author: COLEMAN, JUSTICE, MAXWELL, JUSTICE,

text:
    CELLULAR SOUTH, INC. v. BELLSOUTH TELECOMMUNICATIONS, LLC, f/k/a BellSouth Telecommunications, Inc. and Successor by Merger to BellSouth MNS, Inc.
    NO. 2016-CA-00034-SCT
    Supreme Court of Mississippi.
    03/02/2017

      ATTORNEYS FOR APPELLANT: SHELDON G. ALSTON, JOHN ERNEST WADE, JR., JOSEPH ANTHONY SCLAEANI, MATTHEW WADE ALLEN
    ATTORNEYS FOR APPELLEE: GORDON URBAN SANFORD, III, ADAM H. CHARNES
   COLEMAN, JUSTICE,

FOR THE COURT:

¶ 1. In February 2006, BellSouth Telecommunications, Inc., and BellSouth MNS, Inc., filed an ex parte motion for a protective order in the Chancery Court for the First Judicial District of Hinds County. The documents sought to be protected fell into the following four categories: (1) an August 2005 proposal submitted by Bell-South to the Mississippi Department of Information Technology Services in response to the Department’s request for telecommunications products and services, (2) the Telecommunications Products and Service Agreement between BellSouth and the Department dated November 2005, (3) correspondence between BellSouth and the Department related to the first two documents, and (4) related BellSouth marketing materials. Following legislative amendments in 2015 to the Mississippi Public Records Act of 1983 and to Mississippi Code Section 25-1-100, CellularSouth sought production of the proposal and the contract between the Department and BellSouth. As more fully detailed below, we hold that the chancery court erred in its interpretation of the amended Mississippi Code Section 25-61-11 when it entered an order continuing to protect the contract from production. We further hold that, because the rights in question in the case sub judice are created by statute, the Public Records Act, as amended, governs the instant dispute. Accordingly, we reverse and remand for further proceedings consistent with our opinion.

Introduction

¶ 2. In July 2015, CellularSouth filed its Petition to Revoke Protective Order in which it contended that two amendments to the Public Records Act and to Mississippi Code Section 25-1-100, made after the 2006 entry of the protective order, rendered the August 2005 proposal and resulting contract subject to production pursuant to the Public Records Act. House Bill Number 825, passed by the Legislature in 2015, amended Section 25-61-9 to add a new Subsection 7. The new subsection reads as follows:

For all procurement contracts awarded by state agencies, the provisions of the contract which contain the commodities purchased or the personal or professional services provided, the price to be paid, and the term of the contract shall not be deemed to be a trade secret or confidential commercial or financial information under this section, and shall be available for examination, copying or reproduction as provided for in this chapter.

The bill added a new Subsection 5 to Section 25-1-100, which reads as follows:

Contracts for personal and professional services that are awarded or executed by any state agency, including, but not limited to, the Department of Information Technology Services and the Department of Transportation, shall not be exempt from the Mississippi Public Records Act of 1983. CeullarSouth contends that the amended provisions operate to remove protected status from the sought-after proposal and contract.

¶ 3. In order to stave off CellularSouth’s attempt to force production of the contract and proposal, BellSouth contended below and contends on appeal that Mississippi Code Section 25-61-11 insulates the 2006 protective order against subsequent amendments to the Public Records Act. Section 25-61-11 reads as follows:

The provisions of this chapter shall not be construed to conflict with, amend, repeal or supersede any constitutional law, state or federal statutory law, or decision of a court of this state or the United States which at the time of this chapter is effective or thereafter specifically declares a public record to be confidential or privileged, or provides that a public record shall be exempt from the provisions of this chapter.

Of course, Section 25-1-100 is not found within “this chapter,” or Title 25, Chapter 61, of the Mississippi Code, so BellSouth’s argument does not avail it there. However, BellSouth contends that, as Section 25-61-9 is part of Chapter 61, the amendment to it cannot “be construed to ... repeal” it.

¶ 4. Below, the trial court agreed with BellSouth. In denying CellularSouth’s Petition to Revoke the 2006 protective order, the trial court wrote:

The plain language of [Section 25-61-11] provides that the subject amendments should “not be construed to conflict with, amend, repeal or supersede” the 2006 Order of this Court which specifically declared the documents sought herein as “confidential and privileged” and “exempt from the provisions of this chapter.” Therefore, the Court must find that the 2015 amendments do not act to remove the exemption from disclosure granted by the 2006 Order.

For the reasons given below, we hold that the trial court erred in interpreting Section 25-61-11 as it did.

Analysis

The Interpretation of Mississippi Code Section 25-61-11

¶ 5. Before interpreting Section 25-61-11, it is beneficial to look at legislative amendments to the applicable section of the Mississippi Public Records Act of 1983. Section 25-61-9 addresses records furnished to public bodies by third parties that contain trade secrets or confidential financial information. It allows the third parties in question to seek protective orders to protect such records from disclosure. See Miss. Code. Ann. § 25-61-9(1). Following the addition of Subsection 7, a certain subset of information which previously would have been exempted from disclosure as proprietary became, as it were, exempted from the exemption. The narrow question presented in the case sub judice is whether Section 25-61-11 indicates that the Legislature intended the statutes to be subservient to a court order entered after the Public Records Act was first passed in 1983.

¶ 6. BellSouth takes the position that Section 25-61-11 means that the new provision of Section 25-61-9(7) cannot overcome a court order that contradicts it. It contends that the phrase “or thereafter” applies such that any order, whether entered before the effective date of the chapter or after the effective date of the chapter, cannot be overcome by the language of the statute no matter the extent to which said order might conflict with the statute. One problem inherent in what we are calling the BellSouth interpretation, however, is that it applies to any order, whenever entered. Another problematic corollary of the BellSouth position arises from the fact that the language of Section 25-61-11 is much broader than mere amendments to the Public Records Act and provides, instead, that “the provisions of this chapter” may not be construed to countermand an order. If BellSouth is correct, then a protective order entered last week in direct contravention and after the effective date of Section 25-61-9(7) becomes immediately challenge-proof and not subject to review by any higher court. Effectively, the Legislature will have robbed itself of the power to amend the Act by broadening the category of records subject to production, but the Legislature has sought to do that very thing in amending Section 25-61-11.

¶ 7. “[Ejvery statute must be given meaning unless found to be in hopeless conflict with another statute....” Mississippi Pub. Serv. Comm’n v. Mun. Energy Agency of Miss., 463 So.2d 1056, 1059 (Miss. 1985). BellSouth’s interpretation of Section 25-61-11, according to which all orders protecting documents from disclosure are rendered impervious to conflict with the language of the Act itself no matter when entered, would be, if accurate, in hopeless conflict with the clear legislative intent of broadening the scope of unprotected documents evidenced by the addition of Section 25-61-9(7).

¶ 8. CellularSouth proposes another reading of Section 25-61-11 that would remove the conflict with the 2015 amendments. It contends that Section 25-61-11 operates to shield all laws and orders that existed at the time the Mississippi Public Records Act was enacted in 1983. It further contends that the words “or thereafter” mean that such orders and laws that were in effect in 1983 would continue to be protected at all times after the Act became effective, rather than the language of the act could not be cited to modify or supersede any orders or laws that came into effect after the effective date.

¶ 9. CellularSouth supplies us with the more plausible interpretation. A statute is ambiguous when open to two or more reasonable interpretations. Tellus Operating Group, LLC v. Maxwell Energy, Inc., 156 So.3d 255, 261 (¶ 16) (Miss. 2015). For the foregoing reason, ie., that the BellSouth interpretation hopelessly conflicts with the Legislature’s attempts to broaden the range of records subject to production, the BellSouth interpretation falls short of reasonableness. However, even if it were reasonable, the principles of statutory construction favor the Cellular-South interpretation. See City of Tchula v. Miss. Public Serv. Comm’n, 187 So.3d 597, 599 (¶ 6) (Miss. 2016) (“[Wjhere the language in a statute is plain and unambiguous, ‘it is not within the province of this court to add to the law as the Legislature has written it.’ ”)

¶ 10. It is our job to determine legislative intent from the language of the act as a whole, and not to separate from the statutory herd one part alone. Wilson v. State, 194 So.3d 855, 872 (¶ 57) (Miss. 2016) (citing Lewis v. Hinds Cty. Circuit Court, 158 So.3d 1117, 1122 (¶ 13) (Miss. 2015)). In short, the CellularSouth interpretation allows Section 25-61-11 to jibe far better with the remainder of the Mississippi Public Records Act of 1983, in that it acknowledges the 2015 legislative broadening of the scope of records subject to disclosure. Put differently, statutes within an Act should be construed to “harmonize with” one another, Owens Corning v. Miss. Ins. Guar. Ass’n, 947 So.2d 944, 946 (¶ 7) (Miss. 2007), and interpreting Section 25-61-11 in a manner that prevents the plain language of other parts of the Act from correcting contradictory or even erroneous orders certainly fails to do so.

¶ 11. We depart from the instant issue with a word of caution. As discussed below, we do not have a copy of the proposal or contract at issue in the record. Accordingly, we cannot know the extent to which, if at all, they fall within the exception created by Section 25-61-9(7). The trial court will of course need to consider the issue on remand.

II. Section 25-1-100

¶ 12. CellularSouth further argues that House Bill 825, which amended Section 25-61-9 in 2015, also amended Section 25-1-100 in a manner which mandates production of the subject contract. Section 25-1-100(5), the new language, reads, “Contracts for personal and professional services that are awarded or executed by any state agency, including, but not limited to, the Department of Information Technology Services and the Department of Transportation, shall not be exempt from the Mississippi Public Records Act of 1983.” Here, we do not know enough about the contents of the contract to know whether it is a contract for “personal and professional services.” The affidavit of Dennis Brackin that was submitted with BellSouth’s 2006 Joint Petition for a Protective Order appears in the record. Brackin’s affidavit gives some indication of the nature of the contract, but not enough for the Court to decide on appeal whether it falls within the scope of Section 25-1-100(5). However, the issue is one that can be decided by the trial court on remand. If the trial court were to find the contract is indeed one for “personal and professional services,” then by the plain language of Section 25-1-100(5) it would not be exempt from the Public Records Act.

III. Retroactivity

¶ 13. BellSouth argues that the amendments to Section 25-1-100 and Section 25-61-9 are presumed to be prospective only and therefore do not apply to the subject contract. BellSouth cites, inter alia, Boston v. Hartford Accident & Indemnity Co., 822 So.2d 239 (Miss. 2002), overruled on other grounds by Capital City Insurance Co. v. G.B. “Boots” Smith Corp., 889 So.2d 505 (Miss. 2004), for the proposition that “statutes will be construed to have a prospective operation only, unless a contrary intention is manifested by the clearest and most positive expression.” Id. at 245 (¶ 21).

A statute will not be given retroactive effect unless it is manifest from the language that the legislature intended it to so operate. It will not be construed as retroactive unless the words admit of no other construction or meaning, and there is a plain declaration in the act that it is. In short, these cases illustrate a well-settled attitude of statutory interpretation: A preference that it be prospective only, and a requirement that there should be a clearly expressed intent in the act to make it.

Mladinich v. Kohn, 186 So.2d 481, 484 (Miss. 1966). However, the question of whether amendments to statutes apply to existing public records covered by the Public Records Act is diffei’ent from the questions normally considered in the context of the retroactivity of statutory amendments. For example, in Boston, the question was whether the Tort Claims Act would apply to litigation resulting from a death that occurred before the Tort Claims Act was enacted. Boston, 822 So.2d at 245. At issue was whether litigation between the parties would or could continue under the law as it existed at the time of the event or under the then-new Tort Claims Act. Accordingly, the question involved the application of a wholly new statute—as opposed to an amendment to an existing statute—that modified existing rights that existed independently of and before the existence of the statute.

¶ 14. The Supreme Court of Mississippi has had myriad opportunities to consider whether new statutes, or amendments to statutes, should be given retroactive effect. The opportunities to do so date back as far as the middle of the nineteenth century, and most, like Boston, address the effect of new statutes on rights that preexist the statute and, of course, do not derive from the statute. In Brown v. Wilcox, 22 Miss. 127 (1850), the Legislature had passed a new seven-year statute of limitations affecting the execution of judgments. Id. at 129. The question presented was whether the new seven-year period would bar execution of a judgment when the attempt to execute thereupon occurred more than seven years after the entry of the judgment but less than seven years after the passage of the new statute. Id. at 130. The Brown Court held that, due to express statutory language, the statute was not retroactive in the sense that the new seven-year period began running, as to unexpired judgments that predated it, on the effective date of the statute. Id. Accordingly, the statute did not bar the new attempt to execute the judgment.

¶ 15. In Klaas v. Continental Southern Lines, 225 Miss. 94, 82 So.2d 705 (1955), the issue was whether a statute that, for the first time allowed joint tortfeasors to obtain contribution among themselves would apply to a judgment entered before the statute’s effective date.

¶ 16. In response to BellSouth’s argument and citations, CellularSouth, inter alia, cites a long line of cases that hold that, in situations involving the repeal or modification of statutes that create the right in question, “a statute modifying a previous statute has the same effect as though the statute had all the while previously existed in the same language as that contained in the modified statute, unless the repealing or modifying statute contains a saving clause.” Stone v. Indep. Linen Serv. Co., 212 Miss. 580, 586-587, 55 So.2d 165, 168 (1951). The Stone Court considered an appeal from the Circuit Court of the First Judicial District of Hinds County in which the trial court ruled against the Chairman of the State Tax Commission and in favor of Linen Service Company. Id. at 583, 55 So.2d at 166 . At issue was whether Linen Service Company owed use taxes that the Tax Commission sought pursuant to a tax statute that was amended in 1948. Id. at 167. Under the old version of the statute, Linen Service Company owed the taxes, but under the amended version of the statute it did not. Id. at 168. The taxes alleged to be owed accrued, if at all, prior to the effective date of the amendment. Id. at 167. The Stone Court reasoned as follows:

In discussing the effect of a repealing statute or a statute modifying a previous statute on rights or remedies created solely by the repealed or modified statute, this Court, in the case of Deposit Guaranty Bank and Trust Company v. Williams, 193 Miss. 432, 9 So.2d 638, 639 [ (1942) ], said:
Many decisions in this state have affirmed the rule, which generally prevails, that the effect of a repealing statute is to abrogate the repealed statute as completely as if it had never been passed, and that a statute modifying a previous statute has the same effect as though the statute had all the while previously existed in the same language as that contained in the modified statute, unless the repealing or modifying statute contains a saving clause. Crow v. Cartledge, 99 Miss. 281, 54 So. 947, and Musgrove v. Vicksburg & N. Railroad Co., 50 Miss. 677 [(1874)], are among the number of such cases in .this state.
The result of this rule is that every right or remedy created solely by the repealed or modified statute disappears or falls with the repealed or modified statute, unless carried to final judgment before the repeal or modification,—save that no such repeal or modification shall be permitted to impair the obligation of a contract or to abrogate a vested right. Bradstreet Co. v. City of Jackson, 81 Miss. 233, 236, 32 So. 999 [ (1902) ].

Stone, 55 So.2d at 168. In the end, the Stone Court held that because the Tax Commission had failed to do enough to vest the right to the tax proceeds in the State, Independent Linen did not owe the amount sought. Id. at 590, 55 So.2d at 169-170. In other words, the Court applied the amended version of the statute to determine that taxes that would have accrued prior to its passage never accrued. “[A] statute modifying a previous statute has the same effect as though the statute had all the while previously existed in the same language as that contained in the modified statute.... ” Stone, 55 So.2d at 168.

¶ 17. The Court acknowledged the above-described rule as recently as Hudson v. Moon, 732 So.2d 927 (Miss. 1999), where it applied it to the legislative appeal to mortmain. Hudson, 732 So.2d at 931 (¶ 14). However, the Hudson Court did not apply the statute as amended because it held that the heirs therein had a vested right in the land at issue. The rule dates back even further than the 1911 case of Crow v. Cartledge, 99 Miss. 281, 54 So. 947 (1911), where the Court applied it to the repeal of a sales-tax statute. There, the Court wrote as follows:

The effect of a repealing statute of this character is to abrogate the repealed statute as completely as if it had never been passed. It is considered as a law which never existed, except for suits .which were commenced and concluded while the repealed law was in force. By the repeal, the right to collect the unpaid tax was taken away, whether suit was pending therefor or not. The cause of action was taken away, and the suit must end.

Crow, 54 So. at 948.

¶ 18. The rights and remedies at issue here are created solely by the Public Records Act, and we therefore hold that the principle treated in Stone and Hudson controls the issue of retroactive application of the 2015 amendments in the case sub judice. As a result, absent an applicable saving clause, a final judgment, or a loss to BellSouth of a vested right, we must apply the Public Records Act to the instant case as though it has always read as it reads today. BellSouth contends that Section 25-61-11 acts as a saving clause and saves the 2006 order from the application of the amended statutes. However, as shown in the analysis above regarding its application, Section 25-61-11 does not shield the order at issue here. BellSouth further contends that the 2006 protective order is a final judgment, but the order itself contains language that allows for its replacement or revocation by future order of the trial court.. Finally, BellSouth identifies no vested right created by . the 2006 protective order that will be lost. BellSouth does attempt to distinguish Stone, but in the end misses the point the Stone Court made about vested rights. BellSouth- correctly contends that the Stone Court applied the amended statute to the taxes alleged to have accrued (prior to amendment) against Independent -Linen because the State failed to do that which was necessary to obtain - a lien on the taxpayer’s property. See Stone, 55 So.2d at 169. BellSouth contrasts the Tax Commission’s omissions with its own actions in fulfilling all legal requirements for obtaining a protective order. However, in doing, so, BellSouth misses the ultimate point of the Stone holding, which is that the State’s right to the money never vested in the state due to the Tax Commission’s omissions.

¶ 19. Moreover, the statutory framework of the Public Records Act belies any contention that the Legislature intended to create rights in favor of the Department or BellSouth. The structure and wording of the Public Records Act as a whole indicates that the right the Legislature intended to create was the right of the public to the disclosure of public records. For example, Mississippi Code Section 25-61-2, adopted in and unchanged since 1996, reads as follows:

It is the policy of this state that public records shall be available for inspection by any person unless otherwise provided by-this chapter; furthermore, providing access to public records is a duty of each public body and automation of public records must not erode the right of access to those records. As each public body increases its use of, and dependence on, electronic record keeping, each public body must ensure reasonable access to records electronically maintained, subject to records retention.

If the above-quoted language, in which the Legislature speaks of access to public records as something available to “any person” were not enough to convince us that the Public Records Act focuses on the right of the public to have access, Mississippi Code Section 25-61-5(1)(a) expressly makes public records the property of the public.

II20. Based on the language of the Public Records Act, the Legislature -intended the right affected by the 2015 amendments discussed above to be the right of the public to have access to materials that belong to the public. The materials sought by CellularSouth do not belong to Bell-South or to the Department of Information Technology Services, but—again—to the public.

If a court cannot draw a conclusion about a statute’s temporal reach through application of its normal rules of construction, it asks whether applying the statute to the person objecting would have a retroactive consequence in the disfavored sense of affecting substantive rights, liabilities, or duties on the basis of conduct arising before its enactment; if so, then the court applies the presumption against retroactivity by construing the statute as inapplicable to the event or act in question.

82 C.J.S. Statutes § 575 (2009); see also Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37-38, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). Ostensibly, BellSouth’s contention that retroactive application of the amendments affects some right to keep the materials from production has some allure, but the Legislature’s clear pronouncement that the right of the public to have access to public documents quickly cuts through it. If there is an event to which rights attach in the case sub judice, it is CellularSouth’s public records request for the materials, which occurred after the effective dates of the amendments.

¶ 21, Pursuant to the foregoing reasoning, retroactivity of the amendments is a nonissue and does not apply to protect or maintain the 2006 protective order at issue.

Conclusion

¶22. Pursuant to the foregoing, we reverse the order of the Chancery Court of Hinds County denying CellularSouth’s Petition to Revoke Protective Order. We remand the case for further proceedings consistent with our opinion.

¶ 23. REVERSED AND REMANDED.

WALLER, C. J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, BEAM AND CHAMBERLIN, JJ., CONCUR. MAXWELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

MAXWELL, JUSTICE,

DISSENTING:

¶ 24. With respect to the majority, I find it places the cart before the horse. Indeed, the majority offers “a word of caution” about its analysis. (Maj. Op. at ¶ 11). It admits “we cannot know the extent to which, if at all, [the requested documents] fall within the exception created by Section 25-61-9(7).” (Maj. Op. at ¶ 11) (emphasis added). Yet, rather than taking the prudent approach—actually finding out what documents we are dealing with and if they are subject to Section 25-61-9(7) or “protected” by the 2006 order—the majority jumps right in and begins interpreting and making declarations about statutes. So essentially, the majority goes back and forth for pages analyzing Sections 25-61-9(7) and 25-61-11, but concedes it is operating blindly and cannot really say there is an actual controversy that raises a true conflict between the statutes.

¶25. Let me be clear, the majority’s statutory discussion is thorough. And I do not suggest the majority is wrong in the bulk of its analysis of what statute would control if there are indeed supposedly protected documents that raise a conflict between Section 25-61-11’s shielding provision and the recently amended transparency law in Section 25-61-9(7). But I find it premature for this Court to declare we are at a statutory impasse, when it admits it does not know what documents we are dealing with, and if they are even subject to Section 25-61-9(7) or covered by the 2006 protective order. Because of this premature statutory interpretation, I respectfully dissent.

¶26. The record shows the Mississippi Department of Information Technology Services awarded BellSouth the RFP 4000-1 contract on November 30, 2005. This contract was supposed to end in 2016. On February 16, 2006, after other public records requests, BellSouth sought and was granted a protective order, sealing the RFP 4000-1 contract from disclosure. Citing the recent changes to Sections 25-61-9(7) and 25-1-100, Cellular South submitted its public records request to ITS on July 9, 2015.

¶27. I find it important that the 2015 public records request was for “RFP 4000-1 and the Contract associated with RFP Jf000-1 for the last three years.” (Emphasis added.) Both parties agree that a significant amount of time has passed since the RFP 4000-1 contract was awarded in 2005. And the 2006 protective order is very specific in the documents it protects. As the majority notes, the order protects the agreement “dated November 2005” and the related proposal and other materials. (Maj. Op. at ¶ 1). But the record indicates the RFP 4000-1 contract was amended or modified—at the very least when the term was extended from 2016 to 2018. Yet the chancellor made no finding, on the record, whether the 2005 contract or some more recent agreement covering “the last three years” is the operative agreement between ITS and BellSouth, and whether the 2006 order even applies. He simply cited Section 25-61-11, without addressing this concern. If in fact the records sought by Cellular South are not protected by the 2006 order, then there is no “decision of a court of this state” that raises the potential conflict between Sections 25-61-9(7) and 25-61-11.

¶ 28. Rather than preemptively engaging in statutory interpretation of a potential statutory conflict, as the majority does, I find the more reasonable approach at this procedural point is to determine what exact agreement is in place and whether it is subject to the 2006 protective order. So I would remand for additional findings. After these findings are made, the cards will be on the table, and if a statutory conflict emerges we can proceed without guessing.

      . Miss. Code Ann. § 25-61-11 (Supp. 2016).


source: Caselaw Access Project

author: MAXWELL, JUSTICE,

license: Public Domain

text:
    Eugene MARTIN a/k/a E. Martin v. STATE of Mississippi
    NO. 2015-KA-00901-SCT
    Supreme Court of Mississippi.
    03/09/2017

      ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: MOLLIE MARIE McMILLIN GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLIN-TON
   MAXWELL, JUSTICE,

FOR THE COURT

¶ 1. Mississippi Code Section 99-19-81 authorizes the State to seek increased punishment for those charged with a felony offense after having twice been convicted of prior felonies. But for this statutory enhancement to apply, the State must prove each of the defendant’s prior felony convictions resulted in a sentence of one or more years in a state or federal prison. If the State seeks enhanced sentencing, and the requirements are met, Section 99-19-81 mandates the court sentence the defendant to the maximum term of imprisonment' for the subject offense—in this case ten years.

¶ 2. Eugene Martin, who recently was convicted of shooting into a dwelling and sentenced as a habitual offender under Section 99-19-81, claims one of his two prior qualifying felony convictions resulted in a sentence of less than one year. So he was wrongfully subjected to the sentencing enhancement. After review, we agree. We thus affirm Martin’s conviction for shooting into a dwelling, but reverse and remand for resentencing.

Background Facts and Procedural History

¶ 3. After a night out at a club, Martin and Gene Sherrod got into an argument outside the apartments where they lived in Columbus, Mississippi. Around midnight, a scuffle broke out between the two, and Sherrod choked Martin in a headlock. After he let go of Martin, the men returned to their apartments. A short time later, Martin returned to Sherrod’s apartment armed with a pistol. When he was unable to force his way inside Sherrod’s locked apartment, Martin fired several shots through the door.

¶ 4. On April 22, 2014, a Lowndes County grand jury indicted Martin for firing a weapon into a dwelling, in violation of Mississippi Code Section 97-37-29. The State moved to amend Martin’s indictment to charge him as a habitual offender under Mississippi Code Section 99-19-81. The motion cited a 1982 conviction for burglary in Lowndes County and a 1994 federal bank-fraud conviction from California. A hearing was held, and Martin’s attorney made no objection to the State amending his indictment to seek enhanced punishment. After a two-day trial in May 2015, a jury found Martin guilty. Based on the habitual-offender enhancement, the trial judge sentenced Martin to the maximum term under the statute—ten years in prison. Martin filed a motion for a judgment notwithstanding the verdict or, alternatively, for a new trial. The judge denied the motion.

¶ 5. On appeal, Martin’s new counsel argues his sentence is illegal because the prior federal bank-fraud conviction did not result in a sentence of one year or more and does not meet Mississippi Code Section 99-19-81’s requirements for a habitual-offender enhancement.

Discussion

¶ 6. Martin did not object to the judge imposing the mandatory maximum sentence under Section 99-19-81. And failure to object to a habitual-offender enhancement during sentencing procedurally bars a defendant from raising that issue on appeal. Cummings v. State, 465 So.2d 993, 995 (Miss. 1985) (citing Tucker v. State, 403 So.2d 1271 (Miss. 1981), and Tubbs v. State, 402 So.2d 830 (Miss. 1981)). But plain-error review allows this Court to correct obvious errors, not properly addressed below, which impact fundamental, substantive rights. See Smith v. State, 986 So.2d 290, 294 (¶ 10) (Miss. 2008) (citations omitted). An illegal sentence is an obvious error subject to plain-error review. See Conner v. State, 138 So.3d 143, 150-51 (¶ 19) (Miss. 2014) (citing Grayer v. State, 120 So.3d 964, 969 (Miss. 2013)).

I. Habitual-Offender Enhancement

¶ 7. Before Martin’s indictment was amended to seek a habitual-offender sentence, he faced a discretionary sentence of up to ten years imprisonment under Section 97-37-29. But the State sought enhanced punishment, and the circuit judge granted the State’s request based on Martin’s prior felony convictions. The particular habitual-offender statute that the judge found applicable here—Section 99-19-81— required, upon conviction, that he sentence Martin to a mandatory term of ten years.

¶ 8. To qualify as a habitual offender under Section 99-19-81, the defendant must have two prior felony or federal convictions that resulted in separate prison sentences of one year or more. The problem with the statute’s application here is that the State proved just one of Martin’s prior convictions imposed a prison sentence of one year or more—his 1982 burglary conviction.

¶ 9. Martin’s other cited conviction—a 1994 federal bank-fraud conviction from California—resulted in a sentence of only three months’ imprisonment, with three years of supervised release. And when Martin violated the terms of that release, he was sentenced to only an additional five months’ imprisonment. Even with the time tallied together, he was sentenced to less than one year on the federal conviction. So, with Martin lacking two qualifying convictions for enhancement under Section 99-19-81, the habitual-offender statute did not apply. And the circuit judge was not required to sentence Martin to a mandatory ten-year sentence under Section 97-37-29. Therefore, Martin must be resentenced.

II. Defective Indictment

¶ 10. Martin also lodges a pro se claim that his amended indictment is defective. The purported defect is that his indictment was improperly amended and never served on him. These arguments lack merit. The original indictment charged the necessary elements of Section 97-37-29. And the only revision was the State’s inclusion of his prior felony convictions to trigger the habitual-offender enhancement. Uniform Rule of Circuit and County Court Practice 7.09 permits amending indictments to charge the defendants as habitual offenders if the defendant has an opportunity to defend and is not unfairly surprised.

¶ 11. The State moved to amend Martin’s indictment on August 29, 2014. The hearing on the motion was September 2, 2014. Martin made no effort to contest or object to the motion. Martin’s trial did not commence until May 27, 2015. So the timing of the notice is not an issue. And from the record, it is clear Martin was neither unaware nor surprised by the substantive charge of shooting into a dwelling. He had ample notice and time to contest the habitual-offender amendment; he simply opted against doing so. Because there is no record evidence his attorney did not provide him the amended indictment, resulting in prejudice to his defense, we reject this claim.

III. Weight and Sufficiency of the Evidence

A. Sufficiency of the Evidence

¶ 12. When reviewing the sufficiency of the evidence, we ask “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)).

¶ 13. Though Martin suggests his conviction is based on insufficient evidence, he fails to mention what element the State failed to prove. There was testimony from the victim, Gene Sherrod, and Columbus Police Investigator Tabertha Hardin. They detailed how Martin fired four shots from a nine-millimeter pistol into Sherrod’s apartment. The bullets traveled through the apartment’s front door, damaging Sherrod’s television. And at every stage, from the shooting, to a photo lineup, and ultimately trial, Gene Sherrod identified Martin as the shooter. The State sufficiently proved Martin shot a firearm, willfully and unlawfully, into Gene Sherrod’s apartment, meeting every element of Section 97-37-29.

B. Weight of the Evidence

¶ 14. When considering a challenge to the weight of the evidence, we review the evidence “in the light most favorable to the verdict.” Bush, 895 So.2d at 844 (¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss. 1997)). And 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. Again, the eyewitness victim testified. So did a Columbus Police Department investigator. And Martin’s cross-examination of the State’s witnesses was limited. Martin called no witnesses and rested without offering any testimony in defense. Martin’s attorney simply argued that someone else shot into Sherrod’s apartment, but the jury disagreed. The weight of the evidence overwhelmingly supports Martin’s conviction.

IY. Remaining Claimed Errors

¶ 15. Martin also pitches a litany of other supposed errors. But these claims are unsupported by either record evidence or authority. This Court has been clear: “an appellant must present to us a record sufficient to show the occurrence of the error he asserts and also that the matter was properly presented to the trial court and timely preserved.” Byrom v. State, 863 So.2d 836, 853 (¶ 35) (Miss. 2003) (citing Acker v. State, 797 So.2d 966, 967 (Miss. 2001) (quotations omitted)). And “[fjailure to cite relevant authority obviates the appellate court’s obligation to review such issues.” Id. (citing Simmons v. State, 805 So.2d 452, 487 (Miss. 2001) (citations omitted)). Thus, we need not address the remainder of Martin’s claims.

Conclusion

¶ 16. Because Martin received an illegal sentence enhancement under Section 99-19-81, we reverse Martin’s mandatorily imposed maximum sentence and remand for resentencing under Section 97-37-29. We affirm in all other respects.

¶ 17. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, COLEMAN, BEAM AND CHAMBERLIN, JJ., CONCUR.

RANDOLPH, P.J., NOT PARTICIPATING.

      . Under this sentencing enhancement:
      Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.
      Miss. Code Ann. § 99-19-81 (Rev. 2015).

      . Martin had been at the club on the evening of September 25, 2013.

      . The motion argues the burglary conviction carried a term of one year or more in the Mississippi Department of Corrections, while the bank-fraud conviction carried a term of three months in the custody of the United States Bureau of Prisons and three years of supervised release.

      . Additionally, Martin has filed numerous pro se motions asserting on appeal that: (1) his sentence is illegal because of improper enhancement as a habitual offender, (2) there was insufficient evidence to enhance his sentence, (3) his counsel was ineffective for failing to object during sentencing or otherwise challenge his sentence enhancement, (4) there was no Rule 11.03 hearing under the Mississippi Uniform Rules of Circuit and County Court Practice, (5) there was insufficient notice on the motion to amend the indictment, (6) his indictment was defective, (7) his conviction was based on insufficient evidence and is against the overwhelming weight of the evidence, and (8) his due process rights were violated.

      .This Court previously faced a similar claim that a felony conviction, which resulted in a forty-five day sentence with five years of post-release supervision, did not qualify as a sentence of one year or more, to trigger a habitual-offender sentence under Section 99-19-81. Vanwey v. State, 149 So.3d 1023 (Miss. 2014). But in Vanwey, this Court held the defendant waived any challenge to the sentence by failing to object to the allegedly improper Section 99-19-81 enhancement. We found no miscarriage of justice in that case, because the defendant faced 245 years in prison but negotiated a plea agreement to a far lesser sentence of forty-five years. Id. at 1024(¶ 4). The case before us, however, involves a much different situation. In this case, Martin did not negotiate a plea agreement, recommending a lesser sentence—he was convicted at trial. Nor did he receive a lesser sentence, rather he was sentenced as a habitual offender to a mandatory maximum sentence of ten years. Thus, his substantive rights were impacted, so we cannot find waiver.

      . See Miss. Code Ann. § 99-19-81 (Rev. 2015).

      . On remand for resentencing, Martin still faces up to ten years’ imprisonment, but not a mandatory sentence of ten years.

      . Mississippi Code Section 97-37-29 states, in full:
      If any person shall willfully and unlawfully shoot or discharge any pistol, shotgun, rifle or firearm of any nature or description into any dwelling house or any other building usually occupied by persons, whether actually occupied or not, he shall be guilty of a felony whether or not anybody be injured thereby and, on conviction thereof, shall be punished by imprisonment in the state penitentiary for a term not to exceed ten (10) years, or by imprisonment in the county jail for not more than one (1) year, or by fine of not more than five thousand dollars ($5,000.00), or by both such imprisonment and fine, within the discretion of the court.
      Miss. Code Ann. § 97-37-29 (Rev. 2014).

      . Martin claims numerous “due process violations.” He suggests witnesses lied in affidavits, he was given no opportunity for a fair trial, he was provided insufficient notice, and that police suppressed evidence. However, he cites no record evidence or supporting authority to substantiate any of these claims.


author: WALLER, CHIEF JUSTICE, KITCHENS, JUSTICE,

text:
    Greg SPORE v. STATE of Mississippi
    NO. 2015-CA-01195-SCT
    Supreme Court of Mississippi.
    03/09/2017

      ATTORNEYS FOR APPELLANT: JEFFREY M. GRAVES, DENNIS C. SWEET, III
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN
   WALLER, CHIEF JUSTICE,

FOR THE COURT:

¶1. Attorney Greg Spore appeals the order finding him in direct criminal contempt by Judge Jeff Weill Sr. of the Hinds County Circuit Court for displaying willful, contemptuous behavior that interfered with the orderly administration of justice. Finding that the record supports the trial court’s order beyond a reasonable doubt, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On July 13, 2015, Greg Spore, Hinds County Assistant Public Defender, appeared in the Circuit Court of the First Judicial District of Hinds County before the Honorable Jeff Weill Sr., Circuit Judge, to represent Jeremy Cowards in an adjudication hearing, following the violation of his probation. Cowards had been indicted for house burglary and was ordered on January 11, 2011, to Regimented Inmate Discipline (RID). On October 31, 2011, when Cowards had completed the RID program, he was sentenced to five years of nonadjudicated probation. Thereafter, on May 6, 2015, Cowards was convicted of domestic violence in Jackson Municipal Court for punching a woman while she held a young child.

¶3. At Coward’s hearing on the probation violation before Judge Weill, he was found guilty of burglary for which he previously had received nonadjudicated probation. After the pronouncement of guilt, Judge Weill asked whether the defense had any argument for the court to consider for sentencing. Spore enumerated various reasons for the court to consider allowing Cowards to remain out of jail. Spore stated:

There are many factors at play here Your Honor concerning both employment, family—he’s got the support of both immediate and extended family in the community, much accountability. He has two daughters, one an infant daughter; in fact bom in December, December 24th, his Christmas miracle I believe he refers to her as. Johneia I believe her name is. And he’s trying, he wants to get back to his family. He wants to get back to his employer. I left a message trying to get up with Mr. Tony Lofton here in the security service here in Jackson, Mississippi. He’s employed Mr. Cowards in the past, and it’s my understanding that he’s willing to employ him in the future, as soon as he is released.

¶4. Following Spore’s argument, Judge Weill asked whether the defense had “anything further in argument on the sentencing to be imposed” and whether the defendant wanted to say anything. Spore responded that he was speaking on Cowards’s behalf.

¶5. Judge Weill asked a third time whether Spore had “fully made [his] argument,” and Spore again replied, “[y]es, Your Honor.” Spore continued: “[a]nd again, we would just implore the Court to ... allow him to maintain his non-adjudicated status.” Judge Weill then stated that “the reason I’m asking if you’ve fully made your argument, is after I pronounce sentence I’m not going to hear further argument—[.]” Spore replied, “[u]nder-stood, Your Honor.” Judge Weill then again told Spore to “finish your argument.” Spore continued:

Yes, Your Honor. I believe, and on the outset I did make mention of the preliminary healing. That was a concern only insofar as we don’t know if indeed one took place. And if one did take place we don’t know the date of that particular hearing. That would just give us a better sense of the timeline of how things have run from his arrest, the initial arrest for the alleged—excuse me—simple domestic. As well as I believe a warrant in this instance was filed mid June. And we’re just trying to gauge if that was early on. I have a suspicion that the preliminary hearing may have taken place in March in the immediate wake of his initial arrest, prior to an affidavit being filed with the Court for a warrant for his arrest for the revocation, for the violation allegation.

Judge Weill then asked “anything further?” and Spore responded “[n]o, Your Honor.”

¶6. Judge Weill then sentenced Cowards to ten years in prison with three years suspended, after which the following colloquy took place between Spore and Judge Weill:

MR. SPORE: Your Honor we just have one—it’s not an argument Your Honor.
THE COURT: Excuse me.
MR. SPORE: We had one last point. We’d assumed the reason why—
THE COURT: Excuse me Mr. Spore.
MR. SPORE: Yes, sir.
THE COURT: I gave you ample opportunity, twice, to make all of your arguments—
MR. SPORE: This is not an argument.
THE COURT:—and I’m not going to listen to further argument.
MR. SPORE: Your Honor.
THE COURT: So we’re going to conclude this matter and move on to—and there will be five years of post-release supervision when he gets out of jail.
MR. SPORE: Your Honor may I please make my record. This is not an argument necessarily. There was an assumption that the .Court would follow Blocker in this instance. The Court made mention of the fact that Mr. Cowards, on his- five-year non-adjudicated sentence, original sentence, served I believe six months in the RID Program, successfully completed the RID Program. That fact, that fact alone, he cannot be sentenced.

Judge Weill stopped Spore a second time: “Excuse me Mr. Spore. I’ve made my ruling. I gave you ample opportunity to make your argument. So we’re concluding this matter at this time. Please sit down.” Spore responded, again, that he was “simply trying to make my record.” Judge Weill then found Spore in direct criminal contempt and fined him $100.00, to be paid from personal funds by 12:00 p.m. (noon) on July 14, 2015. Judge Weill’s written order stated that “Spore was held in direct criminal contempt due to his failure to abide by an order of the Court, for willful disruptive interference in court proceedings, and for violating Rule 3.02 of the Uniform Circuit and County Rules,”

¶7. Spore filed a Notice of Appeal on August 12, 2015, and raised the following issues: (1) Whether the trial court erred in issuing an order finding Greg Spore in direct criminal contempt where Greg Spore did not display any contemptuous conduct, and (2) whether the trial court erred in finding, that Greg Spore violated Rule 3.02 of the Uniform Circuit and County Court Rules where Greg Spore did not in any way act unprofessionally or disrespectfully toward the judge. In the State’s briefing it stated the issues differently. The State argued that the trial court did not err in finding Greg Spore in direct criminal contempt for (1) Spore’s failure to obey an order of the court and (2) his willful disruption and interference with the orderly proceedings of the court. The court will address the ■ issue for decision as whether the record shows beyond a reasonable doubt that Spore displayed willful, contemptuous conduct that interfered with the orderly administration of justice.

STANDARD OF REVIEW

¶8. This Court applies an “ab initio” standard to cases of criminal contempt. In re Smith, 926 So.2d 878, 885 (Miss. 2006) (citing Brame v. State, 755 So.2d 1090, 1093-94 (Miss. 2000)). This Court “ ‘is not bound by the manifest error rule when the appeal involves a conviction of criminal contempt. Instead, this Court proceeds ab initio to determine whether the record proves the appellant guilty of contempt beyond a reasonable doubt.’” In re Smith, 926 So.2d at 886 (quoting Purvis v. Purvis, 657 So.2d 794, 797 (Miss. 1994)). “The burden of proof to establish that contempt has been committed is on the party asserting that contemptuous conduct has occurred” and, “[i]n a proceeding for criminal contempt, evidence of guilt must be established beyond a reasonable doubt.” In re Smith, 926 So.2d at 886 (citing In Interest of Holmes, 355 So.2d 677, 679 (Miss. 1978)).

DISCUSSION

Whether the record supports, beyond a reasonable doubt, that Spore displayed willful, contemptuous conduct that interfered with the orderly administration of justice.

¶9. The power to hold an officer of the court in contempt “is an important tool for keeping order and maintaining an efficient court system.” In re Hoppock, 849 So.2d 1275, 1278 (Miss. 2003). “A court’s power to maintain control over the proceedings before it is not grounded in its punitive jurisdiction, but in the necessary and inherent power to regulate its proceedings.” Knott v. State, 731 So.2d 573, 576 (Miss. 1999) (citing In Re Lewis, 654 So.2d 1379, 1383 (Miss. 1995)).

¶10. At the probation revocation hearing, the trial judge asked Spore three different times whether he had finished making his argument.. After the third time, Spore stated that he had. Judge Weill then stated that “after I pronounce sentence I’m not going to hear further argument.” Following this exchange, Spore offered additional argument. When he completed this, the judge then asked a fourth time “anything further?” Spore responded, “[n]o Your Honor.”

¶11. Despite multiple cautionary admonitions, Spore did what the judge warned him of, and what he agreed not to do, restarting his argument following the pronouncement of the sentence. The court tried to stop Spore at least five times. Despite these requests to stop arguing and to sit down, Spore continued to speak and did not sit down. It was at this point that the judge found Spore in direct criminal contempt of the court and fined him $100.

¶12. Spore claimed he needed to make his record and zealously represent his client. However, behavior that “ ‘tends to bring the court into disrepute or disrespect’ ” is criminal contempt. Purvis v. Purvis, 657 So.2d 794, 797 (Miss. 1994) (quoting Lawson v. State, 573 So.2d 684, 686 (Miss. 1990)). Spore’s claim that he needed to make his record lacks merit, as he had ample opportunities to do so. In Mississippi Bar v. Lumumba, Lumumba claimed that he needed to make a record and ignored instructions from the judge. Mississippi Bar v. Lumumba, 912 So.2d 871, 878 (Miss. 2005). The Court recognized that “[Lumumba’s] verbal argument at the hearing ... was solely for the purpose of attempted persuasion of Judge Gordon [and disputing his announced ruling], not ‘making a record.’” Id. at 878. The same could be said of Spore’s attempts in the case sub judice.

¶13. Additionally, while Lumumba claimed he was zealously representing 'his client, the Court of Appeals affirmed his criminal-contempt sanction and found his behavior was “disrespectful to the judge and disruptive to court proceedings.” Lumumba v. State, 868 So.2d 1018, 1021 (Miss. Ct. App. 2003). In another case, this Court affirmed a charge of criminal contempt where a lawyer simply had refused to apologize for stating alleged falsehoods before the court. In Re Smith, 926 So.2d 878, 885 (Miss. 2006).

¶14. Mississippi Rule of Professional Conduct 3:5 directs a lawyer not to “engage in conduct intended to disrupt a tribunal.” Miss. Rule Profl Conduct 3.5(d). The comment to the rule states that a lawyer’s ability to “[r]efrain[] from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants.” Id. at 3.5(d) cmt. Spore’s announced purpose of diligently-representing his client does not excuse conduct that violates Rule 3.5.

¶15. Judge Weill also found that Spore had violated Rule 3.02 of the Uniform Rules of Circuit and County Court Practice. That rule states that “[attorneys should manifest an attitude of professional respect toward the judge, the opposing attorney, witnesses, defendants, jurors, and others in the courtroom. (Emphasis added.) Spore failed to heed Judge Weill’s requests and was clearly disrespectful before the court.

CONCLUSION

¶16. Because the record establishes beyond a reasonable doubt that Spore was guilty of direct criminal contempt for displaying willful, contemptuous conduct in the courtroom that interfered with the orderly administration of justice, the trial court’s order is affirmed.

¶17. AFFIRMED.

RANDOLPH, P.J., COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KING, J.

KITCHENS, JUSTICE,

DISSENTING:

¶18. The record does not establish, beyond a reasonable doubt, that Greg Spore’s post-ruling efforts to speak to Judge Weill were calculated to prevent the orderly administration of justice, nor does the record demonstrate that he was, in any way, disrespectful to the judge. Because I would reverse the judgment of the Circuit Court of the First Judicial District of Hinds County and render judgment in Spore’s favor, I respectfully dissent.

¶19. “A judge issues a citation for criminal contempt to vindicate the dignity and authority of the court. This is proper only when the contemnor has willfully, deliberately and contumaciously ignored the court, or the court’s directive.” In re Smith, 926 So.2d 878, 887-88 (Miss. 2006) (citing Premeaux v. Smith, 569 So.2d 681, 684 (Miss. 1990)). This Court has held that “[djirect criminal contempt involves words spoken or actions committed in the presence of the court that are calculated to embarrass or prevent the orderly administration of justice. Punishment for direct contempt may be meted out instantly by the judge in whose presence the offensive conduct was committed ....” In re Smith, 926 So.2d at 888 (quoting In re Williamson, 838 So.2d 226, 237 (Miss. 2002)). “More specifically, direct criminal contempt ‘may consist of an open insult, in the presence of the court, to the person of the presiding justice, or a resistance to or defiance of power of the court.’” In re Smith, 926 So.2d at 888 (quoting Neely v. State, 98 Miss. 816, 54 So. 315, 316 (1911)). Further, direct criminal contempt has been defined as “ ‘[disorderly conduct in the court room, or the use of violence, or threatening, or insulting language to the court, witnesses or counsel ....’” Id. “A contempt which is direct, in the immediate presence of the court, may be summarily punished without affidavit, pleading or formal charges.” In re Smith, 926 So.2d at 888-89 (citing Varvaris v. State, 512 So.2d 886, 887-88 (Miss.1987)).

¶20. Spore argues that nothing he “said or did can be reasonably calculated to prevent the orderly administration of justice.” Spore continues that all he intended was to make a statement on the record in an effort to preserve an issue for appeal: “Mr. Spore was simply trying to make a record for appellate review. Judge Weill deprived him of the right; and therefore denied Mr. Spore the right to zealously advocate for his client’s interest.” In response, the State contends that “Spore’s conduct during the hearing was a breach of courtroom decorum and was disruptive to the orderly administration of justice.” According to the State, Judge Weill allowed Spore ample time to make his argument and “Spore was attempting to argue that the trial court applied an incorrect standard, which Spore neglected to include in his argument.”

¶21. The Mississippi Rules of Professional Conduct state that “[a] lawyer shall not ... engage in conduct intended' to disrupt a tribunal.” Miss. R. Prof'l Conduct 3.5(d). The comment to the rule provides the following:

The advocate’s function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.

Miss. R. Prof'l Conduct 3.5(d) cmt. Here, Spore’s post-ruling conduct provides what may be interpreted as an example of an advocate’s attempt to “protect the record for subsequent review ... by patient firmness” in the complete absence of “belligerence or theatrics” in a manner consistent with the letter and spirit of Rule 3.5 and its comment. Spore argues that he was merely engaging in zealous representation of his client by attempting to make a record for appellate review. Uniform Rule of Circuit and County Court Practice 3.02 provides that “[ajttorneys should manifest an attitude of professional respect toward the judge ....” URCCC 3.02. All of Spore’s efforts to speak to the court were couched in genteel and respectful verbiage in which he consistently addressed Judge Weill as “Your Honor.”

¶22. In the case of In re Smith, a lawyer made the following remark, inter alia, in open court to the judge: “ T believe that the actions of this Court have been so reprehensible as to disgust any court.’” In re Smith, 926 So.2d at 880 (emphasis in original). The lawyer then “refused to genuinely apologize, despite being given multiple opportunities by the court to do so.” Id. As a result, the trial judge found the lawyer in direct criminal contempt and had her jailed for five days. Id. This Court affirmed, holding that “the record unquestionably reveals, beyond a reasonable doubt, that Smith was, guilty of direct criminal contempt ....” Id. at 890.

¶23. In Mingo v. State, 944 So.2d 18, 32 (Miss. 2006), the defense lawyer sought to withdraw because of threats that had been made by unknown third persons against the defendant and his witnesses. When the trial court denied the motion, the defense lawyer refused to proceed with the trial. Id. at 33. The trial court then held the defense lawyer in direct criminal contempt. Id. This Court affirmed, finding that “[d]e-fense counsel’s refusal to continue with trial clearly constituted an action tending to prevent the orderly administration of justice” and that the “trial judge’s decision to hold counsel in direct criminal contempt, while serious, was within his discretion.” Id.

¶24. In the present case, Spore’s statements following Judge Weill’s imposition of Cowards’s sentence were responsive to that ruling: “[t]he Court made mention of the fact that Mr. Cowards, on his five-year non-adjudicated sentence, original sentence, served I believe six months in the RID Program, successfully completed the RID program.” Judge Weill reminded Spore that he had been given “ample opportunity” to make his argument and instructed him to “[p]lease sit down.” When Spore responded that he was “simply trying to make my record,” Judge Weill found him in direct criminal, contempt.

¶25. This case does not approach the degree of blatant disrespect shown by the lawyer’s comments in In re Smith, nor does it demonstrate anything close to the degree of obstruction shown by the lawyer’s refusal to continue with trial in Min-go. Furthermore, this Court routinely applies a procedural bar if the defendant’s lawyer failed to interpose a contemporaneous objection to a judicial ruling. Hall v. State, 201 So.3d 424, 428 (Miss. 2016) (“Hall has forfeited his right to argue these issues on appeal by failing to object contemporaneously below. Our rule is well-settled that a defendant’s failure to object bars that defendant from raising an issue on appeal.”); Cox v. State, 183 So.3d 36, 50 (Miss. 2015) (“Once at the sentencing, trial, defense counsel failed to renew any objections as to victim-impact testimony. Cox’s claim is, therefore, barred from consideration.”); Moffett v. State, 49 So.3d 1073, 1101 (Miss. 2010) (internal citation omitted) (“We will not hold a trial court ‘in error on appeal for a matter not presented to it for decision.’ ”). Spore’s timely effort to lodge a contemporaneous objection was stifled by the court.

¶26. The majority’s analogizing this case to Mississippi Bar v. Lumumba, in which this Court imposed discipline upon an attorney for blatant misconduct, is misplaced. Miss. Bar v. Lumumba, 912 So.2d 871, 889 (Miss. 2005). The lawyer in that case, appearing on behalf of a client in criminal post-trial motions before a circuit judge, said the following to the judge: ‘“Look, Judge, if we’ve got to pay for justice around here, I will pay for justice. I’ve paid other judges to try to get justice, pay you, too, if that’s what is necessary.’ ” Id. at 875. “[The court] cited [the lawyer] for contempt, fined him $500, and ordered him to serve three days in the Leake County Jail,” of which sentence the lawyer actually served one and one-half days. Id.

¶27. On appeal, the Mississippi Court of Appeals held that:

[The attorney’s] behavior was done in the presence of the court and intended to embarrass or prevent orderly administration of justice. Further, it was both disrespectful to the judge and disruptive to court proceedings. . We cannot fathom any situation that would warrant such behavior. This Court finds that the statements made toward the judge about how he can better get along with lawyers in the future, about the judge’s “henchmen,” about being proud to be thrown out of the courtroom, and about paying the judge for justice were made to embarrass the court or impede the administration of justice. This Court finds that the statements go far beyond zealous representation of one’s client, and makes a mockery of the court and its proceedings.

Id. (quoting Lumumba v. State, 868 So.2d 1018, 1021 (Miss. Ct. App. 2003)), The situation described in Lumumba does not resemble the situation before this Court today in any respect. Spore was courteous and deferential in his attempt to preserve his client’s position for the record: ‘Tour Honor may I please make my record[?]”

¶28. We cannot discern Spore’s tone or manner of speaking, as Judge Weill was in a position to do. But the post-ruling comments do not appear from the cold record to have been calculated to prevent the orderly administration of justice. Spore appears not to have been presenting the same argument he had made prior to the ruling. Rather, the record reflects that Spore was attempting to advance a new argument that was responsive to the sentence the court had imposed, to which Spore seemed to be trying to interpose a contemporaneous and timely objection. Moreover, Judge Weill’s specific order to Spore was that he was not to present further argument “on the sentencing to be imposed.” (Emphasis added.) While the ruling relates to further argument about the anticipated sentence, temporally, Judge Weill’s words did not preclude Spore from presenting argument in response to the sentence once it had been imposed. Taken literally, the judge’s argument limitation applied to presentencing argument and not to postsentencing remarks by counsel.

¶29. The majority approves Judge Weill’s finding of contempt based on his having disallowed a lawyer to present argument in response to a sentence. This could authorize a trial court, under the guise of maintaining courtroom decorum, to preclude a lawyer from making a record-preserving contemporaneous objection to the sentence imposed. For example, if the sentence had been an illegal sentence, Spore would not have been able to make a contemporaneous objection without violating the court’s directive that the lawyer not speak after the pronouncement of sentence.

¶30. In Slaymaker v. State, 513 So.2d 921 (Miss. 1987), for instance, the circuit court imposed a five-year sentence and also suspended the defendant’s driving privileges for five years after the defendant was convicted of vehicular homicide. This Court affirmed the five-year sentence for vehicular homicide, but reversed and rendered the suspension of the defendant’s driving privileges because “[t]he suspension of driving privileges is the exclusive province of the Commissioner of Public Safety.” Id. at 922. The Court held that the circuit court “acted without statutory authority in suspending [the defendant’s] driving privileges for five years and imposed a sentence exceeding the maximum penalty provided by law.” Id. But for Slay-maker’s lawyer’s contemporaneous objection, the illegality of the suspension of driving privileges portion of the defendant’s sentence would not have been properly before this Court.

¶31. The majority—and the parties— agree that the order Spore is alleged to have violated is Judge Weill’s prohibition of further argument after the sentence was pronounced. But the transcript of the proceedings shows that, after a brief exchange, Judge Weill had asked Spore to “[pllease sit down.” Spore responded, ‘Tour Honor, I’m simply trying to make my record.” It was at that point that Judge Weill found Spore in direct criminal contempt. The record is far from clear with respect to precisely what “order” Spore is accused of violating. Was it Judge Weill’s instruction that no further argument would be heard after the sentence was handed down? Or was it Judge Weill’s directive that Spore “[pjlease sit down”? The record does not inform this Court whether, or at what point, if any, Spore sat down as ordered. The contempt order, itself, provides no clarification. Spore was found in direct criminal contempt “due to his failure to abide by an order of the [c]ourt .,.. ” (Emphasis added.) This Court cannot, on ab initio review, find Spore guilty beyond a reasonable doubt of direct criminal contempt if we are unable to ascertain from the record what “order of the [e]ourt” he is accused of violating.

¶32. Moreover, while the Mississippi Rules of Professional Conduct govern the behavior of lawyers in court, the Code of Judicial Conduct imposes reciprocal requirements of patience and courtesy upon the judges of this State. Canon 3B(4) states that, “[j]udges shall be patient ... and courteous to ... lawyers ... with whom they deal in their official capacities .... ” Miss. Code of Judicial Conduct Canon 3B(4). The comment explains that “[t]he duty to hear all proceedings is not inconsistent with the duty to dispose promptly of the business of the court. Courts can be efficient and businesslike while being patient and deliberate.” Miss. Code of Judicial Conduct Canon 3B(4) cmt. Further, Canon 3B(7) states that “[a] judge shall accord to all who are legally interested in a proceeding, or their lawyers, the right to be heard according to law.” Miss. Code of Judicial Conduct Canon 3B(7).

¶33. For these reasons, I respectfully decline to join the majority.

DICKINSON, P.J., AND KING, J., JOIN THIS OPINION.

      . Mississippi Code Section 47-5-110.2 (Rev. 2015) provides that "[fjrom and after January 1, 2017, no person to be sentenced to the custody of the Mississippi Department of Con-rections shall be ordered to a Regimented Inmate Discipline (RID) program by any court of this state.”

      . Because Judge Weill had just adjudicated his burglary conviction, Spore was likely arguing for some type of probation or some other sentence that does not require incarceration.

      . It appears Spore was citing a case to Judge Weill. But nothing in the record before this Court indicates to what Spore was referring. And it was not mentioned prior to Judge Weill’s ruling.

      . "Ab initio”- is defined as "[fjrom the beginning." Ab initio, Bryan A. Gamer, Black’s Law Dictionary (10th ed. 2014).

        . Lumumba’s antics certainly were more egregious. In addition to refusing to stop arguing with the judge after repeated requests, he made overtures that justice was for sale. But his punishment also was more severe, as his sentence included three days in jail. It is also of note that the Bar suspended Lumumba for six months from law practice. Mississippi Bar v. Lumumba, 912 So2d 871, 889 (Miss. 2005).

      . Webster's Dictionary defines this as “marked by unruly or aggressive noisiness” and "stubbornly resistant to control.” Obstreperous, Random House Webster’s Unabridged Dictionary (2d ed. 1999).

      . Mississippi Code Section 47-5-110(4)(a) previously allowed the Mississippi Department of Corrections to “by rule or policy and procedure provide the regimented inmate discipline program [RID] and prerelease service for offenders at its major correctional facilities ....” Miss. Code Ann. § 47-5-110(4)(a) (2011). That language no longer appears in the 2015 revision. See Miss. Code Ann. § 47-5-110(4)(a) (Rev. 2015). Mississippi Code Section 47-5-110.2 (Rev. 2015) provides that "[f]rom and after January 1, 2017, no person to be sentenced to the custody of the Mississippi Department of Corrections shall be ordered to a Regimented Inmate Discipline (RID) program by any court’of this state.”