author: JUDGE SANDRA CABRINA-JENKINS

text:
    Loukisha A. DAISY v. PLAQUEMINES PARISH GOVERNMENT
    NO. 2017-CA-0076
    Court of Appeal of Louisiana, Fourth Circuit.
    AUGUST 30, 2017

      Christine L. DeSue, Richard R. Schulze, 3445 N. Causeway Blvd, Suite 505, Metair-ie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT
    Rachel E. Linzy, Javier Jalice, THE KULLMAN FIRM, 1100 Poydras Street, 1600 Energy Centre, New Orleans, LA 70163, COUNSEL FOR ' DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins) '
   JUDGE SANDRA CABRINA-JENKINS

| ,This is a civil service matter which began when plaintiff Loukisha Daisy appealed the termination of her employment by the Plaquemines Parish Government (the “PPG”). On February 24, 2016, after a one-day hearing before the. Plaquemines Parish Civil Service Commission (the “Commission”), Daisy’s appeal was granted, and she returned to work. After the Commission paid Daisy back pay, she filed applications with the Commission seeking additional back pay, exceptional pay, and attorney’s fees. On November 15, 2016, the Commission denied her applications. Daisy appeals that decision.

For the reasons that follow, we affirm in part, reverse in part, and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On March 25, 2014, Daisy submitted an application for employment for the position of Chief Internal Auditor at the PPG. On May 20,2014, the Commission sent a letter offer to Daisy stating that “[a]s a condition of employment, we require that you agree to complete all required courses and possess a CPA within one (1) year of your hire date.” Daisy agreed and accepted the offer.

On June 2, 2014, Daisy began employment as Chief Internal Auditor for the PPG. In accordance with the Plaquemines Parish Civil Service Rules (“Civil 12Service Rules”), Daisy began serving a six-month probationary period, which was extended for an additional six months, or until June 2, 2015. On June 2, 2015, Daisy gained permanent civil service status.

On June 11, 2015, Daisy was informed that the PPG was considering termination of her employment. Daisy was suspended, effective immediately, until a final determination was made as to her employment status. On June 25, 2015, a predetermination hearing was held during which Daisy was afforded an opportunity to present evidence, statements or information to be considered in determining her employment status.

On June 30, 2015, the PPG terminated Daisy’s employment on the following grounds: (1) Daisy failed to obtain her CPA license within one year of her date of hire; (2) Daisy failed to produce and tender monthly audit reports in accordance with her job description and the Plaque-mines Parish Charter; and (3) at the predetermination hearing, Daisy submitted a “fraudulently confected” letter from a PPG audit committee member purporting to extend the time for her to obtain her CPA license from one year to two years from her date of hire.

On July 23, 2015, Daisy filed a Petition of Appeal to the Commission. Daisy’s appeal sought relief from two actions by the PPG: (1) dismissal; and (2) “other,” which she described as “[d]id not receive exceptional pay or proper pay increases.” Daisy’s Petition of Appeal requested “reinstatement of [her] position, clearing her name and any payments and benefits for which she [was] entitled.”

Oh December 18, 2015, the PPG filed a Motion for Partial Summary Disposition seeking dismissal of Daisy’s claim for exceptional pay.

On January 6, 2016, the Commission began an evidentiary hearing on Daisy’s appeal. Before the testimony began, the Commission orally granted the |sPPG’s Motion for Partial Summary Disposition on the grounds that Daisy’s claim for exceptional pay was not properly appealable under the Civil Service Rules, and that, even if the matter were appealable, it was not timely filed. The Commission also stated that “if [Daisy’s] appeal is granted the [exceptional pay] matter may still be heard in any post-decision finding of fact regarding the reinstatement and back pay that may be owed.”

On February 24, 2016, the Commission issued a written judgment granting Daisy’s appeal. Specifically, the Commission found that, because the PPG did not enforce the CPA license requirement during Daisy’s probationary period, and instead waited until after the period ended to terminate her employment, the PPG waived the CPA condition under which Daisy was employed. With respect to Daisy’s failure to provide audit reports, the Commission found that because the PPG’s audit committee members did not request or require monthly reports from Daisy, this could not be used as a basis for disciplinary action. Finally, with respect to the letter purporting to extend the time for Daisy to complete the CPA requirement, the Commission found no fraud on the part of Daisy. The Commission concluded, with respect to the three grounds for discipline, that the PPG had not established legal cause or conduct by Daisy that impaired the efficiency or operation of public service.

On March 22, 2016, the PPG appealed the Commission’s February 24, 2016 judgment to this Court. On April 28, 2016, the PPG filed a Motion to Withdraw and Dismiss its appeal. Daisy returned to her job as Chief Internal Auditor.

On August 8, 2016, Daisy filed an Application for Attorney’s Fees with the Commission in which she sought reimbursement of $32,305.18 in attorney’s fees and expenses incurred appealing her wrongful termination.

Lin August 2016, the PPG paid Daisy $22,827.70 in net back pay. On August 29, 2016, Daisy filed a “Memorandum in Support of Dispute Regarding Back Pay and Exceptional Pay” with the Commission. As part of her dispute as to the amount of back pay due, Daisy argued that the PPG wrongfully denied her back pay during a two-month period in which the wrongful termination hearing was continued, and that the calculation of back pay should have included judicial interest and reimbursement of retirement contributions withheld during her period of dismissal. She also re-urged her claim for exceptional pay.

On October 20, 2016, the Commission heard oral argument on Daisy’s dispute over attorney’s fees, back pay, and exceptional pay. On November 15, 2016, the Commission issued a written decision denying Daisy’s requests for attorney’s fees, back pay during the period of the continuance, and exceptional pay.

On December 8, 2016, Daisy filed a Notice of Appeal to this Court from the Commission’s November 15, 2016 decision.

DISCUSSION

Standard of Review

This court reviews the Commission’s findings of fact using the clearly wrong or manifest error standard of review. Liang v. Dept. of Police, 13-1364, p. 8 (La. App. 4 Cir. 8/20/14), 147 So.3d 1221, 1225. In reviewing the Commission’s determinations on questions of law, this court exercises its constitutional duty to review questions of law de novo and render a judgment on the record. Id. “[T]he appropriate standard of appellate review of actions by the Civil Service Commission is to determine whether the conclusion reached by the Commission is arbitrary or capricious.” Aucoin v. Dept. of Police, 16-0287, p. 2 (La. App. 4 Cir. 3/29/17), 229 So.3d 531, -, 2017 WL 1164939, *4. “Arbitrary and capricious” means that there is no rational basis for the action taken. Williams v. Dept. of Utilities, 03-1473, p. 6 (La. App. 4 Cir. 1/28/04), 867 So.2d 26, 30.

Assignments of Error

On appeal, Daisy asserts six assignments of error:

1. . The Commission erred in not awarding Daisy back pay during the time period of the continuance of her appeal hearing from October 28, 2015 to January 6, 2016.
2. The Commission erred in denying Daisy exceptional pay.
'3. ' The Commission erred in not awarding Daisy merit increases.
4. The Commission erred in not award-1 ing Daisy judicial interest.
5. The Commission erred in not awarding Daisy retirement benefits.
6. The Commission erred in denying Daisy attorney’s fees.

First Assignment of Error: Back Pay

After the Commission granted her appeal, the PPG gave Daisy back pay for the period of her termination. The PPG, however, did not give Daisy back pay during a two-month period in which the Commission granted a continuance of the hearing on Daisy’s appeal. Daisy contends that this was error. . .

Daisy’s wrongful termination hearing was originally set on October 28, 2015. Two weeks before the scheduled hearing, Daisy propounded interrogatories and document requests on the PPG, including requests for computer and telephone records. On October 21, 2015, counsel for the PPG notified Daisy’s counsel that time was needed to conduct a forensic electronic review, and that it was unlikely that the document production could be made before the hearing. Daisy then requested a 'continuance from the Commission, to which the PPG did not object. | fiRuIe II, 'Section 4.6 of the Civil Services Rules gave the Commission the right to continue the hearing “from time to time for good cause and reason.” The Commission granted Daisy’s request for a continuance and ordered that the hearing be re-set for January 6, 2016.

Daisy contends that she should not be penalized for what was essentially a joint continuance to allow the PPG to respond to her discovery requests, which the Commission itself in the exercise of its discretion had granted upon a showing of “good cause and reason.” We agree.

■ In denying Daisy’s request for back pay during this continuance, the Commission emphasized that Daisy’s attorney “had plenty of time to make the discovery requests prior to the original date set for the hearing to be held.” The Commission also relied on two cases to support its conclusion that the PPG “should not have to bear the costs of [Daisy’s] decision to request a continuance.”

In the first case, Werner v. Dept. of Police, 487 So.2d 598 (La. 4th Cir. 1986), a sergeant with the New Orleans Police Department appealed his removal from duty to the New Orleans Civil Service Commission. The plaintiff requested and obtained several' continuances of the hearing between March 1978 and October 1984, a period of more than six years. After the Commission ruled that the plaintiff should be reinstated to the Police Department,' it stated that “[a]ny periods for which back pay was waived by [plaintiff] due to continuances granted must be deducted from wages owed to [plaintiff.]” The Commission expressly relied on New Orleans Civil Service Rule II, Section 4.11, which provided:

When the continuation of a hearing is granted at the request of an appellant, it shall be deemed to be a waiver of back pay for the period of time occasioned by the delay, unless the Commission shall rule otherwise.

17This court affirmed.

The Commission also relied on Willis v. Dept. of Health & Human Resources, 434 So.2d 1164 (La. App. 1st Cir. 1983). In Willis, the First Circuit affirmed the decision of the State Civil Service Commission dénying the plaintiff back during the period of a continuance of the hearing requested by the plaintiff. As in Werner, the commission relied on a civil service rule that expressly granted the commission the discretion to deny back pay for time lost as a result of a continuance:

With the approval of the Commission, the Director, or the appropriate referee, an appeal fixed for hearing may be continued by consent of all interested parties. If an appellant requests a continuance the Commission may, in its discretion, deny him any compensation for that portion of time lost by reason of the continuance if his appeal be finally sustained.

This court upheld the commission’s decision.

In Werner and Willis, the applicable civil service rules expressly gave the civil service commissions the discretion to deny back pay during the period of any continuance requested by the plaintiff. The Plaquemines Parish Civil Service Rules, however, do not give the Commission such discretion.

In Winford v. Dept. of Police, 09-0770 (La. App 4 Cir. 3/3/10), 33 So.3d 949, the New Orleans Civil Service Commission reinstated a police officer’s employment but denied her back pay during the period in which she evacuated out of state with her family following Hurricane Katrina. On appeal, the plaintiff argued that the commission erred in denying her back pay. This court affirmed, relying on a civil service rule which expressly provided that reimbursements for all back wages and emoluments due shall be restored “where appropriate.” The Winford court concluded that, because the commission had the discretion to |sdetermine whether it was appropriate to award back wages and emoluments, and because the commission found that the plaintiff failed to report to the NOPD her availability to return to duty, the commission’s decision was rationally based, and not arbitrary or capricious. Id., 09-0770, p. 6, 33 So.3d at 952.

In this matter, the Civil Service Rules do not give the Commission the discretion to determine the appropriateness of the award of back pay to Daisy. Furthermore, we note that the Commission granted Daisy’s request for a continuance to complete discovery based upon a showing of “good cause and reason.” Under these circumstances, we find that the Commission’s decision to deny Daisy back pay during this continuance was not rationally based, and was arbitrary and capricious.

Second Assignment of Error: Exceptional Pay

Daisy contends that the PPG had already granted her request for exceptional pay while she was employed, but that she never received these payments. She asserts that the Commission erred in not including exceptional pay in her back pay calculation following her reinstatement. We agree.

Civil Service Rule IV, Section 3.2(a) provides for exceptional pay:

In cases where the applicant possesses exceptional qualifications directly related to the classification to which the applicant will be or has already been appointed, the Appointing Authority can recommend to the Director that the applicant be assigned up to step 15 of the pay grade for that class. The request for the Exceptional Qualifications salary adjustment must be received by the Director at least 15 calendar days prior to the expiration of the Working Test Period of the employee. Approval is required by the Director before the salary adjustment becomes effective.

At the January 6, 2016 -hearing on Daisy’s appeal, the Commission orally granted the PPG’s Motion for Partial Summary Disposition with respect to Daisy’s | flappeal of the exceptional pay issue. The Commission concluded that exceptional pay was not appealable under the Civil Service Rules and, even if it were, her appeal was not timely. The Commission’s February 24, 2016 written judgment reiterates this, ruling.

As for the untimeliness issue, the record shows that the PPG audit committee submitted a request for exceptional pay to Ellen D. Barrois, the Commission’s director, on June 19, 2014. This request was timely, in that it was received at least 15 days prior to the expiration of Daisy’s probationary period. Furthermore, we find that Daisy’s August 29, 2016 application for exceptional pay was not untimely because Daisy was not required to appeal the Commission’s February 24, 2016 judgment denying exceptional pay. When the Commission issued its ruling, it stated that “if [Daisy’s] appeal is granted the matter may still be heard in any post-decision finding of fact regarding the reinstatement and back pay that may be owed.” Ms. Daisy’s appeal was granted and she subsequently requested exceptional pay as part of her back pay.

Accordingly, we find that there was no rational basis for the Commission’s denial of exceptional pay on the basis of untimeliness.

The Commission also found that the denial of exceptional pay was not an appeal-able disciplinary action. Under the Civil Service Rules, “[r]egular employees in the classified service shall have the right to appeal to the Commission from suspension, fine, dismissal, layoff, reduction in pay, or demotion to test the reasonableness of such action.” The PPG argues that exceptional pay does not fall within any of these categories. We disagree.

| ,0Although an appointing authority has the discretion to determine whether to grant a performance adjustment, once the adjustment is granted and becomes effective, any rescission or reduction of the pay raise rises to the level of a disciplinary action subject to review by the civil service commission. Burriss v Dept. of Children & Family Servs., 14-1075, p. 9 (La. App. 1 Cir. 4/24/15), 167 So.3d 1053, 1059.

Under the Civil Service Rules, “[a]p-proval is required by the Director before the salary adjustment becomes effective.” The record shows that Barrois processed and approved the request for exceptional pay, and forwarded it to the chairman of the City Council for signature. In a March 11, 2015 letter to the audit committee chairman, Barrois stated that, because she was uncertain as to whether the audit committee or the City Council' was the “Appointing Authority,” she was asking for guidance from the City Council as to “how she should move forward on the request.” The record does not show that the City Council ever responded or returned the signed request to Barrois, and Daisy was terminated before any further action was taken. At the January 6, 2016 hearing on Daisy’s appeal, however, the chairman of the audit committee conceded that in May 2015 (two months after Barrois’s letter), it was confirmed that the audit committee was, in fact, the “Appointing Authority.”

In sum, the audit committee’s request for exceptional pay on behalf of Daisy was timely made by the proper Appointing Authority and was approved by the Commission’s director, all in accordance with the Civil Service Rules. Because this performance adjustment was granted, any rescission or reduction of the pay raise rises to the level of a disciplinary action subject to review by the Commission and this court. Burriss, 14-1075, p. 9, 167 So.3d at 1059. Under these In circumstances, we find no rational basis for the Commission’s dénial of exceptional pay.

Third Assignment of Error: Merit Increases

Daisy asserts that the Commission erred in not awarding her merit increases as part of its back pay calculation because merit pay is “automatic.”

Under Civil Service Rule IV, Section 4.1, “all employees hired or promoted through certification shall be granted a pay increase upon satisfactory completion of their six (6) month working test period.” Under the rules, however, '“the granting of the pay increases ... shall not be considered automatic nor mandatory.”

As discussed above, the only disciplinary actions that may be appealed are suspension, fine, dismissal, layoff, reduction in pay, or demotion.

The denial of a discretionary merit pay increase is not an appealable action. See Rudloff v. Chief Admin. Office, 413 So.2d 550, 552 (La. App. 4th Cir. 1982); Malone v. Dept. of Corrections, Louisiana Training Institution-Ball, 468 So.2d 839, 841 (La. App. 1st Cir. 1985) (“denial of a merit increase is not considered a disciplinary action”); Smith v. LSU Med. Ctr., 365 So.2d 599, 600 (La. 1st Cir. 1978) (“the denial of a merit step increase in pay is not a disciplinary action on the part of the Appointing Authority, and such a denial is not appealable”).

This assignment of error is without merit.

Fourth Assignment of Error: Judicial Interest

Daisy contends that the Commission erred in not awarding her judicial interest on her back pay, which she first requested six months after the Commission’s February 24, 2016 judgment. Daisy relies on La. Civ. Code art. 2000 and La. Code Civ. P. art. 1921.

|wWe begin by examining Art. 1921: “The court shall award interest in the judgment as prayed for or as provided by law.”

In Daisy’s July 23, 2015 Petition for Appeal, she did not ask for judicial interest. Because judicial interest was not prayed for, Daisy may only recover interest on back pay if interest is “allowed by law.”

The Civil Service Rules do not provide for judicial interest. Also, this is not an action to enforce a conventional obligation in which judicial interest is awarded under La. Civ. Code art. 2000. Under the Civil Service Rules, the Commission is “empowered ... [t]o hear appeals from employees and others who claim their rights under the Civil Service Rules have been violated and to issue appropriate orders in such cases.” (Emphasis added.) In this instance, therefore, judicial interest is not “allowed by law.”

We find that the Commission was not arbitrary and capricious in not awarding Daisy judicial interest on back pay.

Fifth Assignment of Error: Retirement Contributions

Daisy contends that the Commission erred in not awarding her the amount of retirement contributions owed during the period of her dismissal.

“[T]here is ample support for finding that contributions to retirement plans are among the emoluments of employment and can be considered deferred compensation or ‘salaries.’ ” Andrepont v. Lake Charles Harbor & Terminal Dist., 602 So.2d 704, 708 (La. 1992). Therefore, we find that retirement contributions are to be included in the calculation of Daisy’s back pay.

In her appellate brief, Daisy states that “the parties agreed that [Daisy] was entitled to applicable retirement contributions that accrued during the period of her termination.” At the October 20, 2016 hearing on Daisy’s back pay and 1 ^exceptional pay claims, counsel for Daisy admitted that she had not submitted the paperwork needed to calculate retirement benefits. Daisy now states that she signed the paperwork but no retirement payments have been made.

The PPG states in its brief that, at the October 20, 2016 hearing, Daisy, had not yet completed paperwork required by the third-party retirement funds, Parochial Employees’ Retirement System of Louisiana (“PERSLA”). The PPG states that upon completion of the necessary paperwork, PERSLA calculated and invoiced the payments, which were paid by PERS-LA on February 20, 2017.

Neither Daisy nor the PPG refer this court to any evidence in the record to support their assertions regarding the status of the reimbursement of retirement contributions. Obviously, arguments of counsel in briefs or memoranda- are' not evidence, and the arguments of counsel are all the parties have offered in support of their positions. Alomang v. Freeport-McMoran, Inc., 97-1349, p. 1 (La. App. 4 Cir. 3/4/98), 718 So.2d 971, 973.

Because the record is insufficient for us to resolve this factual issue, we remand this matter for the limited purpose of taking evidence to confirm payment of all retirement contributions owed to Daisy for the period of her dismissal.

Sixth Assignment of Error: Attorney’s Fees

Finally, Daisy contends that the Commission erred in denying her request for attorney’s fees because the actions of the PPG in terminating her were so “egregious and unreasonable.” Daisy refers to accusations against her with respect to the alleged “dishonest act” of drafting a letter purporting to extend :the time for her to obtain her CPA license, and presenting the draft to the chairman of the audit committee, who then signed it.

|m“As a general rule, attorney fees are not allowed in Louisiana unless they are authorized by statute or provided for by contract.” Bd. of Supervisors of Louisiana State Univ. v. Dixie Brewing Co., 15-1053, p. 13 (La. App. 4 Cir. 9/1/16), 200 So.3d 977, 986.

Civil service rules have the effect of law. City of Alexandria v. Dixon, 15-1718, p. 9 (La. 5/3/16), 196 So.3d 592, 597-98. Under Civil Service Rule II, Section 4.7, “[a]ppellants shall have the .right, but shall not be required, to be represented by counsel, at Appellant’s own expense.” [Emphasis added]. Daisy argues that this rule does not prohibit the Commission from reimbursing her attorney’s fees if the Commission,, in its discretion, finds that the PPG’s acts were in bad faith or based on a fraudulent premise.

The Commission, in its November 15, 2016 decision, recognized' that “[t]here is no civil service rule which would authorize an appellant to have their private legal fees paid for by the Parish.” The Commission nonetheless stated that “[i]n addition to the civil service rule, attorney fees could be awarded if there was a finding of fraud or bad faith.” -

Neither party has cited any authority— statutory, contractual or jurisprudential— (and we have found none) that would authorize an award of attorney’s fees to Daisy based on bad faith or fraud. Perry v. City of New Orleans, 11-0901, p. 9 (La. App. 4 Cir. 2/1/12), 104 So.3d 453, 458; Alongi v. Dept. of Police, 480 So.2d 1001, 1003 (La. App. 4th Cir. 1985) (although “[plaintiff] argues that because the city was in bad faith, they should be cast for penalties, interest and attorney fees[,] [n]o authority is cited to support this argument”). In any event, under our clearly wrong standard of review of factual findings, we find no error in the Commission’s conclusion that there was “no evidence in the record which |1swould warrant a finding that the termination of [Daisy] was done fraudulently or in bad faith.”

This assignment of error has no merit.

CONCLUSION

Based on the foregoing, we reverse the Commission’s decision not to award Daisy back pay during the period in which the hearing on her appeal was continued. We also reverse the Commission’s decision to deny Daisy exceptional pay as part of her back pay. We affirm the Commission’s denial of a merit increase and the denial of judicial interest on back pay. We remand the issue of retirement contributions for the limited purpose of confirming the payment of all retirement contributions owed to Daisy. Finally, we affirm the Commission’s decision not to award attorney’s fees to Daisy.

AFFIRMED IN PART, REVERSED IN PART, REMANDED


source: Caselaw Access Project

author: Judge Rosemary Ledet

license: Public Domain

text:
    Karen MOULTON, Individually and on Behalf of all others similarly situated v. STEWART ENTERPRISES, INC., John B. Elstrott, Jr., Thomas M. Kitchen, Alden J. McDonald, Jr., Ronald H. Patron, Ashton J. Ryan, Jr., John K. Saer, Jr., Frank B. Stewart, Jr., and Service Corp. International, Rio Acquisition Corp. Philip Joseph Rosen, Individually and on Behalf of all others similarly situated v. Stewart Enterprises, Inc., Frank B. Stewart, Jr., John B. Elstrott, Alden J. McDonald, Jr., Thomas M. Kitchen, Ashton J. Ryan, Jr., Ronald H. Patron, John K. Saer, Jr., Service Corporation International, and Rio Acquisition Corp.
    NO. 2017-CA-0243, NO. 2017-CA-0244
    Court of Appeal of Louisiana, Fourth Circuit.
    August 3, 2017

      Andrew A. Lemmon, LEMMON LAW FIRM, LLC, 15058 River Road, Hahnville, LA 70057, David T. Wissbroecker, ROBBINS, GELLER RUDMAN & DOWD LLP, 655 West Broadway, Suite 1900, San Diego, CA 92101, COUNSEL FOR PLAINTIFF/APPELLANT
    Robert B. Bieck, Jr., Mark A. Cunningham, Alexander N. Breckinridge, V, JONES WALKER LLP, 201 St. Charles Avenue, 49th Floor, New Orleans, LA 70170, Steven W. Usdin, Joshua O. Cox, BARRASSO USDIN KUPPERMAN FREEMAN & SARVER, LLC, 909 Poy-dras Street, 24th Floor, New Orleans, LA 70112, Pamela S. Palmer, Pro Hac Vice, PEPPER HAMILTON LLP, 350 South Grand Avenue, Two California Plaza, Suite 3400, Los Angeles, CA 90071—3427, COUNSEL FOR DEFENDANTS/AP-PELLEES'
    (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew Woods)
   Judge Rosemary Ledet

|!This is a direct stockholder class action. From the trial court’s October 31, 2016 judgment granting certain defendants’ motions for summary judgment, the plaintiffs appeal. Because the trial court’s judgment lacks the required decretal language for a final judgment, we dismiss the plaintiffs’ appeal without prejudice and remand.

FACTUAL AND PROCEDURAL BACKGROUND

This suit arises out of a $1.4 billion merger transaction involving two of the country’s largest publicly traded death care companies—Service Corporation International (“SCI”) and Stewart Enterprises, Inc. (“STEI”). Simply stated, the merger transaction involves SCI and its wholly owned subsidiary, Rio Acquisition Corp. (“Rio”), acquiring ail STEI’s outstanding shares at a price of $13.25 per share. (Rio was formed for the merger transaction.) The merger transaction ■ spurred several suits by STEI’s stockholders.

On June 13; 2013, Karen Moulton filed a class action suit on behalf of herself and the public stockholders of STEI (the “Moulton Suit”). Named as 12defendants in the Moulton Suit were STEI; the seven members of STEI’s board of directors [ (i) Frank Stewart, Jr.; (ii) John Elstrott, Jr.; (iii) Alden McDonald, Jr.; ■ (iv) Thomas Kitchen; (v) Ashton Ryan, Jr.; (vi) Ronald Patron; and (vii) John Saer, Jr.]; SCI; and Rio. Ms. Moulton alleged that the sale price was inadequate and that the sale process was unfair. She further alleged that STEI and its board of directors breached their fiduciary duty in handling the sale process, that STEI should have obtained a higher stock purchase price, and that all the defendants conspired to breach those fiduciary duties to obtain personal benefits. She still further alleged that Mr. Stewart pushed for the merger in order to secure a side deal for himself. She sought both injunctive relief and monetary damages for the alleged breach of fiduciary duties.

On June 20, 2013, Philip Joseph Rosen filed a similar class action suit on behalf of himself and the public stockholders of STEI against the same defendants making similar allegations as in the Moulton Suit (the “Rosen Suit”). Also in June 2013, three alleged STEI stockholders—Alex Rodgers, Gairi Williamson, and Debbie Williamson—filed a petition for intervention in both the Moulton Suit and the Rosen Suit (the “Interventions”). On July 30, 2013, an Order of Consolidation was entered, by stipulation of the parties, consolidating the Moulton Suit, the Rosen Suit, and the Interventions.

In August 2013, the trial court denied the plaintiffs’ motions for a , temporary restraining order and preliminary injunction. In October 2013, the trial court granted SCI’s and Rio’s exception of no cause of action as to the aiding and |aabetting allegation, but allowed the plaintiffs to amend their petition to include a civil conspiracy claim. After the plaintiffs amended their petition, all of the defendants filed exceptions of no cause of action. In June 2014, the trial court granted the exceptions of SCI and Rio, but denied the exceptions of STEI, Mr. Stewart, and the other defendant-directors. Thereafter, the remaining defendants filed two motions for summary judgment. One motion was filed by Mr. Stewart; the other motion was filed by the remaining six director-defendants and STEI. As noted at the outset, on October 31, 2016, the trial court granted certain defendants’ motions for summary judgment. This appeal followed.

JURISDICTIONAL ISSUE

A threshold requirement in any appeal is subject matter jurisdiction. An appellate court cannot determine the merits of an appeal unless its subject matter jurisdiction is properly invoked by a valid final judgment. Freeman v. Phillips 66 Co., 16-0247, p. 2 (La. App. 4 Cir. 12/21/16), 208 So.3d 437, 440 (citing Tsegaye v. City of New Orleans, 15-0676, p. 3 (La. App. 4 Cir. 12/18/15), 183 So.3d 705, 710, writ denied, 16-0119 (La. 3/4/16), 188 So.3d 1064); see La. C.C.P. art. 2083(A). Before reaching the merits of an appeal, an appellate court has a duty to determine, on its own motion, whether subject matter jurisdiction exists. Moon v. City of New Orleans, 15-1092, 15-1093, p. 5 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425.

A final judgment determines the merits in whole or in part. La. C.C.P. art. 1841. “A final judgment shall be identified as such by appropriate language.’^ La. C.C.P. art. 1918. “The Code provisions on the form of a judgment are sketchy.” 1 Frank L. Maraist, LA. CIV. L. TREATISE, CIVIL PROCEDURE § 12:2' (2d ed. 2016). “In Louisiana, the form- and wording of judgments is not sacramental.” Revision Comment (a) to La. C.C.P. art. 1918.

The jurisprudence has required that a valid final judgment be precise, definite, and certain. Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Techs., Inc., 10-477, p. 12 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 915. “The decree alone indicates the decision. The result decreed must be spelled out in lucid, unmistakable language. The quality of definiteness' is essential to a proper judgment.” Input/Output Marine, 10-477 at p. 13, 52 So.3d at 916 (footnote and internal citations omitted).

In addition to requiring that a judgment be precise, definite, and certain, the jurisprudence has required that a valid final judgment be self-contained; • stated otherwise, “[o]ne must be able to determine from .the judgment itself—without any reference to an extrinsic .source—the specific relief granted.” Baker Ready Mix, LLC v. Crown Roofing Servs., Inc., 15-0565, p. 2, n. 1 (La. App. 4 Cir. 12/16/15), 183 So.3d 622, 623 (citing Bd. of Supervisors of La. State Univ. and Agric. and Mech. Coll. v. Mid City Holdings, L.L.C., 14-0506, p. 3 (La. App. 4 Cir. 10/15/14), 151 So.3d 908, 910). “The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment.” Input/Output Marine, 10-477 at p. 13, 52 So.3d at 916. “To be legally enforceable as a valid judgment, a third person should be able to determine from |fithe judgment the identity of the party cast and the precise amount owed without reference to other documents in the record.” Standard Ins. Co. v. Spottsville, 16-0020, p. 4 (La. App. 1 Cir. 9/16/16), 204 So.3d 253, 256 (citing Conley v. Plantation Management Co., L.L.C., 12-1510, pp. 7-8 (La. App. 1 Cir. 5/6/13), 117 So.3d 542, 547).

Another requirement that the jurisprudence has imposed is that a" valid final judgment contain decretal language. “ ‘Decretal language is defined as the portion of a court’s judgment or - order that officially states (‘decrees’)-what the court is ordering and generally starts with the formula ‘It is hereby ordered, adjudged, and decreed that Freeman, 16-0247 at p. 2, 208 So.3d at 440 (quoting Jones v. Stewart, 16-0329, p. 5 (La. App. 4 Cir. 10/5/16), 203 So.3d 384, 387). To comply with the decretal language requirement, a judgment must contain the following three elements: (i) it “must name the party in favor of whom -the ruling is ordered”; (ii) it must name “the party against whom the ruling is ordered”; and (iii) it'must state “the relief that is granted or denied.” Baker Ready Mix, 15-0665, at p. 2, n. 1, 183 So.3d at 623; Input/Output, 10-477 at p. 13, 52 So.3d at 916.

Here, the trial court’s October 31, 2016 judgment states as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the Defendants’ Motions for Summary Judgment are GRANTED. Pursuant to La. Code Civ. Proc. Art. 1915, this judgment is designated a final judgment.'

At the outset, we note that the trial court’s inclusion in its judgment of a certification that the judgment is-final pursuant to La. C.C.P. art. 1915 is not dispositive. LHO New Orleans LM, L.P. v. MHI Leasco New Orleans, Inc., 03-1283, 03-1284, p. 5 (La. App. 4 Cir. 3/3/04), 869 So.2d 304, 307 (collecting cases) (holding that “[t]his Court is not hound by the trial judge’s certification of the partial adjudication as final for the purpose of an immediate appeal; we determine finality de novo”). Indeed, the trial court’s inclusion of this certification suggests that there are outstanding pending issues in the trial court.

Applying the principles discussed above, we find that the trial court’s judgment fails to satisfy the jurisprudential requiremehts for a valid final judgment. The judgment fails to identify which of the defendants’ summary judgment motions are granted. Although the judgment states ■' that it grants the motions for summary judgment filed by certain of the defendants, the judgment fails to state the relief granted. Stated otherwise, the judgment fails to state what claims, if any, are dismissed and whether the dismissal is with prejudice. Rather, the judgment simply states that certain of the defendants’ motions for summary judgment are granted.

The jurisprudence has held that “[a] judgment that simply states that a defendant’s motion for summary judgment is granted, is defective and cannot be considered a final judgment.” Eldon,E. Fallon, LA. PRAC. TRIAL HANDBOOK FOR LA. LAWYERS § 34:1 (3d ed. 2017) (citing Contreras v. Vesper, 16-318, p. 3 (La. App. 5 Cir. 10/19/16), 202 So.3d 1186, 1188-89); Gaten v. Tangipahoa Parish School System, 11-1133, pp. 3-4 (La. App. 1 Cir. 3/23/12), 91 So.3d 1073, 1074 (finding that a judgment which simply states that a “Motion for Summary Judgment is Granted,” without decretal language disposing of or dismissing the claims, is defective and cannot be considered as a “final judgment”); In re Med. Review Panel of Williams v. EMSA Louisiana, Inc., 15-1178, p. 2 (La. App. 4 Cir. 10/21/16), 203 So.3d 419, 423 (holding that the judgment providing that “It is 17ordered, adjudged and decreed that the Motion for Summary Judgment filed herein on behalf of Defendant, PCF is granted” lacked the required decretal language and citing Tomlinson v. Landmark Am. Ins. Co., 15-0276, p. 2 (La. App. 4 Cir. 3/23/16), 192 So.3d 153, 156). As the court in Contreras explained, “one must refer to the motion for summary judgment and assume that the relief granted by the judgment is that prayed for in the motion. ... [A] judgment cannot require reference to extrinsic documents or pleadings in order to discern the court’s ruling.” 16-318 at p. 2, 202 So.3d at 1188. Such is the case here. The October 31, 2016 judgment is thus not a valid final judgment.

Given the instant appeal, as lodged, lacks a valid final judgment, we lack appellate jurisdiction to address the merits of the appeal. Because the instant'appeal was not filed within thirty days from the date of the trial court’s judgment, we decline to exercise our discretion to convert the plaintiffs’ appeal to a writ application. We thus dismiss the plaintiffs’ appeal without prejudice and remand for further proceeding. Once a final appealable judgment is rendered, the parties may filé a new appeal vidth this court.

DECREE

For the foregoing reasons, the appeal filed by the plaintiffs in this matter is dismissed without prejudice; and this matter is remanded,

APPEAL DISMISSED WITHOUT PREJUDICE; REMANDED


author: BEAM, JUSTICE,

text:
    Zachary COZART a/k/a Zachery Cozart a/k/a Zack Cozar v. STATE of Mississippi
    NO. 2014-CT-01741-SCT
    Supreme Court of Mississippi.
    05/25/2017

      ATTORNEY FOR APPELLANT: RALPH STEWART GUERNSEY
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KATY TAYLOR GERBER,- JEFFREY A. KLINGFUSS
   ON WRIT OF CERTIORARI

BEAM, JUSTICE,

FOR THE COURT:

¶ 1. Following a three-day jury trial in DeSoto County, Mississippi, defendant Zachary Cozart was found guilty of manslaughter and sentenced to thirty years in the custody of in the Mississippi Department of Corrections, pursuant to Mississippi Code Section 97-3-25(b) (Rev. 2014). Cozart appealed, arguing error in violation of the state’s Ex Post Facto Clause. The Court of Appeals found that, although Section 97-3-25(b) was not enacted until after the defendant’s crime, Cozart waived any objection to the harsher sentence when he agreed to a jury instruction that echoed the revised manslaughter penalty statute. Cozart v. State, No. 2014-KA-01741, 226 So.3d 63, 2016 WL 1745244 (Miss. Ct. App. May 3, 2016), cert. granted, 205 So.3d 1085 (Miss. 2016).

¶ 2. We granted certiorari to determine whether Cozart’s thirty-year sentence under amended Mississippi Code Section 97-3-25(b) amounted to an ex post facto violation and whether this application rises to the level of plain error. We find that it does and reverse Cozart’s sentence, remanding the issue to the circuit court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶-3. On July 1, 2010, twenty-one-month-old Ethan Connor was pronounced dead at Le Bonheur Children’s Hospital in Memphis, Tennessee. Shortly after his passing, Zachary Cozart-Ethan’s mother’s paramour—was indicted in DeSoto County on charges of capital murder and felonious child abuse.

¶4. Prior to trial, Cozart entered an Alford plea of guilty to the reduced charge of manslaughter. On July 10, 2013, the court entered an agreed order reducing Cozart’s charges from capital murder to manslaughter under Mississippi Code Section 97-3-35. The matter was set for sentencing on September 12, 2013, though it was continued multiple times at Cozart’s request. On March 25, 2014, Cbzart filed a motion to withdraw his guilty plea arid the circuit court executed an agreed order setting it aside. Cozart’s trial commenced on October 27, 2014.

¶ 5. During the jury-instruction conference, Cozart’s trial attorriey offered an instruction for manslaughter, as a lesser-included offense of capital ' murder. The State took issue with the instruction’s language and requested time to review it within the context of the manslaughter statute. After comparing the two, the State agreed to the instruction with one minor revision, as suggested by the court.

¶ 6. Following the close of the trial, the jury acquitted Cozart of capital murder but found him guilty of manslaughter. The court sentenced him to thirty years in the custody of the Mississippi Department of Corrections, with fifteen years suspended and ten years of post-release supervision. Cozart appealed, asserting that both his due process rights and the Ex Post Facto Clause were violated when the court issued this sentence. This Court assigned the case to the Court of Appeals.' •

¶ 7. Cozart argued that when he was indicted in 2010, the punishment for manslaughter was imprisonment in the penitentiary for “not less than two years, nor more than twenty years.” Miss. Code Ann. § 97-3-25 (2006). However, when sentenced, the trial judge applied the law’s 2013 update, which expanded on the original law by including a provision for child homicide and an increased sentence “not to exceed thirty (30) years,” Miss. Code Ann. § 97-3-25(2)(b) (Rev. 2014).

¶8. The Court of Appeals determined that, while Cozart was sentenced under a statute not in effect at the time-of his offense, his failure to object to the potential sentence prior to the jury’s instruction effectively waived his right to assert an ex post facto violation. Cozart v. State, No. 2014-KA-01741, 226 So.3d 639, 643-44, 2016 WL 1745244, at *3 (Miss. Ct. App. May 3, 2016), cert. granted, 205 So.3d 1085 (Miss. 2016). The court held this issue to be without merit and affirmed the circuit court’s judgment. We granted certiorari on this individual issue to review whether the sentence rendered by the circuit court was proper.

STANDARD OF REVIEW

¶ 9. It is well-established that “[t]he imposition of a sentence is within the discretion of the trial court, and this Court will not review the sentence, if it is within the limits prescribed by statute.” Jackson v. State, 965 So.2d 686, 688 (Miss. 2007) (citing Reynolds v. State, 585 So.2d 753, 756 (Miss.1991)). However, the issue of, whether the application of a statute constitutes an ex post facto, violation is a question of law. “Where questions of law are raised the applicable standard of review is de novo.” Brown v. State, 731 So.2d 595, 598 (Miss. 1999) (citation omitted). Accordingly, we review the question of whether the circuit court’s prescribed sentence constituted an ex post facto violation under the de novo standard and “will only reverse for án erroneous interpretation or application of law.” Rice v. Merkich, 34 So.3d 555, 557 (Miss. 2010).

ANALYSIS

¶ 10. Here, we find that while Cozart presented a jury instruction that resulted in the court’s sentence, this does not preclude an appeal of his sentence. Having reviewed the ex post facto claim and analyzed the issue for plain error, we find that the trial court’s application of the revised statute resulted in an illegal sentence and plain error, which merits remand.

¶ 11. The January 2011 indictment properly documented the capital-murder and felonious-child-abuse charges against Co-zart as follows: • ■

Zachary Cozart ... did wilfully, unlawfully and feloniously, and without authority of law, kill and murder Ethan Conner, a human being under the age of eighteen (18) years, while the said ... Cozart [was] engaged in the commission of the crime of felonious abuse and/or battery of said child, with or without any design to effect the death of Ethan Conner, as defined in Section 97-5-39(2), Mississippi Code- 1972 Annotated, as amended, in direct violation of Section 97-3-19(2)(f), Mississippi Code. 1972 Annotated, as amended, contrary to the form of the statute in such cases provided, and against the peace and dignity of the State of Mississippi.

Therein, Cozart faced the possibility of a guilty verdict and a sentence of death, life in prison, or life" in prison without the possibility of parole. Miss. Code Ann. § 97-3-21 (2006). Understanding the potential consequences of the indictment, Co-zart entered an Alford plea, confessing guilt to the lesser charge of manslaughter under Mississippi Code Section 97-3-35 (Rev.). Both parties consented to this plea and the court entered an agreed Order on July 10, 2013; acknowledging that

This cause came on hearing on joint motion of defendant, by and through his Attorney of record, and the District Attorney to reduce the charge in this case from the offense of CAPITAL MURDER in violation of Miss. Code 97-5-39(2) and 97-3-19(e) and (f) to that of MANSLAUGHTER in violation of Miss. Code 97-3-35 ... the referenced charge ■is hereby reduced ... and the Defendant now stands charged with MANSLAUGHTER in violation of Miss. Code 97-3-35.

Several months later, but prior to sentencing, Cozart withdrew his guilty plea and reasserted his right to a jury trial. Following the presentation of evidence, the parties adjourned to the jury-instruction conference, where the court was presented with instructions on the charged crime of capital murder, child abuse, and the lesser-included crime of manslaughter. The instruction on manslaughter, presented by counsel for the defense, made reference to the amended version of Section 97—3—25(b).

¶ 12. The manslaughter instruction was reviewed by both the State and the circuit court and found to be in line with the existing manslaughter punishment statute. The instructions were provided to the jury and, following a brief deliberation, Cozart was found guilty of manslaughter. He subsequently was sentenced under the revised version of Mississippi Code, Section 97-3-25, which provides:

(1) Except as otherwise provided in this section, any person convicted of manslaughter shall be fined in a sum not less than Five Hundred Dollars ($500.00), or imprisoned in the county jail not more than one (1) year, or both, or in the custody of the Department of Corrections not less than two (2) years, nor more than twenty (20) years.
(2) (a) A person is guilty of child homicide if:
(i) The person is found guilty of manslaughter in circumstances where the killing, although without malice, was intentional and not accidental; and
(ii) The perpetrator was over the age of twenty-one (21) years and the victim was a child under the age of eighteen (18) years.
(b) A person found guilty of child homicide shall be imprisoned in the custody of the Department of Corrections for a term not to exceed thirty (30) years.

Miss. Code Ann. § 97-3-25(2) (Rev. 2014) (emphasis added). Whereas the former manslaughter penalty statute, effective in 2010 when Cozart’s crime occurred, mandated:

Any person convicted of manslaughter shall be fined in a sum not less than five hundred dollars ($500.00), or imprisoned in the county jail not more than one year, or both, or in penitentiary not less than two years, nor more than twenty years.

Miss. Code Ann. § 97-3-25(1) (2006) (emphasis added).

¶ 13. At the time of Cozart’s crime, manslaughter was punishable by no more than twenty years in prison. However, by the time Cozart was sentenced, the Legislature had amended Mississippi Code Section 97-3-25 to include child homicide as a classification of manslaughter, making his crime punishable by up to thirty years in prison. It is this discrepancy upon which Cozart frames his ex post facto violation argument.

I. Ex Post Facto Violation

¶ 14. “An ex post facto law is one which creates a new offense or changes the punishment, to the detriment of the accused, after the commission of the crime.” Knowles v. State, 708 So.2d 549, 552 (Miss. 1998) (citing Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990)). “Both the federal and our state constitutions protect persons from ex post facto laws,” and provide that those “convicted should be sentenced pursuant to the statute existing on the date of his offense to avoid an ex post facto problem.” Johnston v. State, 618 So.2d 90, 94 (Miss. 1993)(emphasis in original, citations omitted).

¶ 15. Because the defendant was acquitted of his indicted crime, the difficulty in this case arises not out of that charged crime, but out of an instruction for the lesser-included offense of manslaughter which tracked the language of an amended law, ultimately “changing the quantum of punishment.” Puckett v. Abels, 684 So.2d 671, 673 (Miss. 1996) (quoting Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)). Here, Cozart’s conviction of manslaughter stemmed from a jury instruction submitted by his own counsel which used language from the updated version of Mississippi Code Section 97-3-35, rather than the controlling 2006 version. Reviewed by both the district attorney and the circuit court, this error went unnoticed well into the sentencing phase, with neither party objecting to its inclusion or the enhanced thirty-year punishment.

¶ 16. In response to this appeal, the State argues that both Cozart’s submission of the erroneous instruction and his failure to timely object to the instruction and the eventual sentence, act as a waiver of his ex post facto violation claim. They argue that by submitting an instruction on the lesser-included offense, Cozart’s counsel made a strategic decision which they hoped would result in the jury returning a conviction for a lesser crime, with a softer sentence. To illustrate this point, the State cites Barnett v. State, 725 So.2d 797 (Miss. 1998), claiming that Cozart’s manslaughter sentence of thirty years, while stricter than the former requirement of twenty years, was still lighter than the punishment for the indicted offense of capital murder, and was therefore ameliorative. The State asserts that, because Cozart chose to include the manslaughter instruction in an effort to mitigate his conviction, he cannot now complain about the option he initially relied upon “to escape the harsher penalty of death.” Barnett v. State, 725 So.2d 797, 801 (Miss. 1998). While the cases are similar, the application of Barnett is not entirely on point.

¶ 17. Like the matter at hand, Barnett presents a case in which a defendant claimed that his sentence amounted to an ex post facto violation. Under the statute applicable to Barnett’s 1992 crime, “a jury could sentence [him] to either death or life in prison. Miss. Code Ann. § 97-3-21. That provision was amended in 1994 to allow the option of life in prison without parole. The jury sentenced Barnett to life without parole, a punishment that was not permitted under the statute in effect when the crime was committed." Barnett, 725 So.2d at 801. Barnett therefore argued that his sentence was void, though this Court held otherwise, using a two-part assessment. First, this Court reviewed the procedural merits of the appeal’ and found that Barnett should have objected to the alternative sentencing option “at the point that the jury was given its instructions, at the latest.” Id. We held that “[objections to jury instructions made after the jury has returned a verdict and been discharged is simply too late.” Id. (citations omitted). Next, we determined that “a sentence of life without parole is ameliorative (and thus did not pose an ex post facto problem) in that it provides a punishment less harsh than death.” Id.; see also Johnston v. State, 618 So.2d 90, 95 (Miss. 1993) (this Court held that the application of an amended statute wás not an ex post facto violation because the changes were ameliorative and procedural.) Because Barnett was found guilty of capital murder and faced the possibility of execution, receiving life without parole amounted to alternative relief to abate the severest of sentences. We found that this abatement was a strategic consideration by Barnett’s counsel in an effort to prevent the jury from re: turning a sentence of death, and as such, found his failure to object to the instruction prior to sentencing served to waive this aspect of his appeal. Barnett, 725 So.2d at 801.

¶ 18. But, while we agree that the State has met the first prong of the Barnett analysis (the procedural arm), its argument fails under the second prong' (the substantive arm). Here, it' is not' clear if Cozart knew that the thirty-year sentencing option would be triggered, nor is it clear that he relied upon "a lesser-included offense to escape a harsher penalty. See Barnett, 725 So.2d at 801. Further, when the jury returned its verdict, acquitting Cozart of capital murder and finding him guilty of manslaughter, it was then the court’s responsibility to ensure he was sentenced properly. Because it remains unclear whether Cozart knew that his sentence would be enhanced by his counsel’s lesser-included-offense instruction, and the court’s decision to apply the increased thirty-year sentence was in error, we cannot say the sentence was ameliorative of any px-oposed harsher penalty.

¶ 19. Moreover, unlike in Barnett and Johnston, the changes to Section 97-8-25 are substantive and not merely procedural, serving to amplify the potential sentence for specific offenders. Because the penalty of thirty years was not ameliorative of the original penalty under the applicable, statute and therefore constitutes an ex post facto violation, we bypass the procedural bar and “address this issue' under the plain-error doctrine because it affects [Co-zart’s] substantive ¡ rights.” Mayers v. State, 42 So.3d 33, 44 (Miss. Ct. App. 2010), overruled on other grounds by Sallie v. State, 155 So.3d 760 (Miss. 2015).

II. Plain-Error Analysis

¶20. Alternatively, Cozart argues that our holding in Flowers v. State, 35 So.3d 516 (Miss. 2010), is more closely aligned with the facts of his appeal. There, the defendant was charged with statutory rape, though his alleged misconduct did not fall under the definition of statutory rape in effect at the time of his crime. Flowers, 35 So.3d at 518. Following a plain-error review, this Court held that the defendant’s indictment, conviction, and sentence violated the .state’s ex post facto law, reversed the conviction and sentence, and remanded the case to the lower court.

¶21. While the analysis conducted in Flowers is more closely aligned with the analysis necessary in this case, the holding in that case is not entirely dispositive of the issue here. In Flowers, the defendant was sentenced under a defective indictment, charging him with a crime which did not exist at the time he committed it. Here, Cozart’s indictment-was a proper chaxge, for which he was acquitted. It was not until he was convicted of the charge’s lesser-included offense and the court entered the sentencing phase that his “due-process rights were disregarded and the Ex Post Facto Clause was violated.” Flowers, 35 So.3d at 518. Therefore, we proceed with our own plain-error review of the circuit court’s sentence to determine if Co-zart’s rights were violated.

¶ 22. The Mississippi Rules of Appellate Procedure provide that this Court “may, at its option, notice a plain error not identified or distinctly specified.” Miss. R. App. P. 28(a)(3). We previously have stated that, in certain contexts, this Court “has noted the existence of errors in trial proceedings affecting substantial rights of the defendants although they were not brought to the attention of the trial court or of this Court.” Grubb v. State, 584 So.2d 786, 789 (Miss.1991). When an error impacts a fundamental right of the defendant, “procedural rules give way to prevent a miscarriage of justice,” requiring this Court to address issues on plain-error review and, correct any fundamental violations. Gray v. State, 549 So.2d 1316, 1321 (Miss. 1989). Further, “a claim of illegal sentence or-denial of due process in sentencing [] must be considered regardless of when it is raised; because the State is without authority or right to impose a sentence illegally or without due process.” Rowland v. State, 98 So.3d 1032, 1036 (Miss. 2012), overruled on other grounds by Carson v. State, 212 So.3d 22 (Miss. 2016).

¶23. We recognize, that “the plain-error exception to the contemporaneous-objection rule is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.’ ” United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (citations omitted). Plain-error review is reserved for “correcting obvious instances of injustice or misapplied law.” Smith v. State, 986 So.2d 290, 294 (Miss. 2008) (quoting Newport v. Fact Concerts, Inc., 453 U.S. 247, 256, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981)). When reviewing a lower court’s decision for plain error, this Court follows the standard set forth in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We have held that “[p]lain-error review is appropriate when ...” a party meets the criteria under Olano “and has failed to preserve an error for appellate review.” In re Guardianship of Duckett, 991 So.2d 1165, 1183 (Miss. 2008). As a result, “[t]he defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment on appeal.” Brown v. State, 690 So.2d 276, 297 (Miss. 1996) (quoting Foster v. State, 639 So.2d 1263, 1289 (Miss. 1994)).

¶ 24. Setting the standard in Ola-no, the United States Supreme Court provided that, to show plain error, courts must first identify an error, and that error must be “plain ... clear or, equivalently, obvious ...” while serving to “affec[t] substantial rights” of the defendant. Olano, 507 U.S. at 734-35, 113 S.Ct. 1770. Further, the defendant must prove that the lower court’s error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732, 113 S.Ct. 1770. “Our analysis, therefore, necessarily includes,a determination of whether there is an error that is some deviation from a legal rule, whether that error is plain, clear or obvious, and whether the error is prejudicial in its effect upon the outcome of the trial, court proceedings.” Taylor v. State, 754 So.2d 598, 603 (Miss. Ct. App. 2000) (citing Porter v. State, 749 So.2d 250, 260-61 (¶ 36) (Miss. Ct. App. 1999) (quoting Olano, 507 U.S. at 732-35, 113 S.Ct. 1770)).

¶ 25. As previously recognized, by introducing the jury instruction, then Cozart normally would have surrendered his right to appeal his sentence. However, because the revised sentencing statute was not effective at the time Cozart’s crime was committed, condemning him to thirty years in the custody of the Mississippi Department of Corrections was an error impacting a “fundamental right.” Gray, 549 So.2d at 1321. Cozart’s appeal, therefore, meets the first prong of the Olano analysis.

¶ 26. Additionally, the error in sentencing was plain, clear, or otherwise obvious to the lower courts and to this Court on appeal. Olano, 507 U.S. at 734, 113 S.Ct. 1770. Though they quickly dismissed it as procedurally barred due to Cozart’s failure to object, both the State and the Court of Appeals acknowledged that the amended statute was not enacted until three years after the death of the victim. Cozart, 226 So.3d at 647, 2016 WL 1745244, at *7. Further, a quick scan of the Mississippi Code indicates that sentencing a defendant to a more severe penalty under a statute not created until after the commission of his crime violates the basic tenants of the Ex Post Facto Clause. See Miss. Code Ann. § 99-19-1 (Rev. 2015). Unlike the circumstances in Barnett, it is neither clear that Cozart was aware that the thirty-year sentence would be an option, nor that he relied upon that option to escape the a potential harsher penalty. Without an apparent waiver of his right to object to the harsher, thirty-year sentence, the error is abundantly obvious, and Cozart’s appeal meets the second prong.

¶ 27. Finally, the sentencing error affected the substantive rights of the defendant while “seriously affectfing] the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732, 113 S.Ct. 1770. Unlike the defendant in Barnett, Cozart was acquitted of capital murder, making the only possible sentence the penalty for manslaughter under Mississippi Code Section 97-3-25 (2006). Additionally, the record fails to tell us whether Co-zart knew the amended statute carried a harsher sentence, whereas in Barnett, we found that the record showed a strategic decision made to prevent the imposition of the death penalty. There, it was “clear that Barnett was aware that the sentencing option of life without parole would be given to the jury.” Barnett, 725 So.2d at 801. But here, it is conceivable that Cozart presumed that the twenty-year sentence under the manslaughter penalty provision would be applied, and did not know of the potential thirty-year sentence until after the judge announced his decision.

¶ 28. We repeatedly have held that, with the exception of limited circumstances, defendants will be “sentence[d] [ ] under the version of the ... statute that was in place at the time the crime was committed.” Walters v. State, 206 So.3d 524, 531 (Miss. 2016); see also Wilson v. State, 194 So.3d 855, 874 (Miss. 2016). Further, Mississippi Code Section 99-19-1 “expressly provide[s] that the previous law will remain in effect for the purpose of providing punishment, unless otherwise specially provided in the new statute.” Wells v. State, 202 So.3d 1230, 1234 (Miss. 2016) (citing Miss. Code Ann. § 99-19-1 (1972)). With the twenty-year sentence being the proper punishment under the appropriate statute, the thirty-year sentence cannot be held as ameliorative. The imposed sentence, therefore, amounted to an ex post facto violation, affecting Cozart’s due process rights. See Miss. Const, art. 3, § 4. Finding that this error inherently affected the fairness of his judicial proceedings, resulting in a miscarriage of justice which subjected Co-zart to a “greater punishment, than the law annexed to the crime,” we find that he has sufficiently met the third prong of our plain-error analysis. Calder v. Bull, 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798).

CONCLUSION

¶ 29. Finding that application of the revised penalty for manslaughter constitutes an ex post facto violation affecting Cozart’s substantial rights, and that this violation amounted to plain error, we reverse and remand the matter to the circuit court for re-sentencing under Section 97-3-25, as it existed at the time Cozart’s offense occurred.

¶ 30. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN AND MAXWELL, P.JJ., CONCUR. CHAMBERLIN, J., NOT PARTICIPATING.

      . Maria Christina Sierra-Ethan’s mother-also was indicted for capital murder, though the charges subsequently were dropped.

      . North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). An Alford plea allows a defendant to avoid the risk of conviction at trial by pleading guilty without admitting to actual guilt of the crime charged.

      . The current version of this law was revised in 2013, taking effect on July 1 of that year.

      . On appeal, Cozart argued several other issues immaterial to our grant of certiorari. Those issues will not be discussed.

      . The criminal law statutes were fully updated in 2014, with some of the first revisions being enacted in 2013. Those which Cozart argue are applicable to his crime arid sentence were updated in 2006. Those under which Cozart was erroneously sentenced were enacted in 2013, and are found in the 2014 revisions to the Mississippi Code.

      . The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter. Miss. Code Ann. § 97-3-35 (2006).

      . An indictment for murder or capital murder shall serve as notice to the defendant that the indictment may include any and all lesser included offenses thereof, including, but not limited to, manslaughter. Miss. Code Ann. § 97-3-19(3) (Rev. 2014). This language was carried over as unchanged from the 2006 update to the Mississippi Code.


author: WALLER, CHIEF JUSTICE,

text:
    Greg ESTES and Jeff Estes, Co-Executors of the Estate of Joe Howard Estes, Deceased v. Sarah Young ESTES
    No. 2014-CT-01533-SCT, No. 2011-CT-01451-SCT
    Supreme Court of Mississippi.
    06/01/2017
    ATTORNEY FOR APPELLANTS: AMY K. PIETROWSKI
    ATTORNEY FOR APPELLEE: RHETT R. RUSSELL, TUPELO
   ON WRIT OF CERTIORARI

WALLER, CHIEF JUSTICE,

FOR THE COURT:

¶ 1. Sarah Young Estes (Young) seeks review of the Court of Appeals’ decision to reverse and render the trial court’s judgment entitling her to a child’s share of the estate of her late husband, Joe Estes. A divided Court of Appeals reversed and rendered the trial court judgment, finding persuasive evidence of Young’s abandonment, principally from the filing of a divorce against Estes. Estes v. Estes (Estes II), 226 So.3d 634, 2016 WL 1664404 (Miss. Ct. App. Apr. 19, 2016). This Court granted certiorari. Finding that the chancellor did not manifestly err when he determined that Young had not abandoned the marital relationship and was entitled to a child’s share of Estes’s estate, we reverse the judgment of the Court of Appeals, affirm the judgment of the Lee County Chancery Court, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶2. After dating for approximately six months, Young and Estes married on August 3, 2006. Young entered the marriage with four natural children and three adopted minor grandchildren. Estes also entered the marriage with several grown children, After marrying Estes,' Young continued to maintain a home with her grandchildren where she had lived prior to the marriage. Young worked as a caregiver to the sick and elderly in their respective locations. She alternated one week of working night shifts followed by another week of working day shifts. As noted by the chancellor, Estes’s and Young’s “living arrangement was somewhat non-traditional.” Despite this, the record shows that Young split her time between her children and Estes. She testified that she slept at his house when she was not working nights and prepared at least one meal a day for Estes.

¶ 3. On August 6, 2006, three days after Young and Estes married,'Joe Estes was hospitalized for a foot injury that eventually resulted in the amputation of his left leg above the knee on August 17, 2006. Two months later, in October 2006, Estes returned to the hospital for surgery to clear blocked arteries in his neck. Young testified that, following these medical procedures, despite providing care for her husband, Estes’s behavior changed. She testified that he would lash out at her, even threatening to kill her. In November 2006, Young consulted with a doctor regarding ■ Estes’s mental state. Following the doctor’s advice, she reported the incident to' the sheriffs department. In mid-January, after another episode in which Estes accused. Young, of adultery, Young decided to separate from Estes.

¶ 4. Estes’s family members tell a different story. Following the amputation, Estes’s family members testified that they, unlike Young, were very supportive of Estes. Estes’s brother testified that he visited his brother every morning and every evening, spending about half an hour with Estes, and he rarely would see Young there. Jeff, one of Estes’s sons, testified that he spent most weekends with his father and also stated that he rarely saw Young there during those times. In addition to finding Young absent, several family members’ testified that Young was stealing groceries to feed her own children. Estes’s son also testified that his father had told him that Young ■ had tried to strike him on his neck where he had recently had surgery. He also testified that his father had told him that he believed that Young was adding dish soap to his coffee.

¶ 5. On January 30,. 2007, after Estes had refused to seek- medical or mental help, Young initiated involuntary-commitment proceedings against Estes. She stated that he exhibited rages and threatened to harm her physically. She also said- he accused her of having an affair and stealing groceries. After his psychiatric evaluation, Estes was found to be competent, with no indication of any psychiatric illness or anger-management problems. The evaluation also concluded that Estes was no danger to himself or anyone else. Thus, Estes was released from psychiatric care.

¶ 6. Immediately thereafter, on February 2, 2007, Estes sought a restraining order against Young. Approximately one month later, on March 7, 2007, Young filed for divorce, seeking half of all of Estes’s assets, including the value of his land and his bank accounts. Young testified that her sole purpose in initiating the divorce proceedings was so, with, a court order, she could return to Estes’s property and gather her belongings. Young also requested temporary and permanent restraining orders against Estes. A few weeks later, Estes counterclaimed for divorce and also sought a restraining order. Eventually the parties entered into a mutual restraining order. In May 2007, Estes received notice of the final divorce hearing. The next day he shot and killed himself.

¶7. Estes’s will did not provide for Young to inherit anything from his estate. Young renounced the will. The trial court granted Young a $12,000 widow’s allowance as well as a one-fifth, child’s share of the estate in the amount of $68,927.63. Estes’s two sons, acting as co-executors, appealed the trial court’s judgment. On appeal, the Court of Appeals determined that Young was not entitled to a widow’s allowance since she was living apart from Estes, through no fault of.his own, and without support from him at the time of his death. In re Estate of Estes (Estes I), 111 So.3d 1223, 1227 (Miss. Ct. App. 2012). The Court of Appeals remanded the case for a determination of whether Young’s actions constituted a clear abandonment of the marriage, thus estopping her from inheriting from Estes’s estate. Id. at 1228 (citing Tillman v. Williams, 403 So.2d 880 (Miss. 1981)).

¶8. On remand, .the chancellor again found that Young had not clearly abandoned the marriage and confirmed her award of a child’s share.

¶9. Estes again appealed the chancery court’s judgment. The Court of Appeals found that the chancellor’s determination was “in conflict” with the evidence and, as such, the chancellor had erred in not finding that Young had deserted and abandoned her marriage to Estes.' Estes v. Estes (Estes II), 226 So.3d 634, 2016 WL 1564404 (Miss. Ct. App. Apr. 19, 2016). We granted certiorari to review this determination.

■DISCUSSION'.

Whether the trial court erred in determining that Young had not abandoned her marriage to Estés and awarding her a child’s share of Estes’s estate.

¶ 10. The standard of review on “findings of fact by a trial judge without a jury [is] manifest error, including whether the findings were the product of prejudice, bias, or fraud, or manifestly against the weight of the credible evidence.” Hale v. State Democratic Exec. Comm., 168 So.3d 946, 951 (Miss. 2015) (quoting Young v. Stevens, 968 So.2d 1260, 1263 (Miss. 2007)). This standard of review precludes the “scouring [of] every record before the Court for any and all information which might contradict a ... court’s factual finding” since this would “amount to an inspection for errors that are far less conspicuous than those that are ‘unmistakable, clear, plain, or indisputable.’ ” Id. (quoting Black’s Law Dictionary 963 (6th ed. 1990)).

¶ 11. The Court of Appeals in Estes I directed the chancellor, on remand, to consider the “clear-abandonment standard” of Tillman v. Williams, 403 So.2d 880 (Miss. 1981). Following the trial, the chancellor addressed the issue of clear desertion, finding that Estes had failed to meet the burden of proof. The following was included in the chancellor’s factual findings and judgment:

Critical to a. determination of Sarah’s clear desertion and abandonment of the marriage and resultant estoppel from claiming a statutory right to an inheritance are the facts following Joe’s October hospitalization. According to Sarah, after Joe was discharged from the hospital, he began to act irrationally. He accused her of infidelity and the theft of groceries. On November 26, 2006, Sarah called Joe’s physician, Dr. Pinson, to seek advice on how to help Joe. Sarah then filed a complaint with the Lee County Sheriff’s Department that Joe was threatening her and acting irrationally. A deputy sheriff came to Joe’s residence and made a report. Joe’s irrational behavior is born [sic] out by his refusal to dress appropriately and by him discharging a gun from inside his house thi-ough an open window. The severity of Joe’s mental difficulties is perhaps best documented, however, by his tragic May 18, 2007 suicide.
Regardless of the date of separation, the chronology of events following the parties’ separation is not disputed. On January 30, 2007, Sarah files a commitment proceeding against Joe. She attaches a copy of the previously mentioned Sheriffs report. The two examining physicians fail to find Joe a danger to himself or other[s], i.e., not in need of involuntary commitment.
On February 2, 2007, Joe seeks a restraining order against Sarah. Sarah counters on March 7, 2007, by filing for divorce. Joe answers and files a Counter-Complaint on March 27, 2007. On March 26, 2007, the parties agree to a mutual restraining order. On March 29, 2007, a temporary order is entered directing Joe to allow Sarah to retrieve her personal property.
Guided by the applicable law and applying that law to the facts and having observed the witnesses, the Court is of the opinion that those urging an estop-pel have failed to prove that estoppel. While the facts exist which show a nontraditional marriage, Joe knew when the parties married that Sarah had, on a daily basis, the responsibilities of attending to her grandchildren. Moreover, Joe’s behavior was at times bizarre and the Court cannot say that Sarah willfully left and had the intention of permanently separating from the marital relationship. Mere absence from home, without more, does not show willfulness.
The court would note that Sarah’s consultation with Dr. Pinson on November 26, 2006, creates an inference that Sarah was trying to get Joe help. Moreover, seeking to have Joe committed, on January 30, 2007, rather than filing for divorce is suggestive to the Court that Sarah was trying to get Joe help and that the marriage was not over. Efforts by a spouse to get a spouse professional help should not be used against that spouse. Finally, the Court notes that Joe filed a Petition to restrain Sarah on February 2, 2007, which may well have caused Sarah to seek a divorce almost a month later. (Citations omitted).

¶ 12. The Court of Appeals listed the following facts it found in “conflict” with the chancellor’s findings:

(1) Estes becomes ill; (2) Young slowly reduces the amount of time spent with Estes; (3) Young attempts to involuntarily commit Estes; (4) Estes seeks a restraining order against Young upon release from the commitment proceedings; (5) Young files for divorce and restraining orders; (6) Estes counter-files for divorce; and, (7) Estes takes his own life after receipt of notice for a final hearing on the divorce proceedings.

Estes v. Estes (Estes II), 226 So.3d 634, 644-45, 2016 WL 1564404, *4 (Miss. Ct. App. Apr. 19, 2016). The Court of Appeals then stated the “most glaring evidence of Young’s abandonment of the marriage was her petition for divorce,” citing Tillman as primary legal support. Id,

¶ 13. However, the Tillman case actually used the language “secure a divorce.” Tillman, 403 So.2d at 881. In Tillman, this Court reversed the trial court’s judgment, finding that “[a] thorough review of the record reveals that not only was an abandonment uncertain, but there just was not any substantial evidence to show a desertion or abandonment.” Tillman, 403 So.2d at 882. In fact, Tillman holds that the requirement for clear proof of abandonment must be strictly construed:

Our Legislature has not seen fit to enact any legislation on this abandonment question. It is, therefore, obvious that the statute has to be strictly construed unless there is a clear desertion and abandonment that sets up the estoppel. In Walker, the surviving wife had engaged in a marriage ceremony with another man, and her deceased husband also had married another. There was a clear abandonment of the marriage relationship.

Id. (citing Walker v. Matthews, 191 Miss. 489, 3 So.2d 820 (1941)).

¶ 14. In Rowell v. Rowell, the Court also focused on the legal status change and determined that the trial court had erred when it had found that the widow’s adulterous relationship was grounds to show abandonment or desertion. Rowell v. Rowell, 251 Miss. 472, 170 So.2d 267, 271-72 (1964). Relying on an Alabama case, the Court stated, “[a]s long as the marriage relation continued in law, the rights of the wife continued'under the [descent and distribution] statute.” Id. at 270 (citing Nolan v. Doss, 133 Ala. 259, 261-62, 31 So. 969, 969-70 (1902)). The Rowell Court found that an adulterous relationship was not sufficient evidence of abandonment or desertion and that no evidence was presented that showed a bigamous marriage, which may have been grounds for abandonment. Id. at 271. The Court again focused on the legal change that occurs when someone remarries. Williams v. Johnston, 148 Miss. 634, 114 So. 733 (1927) (finding that the adulterous conduct was not at issue but only whether a bigamous marriage resulted).

¶ 15. Following the renunciation of a will that fails to include the spouse, the will proponent may raise abandonment and desertion as estoppel to the renunciation. Rowell, 251 Miss. at 477-78, 170 So.2d at 268. Mississippi Code Section 91-5-25 allows the surviving spouse automatically to renounce the will, thus the burden to show evidence of clear abandonment or desertion is on the aggrieved party. Miss. Code Ann. § 91-6-25 (Rev. 2013).

¶ 16. As this cáse is close factually and there was no legal change of marital status, we cannot say the chancellor was manifestly wrong in granting Sarah Young a child’s share of Joe Estes’s estate.

CONCLUSION

¶ 17. We reverse the judgment of the Court of Appeals, affirm the judgment of the Lee County Chancery Court, and remand for further proceedings.

¶ 18. THE' JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE LEE COUNTY CHANCERY COURT IS AFFIRMED AND THE CASE IS REMANDED.

DICKINSON AND RANDOLPH, PJJ., KITCHENS, KING, COLEMAN, BEAM AND CHAMBERLIN, JJ., CONCUR. ' MAXWELL, J., NOT PARTICIPATING.

      . For purposes of this opinion, Joe Estes; the Estate of Joe' Howard Estes; and the beneficiaries and co-executors of the Estate of Joe Howard Estes, Greg Estes and Jeff Estes, will be referred collectively to as "Estes.”

      . In her petition for certiorari, Young raised the issue of whether Estes's failure to plead the affirmative defense of estoppel procedurally barred Estes from appealing the desertion and abandonment issue. However, Young did not seek certiorari following the Estes I Court of Appeals decision to remand on this issue, and further, the chancellor decided the issue on the merits in the second trial without objection from Young. Therefore, Young’s assertion that the issue of estoppel is waived because Estes failed to assert it in his pleadings will not be considered.


author: CARLTON, J.,

text:
    Craytonia Latroy BADGER a/k/a Craytonia Badger a/k/a Craytonia L. Badger, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01665-COA
    Court of Appeals of Mississippi.
    08/22/2017.

      ATTORNEY FOR APPELLANT: CRAYTONIA LATROY BADGER (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA WAKELAND BYRD
    BEFORE LEE, C.J., BARNES AND CARLTON, JJ.
   CARLTON, J.,

FOR THE COURT:

¶ 1. Craytonia Badger appeals the Copi-ah County Circuit Court’s dismissal of his motion for postconviction relief (PCR) as time-barred. Finding no error, we affirm.

FACTS

¶ 2. On November 10, 2009, a jury found Badger guilty of the burglary of a business. On November 23, 2009, the circuit court sentenced Badger as a habitual offender to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC) without the possibility of parole. By order entered July 13, 2010, this Court remanded the case for a rehearing. Upon rehearing, the circuit court found that the State failed to meet the burden of proof required to sentence Badger as a habitual offender. As a result, on September 16, 2010, the circuit court entered an order vacating Badger’s life sentence and resentencing him to seven years in MDOC’s custody. Badger was released from MDOC’s custody in July 2014.

¶ 3. On October 31, 2016, Badger filed the instant PCR motion. In his motion, Badger asserted (1) the State withheld evidence from the defense that would have proven his innocence; and (2) his trial attorney provided ineffective assistance of counsel. On November 2, 2016, the circuit court dismissed Badger’s PCR motion as time-barred. Aggrieved, Badger appeals. On appeal, he reasserts his argument that the State withheld exculpatory evidence from the defense. He also argues that the circuit court erroneously denied his request for the jurors’ personal information.

STANDARD OF REVIEW

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

DISCUSSION

¶ 6. Where a defendant- files no direct appeal from his judgment of conviction and sentence, the Uniform Post-Conviction Collateral Relief Act (UPCCRA) provides him with “three (3) -years after the time for' taking an appeal from the judgment of conviction or sentence has expired” to file a PCR motion. Miss. Code Ann. § 99-39-6(2) (Rev. 2015). The circuit court originally sentenced Badger in November 2009 and then resentenced him just over a year later in September 2010. However, Badger waited until October 2016—over six years after his resentenc-ing—to. file his PCR motion. Because Badger filed his PCR motion well outside the three-year time period established by section 99-39-5(2), his motion is time-barred unless he can demonstrate that an exception applies. See id.

¶ 6. “The burden falls on the mov-ant to show he has met a statutory exception.” White v. State, 59 So.3d 633, 635 (¶ 8) (Miss. Ct. App. 2011) (citing Adams v. State, 954 So.2d 1051, 1053 (¶ 7) (Miss. Ct. App. 2007)). Pursuant to section 99-39-5(2), the six following exceptions exist: (1) an intervening decision from the United States or Mississippi Supreme Court that would adversely affect the outcome of the movant’s conviction or sentence; (2) newly discovered evidence not reasonably discoverable at trial that would likely have caused a different result in the movant’s conviction or sentence; (3) biological evidence demonstrating the movant would likely not have been convicted or would have received a lesser sentence; (4) the movant’s sentence is expired; (5) the mov-ant’s probation, parole, or conditional release has been unlawfully revoked; or (6) the motion occurs in a capital case and is filed within a year after the movant’s conviction.

¶ 7. Our caselaw also recognizes that “errors affecting fundamental constitutional rights” are excepted from the UP-CCRA’s time-bar. Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss. 2010). However, “mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar.” White, 59 So.3d at 636 (¶ 11) (citing Chandler v. State, 44 So.3d 442, 444 (¶ 8) (Miss. Ct. App. 2010)). Instead, “[tjhere must at least appear to be some basis for the truth of the claim before the procedural bar will be waived.” Id.

¶ 8. In the present case, Badger’s PCR motion contains nothing more than his own mere assertions to support his claims. As our caselaw demonstrates, this is insufficient to meet his burden to show that an exception applies to the UPCCRA’s time-bar. See id. We therefore find no error in the circuit court’s dismissal of his motion as time-barred.

¶ 9. AFFIRMED.

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