author: BARNES, J., ISHEE, J.,

text:
    Paul ROBINSON, Appellant v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee
    NO. 2015-CP-00681-COA
    Court of Appeals of Mississippi.
    03/21/2017

      ATTORNEY FOR APPELLANT: PAUL ROBINSON (PRO SE)
    ATTORNEYS FOR APPELLEE: ANTHONY LOUIS SCHMIDT JR., OFFICE OF THE ATTORNEY GENERAL, BY: DARRELL CLAYTON BAUGHN
   BARNES, J.,

FOR THE COURT:

¶,1. Paul Robinson filed a pro se action in Leake County Circuit • Court, seeking review of two decisions rendered under the Mississippi Department of Corrections’ (MDOC) Administrative Remedies Program (ARP). In his petition, he alleged the MDOC improperly withdrew funds frpm his inmate account, and he sought relief in the form of reimbursement, legal fees, and punitive damages. However, Robinson filed his complaint against Walnut Grove Correctional Facility (Walnut Grove), not the MDOC, and he failed to serve process on either Walnut Grove or the MDOC. The circuit court summarily dismissed' the claims, and Robinson filed this appeal. On June 17, 2016, this Court ordered that Walnut Grove be dismissed as a party and that the MDOC be substituted in its place.

¶ 2. Finding the circuit court had jurisdiction- and cause to dismiss Robinson’s claim sua sponte, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Robinson was' convicted of murder in Bolivar County Circuit Court in June 2003’ and was sentenced to life in prison. After serving time at the Greene County Correctional Facility, Robinson was transferred to Walnut Grove. On April 11, 2013, Robinson requested legal mail services in the amount of $13.88. Since his inmate account balance was only $2.38 at the time services were rendered, the funds for the services were later withdrawn automatically from his account on May 21, 2013, when his balance was sufficient to cover the overdue costs. This withdrawal of funds was in accordance with the MDOC’s policy. On September 3, 2013, Robinson filed a complaint under the ARP, alleging he was overcharged by $13.88 on his inmate account. In its first-step-response form, the MDOC explained to Robinson that he was charged $13.88 for legal mail services rendered in April 2013. Robinson proceeded to the second step in the ARP, and his claim was again rejected. On January 16, 2014, Robinson acknowledged the MDOC’s final decision to reject his complaint. Robinson did not appeal this decision to the circuit court within the required thirty days.

¶ 4. Subsequently, on July 10,2014, Rob.inson mailed five separate letters, costing $5.32 each and totaling $26.60 in legal mailing fees. Again, his inmate account balance.was insufficient to cover the fees; so his account was not charged until November 16, 2014, after $50.00 had been deposited into the account. In January 2015, Robinson filed another complaint under the ARP, arguing the November 2014 charge was incorrect. After his complaint was rejected, he went through the remaining steps of the ARP process, and on February 24, 2015, the MDOC entered a final decision, finding no merit to his claim.

¶ 5. Robinson filed a complaint with the Leake County Circuit Court on March 9, 2015. He sought reimbursement for the disputed withdrawals in September 2013 and November 2014. Although he was disputing the MDOC’s decision to reject his earlier claims, Robinson named Walnut Grove as a party. The MDOC was not named as a party, nor was it served with process.

¶ 6. The circuit court summarily dismissed Robinson’s claims, and Robinson timely appealed the court’s judgment. On March 21, 2016, Walnut Grove filed a motion to dismiss based on the grounds that it was not a legal entity subject to suit, was never served process, and had no involvement in handling Robinson’s inmate account. On June 7, 2016, this Court denied the motion to dismiss the appeal. However, we dismissed Walnut Grove as a party to the suit, the MDOC was substituted as a party in its place, and the case was restyled as Paul Robinson v. Mississippi Department of Corrections.

DISCUSSION

¶ 7. Robinson claims that his due-process rights were violated by the withdrawals made to his inmate account. The MDOC argues that Robinson’s failure to name the MDOC as a party and to serve the MDOC with process deprived the circuit court of jurisdiction to consider his claims. The dissent agrees with the MDOC’s position, arguing that the absence of the service of process warrants a vacation of the court’s judgment and a remand for further proceedings. We find that the circuit court had jurisdiction to dismiss Robinson’s frivolous claim.

¶ 8. In Duncan v. Johnson, 14 So.3d 760, 762 (¶ 4) (Miss. Ct. App. 2009), this Court recognized our trial courts’ “inherent authority to dismiss frivolous complaints, sua sponte, even prior to service of process on the defendants.” (Citations omitted).

Although a trial court is required to give a liberal construction to pro se civil rights complaints, see Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994), we review a trial court’s conclusion that a. complaint is frivolous for abuse of discretion. Huggins v. State, 928 So.2d 981, 983 (¶ 4) (Miss. Ct. App. 2006). The power to dismiss a frivolous complaint is distinct from a trial court’s authority to dismiss for failure to state a claim under [Mississippi] Rule [of Civil Procedure] 12(b)(6). See Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A trial court has “not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Id. at 327, 109 S.Ct. 1827.

In Neitzke, 490 U.S. at 324, 109 S.Ct. 1827, the United States Supreme Court noted that “[dismissals on these grounds are often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such complaints.”

¶ 9. Thus, although Robinson failed to serve process on the proper defendant, the trial court had the authority to dismiss the claim if it found that Robinson’s complaint was meritless. In his complaint, Robinson claimed that he was overcharged for postage fees on two occasions, and the withdrawals of funds for these fees from his inmate account were a violation of due process. MDOC Standard Operating Procedure 20-02-01 provides: “Offenders will be required to pay their own postage if they have sufficient funds.” The documents attached to Robinson’s complaint contradict his allegations. Robinson -incurred postage charges of $13.88 on April 11, 2013, and the MDOC clearly explained in its ARP response form that those funds were not debited until the following month, due to insufficient funds in Robinson’s inmate account at the time of mailing. Additionally, Robinson’s inmate account state-' ment showed a postage liability of $26.36 •on October 20, 2014. Again, since his inmate account balance was insufficient to pay the charges at that time, those funds were debited against a $50,00 deposit into his account the following month, on November 16, 2014, leaving him a balance of $23:64.

¶ 10. The trial court correctly determined in its order of dismissal that “upon review of the face of the Petition that this Court cannot grant any relief.” In Leavitt v. Carter, 178 So.3d 334, 338 (¶ 12) (Miss. Ct. App. 2012), we affirmed a trial court’s sua sponte dismissal of the appellants’ complaint, although the court’s dismissal merely concluded that the complaint was without a “sound basis in law,” noting there was nothing to indicate the court dismissed “for lack of jurisdiction.” As there is no indication the trial court dismissed for lack of jurisdiction, rather than the lack of merit, we affirm its dismissal of Robinson’s claims.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO- LEAKE COUNTY.

LEE, C.J., GRIFFIS,. P.J., CARLTON, FAIR AND GREENLEE, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT. SEPARATE WRITTEN OPINION. ISHEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY WESTBROOKS, J. • IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

ISHEE, J.,

DISSENTING:

¶12. With respect to the majority; I dissent. Robinson fíled a pro se action in Leake County Circuit C.qurt, seeking review of two decisions rendered under the MDOC’s ARP. Robinson did not list the MDOC as a party to the. litigation,, nor did he serve process on the MDOC. Robinson alleged that the MDOC improperly took funds from his. inmate account, and he sought relief in the form of reimbursement, legal fees, and punitive damages. The circuit court summarily dismissed Robinson’s claims, and Robinson filed this appeal. On June 7,' 2016, this Court ordered that Walnut Grove Correctional Facility be dismissed as a party and that the MDOC be substituted in its place.1 adopt the facts as stated in the majority opinion; however, because I find that the proper party to this action was never served with process, I would vacate the circuit court’s dismissal and remand this case back to the circuit court for proceedings in accordance with Rule ¾ of the' Mississippi Rules of Civil Procedure.

DISCUSSION

¶ 13. Jurisdictional questions receive' a de novo review. McCain Builders Inc. v. Rescue Rooter LLC, 797 So.2d 952, 954 (¶ 7) (Miss. 2001). “Personal jurisdiction is established when a defendant is properly served the summons and complaint under Rule 4 of the Mississippi Rules of Civil Procedure.” Richard v. Garma-Fernandez, 121 So.3d 929, 933 (¶ 21) (Miss. Ct. App. 2013). Personal jurisdiction is also established when a defendant voluntarily enters a general -appearance. Isom v. Jernigan, 840 So.2d 104, 107 (¶ 9) (Miss. 2003) (citations omitted). Without either occurrence, the circuit court does not have jurisdiction over the person. Mansour v. Charmax Indus. Inc., 680 So.2d 852, 854 (Miss. 1996) (citing State ex rel. Moak v. Moore, 373 So.2d 1011, 1012 (Miss.1979)). “Jurisdiction of the court is not obtainéd by a defendant informally becoming aware that a suit has been filed against [him]. Complete absence of service of process offends due process and cannot be waived.” Isom, 840 So.2d at 107 (¶ 10) (citing Mansour, 680 So.2d at 854-55).

¶ 14. Robinson failed to serve process upon the proper party in this case. Therefore, I would vacate the circuit court’s judgment dismissing the case against Walnut Grove Correctional Facility, and re-, mand this case for proceedings in accordance with Rule 4 of the Mississippi Rules of Civil Procedure.

WESTBROOKS, J., JOINS THIS OPINION.

      . Although not attached to his original complaint and, therefore, not considered by the trial court in its decision, Robinson also acknowledged in writing on April 11, 2013, that his account balance ($2.38) was insufficient to cover postal charges of $13.88 and that he understood that amount would be paid "at such time as funds are received.”

      . Mississippi Code Annotated section 47-5-807 (Rev. 2015) provides: "Any offender who is aggrieved by an adverse decision rendered pursuant to any administrative review procedure ... may, within thirty (30) days after receipt of the agency's final decision, seek judicial review of the decision.”

      . In its order, this Court'found that the circuit court, improperly styled the case as Paul Robinson v. Walnut Grove Correctional Facility; Walnut Grove was not targeted in the initial complaint by reference or allegation. Instead, this Court found that the MDOC was targeted in the. initial complaint and that the MDOC was the proper party. Thus, Walnut Grove was dismissed as an improper party to the appeal, and the MDOC was substituted in its place. See Order, 2015-CP-00681-COA (Miss. Ct. App. June 9, 2016).


source: Caselaw Access Project

author: GREENLEE, J.,

license: Public Domain

text:
    Davarrius BROWN a/k/a Devarrius Deontay Garrett a/k/a Devarrius Garrett a/k/a Devarrius Garrett Brown a/k/a Devarious Deontay Brown a/k/a Devarious Garrett Brown a/k/a Devarious Dontay Brown a/k/a Devarrious Garrett a/k/a Devarrius D. Garrett a/k/a Devarrius Deontay Garrett Brown a/k/a Devarius Garrett Brown a/k/a Devarius Deontay Brown v. STATE of Mississippi
    NO. 2016-CP-00006-COA
    Court of Appeals of Mississippi.
    03/21/2017
    ATTORNEY FOR APPELLANT: DA-VARRIUS BROWN (PRO SE)
    ■ ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN JASON L. DAVIS ANTHONY LOUIS SCHMIDT JR.
   GREENLEE, J.,

FOR THE GOURT:

¶ 1. Davarrius Brown appeals pro se to this Court arguing that the Mississippi Department of Corrections (MDOC) incorrectly computed the date of his parole eligibility following sentencing for his fifth and sixth felony convictions. Finding no error, we. affirm.

FACTS AND PROCEEDINGS BELOW

¶2. In 2012, Brown pleaded guilty to one count of felony shoplifting, and had a previous nonadjudication for one count of felony shoplifting set aside. In 2013, Brown pleaded guilty to yet another count of felony shoplifting. For each of these three convictions, Brown was sentenced to ten years, with five years to serve followed by five years of post-release supervision. All together, the time to serve amounted to three consecutive five-year terms. Brown was enrolled in the Intensive Supervision Program, .(ISP) and began serving these sentences under “house arrest,”

¶ 3. In May 2014, while still under the ISP and wearing an ankle monitor, Brown was arrested for felony shoplifting from a department store. Later that day, while still being processed in booking, Brown escaped police custody due to a faulty jail-cell door. The authorities promptly tracked him through his ankle monitor, and he was apprehended. Brown pleaded guilty to felony shoplifting and escape, and was sentenced in March 2015 to a total of fifteen years (ten for shoplifting and five for escape, with the sentences to run consecutively to each other). The 2015 sentencing order is silent as to how the new sentences should-run in relation to the 2012 and 2013 sentences,

¶ 4. Brown was not sentenced as a habitual offender. MDOC gave him a parole-eligibility date of January 21, 2020. This was calculated by first measuring twenty-five percent of his 2012 and 2013 consecutive sentences (3.75 years) followed consecutively by twenty-five percent of his 2015 sentences (an additional 3.75 years). Brown filed a motion in the Circuit Court of Madison County, arguing that the 2012 and 2015 sentences should be treated as concurrent for purposés of calculating parole eligibility. Treating Brown’s motion as a motion for post-conviction relief, the circuit court summarily dismissed it. Brown appeals.

DISCUSSION

¶ 5. An inmate may contest the computation of a parole-eligibility date as an original action in circuit court without first exhausting administrative remedies. Keys v. State, 67 So.3d 758, 760 (¶ 9) (Miss. 2011); Ducksworth v. State, 103 So.3d 762, 764-65 (¶ 14) (Miss. Ct. App. 2012); Lattimore v. Sparkman, 858 So.2d 936, 938 (¶ 7) (Miss. Ct. App. 2003). The State failed to identify or distinguish this line of controlling cases in its brief, pointing instead to the requirement in Mississippi Code Annotated section 47-5-803 (Rev. 2015) that “no state court shall entertain an offender’s grievance or complaint which falls under the purview of the administrative review procedure unless and until such offender shall have exhausted the remedies as provided in such procedure.” But as this Court discussed in detail in Lattimore, parole eligibility does not clearly fall under the purview of the administrative-review procedure. Lattimore, 858 So.2d at 938 (¶ 7). Therefore we follow the rule that inmates may—but are not required to— use the administrative-review procedure as a way of challenging' parole eligibility. Id.

¶ 6. Brown’s argument that he has a liberty interest in parole is without merit; Mississippi law is settled that criminal offenders have “no constitutionally recognized liberty interest in parole.” Vice v. State, 679 So.2d 205, 208 (Miss. 1996). By statute, the Mississippi Parole Board has the exclusive responsibility and discretion over whether to grant an inmate parole. Miss. Code Ann. § 47-7-3(3) (Supp. 2016).

¶ 7. Brown’s argument that his sentences should run concurrently fails due to the provisions of Mississippi Code Annotated section 99-19-21(2) (Rev.' 2015), which states:

When a person is sentenced to imprisonment for a felony committed while the person was on parole, probation, earned-release supervision, post-release supervision or suspended sentence, the imprisonment shall commence at the termination of the. imprisonment for the preceding conviction. The term of imprisonment for a felony committed during parole, probation, earned-release supervision, post-release supervision or suspended sentence shall not run concurrently with any preceding term of imprisonment ... .

Here, Brown was under the ISP for his 2012 convictions when he committed felony shoplifting. Following the requirement that his new sentences “shall not run concurrently with any preceding term of imprisonment,” his 2012 and 2015 sentences must be treated as running consecutively. Id. When arriving at Brown’s January 2020 parole-eligibility date, MDOC did not err in placing the minimum he must serve on his 2015 sentences consecutive to the minimum he must serve on his 2012 and 2013 sentences.

¶8. Brown points to the general rule that when a sentencing order is silent as to how two sentences will run in regard to each other, the sentences will be construed as running concurrently. Shinn v. State, 74 So.3d 901, 906 (¶ 14) (Miss. Ct. App. 2011). However, as discussed above, this rule is not applicable to the circumstance where the new crime was committed while the defendant is still under supervision for a previous conviction. We also note that “[c]oneurrent sentences do not necessarily begin and end at the same time—they simply run together during the time that they overlap.” Smith v. State, 853 So.2d 1277, 1279 (¶ 6) (Miss. Ct. App. 2003). Therefore even if we had grounds to find that Brown’s sentences should run concurrently, his 2015 sentence would not date back to 2012 as Brown argues.

CONCLUSION

¶ 9. This Court has jurisdiction to hear Brown’s argument that his parole-eligibility date was incorrectly calculated. However, Brown’s 2013 and 2015 sentences may not be served concurrently pursuant to Mississippi Code Annotated section 99-19-21(2). We therefore affirm the circuit court’s denial of relief.

• If 10. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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

      . The sentencing orders specified that the sentences were to run consecutively.

      . See also Miss. Code Ann, § 47-7-29 (Rev. 2015).


author: WILSON, J., BARNES, J.,

text:
    Randall COOPER, Jr. a/k/a Randall Cooper a/k/a Randall Carl Cooper, Jr. a/k/a Randall C. Cooper, Jr. a/k/a Randall Carl Cooper, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00846-COA
    Court of Appeals of Mississippi.
    03/28/2017
    Rehearing Denied July 25, 2017
    Certiorari Denied September 28, 2017

      ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, HUNTER N. AIKENS
    ATTORNEYS FOR APPELLEE: OFFICE“OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS, LADONNA C. HOLLAND
    BEFORE BARNES, WILSON AND GREENLEE, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. Randall Cooper was indicted for murder after he shot Virgil Harris. At trial, eyewitnesses to the shooting testified, as did investigating law enforcement officers. The court instructed the jury on first-degree murder, second-degree murder, heat-of-passion manslaughter, and self-defense. The jury found Cooper guilty of first-degree murder, and the court sentenced him to life imprisonment.

¶ 2. On appeal, Cooper argues that the circuit court erred by granting three of the State’s jury instructions and by. denying one of his proposed instructions. Cooper claims that the jury was not adequately instructed on the issue of self-defense and that the court’s instructions on the concept of “deliberate design” and the relationship and differences between murder and manslaughter were confusing and misleading. Cooper also claims that the evidence was insufficient to convict him of first-degree murder and that the verdict was against the overwhelming weight of the evidence. He argues that the evidence established a reasonable doubt that he shot.the victim in the heat of passion or in self-defense.

¶ 3. For the reasons that follow, Cooper’s arguments are without merit. In addition, Cooper failed to object to the jury instructions that he challenges on appeal, so those issues are procedurally barred. Accordingly, we affirm Cooper’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 4. On December 19, 2013, Cooper, Vur-sha Lovelace, and Virgil Harris (Virgil) all attended a party at Lovelace’s brother’s apartment. When Lovelace arrived at the party, Cooper was one of a dozen or so guests present. Guests were drinking and shooting dice. Lovelace left the party briefly, and when she returned, Virgil had also arrived. Lovelace noticed that Virgil had a gun when she first saw him, although she did not see the gun when she saw him again later.

¶ 5. Lovelace later received a call from Tevin Harris (Harris), who asked her to come pick him up. Earlier in the night, Virgil had asked Lovelace for a ride, so she told him that she was leaving the party to get Harris and that she could drop him off. Virgil told Lovelace that he wanted to go to .Sanfield and gave her five dollars to drive him there, Virgil sat in the front passenger seat of Lovelace’s Monte Carlo. Lovelace did not see a gun when Virgil got into the car. As Lovelace and Virgil were about to leave, Cooper followed them outside and asked for a ride. He got in the backseat behind Lovelace. They drove to Harris’s house to pick him up, and Harris sat in the back seat behind Virgil. Harris later testified that he saw a .380-caliber handgun on Virgil’s lap as he approached the Monte Carlo. The four then continued to Sanfield to drop Virgil off.

¶ 6. As they drove down the highway, Virgil became agitated and began “talking crazy.” Cooper told Virgil to calm down. Virgil said he would slap Lovelace if she were not his brother’s sister. Virgil threatened to “burn” (i.e., shoot) everyone in the ear. Although they had not reached San-field, Virgil told Lovelace to pull over and let him out. Lovelace pulled over, and as Virgil exited the car, he called everyone in the car “the B word.” Lovelace testified, “So when [Virgil] said that, Cooper leaned over [and] shot him one time.” Virgil fell to the ground, and Cooper leaned over him and continued shooting. Lovelace put the car in park and ran to Virgil. Cooper and Harris got out of the car as well. Suddenly, Cooper and Harris jumped in the driver and passenger seats respectively, and Lovelace jumped in the backseat. Cooper drove a block or two and stopped, and then he and Harris got out of the car and ran. Lovelace returned to the scene.

¶ 7. At trial, Lovelace testified to the above version- of events. She denied that she was ever afraid while Virgil was “talking crazy,” but she admitted that she was glad when he wanted to get out of the car. Though Lovelace initially testified that she did not tell the police that Virgil had said “take me to jail” or “I’ll spray everyone in this car,” she.later admitted telling police that Virgil had made those statements. Lovelace also reiterated that she never saw Virgil’s gun in the car.

¶ 8. Harris testified that he felt threatened by Virgil’s statements in the car because he had seén Virgil’s gun when he entered the car. Harris said that he had seen Virgil with the same black and chrome .380 previously. Harris acknowledged that he also saw Cooper’s gun in his waistband, which added. to his unease. Harris testified that he.asked if Cooper and Virgil were “alright,” and Cooper said, “Yeah, I’m cool, man.” Virgil also said, “I’m good.” Harris claimed that there was a disagreement about money, which may have caused Virgil to start “talking crazy.” Much of Harris’s testimony about Virgil’s statements was vague and difficult to follow, but he did testify that Virgil said he was going to “burn somebody” or “bum” everyone in the ear. He also testified that Virgil told Cooper that he (Virgil) had a gun and was cursing everyone in the car. Finally, Virgil demanded to be let out of the car.

¶ 9. Harris said that as Lovelace stopped the Monte Carlo in the middle of the street, Virgil opened the door and then stopped as he was exiting. He turned around, pointed at Harris, and said, “If you are going to ride with them, you can get it too.” He then looked at Lovelace, “flinched” at her, and threatened to slap her. Harris said that Virgil then turned as if to get out of the car, grabbed the gun-from his lap with his left-hand, ■ had his right hand on- his sagging pants, and then Cooper suddenly fired-one shot. Virgil fell,- and Cooper fired several more times. Harris said this happened very quickly. Harris also claimed to see Virgil’s .380 on the ground near his body. Though Harris maintained that he saw a gun in Virgil’s lap, he admitted that he never saw-Virgil point the gun at anyone -in the vehicle.

¶ 10. Linda Ingram, who lived near the crinié scene, was resting on her couch when she heard gunshots.' She testified that she heard one shot, then a pause, then several more shots. She ran outside and saw Virgil in the street. No one else was present, but a police officer soon arrived. Ingram’s cousin, Joshua Jackson, was sleeping on her porch. He also heard one shot, a pause, then several shots. Though he did not see the actual shooting, he saw one man get into the Monte Carlo' and drive away.

¶ 11, Officer Oscar Lewis of the Columbus Police Department responded to an emergency dispatch and arrived on the scene within minutes of the shooting. He found Jackson kneeling over Virgil and pleading for help, After paramedics and other officers arrived, Lewis photographed the scene. Lewis observed shattered glass, shell casings, and blood, but he did not find a gun at the scene,

¶12, Austin. Shepard.,of the Columbus Police Department crime lab testified about the evidence he collected from the scene. He collected six shell casings and three projectiles near Virgil’s body. He noted that the Monte Carlo’s front passenger window was broken, and he found one shell casing on the back passenger seat.

¶ 13, The day ■ after the shooting, two employees-of Golden Triangle Waste Services found a .40-caliber Smith <& Wesson handgun in the bottom of a trash can near the crime scene. One of the men took it home, but when they discovered that it might have been used in the shooting, they turned the gun over to'the Columbus Police Department.

¶ 14. Investigator Chris Van Houten collected two projectiles from Virgil’s body at Baptist Memorial Hospital. One was underneath Virgil’s body,5 and the other was embedded in his clothing. Van Houten later attended Virgil’s autopsy and collected four .380 rounds and a brown bag’containing a bottle of unknown liquid from Virgil’s effects.

¶ 15. Tommy Bishop, a forensic scientist at the Mississippi Crime Laboratory, testified as an expert in firearm identification. Bishop concluded that all of the casings and projectiles collected at the scene or during the autopsy were fired from the .40-rcaliber Smith & Wesson recovered from the nearby trash can.

¶ 16. Brent Davis from the State Medical Examiner’s Office performed Virgil's autopsy. Davis found two bullet entry wounds to the right side of Virgil’s neck and six entry wounds to the .left side of Virgil’s torso. All entry wounds had a corresponding exit wound except for one wound to the left torso. A bullet was found lodged in the right side of Virgil’s .chest.

- ,¶17. At the conclusion, of the evidence, the jury was instructed on first-degree murder, second-degree murder, heat-of-passion manslaughter, and self-defense. The jury found Cooper guilty of- first-degree murder. The circuit judge sentenced Cooper to life imprisonment, as required by law. Cooper filed a motion for a new trial or judgment notwithstanding the verdict, which was denied, and then a timely notice of appeal.

¶ 18. On appeal, Cooper argues that the circuit court judge committed reversible error by denying one of his proposed jury instructions on self-defense and by giving three instructions-requested by the State. He also' argues that the evidence was insufficient to support the verdict or that the verdict was against the overwhelming weight of the evidence. We find no error and therefore affirm Cooper’s conviction and sentence.

ANALYSIS

I. Jury Instructions

¶ 19. Cooper argues that the circuit court erred by refusing instruction D~ 3 and by granting instructions S-6B, S-3B, and S-5B. We review the grant or denial of jury instructions for an abuse of discretion. Newell v. State, 49 So.3d 66, 73 (¶ 20) (Miss. 2010). The instructions must be read as a whole, and if all instructions “fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.” Crook v. State, 105 So.3d 353, 358 (¶ 13) (Miss. Ct. App. 2012) (quoting Davis v. State, 18 So.3d 842, 847 (¶ 14) (Miss. 2009)). In cases involving homicide, the defendant has a right to instruct the jury about his “theories of defense, justification, or excuse ..., no matter how meager or unlikely.” Evans v. State, 797 So.2d 811, 815 (¶ 11) (Miss. 2000) (quoting Manuel v. State, 667 So.2d 590, 593 (Miss. 1995)). While a defendant is entitled to jury instructions that present his theory of the case, an instruction may be improper if it incorrectly states the law, is redundant, or lacks foundation in the evidence presented. Crook, 105 So.3d at 358 (¶ 13) (citing Davis, 18 So.3d at 847 (¶ 15)).

A. Instruction D-3

¶ 20. Cooper’s proposed instruction D-3 read:

•The Court instructs the jury that you are not to judge the actions of Randall Cooper, Jr., in the cool, calm light of after-developed facts, but instead you are to judge his actions in the light of the circumstances confronting Randall Cooper, Jr., at the time, as you believe from the evidence that those circumstances reasonably appeared to him on that occasion; and if you believe that under those circumstances it reasonably appeared to Randall Cooper, Jr., at that instant that he took up a weapon, that Randall Cooper, Jr., then and there had reasonable ground to apprehend a design on the part of the deceased to kill Randall Cooper, Jr., or to do Randall Cooper, Jr., some great personal injury, and there reasonably appeared to Randall Cooper, Jr., to be imminent danger of such designs being accom-plishedf ]; that Randall Cooper, Jr., was justified in anticipating an attack and using reasonable means to defend such attack; then you must find Randall Cooper, Jr., not guilty of the murder of the deceased.

The trial judge refused the instruction after concluding that it was “not a correct statement of the law.” •

¶21. Cooper argues that the judge abused his discretion by refusing D-3 because it is nearly identical to the instruction that the Mississippi Supreme Court approved in Maye v. State, 49 So.3d 1124, 1131-32 (¶¶ 16-18) (Miss. 2010). In Maye, the Supreme Court held that the trial court abused its discretion by refusing essentially the same instruction, Id. at 1132 (¶ 18). The Court stated: “Maye’s theory of the case was self-defense, which was supported by some evidence. Instruction D-8 was a correct statement of the law regarding how the jury should have interpreted Maye’s actions, and it properly would have extended Maye’s self-defense claim to include his asserted claim of defense.... Id.

¶22. But subsequently in Crook, this Court concluded that

the [Sjupreme [Cjourt in Maye did not hold or in any way intimate that an instruction mirroring [Maye’s proposed instruction D-8] must be routinely given in every case where self-defense is raised. Instead, a split [S]upreme [C]ourt reversed Corey Maye’s murder conviction because the ... jury instructions [that were given] did “not fully define self-defense as applied to the facts of [that] ease.” Indeed, the [Supreme [C]ourt in Maye mentioned the fact-specific nature of its decision on the excluded jury instruction, not once but twice....

Crook, 105 So.3d at 361 (¶ 20) (quoting Maye, 49 So.3d at 1130 (¶ 10)); see also Maye, 49 So.3d at 1131 (¶ 15) (finding that the self-defense instructions given “did not go far enough in this case” (emphasis added)).

¶ 23. In Crook, we observed that, “[w]ithout question, Maye’s facts [were] certainly unusual”: “Maye shot a police officer who was executing a lawful search warrant at Maye’s residence,” and his defense was that “he mistakenly believed the officer to be an intruder.” Crook, 105 So.3d at 361 (¶ 21). We concluded that the facts in Crook were “vastly” different from Maye. Id. at (¶ 22). Crook claimed that he drew a box-cutter in self-defense during a fistfight with his girlfriend’s cousin and then accidentally stabbed the man as they struggled. Id. Unlike Maye, Crook’s defense did not involve any “misapprehension or mistaken belief later brought , to light by ‘after[-]developed facts.’ ” Id. This Court held that for such a “routine self-defense ... claim” that did not involve any “after-developed facts,” a standard “Robinson instruction,” as modified by Reddix v. State, was a complete and adequate statement of the law on self-defense. Crook, 105 So.3d at 362 (¶ 23). Accordingly, we held that it was not an abuse of discretion for the trial judge to refuse an additional instruction that mirrored Cooper’s proposed instruction D-3. M

¶24. This case is controlled by this Court’s decision in Crook. Like in Crook— and unlike in Maye—Cooper’s claim of self-defense did not implicate any after-developed facts, misapprehension, or mistaken belief. Harris testified that Virgil had his gun out on his lap, while Lovelace testified that she did not see the gun during the car ride. But whether Virgil displayed a gun is a disputed fact, not an after-developed fact. Instruction D-3 might have been necessary if there had been evidence that Virgil displayed what appeared to be a gun but turned out to be a harmless object. See id. at 361-62 (¶ 22). However, no such evidence was presented. Cooper advanced- a “routine self-defense ... claim” that was fairly-and adequately addressed by standard self-defense instructions. Id. at 362 (¶ 23). Therefore, although instruction D-3 was an accurate statement of Mississippi law, the trial judge did not abuse his discretion by refusing to give it based on the facts of this case. Id.

B. Instruction S-6B

¶ 25. The circuit court granted instruction S-6B, which read:

The Court instructs the Jury that the phrase “heat of passion” refers to a sudden violent passion, which temporarily suspends or overthrows the judgment of the Defendant^] however, this high degree of sudden and resentful feelings will not alone reduce an act of homicide committed under its influence to manslaughter. There must be such circumstances as would indicate that a normal mind would be roused to the extent that reason was overthrown, and that passion overtook the mind, thus' destroying judgment. Therefore, if you find from the evidence in this case beyond a reasonable doubt that- the Defendant, Randall Cooper, was induced by some insult, provocation, or injury- which would naturally and instantly produce in the mind of a normal person a sudden impulse of violent passion; and further that in such state of mind, the Defendant shot Virgil Harris resulting in his death, then the shooting was done in the “heat of passion.”

¶ 26. Cooper argues that this instruction confused the jury by implying that it was required to find beyond a reasonable doubt that he killed Virgil in the heat of passion before it could find him not guilty of first-degree murder. However, Cooper did not object to this instruction at trial; rather, his attorney affirmatively stated that he “accepted” it. Therefore, the issue is procedurally barred. Holliman v. State, 178 So.3d 689, 700 (¶ 24) (Miss. 2015).

¶27. Moreover, the argument is without merit. Instructions must be read as a whole, not in isolation. Milano v. State, 790 So.2d 179, 184 (¶ 14) (Miss. 2001). The circuit court first instructed the jury that in order to find Cooper guilty of first-degree murder, it had to find “beyond a- reasonable doubt” that Cooper shot Virgil “with the deliberate design to effect death.” The court then instructed that “ ‘deliberate design’ ... means intent to kill without authority of law and not being legally justifiable,. legally excusable or under circumstances that would reduce the act to a lesser crime.” Therefore, the court instructed the jury that it was the State’s burden to prove beyond a reasonable doubt that Cooper acted with deliberate design, which included proof beyond a reasonable doubt that he did not act in the heat of passion. Instructions S-5B and S-6B then instructed the jury that in order to convict Cooper of heat-of-passiom manslaughter, it would be required .to find beyond a reasonable doubt that he shot Virgil in the heat of passion. This was a correct statement of the law.

C. Instruction S-3B

¶ 28. Without objection, the circuit court gave instruction S-3B, which read:

The Court instructs the Jury that the term “deliberate design” as used in these instructions means intent to kill without authority of law and not being legally justifiable, legally excusable or under circumstances that would reduce the act to a lesser crime. The deliberate design to effect death cannot be formed at the very moment of the fatal act; however, the deliberate design to, effect death need not exist in the mind of the Defendant for any definite period of time. If there is deliberate design, and it exists in the mind of the Defendant but for an instance [sic] before the fatal act, this is sufficient deliberate design to constitute the offense of FirstrDegree Murder.

Cooper did not object to this instruction at trial; rather, his attorney expressly stated that he “accepted” it. Accordingly, this issue is also procedurally barred. Holliman, 178 So.3d at 700 (¶ 24).

¶ 29. Moreover, the issue is without merit. Cooper now argues (1) that the instruction failed to inform the jury that an intentional killing could be manslaughter rather than first-degree murder; (2) that the instruction’s “but for an instance [sic]” language was confusing and misleading; and (3) that the instruction impermissibly commented on the evidence.

¶ 30. With respect to Cooper’s first point, as noted above, the court specifically instructed the jury that if Cooper shot Virgil “under circumstances that would reduce the act to a lesser crime”—i.e., in the heat of passion—then he did not kill Virgil with “deliberate design.” See Wortham v. State, 883 So.2d 599, 604-05 (¶¶ 20-21) (Miss. Ct. App. 2004); Brown v. State, 768 So.2d 312, 316-17 (¶ 16) (Miss. Ct. App. 1999). As to Cooper’s second point, the Supreme Court has clearly and repeatedly upheld instructions that “deliberate design” may be formed “but for an instant before the fatal act.” See, e.g., Roby v. State, 183 So.3d 857, 872-73 (¶¶ 64-66) (Miss. 2016); Holliman, 178 So.3d at 700-01 (¶¶ 24-26); Theodore v. State, 798 So.2d 465, 469-70 (¶¶ 19-24) (Miss. 2001); Fears v. State, 779 So.2d 1125, 1127-28 (¶¶ 6-15) (Miss. 2000). Cooper’s argument relies on a dissenting opinion. See Fears, 779 So.2d at 1130-32 (¶¶ 25-30) (Waller, J., dissenting). As to Cooper’s third criticism, the instruction does not comment on the evidence but merely defines the concept of deliberate design. In summary, the instruction was consistent with Mississippi Supreme Court precedent.

D. Instruction S-5B

¶ 31. Cooper argues that the circuit court should not have given S-5B because it omitted an essential element of heat-of-passion manslaughter. The instruction read, in pertinent part:

Heat of passion Manslaughter is distinguished from First-Degree Murder by the lack of malice and the presence of heat of passion. Therefore, if you find from the evidence in this case beyond a reasonable doubt that the Defendant, RANDALL COOPER, Jr„ did. on or about December 20,. 2013* unlawfully, Willfully and feloniously, kill Virgil Harris without malice aforethought and in the heat of passion, with a handgun, then you shall find the Defendant guilty of Manslaughter.

On appeal, Cooper argues that the instruction was incomplete because it failed to specify that heat-of-passion manslaughter was a killing “not in necessary self-defense.” See Miss. Code Ann. § 97-3-35 (Supp. 2016). Cooper speculates that this omission may have led the jury to infer “that self-defense was required in order to find Cooper guilty of manslaughter and not murder,” which may have influenced the jury to convict him of murder. However, Cooper did not object to this instruction at trial. His attorney clearly stated that he had “no objection” to it. Therefore, this argument' is also procedurally barred. Holliman, 178 So.3d at 700 (¶ 24).

¶ 32. Procedural bar notwithstanding, the omission was neither plain error nor prejudicial. The jury did not convict Cooper of manslaughter, so he does not contend that the omission requires reversal because it omitted an element of that offense. Furthermore, we reiterate that jury instructions must be read as a whole, not in isolation. Milano, 790 So.2d at 184 (¶ 14). Instruction S-7B clearly instructed the jury that “[i]f the State ha[d] failed to prove beyond a reasonable doubt that [Cooper] did not act in self-defense,” then the jury was required to find Cooper “not guilty.” Read as a whole, the instructions cannot be interpreted to make self-defense an element of the crime of manslaughter. The potential for confusion that Cooper suggests simply is not present.

¶ 33. As noted above, a defendant is entitled to fair instructions that adequately state the applicable rules of law. Crook, 105 So.3d at 358 (¶ 13). The circuit judge fairly and adequately instructed the jury -on the nature and elements of the charged offenses and Cooper’s theory of defense, • Therefore, we find no abuse of discretion in his giving of the challenged instructions or refusal of Cooper’s proposed D-3.

II. Weight and Sufficiency of the Evidence

¶ 34. Cooper argues that the evidence was insufficient to prove beyond a reasonable doubt that he shot Virgil with deliberate design or, alternatively, that the verdict was against the overwhelming weight of the evidence. We address these related issues together. .

¶ 35. When addressing a challenge to the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The issue is not whether we would have found Cooper guilty based on the evidence presented at trial; rather, his conviction must be affirmed if there was sufficient evidence for “any rational trier of fact” to have returned a guilty verdict. Id.

¶ 36. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. at 844 (¶ 18). The evidence should be “[v]iewed in the light most favorable to the verdict,” and we will affirm unless “[t]he trial court ... abuse[d] its discretion in denying a new trial.” Id. at 845 (¶ 19).

¶ 37. The State presented sufficient evidence for a “rational trier of fact” to have convicted Cooper, and the verdict was not against the overwhelming weight of the evidence. To convict Cooper of first-degree murder, the State was required to prove beyond a reasonable doubt that he acted with deliberate design. See Miss. Code Ann. § 97-3-19(l)(a) (Supp. 2016). The State was also required to prove beyond a reasonable doubt that he did not act in necessary self-defense. Harris v. State, 937 So.2d 474, 481 (¶ 23) (Miss. Ct. App. 2006) (citing Heidel v. State 587 So.2d 835, 843 (Miss. 1991)).

¶ 38. Evidence at trial showed .that Cooper shot Virgil eight times, once as he stood beside or stepped out of the car and seven more times as he lay on the street. Witnesses described the shots as having a definite pause between the first shot and the final shot, not eight rapid-fire shots. In addition, Lovelace never saw Virgil carrying or displaying a gun during the car ride, nor was a gun (other than Cooper’s), ever recovered. Virgil angrily cursed and possibly threatened others in the car, but witnesses did not agree on whether they even felt threatened by his behavior. No one testified that Virgil ever pointed a gun at Cooper. Virgil’s words certainly do not require us to set aside the conviction. In summary, the State’s evidence was sufficient for a rational trier of fact to find that Cooper shot Virgil with deliberate design, and no “overwhelming” evidence to the contrary was presented.

CONCLUSION

¶ 39. The trial judge committed no abuse of discretion in his instructions to the jury, there was sufficient evidence to convict Cooper of first-degree murder, and the verdict was not contrary to the overwhelming weight of the evidence. Accordingly, we affirm.

¶ 40. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF FIRST-DEGREE MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDfeS COUNTY.

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

BARNES, J.,

SPECIALLY CONCURRING:

¶ 41. While I concur with the majority’s result, I write separately to express my disagreement with the majority’s reliance on Crook v. State, 105 So.3d 353 (Miss. Ct. App. 2012), in determining that the trial court’s refusal of jury instruction D-3 was not an abuse of discretion. For the reasons stated in my dissent to that case, I find the Crook majority’s holding—that Maye v. State, 49 So.3d 1124 (Miss. 2010), is not applicable in instances where there is “no misapprehension or mistaken belief later brought to light by ‘after developed facts’ ”—is not determinative as to whether such an instruction should be given. Crook, 105 So.3d at 362 (¶ 22). Furthermore, as I noted in Crook, the principles announced in jury instruction D-3 “have been a proper statement of the law in this State for over one hundred years.” Id. at 367 (¶ 40) (Barnes, J., dissenting).

¶ 42. However, while D-3 was a proper statement of the law, this Court “do[es] not look at jury instructions in a vacuum.” Williams v. State, 803 So.2d 1159, 1161 (¶ 7) (Miss. 2001). When read as a whole, if the jury instructions “fairly announce the law of the case and create no injustice, no reversible error will be found.” Johnson v. State, 19 So.3d 145, 146 (¶ 5) (Miss. Ct. App. 2009) (citation omitted). I find the trial court’s refusal of jury instruction D-3 is harmless error in this instance based on the evidence produced at trial. While it was disputed whether Virgil possessed a firearm in the car, no gun was found on or around Virgil's body, and Harris testified that Virgil was turned to get out of the car when the first shot rang out. The evidence here was consistent and overwhelming that after Cooper fired the initial shot, hitting Virgil in the neck, he continued to shoot Virgil multiple times while Virgil was lying prone on the ground. Lovelace said Cooper reached over the seat to shoot Virgil after the initial shot, and everyone testify-mg noted the pause between the initial shot and the successive barrage of shots. The forensic examiner testified that Virgil had eight gunshot wounds.

¶ 43. I find Cooper suffered no injustice from the trial court’s refusal of jury instruction D-3, as I can see no basis for any reasonable juror’s applying D-3 to find Cooper not guilty of murder. While D-3 may have been applicable had Cooper only fired the initial shot, the successive shots while Virgil was defenseless on the ground cannot be excused by any interpretation of D-3. Accordingly, I concur with the majority’s decision to affirm the judgment of conviction.

IRVING, P.J., AND WESTBROOKS, J., JOIN THIS OPINION.

      . Maye’s proposed instruction D-8 read:
      The Court instructs the jury that you are not to judge the actions of Cory J. Maye in the cool, calm light of after-developed facts, but instead you are to judge his actions in the light of the circumstances confronting Cory J. Maye at the time, as you believe from the evidence that those circumstances reasonably appeared to him on that occasion; and if you believe that under those circumstances' it reasonably appeared to Cory J. Maye, at the instant that he took up a weapon, that Cory J. Maye then and there had reasonable ground to apprehend a design on the part of Ron Jones to kill Cory J. Maye or his daughter or to do Cory J. Maye and his daughter some great personal injury, and there reasonably appeared to Coiy J. Maye to be imminent danger of such designs being accomplished; then Cory J. Maye was justified in anticipating an attack and using reasonable means to defend such attack; then you must find Cory J. Maye not guilty of the murder of Ron Jones.

        Maye, 49 So.3d at 1131 (¶ 16).

      . In Robinson v. State, the Supreme Court recommended the following self-defense instruction;
      The court instructs the jury that to make a killing justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or to do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the defendant acts.

        Robinson v. State, 434 So.2d 206, 207 (Miss. 1983), overruled on other grounds by Flowers v. State, 473 So.2d 164, 165 (Miss. 1985).

      . In Reddix v. State, 731 So.2d 591, 594-95 (¶¶ 17-21) (Miss. 1999), the Supreme Court held that the jury must be instructed that it is bound to acquit the defendant if it finds that he acted in self-defense.

      . Crook was a 6-4 decision of this Court. On November 15, 2012, the Mississippi Supreme Court granted Crook’s petition for a writ of certiorari, with four justices voting to grant and five voting to deny. On January 17, 2013, the Court entered an order "find[ing] that there [was] no need for further review, and that the writ of certiorari should be dismissed.” The order noted that only two justices disagreed, with one justice not participating. In addition, in Brown v. State, 194 So.3d 139 (Miss. Ct. App. 2015), cert. denied 209 So.3d 428 (Miss. 2016), we held, with little discussion, that the trial court in a murder case “properly refused” an essentially identical instruction. Id. at 145 (¶¶ 14-16).

      . We may notice "plain error” despite a defendant’s failure to preserve the issue at trial. The Supreme Court has explained that "[t]he plain[-]error doctrine is employed only in situations when a defendant's substantive or fundamental rights are affected, Plain-error review is properly utilized for correcting obvious instances of injustice or misapplied law.... [I]n order to determine if plain error has occurred, we must determine if the trial court has deviated from a legal rule, whether that error is plain, clear, or obvious, and whether the error has prejudiced the outcome of the trial.” Green v. State, 183 So.3d 28, 31 (¶ 6) (Miss. 2016) (citations, quotation marks, and alterations omitted).

      . The majority also acknowledges that “D-3 [is] an accurate statement of Mississippi law[,]”

      . This is distinguishable from the facts of Crook, where the defendant claimed he accidentally stabbed the victim with a box cutter while he and the victim were fighting with one another.


author: WILSON, J.,

text:
    Tiffany GRIFFIN, Appellant v. GRENADA YOUTH LEAGUE, Appellee
    NO. 2015-CA-01867-COA
    Court of Appeals of Mississippi.
    03/28/2017

      ATTORNEYS FOR APPELLANT: STEVEN CRAIG PANTER, STACY EVERETT PEPPER ■ •
    ATTORNEYS FOR APPELLEE: NAKIMULI ONI DÁVIS-PRIMER, J. STEPHEN KENNEDY
    BEFORE LEE, C.J., FAIR AND WILSON, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. On April 28, 2012, Tiffany • Griffin attended a charity baseball tournament held at fields owned and maintained by the Grenada Youth League (GYL), a nonprofit corporation, Griffin’s sons were on teams playing in the tournament. As she walked down a grassy hill from the parking lot to the ballfields, Griffin fell and suffered a broken ankle. Griffin sued GYL on a premises liability theory in the Grenada County Circuit Court. She alleges that she fell because she stepped into a one-inch-deep “hole” that was obscured by grass that was three or four inches high. The record does not include any photographs of the supposed “hole,” and GYL denies that there was a “hole” anywhere in the vicinity. The circuit court subsequently granted summary judgment for GYL. The court acknowledged that there is a “dispute over whether there actually was a hole,” but the court ruled “that as a matter of law the premises was reasonably safe: and there was no dangerous condition or peril that required a warning.” We agree and therefore affirm.

FACTS AND PROCEDURAL HISTORY

. ¶ 2. GYL owns and operates a twenty-three-acre park in Grenada with about ten youth baseball and softball fields. GYL oversees youth leagues and occasionally hosts youth tournaments at the park. GYL has only one paid employee and is otherwise run by volunteers, Including a volunteer board and president.

¶ 3. GYL’s president for the 2012 season, Jeff McWhorter, asked three or four board members to serve on the grounds committee. Before the season, the committee inspected the park and did not identify any issues or needed repairs.

¶ 4. Most of GYL’s board members are coaches, parents, or grandparents of children who play baseball or softball at the park. Thus, most board members regularly attend games and walk and inspect the premises while at the park. In addition, every board member has a key to an equipment shed at the park, so any of them could easily fill a hole if one were found. GYL hired a company called Yard Pro to cut the grass in the park during the 2012 season. Yard Pro cut the grass on a weekly basis.

¶ 5. From Monday, April 23, to Saturday, April 28, 2012, GYL hosted its annual Frankie Bailey Tournament at the park. The tournament, named in honor of a former player who died from childhood cancer, serve's as a fundraiser for both St. Jude Children’s Research Hospital and GYL, There is no' admission fee for the tournament, but attendees are encouraged to make charitable donations. Yard Pro cut the grass the weekend before the tournament began and again on Wednesday, April 25, 2012.

16. Griffin’s two sons played in GYL leagues and were playing in the tournament. Griffin attended about six games during the tournament, including on Friday, April 27, and she had been to the park many times in prior seasons. On April 28, Griffin arrived at the park around 11 a.m. She made a $5 donation when she entered and parked her car in a gravel parking lot up a gently sloping grassy hill from the ballfields. The lot is framed by wooden light poles laid sideways on the ground to form a twelve- to eighteen-inch-high boundary around the lot.

¶ 7. A paved walkway runs from the parking lot to the ballfields, but Griffin decided to take a shortcut by stepping over one of the wooden poles and walking down the grassy hill to the fields. There were no signs warning visitors not to walk down the hill,, and McWhorter acknowledged that people frequently walk down the hill. Griffin was wearing flip-flops and carrying both a folding chair and a bag holding a bat and batting helmet.

¶ 8. Griffin testified in her deposition that she fell after stepping into a “hole” that was “maybe an inch [deep], two inches max,” and “maybe four inches wide.” Griffin testified that she did not see the “hole” because the grass was “overgrown,” by which she meant “[t]hree to four inches” high. Griffin testified that when she stepped into the hole, she rolled her ankle and fell to the ground.

¶ 9. McWhorter was working at the concession stand when he was told that someone had fallen on the hill. When McWhorter reached the hill, he was told that Griffin had broken her ankle, so he called for an ambulance.

¶ 10. After Griffin left in an ambulance, McWhorter and another board member surveyed the area in which she fell. McWhorter testified that the grass was not overgrown and that they did' not find any “hole.” McWhorter testified that if there had been a hole in the area, he would have noticed it because he walked through the area whenever he went to the equipment shed. In addition, there had been no other reports of falls or holes in the area.

¶ 11. On September 9, 2014, Griffin filed a complaint against GYL alleging, inter alia, negligence on a premises liability theory. Griffin alleged she “was a business invitee when she entered onto the property owned by [GYL].” She alleged that she “was severely injured when she stepped into a drainage ditch.” At her deposition, Griffin stated that she actually stepped in a “hole,” not a “drainage ditch.”

¶ 12. On October 12, 2015, GYL filed a motion for summary judgment. In its motion, GYL argued that Griffin was a licensee, not- an invitee. In addition, GYL argued that even if Griffin, was an invitee, the premises was reasonably safe and that it did not breach any duty to warn her of hidden dangers. In response, Griffin argued that she was a “public invitee” and that disputes of fact on the issues of duty and breach precluded summary judgment.

¶ 13. On November 30, 2015, the circuit court granted summary judgment for GYL. The court concluded that Griffin was a public invitee and that there was a dispute of fact as to the existence of a “hole”; however, the court ruled “that as a matter of law the premises was reasonably safe and there was no dangerous condition or peril that required a warning.” Griffin filed a timely notice of appeal.

DISCUSSION

¶ 14. We review an order granting summary judgment de novo. Pigg v. Express Hotel Partners LLC, 991 So.2d 1197, 1199 (¶ 4) (Miss. 2008). The movant is entitled to summary judgment if there is no genuine issue of material fact. Glover ex rel. Glover v. Jackson State Univ., 968 So.2d 1267, 1275 (¶ 22) (Miss. 2007). But the mere existence of disputed facts does not preclude summary judgment: “The focal point of our standard for summary judgment is on material facts[,]” by which we mean those facts “that matter ... in an outcome determinative sense.” Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 801 (Miss. 1994). “The existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact.” Sanders v. Advanced Neuromodulation Sys., Inc., 44 So.3d 960, 965 (¶ 11) (Miss. 2010) (quoting Moss v. Batesville Casket Co., 935 So.2d 393, 399 (¶ 17) (Miss. 2006)).

¶ 15. On a motion for summary judgment, “[t]he evidence is viewed in the light most favorable to the party opposing the motion.” Davis v. Hoss, 869 So.2d 397, 401 (¶ 10) (Miss. 2004). However, “[t]he non-moving party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts showing that there are genuine issues for trial.” Pigg, 991 So.2d at 1199 (¶ 4) (quoting Massey v. Tingle, 867 So.2d 235, 238 (¶ 6) (Miss. 2004)). In other words, “the non-movant cannot just sit back and remain silent, but he must rebut by producing significant probative evidence showing that there are indeed genuine issues for trial.” McMichael v. Nu-Way Steel & Supply, Inc., 563 So.2d 1371, 1375 (Miss. 1990) (quoting Newell v. Hinton, 556 So.2d 1037, 1041 (Miss. 1990)).

¶ 16. To prevail in a premises liability case, a plaintiff must prove the elements of duty, breach of duty, damages, and proximate causation. See Wilbanks v. Hickman, 198 So.3d 393, 397 (¶ 10) (Miss. Ct. App. 2016). Thus, to avoid summary judgment, Griffin must show there is a genuine issue of material fact as to each of these elements. See id.

¶ 17. “When a person is injured on the premises of another, the duty owed depends on whether the person is an invitee, a licensee, or a trespasser at the time of the injury.” Rankin v. Matthews, 197 So.3d 933, 936 (¶ 7) (Miss. Ct. App. 2016). “A landowner’s only duty to a licensee is to refrain from willfully or wantonly causing injury to him.” Id. at 937 (¶ 9). “A landowner owes the highest duty to an invitee[,]” Keith v. Peterson, 922 So.2d 4, 9 (¶ 10) (Miss. Ct. App. 2005), but even so the landowner “is not an insurer of the invitee’s safety[.]” Caruso v. Picayune Pizza Hut, Inc., 598 So.2d 770, 773 (Miss. 1992). Rather, a landowner “owes a duty to an invitee to exercise reasonable care to keep the premises in a reasonably safe condition and, if [he] is aware of a dangerous condition, which is not readily apparent to the invitee, he is under a duty to warn the invitee of such condition.” Jerry Lee’s Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss. 1988). Our Supreme “Court has recognized two classes of invitees: public invitee or business invitee.” Hudson v. Courtesy Motors Inc., 794 So.2d 999, 1003 (¶ 11) (Miss. 2001).

¶ 18. “A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public .... ” Id. “On the other hand, a licensee is one who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner.” Clark v. Moore Mem’l United Methodist Church, 538 So.2d 760, 763 (Miss. 1989). The subtle distinction between a public invitee and a licensee is said to “lie[ ] in the difference between an invitation and mere permission.” Id. at 764.

¶ 19. The circuit court concluded that Griffin was a “public invitee” at the time of her injury, but GYL argues that she was a mere licensee. If relevant and material facts are in dispute, the plaintiffs status “can be a jury question, but where the facts are not in dispute, the classification becomes a question of law for the trial judge.” Hudson, 794 So.2d at 1003 (¶ 11). However, for purposes of this appeal, we may assume that Griffin was a public invitee. For even if she were an invitee, the circuit court correctly determined' that GYL was entitled to summary judgment.

¶ 20. A landowner owes an invitee a duty to keep the premises reasonably safe and to warn the invitee of any dangerous conditions on the premises that are not readily apparent. Jerry Lee's Grocery, 528 So.2d at 295. Unless the dangerous condition was created by the landowner’s own negligence, the plaintiff must prove that the landowner had actual or constructive knowledge of the condition. Id.; Jones v. Wal-Mart Stores E., LP, 187 So.3d 1100, 1103 (¶ 12) (Miss. Ct. App. 2016); Stanley v. Boyd Tunica, Inc., 29 So.3d 95, 97 (¶ 9) (Miss. Ct. App. 2010). Thus, “regardless of the invitee’s precise theory of premises liability, proof that her injury was caused by a ‘dangerous condition’ is an essential element of her claim.” Jones, 187 So.3d at 1104 (¶ 12) (citing Stanley, 29 So.3d at 97 (¶ 10)). “In other words, a property owner cannot be found liable for the plaintiffs injury where no dangerous condition exists.” Stanley, 29 So.3d at 97-98 (¶ 10) (quotation marks omitted); see also, e.g., Adcock v. Wal-Mart Stores E., LP, No. 3:10-cv-313-DPJ-FKB, 2011 WL 3047623, at *3 (S.D. Miss. July 25, 2011) (“It is axiomatic that no liability attaches absent a dangerous condition.” (collecting cases)). The landowner “is not an insurer against all injuries!,]” and mere proof that the invitee fell and was injured while on the premises is. insufficient to establish liability. Jerry Lee’s Grocery, 528 So.2d at 295.

¶21. In the present case, Griffin argues that summary judgment should have been denied because the hole that allegedly caused her to fall was a “dangerous condition,” and a reasonable inspection of the premises would have revealed its existence. Thus, Griffin argues, GYL at least had constructive knowledge of the hole and should have repaired it or warned her of it. She also argues that GYL’s own claims that it regularly inspected .the premises support an inference that it had actual knowledge of the hole.

¶22. We conclude that Griffin’s claim fails as a matter of law because the alleged “hole” simply was not a “dangerous condition” within the meaning of Mississippi premises liability law. We recently addressed a similar issue in the context of a trip-and-fall in a parking lot. We observed that sidewalks or parking lots often “contain cracks and changes in elevation,” and we held that such “minor imperfections or defects” are not “hazardous conditions” for purposes of a premises liability claim. Jones, 187 So.3d at 1104 (¶ 14) (quoting Knight v. Picayune Tire Servs., Inc., 78 So.3d 356, 359 (¶ 9) (Miss. Ct. App. 2011)). A long line of Mississippi cases holds that cracks and uneven pavement are not dangerous conditions; they are simply issues that invitees “may normally expect to encounter as they traverse a parking lot or sidewalk.” Id. at 1106 (¶ 17). “No property owner can be expected to maintain its sidewalks in a perfectly level condition, and where the defect consists of some slight variation between two adjoining paving blocks, no liability is imposed.” Id. at 1104 (¶ 14) (quoting Bond v. City of Long Beach, 908 So.2d 879, 881-82 (¶ 7) (Miss. Ct. App. 2005)).

¶23. The same reasoning applies—indeed, with even greater force—to the present case. If a crack or uneven spot in a manmade sidewalk or parking lot is not a dangerous condition, it necessarily follows that a very minor indentation or depression on the side of a grassy, .gently sloping hill also is not a dangerous condition. Griffin testified that the alleged “hole” was “maybe an inch [deep], two inches max,” and “maybe four inches wide.” To accept Griffin’s argument that such a “hole” amounts to a dangerous condition would impose on landowners a duty to maintain all open lawns and fields in a perfectly level condition. Mississippi law does not require that of a landowner, even in paved areas of the premises. See Jones, 187 So.3d at 1104 (¶ 14). No open, grass-covered space is going to be perfectly level, not even a fairway on a golf course. Cf. Hoffman v. City of New Orleans, 771 So.2d 217, 219 (La. Ct. App. 2000) (“One can hardly expect a public baseball outfield to be as smooth and even as the green of a golf course. Like any grass covered field it is bound to contain dips and inclines no matter what maintenance is performed.”). Mississippi law does not impose liability based on a minor indentation on the side of a park’s grassy hill.

¶ 24. Griffin also alleges that she did not see the hole because the grass in the area was “overgrown.” However, in her deposition she admitted that the grass, which had been mowed only three days prior to her fall, was only “[t]hree to four inches” high, which is hardly unusual. A one-inch-deep indentation is not transformed into, a dangerous condition simply because three to four inches of grass grows in the area.

¶25. Because the “hole” that caused Griffin’s injury was not a dangerous condition, her claim fails as a matter of law. Jones, 187 So.3d at 1104 (¶ 12). Moreover, even if we assumed that it was a dangerous condition, GYL would be entitled to summary judgment because Griffin produced no evidence that would support a reasonable inference that GYL created the hole or that it had actual or constructive knowledge of the hole. See Jones v. Imperial Palace of Miss. LLC, 147 So.3d 318, 319-21 (¶¶ 5-12) (Miss. 2014). There was no evidence, for example, that any other visitor had stumbled in the area, that GYL had received prior complaints about the hill, or that the “hole” at issue had existed for any significant length of time.

¶ 26. Likewise, there is no merit to Griffin’s argument that there is a triable issue of fact with respect to GYL’s alleged failure to conduct reasonable inspections. GYL, of course, maintains that it did conduct reasonable inspections of the park, and there is no evidence to the contrary. But in any event, Griffin also “failed to put forth any proof that reasonable inspections would have led to the discovery of the [one-inch-deep hole],’’ which, given the lack of evidence presented, “could have been created ... only minutes prior to the injury.” Id. at 322 (¶ 15). Thus, Griffin failed to present evidence creating any genuine issue of material fact as to GYL’s actual or constructive knowledge of the hole or that a reasonable inspection would have revealed the hole. Accordingly, GYL was entitled to summary judgment for this reason as well.

CONCLUSION

¶ 27. Griffin was injured when she tripped and fell as she walked down a grassy hill while wearing flip-flops and carrying a folding chair and baseball equipment. She was on GYL’s property, but a landowner is not an insurer or strictly liable for all injuries that occur on its property, so mere proof that an invitee fell and was injured on the premises is not sufficient' to create liability. Griffin’s claim fails as a matter of law because the alleged one-inch-deep indentation, or “hole,” that supposedly caused her to fall is not a dangerous condition. Under Mississippi law, a landowner is not expected or required to keep open, grass-covered lawns or fields in a perfectly level condition. Moreover, Griffin presented no evidence that GYL had actual or constructive knowledge of the hole or that a reasonable inspection would have uncovered it. Therefore, the circuit court -properly granted GYL’s motion for summary judgment.

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF GRENADA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      , On November 16, 2015, the court granted summary judgment for GYL on all non-premises-liability claims in the complaint and on Griffin’s claim for punitive damages, all of which Griffin had conceded at the hearing on GYL’s motion for summary judgment.

      . In Clark, the Mississippi Supreme Court held that “a church member who does not exceed the scope of a church’s invitation, is an invitee while attending a church for church services or related functions,” Clark, 538 So.2d at 764. The Court reasoned: "Religious bodies ... expressly and impliedly invite members to come and attend their services and functions. They hold their doors open to the public. While they do not charge admission fees .... churches do depend on contributions ... in order that they may continue to be open to the public.” Id.; see also Alexander v. Jackson Cty. Historical Soc’y, Inc., 227 So.2d 291, 292 (Miss. 1969) (holding that visitors who paid for admission to a historical site under the care and control of a local historical society were "public invitees”); City of Milton v. Broxson, 514 So.2d 1116, 1118 (Fla. 1st Dist. Ct. App. 1987) (holding that a spectator at a softball game at a city park was a public invitee).

      . Griffin relies heavily on Alexander, supra, but its facts are distinguishable. In that case, the plaintiff was injured when she stepped into a five-inch-deep hole surrounding one of several posts that the defendant Jackson County Historical Society had placed in the ground to mark, the boundary between the parking lot and the lawn of the Old Spanish Fort in Paácagoula. Alexander, 227 So.2d at 292. The hole was concealed by a “type of crawling grass [that] had grown up around the post,’’ while "[t]he remainder of the yard was smoothly mowed.” Id. Mississippi case-law distinguishes between “naturally occurring defects,” such as the hillside indentation at issue in this case, and unusual or unexpected conditions.created by the defendant, such as the hole at the Old Spanish Fort, which may give rise to liability. See Jones, 187 So.3d at 1105 (¶ 16) (quoting City of Natchez v. Jackson, 941 So.2d 865, 869-70 (¶¶ 5-9) (Miss. Ct. App. 2006)).


author: BARNES, J.,

text:
    Bruce Calvin MCCOY a/k/a Bruce McCoy a/k/a Bruce C. McCoy, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00051-COA
    Court of Appeals of Mississippi.
    03/28/2017

      ATTORNEY FOR . APPELLANT: bruce Calvin mccoy (pro sed
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER, JACKSON
    BEFORE LEE, C.J., BARNES AND FAIR, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. Bruce McCoy, appearing pro se, appeals the judgment' of the Circuit Court of Lincoln County dismissing his motion for post-conviction relief (PCR). While McCoy was convicted for numerous crimes, this motion .challenges only his convictions for burglary of a dwelling and petit larceny. The circuit court dismissed the motion as successive. Finding no error, we affirm.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. On November 10, 2004, McCoy was charged by a Lincoln County grand jury in .four separate indictments for nine different crimes involving four different victims. In the indictment at issue here, McCoy was charged with burglary of a dwelling house and petit larceny, as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015).

¶ 3. The State moved to amend this indictment to charge McCoy under the lesser habitual-offender statute of Mississippi Code Annotated section 99-19-81 (Rev. 2015), instead of section 99-19-83, “because of his willingness to enter a blind plea to all of his charges at arraignment.” On December 6, 2004, McCoy pleaded guilty to.two counts of burglary of a dwelling, one count of burglary of a building, four counts of grand larceny, and two counts of petit larceny. At his sentencing hearing in January 2005, McCoy was sentenced to the maximum terms of imprisonment of twenty-five years for both charges of burglary of a dwelling, seven years for the charge of burglary of a building, five years for each of the four grand-larceny charges, and six months for each of the petit-larceny charges. All of the sentences were ordered to run concurrently, without the possibility for early release or parole.

¶4. McCoy’s first PCR motion timely challenged all four of his sentences resulting from his guilty pleas entered on the nine different counts. The circuit court denied relief, and McCoy appealed to this Court. We dismissed McCoy’s appeal without prejudice for failing to file separate motions challenging each judgment as required by Mississippi Code Annotated section 99-39-9(2) (Rev. 2000). McCoy v. State, 941 So.2d 879, 881 (¶ 4) (Miss. Ct. App. 2006). McCoy was then free to file separate PCR motions for relief on each judgment. McCoy filed another PCR motion in 2007, which the circuit court denied. McCoy appealed, but his appeal was dismissed for failure to pay the appeal costs. McCoy v. State, 2007-TS-00951-COA (Aug. 16, 2007).

¶ 5. On March 15, 2011, McCoy filed three separate PCR motions challenging his guilty pleas and sentences. He argued there was newly discovered evidence—that one of the victims was a court administrator, and the circuit judge should have re-cused himself. Additionally, he argued there was an intervening decision by the Mississippi Supreme Court, his indictments were insufficient, and his defense counsel was ineffective. The circuit court summarily dismissed each of the PCR motions as untimely and successive. McCoy appealed, and finding no viable exceptions to the procedural bars, this Court affirmed the dismissal in McCoy v. State, 111 So.3d 673, 675 (¶ 1) (Miss. Ct. App. 2012).

¶ 6. On October 8, 2015, McCoy filed the PCR action at issue in this appeal, challenging only the indictment in Cause No, 2014-312-MS—for burglary of a dwelling and petit larceny. In his thirty-page motion, McCoy argued that the habitual portion of his sentence under section 99-19-81 should be vacated because there was no proof presented that he had been imprisoned over a year. He also claimed his indictment was invalid because it did not contain the words “against the peace and dignity of the state” required by' Uniform Rule of Circuit and County Court 7.06(7). Th¿ circuit court dismissed his PCR motion as successive, noting that this motion was McCoy’s fourth. McCoy timely appealed.

STANDARD OP REVIEW

¶ 7. This Court reviews the circuit court’s dismissal of a PCR motion for an abuse of discretion. Crosby v. State, 16 So.3d 74, 77 (¶ 5) (Miss. Ct. App. 2009) (citation omitted). The dismissal will only be disturbed in cases where the circuit court’s decision was clearly erroneous. Questions of law are reviewed de novo. Id. at 77-78 (¶ 5).

ANALYSIS

I. Procedural Bars

¶ 8. McCoy admits, as the circuit court found, that his PCR motion is a successive writ. We agree. Under the Uniform Post-Conviction Collateral Relief Act (UP-CCRA), any order denying or dismissing a PCR motion bars a second or successive motion. Miss. Code Ann. § 99-39-23(6) (Rev. 2015). This PCR motion is McCoy’s fourth, relating to his December 2004 guilty plea, and it was filed in October 2015, nearly eight years after the statutory deadline of December 2007 had- passed. See Miss, Code Ann. § 99-39-5(2) (Rev. 2015).

¶ 9. However, McCoy attempts to circumvent the procedural bar by claiming his motion is excepted due to newly discovered evidence “not reasonably discoverable at the time of trial .... which would have caused a different result in the conviction or sentence,” and an intervening decision of the Mississippi Supreme Court—Rowland v. State, 42 So.3d 503 (Miss. 2010). Rowland held that “errors affecting fundamental constitutional rights are excepted from the procedural bars, of the UP-CCRA.” Id. at 506 (¶ 9). However, the mere assertion of a constitutional rights violation is not sufficient to overcome the time bar. Chandler v. State, 44 So.3d 442, 444 (¶ 8) (Miss. Ct. App. 2010) (citation omitted). The burden of proof is on the movant to show any statutory exceptions to the procedural' bars have been met. White v. State, 59 So.3d 633, 635 (¶ 8) (Miss. Ct. App. 2011) (citation omitted). McCoy argues that his constitutional rights were violated by his “cruel and unusual” enhanced punishment and invalid indictment, but he provides no valid evidence of such. He has merely fashioned new argument’s in his fourth PCR motion in an attempt to overcome the procedural bar under section 99-39-23(6).

II. Habitual-Offender Status and Defective Indictment

¶ 10. McCoy raises four issues on appeal regarding his habitual-offender status— two related to the “pen-pack,” and two on his indictment. First, he argues that the prosecutor failed to provide pen-pack documents as proof of his prior convictions for felonies to show he had served a year or more in prison. Relatedly, McCoy alleges that the circuit court erred in granting the order to amend the indictment without the pen-pack documents to justify the enhancement. Third, McCoy claims the prosecutor failed to comply with Rule 7.06(7) because his indictment did not contain the phrase “against the peace and dignity of the state,” and similarly, that the circuit court erred in allowing the indictment to be amended without this phrase.

A. Habitual-Offender Status

¶ 11. McCoy claims that the prosecutor should have provided a pen-pack of prior convictions as proof of his habitual status under section 99-19-81. These, documents would have included certified copies of indictments, sentencing orders, commitment papers, and judgments to prove he served, a year or more in prison. He claims that no documents were provided to show he served over a year in prison for prior convictions.

¶ 12. This argument is without merit. First, section 99-19-81 does not require proof that the defendant served, but that he was sentenced to, a year or more in prison. Additionally, in order to sentence a defendant as a habitual offender, the State must generally prove the prior offenses by competent evidence,’ so the defendant can be given a reasonable opportunity to challenge the proof. However, when the defendant pleads “guilty and admits those facts which establish his habitual status, the State has met its burden of proof.” Wilkins v. State, 57 So.3d 19, 26 (¶ 23) (Miss. Ct. App. 2010) (citation omitted). “For this Court to affirm an enhanced sentence under section 99-19-81, the trial court’s basis for imposing the sentence must appear in the record on appeal.” Hilliard v. State, 175 So.3d 554, 561 (¶ 21) (Miss. Ct. App. 2015) (citation omitted). Here, the indictment satisfies this requirement.

¶ 13. During the plea hearing, the circuit judge went over with McCoy the charges and the maximum sentences for each charge in the indictment. The judge explained that McCoy’s sentences were being enhanced under section 99-19-81. This Court was only provided a portion of McCoy’s indictment, but it details four pri- or felonies for which McCoy was convicted, each resulting in a sentence of over one year. This document justifies habitual-offender enhancement. McCoy affirmed at the hearing that his attorney had gone over the indictments and the elements of each crime charged. By pleading guilty, McCoy admitted under oath to all of the allegations contained in the indictment, including the prior felonies. Since they were listed in the indictment, McCoy also had sufficient notice. As such, the prosecutor did not need to provide a pen-pack— McCoy’s admission to his prior convictions at the plea hearing was sufficient.

¶ 14. Relatedly, McCoy argues that the circuit court improperly amended his indictment to the lesser habitual enhancement of section 99-19-81 without a pen-pack. For the same reasons stated above, this argument is without merit. No pen-pack is needed when McCoy admitted to his prior convictions at the plea hearing.

¶ 15. McCoy further complains that his sentence as a habitual offender for twenty-five years without the possibility of early release or parole violates the Eighth Amendment of the United States Constitution, as it is “cruel and unusual.” However, as previously noted, the circuit court granted an amendment to McCoy’s indictment to lessen his habitual status from section 99-19-83, which requires life in prison, to the less-harsh enhancement of section 99-19-81, because McCoy agreed to. a blind plea. The circuit judge told McCoy at sentencing: “[I]f there ever was an habitual, you are one of them.” Even so, he gave McCoy the lesser habitual enhancement. We cannot find the judge abused his discretion in doing so. These arguments are without merit.

B. Defective Indictment

¶ 16. McCoy argues that his indictment is invalid because it failed to state “against the peace and dignity of the state” as required under Rule 7.06(7). As noted above, this Court has not been provided the entire indictment in the record, but only the first two pages. The record is thus insufficient for us to accept McCoy’s representations. Further, if such an error existed, it would be harmless, because “a valid guilty plea admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment or information against a defendant.” Kennedy v. State, 179 So.3d 82, 84 (¶ 9) (Miss. Ct. App. 2015) (citation omitted). This Court has held that an indictment’s failure to conclude with the words “against the peace and dignity of the State” is a defect waived by a guilty plea. Burch v. State, 929 So.2d 394, 397 (¶ 9) (Miss. Ct. App. 2006) (citing Ramage v. State, 914 So.2d 274, 278 (¶ 10) (Miss. Ct. App. 2005)). Therefore, McCoy’s guilty plea waived this issue.

CONCLUSION

¶ 17. The circuit court did not abuse its discretion in dismissing McCoy’s PCR motion because it was successive. Further, no statutory exceptions under section 99-39-23(6) applied, Finally, McCoy’s substantive arguments regarding his sentencing and indictment are without merit. Accordingly, we affirm the circuit court’s dismissal;

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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

      . In April 2013, the Court denied McCoy’s motion for rehearing. In July 2013,'the Mississippi Supreme Court denied certiorari, McCoy v. State, 117 So.3d 330 (Miss. 2013) (table).

      . The copy of the indictment McCoy provided to the Court in the record contains only the first two pages. Of the four prior felony convictions, three were in Mississippi and one in Illinois: McCoy was convicted of two separate violations for uttering a forgery in November 1973 and sentenced to five years in prison, aggravated sexual assault in June 1985 in Illinois and sentenced to six years in prison, and three counts of possession of stolen property in November 1996 and sentenced to three years in prison.

      . The State attached to its brief McCoy’s entire indictment and plea agreement. However, we cannot consider these documents as no motion was made to supplement the record under Mississippi Rule of Appellate Procedure 10(e).


text:
    Timothy T. HOBSON a/k/a Timothy, Hobson a/k/a Timothy Terrell Hobson, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-90308-COA
    Court of Appeals of Mississippi.
    03/28/2017

      ATTORNEY FOR APPELLANT: TIMOTHY T. HOBSON (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
    BEFORE LEE, C.J., BARNES AND FAIR, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. Timothy Hobson, appearing pro se, appeals the Rankin County Circuit Court’s dismissal of his motion for post-conviction relief (PCR), which was filed after his probation was revoked for failure to report to his probation officer. He was sentenced to serve the full twelve years of his suspended sentence. Claiming the applicability of Mississippi Code Annotated section 47-7-37 (Rev. 2015), Hobson argues that the circuit court erred in the- imposition of his suspended sentence, as this was his first technical violation of probation. Finding no error, however, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In August 2006, Hobson was indicted in the Rankin County Circuit Court for one count of possession of cocaine and considered subject to enhanced punishment as a second or subsequent offender under the Uniform Controlled Substances Law. In January 2009, Hobson pleaded guilty to the charge and was sentenced to serve sixteen years in the custody of the Mississippi Department of Corrections (MDOC), with four years to serve, five years of supervised post-release supervision, and seven years of unsupervised post-release supervision.

¶3. In June 2013, Hobson’s probation field supervisor filed a petition to revoke Hobson’s probation because Hobson had failed to report since April 2013, and had failed to pay fees and court costs. An accompanying affidavit and warrant for Hobson’s arrest were also filed. Over two years later, on September 15, 2015, Hob-son’s field supervisor filed a petition to dismiss the 2013 arrest warrant and revocation petition because Hobson had not been located and arrested within thirty days of the warrant’s validity, nor had the revocation hearing occurred within thirty days of the warrant’s issuance, as required by statute. The circuit court granted the petitions, and on the same day the field officer filed a new petition for revocation, an affidavit, and an arrest warrant for the same probation violations of failure to report since April 2013, and failure to pay fees and court costs. On September 18, 2015, copies of the revocation petition and order setting a revocation hearing with Hobson’s signature were filed, indicating he was in custody on that date.' At the revocation hearing on September 28, 2015, the circuit court found Hobson in violation of the terms and conditions of his post-release supervision due to failure to report since April 2013, and revoked his probation.

¶ 4. In January 2016, Hobson filed a PCR motion to set aside and vacate his sentence and the revocation of his post-release supervision. Hobson argued that failure to report is considered a “technical violation” under House Bill 585, passed into law on July 1, 2014. Hobson also argued that his post-release supervision was illegal because it exceeded five years under section 47-7-37(1). The circuit court dismissed Hobson’s PCR motion as time-barred and without merit. Hobson timely appealed.

STANDARD OF REVIEW

¶ 5. When an appellate court reviews the circuit court’s dismissal of a PCR motion, it “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Davis v. State, 141 So.3d 948, 950 (¶ 7) (Miss. Ct. App. 2014) (citation omitted). Questions of law are reviewed de novo. Id.

ANALYSIS

¶ 6. Hobson raises three issues: (1) whether his PCR motion was time-barred, (2) whether his post-release supervision was illegally revoked because of a mere technical violation, and (3) whether his post-release supervision was illegal because it exceeded five years.

¶ 7. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), a PCR motion challenging a guilty plea must be filed within three years of the entry of the judgment of conviction. Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Hobson’s PCR motion was filed approximately seven years.after he pleaded guilty in January 2009. Accordingly, unless the motion falls within a statutory exception, it is time-barred.

¶ 8. Hobson raises two arguments to circumvent the time-bar, but they are without merit. First, Hobson argues the revocation of his post-release supervision and imposition of his twelve-year suspended sentence were improper in light of House Bill 585’s amendments to sections 47-7-2(q) and 47-7-37, effective July 1, 2014, which in part established technical-violation procedures and centers in the MDOC. Hobson claims failure to report is merely a “technical violation,” and under section 47-7-37(5)(a) as amended, he should have been imprisoned for ninety days in a technical-violation or restitution center operated by the MDOC, instead of having his suspended sentence fully reinstated and served in a correctional facility.

¶ 9. Both applicable code sections, 47-7-37(5)(a) and 47-7-2(q), were added by House Bill 585, and passed into law, during the 2014 regular legislative session. Section 47-7-37(5)(a) currently states: “If the court revokes probation for a technical violation, the court shall impose a period of imprisonment to be served in either a technical violation center or a restitution center not to exceed ninety (90) days for the first technical violation .... ” Section 47-7-2(q) defines “technical violation” as “an act or omission by the probationer that violates a condition or conditions of probation placed on the probationer by the court or the probation officer.”

¶ 10. The State responded that reinstatement of Hobson’s suspended sentence was proper, citing Mississippi Code Annotated section 47-7-34(2) (Rev. 2015): “Failure to successfully abide by the terms and conditions [of post-release supervision] shall be grounds to terminate [it] and to recommit the defendant to the correctional facility from which he was previously released.” The section states, however, that “[procedures for termination and recom-mitment shall be conducted in the same manner as ... the revocation of probation and imposition of a suspended, sentence as required [under] Section 47-7-37.” Therefore, it appears that the technical-violation provision of section 47-7-37 would be applicable to matters, under section 47-7-34(2). The State further claims that because Hobson’s revocation order did not specifically state he committed a “technical violation” for failure to report, the revocation of his probation and reinstatement of his suspended sentence were proper. We find this argument incorrect; applicability of the technical-violation punishment cannot be based solely on whether the term is included in the order.

¶ 11. What neither party cites is section 47-7-37.1, effective April 20, 2015, which states that “[notwithstanding any other provisions,” if a probationer or person under post-release supervision absconds, “the court may revoke his probation and impose any or all of the sentence.... ‘Absconding from supervision’ means the failure of a probationer to report to his supervising officer for six or more consecutive months.” Miss. Code Ann. § 47-7-37.1 (Rev. 2015). Here, Hobson quit reporting to his probation supervisor in April 2013, and absconded until September 18, 2015, which is more than six months.

¶ 12. Recently, our Court ruled on a similar case in Walker v. State, 2015-CP-00912-COA, 230 So.3d 709, 2016 WL 6083239 (Miss. Ct. App. Oct. 18, 2016). There, Demario Walker failed to report monthly to his probation officer for several months, and failed to pay fees. His whereabouts were unknown. The circuit court revoked his probation. Walker filed a PCR motion, which was dismissed. Id. at 711, *1 (¶ 1), On appeal, Walker argued that the. circuit court’s sentencing of him to serve the full five-year term of his suspended sentence was improper. We agreed, finding Walker’s violation of failure to report and pay fees was technical in nature according to the definition set out in section 47-7-2(q). This Court reversed and remanded on the issue of resentencing consistent with section 47-7-37. Id. at 714-15, *4 (¶ 19). However, this case is distinguishable because of the time frame of Walker’s failure to report, which began after the enactment of the technical-violations statute (section 47-7-37 on July 1, 2014), and the revocation of his probation occurred before section 47-7-37.1 became, effective, on April 20, 2015.

¶ 13. Finally, Hobson argues that his post-release-supervision sentence is illegal under section 47-7-37(1) because it exceeds five years. Section 47-7-37(1) provides that the period of probation'is fixed by the court, may at any time be extended or terminated by the court, and shall not exceed five years except in certain cases. Hobson was sentenced to sixteen years in the custody of MDOC—-with, four years to serve, five years of supervised post-release supervision, and seven years of unsupervised post-release supervision. Accordingly, Hobson had twelve years of post-release supervision, but.this is not illegal.

¶ 14. Mississippi appellate courts have held that “while section 47-7-34' unquestionably limits to five years the period of time that the MDOC may supervise an offender who is on post-release supervision, the clear language of the statute does not limit the total number of years of post-release supervision to five years.” Hicks v. State, 185 So.3d 426, 428 (¶ 9) (Miss. Ct. App. 2016) (citations omitted). Unsupervised post-release supervision means that the court, and not the MDOC, is monitoring the defendant during this time. Id. (quoting Johnson v. State, 925 So.2d 86, 102 (¶ 30) (Miss. 2006)). Further, any time period extending beyond the five years is considered “unsupervised,” even if it was not designated as such. Id.

¶ 15. Here, Hobson’s sentencing order designated five years of supervised and seven years of unsupervised post-release supervision. Therefore, his post-release-supervision sentence falls within the limits of section 47-7-34 and is legal, This issue is without merit..

¶ 16. Having failed to'prove an exception to the statutory bar, Hobson’s motion is procedurally barred; it is also without merit.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

      . See Miss. Code Ann. § 47-7-37(10).

      . House Bill 585, among other matters, amended sections 47-7-2 and -37 of the Mississippi Code Annotated (Rev. 2015) regarding technical violations of probation.

      . Walker was handed down on October 18, 2016, after the State filed its brief in this case.