author: Judge Terri F. Love

text:
    Nikola P. VEKIC v. Dragutin POPICH, Mary A. Popich & Helen Harris Popich
    NO. 2016-CA-0508
    Court of Appeal of Louisiana, Fourth Circuit.
    March 29, 2017

      Paul A. Tabary III, TABARY <& BORNE, LLC, Three Courthouse Square, Chalmette, LA 70043 and James M. Dill, THE DILL FIRM, APLC, 825 Lafayette Street, Lafayette, LA 70502 and David M. Culpepper, DAVID M. CULPEPPER, L.L.C., 400 Poydras Street, Suite 1710, New Orleans, LA 70130 and Helen Popich Hams, HELEN POPICH HARRIS, APLC, 321 W. Main Street, Suite 2-D, Lafayette, LA 70501, COUNSEL FOR DEFENDANTS/APPELLANTS
    Alvin J. Bordelon Jr., BORDELON & THERIOT & ABRAMS, 429 Arlington Drive, Metairie, LA 70001 and Regina S. Wedig, 308 South Bay Street, P.O. Box 185, Amite, LA 70422, COUNSEL FOR PLAINTIFF/APPELLEE
    (Court composed of Judge Terri F. Love, Judge Sandra Cabrina Jenkins, Judge Marion F. Edwards, Pro Tempore)
   Judge Terri F. Love

_JjThe instant appeal arises from a dispute over British Petroleum (“BP”) settlement proceeds after the parties executed a sublease for certain oyster leases affected by the 2010 BP oil spill. The trial court found that it was the parties’ intent that seller would receive $90,000, and buyer would receive title to the leases. The trial court then found plaintiff was entitled to the settlement proceeds and any future damage distribution relating to the leases. We find the agreement entered into was a sublease with an option to purchase. Plaintiff was neither the leaseholder of record on the day of the Deepwater Horizon explosion, nor had he exercised his option to purchase, and the post-explosion purchase did not assign defendants’ BP settlement claims. Therefore, the trial court erred when it entered judgment in favor of plaintiff. Accordingly, the trial court’s judgment is reversed.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

In 2009, plaintiff Nikola Vekic (“Mr. Vekic”) wanted to purchase three oyster leases (collectively “subleased property”) owned by Dragutin Popich (“Mr. Popich”) and his family (collectively “Popich family”). Mr. Popich was unwilling! 2 to execute a credit sale, but he agreed to enter a sublease with option to purchase. Roger Harris (“Mr. Harris”), an attorney and Mr. Popich’s son-in-law, prepared a sublease with option to purchase, a designation of agent to harvest, and a proposed act of sale. The documents were forwarded and reviewed by Mr. Vekic and his attorney along with a transmittal letter indicating that Mr. Popich was “unwilling to do a credit sale.”

Mr. Vekic had no suggested changes or issues with the proposed documents. According to the express sublease terms, Mr. Vekic agreed to sublease three oyster leases in Bay Boudreau in St. Bernard Parish from the Popich family. The term of the sublease was four years unless it was terminated earlier by either party in accordance with the sublease provisions. The amount of rent for the term of the sublease was not to exceed $90,000, and $30,000 was due and payable to the Popich family upon execution of the agreement. Thereafter, rent in the amount of $20,000 was due and payable on the anniversary of the sublease commencement date for the next three years.

The sublease also set forth the terms that applied if Mr. Vekic exercised his option to purchase. The right and option to purchase was “exercisable at any time on or before April 30, 2012, to purchase the subleased property” for $90,000. To exercise the option, Mr. Vekic was required to provide written notice to the Popich family prior to the deadline and “any rental payments paid pursuant to [the agreement would] be credited against the purchase price in dollar-for-dollar amount.” Further, the subleased property was purchased and sold “as is.”

laThe parties executed the sublease agreement in April 2009 and Mr. Vekic issued the Popich family a check for $30,000 indicating in the memo section “sublease agreement.”

The next year, on April 20, 2010, the Deepwater Horizon well exploded. At the time of the explosion, Mr. Vekic had not yet exercised his option to purchase and the Popich family remained the leaseholder of record. The following year, on or about June 19, 2011, Mr. Vekic exercised his option to purchase. The act of sale, originally prepared in 2009, was executed by the parties without any alterations to its original terms.

Shortly after the Deepwater Horizon explosion, a plaintiff class sued BP for damages and losses resulting from the oil spill. By 2012, BP and the Plaintiffs’ Steering Committee reached a settlement agreement (“BP Settlement Agreement”), which established a compensation plan for qualifying oyster leaseholders in exchange for settling their claims with BP and other released parties. To receive settlement proceeds, claimants were required to: (1) file a claim form with Deepwater Horizon Economic Claim Center (“DHECC”); (2) provide documents showing they were record owners of the leases with the Department of Wildlife Fisheries on the day of the explosion; (3) show that their oyster leases had State ID numbers; and (4) provide documents showing the geographic area in which the oyster leases were located.

In June 2012, Mr. Vekic fíled a claim with DHECC for all of his lease! ⅜ holdings, including the subleased property. In January 2013, Helen Popich Harris (“Mrs. Harris”), attorney and daughter to Mr. Popich, prepared and filed claims for herself, her father, and her sister. Their claim forms expressly informed the DHECC of the 2009 sublease with Mr. Vekic and the 2011 post-explosion sale of the subleased property. They also indicated that “the claimants did not transfer or assign any rights to the cause of action for the Deepwater Horizon incident to Mr. Vekic.”

Subsequently, Mr. Vekic received a proposed settlement offer for his lease holdings. However, DHECC excluded the subleased property from Mr. Vekic’s recovery. There is no indication in the record that Mr. Vekic sought review of DHECC’s decision. The Popich family received notice of their proposed settlement offer as eligibile oyster leaseholders. The Popich family’s proposed settlement offer for the subleased property totaled $901,999.50. In exchange for receipt of the settlement proceeds, the Popich family executed a release of any claims “arising out of, due to, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident.”

After the first round of payment was issued, Mr. Velde sued the Popich family alleging he was entitled to the BP settlement proceeds pursuant to their agreement. The Popich family later received eligibility notices for a second round payment, totaling $365,797.79. Before the Po-pich family received the second round payment, the trial court ordered the proceeds deposited into the IOLTA ^account of counsel for the Popich family until further order from the court,

Mr. Vekic sought a declaratory judgment, claiming that he was entitled to the proceeds as a result of the sublease agreement. He amended his petition twice thereafter and ultimately claimed that the sublease was a disguised sale and security agreement. The first day of trial was held in January 2015 and the second day in March 2015, but judgment was not rendered until January 2016. The Popich family’s motion for new trial was granted, and the trial court rendered a new judgment in March 2016.

The trial court interpreted the sublease agreement as a sale of subleased property to Mr. Vekic in exchange for $90,000. Therefore, the trial court found Mr. Vekic was entitled to the BP settlement proceeds. The trial court awarded Mr. Vekic all of the proceeds, less the ten percent attorney’s fees on past BP settlement proceeds and costs pursuant to the contingency fee agreement between the Popich family and their attorney. However, the trial court ruled that any future payments from BP belong to Mr. Vekic to the exclusion of the Popich family and without any reduction for further attorney’s fees owed. The Popich family timely filed the instant appeal.

STANDARD OF REVIEW

In general, “a contract, subject to interpretation on the four corners of the instrument without the necessity of extrinsic evidence, is interpreted as a matter of | Jaw.” New Orleans Jazz & Heritage Found., Inc. v. Kirksey, 09-1433, p. 9 (La. App. 4 Cir. 5/26/10), 40 So.3d 394, 401 (citing Bartlett Constr. Co., Inc. v. St. Bernard Parish Council, 99-1186, p. 6 (La. App. 4 Cir. 5/31/00), 763 So.2d 94, 98). The following sets forth the standard of review that applies to contractual interpretation:

Where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown. However, when appellate review is not premised upon any factual findings made at the trial level, but is, instead, based upon an independent review and examination of the contract on its face, the manifest error rule does not apply. In such cases, appellate review of questions of law is whether the trial court was legally correct or legally incorrect.

Kirksey, 09-1433, p. 9, 40 So.3d at 401 (quoting Clinkscales v. Columns Rehab. & Ret. Ctr., 08-1312, p. 3 (La.App. 3 Cir. 4/1/09), 6 So.3d 1033, 1035-1036) (emphasis added).

Our interpretation of the agreement is not premised on the trial court’s factual findings but based on an independent review and examination of the agreement on its face. Thus, the manifest error rule does not apply.

DISCUSSION

The ultimate issue in this case is whether Mr. Vekic is entitled to the BP settlement proceeds in light of the parties’ 2009 agreement. Thus, we examine the contract in search of the parties’ intent.

Intention of the Parties

The parties assert competing interpretations of them agreement. Mr. Vekic contends that the sublease agreement with option to purchase was a sale in disguise in that it was drafted in a way that “handed [Mr.] Vekic all of the obligations of a) 7 title holder, while disguising him as a tenant.” He states in his brief that the trial court “made no determination regarding whether the sublease was a true sublease or a sale in disguise.” Mr. Vekic avers that this Court “is free to make this determination de novo.” However, if we find the agreement was a credit sale with security protection for the seller, Mr. Vekic alternatively argues that he acquired title to the leases on April 13, 2009, and therefore, owned the leases on the date of the oil spill.

The Popich family asserts that the agreement is, by its express terms, a sublease with option to purchase. They allege that the sublease is not a sale in disguise because: it contains no language transla-tive of title; there was no need for a disguised sale; and, even if it was a disguised credit sale it would have no force or effect.

Given the express terms of the sublease, the Popich family also contends extrinsic evidence is not required to determine the parties’ intent. Even so, Mr. Popich expressly refused to convey ownership on the promise to pay later. Mr. Harris forwarded a transmittal letter to Mr. Vekic’s attorney with the sublease documents which expressly stated that “Mr. Popich is unwilling to do a credit sale....” Therefore, the Popich family asserts that the parties did not intend a credit sale.

“When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La. C.C. Art. 2046. “A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective.” La. C.C. Art. 2049. Likewise, the provisions of a contract “must be interpreted in light of the other provisions so that each is given the meaning |ssuggested by the contract as a whole.” La. C.C. Art. 2050. “Although a contract is worded in general terms, it must be interpreted to cover only those things it appears the parties intended to include.” La. C.C. Art. 2051. “A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties.” La. C.C. Art, 2053. “When the parties made no provision for a particular situation, it must be assumed that they intended to bind themselves not only to the express provisions of the contract, but also to whatever the law, equity, or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purpose.” La. C.C. Art. 2054.

Should a court find after examining the four corners of a contract that the contract is ambiguous, the agreement must be construed according to the intent of the parties, which is to be inferred from the surrounding circumstances. Kirksey, 09-1433, p. 10, 40 So.3d at 401 (citing Derbes v. GBS Properties, 04-1460, p. 5 (La.App. 5 Cir. 4/26/05), 902 So.2d 1109, 1111).

The trial court found Mr. Vekic entitled to the BP settlement proceeds. The trial court stated:

This agreement when originally contemplated and entered into had one result: that the seller would receive $90,000 dollars and the buyer would get title to the leases. This was the original intention of the parties and nothing further. Based on that agreement it is the ruling of this Court that the monies received by Defendants are monies that are owed to the Plaintiffs.

Although the trial court’s ruling does not specify whether the court found the agreement to be a sublease or a sale in disguise, it does suggest that the court agreed with Mr. Vekic’s interpretation that the parties intended to enter into a sale [¡¡agreement rather than a sublease. A review of the contract on its face convinces us otherwise.

At the outset, we find the words of the sublease are clear and explicit. It identifies the Popich family as the lessor and owner of the subleased property and Mr. Vekic as the lessee. It describes the parties’ intent as the desire for the lessor to “lease said oyster leases to [l]essee, and [l]essee desires to lease same from [ljessor on the terms and subject to the conditions set forth in this Agreement.” We find this language alone indicative of the parties’ intent. The sublease also sets forth the term of the lease and amount of rent.

The parties dispute, however, the function of the option to purchase provision. An option to purchase “is a contract whereby a party gives to another the right to accept an offer to sell, or to buy, a thing within a stipulated time. An option must set forth the thing and the price, and meet the formal requirements of the sale it contemplates.” La. C.C. Art. 2620. The option to purchase, prepared by Mr. Harris, met all the requirements of La. C.C. Art. 2620.

Mr. Vekic argues that the format of the sublease was chosen because a conditional sale, whereby the owner retains title until payment is made in full, is prohibited in Louisiana. A conditional sale of a movable is prohibited in Louisiana; however, a conditional sale of an immovable is not. Montz v. Theard, 01-0768, p. 6 (La.App. 1 Cir. 2/27/02), 818 So.2d 181, 186. In that oyster leases are considered incorporeal immovables pursuant to La. C.C. Art. 470, there was no need to disguise a credit sale as a sublease with option to purchase. The fact that the parties did not enter a credit sale when they could have is proof that the agreement is not a disguised credit sale.

Additionally, a conditional sale is distinguishable from a lease in that it | ^contemplates ultimate ownership by the purchaser. Despite having the money upfront to purchase the leases, Mr. Vekic preferred to pay over time. While a credit sale would have accomplished Mr. Vekic’s goals, Mr. Popich was “unwilling to do a credit sale.” Hence, the parties agreed to enter a sublease with option to purchase. This format would allow Mr. Vekic to purchase the leases so long as he fully complied with the terms of the sublease and timely exercised the option to purchase. Until that time, the Popich family would remain the title owner of the subleased property. Therefore, we do not agree with Mr. Vekic’s assertion that his interpretation expresses the contractual intent in light of the fact that he was aware Mr. Popich was unwilling to execute a credit sale and the agreement lacked language translative of title.

Mr. Vekic also asserts that the sublease “handed [Mr.] Vekic all of the obligations of a title holder, while disguising him as a tenant.” Consequently, he concludes that because the sublease terms are inequitable it is a sale in disguise. “Parties are free to contract for any object that is lawful, possible, and determined or determinable.” La. C.C. Art. 1971. Mr. Vekic was represented by counsel and had an opportunity to review the agreement and propose any changes but offered none. Mr. Vekic’s attorney informed Mr. Harris that Mr. Vekic was “good with everything the way it was.” Mr. Vekic knowingly obligated himself to the terms of the sublease. This argument lacks merit.

Furthermore, Mr. Vekic claims that the sublease is a disguised sale given the features the sublease lacks. He states that “an essential, legal element” of a sublease with an option to purchase is the requirement that the buyer pay additional consideration to exercise his purchasing option. Based on the contract’s terms, Mr. Vekic owed no additional consideration for exercising his option. However, “[t]he | nrequirement of ‘consideration’ contained in Article 2462 of the Louisiana Civil Code of 1870 [wa]s eliminated since it is inconsistent with the Louisiana system.” La. C.C. Art. 2620, Comment (h) (1993).

Under Mr. Vekic’s interpretation of the sublease, title transferred in April 2009 when the parties entered into a contractual relationship. For any transfer of an oyster lease to be “valid or of any force or effect whatsoever” it must be recorded and “evidenced by an authentic act, judgment, or proper judicial deed registered in the office of the [Department [of Wildlife and Fisheries]....” La. R.S. 56:428(E). Mr. Vekic fails to confront this authority. Even if we found that the sublease was a disguised credit sale, which we do not, it would have no force or effect.

For these reasons, we find the parties intended to enter into a sublease with option to purchase and nothing more. We address next whether Mr. Vekic is entitled to the BP Settlement Proceeds.

Entitlement to BP Settlement Proceeds

The Oyster Compensation Plan stated that to be eligible to participate in the settlement claims process claimants had to provide “a valid oyster lease entered into by Claimant that establishes, as of April 20, 2010, the Claimant as the lessee of the oyster leasehold, or a copy of the actual title for the leasehold.” Mr. Vekic concedes that he could not make this showing. Although he was not “eligible to participate,” he insists nonetheless that he is entitled to the proceeds pursuant to his contract with the Popich family.

1 jgMr. Vekic’s claim rests entirely on the assumption that the parties intended to enter a sale agreement and not a sublease. As discussed, the terms of the contract demonstrate that the parties intended to enter a sublease agreement with an option to purchase. Therefore, we examine whether any provision under the sublease entitles Mr. Vekic to the BP Settlement proceeds.

Section 9 (“Proceeds for Damages to Oyster Leases”) of the sublease states that in the event of damages to the leases Mr. Vekic was entitled to receive his actual loss. The sublease defined “actual loss” as the cost of bedding oysters in the damaged area. Mr. Vekic had the right to damage proceeds “in an amount sufficient to reimburse” him. “[Proceeds in excess of the reimbursed amount [would] be received by [the Popich family] as advance rent.” Mr. Vekic stipulated at trial that he had no “actual loss” as defined in the sublease. Additionally, no evidence was submitted at trial to show that the oil spill damaged the oyster leases.

The provision does not address whether Mr. Vekic or the Popich family would get damage proceeds exceeding bedding reimbursement and advance rent. Thus, the sublease is interpreted to include only those things it appears the parties intended to include. La. C.C. Art. 2051. The trial court determined that the parties did not contemplate a situation in which lease damage proceeds would be anything more than actual loss, much less the result from an event like the BP oil spill. Nevertheless, the trial court’s ruling suggests that it found damages exceeding and/or unrelated to actual loss belonged to Mr. Vekic because it awarded him the proceeds.

When parties make no provision to account for a particular situation, “it must be assumed that they intended to bind themselves. . .to the express provisions of the contract [and] to whatever the law, equity, or usage regards as implied in a| 1S contract of that kind or necessary for the contract to achieve its purpose.” La. C.C. Art. 2054. Louisiana courts have consistently held that a purchaser is precluded from claiming damages to property that occurs prior to the purchaser’s acquisition of the property. Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., 10-2267 (La. 10/25/11), 79 So.3d 246; Boone v. Conoco Phillips Co., 13-1196 (La.App. 3 Cir. 5/7/14), 139 So.3d 1047. In Eagle Pipe the Louisiana Supreme Court explained:

[A]n owner of property has no right or actual interest in recovery from a third party for damage which was inflicted on the property before his purchase in the absence of an assignment or subrogation of the rights belonging to the owner of the property when the damage was inflicted.

Id., 10-2267, p. 8, 79 So.3d at 256-57. Furthermore, the assignment must be specific. Id., 10-2267, p. 38-39, 79 So.3d at 276; Lejeune Bros., Inc. v. Goodrich Petroleum Co., L.L.C., 06-1557, p. 9 (La. App 3 Cir. 11/28/07), 981 So.2d 23, 30.

The act of sale executed in 2011 contains no reference to an express assignment by the Popich family to Mr. Vekic of any rights to seek damages from BP. Moreover, Mr. Vekic did not request that the act of sale be modified to include a specific assignment of the Popich family’s rights, as oyster leaseholders, against BP. Although Eagle Pipe is distinguishable because it involved non-apparent pre-sale damage to property, the Popich family contends that “Mr. Vekic, along with the rest of the Gulf Coast, knew full well of the Deepwater Horizon explosion and oil spill.” See Eagle Pipe, 10-2267, p. 38-39, 79 So.3d at 276 (“whether damage to the property is apparent or not, the personal nature of the right of the landowner at that time does not change, and remains with the landowner unless the right is explicitly assigned or subrogated to another”); Boone, 13-1196, p. 8, 139 So.3d at 1053.

Mr. Vekic elected to exercise his option to purchase after the oil spill. [ 14Moreover, Mr. Vekic purchased the oyster leases “as-ís” and without seeking an amendment to the act of sale to include an express assignment of the Popich family’s oyster leaseholder claims against BP. Even though the sublease did not contemplate the BP oil spill, the parties were aware of the possibility of damage to the leases when the act of sale was entered. Therefore, we find an express assignment necessary in this case.

The fact that Mr. Vekic signed the agreement with every intention of one day obtaining title to the subleased property is irrelevant when he knowingly obligated himself to the sublease terms. Those terms required Mr. Vekic to exercise his option in writing on or before April 30, 2012, as well as pay the $90,000 purchase price, wherein rent paid under the sublease was credited dollar for dollar against the purchase price. Only then would Mr. Vekic take title and ownership of the subleased property.

Mr. Vekic deliberately did not buy the leases in 2009 despite having told Mr. Harris that he had the money to do so. Instead, he waited over a year after the oil spill to exercise his option. Mr. Vekic established a real right to the subleased property (i.e. ownership) upon execution of the act of sale. However, the act of sale did not transfer the Popich family’s personal rights.

The BP Settlement Agreement created a contractual right with oyster leaseholders who could prove valid and recorded leasehold ownership at the time of the oil spill. The Popich family contends that the BP Settlement Agreement established personal rights for the Popich family. In that Mr. Vekic had not exercised his option to purchase prior to the oil spill, he was neither eligible nor 1 ^.entitled to recovery directly from BP. Since Mr. Vekic exercised his option after the oil spill, it was incumbent upon him, pursuant to Eagle Pipe, to obtain a specific assignment of the Popich family’s claims against BP prior to executing the act of sale. Mr. Vekic failed to do so. Therefore, he is not entitled to the proceeds under the sublease with option to purchase or the law. For the foregoing reasons, we find the trial court erred by ruling in Mr. Vekic’s favor.

DECREE

We find based on the explicit and clear terms of the contract that the parties intended to enter a sublease with option to purchase. Furthermore, we find Mr. Vekic was not the leaseholder of record on the day of the Deepwater Horizon explosion and oil spill as he had not exercised his option to purchase. Likewise, the post-explosion purchase did not assign the Popich family’s claims against BP for the BP settlement proceeds. Accordingly, Mr. Vekic is not entitled to the BP settlement proceeds pursuant to the sublease with option to purchase, the BP Settlement Agreement, or the law. In light of our finding, we pretermit discussion of the Popich family’s other assigned errors regarding attorney’s fees and legal interest. The judgment in Mr. Vekic’s favor, awarding him the BP settlement proceeds as well as any future amounts paid by BP, is reversed.

REVERSED

      . The compensation offered for oyster leases located in Zone A, which encompassed the three leases at issue, was $2,000 per acre.

      . The Popich family netted $598,722.69 after taxes and attorney fees.

      . The second round of proceeds was later deposited into the registry of the court pending the outcome of the present appeal.

      , The January 2016 judgment was not dispos-itive of all issues regarding the proceeds Mr. Vekic was entitled to, therefore, promulgating the motion for new trial and the March 2016 judgment.

      . The 2009 "Designation of Agent to Harvest Oysters,” naming Mr. Velde the designated agent pursuant to La. R.S. 56:424(B), did not translate title ownership, unlike the "Sale of Oyster Leases Pursuant to [sic] R.S. 56:423(E).

      . Despite receiving notice of his eligibility and ultimately accepting BP settlement proceeds for those leases which he held a valid title, the DHECC denied his claims for the subleased property.

      . The Popich family contends Mr, Vekic failed to present at trial evidence of damage to the subleased property.

      . In his Answer to the appeal, Mr. Velde assigned as error the trial court's ruling that awarded Mrs. Harris and her law firm attorney fees for the first and second rounds of settlement proceeds BP issued. We pretermit this assignment of error as well.


source: Caselaw Access Project

author: CHANDLER, Justice, DICKINSON, Presiding Justice,

license: Public Domain

text:
    Mona CATES v. Elizabeth SWAIN.
    No. 2010-CT-01939-SCT.
    Supreme Court of Mississippi.
    May 2, 2013.
    Rehearing Denied June 27, 2013.

      Jonathan S. Masters, Clarksdale, Robert M. Stephenson, attorneys for appellant.
    John Thomas Lamar, Jr., David Mark Slocum, Jr., Senatobia, attorneys for ap-pellee.
   ON WRIT OF CERTIORARI

CHANDLER, Justice,

for the Court.

¶ 1. Elizabeth Swain and Mona Cates cohabited from 2000 until 2006. After they severed the relationship, Swain filed an action seeking the repayment of funds she first had invested in property in Washington, which were then used to purchase a residence in Tate County. The chancellor rejected Swain’s claim of a constructive trust or a resulting trust. The chancellor found that Cates had been unjustly enriched by Swain’s contributions and awarded Swain a judgment in that amount. The Court of Appeals affirmed the chancellor’s rejection of the trust claim but reversed the decision of the chancellor, which was based on unjust enrichment. The Court of Appeals held that, because “cohabitation alone cannot form the basis of an equitable remedy between non-married cohabitants,” the remedy of unjust enrichment was outside the bounds of the chancery court’s equitable powers. Cates v. Swain, 116 So.3d 1073, at 1080 (Miss.Ct.App.2012).

¶ 2. We find that the chancellor was empowered to award relief on the basis of unjust enrichment. We affirm the judgment of the Court of Appeals to the extent that it affirmed the chancellor’s rejection of Swain’s claim of a constructive trust or a resulting trust. We reverse the judgment of the Court of Appeals with regard to the unjust-enrichment award. Because the chancellor made a mathematical error in the calculation of the unjust-enrichment award, we vacate the chancellor’s judgment in part, and remand the case to the chancery court for entry of judgment in the correct amount of $41,495.

FACTS

¶3. In 2000, Swain and Cates met though an online dating service and began a relationship while living in different states. Swain was in the Navy and worked as an oceanographer, and Cates was a commercial airline pilot based in New York, New York, where she maintained a separate residence. During the entirety of her relationship with Cates, Swain was married and estranged from her husband. Swain testified that she remained married so that her husband could remain covered under her medical insurance policy, and so that Swain could claim a larger housing allowance from the Navy than she would have been entitled to as a single individual. Swain divorced after her relationship with Cates had ended.

¶ 4. In late 2000, Swain transferred to Pensacola, Florida, and bought a house there. Cates provided $2,000 in earnest money toward the purchase of the house, residing there and in New York. Swain made the monthly mortgage payments and significantly paid down the principal. The two made improvements to the house.

¶ 5. In 2003, Swain and Cates moved to Seattle, Washington. Cates bought a home in Seattle, where the two cohabita-ted. Swain sold the Florida home and received $32,000 in equity. Swain testified that she gave Cates a check for $34,000, representing the equity in the Florida home, plus an extra $2,000 from Swain’s personal checking account as an investment. Swain testified that Cates used this money for the down payment on the Washington home, which Cates purchased for $191,000. In contrast, Cates testified that the check was repayment for undocu-merited loans. Swain and Cates made various improvements to the Washington home, and in 2005 the residence sold for $300,000.

¶ 6. In 2005, Cates and Swain moved to Tate County, Mississippi, where Cates bought a home for $350,000, using the equity from the sale of the Washington home. Swain provided Cates a check for $5,000 with “closing costs” written in the memo line. She also paid $4,495 to carpet the home. Again, Cates characterized these expenditures as repayments for undocumented loans to Swain.

¶7. Subsequently, the parties’ relationship deteriorated, and Swain moved out in March 2006. On June 13, 2006, Swain filed a complaint against Cates, alleging that they had been cohabitants, that they had been involved in several joint ventures together, and that they had entered into an agreement for Swain to invest the proceeds from the sale of her Florida home into future purchases of real property in Washington and Mississippi. Swain requested that the chancery court declare a constructive trust or a resulting trust in the Mississippi home, and that Cates had been unjustly enriched.

¶ 8. The chancellor rejected Swain’s claims of a constructive trust or a resulting trust. The chancellor found that Cates had been unjustly enriched by Swain’s investment contributions. The chancellor rejected Cates’s unsupported assertions that these contributions were merely loan repayments. The chancellor found Swain was entitled to recover the equity from her Florida home. The chancellor awarded Swain $38,000, minus $2,500. The chancellor also found that Swain was entitled to recover the $5,000 she had tendered to Cates for closing costs on the Mississippi home and the $4,495 she had spent to carpet Cates’s Mississippi home. The chancellor entered a judgment in the amount of $44,995 in favor of Swain.

¶ 9. The Court of Appeals reversed. Cates, 116 So.3d 1073, at 1082-83. The Court of Appeals reviewed our prior cases pertaining to unmarried cohabitants, and concluded that “Mississippi does not enforce contracts implied from the relationship of unmarried cohabitants.” Id. at 1077-78. Therefore, the Court of Appeals held that the chancellor had lacked the authority to grant the remedy of unjust enrichment. Id. at 1080-81. This Court granted Swain’s petition for certiorari to review the legal question of whether the remedy of unjust enrichment was available to Swain. We find that, in the particular circumstances, the chancellor did not err by granting relief on the basis of unjust enrichment.

STANDARD OF REVIEW

¶ 10. This Court will not reverse a chancellor’s fact-findings unless they were manifestly wrong, clearly erroneous, or the chancellor abused his discretion. Smith v. Wilson, 90 So.3d 51, 56 (Miss. 2012) (quoting Zeman v. Stanford, 789 So.2d 798, 801-02 (Miss.2001)). We review questions of law de novo. Smith, 90 So.3d at 56.

ANALYSIS

¶ 11. Unjust enrichment “applies to situations where there is no legal contract and ‘the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain but should deliver to another.’ ” Miss. Dep’t of Envtl. Quality v. Pac. Chlorine, Inc., 100 So.3d 432, 442 (Miss.2012) (quoting Powell v. Campbell, 912 So.2d 978, 982 (Miss.2005)). In these circumstances, equity imposes “a duty to refund the money or the use value of the property to the person to whom in good conscience it ought to belong.” Estate of Johnson v. Adkins, 513 So.2d 922, 926 (Miss.1987). The amount of recovery for unjust enrichment is “that to which the claimant is equitably entitled.” Id.

¶ 12. The chancellor found that Cates had been unjustly enriched by Swain’s contributions to the Mississippi home, which consisted of Swain’s proceeds gained from the sale of her Florida home, the $5,000 Swain contributed at closing, and the $4,495 Swain had paid to carpet the Mississippi home. The Court of Appeals concluded that the remedy of unjust enrichment was not available to Swain as an unmarried cohabitant. Cates, 116 So.3d 1073, at 1080-81. The Court of Appeals primarily relied upon Davis v. Davis, 643 So.2d 931 (Miss.1994), and Estate of Alexander v. Alexander, 445 So.2d 836 (Miss. 1984), to reach this conclusion. Cates, 116 So.3d 1073, at 1078-79.

¶ 13. We find Davis and Alexander to be distinguishable from this case. In Davis, the unmarried parties separated, and the woman, Elvis Davis, sought an equitable distribution of assets. Davis, 643 So.2d at 932. Travis Davis had amassed considerable wealth, and Elvis argued that, by virtue of her efforts in her live-in, long-term relationship with Travis, she was entitled to an equitable division of assets. Id. at 933. The Court disagreed, noting that the Legislature has not extended the rights enjoyed by married people to those who cohabit. Id. at 936.

¶ 14. In Estate of Alexander v. Alexander, 445 So.2d 836 (Miss.1984), Margie and Sam Alexander had cohabitated for thirty years in a house owned by Sam. Id. at 837. When Sam died, Margie petitioned the court for a life estate in the residence. Id. The Court found that the Legislature had made no provision for a person in Margie’s situation, and that “a mere ‘live-in’ relationship ... cannot be allowed to negate the law of descent and distribution.” Id. at 839 (emphasis added). The Court also found that Margie could not recover under an implied-contract theory because no evidence established the existence of an implied contract between Margie and Sam. Id. at 840.

¶ 15. In both Davis and Alexander, the aggrieved party’s claim for recovery was based upon a relationship. Both claims were for equitable division of property. In Davis, the Court rightly noted that cohabitation is prohibited as against public policy and that the Legislature has not extended the rights of married persons to cohabitants, nor do we today. In this case, Swain’s claim was not one for equitable division. Swain made a claim, inter alia, for unjust enrichment based upon her monetary contributions to Cates’s purchase of the Washington home and the purchase and improvement of the Mississippi home, which Cates retained after Swain moved from the residence. Ultimately, the chancellor adjudicated the case on that theory of relief, and we find no error in the chancellor’s legal conclusion.

¶ 16. True, as Presiding Justice Dickinson indicates in his separate opinion, Swain’s unjust-enrichment claim was predicated on her assertion that Swain and Cates had entered into an agreement that Swain would invest the proceeds from the sale of her Florida home toward future home purchases. Thus, as Swain contended at trial, she should be entitled to share in the profits Cates earned from the use of Swain’s money,

¶ 17. Swain claimed there was a mutual agreement between her and Cates that her Florida equity proceeds were to be used as an investment in both the Washington and Mississippi homes but offered no written evidence to support her testimony. Gates, who disputed Swain’s version, claimed that she considered the funds provided by Swain to be reimbursement money for all the “loans” she had provided Swain, but she offered no written evidence to support her testimony. The only proof offered by either party for her claims was her respective testimony. The chancellor, essentially, accepted neither version. We find no abuse of discretion.

¶ 18. Instead, the chancellor focused on readily identifiable assets (or tangible benefits) each party conferred on the other, which, if retained by that party, would, under the circumstances, inequitably benefit (or unjustly enrich) that party. In essence, these particular benefits spoke for themselves, irrespective of how the parties attempted to characterize them after the fact at trial. The chancellor declined to treat these benefits as either investments or gratuitous gifts, as the Court of Appeals mistakenly construed our caselaw to require. Rather, the chancellor sought, as much as the evidence would allow, to restore the status quo and return the parties to the positions they had occupied before the transaction(s). This Court has held that an unjust-enrichment award may consist of a refund, if that is equitable. Adkins, 513 So.2d at 926. Our standard of review is abuse of discretion. Smith, 90 So.3d at 56. Even if this Court, as an original matter, would have decided the matter differently, applying our standard of review, we conclude that the chancellor did not abuse his discretion in awarding Swain a refund, a form of restitution.

¶ 19. While the record reflects that Cates is a generous individual, the evidence she submitted in support of her claim, as found by the chancellor, simply did not carry much weight. We are mindful that the doctrine of unjust enrichment is not “a roving mandate [for a court] to sort through terminated personal relationships in an attempt to nicely judge and balance the respective contributions of the parties.” Slocum v. Hammond, 346 N.W.2d 485, 491-92 (Iowa 1984). The chancellor astutely recognized that Swain’s unjust enrichment claim did not request that the court undertake such a momentous task. We find that the chancellor did not err in granting Swain recovery under the theory of unjust enrichment.

¶ 20. We affirm the judgment of the Court of Appeals to the extent that it affirmed the chancellor’s rejection of the constructive trust or resulting trust claim, reverse the judgment of the Court of Appeals regarding the unjust-enrichment award, affirm the chancellor’s judgment in part, vacate it in part, and remand for entry of judgment in the correct amount of $41,495. We find that the chancellor clearly erred in his findings regarding the amounts Swain paid to Cates. Swain testified that she had tendered a $34,000 cashier’s check to Cates from her equity in the Florida home, not a $38,000 check as found by the chancellor. Further, the record shows that Cates paid $2,000 in earnest money for the Florida home, not $2,500, as found by the chancellor. A receipt reflects that the amount Swain paid to carpet the Mississippi home was $4,495, and she tendered a $5,000 check to Cates for closing costs on that home. These amounts total $41,495. Swain contests these amounts, and contends that the correct amount was $48,524.58. We affirm the chancellor’s judgment in part, vacate the chancellor’s judgment in part, and remand the case to the chancery court for entry of judgment in the amount of $41,495.

CONCLUSION

¶21. We find that the chancellor was empowered to grant relief to Swain based on the theory of unjust enrichment. We affirm in part and reverse in part the judgment of the Court of Appeals, affirm in part and vacate in part the judgment of the chancellor, and remand to the chancery court for entry of judgment in the amount of $41,495.

¶ 22. THE JUDGMENT OP THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE TATE COUNTY CHANCERY COURT IS AFFIRMED IN PART, VACATED IN PART, AND THE CASE IS REMANDED FOR ENTRY OF JUDGMENT IN THE AMOUNT OF $41,495.

WALLER, C.J., RANDOLPH, P.J., KITCHENS, PIERCE, KING AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. LAMAR, J., NOT PARTICIPATING.

DICKINSON, Presiding Justice,

concurring in part and dissenting in part:

¶ 23. The majority correctly holds that the chancellor should have granted Swain relief based on the equitable theory of unjust enrichment. But, because the majority merely modifies Swain’s award without remanding to the chancellor for a fair and equitable determination of the amounts due, I dissent in part.

¶24. Unjust enrichment applies when “there is no legal contract but where the person sought to be charged is in possession of money or property which in good conscience and justice he [or she] should not retain but should deliver to another.” In such situations, we “impos[e] a duty to refund the money or the use value of the property to the person to whom in good conscience it ought to belong.” The amount of recovery for unjust enrichment is “that to which the claimant is equitably entitled.”

¶ 25. Cates used $34,000 of Swain’s money to purchase a home, which she later sold at' a $109,000 profit. Rather than dividing the money with Swain, Cates took all the profits—plus another $9,495 from Swain—to purchase and carpet another home, which she titled exclusively in her name. It seems to me rather odd for the majority—claiming it is applying equitable principles—to conclude that Cates shall keep all the profits she earned from the use of Swain’s money. Where is the equity in that?

¶ 26. The majority sidesteps the equity consideration by asserting that the chancellor merely restored the “status quo.” But allowing Cates to keep over a hundred-thousand dollars of profits she earned using Swain’s money hardly fits my definition of status quo.

¶ 27. To be clear, I do not view Swain’s contributions as “investments.” And, there is no issue regarding loans, because the chancellor rejected the notion that Swain “loaned” the money to Cates. I simply disagree with the majority’s view that this Court should forbid the chancellor from even considering the profits that Cates made using Swain’s money. This is precisely why the doctrine of unjust enrichment applies, and why the chancellor should be free to consider all of the facts and surrounding circumstances, and to exercise discretion to reach an equitable award.

¶ 28. This case should be remanded for the chancellor to apply the doctrine of unjust enrichment and determine a fair and equitable amount of recovery, taking into consideration all factors, including the increase and/or decrease in value of the properties at issue, and not just the dollar amount of Swain’s contribution. Because the majority forbids the chancellor from considering anything but the amount of Swain’s contributions and merely corrects the chancellor’s mathematical errors, I respectfully concur in part and dissent in part.

      , As discussed later in this opinion, the chancellor's findings concerning these amounts were clearly erroneous. The testimony and exhibits reflect that Swain paid Cates $34,000 from the Florida home, and Cates paid Swain $2,000 in earnest money.

      . Hans v. Hans, 482 So.2d 1117, 1122 (Miss. 1986) (emphasis added).

      . Id.

      . Estate of Johnson v. Adkins, 513 So.2d 922, 926 (Miss. 1987).

      . Maj. Op. at ¶ 18.


author: ISHEE, J.,

text:
    Allen NICOLAOU, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-01217-COA
    Court of Appeals of Mississippi.
    12/06/2016
    Rehearing Denied April 25, 2017

      ALLEN NICOLAOU (PRO SE), ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLE-BEN, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., BARNES AND ISHEE, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. On October 22, 1984, in Hancock County Circuit Court, Allen Nicolaou pleaded guilty to two counts of murder, two counts of kidnapping, and one count of armed robbery. In 2014, Nicolaou filed a motion for postconviction relief (PCR) arguing that he was denied due process of law, because the trial court failed to conduct a “sanity hearing” prior to accepting his guilty pleas. The trial court denied the PCR motion, and Nicolaou now appeals. Finding no error, we affirm.

FACTS

¶ 2. In April 1984, Nicolaou was indicted on two counts of capital murder, two counts of kidnapping, and one count of armed robbery. On April 25, 1984, Nico-laou was admitted to the Mississippi State Hospital for a mental examination regarding his competency to stand trial and his degree of criminal responsibility.

¶3. On June 12, 1984, Doctors Helen Robertson and Margie Lancaster, of the Mississippi State Hospital, concluded that Nicolaou was competent to stand trial. Their reports specifically found that Nico-laou knew the difference between right and wrong at the time of the crimes, and that he appreciated the consequences of his actions. Their reports were submitted to the trial court on June 15,1984.

¶ 4. On October 22, 1984, Nicolaou pleaded guilty to all counts of the indictment. For the two murder charges, Nico-laou was sentenced to two terms of life imprisonment, to be served consecutively in the custody of the Mississippi Department of Corrections (MDOC). For the charge of armed robbery, Nicolaou was sentenced to forty years in the custody of the MDOC, with the sentence to run consecutively to the sentence imposed for the murder charges. Additionally, for the two kidnapping charges, Nicolaou was sentenced to two terms of thirty years, with one term to run consecutively to the armed-robbery charge, and one term to run concurrently to the murder sentences.

¶5. On November 21, 2014, Nicolaou filed a PCR motion in Hancock County Circuit Court. He raised two issues: (1) that he was denied due process of law because the trial court failed to conduct a “sanity hearing” in accordance with Rule 9.06 of the Uniform Rules of Circuit and County Court prior to accepting Nicolaou’s guilty pleas; and (2) that his trial counsel was ineffective. He seeks an acquittal or, in the alternative, to set aside his guilty plea and allow him to proceed to trial with an affirmative defense of “temporary insanity.”

LAW AND DISCUSSION

¶ 6. This Court will not reverse a trial court’s dismissal of a PCR motion unless the trial court’s decision was clearly erroneous. Agent v. State, 30 So.3d 370, 370 (¶5) (Miss. Ct. App. 2010). Because Nicolaou pleaded guilty, he had three years from the entry of the judgment of his conviction to file a PCR motion pursuant to Mississippi Code Annotated section 99-39-5(2) (Rev. 2015). Nicolaou did not file his PCR motion within three years; therefore, his PCR motion is procedurally barred.

¶ 7. However, errors affecting fundamental constitutional rights are excepted from the procedural bar. 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. App. Ct. 2010). “There must at least appear to be some basis for the truth of the claim before the [procedural bar] will be waived.” Id.

¶ 8. Here, Nicolaou asserts that his fundamental right to due process was violated because a “sanity” hearing was not conducted prior to his guilty plea. Nicolaou points to Rule 9.06 for support. However, his reliance is misplaced. At the time of Nicolaou’s plea hearing, Rule 9.06 was not in effect, and would not be in effect for another decade; instead, Rule 4.08 of the Uniform Circuit Court Criminal Rules was in effect, and stated in pertinent part:

(1) Inability to Stand Trial. If before or during trial the court, of its own motion or upon motion of counsel, has reasonable ground to believe that the defendant is insane, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court in accordance with Miss. Code Ann. § 99-13-11 (1972).
If the examination determines that the defendant is sane, the court shall proceed to trial.

The Mississippi Supreme Court interpreted Rule 4.08 in Underwood v. State, 708 So.2d 18, 26 (¶ 23) (Miss. 1998), and held:

Under this rule, a trial court is obligated to order a competency hearing “whenever a reasonable question of the defendant’s capacity arises.” Howard v. State, 697 So.2d 415, 422 (Miss. 1997) (citing Conner v. State, 632 So.2d 1239, 1248 (Miss. 1993); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)). “The determination of what is ‘reasonable,’ of course, rests largely within the discretion of the trial judge. He sees the evidence first-hand; he observes the demeanor and behavior of the defendant.” Conner, 632 So.2d at 1248.

¶ 9. Based on the record before this Court, medical reports by two independent doctors confirmed that Nicolaou was competent to stand trial and that he appreciated right from wrong. The trial court had no reason to believe, based on the evidence presented, that Nicolaou was incompetent to stand trial; thus, the trial court was not obligated to order or conduct a competency hearing. Further, the trial court was able to observe Nicolaou’s demeanor and behavior firsthand, and the trial court determined that it was appropriate to proceed with the guilty plea, as is within its sole discretion.

¶ 10. In addition, both Rules 9.06 and 4.08 relate to a determination of a defendant’s competency at the time of the trial, not the defendant’s sanity at the time of the crime. See Sanders v. State, 9 So.3d 1132, 1134 (¶ 5) (Miss. 2009) (emphasis added). “Competency” and “sanity” are two distinct legal concepts. A defendant is competent if he possesses “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him.” Beasley v. State, 136 So.3d 393, 398 (¶ 13) (Miss. 2014) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)). However, a defendant’s “sanity” is based on “whether- the defendant was unable to distinguish right from wrong at the time the act was committed.” Russell v. State, 729 So.2d 781, 784 (Miss. 1997). “There is a presumption that an accused is sane and, therefore, the burden is initially on the accused to introduce evidence creating a reasonable doubt as to his sanity at the time of the act.” White v. State, 542 So.2d 250, 252 (Miss. 1989).

¶ 11. Nicolaou asserts he was unable to present his affirmative defense of insanity because he was deprived of his right to a “sanity hearing.” But the “determination of a defendant’s sanity is within the province of the jury,” not the trial court. Woodham v. State, 800 So.2d 1148, 1158 (¶ 29) (Miss. 2001). Thus, the appropriate time to raise the affirmative defense of insanity is at trial. Whether or not Nicolaou had a competency hearing has no bearing on whether he could have asserted an insanity defense. As the trial court pointed out, Nicolaou was not prohibited from asserting an insanity defense, as he alleges, but he simply failed to present one. Therefore, that defense is procedurally barred from appellate review.

¶ 12. Lastly, Nicolaou argues that his counsel was ineffective because his counsel failed to assert an insanity defense on his behalf. However, this claim is time-barred, and Nicolaou has not presented evidence to overcome such a procedural bar. See Chandler, 44 So.3d at 444 (¶ 8). Because the trial court’s denial of Nicolaou’s PCR motion was not clearly erroneous, the trial court’s decision is affirmed.

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

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

      . The capital-murder counts were later reduced from capital murder to murder.

      . While Uniform Circuit Court Criminal Rule 4.08 was the governing rule in 1984 when Nicolaou pleaded, it was replaced by Uniform Rule of Circuit and County Court 9.06 in 1995.


author: CARLTON, J.,

text:
    Kirby SHAVERS, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00103-COA
    Court of Appeals of Mississippi.
    12/06/2016
    Rehearing Denied April 25, 2017

      ATTORNEY FOR APPELLANT: KIRBY SHAVERS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.
   CARLTON, J.,

FOR THE COURT:

¶ 1. Kirby Shavers filed a motion for postconviction relief (PCR) in the Rankin County Circuit Court alleging that he received an illegal sentence and ineffective assistance of counsel. The trial court dismissed Shavers’s PCR motion as time-barred and successive-writ barred. Shavers filed a motion for reconsideration, which the trial court denied. This appeal followed. Finding no error, we affirm the trial court’s summary dismissal of Shavers’s PCR motion.

FACTS

¶ 2. On August 4, 2008, Shavers pleaded guilty in the Rankin County Circuit Court to rape, kidnapping, burglary of a dwelling, grand larceny, and aggravated assault. The trial court sentenced Shavers to seventeen years for rape, fifteen years for kidnapping, twenty-five years for burglary, five years for grand larceny, and twenty years for aggravated assault. The trial court ordered the rape and burglary sentences to run concurrently, and ordered the remaining sentences to run consecutively to each other and to the sentences for rape and burglary, resulting in a sentence of sixty-five years in the custody of the Mississippi Department of Corrections (MDOC).

¶ 3. In 2011, Shavers filed a PCR motion raising “questions concerning double jeopardy, the legality of his sentence, and the permissibility of his multi-count indictment.” Shavers v. State, 94 So.3d 362, 363 (¶ 4) (Miss. Ct. App. 2012). The trial court dismissed Shavers’s PCR motion after determining that he was not entitled to relief. Shavers then appealed the dismissal. On appeal, this Court addressed whether Shavers’s sentence was excessive, and found:

[I]t is clear from the plea colloquy [that] Shavers was aware of the maximum and minimum sentences for each crime. The trial court acknowledged the effect of these sentences, which meant Shavers, who was approximately fifty years old at the time of the plea hearing, would spend the rest of his life in prison. However, the trial court stated it had imposed the sentences in light of the nature and severity of Shavers’s crimes and his prior criminal history. Each sentence Shavers received was within the statutory limits.

Id, at (¶ 6). This Court also held that Shavers’s appeal lacked merit, and accordingly affirmed the trial court’s dismissal of Shavers’s PCR motion. Id. at 364 (¶ 8).

¶4. On November 13, 2015, Shavers filed a petition for a writ of habeas corpus, which the trial court treated as a PCR motion. The record reflects that the trial court reviewed the transcript of Shavers’s guilty-plea and sentencing hearings conducted on August 4, 2008, and August 11, 2008, respectively, as well as Shavers’s criminal file. The trial court then entered an order dismissing Shavers’s PCR motion as both time-barred and barred as a successive writ. The trial court held that it “plainly appears from the face of the [PCR motion] that [the] petitioner is not entitled to any relief and [this court] further finds that the [PCR motion] should also be dismissed pursuant to [Mississippi Code Annotated section] 99-39-11(2) [ (Rev. 2015) ].”

¶ 5. Shavers filed a motion for reconsideration, which the trial court denied. This appeal followed. On appeal, Shavers claims he received ineffective assistance of counsel. Shavers argues that his counsel rejected every request he made concerning the case, including his request to focus on the lack of DNA evidence, and lack of medical records regarding the victim’s injuries. Additionally, Shavers claims that his counsel led him to believe that if he accepted a plea deal, the court would use a life-expectancy chart during sentencing, which would allow Shavers to receive a lesser sentence. Finally, Shavers argues that his sixty-five-year sentence is excessive because it was greater than his remaining life expectancy. Shavers reasons that the sentence is an illegal violation of his fundamental rights.

STANDARD OF REVIEW

¶ 6. When reviewing a trial court’s summary dismissal of a PCR motion, this Court employs a clearly-erroneous standard of review, Jones v. State, 174 So.3d 902, 905 (¶ 8) (Miss. Ct. App. 2015). However, when questions of law are raised, we employ a de novo standard of review. Id. Section 99-39-11(2) provides: “If 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, the judge may make an order for its dismissal and cause the petitioner to be notified.”

¶ 7. Shavers bears the burden of showing by a preponderance of the evidence he is entitled to postconviction relief. Roach v. State, 116 So.3d 126, 131 (¶ 15) (Miss. 2013); Miss. Code Ann. § 99-39-23(7) (Rev. 2015). Additionally, Shavers “bears the burden of proving by a preponderance of the evidence that his [PCR] claims are not barred as successive writs.” See Williams v. State, 110 So.3d 840, 843 (¶ 13) (Miss. Ct. App. 2013). We affirm dismissals or denials of PCR motions when the movant fails to demonstrate “a claim procedurally alive substantially showing the denial of a state or federal right.” Borden v. State, 122 So.3d 818, 821 (¶ 7) (Miss. Ct. App. 2013).

DISCUSSION

¶ 8. The record reflects that Shavers pleaded guilty to rape, kidnapping, burglary of a dwelling, grand larceny, and aggravated assault on August 4, 2008. Shavers filed this PCR motion before us on November 13, 2015, more than seven years after entering his pleas. Mississippi Code Annotated section 99-39-5(2) (Rev. 2015) provides that in the case of guilty plea, “[a] motion for relief under this article shall be made ... within three (3) years after entry of the judgment of conviction.” As a result, Shavers’s PCR motion is clearly untimely and barred by the three-year statute of limitations of the Mississippi Uniform Postconviction Collateral Relief Act (UPCCRA).

¶9. However, we acknowledge that the UPCCRA has provided certain exceptions from this three-year statute of limitations in cases where the petitioner can demonstrate the following:

(a)(i) That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence; or
(ii) That, even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.
(b) Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

Miss. Code Ann. § 99-89-5(2). We additionally recognize that errors affecting a defendant’s fundamental constitutional rights also constitute exceptions to this time-bar. Blount v. State, 126 So.3d 927, 931 (¶ 13) (Miss. Ct. App. 2013). Although Shavers’s PCR motion is clearly time-barred, Shavers asserts that his counsel’s assistance was ineffective and he received an illegal sentence, all of which violated his fundamental constitutional rights.

¶ 10. Mississippi Code Annotated section 99-39-23(6) (Rev. 2015) also bars successive PCR motions:

The order as provided in subsection (5) of this section or any order dismissing the petitioner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.

¶ 11. The petitioner “bears the burden of proving by a preponderance of the evidence that his claims are not barred as successive writs.” Williams, 110 So.3d at 843 (¶ 13); Miss. Code Ann. § 99-39-23(7). As stated, Shavers filed a PCR motion in 2011 asserting that he received an illegal sentence. This Court ultimately held that “[e]ach sentence Shavers received was within the statutory limits,” and affirmed the trial court’s dismissal of Shavers’s PCR motion. Shavers, 94 So.3d at 363 (¶ 6). In his current PCR motion, filed in November 2015, Shavers again claims that he received an illegal sentence. Upon review, we find that Shavers’s PCR motion fails to assert any of the exceptions provided by section 99-39-23(6) relieving him from the successive-writ bar. Furthermore, we find no reason to set aside the previous finding of this Court that Shavers’s sentences were within the statutory limits. Id.) see also Foster v. State, 148 So.3d 1012, 1016 (¶ 12) (Miss. 2014) (citing Grayer v. State, 120 So.3d 964, 969 (¶ 16) (Miss. 2013) (“A sentence is not illegal unless it exceeds the maximum statutory penalty for the crime.”). Accordingly, we find Shavers’s claim of an illegal sentence procedurally barred as a successive writ.

¶ 12. The Mississippi Supreme Court has held that claims of ineffective assistance of counsel 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)); see also Avery v. State, 179 So.3d 1182, 1190 (¶ 16) (Miss. Ct. App. 2015) (“The supreme court has not yet held that effective assistance of counsel is a fundamental constitutional right that may overcome procedural bars in noncapital cases.”). We acknowledge that

[tjhough it is conceivable that under the facts of a particular case, a lawyer’s performance was so deficient, and so prejudicial to the defendant that the defendant’s fundamental constitutional rights were violated, our supreme court has never held that merely raising a claim of ineffective assistance of counsel is sufficient to surmount the procedural bar.

Williams, 110 So.3d at 844 (¶ 21) (citing Smith v. State, 922 So.2d 43, 47 (¶ 9) (Miss. Ct. App. 2006)). Accordingly, this Court must review Shavers’s ineffeetive-assis-tance-of-counsel claim to determine whether it is sufficient to invoke the fundamental-rights exception. As previously stated, “[t]he burden is on the PCR movant to show he ... is entitled to relief by a preponderance of the evidence.” Smith v. State, 129 So.3d 243, 245 (¶ 5) (Miss. Ct. App. 2013).

¶ 13. The supreme court has explained that in order to prevail on a claim of ineffective assistance of counsel, a petitioner “must demonstrate two things: (1) that his counsel’s representation fell below an objective standard of reasonableness; and (2) that but for counsel’s errors, there is a reasonable probability that the outcome of the proceeding would have been different.” Avery, 179 So.3d at 1188 (¶ 13) (internal quotation marks omitted) (citing Hannah v. State, 943 So.2d 20, 24 (¶ 6) (Miss. 2006)); see also Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 14. In Avery, 179 So.3d at 1188 (¶ 13), this Court recognized that with regard to guilty pleas, a petitioner “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.” Furthermore, “a defendant must plead claims of ineffective assistance of counsel with specificity, and the claim must be supported by affidavits other than his own.” Id. at 1188-89 (¶ 13). “When a movant fails to attach any supporting affidavits and relies solely on his own sworn motion, his ineffective-assistance claim must fail.” Id. at 1189 (¶ 13).

¶ 15. Shavers claims that he was not appointed counsel until he had spent eight months in jail. In support of his claim of ineffective assistance, Shavers asserts that his counsel rejected every request concerning the case as well as the lack of evidence against Shavers—namely, lack of DNA evidence and lack of medical records regarding injuries—and that his counsel led him to believe that if he accepted a plea deal, the court would use a life-expectancy chart, allowing Shavers to receive a lesser sentence.

¶16. Upon review of Shavers’s claims, we find that the record contains no evidence or affidavits in support of Shavers’s claim that he was not appointed counsel until he had spent eight months in jail. The record also contains no evidence or affidavits in support of Shavers’s claim that his counsel led him to believe he would receive a lesser sentence if he accepted the plea deal. See Avery, 179 So.3d at 1188 (¶ 13)

¶ 17. Regarding his assertion that his counsel failed to argue that a lack of DNA evidence or medical records existed to prove Shavers’s guilt, we find the record contains no documents, evidentiary support, or affidavits supporting these statements. In his appellate brief, Shavers simply states that if he had received effective assistance from his counsel, “[t]he DNA establishes that count one[, rape,] ... would be highly questionable since Shavers’s DNA was not a match, as well as count five[, aggravated assault,] and whether [the victim’s] jaw was actually broke[n].” Shavers claims that “counsel allowed that this was a lost cause that unless the State released such information the jury would believe he was capable because of count one,” which we can only interpret as meaning that his counsel advised Shavers that going to trial and using any alleged DNA evidence would not prove his innocence.

¶ 18. Contrary to Shavers’s assertion that DNA evidence could clear him of any rape charges, the record before us contains the transcript from the plea hearing, wherein the State informed the trial court that the State possessed DNA evidence from a rape kit performed on the victim. The State provided on the record that the “DNA would say that it was in fact Mr. Shavers who deposited that semen sample.” The State also provided: “At the time of his arrest, the pants [that] Mr. Shavers was wearing ... were submitted to the State Crime Lab, and the victim’s DNA came back, a sample of her DNA came back there in the clothes ... he was wearing.” When the trial court asked Shavers if he disagreed with any of the facts presented, Shavers responded, “No, sir, your Hon- or.”

¶ 19. Moreover, the record reflects that Shavers submitted his plea to the trial court under oath wherein he acknowledged that he understood the meaning and effect of his guilty plea, as well as the offenses to which he pleaded guilty. Additionally, at his plea hearing, Shavers swore under oath that his defense counsel had advised him of the nature of the offense. Shavers also affirmed that he and his defense counsel discussed the elements of the crimes charged against Shavers as well as any facts Shavers believed might be necessary for any possible defenses. Shavers stated under oath that he was satisfied with his defense counsel’s service.

¶ 20. Accordingly, we find that Shavers has not sufficiently alleged that his counsel’s performance fell below an objective standard of reasonableness. Shavers thus failed to prove the first part of the Strickland analysis. We also find that Shavers failed to demonstrate a reasonable probability that the outcome of the proceeding would have been different if his defense counsel had submitted DNA evidence or medical records. See Avery, 179 So.3d at 1188 (¶ 13).

¶ 21. After reviewing the record, we find that Shavers’s claims of ineffective assistance of counsel lack sufficient evidentiary support. Shavers provides only his own assertions to support his claims. Id. at 1188-89 (¶ 13). We therefore affirm the trial court’s summary dismissal of Shavers’s PCR motion as time-barred and successive-writ barred.

¶ 22. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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


text:
    Lonzell JONES a/k/a Lonzell Jones, Jr. a/k/a Lonzelle Jones, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00768-COA
    Court of Appeals of Mississippi.
    04/04/2017

      ATTORNEY FOR APPELLANT: LONZELL JONES (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE
    BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.
   CARLTON, J.,

FOR THE COURT:

¶ 1. Lonzell Jones pleaded guilty to one count of sale of cocaine on May 7, 2013. On July 30, 2015, Jones filed a motion for postconviction relief (PCR), which the trial court summarily denied. Jones now appeals, arguing that the trial court erred in denying his PCR motion because his counsel was ineffective and his indictment was defective. After our review of the record, we affirm the trial court’s denial of Jones’s PCR motion.

FACTS

¶ 2. On March 26, 2013, a Winston County grand jury indicted Jones with two counts of sale of cocaine. The indictment charged Jones as a second drug offender and as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015). On May 7, 2013, Jones pleaded guilty to a single count of sale of cocaine contained in Count II of the indictment.

¶ 3. The record reflects that, upon entering his guilty plea, Jones signed a plea petition wherein Jones confirmed that he offered his plea of guilty “freely and voluntarily and of [his] own accord[,] and with [a] full understanding of all the matters set forth in the indictment and ,., in [the plea] petition,” Jones also wrote on the plea petition: “I am guilty of sale of cocaine[,] count 2.” The trial court then sentenced Jones to serve a term of thirty years in the custody of the Mississippi Department of Corrections (MDOC), with eight years of postrelease supervision after the completion of twenty-two years of incarceration.

¶4. Jones filed a PCR motion on July 30, 2015, claiming that: (1) the indictment was defective; (2) he was denied effective assistance of counsel; (3) the trial court, his attorney, and the district attorney’s office committed plain error; and (4) a fatal variance existed between the indictment and the proof against him. The trial court denied Jones’s PCR motion, finding the motion frivolous, and ordered that “sixty (60) days of h[is] earned time credit should be forfeited pursuant to Mississippi Code Annotated [s]ection 47-5-138 [ (Rev. 2015) ].” Jones now appeals the trial court’s denial of his PCR motion.

STANDARD OF REVIEW

¶ 5. “When reviewing a trial court’s denial or dismissal of a motion for PCR, we will only disturb the trial court’s factual findings if they are clearly erroneous; however, we review legal conclusions under a de novo standard of review,” Chapman v. State, 167 So.3d 1170, 1172 (¶ 3) (Miss. 2015).

DISCUSSION

I. Defective Indictment

¶ 6. Jones argues that his indictment was defective because it failed to properly charge him with an offense. Jones specifically claims that he was charged with the sale of cocaine, but the indictment failed to contain the amount of cocaine he allegedly sold. Jones further claims that his indictment also failed to contain essential facts—that he sold the cocaine to a confidential informant, and the name of the confidential informant. As set forth in this opinion, Jones’s argument lacks merit because the quantity of cocaine sold is not required to be specified in the indictment. See Fair v. State, 93 So.3d 56, 58 (¶ 7) (Miss. Ct. App. 2012). We now address Jones’s claims of error with more specificity.

¶7. Although “the entry of a knowing and voluntary guilty plea waives all other defects or insufficiencies in the indictment[,] ... [a] guilty plea does not waive an indictment’s failure to charge an essential element of the crime[.]” Joiner v. State, 61 So.3d 156, 159 (¶ 7) (Miss. 2011). Upon review, we recognize that “[a] PCR movant bears the burden of showing he is entitled to relief by a preponderance of the evidence.” Ducksworth v. State, 134 So.3d 792, 794 (¶ 3) (Miss. Ct. App. 2013).

¶ 8. Uniform Rule of Circuit and County Court 7.06 provides that an indictment “shall be a plain, concise[,] and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” This Court has held that “[t]he chief objective of an indictment is to provide a defendant fair notice of the crime charged.” Davis v. State, 171 So.3d 537, 540 (¶ 11) (Miss. Ct. App. 2015). “An indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense.” Id. (quoting Gilmer v. State, 955 So.2d 829, 836-37 (¶ 24) (Miss. 2007)). In Harrison v. State, 722 So.2d 681, 687 (¶ 22) (Miss. 1998), the Mississippi Supreme Court provided that, “[s]o long as from a fair reading of the indictment, taken as a whole, the nature and cause of the charge against the accused are clear, the indictment is legally sufficient.”

¶ 9. The record before us reflects that, as a result of a plea deal, Jones pleaded guilty to one count of sale of cocaine, as set forth in Count II of Jones’s indictment. Count II of the indictment charges that Jones:

On or about August 6, 2012, in Winston County, Mississippi, and within the jurisdiction of this Court, did wilfully, unlawfully, feloniously, and purposely or knowingly sell, transfer, distribute^] or deliver a quantity of cocaine, a Schedule II controlled substance, to a human being, and did then and there receive therefore a sum of lawful United States money, constituting a related series of acts or transactions or a common scheme or plan, in violation of [sjection 41-29-139(a)(l) [and] (b)(1) of the Mississippi Code of 1972, as amended, and against the peace and dignity of the State of Mississippi^]

¶ 10. At the time Jones was indicted in 2013, Mississippi Code Annotated section 41-29-139(a)(l) and (b)(1) (Rev. 2013) stated:

(a) Except as authorized by this article, it is unlawful for any person knowingly or intentionally:
(1) To sell, barter, transfer, manufacture, distribute, dispense^] or possess with intent to sell, barter, transfer, manufacture, distribute^] or dispense, a controlled substance; or
(b) Except as otherwise provided in subsections (f) and (g) of this section or in Section 41-29-142, any person who violates subsection (a) of this section shall be sentenced as follows:
(1) In the case of controlled substances classified in Schedule I or II, as set out in Sections 41-29-113 and 41-29-115, except thirty (30) grams or less of marihuana or synthetic eanna-binoids, and except a first offender as defined in Section 41-29-149(e) who violates subsection (a) of this section with respect to less than one (1) kilogram but more than thirty (30) grams of marihuana or synthetic cannabi-noids, such person may, upon conviction, be imprisoned for not more than thirty (30) years and shall be fined not less than Five Thousand Dollars ($5,000.00) nor more than One Million Dollars ($1,000,000.00), or both[.]

¶ 11. In denying Jones’s PCR motion, the trial court explained that “[t]he statute does not list the identi[t]y of the buyer of drugs as an essential element of the crime. Consequently, the buyer’s name does not have to be included in the indictment.” Indeed, “the supreme court has held that the identity of the person to whom drugs are sold does not change the essence of the offense, since such identity is not an element of the offense.” Garrett v. State, 110 So.3d 790, 793 (¶ 11) (Miss. Ct. App. 2012) (citation and internal quotation marks omitted); see also Davis, 171 So.3d at 541 (¶ 15) (quoting Jenkins v. State, 308 So.2d 95, 96 (Miss. 1975) (“[T]he identity of a person to whom contraband is delivered is not essential to an indictment for a sale.”)).

¶ 12. The trial court also explained that Mississippi caselaw does not require that “the quantity of cocaine that was sold ... be specified in the indictment because the penalty ... [is] the same irrespective of the quantity of the cocaine that was sold.” In Fair, this Court found:

Under Mississippi law, the penalty for the sale of cocaine is the same regardless of the quantity sold. Therefore, the amount of cocaine sold is not an essential element of the crime. As such, an indictment is not defective for failing to list a quantity of cocaine in the context of a sale[-]of[-]cocaine charge.

Fair, 93 So.3d at 58 (¶ 7) (internal citations and quotation marks omitted). See also Alford v. State, 185 So.3d 429, 431 (¶ 7) (Miss. Ct. App. 2016).

¶ 13. Additionally, our review of the record reflects that the language of Jones’s indictment tracks the language of section 41-29-139(a)(l) and (b)(1), the criminal statute under which he was indicted. “[T]he ... [s]upreme [c]ourt [has] held that an indictment is generally sufficient if it tracks the language of the relevant criminal statute.” Ludwig v. State, 147 So.3d 360, 363 (¶ 9) (Miss. Ct. App. 2014) (citing Tran v. State, 962 So.2d 1237, 1241 (¶ 17) (Miss. 2007)). This issue lacks merit.

II. Ineffective Assistance of Counsel

¶ 14. Jones argues that his counsel was ineffective for failing to investigate the “background status” of the confidential informant to whom Jones allegedly sold cocaine. Jones claims that the confidential informant is a convicted felon, and Jones argues that this fact “prejudiced [his] case, resulting in a[ ] fundamentally unfair outcome.” Jones provides no further information or allegation about the confidential informant. Jones also claims that his counsel was ineffective for letting him plead guilty to a defective indictment.

¶ 15. To prevail on a claim for ineffective assistance of counsel, Jones bears the burden of showing: (1) his counsel’s performance was deficient and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a strong presumption exists “that counsel’s performance falls within the range of reasonable professional assistance.” Alford, 185 So.3d at 432 (¶ 14). Jones “must allege facts pointing toward counsel’s deficient performance with specificity and detail.” Bell v. State, 117 So.3d 661, 664 (¶ 10) (Miss. Ct. App. 2013) (internal quotation marks omitted). A movant must also offer more than his own affidavit or bare assertion in support of his claim for ineffective assistance of counsel; this Court has held that “mere allegations are insufficient to entitle a defendant to an evidentiary hearing on a post[ ]conviction claim of ineffective assistance of counsel.” Id. at (¶¶ 10-11).

¶ 16. In denying Jones’s PCR motion, the trial court held:

This court finds that Jones has failed to provide this court with any sworn affidavits, not even his own, that support his claim of ineffective assistance of counsel. This court has been presented with absolutely no proof Jones’[s] lawyer failed to prepare an adequate defense and/or that he failed to investigate the criminal background of the confidential informant. In fact, ... the petitioner’s guilty plea indicates that he and his attorney did discuss possible defenses. Additionally, this court notes that Jones has not alleged that “but for” the purported errors by his attorney, he would not have entered his guilty plea.

¶17. We recognize that a guilty plea “waives claims of ineffective assistance of counsel except insofar as the alleged ineffectiveness relates to the volun-tariness of the giving of the guilty plea.” Alford, 185 So.3d at 432 (¶ 15) (citation and internal quotation marks omitted). The transcript from Jones’s plea colloquy reveals that Jones voluntarily and freely entered his guilty plea and expressed no complaints about his trial counsel:

THE COURT: Now, have you had an opportunity to go over the charges that have been brought against you in this case with [your defense counsel]?
JONES: Yes, sir.
THE COURT: Has he advised you of the elements of the crime of sale of cocaine, that being the facts the State would have to prove before you could be found guilty?
JONES: Yes, sir.
THE COURT: Has he also discussed with you any possible defenses you might have to the charge?
JONES: Yes, sir.
THE COURT: Has [your defense counsel] met the expectations of what you believe a lawyer representing you in this case should do for you?
JONES: Yes, sir.
THE COURT: Do you have any complaints about that representation?
JONES: No, sir.
THE COURT: Are you completely and totally satisfied in all respects with the representation that you have been provided by [your defense counsel]?
JONES: Yes, sir.
THE COURT: Are you pleading guilty to the crime of sale of cocaine because you are, in fact, guilty?
JONES: Yes, sir.
THE COURT: The [c]ourt finds the plea to be ... freely, knowingly, voluntarily^] and intelligently made. The [c]ourt finds there to be a factual basis for the charge and for the plea of guilty. The [c]ourt does accept the plea of guilty. The [e]ourt will also accept the recommendation from the [S]tate.

¶ 18. Jones’s guilty plea, which he freely and voluntarily entered, thus waives Jones’s claims that his counsel was ineffective by failing to investigate the background of the confidential informant and by allowing Jones to plead guilty to a defective indictment. Furthermore, this Court has already determined that Jones’s indictment was not defective, and we accordingly find that Jones’s counsel was not ineffective in failing to object to the indictment. We additionally acknowledge that the transcript reflects that the State provided a factual basis for Jones’s plea of guilty, including a statement that “this sale was captured on audio and video surveillance, which the State would put on as evidence .... ” We thus find this issue lacks merit. Accordingly, we affirm the trial court’s denial of Jones’s PCR motion.

¶ 19. THE JUDGMENT OF THE WINSTON COUNTY CIRCUIT COURT DENYING THE MOTION FOR POSTCON-VICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WINSTON COUNTY.

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

      . The record reflects that, as a result of a plea deal between the State and Jones, Count I of the indictment and all sentence enhancements of the indictment were dismissed.


author: WESTBROOKS, J.,

text:
    Stanley Ross STRICKLAND a/k/a Stanley Strickland, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00625-COA
    Court of Appeals of Mississippi.
    04/04/2017

      ATTORNEYS FOR APPELLANT: EDMUND J. PHILLIPS JR., JAMES EDWIN SMITH III
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER, JASON L. DAVIS
    BEFORE LEE, C.J., GREENLEE AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE COURT:

¶ 1. Stanley Ross Strickland was convicted in the Circuit Court of Neshoba County of two counts of statutory rape. Strickland was convicted of having sex with his underage biological daughter on at least two separate occasions. He was sentenced on each count to thirty years in the custody of the Mississippi Department of Corrections, with the sentences to run consecutively for a total of sixty years. Strickland timely filed a motion for a new trial, which the court denied. He appeals and, finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. S.T. had been in and out of foster homes; however, in April 2012, S.T. lived with her mother and siblings in a double-wide mobile home. On April 7, 2012, S.T. had an unsupervised visit with Strickland at his residence. That night, Strickland watched pornographic movies with S.T. and inappropriately touched her. Later that night, Strickland engaged in sexual intercourse with S.T. After the sexual intercourse ended, S.T. went in the living room and watched television with her sister, M.T., Strickland’s other biological daughter. S.T. did not have her cellular phone during this visit and did not notify her mother. Strickland took S.T. and M.T. home the next day and picked them up again later that evening.

¶ 3. On the evening of April 8, 2012, S.T. took a shower at Strickland’s home while Strickland observed her through a window. Following her shower, S.T. sat on the couch in the living room while M.T. showered. Once M.T. finished, Strickland took S.T. into his bedroom and forced her to smoke marijuana and drink alcohol with him. They engaged in sexual intercourse soon after. During both sexual encounters, Strickland wore a condom. Strickland told S.T. to refrain from discussing their sexual encounters with others, because he would kill her if she did. She complied, until her mother, Luna Stafford, discovered inappropriate text messages between Strickland and S.T. Upon her discovery, Stafford resumed the inappropriate conversation with Strickland, posing as S.T.

¶ 4. During these text-message conversations, Strickland alluded to the sexual encounters he had with his underage daughter, S.T., and how he wanted to engage in sexual intercourse with her again. When Stafford, acting as S.T., indicated that she did not want to continue their sexual relationship (because of kinship), Strickland resorted to manipulation and bribery to coax S.T. into having sexual intercourse with him again. Strickland offered cell-phone minutes and money, and alluded to entertaining suicidal thoughts as a form of manipulation. Another form of manipulation included stating that he had engaged in sexual intercourse with his younger daughter, M.T. In an attempt to make S.T. jealous, Strickland sent a picture message of two frogs copulating, purportedly sent by M.T. to Strickland. Strickland indicated that after having sex with S.T., he no longer wanted a sexual i-elationship with his younger daughter, M.T.

¶ 5. Stafford took the text messages to her local sheriffs department, and Strickland was arrested and indicted shortly thereafter. After trial, Strickland was convicted of two counts of statutory rape and sentenced on each count to thirty years in the custody of the Mississippi Department of Corrections, with the sentences to run consecutively for a total of sixty years to serve. On appeal, Strickland contends the State did not prove beyond a reasonable doubt that Strickland committed statutory rape against a minor. Finding no merit to the issues, we affirm Strickland’s conviction and sentence.

STANDARD OF REVIEW

¶ 6. The standards of review are the same for denials of motions for judgments notwithstanding the verdict and motions for directed verdicts. Singleton v. State, 948 So.2d 465, 472 (¶ 16) (Miss. Ct. App. 2007) (citation omitted). Both motions “challenge the legal sufficiency of the evidence presented at trial.” Id.

DISCUSSION

I. Whether the court erred in overruling Strickland’s motion for a directed verdict.

¶ 7. When reviewing the denial of a motion for a directed verdict, this Court shall “accept as true all the evidence favorable to the State, together with reasonable inferences arising therefrom, [and] disregard the evidence favorable to the defendant; if such evidence would support a verdict of guilty beyond a reasonable doubt, the trial court’s denial of the motion must be affirmed.” Id. However, this Court does not inquire “whether it is satisfied that the evidence presented at trial established that the defendant was guilty beyond a reasonable doubt.” Id. “This Court may only discharge the defendant when we conclude, based on the evidence viewed in [the] light most favorable to the [State], that no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty,” Id. Mississippi Code Annotated section 97—3—65(l)(a) (Rev. 2014) states, “The crime of statutory rape is committed when: (a) Any person seventeen (17) years of age or older has sexual intercourse with a child who: (i) is at least fourteen (14) but under sixteen (16) years of age; (ii) is thirty-six (36) or more months younger than the person; and (iii) is not the person’s spouse.” ¶ 8. During the time the sexual intercourse took place, the victim was fifteen years old. Strickland was thirty-eight years old at that time. He is the biological father of the victim. Strickland argues the statements made in court by S.T. were false, because the wrong dates were presented in the original indictment. However, the dates when the sexual intercourse took place were later substantiated by the text messages between Strickland and the person whom Strickland believed to be S.T. A Department of Human Services investigator testified she was called to investigate an allegation of sexual abuse regarding another one of Strickland’s daughters. The investigator stated that the daughter also reported allegations of sexual abuse by Strickland. Also, S.T.’s mother continued the text-message conversation with Strickland only after she found the inappropriate text messages between Strickland and S.T. The investigator and a deputy sheriff testified that the messages were sent from a phone with the same number as Strickland.

¶ 9. We find the State proved beyond a reasonable doubt that Strickland committed statutory rape when he engaged in sexual intercourse with S.T. Therefore, the trial court did not err in denying Strickland’s motion for a directed verdict.

II. Whether the trial court erred in denying Strickland’s request for a peremptory instruction.

¶ 10. The standards of review for peremptory instructions and directed verdicts are the same. Williams v. State, 863 So.2d 63, 66-67 (¶ 11) (Miss. Ct. App. 2003) (citations omitted). “In passing upon a request for a peremptory instruction, all evidence introduced by the State is to be accepted as true, together with any reasonable inferences that can be drawn from that evidence, and if sufficient evidence to support a verdict of guilty exists, the [request] for a [peremptory instruction] is to be overruled.” Id. at 66 (¶ 11). “Mississippi law is clear on the subject of peremptory instructions in criminal cases: peremptory instructions should be refused if there is enough evidence to support a verdict.” Id. at 67 (¶ 15). This Court “will reverse only when reasonable and fair-minded jurors could only find the accused not guilty.” Id.

¶ 11. Strickland argues that there was an evidentiary basis to grant a peremptory instruction. We disagree. In reviewing the record, we find the evidence supports the verdict. Although there were inconsistencies with S.T.’s testimony regarding the time frame in which the sexual intercourse took place, the text messages from Strickland and the time stamp of the text messages substantiate S.T.’s claim as to when the sexual intercourse took place. An investigator from the Department of Human Services testified S.T. made a claim that she and Strickland engaged in sexual intercourse on more than one occasion. This Court notes “the well-settled law that it is within the discretion of the jury to accept or reject testimony by a witness, and the jury may give consideration to all inferences flowing from the testimony.” Id. at (¶12) (citation and quotation marks omitted). “It is also within the jury*s province to determine the weight and «•edibility of the evidence.” Id. Therefore, this Court finds no error in the circuit court denying Strickland’s request for a peremptory instruction.

III. Whether the trial court erred in denying Strickland’s motion for a new trial.

¶ 12. “As distinguished from a JNOV [motion], a motion for a new trial asks to vacate the judgment on grounds related to the weight, not sufficiency, of the evidence.” Singleton, 948 So.2d at 473 (¶ 20) (citation omitted). “The appropriate standard of review of a denial of a new trial or a claim that a conviction was against the overwhelming weight of the evidence” requires the reviewing court to “accept as true the evidence which supports the verdict and [to] reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Id. “A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an ‘unconscionable injustice.’ ” Id.

¶ 13. After a careful review of the evidence and the record, we find the trial court did not abuse its discretion in denying Strickland’s request for a new trial, as the verdict is not so contrary to the weight of the evidence as to constitute an unconscionable injustice.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF NESHOBA COUNTY OF CONVICTION OF TWO COUNTS OF STATUTORY RAPE AND SENTENCE ON EACH COUNT OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE SENTENCES TO RUN CONSECUTIVELY FOR A TOTAL OF SIXTY YEARS TO SERVE, WITHOUT ELIGIBILITY FOR PAROLE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.

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

      . To protect the minor victims’ identities, we have used their initials.