceny.

¶ 3. In 2011, Freeman filed a PCR motion in the trial court. The motion was denied, and Freeman’s appeal was dismissed as untimely. Freeman v. State, No. 2011-TS-00747-COA (Miss. Ct. App. July 26, 2011).

¶4. In 2016, Freeman filed a second PCR motion in which he alleged that his indictment failed to charge a crime. The circuit court reviewed Freeman’s motion and determined that it was time-barred, an impermissible successive writ, and without merit. Accordingly, the circuit court summarily dismissed the motion. Freeman filed a timely notice of appeal.

DISCUSSION

¶5. On appeal, Freeman repeats his challenge to the sufficiency of the indictment. He also raises new claims that his plea was not voluntary and that he received ineffective assistance of counsel, and he argues that his claims are not subject to the procedural bars of the UP-CCRA.

¶ 6. A movant “who fails to raise an issue in his [PCR] motion ... before the trial court may not raise that issue for the first time on appeal.” Fluker v. State, 17 So.3d 181, 183 (¶ 6) (Miss. Ct. App. 2009) (citing Gardner v. State, 531 So.2d 805, 808-09 (Miss. 1988)). Therefore, Freeman’s claims of ineffective assistance and an involuntary plea are procedurally barred on appeal.

¶ 7. Those claims are also barred because this is Freeman’s second PCR motion and because the motion is untimely. Miss. Code Ann. §§ 99-39-5(2) & -23(6) (Rev. 2015). “The [S]upreme [C]ourt has held that claims of ineffective assistance of counsel and involuntary guilty pleas are ... subject to the procedural bars” of the UPCCRA. Salter v. State, 64 So.3d 514, 518 (¶ 14) (Miss. Ct. App. 2010) (citing Kirk v. State, 798 So.2d 345, 346 (¶6) (Miss. 2000)). Moreover, the circuit court engaged Freeman in a thorough colloquy before accepting his plea, the State presented a sufficient factual basis for the plea, and Freeman stated under oath that he was satisfied with his lawyer’s performance and had no complaints whatsoever about his representation. Put simply, there is no record evidence to support Freeman’s claims of an involuntary plea and ineffective assistance.

¶8. We assume for the sake of argument that Freeman’s challenge to his indictment is not procedurally barred. See Dever v. State, 210 So.3d 977, 981 (¶ 12) (Miss. Ct. App. 2017) (citing Jefferson v. State, 556 So.2d 1016, 1019 (Miss. 1989)). Freeman’s argument focuses on his indictment for burglary (Count 2), which charged that on or about March 15, 2008, Freeman and his accomplice “did willfully, unlawfully and feloniously, break and enter the dwelling house of [the victim], with the intent to commit the crime of Larceny therein, in violation of Section 97-17-23, Mississippi Code.” Freeman argues that this was insufficient to charge the crime of burglary because it failed to identify the specific property taken from the dwelling.

¶ 9, This argument is without merit. To begin with, Count 3 of the indictment charging Freeman with petit larceny specifically identified the property taken from the dwelling. Thus, read as a whole, the indictment was more than sufficient to charge the crime of burglary and to give Freeman fair notice of all of the charges against him. Martin v. State, 65 So.3d 882, 883-85 (¶¶ 6-9) (Miss. Ct. App. 2011).

¶ 10. Moreover, there is no requirement that items of stolen property be specifically identified' in an indictment for burglary of a dwelling with the intent to commit larceny' therein. As the Mississippi Supreme Court has explained,

The elements of burglary are (1) breaking and entering the dwelling house or inner door of such dwelling house of another (2) with the intent to commit some crime therein. The crime of burglary does not contain two separate and ■ distinct “subcrimes.” Rather, the intent to commit some crime, be it a felony or misdemeanor, is simply, an element of the.crime of burglary. The State is not obligated to prove that the accused actually committed the underlying offense of burglary. Only the intent need be proven to establish the second element of the crime of burglary.

White v. State, 195 So.3d 765, 768-69 (¶ 11) (Miss. 2016) (internal citations, brackets, alterations, and quotation marks omitted). Thus, to convict Freeman of burglary, the State was not required to charge or prove that he actually carried away any property. It was only required to charge and prove that he broke into and entered the dwelling with the intent to commit the crime of larceny. Therefore, Count 2 of the indictment was sufficient even without identifying the property taken. Clearly, it was sufficient given that Count 3, of the indictment did specifically identify the property. This issue is without merit.

¶ 11. For the foregoing reasons, we affirm the circuit court’s summary dismissal of Freeman’s successive, untimely PCR motion.

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

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

      . Freeman and his accomplice carjacked a man in Memphis and fled in the man's vehicle, a distinctive black truck with a single red door. They drove the truck to the dwelling that they burglarized in Walls in DeSoto County. Thereafter, the truck broke down in Horn Lake, and Freeman and his accomplice were later apprehended.