text:
    Larry WATTS, Jr., a/k/a Boo Jack a/k/a Larry Watts, Appellant v. STATE of Mississippi, Appellee
    NO. 2014-KA-00586-COA
    Court of Appeals of Mississippi.
    06/27/2017

      ATTORNEYS FOR APPELLANT: WAYNE DOWDY, DUNBAR DOWDY WATT
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART, JASON L. DAVIS
    BEFORE IRVINGj P.J., CARLTON AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE COURT:

¶ 1. Larry Watts appeals his conviction and sentence in the Walthall County Circuit Court. On appeal, Watts asserts that the oral and written statements and confessions that he gave to law-enforcement officers were inadmissible, because they were obtained as a result of a warrantless arrest. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Larry Watts lived with Sara Lowery and her four-year-old minor child “BAW,” in Walthall County, Mississippi. Lowery would leave BAW in Watts’s care while she went to work, and Watts normally babysat BAW and Watts’s biological son whenever Lowery was away. On September 16, 2012, Lowery brought BAW to the emergency room at Southwest Regional Medical Center in McComb, Mississippi, because BAW was complaining of stomach pains. After doctors at Southwest examined BAW, they determined that the severity of his injuries necessitated him being airlifted to the children’s hospital in Jackson, Mississippi. Upon arriving to the hospital, a pediatric specialist determined that BAW had abdominal trauma to his liver and that his pancreas was bleeding into his abdomen.

¶ 3. Medical personnel concluded that BAW’s injuries were commensurate with signs of child abuse and contacted the Walthall County Sheriffs Department. Investigator Gerald Magee received a call from dispatch, requesting that he contact Investigator Clay Barrett of the Summit Police Department. After speaking with Barrett, Magee dispatched Deputy Joe Michael Williams to Lowery and Watts’s home to detain him for questioning. There was an unrelated outstanding misdemean- or warrant for Watts in another jurisdiction that the sheriffs office was aware of and relied upon when detaining Watts. When Williams arrived to the residence, he asked Watts to step outside and place his hands on the hood of the vehicle. Watts testified that he asked Williams “what was going on,” and Williams never responded to his question. Watts was searched for weapons and placed in the back of the patrol car, where he was detained until Magee’s arrival.

¶ 4. At trial, Magee testified that when he arrived, he walked to the patrol car and advised Watts of his rights. Magee then asked Watts if he wanted to speak with him, and asked Watts if he knew anything about an injury that had occurred. Watts stated to Magee that his biological son was playing with BAW and hit him with a flashlight. Watts further stated that' he asked BAW if he was “OK” and allegedly BAW was unharmed. Watts contended that the only time he touched BAW and his son was to bathe them. Magee made an audio recording of the conversation he had with Watts at his home and transported Watts to the Walthall County Jail in Tyler-town.

¶ 5. After Watts arrived to the county jail, he was provided with a copy of the misdemeanor warrant that Magee relied upon in arresting him. Watts then made a written. recitation of the non-inculpatory oral statement that he made to Magee while he was detained at his residence. That statement was made at 12:22 a.m. At 1:11 a.m., Watts was read his rights again and signed a waiver-and-acknowledgment form indicating that he was advised of his rights. An audio recording of Watts’s acknowledgment and waiver of rights was made during that interaction. Magee also informed Watts that they were at the sheriffs department to discuss a possible injury to a child. During that interview, Watts made another written statement around 1:52 a.m., where he admitted to “accidently” punching BAW in the stomach. Following that statement, Magee arrested Watts for felony child abuse, and Watts was booked in the Walthall County Sheriffs Office. Watts made another written statement around 2:00 a.m. In that statement, Watts admitted that in an unrelated incident, BAW’s arm was broken when Watts helped him pull it out of a recliner.

¶ 6. Later that day, Watts made another oral and written statement around 2:16 p.m,, where he admitted that on the night he was arrested, he punched and kneed BAW in the stomach out of frustration. Watts stated that he was remorseful for hurting BAW and told him so. Watts’s final written statement was made at 2:20 p.m., admitting that he pulled BAW’s arm behind his back to stop him from roughhousing, and he heard a snap. Watts stated that he immediately checked BAW’s arm and felt that it was broken.

■¶ 7. Each statement was written on a “voluntary -statement” form, which enumerated the Miranda rights at the top. Magee also made audio recordings of each statement. Watts was tried and convicted of child abuse and sentenced to forty years in the custody of the Mississippi Department of Corrections.

¶8. On appeal, Watts argues that the statements he made to the police were the result of a warrantless arrest, without probable causé. Watts' broadly argues that the circuit court erred in overruling his objection to all written statements and audio recordings made.by him. He contends that the statements were.made following a warrantless arrest, with no probable cause. He also contends that the statements and recordings were the fruit of the poisonous tree and should have been excluded from evidence. We do not agree.

STANDARD OF REVIEW

¶ 9. In reviewing a trial court’s denial of a motion to suppress confessions, “we apply the familiar 'general rule that since the trial court sits as the fact-finder when determining the issue of whether an accused’s confession has been intelligently, knowingly and voluntarily given, we will only reverse the trial court’s determination of this, issue when such determination is manifestly wrong.” Keller v. State, 138 So.3d 817, 835 (¶ 16) (Miss. 2014). (citing Glasper v. State, 914 So.2d 708, 716 (¶ 21) (Miss. 2005)).

¶ 10. “[W]e will not disturb the trial court’s determination on the admissibility of a confession unless the trial court applied an incorrect legal standard, committed manifest error, or rendered a decision which was contrary to the overwhelming weight of the evidence.” Id. To determine if probable cause exists, this Court conducts a de novo review. Trejo v. State, 76 So.3d 702, 706 (¶ 8) (Miss. Ct. App. 2010). But this de novo review is limited to the trial court’s “decision based on historical facts reviewed under the substantial evidence and clearly erroneous standards.” Id.

¶ 11. “[A]ll evidence obtained by virtue of illegal actions of the police is not [necessarily considered]' fruit of the poisonous tree. The test is whether, granting establishment of the primary illegality, the evidence to which [the] instant objection is made has been come at by exploitation of that illegality instead of lay means sufficiently distinguishable to be purged of the primary taint.” Hooker v. State, 716 So.2d 1104, 1112 (¶ 28) (Miss. 1998).

DISCUSSION

¶ 12. Watts argues the circuit court erred by refusing to suppress all of his statements to law enforcement. Watts was detained by the use of a misdemeanor warrant from another jurisdiction. Under Mississippi Code Annotated section 99—3— 7(2) (Rev. 2015), when practicable, he was presented with the warrant at the sheriffs department. Williams did not explain the reason for Watts’s detainment to him. However, when Magee arrived to question Watts, Magee instructed Watts of his rights and proceeded to ask him if he wanted to talk to Magee. Magee asked Watts if he knew anything about an injury that had occurred. Watts voluntarily gave a statement suggesting BAW was injured as a result of playing with Watts’s biological son. Watts ultimately admitted to abusing BAW, and it was then that the officials arrested him for felony child abuse. Watts’s contention that his arrest was war-rantless and Without authority is without merit.

¶ 13. An arrest without a warrant is lawful if a felony has occurred and the arresting officer has reasonable grounds to suspect, at the time of the arrest, that the person arrested committed a felony offense. Cooper v. State, 145 So.3d 1219, 1226 (¶ 25) (Miss. Ct. App. 2013). Similarly, an arrest without a warrant is lawful if the person making the arrest does so on a charge that the person to be arrested committed a felony, and the charge was made upon reasonable cause. See Powe v. State, 235 So.2d 920, 922 (Miss. 1970). Regarding the defendant’s confessions, the United States Supreme Court has previously held that the Miranda rule is employed to protect against violations of the Fifth-Amendment Self-Incrimination Clause. United States v. Patane, 542 U.S. 630, 636, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004). “The exclusionary prohibition against [the] ‘fruit of the poisonous tree’ applies to violations of the Fifth-Amendment privilege against self-incrimination.” Chamberlin v. State, 989 So.2d 320, 336 (¶ 54) (Miss. 2008) (quoting Brown v. Illinois, 422 U.S. 590, 599, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)).

' ¶ 14. The Mississippi Supreme Court has held that the failure of an officer to advise the person of the circumstances for the arrest does not invalidate the arrest. Upshaw v. State, 350 So.2d 1358, 1363 (Miss. 1977). However, such an omission does shift the burden of proving probable cause to the State. Id. But regardless of whether Magee had probable cause to arrest Watts for felony child abuse, the outstanding warrant in another jurisdiction permitted the officers to detain him for the purpose of questioning him regarding the suspicion of felony child abuse.

¶ 15. Upon arrival to the sheriffs department, Magee went over an information form with Watts to gather basic information. Magee also provided Watts with a copy of the misdemeanor warrant, which vitiated Watts’s claim that the arrest was warrantless. Watts was then given a voluntary-statement sheet, where he made a written recitation of the oral statement he made to Magee while detained at his home. That statement was made around 12:22 a.m. At 1:11 a.m., Watts was read his rights again and signed a waiver-and-ae-knowledgment form indicating that he was advised of his rights. Moreover, during the audio recording, Magee stated to Watts that they were at the sheriffs department to discuss a possible injury to a child. Therefore, Watts was apprised at that moment of his rights and the reason that he was being questioned. Watts was also aware that he could end the interview, ask for an attorney, or refuse to speak with Magee at any time.

¶ 16. Watts’s third statement was made at 1:52 a.m., and it was his first admission of guilt to abusing BAW. It was then that he was arrested and booked for felony child abuse. Watts made another inculpato-ry statement around 2:00 a.m., where he admitted to abusing BAW in an incident unrelated to the injuries BAW sustained the night of Watts’s arrest. During that statement, Watts admitted to jerking and yanking BAW’s arm out of a recliner, causing BAW’s arm to break. As a result of Watts’s voluntary statements, Magee obtained probable cause for Watts’s arrest at the sheriffs department.

¶ 17. Twelve hours later, Magee questioned Watts again regarding the injuries BAW had sustained the night of Watts’s arrest, and he made two additional incul-patory statements, admitting to purposefully injuring BAW the night of his arrest. Watts’s confessions were made on voluntary-information sheets, which contained a reiteration of his Miranda rights. As such, Watts received at least six notifications of his Miranda rights. Therefore, we find that he was sufficiently apprised of his rights at the time that he confessed to abusing BAW.

¶ 18. There was no implication of coercion or undue pressure on Watts to confess to abusing BAW. It should be noted that Watts admitted to kicking BAW in the stomach out of frustration twelve hours after he gave his first inculpatory statement. He had time to consider whether to refrain from making any further statements to the police, yet he continued to make inculpatory statements.

¶ 19. A trial judge’s admission of a confession will only be overturned where an incorrect legal standard was applied, manifest error was committed, or the decision was contrary to the overwhelming weight of the evidence. Kircher v. State, 753 So.2d 1017, 1023 (¶ 27) (Miss. 1999). By the time Watts arrived to the sheriffs department, he had enough time to consider whether to invoke his right to remain silent or ask for counsel. He waived those rights and continued to speak with Magee. Watts was aware that he could refuse to speak with Magee and acknowledged that he could ask for a lawyer at any time, yet he did not. Watts admitted to abusing BAW in four separate statements, with two of the statements being obtained within twelve hours of the first inculpatory statement. Watts was also aware that he was being questioned regarding an injury to a child and continued to speak. Therefore, we find Watts’s confessions were not fruit of the poisonous tree, arising from a warrantless arrest.

¶ 20. Accordingly, we find that the trial court did not err in admitting Watts’s confessions into evidence.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF WALTHALL COUNTY OF CONVICTION OF TWO COUNTS OF FELONY CHILD ABUSE AND SENTENCE ON EACH COUNT OF FORTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS SUSPENDED, FOLLOWED BY FIVE YEARS OF POSTRELEASE SUPERVISION, WITH THE SENTENCES TO RUN CONCURRENTLY, AND TO PAY A $1,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . To protect the minor's identity, we substitute initials for his name.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: WILSON, J.,

license: Public Domain

text:
    Evelyn D. BUTLER, Individually, as Administratrix for the Estate of Alice Jean Butler, and on Behalf of the Wrongful Death Beneficiaries of Alice Jean Butler, Appellant v. CHADWICK NURSING & REHABILITATION CENTER, Chadwick Nursing And Rehabilitation Center, LLC, John C. Farmer, M.D., and Farmer and Associates Internal Medicine, Inc., Appellees
    NO. 2015-CA-01894-COA
    Court of Appeals of Mississippi.
    07/25/2017

      ATTORNEY . . FOR APPELLANT: WILLIAM W. FULGHAM
    ATTORNEYS FOR APPELLEES: W. DAVIS FRYE, MILDRED M.' MORRIS, TIMOTHY LEE SENSING, ANDREA LA’VERNE FORD EDNEY, JEAN COOPER BERTAS, JOHN BURLEY HOWELL III
    BEFORE GRIFFIS, P.J., BARNES AND WILSON, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. Alice Butler was admitted to Central Mississippi Medical Center (CMMC) on October 28, 2009, with severe hip pain. Alice’s doctor at CMMC believed that she needed a hip replacement, but he recommended that she undergo a course of rehabilitation to improve her strength prior to surgery. On November 5, 2009, Alice was transferred to Chadwick Nursing and Rehabilitation Center LLC (Chadwick) for rehabilitation. At the time of her admission, Chadwick’s staff documented multiple areas of skin breakdown on Alice’s body, including two bed sores (pressure ulcers) on her buttock. While Alice was at Chadwick, these sores deteriorated and became infected. On November 27, 2009, Alice was transferred to the emergency room at CMMC, where she was diagnosed with sepsis and other illnesses. On December 27, 2009, Alice died of acute respiratory failure caused by sepsis.

¶ 2. Alice’s daughter, Evelyn, subsequently filed a medical malpractice complaint against Chadwick and Alice’s primary physician at Chadwick, Dr. John Farmer. Evelyn alleges that Chadwick failed to notify Alice’s doctors of changes in her condition in a timely fashion. She also alleges that Dr. Farmer’s treatment of Alice did not meet the standard of care. She further alleges that these failures by Chadwick and Dr. Farmer more likely than not caused Alice’s death. The case eventually proceeded to a jury trial. However, at the conclusion of Evelyn’s case-in-chief, the circuit judge granted the defendants’ motions for directed verdicts because the judge concluded (1) that there was insufficient evidence that any alleged breach of care by Chadwick caused Alice’s death and (2) that as a matter of law Evelyn failed to establish any breach of care by Dr. Farmer. We agree with the circuit ■ court that both defendants were entitled to judgment as a matter of law. Therefore, we affirm.

FACTS AND PROCEDURAL • HISTORY

¶ 8, In October 2009, Alice Butler was sixty-eight years of age. She. had been diagnosed with diabetes, hypertension, arthritis, and gout. She was morbidly obese, and her medical history also included a diabetic coma, a stroke, and heart bypass surgery. However, Alice lived in her own home and was able to care for herself.

¶4. Alice also suffered from degenerative joint disease. On October 28, 2009, she went to see her doctor, Dr. Hursie Davis Sullivan, because she had been unable to walk for three days due to severe pain in her left hip. At Dr. Sullivan’s recommendation, Alice was admitted to CMMC the same day for her hip pain.

¶ 5. One of the doctors at CMMC, Dr. Temple, felt that Alice needed a hip replacement, but he recommended Alice should go somewhere for a period of rehabilitation prior to surgery. Alice’s family placed her at Chadwick for rehabilitation.

¶ 6. Alice was transferred from CMMC to Chadwick on November 5, 2009. Alice’s family testified that for about the first week she was at Chadwick, she seemed to be normal and in good spirits.

¶7. Dr. Farmer was Alice’s admitting physician at Chadwick. Upon her admission on November 5, Chadwick’s staff evaluated Alice and noted two bed sores (i.e., pressure ulcers) on her buttock that were described as “open” and “red in color” but without any “drainage or odor.” One sore measured three and a half centimeters by one centimeter, and the other measured two centimeters by one centimeter. On November 10, Chadwick’s staff noted that one of Alice’s sores was eight centimeters long and four centimeters wide. Records indicate that there was no odor from the sores, but there was some drainage.

¶ 8. On November 13, Chadwick’s staff noted in Alice’s records that she had not walked in the previous seven Says and needed “extensive assistance” to bathe or use the restroom. Alice got around Chadwick primarily by using a wheelchair. Alice’s records also reflect that she experienced hip and joint pain daily that at times was “horrible or excruciating.”

¶ 9. Alice’s family testified that they noticed a change in her condition during her second week at Chadwick. They testified that Alice was almost always asleep when they went to visit her, but Chadwick’s staff told them that Alice was just tired from her rehabilitation.

¶ 10. On November 17, Alice’s sores developed slough. Chadwick’s staff notified Dr. Farmer of this change in Alice’s condition, and he ordered that the wound be treated with Santyl, a chemical debriding agent, to remove the slough. Alice’s records reflect that on November 18 the wound was still eight centimeters long by eight centimeters without odor or drainage; however, the wound had turned yellow in color and slough was present.

¶ 11. Alice’s family testified that Alice continued to sleep a lot during her third week at Chadwick, and Evelyn testified that she stopped receiving daily phone calls from Alice. Alice’s family testified that they were concerned about Alice and continued to question staff about her condition.

¶ 12. At some point during Alice’s third week at Chadwick, Evelyn learned about Alice’s wound for the first time. Evelyn testified that she asked to see the wound on more than one occasion, but Chadwick’s staff told her that she could not because the wound had just been treated with ointment or bandaged or because Alice was asleep. Evelyn testified that she also briefly spoke with Dr. Farmer but that he was too “busy” to talk for long..

¶ 13. According to nursing notes, Dr. Farmer saw Alice on November 23. Notes from November 24 indicate that the wound had not grown and was still yellow in color without drainage or odor. Shortly before midnight on November 26, Alice’s wound began draining and an odor was noted. On November 27, the wound opened and was revealed to be an abscess. Chadwick notified the on-call physician, Dr. Obie McNair, of the changes in Alice’s condition. Dr. McNair ordered Chadwick to continue to monitor Alice’s condition and to send her to the hospital if she had a fever or if her level of consciousness changed. Dr. McNair also ordered that the wound be cleaned with Betadine and nystatin powder, which are topical antibiotics.

¶ 14. On November 27, Alice was transferred back to CMMC. She was admitted with diagnoses of an altered mental state (a possible symptom of an infection), severe anemia, and acute renal failure, along with dehydration, diabetes, and hypertension. She immediately was- started on antibiotics for her infected wounds and possible sepsis. Surgical debridement was also performed on the wound at CMMC.

¶ 15. Alice passed away on December 27. Her death certificate listed the causes of death as acute respiratory failure, septicemia, pneumonia, hypertension, and diabetes.

¶ 16. In August 2011, Evelyn, as the administrator of Aice’s estate and on behalf of Alice’s wrongful death heirs, filed a medical malpractice complaint against Chadwick and Dr. Parmer in the Hinds County Circuit Court. The case eventually proceeded to a jury trial on November 8, 2015.

¶ 17. At trial, Linda Sellers testified for the plaintiff as an expert in the field of nursing. Sellers was employed as a “surveyor” for the “Joint Commission,” an independent accreditation organization for nursing homes and other healthcare facilities. Sellers previously worked as a registered nurse and as a director of nursing and administrator at a nursing home/assisted living facility. On direct examination, Sellers testified, in general terms, that' the staff at Chadwick breached the standard of care by failing to notify a physician promptly of changes in the condition of Alice’s wound and of changes in her fluid intake.

¶ 18. On cross-examination, Sellers testified that the “standard of care” that she applied in this case consisted of federal guidelines promulgated by the Center for Medicare and Medicaid Services (CMS). Sellers expressly equated a “breach of the standard of care” to “a violation of a federal guideline.” However, Sellers admitted that a reasonable and competent nursing home may not always comply with federal guidelines.

¶ 19. Sellers also testified that Chadwick appropriately evaluated and addressed Alice’s sores upon her admission to the facility on November 5. Sellers acknowledged that nurses notified Dr. Farmer of the sores, and that Dr. Farmer prescribed a “reasonable” and “typical” course of treatment, which the facility carried out according to his orders.

¶ 20. Sellers also acknowledged that on November 17, when the wound developed slough, Chadwick responded appropriately by notifying Dr. Farmer. She agreed that Dr. Farmer prescribed a debriding agent and- that Chadwick again carried out his orders regarding treatment. Sellers also agreed that the National Pressure Ulcer Advisory Panel (NPUAP) is “the expert group on> pressure ulcers in the United States” and that they “recommend! ] against the use of topical antibiotics on a wound like [Alice’s].”

¶21. Seller's further testified that she was not critical of Chadwick for not transferring Alice to CMMC prior to November 27. In fact, Sellers agreed that “Chadwick responded appropriately to [Alice’s] changes in condition” during her “final five days in the nursing home.” Sellers also agreed that on November 27, when the wound opened and revealed an abscess, Chadwick responded appropriately by notifying Dr. McNair, the on-call physician.

¶ 22. Dr. Christopher Davey testified for the plaintiff as an expert in the fields of geriatric medicine, internal medicine, and wound care. Dr. Davey testified that the wound near Alice’s sacrum was 6.3 centimeters deep when she was admitted to CMMC on November 27. As a result, the infection reached the bone (the sacrum). Dr. Davey testified that the infection of the bone was “a really serious matter” because such an infection is “incurable in almost all cases.” Dr. Davey testified that this infection led to Alice’s death because the infection was caught “too late” to be treated effectively. Alice’s immediate cause of death was respiratory failure, but sepsis caused her respiratory failure. Dr. Davey also testified that Alice was severely dehydrated when she was admitted to CMMC; however, CMMC was “able to correct” the dehydration by administering fluids.

¶ 23. Dr. Davey testified that “debridement”—the removal of dead and infected tissue from a wound to promote healing— may be done either surgically or with medicines. Santyl is the only medicine approved by the FDA for this purpose. Dr. Davey testified that generally a wound -is infected once it develops slough. Dr. Davey was critical of Dr. Farmer for treating Alice’s wound with Santyl (a debriding agent) alone after the wound developed slough on November 17. Dr. Davey maintained that, at that point, the standard of care required Dr. Farmer to also treat the wound with a topical antibiotic ointment, Dr. Davey also testified that it was “more likely than not” that Alice would have survived if Dr. Farmer had ordered a topical antibiotic on November 17,18,' or 19. .

¶24. On cross-examination, Dr. Davey testified that he-had no criticisms of Dr. Farmer’s orders between Alice’s admission to Chadwick on November 5 and November 16. He also testified that Dr. Farmer’s November 17 order to apply Santyl (the chemical debriding agent) to the wound was appropriate. Dr. Davey testified that he believed that the wound became infected sometime between November 18 and 21 or possibly as early as November 17. Dr. Davey opined that Dr. Farmer breached the standard of care by not ordering a topical antibiotic ointment after the wound did not respond to treatment with Sanjbyl.

,¶25. However, Dr. Davey acknowledged that “reasonable doctors can disagree about the use of topical antibiotics on pressure ulcers.” Dr. Davey specifically acknowledged. that the guidelines issued by the NPUAP state in relevant part: “Limit the use of topical antibiotics on infected pressure ulcers, except in special situations, ... In general, topical antibiotics are not recommended for pressure ulcers.” Dr. Davey admitted that the NPUAP guidelines are “authoritative.” He also admitted that he had urged NPUAP to amend this very guideline; however, the organization had not done so,

¶ 26. On redirect examination, Dr. Davey pointed out that the NPUAP guidelines permit the u,se of topical antibiotics “in special situations.” He was then asked: “What are those special circumstances?” He answered: “If the wound gets infected.”

¶ 27. At the conclusion of Evelyn’s casein-chief, Chadwick and Dr. Farmer each moved for a directed- verdict. Chadwick argued that Sellers failed to articulate the applicable standard of care for a nursing home or how it was breached; rather, Sellers conflated CMS regulations with the relevant standard of care. Chadwick also argued that Evelyn failed to introduce any competent evidence that any alleged breach of the standard of care caused or contributed to Alice’s' death. Dr. Farmer primarily argued that Evelyn failed to establish a breach of the standard of care because Dr. Davey effectively admitted that Dr. Farmer’s treatment was consistent with “authoritative” NPUAP guidelines. The circuit judge granted the defendants’ motions and subsequently entered a final judgment dismissing Evelyn’s claims with prejudice. Evelyn filed a timely notice of appeal.

DISCUSSION

¶ 28. We review a ruling granting a motion for a directed verdict de novo. Braswell v. Stinnett, 99 So.3d 175, 177-78 (¶ 10) (Miss. 2012). A directed verdict should be granted if the moving party is entitled to judgment as a matter of law. Id. at 178 (¶ 10). The evidence must be viewed in the light most favorable to the non-moving party, with all reasonable inferences granted in favor of that party. Id. However, a “trial court should submit an issue to the jury only if the evidence creates a question of fact concerning which reasonable jurors could disagree.” Vines v. Windham, 606 So.2d 128, 131 (Miss. 1992).

¶29. To establish a prima facie case of medical malpractice, a plaintiff must come forward with proof of

the existence of a duty on the part of the physician to conform to the specific standard of conduct, the applicable standard of care, the failure to perform to that standard, that the breach of duty by the physician was the proximate cause of the plaintiffs injury, and that damages to plaintiff have resulted.

Estate of Northrop v. Hutto, 9 So.3d 381, 384 (¶ 9) (Miss. 2009) (quoting Barner v. Gorman, 605 So.2d 805, 808-09 (Miss. 1992)).

¶30. A “physician’s non-delegable duty of care is this”:

[G]iven the circumstances of each patient, each physician has a duty to use his or her knowledge and therewith treat through maximum reasonable medical recovery, each patient, - with such reasonable diligence, skill, competence, and. prudence as are practiced by minimally competent physicians in the same specialty or general field of practice throughout the United States, who have available to them the same general facilities, services, equipment and options.

Hall v. Hilbun, 466 So.2d 856, 873 (Miss. 1985) (superceded by statute on other grounds).

¶ 31. “The success of a plaintiff in establishing a case of medical malpractice rests heavily on the shoulders of the plaintiffs selected medical expert.” Estate of Northrop, 9 So.3d at 384 (¶ 10). Expert testimony in a medical negligence case must establish an “objective” and “nationally recognized” standard of care and a breach thereof. Id. at (¶ 9); McIlwain v. Natchez Cmty. Hosp. Inc., 178 So.3d 678, 686 (¶¶ 26-27) (Miss. 2015). The expert’s own personal'preferences or practices— i.e., simply what the expert says that he or she would have doné in the same scenario—are insufficient to establish an objective, national standard of care. See Estate of Northrop, 9 So.3d at 384-87 (¶¶ 9-13). In general, expert testimony also is necessary to establish medical causation. See, e.g., Henson v. Grenada Lake Med. Ctr., 203 So.3d 41, 44 (¶ 10) (Miss. Ct. App. 2016).

¶ 32. The same basic rules apply to claims of medical negligence against healthcare facilities for alleged breaches of the nursing standard of care. See, e.g., id. at 44-46 (¶¶ 8, 14-15); Williams v. Manhattan Nursing & Rehab. Ctr. LLC, 148 So.3d 20, 22-23 (¶ 10) (Miss. Ct. App. 2014). A nurse is competent to testify as to the applicable nursing standard of care but not as to issues of medical causation. See Vaughn v. Miss. Baptist Med. Ctr., 20 So.3d 645, 652 (¶¶ 20-21) (Miss. 2009).

¶33. Evelyn’s brief on appeal fails to address the specific issues that the defendants raised when they moved for directed verdicts at tidal. Evelyn asserts that the trial judge “usurped the jury’s domain, determined what weight and credibility to give the experts’ testimony, resolved factual issues,” and generally engaged in “out-of-bounds conduct.” However, this simply is not the case. As we explain below, Evelyn’s proof was objectively lacking on at least one essential element of her claim as to each defendant. Accordingly, there was nothing to submit to the jury for determination, and the trial judge property granted the defendants’ motions for directed verdicts.

I. Dr. Parmer

¶ 34. Dr. Dave/s criticism of Dr. Farmer—the alleged breach of the standard of care—was that Dr. Farmer did not prescribe a topical antibiotic ointment after Alice’s wound became infected, which Dr, Davey estimated as having occurred between November 18 and 21. However, Dr. Davey conceded that “reasonable doctors can disagree about the use of topical antibiotics on pressure ulcers.” Moreover, Dr. Davey specifically admitted that “authoritative” guidelines concerning the treatment of pressure ulcers state: “Limit the use of topical antibiotics on infected pressure ulcers, except in special situations. ... In general, topical antibiotics are not recommended for pressure ulcers.” Dr. Davey testified that he, personally, does not agree with this guideline and has urged its amendment. On redirect, Dr. Da-vey pointed to the guidelines’ statement that topical antibiotics may be used “in special situations,” and he claimed that a “special situation” exists “[i]f the wound gets infected.” However, this testimony was illogical and inconsistent with the guideline. The guideline specifically addresses the' treatment of “infected pressure ulcers” (emphasis added); an infected wound is the situation that the guidelines address, not a “special situation.”

¶ 35. Under Mississippi law, Dr. Davejfs testimony failed to establish a specific, legally sufficient standard of care or a violation of any standard of care. In Estate of Northrop, supra, the Supreme Court held that an expert’s testimony about how he believed an IV should have been monitored failed to establish an objective, national standard of care. See Estate of Northrop, 9 So.3d at 384-87 (¶¶ 9-13). The Court held that the expert’s “personal preferences [did] not establish a national standard of care.” Id. at 387 (¶ 13). Similarly, in Braswell v. Stinnett, 99 So.3d 175 (Miss. 2012), the Court held that an expert’s testimony about his own view of “good dental practice” failed to establish a legally sufficient standard of care—i.e., “what is required of a minimally competent dentist.” Id. at 179 (¶ 14) (emphasis in original). And in Conn v. United States, 880 F.Supp.2d 741 (S.D. Miss. 2012), the federal district court held that an expert’s testimony as to what his own “professional recommendation ... would have been” failed to establish the requisite standard of care under Mississippi law. Id. at 744. As that court put it, “[t]he Mississippi Supreme Court has held that an expert’s personal recommendations do not amount to a standard of care.” Id.

¶ 36. The result is the same in this case. Dr. Davey’s testimony was shown to be nothing more than his own personal opinion about how Alice should have been treated. Dr. Davey conceded that reasonable doctors can disagree about how to treat infected pressure ulcers, and he admitted that “authoritative” guidelines caution against the use of topical antibiotics. No evidence was presented at trial that the course of treatment prescribed by Dr. Farmer was inconsistent with those authoritative guidelines. Moreover, no evidence was presented that the treatment ordered by Dr. Farmer was “below objectively ascertained minimally acceptable levels” practiced by physicians nationwide. Estate of Northrop, 9 So.3d at 384 (¶ 9) (quoting Hall, 466 So.2d at 873). “Dr. [Da-vey’s] personal preference does not establish a national standard of care.” Id. at 387 (¶ 13). Because Evelyn failed to establish the standard of care or a breach thereof, Dr. Farmer was entitled to judgment as a matter of law, and the trial judge properly granted his motion for a directed verdict.

II. Chadwick

¶ 37. Having reviewed the entirety of Sellers’s testimony, we remain unclear as to how exactly she believed that Chadwick had breached the nursing standard of care. Sellers testified that she had no criticisms of the care provided by Chadwick from the time of Alice’s admission on November 5, 2009, through at least November 17. She also testified that she had no criticisms of the care that Chadwick provided during Alice’s final five days at the facility (November 22 to November 27). Sellers did not contend that Chadwick should have transferred Alice to the hospital prior to November 27. Without providing any specifics, Sellers simply asserted that Chadwick did not provide “prompt” notification to Alice’s physicians of changes in her condition, including the “worsening of the pressure ulcer” and Alice’s lethargy, reduced intake of food and fluids, and dehydration.

¶ 38. As to any alleged breach related to dehydration, there is, at a minimum, a causation problem. Sellers was not competent or qualified to testify as to issues of medical causation, see Vaughn, 20 So.3d at 652 (¶¶ 20-21), and the plaintiffs causation expert, Dr. Davey, testified that issues related to Alice’s dehydration were resolved once she was transferred to CMMC. Therefore, there was no evidence that such a breach caused Alice’s death.

¶ 39. Furthermore, Sellers’s assertions that Chadwick failed to notify physicians of changes in the condition of the wound were conclusory and unsupported by facts. Sellers had no criticisms of Alice’s care through November 17. There is no dispute that on November 17 Chadwick did notify Dr. Farmer of the condition of the wound, which had developed slough. There is also no dispute that Dr. Farmer prescribed a course of treatment, which Chadwick followed. Sellers also admitted that she had no criticisms of Alice’s care from November 22 to 27. In her testimony at trial, Sellers failed to identify what changes she thought that Chadwick should have brought to the attention of a doctor between November 17 and 22. There is also no evidence that any such notification would have changed the outcome. Dr. Farmer saw Alice on November 23 but made no changes to her course of treatment—which, as we have already discussed, was not shown to be contrary to any recognized standard of care.

¶ 40. As we recently reiterated, a “conelusory expert .[opinion] that fails to explain the underlying ‘how, when, and why* is insufficient to withstand [a motion for judgment as a matter of law].” Henson, 203 So.3d at 45 (¶ 15) (quoting Gray v. Dimitriades, 211 So.3d 738, 745 (¶ 29) (Miss. Ct. App. 2016)). This principle applies to Sellers’s testimony. At trial, Sellers made conelusory assertions that Chadwick failed to meet its duty to promptly notify Alice’s doctors of changes in her condition; however, she failed to identify any specific instances in which Chadwick failed to notify Alice’s' doctors of changes in her condition. In addition, there is no competent evidence in the record to link the unspecified, alleged breaches of care to Alice’s death. Accordingly, Chadwick also was entitled to judgment as a matter of law, and the tidal judge properly granted its motion for a directed verdict.

CONCLUSION

¶ 41. For the foregoing reasons, both Dr. Farmer and Chadwick were entitled to judgment as a matter of law; therefore, the trial judge properly granted their motions for directed verdicts, and we affirm.

¶ 42. AFFIRMED.

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

      . The defendants raised these same issues again in their briefs on appeal; however, Evelyn did not file a reply brief.

      . We also note that, although she would not have been competent to testify to the standard of care for a physician, Sellers testified that she had never applied a topical antibiotic to a wound like Alice’s and did not believe that such treatment would be consistent with the nursing standard of care.

      . Sellers admitted that when the wound’s condition changed on November 26 and 27, Chadwick responded appropriately by promptly notifying the on-call physician.

      . There is also a question as to whether Sellers articulated a legally sufficient standard of care, as she seemed to equate violations of federal regulations to breaches of the standard of care. See Moore ex rel. Moore v. Mem'l Hosp. of Gulfport, 825 So.2d 658, 665 (¶ 24) (Miss. 2002) (holding that the State Board of Pharmacy "regulations do not establish a legal duty of care to be applied in a civil action”). As Chadwick was entitled to judgment as a matter of law on other grounds, we need not address this issue,


text:
    Robert Allen WORTH a/k/a Robert A. Worth a/k/a Bob Worth, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00704-COA
    Court of Appeals of Mississippi.
    07/25/2017

      ATTORNEY FOR APPELLANT: ROBERT ALLEN WORTH (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ALICIA AINSWORTH
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. Robert Allen Worth pled guilty to exploitation of a child and was sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended, ten years to serve, and five years of post-release supervision.

¶ 2. Worth subsequently filed a petition for post-conviction relief (PCR), claiming (1) that he received ineffective assistance of counsel, which led to an involuntary plea; (2) that his sexually explicit emails, in which he sought to arrange a sexual encounter with a thirteen-year-old girl, were protected speech under the First Amendment; (3) that the prosecutor and his attorney both engaged in “misconduct”; and (4) that because no Viagra pills were found in his possession at the time of his arrest, he lacked the ability and/or the intent to have sexual intercourse “with anyone much less a minór.” The circuit court denied Worth’s PCR petition as mer-itless, and we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. On March 8, 2012, Sergeant Donnie Dobbs of the Biloxi Police Department signed on to a chatroom on America Online (AOL) named “ShareHerNMississippil3” to monitor for sexual predators. Sergeant Dobbs used the screen name “DnS4youngl313” and represented himself as “Denise,” a thirty-five-year-old single mother who lived in Biloxi and had a thirteen-year-old daughter named “Brandi.” Sergeant Dobbs soon received an instant message from someone using the screen name “ActivetongueLINY,” who said that his name was Bob and that he lived in New York. Sergeant Dobbs initially ignored Bob’s messages since Bob did not live near Mississippi, but Bob persisted in messaging “Denise.” Bob told “Denise” that he was familiar with the Biloxi area because he had trained at Keesler Air Force Base and that he would be going back to the base in April 2012.

¶4. Bob’s initial message to “Denise” indicated that he wanted to have sex with her thirteen-year-old daughter “Brandi.” This led to numerous vulgar, disturbing, and sexually explicit emails between March 8, 2012, and April 20, 2012, in which Bob expressed his desire to have sex with “Brandi” and made plans to meet “Denise” and “Brandi” in order to have sex with “Brandi.”

¶ 5. To prove that he was serious about meeting “Denise,” Bob provided his telephone number. Sergeant Dobbs asked a female detective to pose as “Denise” on a telephone call to Bob. On March 25, the female detective, posing as “Denise,” called the number Bob provided and made contact with him. He continued to express his desire to travel to Biloxi to meet and have sex with “Brandi.” After the phone call, Sergeant Dobbs continued to email Bob in order to make plans for him to come to Biloxi.

¶ 6. Sergeant Dobbs also used the telephone number to identify Bob as Robert Allen Worth of Indianapolis, Indiana. The identification was supported by information included in Bob’s emails, including his request that “Denise” and “Brandi” travel to Indianapolis to visit him. Finally, by email, “Denise” asked Bob for his last name, and Bob said that his last name was Worth.

¶ 7. On March 28, 2012, Worth told “Denise” that he had purchased a digital camera to take pictures of “Brandi” and a GPS to help him travel to Biloxi. He also told “Denise” that he would bring vibrators, lubricant, and condoms for his planned intercourse with “Brandi.” Worth and “Denise” later arranged to meet at the Biloxi Lighthouse Pier between 3:00 and 3:30 p.m. on April 20, 2012.

¶8. On April 20, 2012, after receiving email updates from Worth about his estimated time of arrival, law enforcement set up surveillance near the pier. Around 2:30 p.m., Worth arrived at the pier and was arrested. Condoms, a GPS, a digital camera, lubricant, and vibrators were found in Worth’s car. After Worth was arrested and informed of his rights, he admitted that he believed that he had been communicating with a mother in Biloxi about her thirteen-year-old daughter, but he claimed that he had traveled to Biloxi to help the mother educate her daughter about safe sex practices.

¶ 9. Worth was indicted for exploitation of a child. See Miss. Code Ann. § 97-5-33(6). (Rev. 2014). On September 15, 2014, Worth filed a petition to plead guilty to the charge. Worth’s plea petition acknowledged that he faced a minimum sentence of five years and a $50,000 fine and a maximum sentence of forty years and a $500,000 fine. The petition also acknowledged that Worth would enter an open plea, meaning that the State had not-made a sentencing recommendation and that there was no plea agreement between Worth and the State. Worth’s sworn petition also provided the following factual basis for his plea:

Between March 8, 2012 and -April 20, 2012 I sent electronic messages by cell phone & computer to entice a- child under 18 years for the purpose Of meeting to engage in sexually explicit conduct. I contacted a law enforcement officer passing as the child’s mother. The cell phone & computer messages were received in the Second Judicial District of Harrison Co., Miss, and I traveled to Biloxi for the meeting & was arrested there.

■ ¶ 10. A plea hearing was held the same day that Worth submitted his plea petition. At the hearing, Worth told the circuit judge that he had read and understood the contents of his plea petition and that he had discussed the petition fully with his attorney. Worth’s attorney also informed the court that he and Worth had engaged in a “lengthy discussion” prior to the hearing. Worth again swore that everything in the petition was'true and correct. Worth told the court he was satisfied with his attorney’s services and that his attorney had explained the crime and the sentencing range to him. The circuit judge explained the rights that Worth was waiving by pleading guilty, and Worth stated that he understood and desired to plead guilty. Worth swore he was not coerced or forced into pleading guilty, nor had he been promised or guaranteed any specific sentence. The circuit judge told Worth that he had no obligation to follow any recommendation by the State and could sentence him to the maximum of forty years or the minimum of five. Worth said he understood. The court then' accepted Worth’s plea .and postponed sentencing until the completion of a pre-sentence report.

¶ 11. Wprth was sentenced on November 17, 2014. -The State recommended a sentence of five to. ten years to serve and five years of post-release supervision. Worth’s attorney requested .a sentence of time served. The judge then allowed Worth to speak.. Worth claimed that he had never touched a child and would never do so. He claimed that he communicated with “Denise” only to help a child who appeared to be in trouble. He emphasized that he never communicated with a child or even an officer posing as a child. He admitted sending sexually explicit emails about having sex with a thirteen-year-old girl, but he claimed that he was only following the lead of the officer posing as “Denise.” After listening to Worth, the judge sentenced him to fifteen years in MDOC custody, with five years suspended and ten to serve, as well as fiye years of post-release supervision. Worth was fifty-seven years old at the time of his sentencing.

¶ 12. On December 28, 2015, Worth filed a pro se PCR petition. In his first claim, Worth alleged that his plea was involuntary because his attorney misled him about the minimum sentence and told him that he would be sentenced to “time served.” Worth also claimed that his attorney coerced him into pleading guilty by promising that he would be “home for the holidays” if he pled. Worth also alleged that his attorney failed to inform him of the full consequences of pleading guilty, including an alleged loss of Social Security benefits. Finally, Worth alleged other miscellaneous failures by his attorney, such as failing to obtain discovery and failing to discuss trial strategy and defenses.

¶ 13. Worth’s PCR petition also alleged that his sexually explicit email communications were protected by the First Amendment because -they were sent to a “consenting adult.” Worth also claimed that he had a “medical” defense to the charges against him: he had a prescription for Viagra, and because no Viagra was found in his possession when he was arrested, he lacked the intent or ability to have sex with “Brandi.” Finally, Worth alleged miscellaneous “misconduct” by the State and his own attorney.

¶ 14. In his order denying Worth’s petition for post-conviction relief, the circuit judge found that Worth’s plea was voluntarily and intelligently entered and that Worth had fully understood the consequences of his plea at the time of his plea hearing. The circuit judge also noted that at the time Worth pled guilty, he did not report any dissatisfaction with his attorney’s performance, and the judge found that nothing in the record supported Worth’s claim that the actions or inactions of his attorney resulted in an involuntary plea. Finally, the judge ruled that Worth’s First Amendment claim, “medical” defense, and various allegations of “misconduct” were all without merit. Worth filed a timely notice of appeal.

ANALYSIS

¶ 15. We review a circuit judge’s denial of a PCR petition for clear error and will not disturb his factual findings absent such error. Wrenn v. State, 207 So.3d 1252, 1256 (¶ 13) (Miss. Ct. App. 2017) (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss. 1999)). However, we review his conclusions on questions of law de novo. Id. The circuit court may summarily dismiss a PCR petition if it is plain from the face of the petition, any exhibits, and prior proceedings that the petitioner is not entitled to relief. Thomas v. State, 159 So.3d 1212, 1214 (¶ 4) (Miss. Ct. App. 2015); Miss. Code Ann. § 99-39-11(2) (Rev. 2015). Dismissal is proper where the petitioner can prove no set of facts in support of his claim that would entitle him to relief. Thomas, 159 So.3d at 1214 (¶ 4). The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to relief. Miss. Code Ann. § 99-39-23(7) (Rev. 2015).

I. Ineffective Assistánce/Involuntary Plea

¶ 16. Worth claims that he received ineffective assistance of counsel, which caused him to enter an involuntary plea. Specifically, Worth claims that his attorney failed to secure discovery from the State, failed to inform him of the true minimum and maximum sentences for his crime and further misled him about his sentence, failed to contact witnesses, and failed to discuss trial strategy. These failures, Worth asserts, resulted in an involuntary guilty plea. He claims he would not have pled guilty if his attorney had done a better job.

¶ 17, A claim of ineffective assistance of counsel requires proof that counsel’s performance was objectively deficient and that the defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If either prong of Strickland is not met, the claim fails. Shinn v. State, 174 So.3d 961, 965 (¶ 10) (Miss. Ct. App. 2015) (citing Havard v. State, 928 So.2d 771, 781 (¶ 8) (Miss. 2006)). “A voluntary guilty plea waives claims of ineffective assistance of counsel, except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea.” Thomas, 159 So.3d at 1215 (¶ 10) (internal quotation marks omitted). Thus, to obtain post-conviction relief, a petitioner who pled guilty must prove that his attorney’s ineffective performance proximately caused the plea—i.e., that but for counsel’s errors, the petitioner would not have entered the plea. Id. This requires proof beyond the petitioner’s own conclusory assertions. Id. at 1215-16 (¶ 10).

¶ 18. Worth offers nothing more than conclusory assertions regarding his attorney’s failure to contact witnesses, discuss trial strategy, or obtain discovery. Accordingly, his claim of ineffective assistance as it pertains to those alleged failures is without merit.

¶ 19. Worth also claims that his plea was involuntary and invalid because his attorney misinformed him as to the sentence he faced. A guilty plea is valid as long as it is entered “voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences.” Hunt v. State, 99 So.3d 269, 271 (¶ 8) (Miss. Ct. App. 2012) (quoting Henderson v. State, 89 So.3d 598, 600 (¶ 5) (Miss. Ct. App. 2011); Carroll v. State, 963 So.2d 44, 46 (¶ 8) (Miss. Ct. App. 2007)) (internal quotation omitted). For a plea to be voluntary, knowing, and intelligent, the judge must advise the defendant of his rights, the nature of the charge against him, and the consequences of his plea, including applicable minimum and maximum sentences. Id.

¶ 20. Worth claims that his attorney suggested that he would be sentenced to “time served” (about fifteen months at the time of his sentencing) and be “home for the holidays” if he pled guilty. Worth also claims that his attorney did not inform him that the minimum sentence was five years. Worth further alleges that his attorney felt good about the assigned judge, stating that he could “talk to” this judge and that this was the “judge we want.” According to Worth, such comments led him to believe that the judge would go along with his counsel’s request for a sentence of time served.

¶ 21. Worth’s sworn plea, petition and plea colloquy refute these allegations. Worth’s petition correctly states that the minimum sentence for his crime is five years. Worth averred at his plea hearing that he completed and discussed the petition with his attorney. His attorney stated that they had a lengthy discussion prior to the hearing. Worth did not give any indication during the colloquy that he did not understand the minimum sentence, and the record contains no suggestion that Worth was ever dissatisfied with his attorney’s assistance. When asked if anyone had made him any promise of leniency or a certain sentence, Worth said no. At his sentencing hearing, Worth was given ample opportunity to speak to the judge, and he availed himself of that opportunity. The applicable minimum sentence was made clear to him, and nothing in the record indicates any confusion.

¶22. Although the plea petition and hearing transcript are the best evidence of Worth’s understanding of the consequences of his plea, Worth was entitled to submit additional evidence in support of his PCR claim. See Thomas, 159 So.3d at 1214-16 (¶¶ 5-10). However, Worth offered only an “affidavit” from his neighbor and “attorney in fact,” Richard Connelly, in support of his claims that his attorney misinformed him about the statutory minimum sentence. The affidavit is entirely handwritten, and although it purports to have been sworn to before some person, that person’s name is partially illegible, and the document does not bear any notarial seal or otherwise indicate the source of the person’s authority to administer oaths. In any event, the purported affidavit adds nothing to Worth’s claim. It merely states that Connelly was also “advised that counsel would secure a sentence of ‘time served.’ ”

¶ 23. Allegations such as those advanced here by Worth fail to establish a claim for post-conviction relief when, as in this case, the circuit court’s plea colloquy and volun-tariness inquiry affirmatively establish that the petitioner was clearly and correctly informed of the applicable minimum sentence and other consequences of his plea. The plea colloquy was sufficient to correct any alleged misinformation provided by Worth’s counsel, and Worth clearly stated under oath that he understood the relevant consequences of his plea. Accordingly, this issue is without merit. See, e.g., Minshew v. State, 169 So.3d 953, 956-57 (¶¶ 11-15) (Miss. Ct. App. 2014); Donnelly v. State, 841 So.2d 207, 211 (¶¶ 7-9) (Miss. Ct. App. 2003); Patrick v. State, 815 So.2d 1216, 1220-21 (¶ 12) (Miss. Ct. App. 2001).

II.Freedom of Speech

¶24. Worth next argues that “all correspondence in this case was private e-mails between 2 adults posing as 2 adults, and thus protected speech.” He cites no authority other than the First Amendment to the United States Constitution. The argument is frivolous. “Offers to engage in illegal transactions are categorically excluded from First Amendment protection.” United States v. Williams, 553 U.S. 285, 297, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (upholding as constitutional a federal statute criminalizing offers to provide or requests to obtain child pornography). “Speech attempting to arrange the sexual abuse of children is no more constitutionally protected than speech attempting to arrange any other type of crime.” United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004). Furthermore, “the identity taken by an undercover officer in an attempt to catch predators is irrelevant for First Amendment purposes.” Wang v. Sampson, No. 08-cv-10832, 2010 WL 4340536, at *2 (E.D. Mich. Oct. 27, 2010) (collecting cases). Put simply, there is no constitutional right to solicit sex with children via the internet, regardless of whether the person solicited is an actual child, an adult offering to provide a child for sex, or an undercover officer posing as either. The issue is without merit.

III. “Misconduct”

¶ 25. Under a single heading, Worth makes a series of allegations of various acts of “misconduct” by the prosecution and his attorney during preliminary and pre-sentencing proceedings in his case. The allegations are difficult to read and follow. This claim also lacks legal and evidentiary support. In any event, the claim, such as it is, is without merit. By entering a valid guilty plea, Worth waived all non-jurisdictional rights or defects which are incident to trial. See, e.g., Williams v. State, 145 So.3d 1241, 1244 (¶ 9) (Miss. Ct. App. 2014). Worth identifies no “misconduct” of the sort that would vitiate his guilty plea. As we have already determined that Worth’s plea was valid, his “misconduct” claim also provides no basis for post-conviction relief.

IV. “Medical” (Viagra) Defense

¶ 26. Worth claims that he has been diagnosed with erectile dysfunction and has a prescription for Viagra. He asserts that because he did not possess Viagra when he was arrested, he necessarily lacked the “ability/intention to have sexual intercourse with anyone much less a minor.” He argues that the circuit judge ignored this fact, as well as all other exculpatory evidence, prior to his sentencing.

¶ 27. However, as the trial judge specifically explained during Worth’s plea hearing, Worth’s guilty plea waived his right to present a defense and to require the State to prove the elements of the offense beyond a reasonable doubt. See Singleton v. State, 213 So.3d 521, 524 (¶ 6) (Miss. Ct. App. 2016). This issue is also without merit.

CONCLUSION

¶ 28. Worth fails to show that his attorney provided ineffective assistance or that any action or inaction by his attorney resulted in an involuntary guilty plea. Rather, the record supports the circuit judge’s determination that Worth’s plea was knowing, intelligent, and voluntary. Worth’s First Amendment claim is frivolous, and his other claims are without merit and waived by his valid guilty plea. Accordingly, we affirm the circuit court’s order denying Worth’s PCR petition.

¶ 29. AFFIRMED.

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

      . See McGriggs v. McGriggs, 192 So.3d 350, 353 n.2 (Miss. Ct. App. 2015) ("An affidavit is ‘a written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.' " (Quoting Wilcher v. State, 863 So. 2d 776, 834 (¶ 209) (Miss. 2003) (quoting Black's Law Dictionary 58 (6th ed. 1990))).


author: LEE, C.J.,

text:
    Sam BRADFORD, Sr. a/k/a Sam Bradford, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01058-COA
    Court of Appeals of Mississippi.
    08/01/2017
    ATTORNEY FOR APPELLANT: SAM BRADFORD SR. (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE
    BEFORE LEE, C.J., BARNES AND CARLTON, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. This appeal concerns whether the trial court erred in dismissing Sam Bradford’s motion for postconviction relief (PCR) for lack of jurisdiction. Finding no error, we affirm.

PROCEDURAL HISTORY

¶ 2. Bradford was convicted of murder in 2004 in the Jefferson County Circuit Court and sentenced to life in the custody of the Mississippi Department of Corrections. Bradford appealed, and this Court affirmed his conviction. See Bradford v. State, 910 So.2d 1232, 1234 (¶ 11) (Miss. Ct. App. 2005). Bradford subsequently sought permission two separate times from the Mississippi Supreme Court for leave to proceed in the trial court as required by Mississippi Code Annotated section 99-39-7 (Rev. 2015). The supreme court denied both of Bradford’s requests.

¶3. Bradford has since filed other requests for relief in the trial court, which have been denied due to lack of jurisdiction. This Court has affirmed the trial court’s decisions. See Bradford v. State, 158 So.3d 1202, 1204 (¶ 9) (Miss. Ct. App. 2015); Bradford v. State, 116 So.3d 164, 165-66 (¶ 9) (Miss. Ct. App. 2012).

¶ 4. In 2016, Bradford filed another motion in the trial court seeking clarification of his sentence. Since Bradford had not sought leave to file the motion, the trial court dismissed the motion for lack of jurisdiction. Bradford now appeals, arguing that his sentence was illegal.

STANDARD OF REVIEW

¶ 5. When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s decision if it is clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review. Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012).

DISCUSSION

¶ 6. As previously stated, this Court affirmed Bradford’s conviction and sentence in 2005. And pursuant to section 99-39-7, Bradford was required to seek permission from the supreme court before filing his PCR motion in the trial court. Bradford failed to do so; thus, the trial court properly dismissed his PCR motion for lack of jurisdiction.

¶ 7. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.


author: GRIFFIS, P.J.,

text:
    Candi CLARK, Appellant v. James Derek EARP, Appellee
    NO. 2016-CA-00341-COA
    Court of Appeals of Mississippi.
    08/01/2017

      ATTORNEY FOR APPELLANT: TOMMY WAYNE DEFER
    ATTORNEYS FOR APPELLEE: MICHAEL SPENCER CHAPMAN, JASON D. HERRING
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

Ifl. Candi Clark appeals the chancellor’s modification of custody. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Candi and James “Derek” Earp are the natural parents of Carly, born in 2007, and Chris, born in 2008. On February 6, 2012, an agreed order was entered awarding Candi and Derek joint legal custody of the minor children, with Candi having physical custody.

¶3. In 2012, Candi and the children moved in with Candi’s boyfriend, Bobby Joe Chilcutt. On December 3, 2013, Bobby severely beat Candi and held her hostage in the home for approximately sixteen hours. Candi and the children subsequently moved in with her aunt. However, four months later, Candi and the children moved back in with Bobby. Although Bobby was charged with felony aggravated assault, Candi chose not to pursue the charge.

¶4. On April 15, 2014, Derek filed a “complaint for emergency relief, contempt, modification of custody [and] other relief’ and sought custody of the children. Thereafter, on April 17, 2014, an order was entered wherein the parties agreed not to have “overnight guests of the opposite sex, not related by blood and marriage, while the minor children [were] in his/her care, custody and control.” However, the record shows Candi disregarded this order and continued to live with Bobby and allow him to be present around her children.

¶ 5. Candi subsequently filed an answer to Derek’s complaint and a counterclaim for contempt and modification. In her counterclaim, Candi claimed Derek had failed to pay child support and that the original agreed order did not address payment of extracurricular activities and school expenses. As a result, Candi moved to modify the original agreed order to address the additional expenses. Candi further moved for the appointment of a guardian ad litem (GAL). A GAL was thereafter appointed in August 2014.

¶ 6. On August 27, 2015, Bobby severely beat Candi again and choked her until she became unconscious. Additionally, Bobby hit Candi’s nephew in the face and threw his own son over the couch by the neck. All of this occurred in front of Carly. Law enforcement was called, and Bobby was charged with domestic aggravated assault. Candi was subsequently granted a restraining order against Bobby.

¶ 7. Derek filed a motion for emergency relief on September 16, 2015, and sought “emergency and/or temporary physical custody” of the children. Following an emergency hearing, the chancellor denied Derek’s motion. Specifically, the chancellor found as follows:

The Court finds that whatever emergency may have existed was with the presence of [Bobby], He’s out of the home. He’s agreed to be permanently restrained and is permanently restrained from being around [Candi] or the children, and any danger that may have existed as a result of that is not a threat now to the children, based on the evidence that I have heard so far. There are some concerns, but that’s not the same thing as evidence. That may prove to be the case when we have a hearing on the merits. This is not a determination, a res judicata determination .... [T]hough that may change completely on a hearing on the merits, right now,- the Court finds there is no emergency that warrants a change of custody of the children, and, therefore, the request for that is denied at this particular time.

¶ 8. A trial on the merits was held beginning December 9, 2015. During trial, Candi testified that Bobby did not regularly threaten violence or use profanity in front of the children. However, multiple videos were admitted into evidence from various visitation exchanges between Candi and Derek, which showed Bobby’s violent behavior in front of the children. After Candi was confronted with this evidence, she acknowledged Bobby’s violent nature, but stated, “[Bobby] was only like that towards [her] and them, their family.” Additionally, when asked why she would continue to live with a man who beat her, Candi responded, “Everybody changes.”

¶ 9. Both of the children testified during the trial. Carly testified that Bobby hit, punched, choked, and said “ugly words” to Candi. Carly further testified that she was scared of Bobby and that Bobby got mad and angry pretty often. Although Chris stated he was not scared of Bobby, he testified that Bobby punched Candi and yelled at him as well. Moreover, Chris testified that he was told not to tell Derek what was going on at Bobby’s house.

¶ 10. The GAL opined that based upon her investigation, the extensive interviews, and the trial testimony, a substantial and material change in circumstances had occurred, which would warrant a change in custody to Derek. The GAL found “[Can-di]’s home situation evidenced a total lack of stability for the minor children over the last few years.” The GAL further found that Candi had a “terrible job history and moved herself and the children numerous times even while this case was going on.” Moreover, the GAL found that Candi “displayed a total lack of judgment in regard to the best interests of the children even while under the microscope of the Court.”

- ¶ 11. By written judgment entered February 8, 2016, the chancellor found as follows: .

The Court finds that there has been a substantial change in circumstances of the custodial parent, [Candi], since the [a]greed [ojrder of February 6, 2012, which was the.original custody decree, in that [Candi] has repeatedly exposed her children to a very dangerous man, with whom she lived in unlawful cohabitation, whose violent nature is clear to the Court beyond a reasonable doubt, and though [Bobby] is no longer present in the lives of the children, his presence remains a factor in the minds of both of the children, and the failure of their mother [Candi] to keep [Bobby] and his harmful influences away from the children and its [ejffect on [Candi],' too. The Court finds that there has been a substantial change adverse in its impact on the welfare of both of the children, but particularly in [Chris], whose grades have deteriorated with little aid from their mother [Candi], and as such, the Court looks at the totality of the circumstances and recognizes that the polestar consideration is the best interests of the children, and in doing so has considered ... the factors set forth in Albright v. Albright, 437 So.2d 1003, 1004 (Miss. 1983) and its progeny. ...

¶ 12. After conducting a detailed analysis of each Albright factor, the chancellor determined that “the best interests of the children require[d] a change of custody.” As a result, the chancellor modified custody and awarded physical custody of Carly and Chris to Derek, and granted Candi visitation rights. The parties continued to share joint legal custody of the children.

¶ 13. Candi now appeals and argues: (1) the chancellor erred in finding a substantial change in circumstances since, at the time of trial, the circumstances upon which the chancellor relied no longer existed, and (2) the chancellor’s finding of an adverse effect upon the children was not supported by substantial evidence.

STANDARD OF REVIEW

¶ 14. In a custody-modification proceeding, the noncustodial parent must prove by a preponderance of the evidence: “(1) that a substantial change in circumstances has transpired” since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody.” McSwain v. McSwain, 943 So.2d 1288, 1292 (¶ 15) (Miss. 2006) (quoting Mabus v. Mabus, 847 So.2d 815, 818 (¶ 8) (Miss. 2003)). “A chancellor’s finding of fact on such a matter will not be set aside or disturbed on appeal unless the finding is manifestly wrong or is not supported by substantial credible evidence.” McDonald v. McDonald, 39 So.3d 868, 880 (¶ 37) (Miss. 2010) (quoting Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss. 1997)).

ANALYSIS

. I. Substantial Cha,nge in Circum-' stances • . : ■

’ ¶ 15. Candi asserts’ that because she “ha[d] removed herself and the children from the home and presence of [Bobby] and had further been awarded a [r]e-straining [ojrder against him” prior to the December 2015 trial, the issue Of Bobby’s presence was “effectively rendered moot.” Thus, Candi claims the chancellor erred in his determination of a substantial change in circumstances since the circumstances upon which he relied no longer existed. In support of her. assertion, Candi relies on Tucker v. Tucker, 453 So.2d 1294 (Miss. 1984).

¶ 16. In Tucker, the Court held that “[t]he ‘totality of the circumstances’ must be considered” and “[a]n isolated incident, e.g., an unwarranted striking of a child, does not in and of itself justify a change of custody.” Id. at 1297. “Before custody should be changed, the chancellor should find that the overall circumstances ih which a child lives have materially changed and are likely to remain materially changed for the foreseeable future.” Id. We find Candi’s reliance on Tucker is misplaced, as the record before us shows more than an isolated incident. Moreover, the record shows that the overall circumstances are likely to remain materially changed for the foreseeable future.

¶ 17. According to the record, just a few months after Bobby violently beat her and held her hostage, Candi, along with her children, returned to the home. When Derek moved for emergency relief, Candi agreed to no longer have overnight guests of the opposite sex. However, Candi disregarded this agreed order and continued to expose her children to Bobby’s violent nature. From 2012 to August 2015, the children witnessed numerous incidences of both verbal and physical abuse from Bobby against their mother. In addition to those incidences previously noted, Chris witnessed Bobby hit his mother’s face with the car door, and watched Bobby burn his clothes. During the August 2015 incident, Carly not only witnessed Bobby beating and choking her mother, but also saw Bobby hit her cousin, and throw his own child over the couch by the neck.. The children’s counseling records indicate that this exposure “has resulted in feelings of fear and worries about [their] mother.”

¶18. Additionally, both children witnessed Bobby repeatedly use profanity toward and threaten their dad. Recordings of certain visitation exchanges between Derek and Candi reveal Bobby’s violent nature toward Derek in front of the children. In fact, during one, of the visitation exchanges, Bobby actually pushed Derek. Even more disturbing is the fact that Can-di was present during the visitation exchanges and did nothing to stop Bobby. Instead, Candi stood idly by and, at times, even joined Bobby in his verbal rants.

¶ 19. As the chancellor noted, such abuse had an adverse impact not only on Carly and Chris, but also on Candi. The record indicates Candi struggled with depression and anger. Although Candi was scared of Bobby, she continued to forgive and defend his actions and believed Bobby would change. Candi was aware of Bobby’s violent nature, but chose not to remove herself or her children from such a dangerous and unstable environment.

¶ 20. Candi’s promises and assurances to the chancellor were understandably disregarded, as the record shows she repeatedly lied throughout the litigation and trial regarding the extent of Bobby’s violent acts and conduct, Candi’s claim that any adverse effect on the children has been rendered moot is premature at best, as “hardly enough time” has passed to determine whether Candi will in fact stay away from Bobby and “be able to provide a continuing stable environment” for herself and her children. See Johnson v. Gray, 859 So.2d 1006, 1015 (¶ 40) (Miss. 2003) (The Court upheld the chancellor’s decision to transfer custody from Johnson to Gray, stating that “hardly enough time” had passed “to determine if [Johnson would] be able to remain sober,” and “[i]t [was] more likely that [Gray], and not [Johnson], [would] be able to provide a continuing stable environment”).

¶ 21. We find that the chancellor’s determination of a substantial change in circumstances is supported by substantial credible evidence, and his findings were neither manifestly wrong nor clearly erroneous.

II. Adverse Effect

¶22. Candi next argues the chancellor’s finding of an adverse effect upon the children as a result of their exposure to Bobby was not supported by substantial evidence. Additionally, Candi claims there is “no evidence that [Bobby’s] involvement with the children either caused or exacerbated [Chris]’s poor grades.”

¶23. School records show that during Chris’s first-grade year, from August 2014 to May 2015, he received B’s and C’s. However, his second-grade progress report shows that as of December 2015, Chris’s grades had dropped and included an F in math. While we cannot say that Bobby’s presence was the sole cause of Chris’s grade deterioration, it appears that Chris’s exposure to Bobby’s abuse was at least a contributing factor.

¶ 24. Regardless, the chancellor did not limit his findings of an adverse effect to Bobby’s presence. Instead, the chancellor’s decision was based on substantial evidence of a dangerous and unstable environment, which included not only Bobby’s presence, but also Candi’s questionable conduct and judgment.

¶ 25. Carly and Chris testified regarding their exposure to Bobby’s verbal and physical abuse. Additionally, the record shows that Candi’s employment was sporadic and that she frequently moved, which resulted in the children changing schools multiple times. Both the counseling records and the GAL report indicate how such abuse and instability adversely affected the children.

¶ 26. Considering the totality of the circumstances, Candi’s continued cohabitation with a dangerous man, when combined with her poor judgment and instability, and an overall unstable environment, constitutes an adverse impact to the children’s welfare. See Duke v. Elmore, 956 So.2d 244, 250 (¶ 15) (Miss. Ct. App. 2006), Thus, we find substantial evidentiary support for the chancellor’s finding of an adverse effect on the children.

III. Best Interests of the children

¶27. Candi does not contest the last factor of custody modification, whether the children’s best interests mandated a change of custody, nor does she contest the chancellor’s Albright analysis. Nevertheless, we note that based upon our review of the record, the chancellor’s determination that Carly and Chris’s best interests would be served by a modification of custody is supported by substantial evidence in the record, and was neither manifestly wrong nor clearly erroneous.

CONCLUSION

¶28. The record shows the chancellor thoroughly examined the evidence and performed an Albright analysis. Based upon our review of the record, and in light of our limited standard of review, we find the chancellor’s decision to modify custody was proper. We therefore affirm.

¶ 29. AFFIRMED.

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

      . For privacy purposes, the minor children’s names have been changed.

      . Bobby, a truck driver, was not always at home. However, Candi acknowledged that when he was in town, he resided at the home with her and the children.

      . It is unclear to whom Candi was referring when she said "them, their family.” Regardless, the record shows Bobby was violent toward Derek, Derek’s mother, Candi's nephew, his son, and the mother of his children.

      . Although the video is unclear, the record shows charges were filed against Bobby for simple assault regarding the September 7, 2014 visitation exchange. Moreover, ■ Candi admitted during testimony that she'saw Bobby push Derek.

      . Medical records show Candi injured her right hand after hitting the wall.

      . In addition to concerns over their mother, the counseling records also indicate the children were anxious over the custody dispute.