author: GREENLEE, J., FOR THE COURT: WILSON, J., DISSENTING:

text:
    Bettye LOGAN, Appellant v. KLAUSSNER FURNITURE CORPORATION d/b/a Bruce Furniture Industries and American Casualty Company of Reading, PA, Appellees
    NO. 2015-WC-01760-COA
    Court of Appeals of Mississippi.
    November 15, 2016
    ATTORNEYS FOR APPELLANT: ROY O. PARKER, HALEY WADE MCINGVALE II
    ATTORNEYS FOR APPELLEES: AMY LEE TOPIK JOSEPH, ANTHONY GERACHE III
    EN BANC.
    MODIFIED OPINIONS ON MOTION FOR REHEARING
   GREENLEE, J., FOR THE COURT:

¶ 1. The motion for rehearing is denied. The previous opinions of this Court are withdrawn, and these opinions are substituted in their place.

¶ 2. This is an appeal from a decision of the Mississippi Workers' Compensation Commission in which Bettye Logan was found to have incurred a permanent partial disability (scheduled member) with a sixty-percent loss of industrial use of her left lower extremity stemming from an admittedly work-related injury. Logan appealed the decision of the Commission to this Court, claiming that she is entitled to the maximum allowable amount of permanent total disability under the law instead of the lower amount awarded by the Commission. This is the second appeal this Court has heard stemming from Logan's workers' compensation claim for disability benefits. In Logan v. Klaussner Furniture Corp. , 127 So.3d 1138 (Miss. Ct. App. 2013) ( Logan I ), we held that (1) "at the very least, Logan should have been assessed a loss of wage-earning capacity[,]" and (2) the "evidence in this case supports a finding of permanent partial or total disability[,]" Id . at 1142-43 (¶¶ 20-21), and remanded the case to the Commission for further proceedings consistent with the Court of Appeals' decision. Id . at (¶ 23). After remand, the Commission assessed Logan a loss of industrial use instead of determining her loss of wage-earning capacity, which was inapposite to our decision in Logan I . Because the Commission's subsequent decision did not comport with our findings in Logan I , we reverse and remand for further proceedings consistent with this opinion.

¶ 3. The dissent disagrees asserting that Logan's injury was to her leg and therefore her assessment and recovery should be limited to the scheduled-member provisions of Mississippi Code Annotated section 71-3-17(c)(2) (Rev. 2001). The dissent misapplies our Logan I ruling that, "at the very least," Logan had a loss of wage-earning capacity, the amount of which should have been assessed. The dissent treats that portion of our opinion dealing with loss of wage-earning capacity in Logan I as dicta. "Dicta" is an opinion of a judge that does "not embody the resolution or determination of the specific case before the court. Expressions in a court's opinion that go beyond the facts before the court and therefore are individual views of the author of the opinion and not binding in subsequent cases as legal precedent." 3 West's Encyclopedia of American Law , at 427 (2d ed. 2005); see also Black's Law Dictionary (6th ed. 1990). However, the language of Logan I that Logan should have been assessed a loss of wage-earning capacity and that Logan had suffered a permanent partial or total disability was the stated reason for the Logan I remand to the Commission. Also, loss of wage-earning capacity is only pertinent when a court has found the disability calculation should be governed by criteria other than the limited scheduled-member criteria of section 71-3-17(c)(1)-(24).

¶ 4. The dissent takes issue with the use of section 71-3-17(c)(25) when permanent partial disability is warranted, arguing its use is limited to a narrow range of "other" circumstances. But section 71-3-17(c)(25)'s use is for that type of condition where there is permanent partial disability and a loss of wage-earning capacity. The dissent's import would be that after remand the Commission may ignore or interpret the Court's mandate to modify the factual and legal ruling although otherwise directed by this Court. The dissent also suggests that we should prescribe a result rather than remand for a finding of Logan's loss of wage-earning capacity, therefore dispensing with this case more conveniently.

FACTS AND PROCEDURAL HISTORY

¶ 5. Logan was employed by the Klaussner Furniture Corporation d/b/a Bruce Furniture Industries. On October 9, 2003, Logan was injured when her foot became caught in some fabric fibers at work, causing her to fall. Logan filed a petition to controvert with the Commission on December 9, 2004, and a hearing was held on August 12, 2010.

¶ 6. On July 29, 2011, the administrative judge (AJ) entered an order finding that Logan had not suffered any industrial loss of use to her left lower extremity. Logan then filed a petition for review before the full Commission. On February 6, 2012, the full Commission affirmed the decision of the AJ.

¶ 7. Logan appealed to this Court, and on June 4, 2013, we reversed and remanded the decision of the Commission in Logan I , where we found that (1) "at the very least, Logan should have been assessed a loss of wage-earning capacity[,]" and (2) the "evidence establish[ed] that Logan ha[d] suffered a permanent partial or total disability." Logan I , 127 So.3d at 1142-43 (¶¶ 20-22).

¶ 8. On remand, the AJ again conducted an analysis of the prior evidence and claim of Logan rather than focusing on the findings within the opinion of the Court of Appeals. The AJ then found that Logan suffered a sixty-percent loss of industrial use to her left lower extremity. On October 23, 2015, the Commission affirmed the decision of the AJ, stating that it agreed with the AJ that Logan had the ability to return to employment at least at a sedentary level based on the medical and vocational evidence. The Commission's ruling relegated Logan to permanent partial disability (scheduled member) instead of permanent partial disability (body as a whole) or permanent total disability. The Commission's ruling also limited Logan to the 175 weeks of compensation allowable under the schedule for the loss of industrial use of her leg (scheduled member), instead of the 450 weeks allowable for her loss of wage-earning capacity under either permanent total disability or permanent partial disability (body as a whole). On November 20, 2015, Logan appealed the decision of the Commission to this Court.

DISCUSSION

¶ 9. While there are multiple issues raised by Logan, her appeal boils down to one: whether the Commission erred by not finding that she suffered a permanent total disability for the maximum of 450 weeks of compensable time, following our prior opinion in Logan I .

¶ 10. When we review the rulings of the Workers' Compensation Commission, "[t]he Commission's decision will be reversed only if it is not supported by substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law." Lovett v. Delta Reg'l Med. Ctr. , 157 So.3d 88, 89-90 (¶ 7) (Miss. 2015). "If the Commission's order is supported by substantial evidence, this Court is bound by the Commission's determination, even if the evidence would convince us otherwise if we were the fact-finder." Forrest Gen. Hosp. v. Humphrey , 136 So.3d 468, 471 (¶ 14) (Miss. Ct. App. 2014). As the fact-finder, the Commission determines issues of the credibility of the witnesses and evidence before it, and those determinations are afforded substantial deference. Wagner v. Hancock Med. Ctr. , 825 So.2d 703, 706 (¶ 10) (Miss. Ct. App. 2002) (citing Miss. Pub. Serv. Comm'n v. S. Cent. Bell Tel. Co. , 464 So.2d 1133, 1135 (Miss. 1984) ). The Commission's application of law is reviewed de novo. Lifestyle Furnishings v. Tollison , 985 So.2d 352, 358 (¶ 16) (Miss. Ct. App. 2008) (citing ABC Mfg. Corp. v. Doyle , 749 So.2d 43, 45 (¶ 10) (Miss. 1999) ).

¶ 11. However, when the Court of Appeals has already addressed a case by a ruling-barring a grant of certiorari by the Mississippi Supreme Court-a question settled by the Court of Appeals should be treated as no longer open for review, and such decisions constitute a body of precedent that should be followed in subsequent cases. See White v. Williams , 159 Miss. 732, 132 So. 573, 575 (1931) ; Moss Point Lumber Co. v. Bd. of Sup'rs of Harrison Cty. , 89 Miss. 448, 42 So. 290, 302 (1906) ; Miss. Code Ann. § 9-4-3(2) (Rev. 2014).

¶ 12. Whether a claimant's "permanent disability is partial or total is a question of fact determined by the evidence as a whole, including both lay and medical testimony." Howard Indus. Inc. v. Satcher , 183 So.3d 907, 912 (¶ 14) (Miss. Ct. App. 2016) (citing McGowan v. Orleans Furniture Inc. , 586 So.2d 163, 167 (Miss. 1991) ). When an injury is incurred under Mississippi Code Annotated section 71-3-17(c)(1) to (24) (Supp. 2016) (permanent partial (scheduled-member) disability) that results in a permanent and total loss of wage-earning capacity within section 71-3-17(a) (permanent total disability), section 71-3-17(a) controls exclusively, and the claimant is not limited to the number of weeks of compensation prescribed in section 71-3-17(c). Smith v. Jackson Constr. Co. , 607 So.2d 1119, 1128 (Miss. 1992).

¶ 13. Permanent partial disability (scheduled member) under section 71-3-17(c)(1) to (24) makes a benefit "payable for loss or loss of use, and effect on wage-earning capacity is not part of the calculation of the benefit and is not part of the burden of proof." John R. Bradley & Linda A Thompson, Mississippi Workers' Compensation § 3(2)(A) (2016). Permanent partial disability (body as a whole) under section 71-3-17(c)(25)"calls for evidence on loss of wage-earning capacity and sets a formula for the benefits as two-thirds of the loss of that capacity." Bradley & Thompson, at § 3(1)(C).

¶ 14. The Commission's finding focused on Logan's leg as a scheduled member covered under section 71-3-17(c)(2). As stated above, with regard to Logan's injury, we held in Logan I that the evidence supports her injury (1) was a permanent partial or total disability, and (2) "at the very least, Logan should have been assessed a loss of wage-earning capacity." Logan I , 127 So.3d at 1142-43 (¶¶ 20-21). Given that a loss of wage-earning capacity is only pertinent to section 71-3-17(c)(25) with respect to a finding of permanent partial disability, and that we said in Logan I that, "at the very least, Logan should have been assessed a loss of wage-earning capacity[,]" if the Commission were to find that Logan's disability was permanent and partial, then section 71-3-17(c)(25) would be the only plausible section under which it could compensate. For permanent and total disability, then section 71-3-17(a) would apply.

¶ 15. Therefore, either section 71-3-17(a) (permanent total) or (c)(25) (permanent partial) controls in this case, not section 71-3-17(c)(2) as applied by the Commission. Thus, the Commission's decision is based on an erroneous application of law. As such, this case must be reversed and remanded to the Commission for it to determine the amount of Logan's loss of wage-earning capacity and apply that accordingly under either the permanent total or the permanent partial disability provisions of section 71-3-17(a) or (c)(25).

CONCLUSION

¶ 16. We reverse and remand the finding of the Commission for further proceedings consistent with this opinion.

¶ 17. REVERSED AND REMANDED.

LEE, C.J., IRVING, P.J., BARNES, ISHEE AND WESTBROOKS, JJ., CONCUR. WILSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., CARLTON AND FAIR, JJ.

WILSON, J., DISSENTING:

¶ 18. The revised majority opinion issued in response to the motion for rehearing misstates and confuses the law by holding that Mississippi Code Annotated section 71-3-17(c)(25) (Rev. 2011) applies to the award of permanent partial disability benefits in cases involving an injury to a scheduled member. As explained below, this provision applies only to non -scheduled-member injuries. The decision of the Commission should be affirmed because it is consistent with our holding in the prior appeal in this case and it is supported by substantial evidence. Accordingly, I respectfully dissent.

¶ 19. In a prior appeal in this case, this Court held that the "evidence establish[ed] that Logan has suffered a permanent partial or total disability," and we remanded the case "to the Commission for a determination of the appropriate award of compensation" in light of our holding. Logan v. Klaussner Furniture Corp. , 127 So.3d 1138, 1143 (¶ 22) (Miss. Ct. App. 2013) (" Logan I ") (emphasis added). On remand, the Commission followed this Court's instructions. The Commission found that Logan failed to prove a total loss of wage-earning capacity and thus failed to establish a permanent total disability. However, consistent with this Court's mandate, the Commission found that Logan had established a 60% industrial loss of use to her left lower extremity. Therefore, the Commission awarded Logan 105 weeks of compensation for her scheduled-member injury. See Miss. Code Ann. § 71-3-17(c)(2)

(permanent partial disability for loss or 100% loss of use of a leg entitles the claimant to 175 weeks of compensation).

¶ 20. Logan again appealed from the decision of the Commission, and in this Court's initial (now withdrawn) opinion, the majority held that the Commission misapplied the law and our mandate in Logan I "because section 71-3-17(a) controls, not section 71-3-17(c) as applied by the Commission." Logan v. Klaussner Furniture Corp. , No. 2015-WC-01760-COA, --- So.3d ----, ----, 2016 WL 6753887, at *2 (¶ 10) (Miss. Ct. App. Nov. 15, 2016) (6-4 decision). However, section 71-3-17(a) applies only to cases of permanent total disability. Therefore, by holding that " section 71-3-17(a) controls," the majority was effectively holding that-as a matter of law-Logan was entitled to permanent total disability benefits. This was not consistent with our opinion in Logan I , which specifically stated three times that the evidence supported a finding of "permanent partial or total disability." Logan I , 127 So.3d at 1142-43 (¶¶ 20-22) (emphasis added). On rehearing, the majority appropriately recognizes that section 71-3-17(a) does not control to the exclusion of section 71-3-17(c).

¶ 21. The majority now holds that "either section 71-3-17(a) (permanent total) or (c)(25) (permanent partial) controls in this case, not section 71-3-17(c)(2) as applied by the Commission." Ante at (¶ 15) (emphasis added). This revised holding is erroneous because, as the majority acknowledges, this is a scheduled-member case: Logan suffered an injury to her left leg that resulted in a 4% medical impairment to that leg. Logan I , 127 So.3d at 1143 (¶ 22). Thus, the Commission properly awarded Logan permanent partial disability benefits according to the schedule, specifically, section 71-3-17(c)(2).

¶ 22. The majority's new holding that section 71-3-17(c)(25) may apply in a scheduled-member case is contrary to the plain language of the statute and precedent. Under the statute, the "schedule"-(c)(1) to (c)(24)-controls in cases of permanent partial disability involving the loss or loss of use of a scheduled member, such as a leg, and other specific injuries. Section (c)(25), in contrast, applies "[i]n all other cases" of permanent partial disability-i.e., in body-as-a-whole cases. Miss. Code Ann. § 71-3-17(c)(25) (emphasis added). As the Bradley and Thompson treatise explains, "[t]his section applies to body-as-a-whole injuries for which the benefits can run for 450 weeks and NOT to scheduled member injuries." John R. Bradley & Linda A. Thompson, Mississippi Workers' Compensation Law § 5:52 n.2 (2016) (capitalization in the original). This Court has made the same point:

Having issued a finding of permanent partial disability with regard to Martinez's arm only [and not with regard to his rib and sternum], the Commission correctly concluded, as a matter of law, that Martinez's injury was subject to disability benefits under the scheduled member chart set forth in [ section] 71-3-17(c)(1)and not the general total body impairment scheme stated in [ section] 71-3-17(c)(25) .

Martinez v. Swift Transp. & Ins. Co. , 962 So.2d 746, 752 (¶ 26) (Miss. Ct. App. 2007) (emphasis added).

¶ 23. To be clear, this is not a case in which the claimant suffered both an injury to a scheduled member and a non-scheduled-member injury and thus might be entitled to both an award under the schedule and an award under (c)(25). See Gen. Elec. Co. v. McKinnon , 507 So.2d 363, 366 (Miss. 1987). The only injury in this case is an injury to Logan's left leg that resulted in a 4% medical impairment to her leg. A claimant who experiences such a scheduled-member injury may be awarded permanent total disability benefits, but only if "the Commission finds that [she] sustained a total loss of wage earning capacity." Smith v. Jackson Constr. Co. , 607 So.2d 1119, 1128 (Miss. 1992) (emphasis added). The Commission found that Logan did not sustain a total loss of wage-earning capacity, and its decision is supported by substantial evidence. Thus, the only remaining issue is whether Logan should be awarded permanent partial disability benefits pursuant to the schedule or under (c)(25). The Commission correctly awarded benefits under the schedule because (c)(25) does not apply to scheduled-member cases. Indeed, Logan herself does not cite or rely on (c)(25) ; rather, her only argument on appeal is that the Commission erred by not awarding her permanent total disability benefits. Moreover, the majority does not cite-and I cannot find-any case applying (c)(25) to a scheduled-member injury. If this provision actually applied to scheduled-member cases, surely by now there would be at least one such case applying it.

¶ 24. I do not understand the basis for the majority's new holding that "either section 71-3-17(a) (permanent total) or (c)(25) (permanent partial) controls in this case, not section 71-3-17(c)(2) as applied by the Commission ." Ante at (¶ 15) (emphasis added). Logan suffered an injury to her leg, and the Commission found a permanent partial disability based on that injury. By its plain and clear language, section 71-3-17(c)(2) applies to cases of permanent partial disability based on leg injuries. The majority does not explain why (c)(25) applies to the exclusion of (c)(2). Is there something unique about this case that compels this result? Or does a claimant in a scheduled-member case get to choose which provision she prefers? Practitioners and the Commission apparently will have to figure this out in future cases.

¶ 25. I also do not understand why the majority remands with instructions that continue to hold open the possibility that " section 71-3-17(a) (permanent total) ... controls." Ante at (¶ 15). The Commission has already addressed this issue and found that Logan failed to prove a permanent total disability under section 71-3-17(a). The Commission's finding is supported by substantial evidence and should be affirmed. If it is not supported by substantial evidence, then this Court should reverse and render and bring this case to an end. Either way, the Commission has already addressed the issue, so it is now ripe for review on appeal. By again remanding the case to the Commission with instructions to award either total or partial disability benefits, the majority simply invites another appeal. Indeed, the very issue that Logan wanted us to decide in this appeal was whether the Commission erred by finding that her disability is partial rather than total. For reasons that are unclear, the majority declines to address the issue that Logan actually raised on appeal.

¶ 26. In remanding this case again, the majority reasons that in Logan I we stated that "Logan should have been assessed a loss of wage-earning capacity," and that loss of wage-earning capacity is not the basis for calculating benefits under the schedule. Thus, the majority reasons, our decision in Logan I must have included an implicit mandate to the Commission to apply (c)(25)-even though (c)(25) was not mentioned anywhere in the Logan I opinion. I respectfully disagree for four reasons. First, the Commission did consider wage-earning capacity on remand. It found that Logan failed to prove a total loss of wage-earning capacity under section 71-3-17(a), so she was not entitled to permanent total disability benefits. See Smith , 607 So.2d at 1128. In a scheduled-member case such as this, that was the only finding that was necessary regarding wage-earning capacity.

¶ 27. Second, even in a permanent partial disability case involving a scheduled-member injury, "[w]age-earning capacity is a factor to be considered," and the Commission should consider any such evidence that is presented, even though "loss of use" is the ultimate measure of compensation in such a case. Weatherspoon v. Croft Metals Inc. , 853 So.2d 776, 779 (¶ 14) (Miss. 2003). Thus, the mere fact that we directed the Commission to consider wage-earning capacity should not be taken as an implicit order to apply section 71-3-17(c)(25) rather than the schedule.

¶ 28. Third, if Logan I 's reference to wage-earning capacity meant anything more than that it should be considered under Smith and Weatherspoon , supra , then it was only dicta. Our holding in Logan I was simply that the Commission should award Logan compensation for a "permanent partial or total disability." Logan I , 127 So.3d at 1142-43 (¶¶ 20-22). Anything beyond that holding was dicta.

¶ 29. Fourth, even if Logan I could somehow be read to include an implied mandate to apply (c)(25) in this scheduled-member case, "this Court may, in certain exceptional instances, overturn a previous decision when that decision was manifestly erroneous, and upholding it on subsequent appeal would result in a grave injustice." J.K. v. R.K. , 30 So.3d 290, 296 (¶ 22) (Miss. 2009). The notion that (c)(25) applies to scheduled-member cases is manifestly wrong, confuses the law, and should not be perpetuated even if our prior decision somehow suggested it.

¶ 30. The majority opinion misstates the law and will confuse the law substantially in scheduled-member cases. The Commission's decision should be affirmed because it is consistent with our opinion in Logan I and is supported by substantial evidence. I respectfully dissent.

GRIFFIS, P.J., CARLTON AND FAIR, JJ., JOIN THIS OPINION.

      Logan's claims were that (1) the Commission's decision was arbitrary, capricious, and contrary to the instruction of this Court, (2) the Commission erred in failing to treat her case as a loss-of-wage-earning-capacity case due to the industrial loss of use to her left lower extremity, making her totally occupationally disabled, entitling her to one-hundred-percent permanent total disability, and (3) that her age and education entitled her to permanent total disability.

      The October 23, 2015 order of the Commission on remand is available at 2015 WL 6776924. The Commission's order affirmed an opinion and order of the administrative judge on remand, which is available at 2015 WL 2157595.


source: Caselaw Access Project

author: FAIR, J., FOR THE COURT:

license: Public Domain

text:
    Dana EASTERLING a/k/a Dana M. Easterling, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-01388-COA
    Court of Appeals of Mississippi.
    November 14, 2017 Rehearing Denied March 20, 2018
    ATTORNEY FOR APPELLANT: DANA EASTERLING (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER
    EN BANC.
   FAIR, J., FOR THE COURT:

¶ 1. Dana Easterling's suspended sentence was revoked after he was indicted by a grand jury on two counts of possession of a controlled substance. Easterling filed a post-conviction relief motion contending that his revocation must be set aside because the hearing was untimely. The circuit court denied the motion after an evidentiary hearing. We find no error and affirm.

DISCUSSION

¶ 2. In 2011, Easterling pled guilty to possession of cocaine. He received a fifteen-year sentence, with ten years suspended. On December 27, 2013, Easterling was arrested and charged with driving under the influence, possession of a controlled substance, resisting arrest, and other related counts apparently stemming from a traffic stop. On January 27, 2014, the circuit court issued an arrest warrant for the violation of the conditions of Easterling's post-release supervision. Easterling was subsequently incarcerated until July 14, when he filed an inmate grievance form, followed by a habeas corpus petition on July 23, demanding his release or a revocation hearing. On August 1, the circuit court held a revocation hearing, but Easterling asked for and received a continuance until after the grand jury considered the allegations against him. On September 17, the revocation hearing was finally held, and it was noted that the grand jury had indicted Easterling on two counts of possession of a controlled substance. The circuit court revoked Easterling's suspended sentence, and this PCR motion followed.

¶ 3. In his PCR motion and his brief on appeal, Easterling does not allege that the circuit court lacked a sufficient substantive basis to find that he had violated his suspended sentence. Instead, Easterling argues that the delay in holding his revocation hearing violated his constitutional right to due process. He also argues that dismissal of the revocation was required by the 2014 amendments to revocation procedure enacted by House Bill 585, which became effective July 1, 2014.

¶ 4. We address the statute first, as most of the briefing by both parties is addressed to it. The 2014 amendments substantially changed probation and suspended sentence revocation, prescribing certain procedures and time limitations, and notably limiting revocations for "technical violations" to certain prescribed time periods. See Miss. Code Ann. § 47-7-37 (Rev. 2015).

¶ 5. Easterling contends that certain time limits prescribed in the 2014 amendments should have been applied to him. In particular, subsection 47-7-37(3) requires that, after an offender is arrested on a warrant for an alleged violation of probation (or suspended sentence), "the department shall hold an informal preliminary hearing within seventy-two (72) hours of the arrest to determine whether there is reasonable cause to believe the person has violated a condition of probation." Subsection (5)(a) then provides that the revocation hearing shall be held within twenty-one days of the arrest if the offender remains detained on the warrant. If the hearing is not held within twenty-one days, "the offender shall be released from detention and shall return to probation status," but the court may still "subsequently hold a hearing" and revoke the suspended sentence. § 47-7-37(5)(c). Subsection (10) requires that the "revocation charge shall be dismissed if the revocation hearing is not held within thirty (30) days of the warrant being issued," "[u]nless good cause for the delay is established in the record of the proceeding."

¶ 6. The State contends that section 47-7-37's time limits apply only to revocations for technical violations, but it offers little if any argument in support, other than citing Mississippi Code Annotated section 47-7-37.1 (Rev. 2015). That section provides that, "[n]otwithstanding any other provision of law to the contrary," a court may still revoke probation or a suspended sentence and impose any or all of the sentence on a finding that the probationer has committed a felony or absconded. Id. While it does appear that section 47-7-37.1 would control over 47-7-37(10), section 47-7-37.1 was passed into law in April 2015, and it was not in effect at the relevant times.

¶ 7. At any rate, it is not necessary to address the question of whether section 47-7-37's time limits apply only to technical violations, as the Mississippi Supreme Court's recent decision in Fisher v. Drankus , 204 So.3d 1232 (Miss. 2016), requires this Court to conclude the statute cannot be applied retroactively to Easterling. In Drankus , the court held that House Bill 585's new "case plan" requirements do not apply to offenders admitted to the Mississippi Department of Corrections' custody prior to House Bill 585's effective date. See id. at 1235-36 (¶¶ 7-14). The Court noted that "[t]he longstanding rule in Mississippi is that statutes will be construed to have a prospective operation only, unless a contrary contention is manifested by the clearest and most positive expression." Id. at 1236 (¶ 13). The statute was silent on retroactive application, and it was impossible for the MDOC to have complied with the various requirements because the specified time limits had already passed with regard to Drankus long before the statute was enacted. Id. at 1235-36 (¶¶ 10, 13).

¶ 8. This case presents essentially the same scenario. The 2014 amendments to section 47-7-37 are silent on retroactive application and specify time limits-seventy-two hours, twenty-one days, and thirty days after arrest on the revocation warrant-that had all already passed for Easterling at the time the statute came into effect. Thus, following Drankus , we conclude that the amended statute cannot be applied retroactively to Easterling.

¶ 9. As to Easterling's constitutional claims, we agree that he had a constitutional right to a timely revocation hearing. See Morrissey v. Brewer , 408 U.S. 471, 488, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). But Easterling offered no defense at the revocation hearing, and he has not even attempted to show that any prejudice resulted from the delay, which is a prerequisite for relief. See Villarreal v. U.S. Parole Comm'n , 985 F.2d 835, 837 (5th Cir. 1993) ; see also 67 C.J.S. Pardon and Parole § 95 (2017). The failure to hold a preliminary hearing is also harmless if it does not result in prejudice. Presley v. State , 48 So.3d 526, 529-30 (¶¶ 11-15) (Miss. 2010).

¶ 10. As Easterling has failed to show prejudice from the allegedly untimely revocation hearing, he has failed to show that his revocation must be set aside.

¶ 11. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, WILSON AND GREENLEE, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. TINDELL, J., NOT PARTICIPATING.


author: IRVING, P.J., FOR THE COURT:

text:
    Karen FARR a/k/a Karen Lee Farr a/k/a Karen L. Farr, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00792-COA
    Court of Appeals of Mississippi.
    December 5, 2017
    ATTORNEY FOR APPELLANT: KAREN FARR (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
    BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Karen Farr pleaded guilty to manslaughter and aggravated assault in the Marshall County Circuit Court. Subsequently, Farr, acting pro se, filed a motion for post-conviction relief (PCR) and asserted the following issues: (1) she did not receive a "Motion of Discovery," despite repeated requests; (2) she was coerced into pleading guilty; (3) she received ineffective assistance of counsel; (4) law enforcement was negligent in failing to arrest the victim, Ronnie Perry, on several outstanding warrants, which could have prevented his death; (5) Perry's role as a confidential drug informant for Marshall County law enforcement created a conflict of interest in her case; and (6) the "interests of justice" warrant a reduction in her sentence. The circuit court denied Farr's motion, and she filed this appeal. Finding no error, we affirm.

FACTS

¶ 2. Farr was indicted on one count of murder for deliberately striking Perry with her vehicle, causing his death, and for one count of leaving the scene after striking him. While out on bail, Farr was charged with the crime of aggravated assault, and her bail was subsequently revoked.

¶ 3. On March 6, 2013, Farr entered a guilty plea to a lesser charge of manslaughter. The State agreed to retire to the files the second charge of leaving the scene. Farr also pleaded guilty to the aggravated-assault charge that she incurred while out on bail. The court conducted a plea hearing on both the manslaughter and aggravated-assault charges, and accepted Farr's guilty pleas with respect to both. The court sentenced Farr to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC) for manslaughter, with none suspended, and twenty years for aggravated assault, with fifteen years suspended, five years to serve, and five years of post-release supervision.

The sentences were ordered to run consecutively.

¶ 4. On March 7, 2016, Farr filed her PCR motion, which the trial court denied on March 28, 2016. Farr filed a letter on April 3, 2016, in which she requested information about how to proceed since the circuit court had denied her PCR motion. The circuit court interpreted this letter as a notice of appeal.

DISCUSSION

¶ 5. "A trial court's dismissal of a PCR motion will not be reversed absent a finding that the trial court's decision was clearly erroneous." Stokes v. State , 199 So.3d 745, 748 (¶ 7) (Miss. Ct. App. 2016) (citation omitted). "However, when issues of law are raised, the proper standard of review is de novo." Id. (citation omitted).

¶ 6. Farr sets forth six issues in her appellate brief; however, she fails to cite to any authority for any of those issues. "As an appellate court, we are not required to consider an argument which is not supported by authority." Doss v. State , 956 So.2d 1100, 1102 (¶ 7) (Miss. Ct. App. 2007) (citation omitted). An argument on appeal "shall contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on." M.R.A.P. 28(a)(7). While we will not ignore a meritorious claim simply because it is inartfully drafted, the deficiencies in Farr's brief transcend beyond mere inartful drafting. See Hill v. State , 940 So.2d 972, 974 (¶ 7) (Miss. Ct. App. 2006) ; Gatewood v. State , 909 So.2d 754, 756 (¶ 4) (Miss. Ct. App. 2005). Notwithstanding this fact, however, we briefly address each of Farr's claims.

I. Motion of Discovery

¶ 7. First, Farr argues that she was never provided discovery, despite repeated requests. Farr also maintains that she "never saw any of the evidence that was used against [her]," including "affidavits, warrants, transcripts, 911 call transcripts, police reports, medical records, statements from witnesses," and other documents pertaining to her case. In response, the State argues that Farr makes no meaningful argument with respect to this issue, as she neither asserts how this evidence would have served as a proper basis for the circuit court to grant her relief nor cites to authority to support her argument.

¶ 8. Farr's argument with respect to this issue is superceded by the fact that she pleaded guilty. "[A] plea of guilty waives any evidentiary issue." Jefferson v. State , 855 So.2d 1012, 1014 (¶ 11) (Miss. Ct. App. 2003) (citation omitted). As such, this argument has no merit.

II. Coercion

¶ 9. Second, Farr asserts that she was coerced into pleading guilty during her interrogation, because she was advised that, if she pleaded guilty, she would only serve twenty-five percent of twenty-five years, and that she would be eligible for parole in five years. Farr maintains that she was in shock during her interrogation, and that she was suffering from "PTSD, Battered Women's Syndrome," and various other mental impairments. In response, the State contends that Farr's claim is contradicted by a plea petition signed by her, wherein she attested to the fact that she was not promised a lighter sentence in exchange for pleading guilty. The State also argues that Farr admitted during her plea hearing that she did not suffer from any type of mental impairment that would have prevented her from intelligently entering her guilty plea, and that no one promised her a lighter sentence in exchange for pleading guilty. Finally, the State contends that Farr did not plead guilty until nearly a year after she was arrested and subsequently interrogated, weakening her argument that she was coerced during interrogation into pleading guilty.

¶ 10. We agree with the State. Farr presents no evidence in support of her argument, and the evidence included in the record supports the fact that Farr knowingly, intelligently, and voluntarily entered her plea. As such, we find no merit to this issue.

III. Ineffective Assistance of Counsel

¶ 11. Third, Farr argues that her attorney was ineffective for informing her "of accepting a plea that wasn't upheld by MDOC." Further, Farr argues that her attorney failed to argue that she was abused by Perry or that she had suffered from domestic violence. The State, in response, argues that Farr signed the plea petition, warranting that she was fully satisfied with her lawyer's assistance. The plea petition also states that no one promised her a lighter sentence.

¶ 12. "A voluntary guilty plea waives claims of ineffective assistance of counsel, except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea." Thomas v. State , 159 So.3d 1212, 1215 (¶ 10) (Miss. Ct. App. 2015) (internal quotations and citations omitted). We have already discussed earlier in this opinion Farr's claim that, during interrogation, she was coerced into pleading guilty and have found that the record belies her contention in that regard. Thus, her assertion that her counsel was ineffective for failing to raise the issue of domestic abuse has been waived, as there was no trial, leaving nothing to raise in the way of a defense.

¶ 13. As stated, Farr maintains that her attorney informed her "of accepting a plea that wasn't upheld by MDOC." It is not clear to us as to what Farr is attempting to assert in this statement. Farr follows the statement with an assertion that the MDOC has failed to set a date for her parole, despite the fact that, prior to entering her guilty plea, she was informed by her counsel that she would be eligible for parole after serving five years of her sentence. Farr may have been so informed, but we want to be clear that we are not saying that she was. What is more important is that Farr has not provided any affidavits, not even one from herself, supporting her assertion that her counsel informed her that she would be eligible for parole after serving five years of her sentence. Likewise, she provided no evidence to suggest that her counsel's conduct proximately resulted in her guilty plea, or that, but for her counsel's errors, she would not have pleaded guilty. She signed the plea petition, warranting that she was satisfied with her lawyer's assistance. We therefore find no merit to this issue.

IV. Remaining Arguments: Law Enforcement, Conflict of Interest, and Interests of Justice

¶ 14. As stated, Farr argues that law-enforcement personnel should have arrested Perry, the victim, prior to his death, on the basis that he had multiple outstanding arrest warrants. Farr's argument is essentially that it is law enforcement's fault that she killed Perry, because if they had arrested him, he would have been imprisoned, and she would not have been able to kill him. Farr argues that Marshall County law enforcement had a conflict of interest in her case because Perry worked as a confidential informant in drug cases for them. Farr's final argument is that, in the interest of justice, she should be granted a sentence reduction based on the lack of evidence and unfairness in her case. None of these issues have any merit, and to the extent that any of them might have had a sliver of any merit, it was waived and abandoned when she pleaded guilty to the charges against her. Further, as previously noted, Farr cites no authority to support her claims. We therefore affirm the circuit court's denial of her PCR motion.

¶ 15. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      March 6, 2016, fell on a Sunday; thus, Farr's filing of her PCR motion on Monday, March 7, 2016, was timely, as it was the first business day after her time to file had expired.

      We, too, find that Farr's letter was appropriately deemed a notice of appeal, pursuant to Rule 3(c) of the Mississippi Rules of Appellate Procedure, which provides that "[a]n appeal shall not be dismissed for informality of form or title of the notice of appeal." Farr's letter exhibited an intent to obtain a disposition regarding her PCR motion, despite knowing that it had already been denied by the circuit court. We interpret this as an attempt to appeal.

      Farr does not provide any further information about the interrogation. Presumably, the interrogation was conducted by a law-enforcement person.


author: LEE, C.J., FOR THE COURT:

text:
    Beulah M. THIBODEAUX, Appellant v. The HUMANE SOCIETY OF SOUTH MISSISSIPPI, a Mississippi Non-Profit Corporation, Appellee
    NO. 2016-CA-01627-COA
    Court of Appeals of Mississippi.
    July 14, 2016
    ATTORNEYS FOR APPELLANT: DAVID MICHAEL HUGGINS ZACHRY W. TURNER G. KEVIN HOWELL
    ATTORNEY FOR APPELLEE: PETER C. ABIDE
    BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. Beulah M. Thibodeaux filed suit against the Humane Society of South Mississippi after being bitten by a dog previously in the Humane Society's custody. The trial court granted summary judgment in favor of the Humane Society. In this appeal, we must determine whether the trial court erred in doing so. Finding summary judgment was properly granted in favor of the Humane Society, we affirm.

PROCEDURAL HISTORY

¶ 2. On April 11, 2013, Thibodeaux was bitten by a dog owned by Derek Paul Smith and Danette Smith-Petitt (the Smiths). Thibodeaux initially filed suit against the Smiths, but later amended her complaint to include the Human Society and the City of Biloxi (the City). The City was eventually dismissed due to Thibodeaux's failure to properly serve notice under the Mississippi Tort Claims Act. The Humane Society filed a motion for summary judgment, which the trial court granted. Thibodeaux now appeals, asserting that the trial court erred in granting summary judgment for two reasons: (1) the Humane Society owed her a duty of care under the dangerous-propensity rule, and (2) she is a third-party beneficiary to the contract between the Humane Society and the City.

FACTS

¶ 3. On February 12, 2013, Amanda Herndon, an officer with the City's animal-control office, responded to a call concerning a dog bite in an area of town near Irish Hill Drive and Travia Avenue. This area was known to be populated by homeless persons and was referred to in the record as a "homeless camp." Herndon completed a "bite report" noting that the dog bit a female on the left leg. Per an agreement between the City and the Humane Society, Herndon transported the dog to the Humane Society for a ten-day quarantine. The intake form completed by Herndon indicated that the dog's owner was unknown at the time. The bite report and the intake form were attached to the dog's cage during the quarantine period.

¶ 4. Crystal Cornelson was the Humane Society's animal-control supervisor. In her deposition, Cornelson stated that she observed the dog during the quarantine period and had no problems with it. After the quarantine period ended, the dog was released to his owner, Dennis Lanter. Although Herndon had testified in her deposition that Lanter was homeless, Cornelson stated that she was unaware of this since Lanter gave the Humane Society an address and phone number. In response to a question asking whether she attempted to verify addresses before releasing animals to their owners, Cornelson responded, "No, sir. All we have is their ID that we get from them, and the address that they give us." Cornelson also testified that the dog would not have been released if the intake form indicated the dog was dangerous and should not be released to Lanter. Cornelson further stated that it was the animal-control officer's responsibility to notify them if a dog should not be released.

¶ 5. On March 27, 2013, Herndon and Candice Jones, an officer with the City's animal-control office, conducted a follow up with Lanter regarding the dog. According to Jones and Herndon, the dog was chained to a tree at the homeless camp. Since this violated a city ordinance, Herndon gave Lanter the option to complete an owner-surrender form in order to avoid paying a fine. Lanter agreed, and the dog was then transported to the Humane Society. The form indicated that Lanter had until April 3, 2013, to revoke his voluntary surrender and retrieve the dog; otherwise the dog would remain at the Humane Society. Both Jones and Herndon indicated that while transferring the dog to the Humane Society, the dog was acting aggressively.

¶ 6. Portions of another Humane Society employee's deposition are in the record. According to Tara High, the purpose of the ten-day quarantine is to determine whether a dog that has bitten someone shows symptoms of rabies. And the animal must be released back to the owner after the ten days "if the owner requests the animal back, unless we are told not to do so."

¶ 7. Lanter returned to the Humane Society on March 29, 2013, to retrieve his dog. The record includes a form titled "Return to Owner/Guardian Contract." The form contains Lanter's name, address, and the dog's information. Below that information, the form states, "I certify that I am the legal owner of the above described animal that I am claiming. I acknowledge that [the Humane Society] has been the housing agent only for the animal since it was impounded and has no responsibility for the health or condition of the animal." At some point before Thibodeaux was bitten on April 11, 2013, Lanter gave the dog to the Smiths.

STANDARD OF REVIEW

¶ 8. The grant of a motion for summary judgment is reviewed de novo. Karpinsky v. Am. Nat'l Ins. , 109 So.3d 84, 88 (¶ 9) (Miss. 2013). We view the evidence "in the light most favorable to the party against whom the motion has been made." Id.

Summary judgment is appropriate and shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to [a] judgment as a matter of law. Importantly, the party opposing summary judgment may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in [ Mississippi Rule of Civil Procedure 56 ], must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will be entered against him.
[The Mississippi Supreme] Court has explained that in a summary judgment hearing, the burden of producing evidence in support of, or in opposition to, the motion is a function of Mississippi rules regarding the burden of proof at trial on the issues in question. The movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to [a] judgment as a matter of law. The movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [the movant] would bear the burden of proof at trial. Furthermore, summary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.

Id. at 88-89 (¶¶ 10-11) (internal quotation marks, emphasis, and citations omitted).

DISCUSSION

I. Dangerous-Propensity Rule

¶ 9. Thibodeaux first argues that there were genuine issues of material fact as to the Humane Society's ownership of the dog and its employee's knowledge of the dog's dangerous propensities. To hold a dog owner liable for personal injuries caused by the dog,

there must be some proof that the animal has exhibited some dangerous propensity or disposition prior to the attack complained of, and, moreover, it must be shown that the owner knew or reasonably should have known of this propensity or disposition and reasonably should have foreseen that the animal was likely to attack someone.

Poy v. Grayson , 273 So.2d 491, 494 (Miss. 1973).

¶ 10. Thibodeaux contends that the Humane Society became the legal owners of the dog after Lanter surrendered it and should never have released the dog to Lanter the second time. Lanter did complete the owner-surrender form where he transferred his ownership of the dog to the Humane Society. To be clear, the dog was not taken back to the Humane Society due to another bite incident; rather, it was Lanter's choice to surrender the dog to the Humane Society. However, Lanter was given the opportunity to retrieve the dog before April 3, 2013, which Lanter did on March 29, 2013. According to testimony and documentary evidence, the Humane Society was within its right to release the dog to its original owner unless otherwise instructed by the animal-control officers. Testimony indicates the animal-control officers never instructed the Humane Society not to release the dog to its owner. Clearly, the Humane Society was aware of the dog's dangerous propensities since the dog was first transported to the Humane Society on February 12, 2013, after biting someone. But the Humane Society did not have ownership of the dog at the time it bit Thibodeaux. As a result, we find the Humane Society's motion for summary judgment was properly granted.

II. Third-Party Beneficiary

¶ 11. Thibodeaux also argues that she was a third-party beneficiary to the contract between the Humane Society and the City. "Third-party beneficiary status arises from the terms of the contract." Simmons Housing Inc. v. Shelton , 36 So.3d 1283, 1286 (¶ 10) (Miss. 2010). An entity may be considered a third-party beneficiary if:

(1) the contract between the original parties was entered for that person's or entity's benefit, or the original parties at least contemplated such benefit as a direct result of performance; (2) the promisee owed a legal obligation or duty to that person or entity; and (3) the legal obligation or duty connects that person or entity with the contract.

Id. The supreme court has provided the following for determining third-party-beneficiary status:

(1) When the terms of the contract are expressly broad enough to include the third party either by name as one of a specified class, and (2) the said third party was evidently within the intent of the terms so used, the said third party will be within its benefits, if (3) the promisee had, in fact, a substantial and articulate interest in the welfare of the said third party in respect to the subject of the contract.

Id. Furthermore, "[a] third-party beneficiary also must benefit directly from the contract.... A mere incidental or consequential benefit is insufficient." Id. at 1286-87 (¶ 11).

¶ 12. The agreement between the Humane Society and the City states in pertinent part:

Bite Animals. The Humane Society ... agrees to accept from the animal control officers of the City of Biloxi, Mississippi, those animals alleged to have bitten a person, as provided in this Agreement. For every such animal delivered, the City of Biloxi, Mississippi, agrees to deliver to the Humane Society ... a police report describing the bite incident within forty-eight (48) hours of delivery of the animal. The Humane Society ... will hold said animals for a period of not more than 10 days after which time the bite case shall have been resolved or the impounding animal control agency shall take charge of the care of the animal.... Disposition of unclaimed animals after the requisite holding period is left to the sole discretion of the Humane Society ....
The City ... further agrees to indemnify the Humane Society ... from any responsibility or liability resulting from the physical condition and/or actions of said animals, both during the holding period and after their release, if any.
If the animal is surrendered by the owner, the City of Biloxi shall be responsible for the costs of the ten (10) day quarantine and necessary medical treatments. If the animal is returned to the owner, then the owner shall be responsible for the costs incurred for the ten (10) day quarantine and necessary medical treatments. The cost for a ten (10) day bite case quarantine is twelve dollars and 50/100 ($12.50) per day. Refer to Section 3 regarding payment.

The language of the agreement between the Humane Society and the City clearly states the agreement is between those two entities. There is also no language identifying persons such as Thibodeaux as a member of a specified class of beneficiaries. There is no language reflecting the intent of either party to include anyone else as a beneficiary to the agreement. We find this issue without merit.

¶ 13. AFFIRMED.

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


author: BARNES, J., FOR THE COURT:

text:
    Marcus Andrew WALKER a/k/a Marcus Walker a/k/a Marcus A. Walker, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00873-COA
    Court of Appeals of Mississippi.
    December 5, 2017
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: JUSTIN TAYLOR COOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JASON L. DAVIS
    BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Marcus Walker was convicted of felony escape in Forrest County Circuit Court, and sentenced to five years in the custody of the Mississippi Department of Corrections (MDOC). After the circuit court denied his post-trial motion, he appealed. Finding no error, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2008, Walker was convicted of simple robbery and sentenced to twenty years in the custody of the MDOC, with fifteen years suspended and five years of post-release supervision. In October 2012, Walker was arrested on a misdemeanor charge. The circuit court entered an order revoking Walker's probation for the robbery charge on November 1, and he was ordered to serve five years of his suspended sentence in the custody of the MDOC. While Walker was being held by the Forrest County Sheriff's Department, awaiting transportation to an MDOC facility, he was assigned as a trustee to the service center utilized by the sheriff's department for servicing its vehicles. On November 26, 2012, he escaped from the work detail.

¶ 3. On December 8, 2012, the United States Marshal's Fugitive Task Force received a tip that Walker was in a motel room in Hattiesburg, and he was arrested without incident. On December 10, 2012, MDOC Investigator James Cooksey interviewed Walker. After being advised of his rights, Walker signed a waiver and gave a statement, admitting he was serving a five-year sentence for robbery. Walker said he walked around the fence in the service center, camped out in nearby woods, and stayed with relatives until they discovered he was a fugitive and made him leave. He stayed at a nearby motel until he was apprehended.

¶ 4. After a jury trial, Walker was convicted of felony escape on May 12, 2016, and sentenced to five years in MDOC custody, with the sentence to run consecutively to any other sentence(s) being served. Walker filed a motion for a judgment notwithstanding the verdict, which the court denied. Aggrieved, Walker filed this appeal. Walker is represented by the Indigent Appeals Division of the Office of State Public Defender, which has filed a brief with this Court pursuant to Lindsey v. State, 939 So.2d 743 (Miss. 2005), stating no arguable issues exist for appeal. Appellate counsel confirmed that he sent a copy of the brief to Walker, along with correspondence informing Walker that he found no arguable issues in the record to raise as error and that Walker had a right to file a pro se brief to raise any perceived errors. Walker has submitted a pro se brief, arguing: (1) the State failed to prove beyond a reasonable doubt the required elements of felony escape; (2) the jury should have been instructed on a lesser-included misdemeanor escape charge; and (3) his indictment was defective as it had expired under Mississippi Code Annotated section 99-17-1 (Rev. 2015).

DISCUSSION

¶ 5. In Lindsey, the Mississippi Supreme Court set forth the process to follow when appellate counsel for an indigent criminal defendant concludes no arguable issues exist on appeal, stating:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1) -[ (5), (8) ]; see also [ Smith v. ] Robbins, 528 U.S. [259,] 280-81, 120 S.Ct. 746, 145 L.Ed.2d 756 [ (2000) ] (stating that "counsel's summary of the case's procedural and factual history, with citations of the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case.").
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client's appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding the arrest; (b) any possible violations of the client's right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant's success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Lindsey , 939 So.2d at 748 (¶ 18) (internal citations and footnotes omitted). We find Walker's attorney has complied with all the requirements of Lindsey. Appellate counsel's brief states that he "diligently searched the procedural and factual history of this criminal action and scoured the record," finding no arguable issues for appeal. Counsel also asserts he considered and reviewed:

(a) the reason for the arrest and the circumstances surrounding the arrest of Walker; (b) any possible violation of Walker's right to counsel; (c) the entire trial transcript and content of the record; (d) all rulings of the trial court; specifically, the rulings on various defense counsel objections, including, but not limited to, objections made by defense counsel that were properly sustained; (e) possible prosecutorial misconduct; (f) all jury instructions, specifically, but not limited to, those requested by defense counsel and denied by the trial court; (g) all exhibits, whether admitted into evidence or not; (h) possible misrepresentation of the law in sentencing, including but not limited to the constitutionality of Walker's sentence; (i) the indictment and all of the pleadings in the record; (j) any possible ineffective-assistance-of-counsel issues; (k) any potential discovery violations; (l) any potential violation to Walker's speedy[-]trial right; and (m) whether there was error in failing to grant Walker's lesser-included misdemeanor escape instructions.

Walker was informed that counsel found no arguable issues in the record and that he had the right to file a pro se brief, which he did. We will briefly address the merits of Walker's claims.

¶ 6. Walker argues that because he did not escape using force or violence, he was indicted under the improper statute. Mississippi Code Annotated section 97-9-49 (Rev. 2014) provides:

(1)(a) Whoever escapes or attempts by force or violence to escape from any jail in which he is confined, or from any custody under or by virtue of any process issued under the laws of the State of Mississippi by any court or judge, or from the custody of a sheriff or other peace officer pursuant to lawful arrest, shall, upon conviction, if the confinement or custody is by virtue of an arrest on a charge of felony, or conviction of a felony, be punished by imprisonment in the penitentiary not exceeding five (5) years to commence at the expiration of his former sentence, or, if the confinement or custody is by virtue of an arrest of or charge for or conviction of a misdemeanor, be punished by imprisonment in the county jail not exceeding one (1) year to commence at the expiration of the sentence which the court has imposed or which may be imposed for the crime for which he is charged.
(b) Whoever escapes or attempts by force or violence to escape from any confinement for contempt of court, shall, upon conviction, be found guilty of a misdemeanor and sentenced to imprisonment not to exceed six (6) months in the county jail.
(2) Anyone confined in any jail who is entrusted by any authorized person to leave the jail for any purpose and who willfully fails to return to the jail within the stipulated time, or after the accomplishment of the purpose for which he was entrusted to leave, shall be an escapee and shall be subject to the penalties provided in subsection (1).

The Mississippi Supreme Court has rejected Walker's argument, finding that the "use of force or violence" is not a required element of the offense of escape under section 97-9-49(1).

Correctly read, the statute provide[s] for two offenses: escape and attempted escape. First, escape, without adjectival qualification, is made unlawful. Then, attempts at escape "by force or violence" are made unlawful. The "force or violence" wording in the statute refers only to attempted escape and not to the separate and distinct offense of escape, properly so called.

Miller v. State , 492 So.2d 978, 981 (Miss. 1986) (footnote omitted). Walker was charged with escape; therefore, the State was not required to prove Walker used "force or violence" to escape.

¶ 7. Walker also contends that the court's refusal of his instruction on lesser-included misdemeanor escape was reversible error. Generally, jury instructions are within the circuit court's discretion; therefore, this Court reviews the circuit court's denial of a jury instruction for abuse of discretion. Wallace v. State , 139 So.3d 75, 77 (¶ 7) (Miss. Ct. App. 2013) (citing Newell v. State , 49 So.3d 66, 73-74 (¶ 20) (Miss. 2010) ). Denying Walker's post-trial motion, the circuit court determined that "jury instructions related to the lesser offense of misdemeanor escape w[ere] not warranted under the evidence or applicable law." We agree. "No party is entitled to an instruction unless it is supported by the evidence." McDonald v. State , 784 So.2d 261, 267 (¶ 31) (Miss. Ct. App. 2001). The circuit judge revoked Walker's probation for the charge of robbery on November 1, 2012. Walker escaped from custody on November 26, while awaiting transfer to an MDOC facility. In his statement to the MDOC investigator, Walker confessed that he left the work detail without authorization and that he was in custody for robbery, a felony. Further, at a hearing on his motion to suppress his statement, Walker acknowledged that he gave the statement of his own free will and that his statement was truthful and correct. "Absent a factual basis for an instruction, there is no error in refusing to grant it." Teer v. State , 843 So.2d 39, 42 (¶ 5) (Miss. Ct. App. 2002) (quoting Bolton v. State, 752 So.2d 480, 485 (¶ 24) (Miss. Ct. App. 1999) ). As there was no evidence to support a jury instruction for misdemeanor escape, we find no abuse of discretion in the court's refusal of the instruction.

¶ 8. Lastly, Walker claims that he should have not gone to trial because his indictment expired under Mississippi Code Annotated section 99-17-1, which states: "Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned." The first step in determining whether a statutory violation of the right to a speedy trial occurred "is to calculate the total number of days between arraignment (the statute clearly states that is when the right attaches) and the actual trial." Walker v. State , 196 So.3d 978, 982 (¶ 17) (Miss. Ct. App. 2015) (quoting Sharp v. State, 786 So.2d 372, 378 (¶ 5) (Miss. 2001) ). Since Walker was arraigned on January 25, 2016, and convicted on May 12, 2016-a total of 108 days-his claim has no merit.

¶ 9. Accordingly, we affirm the circuit court's judgment.

¶ 10. AFFIRMED.

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