author: GRIFFIS, P.J.,

text:
    Tremayne WHITLOCK a/k/a Tremane Whitlock, Appelant v. Brian LADNER, Latisha Brooks and Larry Myers a/k/a Leroy Myers, Appellees
    NO. 2016-CP-00551-COA
    Court of Appeals of Mississippi.
    04/11/2017
    Rehearing Denied October 24, 2017

      . ATTORNEY FOR APPELLANT: TREMAYNE WHITLOCK, (PRO SE)
    ATTORNEY FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL, BY: ANTHONY LOUIS SCHMIDT JR.
    BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. Tremayne Whitlock appeals the circuit court’s dismissal of his administrative-remedy complaint against the Mississippi Department of Corrections (MDOC). We find no error and affirm. •

FACTS AND PROCEDURAL HISTORY

¶ 2. Whitlock is currently serving a life sentence for murder in the custody of the MDOC. On June 28, 2015, at approximately 12:25 p.m., Leroy Myers, a correctional officer with the MDOC, observed Whitlock bring a package through the back door of the kitchen and hide the package in a closet. The package was subsequently confiscated and searched and contained five cell phones, five cell-phone chargers, and five pounds of tobacco.

¶ 3. Whitlock was issued a rule violation report (RVR) and charged with possession of major contraband. He was subsequently ordered to be placed in administrative segregation pending an investigation. On July 2, 2015, a disciplinary hearing was held wherein the hearing officer, Latisha Brooks, found Whitlock guilty of possession of major contraband. Whitlock was reclassified to the cellular-telephone-management housing unit and lost all privileges for ninety days.

¶ 4. Whitlock appealed the hearing officer’s decision through the MDOC’s administrative remedy program (ARP). Brian Ladner, a warden with the MDOC, reviewed the appeal and found the RVR would remain in place as stated.

¶ 5. After he exhausted his administrative remedies with the MDOC, Whitlock filed a complaint in the Circuit Court of Rankin County against MDOC officers Ladner, Brooks, and Myers. Neither MDOC nor Ladner, Brooks, or Myers was properly served with process.

¶ 6. Whitlock filed a pro se “motion for entry of default” pursuant to Mississippi Rule of Civil Procedure 55. Thereafter, the attorney - general filed a response to Whitlock’s complaint on behalf of Ladner, Brooks, and Myers.

¶ 7. The circuit court ordered MDOC to respond “relative to whether MDOC’s decision was supported by substantial. evidence, was not arbitrary or capricious, was within the scope and powers of MDOC[,] and did not violate the constitutional rights of [Whitlock].” The circuit court further ordered MDOC to include a true and correct legible copy of file documents from the Central Mississippi Correctional Facility. MDOC subsequently filed an amended response, along with the requested documents.

¶ 8. On March 24, 2016, the circuit court found “that MDOC’s decision was supported ' by substantial evidence, was not arbitrary or capricious, was within the scope and powers of MDOC[,] and did not violate the constitutional rights of [Whit-lock].” As a result, the circuit court affirmed the decision of the MDOC and dismissed Whitlock’s complaint.

¶ 9. Whitlock now appeals and argues: (1) the circuit court erred in failing to enter a default judgment, (2) he was denied due .process under the Fourteenth Amendment, and (3) the circuit court erred in stating that the MDOC’s' decision was supported by substantial evidence and was not arbitrary and capricious.

STANDARD OF REVIEW

¶ 10. “The decision of an administrative agency shall not be disturbed unless unsupported by substantial evidence; arbitrary or capricious; beyond the agency’s scope or powers; or violative of the constitutional or statutory rights of the aggrieved party.” Taylor v. Miss. Dep’t of Corr., 148 So.3d 32, 34 (¶ 7) (Miss. Ct. App. 2014). “There is a rebuttable presumption which favors the agency’s decision, and the challenging party has the burden of proving the contrary.” Id.

ANALYSIS

I. Whether the circuit court erred in failing to enter a default judgment.

¶ 11. Whitlock first argues that “the [circuit] court’s failure to enter default was error and must be reversed as a matter of law.” We disagree. Pursuant to Mississippi Rule of Civil Procedure 4(d)(5), service of process upon the State of Mississippi or any one of its departments, officers, or institutions shall be made by delivering a copy of the summons and complaint to the attorney general of the State of Mississippi. The record shows AVhitlock failed to properly serve MDOC, Ladner, Brooks, and Myers pursuant to Rule 4(d)(5). In fact, there is no evidence in the record that the attorney general was ever served with process on behalf of MDOC, Ladner, Brooks, and Myers.

¶ 12. Although the record indicates Lad-ner, Brooks, and Myers were personally served with process pursuant to Mississippi Rule of Civil Procedure 4(d)(1)(A), the complaint does not allege Ladner, Brooks, or Myers acted in their individual capacities. Instead, the complaint alleges Lad-ner, Brooks, and Myers, as employees and officers of the MDOC, violated certain rules and procedures.

¶ 13. Before a default judgment can be entered, the circuit court must have jurisdiction over-the party against whom the judgment is sought, which means the party must have been effectively served with process. BB Buggies, Inc. v. Leon, 150 So.3d 90, 95 (¶ 6) (Miss. 2014). Because Whitlock failed to properly serve MDOC, Ladner, Brooks, or Myers, the circuit court lacked jurisdiction and the authority to enter a default judgment. Thus, we find this issue is without merit.

II. Whether Whitlock was denied due process.

¶ 14. Whitlock next argues he was denied his constitutionally protected right to due process under the Fourteenth Amendment. “A due process violation occurs where a party is not allowed a full and complete hearing before being deprived of life, liberty or property.” Brady v. Hollins, 192 So.3d 1066, 1068 (¶ 8) (Miss. Ct. App. 2016) (quoting Vaughn v. Vaughn, 56 So.3d 1283, 1287 (¶ 13) (Miss. Ct. App. 2011)). “In order to have a valid procedural or substantive due-process claim, the claimant must show that he ‘has been deprived by the government of a liberty or property interest; otherwise, no right to due process can accrue.’” Id. at 1069 (¶ 8) (quoting Suddith v. Univ. of S. Miss., 977 So.2d 1158, 1170 (¶ 19) (Miss. Ct. App. 2007)).

¶ 15. Whitlock first claims his reclassification to the cellular-telephone-management housing unit constitutes a deprivation of a protected liberty interest. However, a prisoner has no liberty interest in the classification he is assigned unless the classification affects the length of the prison sentence or “impose[s] an atypical and significant hardship in relation to the ordinary incidents of prison life.” Carson v. Hargett, 689 So.2d 753, 755 (Miss. 1996).

¶ 16, Whitlock’s classification in the cellular-telephone-management housing unit did not affect the length of his prison sentence, nor did it impose an atypical or significant hardship in. relation to the ordinary incidents of prison life. Instead, Whit-lock lost privileges.on a temporary basis. “[A] prisoner’s temporary loss of privileges [is] ‘merely a change in the condition of his confinement and [does] not implicate due process concerns.’” Brady, 192 So.3d at 1069 (¶ 8) (quoting Mixon v. Enlers, 90 So.3d 635, 637 (¶ 6) (Miss. Ct. App. 2012)).

¶ 17. Upon review, we do not find Whit-lock’s reclassification in the cellular-telephone-management housing unit or his temporary loss of privileges constitutes a deprivation of a liberty or property interest. Accordingly, Whitlock’s due-process claim fails.

¶ 18. Whitlock further claims that the MDOC violated various disciplinary procedures. We find Whitlock’s claim is. merit-less. Nevertheless, we separately address each of the alleged violations,

a.The RVR .did not include the date of the alleged incident.

¶ 19. Whitlock asserts Officer Myers did not include the date of the alleged incident, “therefore making the RVR incomplete.” However, the RVR was prepared shortly after the incident occurred and includes the date of the incident, June 28, 2015.

b.Indication was not made on the RVR that Whitlock was placed in administrative segregation.

¶ 20. On June 29, 2015, at approximately 5:00 p.m., Whitlock was ordered to be placed in administrative segregation. The RVR was prepared June 28, 2015. Thus, the RVR does not -indicate Whitlock’s placement in segregation, since it was prepared prior to the MDOO’s decision to place Whitlock in segregation.

¶ 21. Regardless, the detention notice clearly shows Whitlock was notified June 29, 2015, at 8:30 p.m. of the MDOC’s decision to place him in administrative segregation. Whitlock’s signature appears on the detention notice. Thus,- Whitlock had notice of the MDOC’s decision to place him in segregation. Moreover, the 'disciplinary hearing was held shortly thereafter on July 2, 2015.

c. Whitlock was not afforded the opportunity to present witnesses or documentary evidence during the disciplinary hearing.

¶22-. According to the RVR, Whitlock requested fellow inmates Larry Thomas and Charles Collier as witnesses. Neither Thomas nor Collier requested or agreed to appear at the disciplinary hearing on behalf of Whitlock. However, the record shows that during the course of the investigation, written statements were obtained from both Thomas and Collier, As noted on the RVR, the hearing officer considered the evidence obtained during the course of the investigation. -. .

d. Whitlock was placed in a cellular-tele-phonermanagement housing unit and ! was not found in possession of cellular telephones, accessories, or components. -

¶ 23. The record indicates Officer Myers observed Whitlock bring a package into the kitchen arid hide the package in ’ a closet. The package was later searched and contained cell phones and cell-phone chargers. Thus, the record supports a finding that Whitlock was in possession of cellular telephones, accessories, or components, which warrants placement in the cellular-telephone-management • housing unit.

III. Whether the circuit court erred in finding that the MDOC’s decision was supported by substantial evidence and was not arbitrary or capricious.

¶ 24. Whitlock received án RVR for the possession of major contraband and was provided notice of the disciplinary hearing. Whitlock was present at the hearing and gave a statement to the hearing officer. The hearing officer considered the evidence, as well as the RVR, the investigation, and the incident report.

¶25. We find substantial evidence supports the MDOC’s decision that Whit-lock possessed major contraband in violation of the MDOC’s policy, Whitlock has failed to provide any evidence that the MDOC’s actions were arbitrary or capricious.

CONCLUSION

¶ 26. Upon review, we find the MDOC’s decision is supported by substantial evidence, was not arbitrary or capricious, was not beyond the MDOC’s scope or powers, and did not violate Whitlock’s constitutional rights. Thus, we affirm the circuit court’s dismissal of Whitlock’s administrative-remedy complaint.

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

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

WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . There is no indication in the record that the motion was addressed or ruled on by the circuit court.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    In the MATTER OF C.T., a Minor, Jason Taylor and Jessica Timmons: Jason K. Taylor, Appellant v. Jessica Timmons, Appellee
    NO. 2015-CA-01552-COA
    Court of Appeals of Mississippi.
    06/06/2017
    Rehearing Denied October 17, 2017

      ATTORNEYS FOR APPELLANT: M: JUDITH BARNETT, JEANINE M. CA-RAFELLO
    ATTORNEY FOR APPELLEE: JESSICA TIMMONS (PRO SE)
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, Jj,
   LEE, C.J.,

FOR THE COURT:

¶ 1. Jason Taylor appeals the decision of the chancery court, alleging that the chancellor erred when he (1) found that Jessica Timmons was entitled to decide which school the child would attend; (2) modified his child-support obligation; (3) modified the visitation schedule; (4) found him in contempt for failure to make timely child-support payments and failed, to find Tim-mojrs in contempt for failure to notify him of her new address; and (5) assessed him with $2,000 in attorney’s fees. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Taylor and Timmons had a child in 2011 but were never married. In January 2013, Taylor and Timmons filed a- joint complaint for determination of paternity, child custody, and other relief, and the Rankin County Chancery Court rendered an agreed order pursuant to their joint complaint. As it relates to this appeal, the agreed order specified that: both parties shared joint legal custody of the minor child; Timmons was awarded primary physical custody, and Taylor was awarded visitation; Taylor was to pay Timmons child support in the amount of $300 per month due on the first day of each and every month; and Taylor was also to pay daycare and after-school expenses, public and/or private school tuition, for the child beginning in first grade, all extracurricular activity expenses, one-half of uninsured medical expenses, and also to maintain health insurance for the child.

¶ 3. In August 2013, the Mississippi Department of Human Services (DHS) filed a petition on behalf of Timmons to modify the final judgment, seeking an upward modification of Taylor’s child-support'obligation. Taylor filed an answer and counter-complaint, seeking a modification of the agreed order to award him physical custody of the child. Then, in April 2014, Tim-mons, represented pro bono by an attorney volunteering through Mission First’s Legal Aid Office, filed a petition for a judgment of. contempt, alleging that Taylor had failed to pay child support and also requesting an award of attorney’s fees. Taylor filed his answer and later filed a petition for litigation accountability, which alleged he was never in arrears. Finally, in October 2014, Taylor filed a petition for contempt, alleging that Timmons had denied him his visitation rights and seeking an award of attorney’s fees.

¶ 4. The chancellor heard the matter on the above pleadings on November 17, 2014, September 16, 2015, and September 17, 2015. At the close of the hearing, the chancellor made his findings, which were reflected in the final. judgment issued in October 2015. From this judgment, Taylor now appeals.

STANDARD OF REVIEW

¶ 5. Timmons did not file a brief in response to Taylor’s appeal. Usually, “failure of ah appellee to file a brief is tantamount to confession of error and will be accepted as such .;..” Rogillio v. Rogillio, 101 So.3d 150, 153 (¶ 12) (Miss. 2012) (quoting Dethlefs v. Beau Maison Dev. Corp., 458 So.2d 714, 717 (Miss. 1984)). However, this Court has previously held that “when matters on appeal touch the welfare of a minor child, then regardless of whether a party filed a brief, this Court “will reach the merits of the issues in this appeal, though we proceed unaided by a brief from the appellee.’ ” Self v. Lewis, 64 So.3d 578, 584 (¶ 28) (Miss. Ct. App. 2011) (quoting S.S. v. S.H., 44 So.3d 1054, 1056 (¶ 8) (Miss. Ct. App. 2010)); see also Barber v. Barber, 608 So.2d 1338, 1340 (Miss. 1992). Accordingly, in the instant custody case, we reach the merits of the case and apply our familiar standard of review as stated below.

¶ 6. Our standard of review in domestic-relations cases is limited. Bowen v. Bowen, 107 So.3d 166, 169 (¶ 6) (Miss. Ct. App. 2012) (citing Arrington v. Arrington, 80 So.3d 160, 164 (¶ 11) (Miss. Ct. App. 2012)). “The findings of a chancellor will not be disturbed when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous, or an erroneous legal standard was applied.” Id. (internal quotation marks omitted). “[W]e review de novo the chancellor’s interpretation and application of the .law.” Seale v. Seale, 150 So.3d 987, 989 (¶ 5) (Miss. Ct. App. 2014) (citing Singley v. Singley, 846 So.2d 1004, 1006 (¶ 5) (Miss. 2002)).

DISCUSSION

I. Decision Regarding Child’s Education

¶ 7. Taylor argues that the chancellor erred when he found that although Timmons and Taylor shared joint legal custody, Timmons—as the custodial parent—was entitled to make decisions regarding where the child would attend school. At trial, the chancellor noted that Taylor felt strongly that the child should attend a certain private school. The chancellor also noted that Taylor was given input to voice his position, but that the ultimate decision in regard to where the child would attend school belonged to Tim-mons as the custodial parent. For support, Taylor cites Mississippi Code Annotated section 93-5-24(5)(e) (Rev. 2013), which states in relevant part:'

“joint legal custody” means that the parents or parties share the decision-making rights, the responsibilities and the authority relating to the health, education and welfare of a child. An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with one another in the exercise of decision-making rights, responsibilities and authority.

¶8. Taylor is correct that joint legdl custody imparts shared decision-making rights relating to the child’s' education. However, Taylor fails to note that section 93-5-24(5)(e) also provides that in cases of joint physical and legal custody, “unless allocated, apportioned or decreed, the parents or parties shall confer with one another -in the exercise of decision-making rights, responsibilities and authority.” (Emphasis added). Here, the chancellor allocated to Timmons the “discretion to make a determination about where the child goes to school.”

¶ 9. “Mississippi statutory law and jurisprudence recognize that the chancellor may indeed allocate decision-making and duties to each parent sharing joint legal custody.” Carpenter v. Lyles, 120 So.3d 1031, 1037 (¶ 22) (Miss. Ct. App. 2013) (citing Goudelock v. Goudelock, 104 So.3d 158, 165 (¶¶ 29-30) (Miss. Ct. App. 2012); Purviance v. Burgess, 980 So.2d 308, 312-13 (¶¶ 18-20) (Miss. Ct. App. 2007)). “In cases where decision[-]making was apportioned, courts have determined that joint legal custody, including the communication required in support of such relationship, requires no moment-to-moment input or veto power over every large and small decision on child rearing .... ” Id. Mississippi caselaw also recognizes that “the custodial parent may determine the child’s upbringing, including his education and health and dental care. Such discretion is inherent in custody. It is vested in the custodial [parent.]” Clements v. Young, 481 So.2d 263, 267 (Miss. 1985); see also Ayers v. Ayers, 734 So.2d 213, 217 (¶ 20) (Miss. Ct. App. 1999).

¶ 10. Here, the chancellor was well within his discretion to allocate this decision-making to one parent. Further, our case-law favors the custodial parent having the discretion for such a decision. Accordingly, we do not find that the chancellor abused his discretion in allocating to Timmons the decision-making authority in regard to where the child attends school. Therefore, this issue is without merit.

II. Child-Support Modification

¶ 11. Taylor argues that the chancellor erred when he modified Taylor’s child-support obligation from the agreed order' of $300 per month to $1,500 per month. Specifically, Taylor argues that the chancellor’s deviation from the statutory guidelines lacks adequate findings.

¶ 12. “A [chancellor] may modify a child-support award if there has been ‘a substantial or material change in the circumstances of one or more of the interested parties: the father, the mother, and the child or children, arising subsequent to the entry of the decree to be modified.’ ” Garcia v. Garcia, 97 So.3d 109, 112 (¶ 12) (Miss. Ct. App. 2012) (quoting Edmonds v. Edmonds, 935 So.2d 980, 987 (¶ 19) (Miss. 2006)). Mississippi Code Annotated section 43-19-101(1) (Rev. 2015) sets forth the guidelines for calculating child support. The guidelines establish a rebuttable presumption that for one child, the child-support award should be fourteen percent of the noncustodial parent’s adjusted gross income. Id. “There is a rebuttable presumption the guideline amount is correct both in determining the amount of the initial award and in modifying that award.” Evans v. Evans, 75 So.3d 1083, 1090 (¶ 29) (Miss. Ct. App. 2011). “To deviate from the presumptively correct amount, the chancellor must make ‘a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in [Mississippi Code Annotated section] 43-19-103.’” Evans, 75 So.3d at 1090 (¶ 30) (quoting Miss. Code Ann. § 43-19-101(2) (Rev. 2009)).

¶ 13. In the instant case, the chancellor found that a material change in circumstances had occurred, justifying the child-support modification—namely: an increase in Taylor’s income, the increased age of the child, and the total' available assets. The chancellor then ordered that the child support be increased from $300 to $1,500 per month. Finding that Taylor’s adjusted net income exceeded $232,641, the chancellor noted that a strict application of section 43-19-101(1) would require Taylor to pay approximately $2,700 per month. However, the chancellor found that a strict application would' be “unjust and inappropriate after considering all the facts and circumstances,” which included Taylor’s payment of health and dental insurance, all uncovered medical and dental expenses, extracurricular activities, and potential future private-school tuition. In view of the facts and circumstances in the record, the chancellor provided sufficient justification for modifying Taylor’s monthly child-support payments and deviating from the statutory guidelines. This issue is without merit.

III. Modification of Visitation Schedule

¶ 14. Taylor argues that the chancellor abused his discretion when he modified the visitation schedule. “A chancellor may modify visitation provisions if there is a showing that the prior decree for reasonable visitation is not working.” Gilliland v. Gilliland, 984 So.2d 364, 370 (¶ 22) (Miss. Ct. App. 2008) (citing Cox v. Moulds, 490 So.2d 866, 869 (Miss. 1986)). “This Court will affirm such a modification if the decision was supported by substantial evidence.” Id. (citing Bratcher v. Surrette, 848 So.2d 893, 897 (¶ 21) (Miss. Ct. App. 2003)).

¶ 15. Per the 2013 agreed order,- Taylor was awarded

visitation with the minor child every other week from the time that school recesses on Thursday (or at 3:00 p.m. when school is not in session) and ending on the following Monday morning at which time Jason Taylor shall return the child to school/daycare (or to Jessica Timmons when school is not in session and if daycare is closed).

The agreed order also awarded Taylor visitation “for two (2) periods of two (2) weeks each during the [s]ummer every year.” The chancellor amended Taylor’s weekend-visitation schedule to “the first, third, and fifth weekends of each month from 6 o’clock p.m. on Friday to 6 o’clock p.m. on Sunday.” The chancellor also awarded Taylor summer visitation “for the [first] two weeks in June beginning on the [first] Friday in June and the last two weeks in July ending on the last Friday[,] from 6:00 p.m. until 6:00 p.m.”

¶ 16. Taylor argues that the chancellor’s modification was an abuse of discretion because neither party requested the modification or presented evidence that the visitation schedule was not working. However, the record is replete with evidence that the visitation schedule was not working. Though neither party petitioned the chancery court for modification of visitation, Taylor did file a petition for contempt, asserting: that he was not getting visitation with the child. Taylor also testified extensively that he was unable to visit with the child. Timmons testified that she had not denied Taylor visitation, but that she had begged Taylor to visit with the child. The chancellor also noted that there was some confusion between the parties regarding the details of visitation under the agreed order. As such, there was' a clear showing that the prior visitation order was not working, and the chancellor’s finding that a modification was necessary was supported by substantial evidence. Given the chancellor’s “broad discretion to determine the specific times for visitation,” the chancellor did not abuse his discretion in modifying the visitation schedule. Moreland v. Spears, 187 So.3d 661, 666 (¶ 17) (Miss. Ct. App. 2016) (citation omitted). This issue is without merit.

IY. Findings of Contempt

¶ 17. Taylor argues the chancellor erred when he found him in contempt for being behind in child-support payments totaling $1,969,23. “Enforcing compliance with a court order is a.matter of civil contempt.” Evans, 75 So.3d at 1087 (¶ 14) (citing Dennis v. Dennis, 824 So.2d 604, 608 (¶ 8) (Miss. 2002)). “Contempt matters are committed to the substantial discretion of the trial court[,] which, by institutional circumstance and both temporal and visual proximity, is infinitely more competent to decide the matter than are we.” Riley v. Riley, 196 So.3d 1159, 1162 (¶ 9) (Miss. Ct. App. 2016) (quoting Williamson v. Williamson, 81 So.3d 262, 266 (¶ 11) (Miss. Ct. App. 2012)). “This Court will not reverse a contempt .citation where the [chancellor’s] findings are supported by substantial credible evidence.” Id. (quoting Witters v. Witters, 864 So.2d 999, 1004 (¶ 18) (Miss. Ct. App. 2004)).

¶ 18. The 2013 agreed order stated that Taylor’s child-support obligation of $300 per month was “to be. due and paid on the [first] day-of each and every month.” .Tim-mons testified that she was not receiving payments, so she then went ,to DHS- to enforce the child-support order. DHS, on behalf of Timmons, presented substantial credible evidence that Taylor had not paid several months of child support, as required by the agreed order. Though Taylor presented evidence of several direct payments made to Timmons, they were made after the agreed order’s due date. As such, the record is. clear that Taylor was not in compliance with the agreed order at the time the petition for-contempt was. filed. Therefore, the chancellor’s finding of contempt based upon untimely payments was not erroneous. Furthermore,, the chancellor’s finding of contempt was followed by a finding that Taylor had purged himself of contempt. This issue is without merit.

¶ 19. Taylor also argues that the chancellor erred by ’ not finding 'Timmons in contempt for violating- Uniform Chancery Court Rule 8.06, which requires each party to notify the chancery clerk and the other party of a change in address. Tim-mons admitted that she.moved to Atlanta, Georgia, and. did not notify Taylor of her address. The chancellor found that although Timmons did not notify Taylor of a change in address, her actions did not rise to the level of contumacious contempt because she- was unaware of the requirement and .was-not represented by a. lawyer at the time. The repord also indicates she was only in Georgia - for a couple of weeks before - she moved back, to Mississippi. Again, given the substantial discretion of the trial- court to determine contempt matters, we find no error. This issue is without merit.

V. Attorney’s Fees.

¶ 20. Taylor argues-that the chancellor erred when he awarded $2,000 in attorney’s fees to Timmons because Tim-mons was represented by an attorney volunteering pro bono through Mission First’s Legal Aid Office. Taylor further argues that the chancellor’s award of attorney’s fees was not supported' by an itemized bill, and that the chancellor did not delineate' how much of the award was attributable to the modification aspect of the litigation or discuss the McKee factors.

¶ 21. In the instant case, the chancellor explicitly stated that the attorney’s fees were not awarded in relation to the modification proceeding but the contempt action. “When a party is held in contempt for violating a valid judgment of the court, then attorney’s fees should be awarded to the party that has been forced to seek the court’s enforcement of its own judgment.” Riley, 196 So.3d at 1163 (¶ 19) (quoting Wilson v. Stewart, 171 So.3d 522, 529 (¶ 21) (Miss. Ct. App. 2014)). As the chancellor properly noted, it is not necessary to establish the McKee factors in a contempt action. Id. at 1165 (¶ 28) (citing Howard v. Howard, 968 So.2d 961, 979 (¶ 48) (Miss. Ct. App. 2007)). Furthermore, Mississippi Code Annotated section 9-1-41 (Rev. 2014) provides:

In any action in which a court is authorized to award reasonable attorneys’ fees, the court shall not require the party seeking such fees to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court’s own opinion based on experience and observation; provided however, a party may, in its discretion, place before the court other evidence as to .the reasonableness of the amount of the award, and the court .may consider such evidence in making the award.

¶22. Here, the chancellor determined that the award of $2,000 in attorney’s fees to Timmons was a reasonable amount based on his experience, observation, and the information before him, i.e., the pleadings that requested the attorney’s fees and a three-day hearing that required the presence of her attorney. This issue is also without merit.

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

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

      . McKee v. McKee, 418 So.2d 764 (Miss. 1982).


text:
    Patrick BRADSHAW, Appellant v. Erica MOORE, Appellee
    NO. 2016-CA-00525-COA
    Court of Appeals of Mississippi.
    06/13/2017
    Rehearing Denied October 17, 2017

      ATTORNEY FOR APPELLANT: BYRON RUSSELL MOBLEY
    ATTORNEYS FOR APPELLEE: A.E. (RUSTY) HARLOW JR., KATHI CRESTMAN WILSON
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. Patrick Bradshaw appeals the chancellor’s order awarding sole legal and physical custody of L.M., a minor child, to Erica Moore. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Erica had a child, L.M., born in November 2009. Although Erica knew Patrick was L.M.’s father, Patrick was not named on L.M.’s birth certificate. Erica and Patrick were never married or in a relationship. At all times since her birth, L.M. has lived with Erica and with her grandparents—the Santuccis—Erica’s mother and stepfather.

¶ 3. Patrick, who lived in Florida at the time, first learned he was L.M.’s father on April 17, 2010, after a telephone conversation with Erica. Almost a year later, in March 2011, Patrick paid for Erica, Mrs. Santucci, and L.M. to travel to Florida for Patrick to meet L.M. In July 2011, Patrick saw L.M. again at a family wedding. Prior to his petition for custody, these two occasions were the only instances of contact Patrick had with L.M. Though Patrick testified that he knew he was L.M.’s father as early as 2011, he declined all invitations to visit with L.M. at her home and never sent any financial support for L.M.

¶ 4. In August 2011, Erica applied for public benefits, and as a result, the Mississippi Department of Human Services (DHS) initiated a petition to determine paternity against Patrick. Patrick consented to a DNA test, but the test was never conducted due to an administrative error at DHS. Erica attempted to reopen the petition for paternity against Patrick in 2013, but DHS could not find a valid address to contact Patrick. As such, the petition for paternity against Patrick was again halted.

¶ 5. In March 2014, Erica and the San-tuccis met with an attorney to transfer sole physical and legal custody of L.M. to the Santuccis for financial reasons. Both parties testified that they believed that Erica could have physical and legal custody returned to her at any point and that the parties understood the arrangement to be temporary. The custody petition filed by the Santuccis declared the identity of L.M.’s natural father to be unknown. The Santuccis testified they did not include Patrick because he was not on the birth certificate and was not a part of L.M.’s life, and because they had ■ difficulty locating him at the time they filed their petition for custody. Thus, Patrick never received notice of the Santuccis’ petition for custody. Erica did not contest the Santuccis’ petition for custody, and on April 2, 2014, the Santuccis were granted legal and physical custody of L.M. Despite the change in physical and legal custody, Erica, L.M., and the Santuccis all continued to live togethei’, and Erica continued to provide for L.M.’s needs.

¶ 6. Meanwhile, the petition for paternity against Patrick was pending at DHS. In September 2014, Patrick’s DNA test results confirmed that he was L.M.’s natural father, and so required him to provide' child support for L.M. On October 22, 2014, Patrick brought a complaint for custody against Erica. The chancery court held a hearing on the matter and set aside the previous order, which had granted custody to the Santuccis, finding that Patrick was deprived of due process. The Santuc-cis and Erica jointly answered Patrick’s complaint for custody, arguing that it should be denied. Patrick counterclaimed for custody against the Santuccis. In May 2015, the court issued a temporary order granting the- Santuccis custody of L.M. and Patrick visitation rights until trial.

¶7. On Februrary 22, 2016, trial took place. There was extensive testimony from the Santuccis, Erica, and Patrick regarding the history among the parties. The Santuccis testified that Erica was a fit, proper, and suitable person to have custody of L.M., and so they withdrew their petition for custody at trial. The Court then dismissed the Santuccis’ original petition for custody and replaced Erica as the original plaintiff against Patrick regarding custody of L.M. The chancellor conducted the initial custody .determination between the two natural parents and awarded Erica sole physical and legal custody of L.M., subject to Patrick’s reasonable visitation rights. Patrick now appeals.

STANDARD OF REVIEW

¶ 8. This Court “employs a limited standard of review in child-custody cases and will ‘affirm findings of fact by chancellors when they are supported by substantial evidence unless the chancellor abused [his] discretion, was manifestly wrong [or] clearly erroneous!,] or [applied] an erroneous legal standard!.]’ ” Carter v. Carter, 204 So.3d 747, 756 (¶ 37) (Miss. 2016) (quoting Borden v. Borden, 167 So.3d 238, 241 (¶ 4) (Miss. 2014)). “Further, this Court .., must defer to the chancellor’s findings of the facts, so long as they are supported by substantial evidence.” Randallson v. Green, 203 So.3d 1190, 1198 (¶ 36) (Miss. Ct. App. 2016) (citation omitted), “Legal questions are reviewed de novo.” Id. at 1195 (¶ 17).

DISCUSSION

Í. Petition for Custody

¶ 9; In his first issue, Patrick argues that because Erica did not petition the court for custody of L.M., the chancellor erred in awarding her custody, However, the record indicates that when the chancellor dismissed the Santuccis’ custody petition, he replaced Erica as the original plaintiff against Patrick for custody of L.M. Additionally, child-custody cases are Rule 81 matters that , do not require responsive pleadings. M.R.C.P. 81(d)(4). Here, the chancellor correctly noted that parties in Rule 81 matters are merely required to appear and defend. The chancellor then made an initial custody determination between the two natural parents, Patrick and Erica. The chancellor did not err in awarding Erica custody simply because she did not initially petition for custody, but was later substituted as the original plaintiff against Patrick in the Santuccis’ petition for custody.

¶ 10. Patrick also argues that the chancellor’s ruling resulted in unfair surprise, claiming he believed he was litigating custody solely against the Santuccis; rather than against Erica. However, the record demonstrates that Patrick knew Erica was a party to the litigation from the beginning. In fact, Patrick’s original complaint for custody was filed against Erica, not the Santuccis. Additionally, Erica joined the Santuccis in their counterclaim against Patrick. Once the Santuccis withdrew their petition for custody, the chancellor named Erica as the original plaintiff, and she was the only party remaining in the litigation other than Patrick. Patrick proceeded to litigate the custody issue and did not object to the chancellor’s dismissal of the Santuccis or their substitution with Erica as the petitioner. As such, the award of custody to Erica could not have constituted unfair surprise. This issue is .without merit.

II. Natural-Parent Presumption

¶ 11. Patrick also argues. that the chancellor erred in awarding Erica sole custody of L.M. because Erica waived her natural-parent presumption when she consented to the Santuccis’ petition for custody of L.M. Patrick argues that, as a result, Erica’s claim for custody of L.M. was inferior to his.

¶ 12. For support, Patrick cites to Grant v. Martin, 757 So.2d 264, 266 (¶ 10) (Miss. 2000), in which the Mississippi Supreme Court held that “a natural parent who voluntarily relinquishes custody of a minor child ... has forfeited the right to rely .on the existing natural[-]parent presumption.” However, the holding in Grant is not applicable to the instant case. Grant discusses a natural parent who relinquished custody to a third party, then later attempted to reclaim the • natural-parent presumption against that third party. The natural-parent presumption is a doctrine that “precludes a court from granting custody to a ‘third party’ over the objection of a natural parent absent clear and convincing evidence that the natural parent has abandoned or deserted the child, has engaged in immoral conduct harmful to the child, or is an unfit parent.” Welton v. Westmoreland, 180 So.3d 738, 744 (¶ 21) (Miss. Ct. App. 2015).

¶ 13. Here, the issue is an initial custody determination between two natural parents—not between a natural parent and a third party. Furthermore, the order granting'custody to the Santuccis, which Patrick claims constituted a voluntarily relinquishment of parental rights akin to the facts in Grant, was set aside for lack of notice to Patrick. Thus, the chancellor correctly found that Grant was not applicable, and Erica has not—as Patrick contends—forfeited any natural-parent presumption. The presumption simply does not apply in this case.

¶ 14. Ultimately, the foremost consideration in child-custody cases is the best interest and welfare of the child. Lacoste v. Lacoste, 197 So.3d 897, 902 (¶ 9) (Miss. Ct. App. 2016). The chancellor determined that L.M.’s best interests would be served by awarding Erica custody. The record shows that the chancellor’s findings were supported by substantial credible evidence. Accordingly, the chancellor did not err in awarding custody to Erica.

¶ 15. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . To protect the minor's privacy, we have used initials in place of the minor’s name.


author: FAIR, J.,

text:
    Nicholas DEMORST a/k/a Nicholas Marcel Demorst a/k/a Nicholas M. Demorst a/k/a Nicholas De Morst a/k/a Marcel Denegal a/k/a LA, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01900-COA
    Court of Appeals of Mississippi.
    06/20/2017
    Rehearing Denied October 24, 2017

      ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, PHILLIP BROADHEAD
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA WAKELAND BYRD

      BEFORE GRIFFIS, P.J., FAIR AND GREENLEE, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. Hunter Miller was shot and killed during a robbery attempt while trying' to illegally' buy prescription narcotics from a friend of a friend (of a friend, of a friend). Nicholas ' Demorst was linked to the botched - drug deal by phone records, and he was subsequently-identified as the killer by the other participants in the abortivé deal. Demorst was convicted of capital murder, and on appeal he contends he received constitutionally ineffective assistance of counsel and that the trial court committed plain error in allowing into evidence recordings of phone calls Demorst made from jail, as well as his identification as the shooter by the two eyewitnesses. We find no error and affirm, \ ■

FACTS

¶ 2. Miller was addicted to prescription pain-medication, and his supply had run out. Oh January 14, 2014, he' encountered an acquaintance he knew to also be addicted to pain killers. Miller asked whether she knew someone who could sell him the particular pills he preferred, and the acquaintance put him in touch with her supplier,- Kenneth Knox. Knox did not have the pills Miller wanted, but he said he would try to find them. Knox asked around, and his friend Freddie Lawrence put him in touch with another man, who Lawrence called “L.A.” (the man identified himself to Knox as “T.T.”). He had the pills and would sell them to Miller. For arranging the deal, Knox would be paid a small amount of marijuana (or, depending on the testimony, synthetic marijuana). Miller’s friend, Collin Cooper, agreed to come along. A meeting was arranged, but the dealer did not show. Later that same day, however, the various parties to the deal resumed contact and agreed to meet near University Street in Gautier.

¶ 3. Miller, Knox, and Cooper drove together to University Street around 8 p.m., when it was dark outside. Between them, Miller and Cooper were holding more than a thousand dollars in cash for the purchase. They had difficulty locating the dealer, so Knox called him and was told the dealer was standing in front of one of the houses on University Street and that they had already passed him. They turned around and subsequently encountered an African-American man standing in front of a vehicle in a driveway on University Street. Knox saw the man while he was still speaking to him on the phone. Cooper later said he saw another man inside the vehicle, though Knox did not. The man standing outside told them to pull into the driveway, and Miller complied. Knox got out and spoke .to the man, who asked whether they had the money and how many pills they wanted to buy. Knox asked to see the pills first, which prompted the man to draw a pistol. Knox warned Miller and Cooper that it was a robbery, and he fled on foot. The man attempted to take Miller’s money as Miller put the vehicle into reverse and backed out of the driveway. The man pursued, and as Miller began driving forward, the man.shot Miller through the driver’s side window. Mortally wounded, Miller lost control of the vehicle, and it crashed into a fence. The shooter fled.

¶4. Cooper got out of the vehicle and initially denied being present during the shooting. Cooper explained at trial that he had had prior run-ins with the law and was concerned that his involvement would lead to him being imprisoned. Eventually, both Cooper and Knox identified Demorst as the shooter. Knox testified at trial that he had previously met Demorst at some point in tfye past, but had not realized it at the time of the-drug deal. Phone records indicated that a cell phone in Demorst’s name had been in frequent contact with Knox and Lawrence throughout the day of the murder, including calls with Knox moments before the shooting and numerous calls with Lawrence less than ten minutes later, Phone records also corroborated Knox’s testimony that Demorst had called him after the murder and warned him not to speak to 'the police. Finally, the State introduced jailhouse recordings of phone calls involving Demorst from the week or so after he was arrested. In the recordings, Demorst appeared to rehearse an alibi defense with his girlfriend and suggested she pay a man to provide him with another alibi, Demorst also mentioned a large loss he had incurred shortly before being arrested, apparently from gambling, which he referred to as his “downfall.”

¶ 5. Demorst did not testify at trial, but he did testify before the grand jury and gave an interview to police investigators, and these were entered into evidence at the • trial. Demorst denied not only the murder, but the drug deal as well. Of the participants, Demorst claimed only to know Lawrence, and not well. Demorst claimed to have been with a mechanic or his “friend girl” (who. later became his girlfriend) at the time of the murder. At trial, the defense produced the girlfriend’s mother,- who testified that she had seen Demorst at her home, some distance from the shooting, a< short time before it happened. Demorst also .claimed that he used a different cell phone from the one in his name that was linked to the deal, and— somewhat inconsistently—that his phone had been broken at the time.

¶ 6. Demorst was convicted of capital murder, and he appeals. Phillip W. Broad-head, clinical professor and director of the University of Mississippi School of Law Criminal Appeals Clinic, was appointed as Demorst’s appellate counsel. Third-year law students-under Professor Broadhead’s supervision were appointed as special counsel pursuant to the Mississippi Law Student Limited Practice Rule. Darían R. Etienne and Reginald Lewis assisted in the preparation of Demorst’s brief, and Kaeley N. Gemmill and William H. Holley presented oral argument.

DISCUSSION

1. Witness Identifications—Plain Error

¶ 7. Demorst contends that the trial court. committed plain error in failing to sua sponte suppress the in-court and out-of-court identifications of Demorst as the shooter by the two eyewitnesses, Knox and Cooper, based on what Demorst contends were overly suggestive identification procedures. The record reflects that De-morst made no motion to suppress the identifications and no contemporaneous objections to the in-court identifications— in fact, Demorst was the one who brought out .testimony regarding Knox’s somewhat equivocal out-of-court identification of him. “[Ijssues not presented to the trial court for lack of contemporaneous objection are procedurally barred, and error, if any, is waived.” Goff v. State, 14 So.3d 625, 655 (¶ 118) (Miss. 2009) (citation omitted).

¶ 8. Demorst can proceed on this issue, if at all, only under a plain error standard, which our courts will allow “only in unusual circumstances” to “prevent[ ] a manifest miscarriage of justice.” Id. (citation omitted). As the Mississippi Supreme Court has repeatedly explained, appellate courts will only find plain error in cases where “a defendant’s substantive or fundamental rights are affected.” Willie v. State, 204 So.3d 1268, 1279 (¶ 29) (Miss. 2016) (citation omitted). More precisely, the appellant must show that the trial court deviated from a legal rule, that the error is plain, clear, or obvious, and that the error prejudiced the outcome of the trial. Id.

¶ 9. At the outset, we note that this issue is one particularly unsuited for plain error review—-we are aware of no legal rule requiring a trial court to sua sponte suppress evidence. See Shaheed v. State, 205 So.3d 1105, 1112 (¶ 21) (Miss. Ct. App. 2016). Furthermore, the admissibility of identification evidence is a complicated, fact-intensive issue—requiring fact finding and weighing' of factors by the trial court. These findings can be made fairly only after both sides have had advance notice and an opportunity to present their full case as to the admissibility of the identifications.

¶ 10. Objections to the admissibility of identification evidence should be made in a motion to suppress. See United States v. Acox, 595 F.3d 729, 733 (7th Cir. 2010). Motions to. suppress evidence are generally required to be made in advance of trial, and the failure to do so without good cause has been held to be not only a procedural bar, but,a waiver of the issue precluding even plain error review. See id. at 730-31; Houston v. State, 887 So.2d 808, 812 (¶¶ 12-15) (Miss. Ct. App. 2004). The trial court in the instant case entered a scheduling order requiring motions to suppress to be filed by a certain date, in advance of trial, and Demorst did not file one.

¶ 11. Assuming for the sake of argument that the issue is still subject to plain error review, Demorst has failed to show plain error. As to Knox’s identification, he was initially presented with a photo array showing six individuals, but De-morst was not one of them. Knox picked a man named Laterrance Adams,' who was later determined to have been imprisoned at the time of the shooting. After Demorst was identified as a suspect, Knox was offered a second photo array, and he chose Demorst—though with the caveat that he was only seventy or eighty percent certain. Knox testified that he was later (he was not clear as to when) shown another photograph of Demorst from which he was able to confirm the identification.

¶ 12. Demorst further alleges that the officer who showed Knox the single photograph also made a statement confirming that Knox had made a correct tentative identification of the suspect and urging him to confirm it, apparently before Knox himself had confirmed the photograph was the killer with certainty. But the testimony, which was an affirmative response to an ambiguous, compound question on cross-examination, fails to support this claim. In fact, Knox subsequently made it clear that he was referring to the photograph of Demorst that appeared in the second array, and his full account of the presentation of the second photo array gives.no reason to suspect that police officers suggested he choose Demorst or confirmed his choice as being correct prior to presenting him the additional photograph.

¶ 13. In order to suppress the pretrial identification, the burden of proof would have been on Demorst to show, from the totality of the circumstances, that the identification was “so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification.” Stewart v. State, 131 So.3d 569, 572-73 (¶ 9) (Miss. 2014) (citation omitted). Even if we were to ignore the fact that Demorst himself introduced this evidence, the out-of-court identification by Knox is essentially moot because plain error requires prejudice to the outcome of the trial, and that could not be found if we were to uphold the in-court identification. See Willie, 204 So.3d at 1279 (¶ 29). To suppress the in-court identification, Demorst’s burden is even higher—Demorst would have to show that “the identification was so impermissi-bly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification.” Stewart, 131 So.3d at 573 (¶ 10) (citation omitted; emphasis in original). The court would then have to determine whether there was an independent, basis for the identification—whether it was reliable enough to be admissible despite the suggestiveness of the identification procedure. Id. at 572 (¶ 7). The trial court would look to five factors: “(1) the opportunity of the -witness to view the criminal at the time of the crime, (2) the witnesses] degree of attention, (3) the accuracy of the witness’s prior description of the -criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation.” Id. at (¶ 8) (citation omitted). If the identification were found to be reliable notwithstanding an imper-missibly suggestive procedure, its credibility and weight would be left to the jury. Kimbrough v. State, 379 So.2d 934, 936 (Miss. 1980).

¶ 14. Our courts have candidly acknowledged that this is a high burden for a defendant to meet, even when the issue is properly preserved; “in practice, Mississippi tends to place a heavy burden on defendants who are contesting the propriety of a pretrial identification procedure.” Corrothers v. State, 148 So.3d 278, 298 (¶ 38) (Miss. 2014).

¶ 15. While Demorst seems to fault the police for showing Knox a second photo array after he already picked someone from the first one, he presents no authority that, this procedure is proscribed. The first photo array did not contain Demorst’s photograph, as Demorst had not yet been identified as a suspect, and the man, Knox selected was determined to have been inr carcerated-at the time of the murder. De-morst cannot argue that the second array contained other suggestive elements because it was never entered into evidence or otherwise made a part of the record on appeal.

¶ 16. While we agree with De-morst that the presentation of a single photograph for identification is generally unduly suggestive, that is not what occurred here.- Knox was shown the additional .photograph only after picking Demorst from the second photo array, Knox admitted he was only seventy or eighty percent sure of the identification based on that photograph, and we are mindful that positive feedback from police officers can be suggestive in the sense that it may boost a witness’s confidence in his identification. But we cannot say that what occurred here was so suggestive that it precluded Knox from identifying Demorst in court—that, it “[gave] rise to a very substantial likelihood of irreparable misidentification.” Stewart, 131 So.3d at 673 (¶ 10). Certainly it is not so suggestive that we can call, it plain error. And even if we were to find .the procedure unduly suggestive, the five reliability . factors outlined above would support admitting the identification anyway: although it was dark, Knox got out of the car and spoke directly to the shooter; the shooter had Knox’s full attention prior to his drawing the pistol; Knox’s description of the shooter was generally consistent with Demorst’s appearance; ultimately, Knox was unequivocal in his identification of Demorst; and the length of time between the killing and Knox’s identification of Demorst was only a few days. As to the prior misidentification, “an earlier failure to identify, .or even a positive identification of a different suspect, does not require exclusion of an in-court or pretrial identification, . if otherwise, reliable.” Howard v. Bouchard, 405 F.3d 459, 484 (6th Cir. 2005).

¶ 17. Moreover, Demorst fails to meet another requirement of plain error—a showing that the alleged error affected the result of the case. See Willie, 204 So.3d at 1279 (¶ 29). Knox’s identification of De-morst was strongly corroborated by additional evidence. Knox was always unequivocal that the man who shot Miller was the same man he had been speaking with on the telephone moments before. Knox testified that the man on the phone directed him to the location where he found .the shooter and that he actually saw the shooter while the two-were still speaking-on the phone. The shooter initially pretended to proceed with the drug deal that had been previously discussed on the phone, and then he called Knox after the shooting and warned him not to speak to the police. The phone records and Lawrence’s testimony established, overwhelmingly, that D>emorst was the man on the phone and thus the killer of Hunter Miller.

¶ 18. The record as to the circumstances of Cooper’s initial identification of Demorst as the shooter is even less developed. Cooper simply testified that—about five days after the shooting, after Demorst was arrested—the police showed him • a photograph of Demorst, and he identified him as the shooter. While Cooper never testified whether he was or was not shown other photographs at the same time, we could not find plain error here even assuming Cooper’s identification of Demorst stemmed from a single photograph “show up.” Given Knox’s identification of De-morst and the corroborating evidence we have previously discussed, Cooper’s -identification was cumulative and would not have changed the result of the trial.

¶ 19. We cannot find plain error in the admission of in-court identifications by either Cooper or Knox.

2. Jailhouse Recordings—Plain Error

¶ 20. Next, Demorst argues that this Court should find plain error on appeal in the admission into evidence of five audio recordings (and accompanying transcripts) of conversations between him and his girlfriend. The recordings were made during the week after Demorst was arrested for the murder, through the jailhouse telephone system. At trial, Demorst moved to suppress the recordings, but on the theory that they were illegally obtained based on Demorst’s lack of consent to the conversations being recorded. The motion to suppress was denied, and Demorst does not challenge that decision on appeal. Instead, he contends that the trial court should have refused to admit the recordings into evidence, sua sponte, because they were irrelevant, and that the failure to do so was plain error.

¶ 21. The record reflects that, • at-trial, Demorst’s attorney successfully moved to have one of the recordings redacted, but he otherwise did not object to their admission into evidence. So Demorst once again must travel under the plain error standard.

¶ 22. On appeal, Demorst makes much of the fact that the trial judge observed several times on the record that he did not know if the recordings were relevant (as he had not yet heard them), and that the record does not contain much in the way of argument on that point since, as we said, the recordings "were admitted into evidence without objection.

¶ 23. We find no merit to this issue, as the recordings were clearly relevant, in some of the recordings, Demorst and . his girlfriend repeatedly rehearse an alibi defense, sometimes in the third person as if they were talking about other people. In another, they discuss getting a man (who Demorst had claimed to have been with in his interview with the police) to provide Demorst with an alibi. Demorst’s girlfriend tells him that the man has refused, and Demorst'urges her to continue her efforts, apparently suggesting that she pay the man to do so. Later in the recording the girlfriend cautions Demorst about what they say on the phone, and Demorst acknowledges her concern and says he is “not dumb.”

¶ 24. Under Mississippi law, evidence of consciousness of guilt is evidence of guilt itself. McClendon v. State, 387 So.2d 112, 115 (Miss. 1980). Evidence that the defendant attempted to fabricate an alibi or to pay someone to falsely provide him with one is relevant and admissible as evidence of consciousness of guilt. A similar scenario occurred in Dickey v. State, 86 Miss. 525, 38 So. 776 (1905), where the defendant wrote a letter offering to pay $200 for fabricated exculpatory testimony from a witness. Although the letter was never delivered, our supreme court found it to be an attempted fabrication and relevant and admissible. In support, it quoted Wigmore’s “recent” treatise on evidence:

It has always been understood—the inference, indeed, is one of the simplest in human experience—that a party’s falsehood or other frauds in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct, is receivable against him as an indication of his consciousness-that his case is a weak or unfounded one, and from that consciousness may be inferred the fact itself of the cause’s lack of truth and merit. The inference thus does not apply itself necessarily to any specific fact in the cause, but operates indefinitely, though strongly, against the whole mass of alleged facts constituting his cause.

Id. at 536, 38 So. at 777-78 (quoting Wig-more on Evidence § 278 (1904)).

¶ 25. In another recording, Demorst speaks about his “downfall,” which he attributed to “the streets,” gambling, and a large loss he suffered immediately before he was incarcerated. We cannot call its admission plain error because it was evidence of a motive for robbery, and evidence of the defendant’s motive is relevant and generally admissible. See, e.g., O’Connor v. State, 120 So.3d 390, 397-98 (¶ 19) (Miss. 2013).

¶ 26. We find no plain error in the admission of the jailhouse recordings.

3. Ineffective Assistance of Counsel

¶ 27. Finally, Demorst contends that he received constitutionally ineffective assistance of counsel at trial.

¶ 28. To succeed on an ineffective-assistance-of-counsel claim, Demorst must meet both prongs of the test laid out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468, 476-77 (Miss. 1984). “First, the defendant must show that counsel’s performance was deficient.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Second, the defendant must “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

¶ 29. Mississippi Rule of Appellate Procedure 22(b) requires claims of ineffective assistance of counsel to be raised on direct appeal if they are “based on facts fully apparent from the record.” But the Mississippi Supreme Court has observed:

It is unusual for this [Cjourt to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal. This is because we are limited to the trial court record in our review of the claim[,] and there is usually insufficient evidence within the record to evaluate the claim .... [Wlhere the record cannot support an ineffective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief. This Court will rule on the merits on the rare occasions where (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.

Wilcher v. State, 863 So. 2d 776, 825 (¶ 171) (Miss. 2003) (internal citations and quotations omitted).

¶ 30. Demorst raises numerous contentions under the umbrella of this issue, only a few of which are capable of being addressed on direct appeal. First, Demorst contends that his attorney was ineffective in failing to contemporaneously object to what he calls false factual claims made by the prosecutors during their closing arguments. But it is apparent from reviewing the record that any of these objections, even if they had been timely, would have been futile. In closing arguments, prosecutors are allowed “wide latitude [that] extends not only to the facts presented in evidence, but also to deduction and conclusions he may reasonably draw therefrom.” Dampier v. State, 973 So.2d 221, 235 (¶ 39) (Miss. 2008) (citation omitted). What Demorst calls unsupported factual claims are actually arguments—for example, a witness testified that the shooter picked something up after the shooting, and the prosecutor contended that it was a shell casing.. This argument was an attempt to reconcile the witnesses’ testimony that there were multiple gunshots with the fact that only one shell casing was found at the scene; the prosecutor argued that the shooter picked up the second casing. Without belaboring the point, this was not an unsupported factual claim but a permissL ble argument, and it was clearly presented as such by the prosecutor. Likewise, De-morst’s contention that prosecutors “invaded the province of the jury” by “telling [it] how to deliberate” is without merit; the instances he cites are just arguments as to how the jury should weigh various pieces of evidence. Finally, Demorst’s challenge to defense counsel’s failure to object to the relevance of the jailhouse recordings is also without merit. As we explained above, the jailhouse recordings were relevant, and any objection on the basis of relevance would have been futile.

¶ 31. Demorst’s remaining contentions are based on issues not fully apparent from the record and thus not capable of being decided on direct appeal. Demorst devotes several pages of argument to the contention that his attorney was constitutionally ineffective for failing to introduce the second photographic “lineup” into evidence—but the lineup does not appear in the record and thus it is impossible for this Court to address the second prong of the Strickland analysis— to determine whether it really would have helped Demorst’s defense. Likewise, De-morst contends that his counsel was ineffective for failing to introduce evidence that would successfully authenticate a Fa-cebook post allegedly made by Cooper suggesting uncertainty about Demorst’s guilt, but Cooper denied making the post and on appeal- Demorst just begs the question of whether such evidence actually- existed in the first place. Finally, De-morst challenges counsel’s decision not to move to suppress the identifications, but “[t]he decision to make certain objections falls within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim.” Willie v. State, 204 So.3d 1268, 1275 (¶ 16) (Miss. 2016) (citation omitted). The record gives this Court no basis to find ineffective assistance of counsel, and, indeed, it strongly suggests that the decision not to move to suppress the identifications was strategic. Demorst’s attorney thoroughly cross-examined Knox and Cooper, and he appears to have had good reason to try to frame the reliability of their identifications as tSSShe central issue of the case, given the strength of the other evidence against De-morst. Nonetheless, as we have said, this issue is not fully developed in the record and cannot be conclusively decided on direct appeal.

¶ 32. We deny relief on these contentions without prejudice to a future post-conviction claim. See Wilcher, 863 So. 2d at 825 (¶ 171).

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR EARLY RELEASE, EARNED CREDIT, OR PAROLE, AND TO PAY A $10,000 FINE AND $2,500 IN RESTITUTION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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

      . The phone records show literally dozens of calls between Demorst and Knóx and between Demorst' and Lawrence on the day of the shooting. The last .call prior to the shooting was made by Knox to Demorst at .8:15:33 p.m. and lasted 128 seconds. The shooting occurred shortly before 8:19:59, when the records indicate Knox called Miller. According to Knox, this call was made to check on Miller immediately after the shooting, At 8:27:31, Demorst called Lawrence, and the two exchanged numerous calls shortly thereafter.

      . These calls were actually made from Lawrence’s cell phone (with Lawrence initially speaking on the phone) and a cell phone belonging to Demorst’s girlfriend's sister, This phone was also used to call Lawrence several times starting approximately thirty minutes after the shooting; from that point on De-morst did not call Lawrenc'e from his Own cell phone.

      ; Demorst wa‘s somewhat inconsistent on this point; at times he suggested they had been together longer, "on and off.” This was important because; when initially contacted by investigators, the girlfriend’s family gave a false or incorrect name for Demorst, calling him "Marcel Denegal.” Investigators found that one of the sisters was' "friends” on Facebook with a "Marcel D,” but she and another sister of the girlfriend denied knowing the man. The girlfriend’s mother—who provided Demorst with ah alibi—testified at trial that she met him for the first time the night of the - murder. ...

      . While Demorst contends in his brief on appeal that the officer asked, "[I]s this him, you can't hardly miss that, can you?,” the question directed to Knox actually appears in the record as:. "They said is this him; you can’t hardly miss that, can you?” Knox responded simply "yes, sir.” The semicolon suggests some other meaning to the second part of the question from the one Demorst asserts.

      . After being told the man has firmly refused, Demorst says: “Shid [sic]. Them green guys, you hear me? You hear me?” "Them green guys.” “You know what I’m talking about?” Then, perhaps jokingly, Demorst suggests she perform oral sex on the man.


author: WESTBROOKS, J.,

text:
    Monroe RANDLE a/k/a Monro Randle, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01245-COA
    Court of Appeals of Mississippi.
    09/26/2017

      ATTORNEY FOR APPELLANT: MONROE RANDLE (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLIN-TON
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ. .
   WESTBROOKS, J.,

FOR THE COURT:

¶ 1. Monroe Randle appeals the denial of his petition for postconviction relief (PCR) in the Circuit Court of Clay County. In a prior appeal, this Court found, that the circuit court had erroneously ruled that it lacked jurisdiction to determine whether the Mississippi Parole Board’s decision was correct. Randle v. State, 210 So.3d 1022, 1023 (¶ 6) (Miss. Ct. App. 2015). We remanded Randle’s cause to the circuit court for an evidentiary hearing. Id. Following the hearing, the circuit court denied Randle’s PCR petition, finding that the parole board had reasonable cause to revoke Randle’s parole. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2, In January 1980, Randle pled guilty to capital murder and was sentenced to life in prison. Randle was paroled on February 24, 2010, and was allowed to reside in Ohio via an interstate compact, as codified in Mississippi Code Annotated section 47-7-81 (Rev. 2015). On May 18, 2012, Randle was arrested in Ohio and charged with: (1) threatening serious bodily harm to his half-brother and his half-brother’s girlfriend, and (2) possession of a gun.

¶ 3. Randle’s half-brother, Danny Woods, and Woods’s girlfriend, Robin Graham, gave written statements to Randle’s Ohio parole officer. Woods and Graham claimed that Randle had been stalking Graham, making sexual advances,'calling her cell phone, and leaving threatening voicemail message's. Graham played the voicemail messages for the parole officer. Randle reported to his parole officer and admitted calling- Graham and leaving threatening messages on her phone. Ran-dle was then' attested for violating Lhis parole. Randle signed a document entitled “notification of release violation hearing.”

¶4. That document reiterated Ran-dle’s right to testify, present witnesses or evidence, confront- and cross-examine witnesses, and additional rights. .The notification also apprised Randle of the accusations ágainst him, and Randle admitted to each charge with mitigation. He also signed a “waiver of probable cause hearing/for interstate compact offenders only.” That waiver relinquished Randle’s right to a preliminary hearing. By signing the waiver, Randle also' admitted to committing the alleged violations and that probable cause was found.

¶ 5. Randle returned to Mississippi .and went before the parole board for a revocation hearing. Following the hearing, the parole board revoked Randle’s parole based on his arrest for simple assault and firearm possession. Aggrieved with the revocation of his parole, Randle filed a number of motions challenging the validity of the parole board’s decision.

¶ 6. Randle filed a PCR petition in the circuit court, but the court erroneously ruled it did not have jurisdiction to review the parole board’s decision. That ruling was appealed to -this Court, and we remanded Randle’s cause back to the circuit court for an evidentiary hearing. Randle, 210 So.3d at 1023 (¶ 6). At the evidentiary hearing, parole-board attorneys for the Mississippi Department of Corrections (MDOC) presented Woods’s and Graham’s statements,, Randle’s Ohio-arrest information, an email stating that Randle waived his probable-cause hearing and admitted guilt, Randle’s signed notification of release-violation hearing, his signed waiver of probable-cause hearing, and the preliminary-revocation-hearing report.

¶ 7. MDOC also presented the testimony of Robert Wentworth, a hearing officer with the parole board. Wentworth .stated that if a parolee on an interstate compact is arrested, the State of Mississippi must first determine whether the arresting state would revoke the offender’s parole. If the arresting state would revoke the offender’s parole, the State of Mississippi must “retake” or bring the offender back to the state for a parole-board hearing.

¶8. Wentworth stated that retake was mandatory for Randle’s case, because Ohio would have revoked Randle’s parole. As.a result, Mississippi was required to bring Randle back to the state for a parole-revocation hearing. According to Went-worth, the parole board was presented with evidence that Randle left five threatening voicemail messages for Graham. The board was also presented with Woods’s and Graham’s written statements. Woods and Graham stated that they were both concerned for their safety and feared that Randle might physically harm them.

¶ 9. According to Wentworth, jurisdictions involved in, an interstate compact do not usually pursue the pending charges if they feel the threat posed by the offender/parolee is alleviated. For that reason, Wentworth- stated that is was not uncommon for Ohio to refuse to pursue charges after Randle was taken by the state that paroled him. Wentworth stated that it was irrelevant whether Randle was officially charged on those crimes because they were criminal acts, whether pursued or not. Wentworth reiterated that the evidence of Randle’s admission of guilt “with mitigation,” the witness statements, and the statements of Randle’s parole officer that he listened to the voicemail messages, resulted in the revocation of Randle’s parole.

¶ 10. During Randle’s evidentiary hearing for his PCR petition, Randle argued that the parole board erred in revoking his parole, because he was neither charged with nor convicted of the alleged crimes. Randle challenged the credibility of Woods’s and Graham’s statements and asserted that he did not intend to admit to the offenses or waive his right to a preliminary hearing.

¶ 11. At the conclusion of the evidentiary hearing, the circuit judge notified the parties that he would review the appropriate standards of law and render a decision. On August 2, 2016, the court denied Randle’s PCR petition, concluding that the parole board had reasonable cause to revoke Ran-dle’s parole based upon the evidence presented, including Randle’s admission of guilt. Randle appeals.

STANDARD OF REVIEW

¶ 12. An appellate court will not reverse a trial court’s dismissal of a PCR motion unless the trial court’s decision was clearly erroneous. Fortenberry v. State, 151 So.3d 222, 224 (¶ 5) (Miss. Ct. App. 2014) (citing Means v. State, 43 So.3d 438, 441 (¶ 6) (Miss. 2010)). The Mississippi Supreme Court has held that “before one released on parole may be returned to custody, [the State] must [show] that he has violated the terms and conditions of parole.” Elkins v. State, 116 So.3d 185, 186 (¶ 8) (Miss. Ct. App. 2013).

DISCUSSION

¶ 13. Randle asserts that his parole was impermissibly revoked, because the evidence relied upon was insufficient and legally defective. Randle further argues that the circuit judge exhibited bias when he referenced Randle’s two prior felony convictions during the hearing. Randle contends that the circuit court violated his constitutional rights when it determined that the parole board did not err in revoking his parole. We disagree.

¶ 14. At Randle’s evidentiary hearing, MDOC’s attorney presented evidence that Randle was arrested for simple assault by threat and for possession of a firearm. MDOC presented evidence of Randle’s admission of guilt “with mitigation” to committing the offenses. Woods’s and Graham’s victim statements and the testimony of a parole-board hearing officer were also presented during the hearing. Wentworth testified that the board received evidence that Randle left five threatening messages on Graham’s voice-mail. Additionally, evidence that Randle waived a probable-cause hearing in Ohio was submitted to the circuit court. The circuit court found that there was no implication that the board did not follow the law. Moreover, the circuit court found that the board had reasonable cause to revoke Randle’s parole, because he admitted to the charges and turned himself in to the police. We agree.

¶ 15. Randle also argues that the written statements by Woods and Graham were insufficient to prove he violated his parole, because he was neither indicted for nor convicted of the charges. Nevertheless, Wentworth testified that, though criminal charges may not be pursued for a criminal act, the revocation of parole does not-necessitate an indictment or conviction of the crimes charged. Our supreme court has found that “[a] probationer does not have to be convicted of a crime to be in violation of his probation but, rather, probation may be revoked when it is more likely than not that a violation has occurred.” McCalpin v. State, 166 So.3d 24, 26-27 (¶ 7) (Miss. 2013). A parolee does not have to be convicted of crimes charged to establish a violation of parole. This argument is without merit.

¶ 16. Randle also argues that Woods’s and Graham’s statements were inadmissible under the Mississippi Rules of Evidence. Randl,e asserts that the statements made by Graham and Woods were hearsay. However, this Court has previously found that the Mississippi Rules of Evidence do not apply to proceedings “granting or revoking probation.” Forshee v. State, 853 So.2d 136, 140 (¶ 18) (Miss. Ct. App. 2003) (citing Younger v. State, 749 So.2d 219, 221 (¶ 9) (Miss. Ct. App. 1999)). “Therefore, the rule barring hearsay does not apply, and hearsay evidence is properly admittable in such hearings.” Id.

¶ 17. Lastly, Randle argues he was unfairly prejudiced when- the circuit court referred to his prior felony convictions. He claims that the court’s actions amounted to reversible error, because mentioning his prior convictions illustrated bias. However, the circuit judge mentioned Randle’s prior convictions when discussing the genesis of Randle’s PCR petition. There is no indication that the mere reference to Randle’s prior conviction demonstrates bias. We find that this argument is without merit.

¶ 18. “[P]rior to completion of the revocation hearing the State must - offer actual proof that the petitioner [more likely .than not] committed an act violating the terms and conditions of his parole, and the mere fact that he was arrested and charged with a crime may hardly suffice.” Elkins, 116 So.3d at 188-89 (¶ 13) (quotations omitted). During revocation hearings, the State has to prove by a preponderance of the evidence that the parolee violated parole. Id. at (¶ 14). The circuit court considered the evidence presented to the par role board during Randle’s revocation hearing. Randle admitted to Graham’s and Woods’s allegations and waived his right to a preliminary hearing. Graham and Woods made written statements to Randle’s Ohio parole officer and played the five voicemail messages that Randle admitted to making. As a result, the circuit court found that the parole board had reasonable cause to'revoke Randle’s parole. Therefore, we find thát the circuit court did not err in denying Randle’s PCR petition.

¶ 19. AFFIRMED,

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

      . Though the circuit court found that Randle turned himself in to a police officer, Randle actually turned himself in to his Ohio parole officer.


text:
    Raymond Scott ALEXANDER a/k/a Raymond S. Alexander a/k/a Raymond Alexander, Appellant v. STATE of Mississippi Appellee
    NO. 2016-CP-01454-COA
    Court of Appeals of Mississippi.
    09/26/2017

      ATTORNEY FOR APPELLANT: RAYMOND SCOTT ALEXANDER (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLIN-TON '
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE COURT:

¶1. Raymond Scott Alexander, appearing pro se,; appeals the Rankin County Circuit Court’s dismissal of his motion for postconviction relief (PCR). Finding no error, we affirm. ...

FACTS AND PROCEDURAL HISTORY

¶ 2. In July 2003, Alexander was indicted on one count of possession of a controlled substance (methamphetamine) by a Rankin County grand jury. Alexander pleaded guilty to the charge in 2004, and was placed in the nonadjudication program to serve a term of five years of supervised probation under the supervision of the Mississippi Department of Corrections (MDOC). Alexander was informed that if he did not comply with the any of the conditions of the nonadjudication program, he would be sentenced to eight years in the custody of MDOC, with one year suspended and five years of supervised probation.

¶ 3. Later in 2004, the State moved to impose Alexander’s sentence for violating the terms of the nonadjudication program. Alexander had failed to pay court costs and admitted to molesting a nine-year-old girl. As a result, Alexander was sentenced to eight years in the custody of the MDOC, with one year suspended and five years of supervised probation.

¶ 4. In 2005, Alexander was indicted in the Circuit Court of Rankin County on one count of gratification of lust and two counts of sexual battery. Alexander entered a guilty plea to one count of sexual gratification and one count of sexual battery. Alexander was sentenced to twelve years in the custody of the MDOC for gratification of lust and thirty years in the custody of the MDOC for sexual battery, with twelve years to serve, eighteen years suspended, and five years of postrelease supervision. The gratification-of-lust and sexual-battery sentences were ordered to run concurrently; however, they were ordered to run consecutively to Alexander’s eight-year sentence for possession of a controlled substance.

¶ 5. In June 2016, Alexander filed a “petition for immediate release on probation and in the alternative immediate release on parole.” The circuit court treated the filing as a PCR motion and denied it. The circuit court found that the motion was time-barred and -without merit. In July 2016, Alexander filed a similarly titled petition in the Mississippi Supreme Court. Because there had been no direct appeal of Alexander’s convictions and sentences, the supreme court dismissed Alexander’s petition without prejudice, and found that it could be brought in the circuit court as a PCR motion.

¶ 6. In September 2016, Alexander filed his second PCR motion. The circuit court dismissed his motion, stating it was time-barred, successive, and without merit. Alexander appeals.

STANDARD OF REVIEW

¶ 7. “When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s factual findings if they are clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review.” Jackson v. State, 178 So.3d 807, 809 (¶ 8) (Miss. Ct. App. 2014) (citation omitted).

DISCUSSION

¶ 8. The circuit court held that Alexander’s PCR motion was time-barred, successive, and without merit. We agree.

¶ 9. “A PCR motion challenging a guilty plea must be filed within three years of the entry of the judgment of conviction.” Kennedy v. State, 179 So.3d 82, 83 (¶ 6) (Miss. Ct. App. 2015); see also Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Following Alexander’s violation of the terms of his nonadjudication program, his sentence of eight years, with one year suspended, for possession of a controlled substance was imposed in 2004. Next, Alexander pleaded guilty to the charges of gratification-of-lust and sexual battery in 2005 and received concurrent sentences for these charges. However, Alexander did not file a PCR motion until 2016. Therefore, Alexander’s motion is time-barred.

¶ 10. Additionally, Alexander’s PCR motion is successive-writ barred. “Under the [Uniform Postconviction Collateral Relief Act], any order denying or dismissing a PCR motion is a bar to a second or successive PCR motion.” Stokes v. State, 199 So.3d 745, 749 (¶ 9) (Miss. Ct. App. 2016) (citing Miss. Code Ann. § 99-39-23(6) (Rev. 2015)). The circuit court dismissed Alexander’s first PCR motion filed in June 2016, citing lack of merit and the procedural time-bar. In the order dismissing Alexander’s second PCR motion, the circuit court found that “it ... plainly appealed] from the face of the petition that [Alexander] was not.entitled to any relief.” See Miss. Code Ann. § 99-39-11(2) (Rev. 2015). We find the Court properly dismissed Alexander’s successive motion.

¶ 11. However, Alexander asserts that his second PCR motion is exempt from the procedural bars, because he was issued an illegal sentence. In Mississippi, “only four types of ‘fundamental rights’ have been expressly found to survive PCR procedural bars: (1) double jeopardy; (2) illegal sentence; (3) denial of due process at sentencing; and (4) ex post facto claims.” Kennedy, 179 So.3d at 83-84 (¶ 8) (citing Boyd v. State, 155 So.3d 914, 918 (¶ 13) (Miss. Ct. App. 2014)). However, this Court has previously held that “mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar.” Stokes, 199 So.3d at 749 (¶ 10). But as explained below, Alexander did not receive an illegal sentence. Thus, his PCR motion is procedurally barred.

I. Illegal Sentence

¶ 12. Alexander asserts that he received an illegal sentence for his possession-of-a-coñtrolled-substance charge. However, we disagree with his assertion. Alexander was sentenced to eight years, with one year suspended, for possession of a controlled substance pursuant to Mississippi Code Annotated section 41-29-139(c)(1)(B) (Rev. 2001). That code section, revised.in 2014, now states in part:

A person shall be charged and sentenced as follows for a violation of this subsection with respect to: ■
(1) A controlled substance classified in Schedule I or II, except marijuana and synthetic cannabinoids:
(B) ' If one-tenth (0.1) gram or more or two (2) or more dosage units, but less than two (2) grams or ten (10) dosage units, by imprisonment for not more than three (3) years or a fine of not more than Fifty Thousand Dollars ($50,000.00), or both.

(Emphasis added).

¶ 13. However, Alexander was sentenced to possession of a controlled substance in 2004. This court has recently held that “when a person is sentenced prior to a statute’s amendment, the penalty of the statute as it existed at the time of sentencing applies.” Barnett-Phillips v. State, 195 So.3d 226, 229 (¶ 8) (Miss. Ct. App. 2016).

¶ 14. In 2004, Mississippi Code Annotated section 41-29-139(c)(l)(B) read in part:

(B) One-tenth (0.1) gram but less than two (2) grams of two (2) dosage units but less than ten (10) dosage units, by imprisonment for not less than two (2) years nor more thah eight (8) years and a fine of not more than Fifty Thousand Dollars ($50,000.00).

1999 Miss. Laws ch. 341, § 1 (S.B. 2915) (emphasis added).

¶ 15. Alexander further asserts that his sentence is illegal because he -was sentenced as a habitual offender. The record does not support Alexander’s assertion. Therefore, this issue is without merit..

¶ 16. Further, Alexander argues that his sentence is illegal because he was sentenced above the maximum, and no other' judge within the same county would have sentenced him to that same amount of time. However, “sentencing is within' the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute,” Alexander v. State, 979 So.2d 716, 718 (¶ 4) (Miss. Ct. App. 2007) (citations omitted). “The general rule in Mississippi-is that a sentence that does not exceed the maximum term allowed by the. statute cannot be disturbed on appeal.” Id.

¶ 17. Alexander was sentenced to eight years, with one year suspended, for possession of a controlled substance. This sentence did not exceed the maximum term allowed by statute. Accordingly, this issue is without merit.

II. Early Release/Parole or Earned-Time Allowance

A. Earned Time

¶ 18. Notwithstanding the procedural bar for this- claim, Alexander asserts that he is eligible for an earned-time allowance. However, this argument lacks merit. “Mississippi Code Annotated section 47-5-139(1)(d) (Supp. 2008 & Rev. 2015). provides that an inmate shall not be eligible for the earned time allowance if ... the inmate was,, convicted of a sex crime.” Brown v. State, 187 So.3d 667, 671 (¶ 10) (Miss. Ct. App. 2016).

¶ 19. Alexander is not eligible for an earned-time allowance, because he was convicted of gratification of lust and sexual battery. Further, Alexander has completed serving his eight-year sentence for the possession charge and has started serving time for the two sex crimes. Therefore, this issue is meritless.

B. Time Served

¶ 20. Alexander also argues that he was not given credit for time served for his charge of possession of a controlled substance. Alexander is correct that, if warranted, he should have received credit for any pretrial time he served prior to pleading guilty to possession of a controlled substance. It appears from the record that Alexander received credit for time served. However, if there was any merit to Alexander’s, claim, he did not request proper relief regarding credit for time served from the MDOC administrative system. This Court has previously held that “a post-conviction relief pleading is- not the proper means to calculate and receive credit for the initial ... time served.” McDonald v. State, 16 So.3d 83, 85 (¶ 6) (Miss. Ct. App. 2009). Therefore, this issue is without merit.

¶ 21. Additionally, Alexander was sentenced for possession of a controlled substance -to eight years, with one year suspended, in 2004. Alexander has serve his sentence for the possession charge'; therefore, he is currently serving his time for the gratification-of-lust and sexual-battery charges from 2005. Therefore, Alexander lacks standing to bring the issue in his PCR motion, because he is no longer “serving time under the sentence he complains of.” Wilson v. State, 76 So.3d 733, 735 (¶ 11) (Miss. Ct. App. 2011) (citations omitted).

¶ 22. Accordingly, we find that Alexander fails to meet his burden of showing that any statutory exception or fundamental-right exception applies to his claims. Therefore, we find that the circuit court did not err in denying his POR motion.

¶ 23. AFFIRMED.

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